Duro Sessa
President of Association of Croatian Judges
Justice of Supreme Court of Republic of Croatia
EVALUATION
OF
JUDGES
PERFORMANCE
IN
CROATIA- WHEN, HOW AND WHY.
Introduction
Evaluation of judges is a topic which is occupying society, governmental
establishment and judiciary for decades.
Reasons for such interest in judge's work and how they perform their duties lays
firstly in openness which judiciary shows in modern times and also in importance which
judiciary has now in modern society governed by law.
In that respect it is of great importance to the society to know that
their rights
and obligations are decided by persons which they can trust, persons of high moral
integrity who are well educated and trained for their tasks and role which they have in
society.
Judges are also as profession interested that among their ranks there are persons
who can protect judiciary and who are able to be example to others who are perusing
their ambition to become a judge.
Of course medal has always two sides and other side of this idealistic picture lays
in permanent need of other two powers of the state to control judiciary in some degree
more or less openly, more or less directly, more or less unduly. Assessment of judges
can also be a tool to take this mostly hidden path often presented as a care which
governments are taking in the interest of their citizens.
In my opinion, having some of those elements in mind Committee of Ministers of
Council of Europe in their Recommendation CM/REC (2010)12 in paragraph 42. stated:
“With a view to contributing to the efficiency of the administration of justice and
continuing improvement of its quality, member state may introduce systems for the
assessment of judges by judicial authorities, in accordance with the paragraph 58.”
Also Recommendation is going further on stating in paragraph 58. as follows:
“Where judicial authorities establish systems for the assessment of judges such systems
should be based on objective criteria. These should be published by the competent
judicial authority. The procedure should enable judges to express their view on their own
activities and on the assessment of their activities, as well as to challenge assessment
before an independent authority or a court.”
Having this standards in mind, which are repeated and stated in numerous international
documents, not only of Council of Europe but also in documents of other International
organizations it could be expected that each country has created its own system of
assessment of judge’s performance which will be in conformity with this principles.
Regarding Croatia in following lines it is going to be explained how, when and why
judges are evaluated.
Situation in Croatia
As it is well known Croatia just recently became 28th member state of EU. To
accomplish this goal which lot of previous generation of Croatians could only dream of,
and for a goal which lot of sacrifice has been made, Croatia had to go through many
reforms to meet EU standards and judiciary was not exception.
The reform ended with amendments to the Constitution in 2010. which established
judiciary as independent and autonomous state power, with permanent tenure for judges
until age of retirement, with State Judiciary Council with eleven members of which seven
are judges elected by judges and with authority to appoint and promote judges and to
decide on their disciplinary responsibility.
Changes of Constitution lead to delivering new Law on Courts (LC) form 2013.
published in Official Gazette No. 28.
Another law which had to be amended was Law on State Judiciary Council ( LSJC) and
has its final version in power from 2013.
LSJC among other things proscribes what pre conditions which candidate has to fulfill to
become a judge.
In that respect general provisions are the same for all applicants (citizenship. law degree,
bar exam experience in accordance with the Law and abilities to perform a duty of a
judge).
Judges of first instance courts (Municipal Courts, Misdemeanor Courts, Administrative
Court and Commercial Court) are appointed only if they successfully passed School for
Judges which is part of Judicial Academy as independent judicial body. All process of
entering school, evaluation of candidates during two year period of preparing, final exam
is controlled and governed by State Judicial Council.
After successfully finishing the School candidates
are appointed to judicial post
according vacant places in the courts where candidates with better results can chose in
some extend the court where they would like to start their career .
Judges of higher courts (Courts of Appeal, High Courts, and Supreme Court) are
promoted if they apply to a vacant place in this courts, and if they pass the process of
appointment which includes the process of assessment of their previous career.
Here we come to the answer to the first question. When judge’s work is evaluated?.
Judges are evaluated in regular circumstances when and if they apply for a position
to another court and if they apply for the post of the president of the court.
Evaluation of judge’s performance is not done by HJC but by another body - Council of
Judges.
This is body of judicial self governance has authority:
a.) to evaluate judge’s performance, and to
b.) Give opinions and answers did a judge performed in accordance with Code of Judicial
Ethic if such a question appears before it.
Council of Judges consist only from judges and in most cased has fifteen members
which nine are judges of second instant courts ( Appellate and High Courts) and six are
judges of first instant courts which came under jurisdiction of particular higher court.
Members of Council of Judges are elected by judges in secret ballot and each judge can
be member and each judge has a right to vote.
If the judge who comes within jurisdiction of the Council of Judges applies for a vacant
place or for a post of president of a court Council will evaluate his/hers performance on
the base of certain criteria which is set up in the LC.
Those elements are proscribed in Article 97. of LC and according to that article they are:
1. Number of decisions which judge delivered in certain period of time ( not les than a
year) . This quantitative criteria is measured in relation to quantitative criteria set up for
all judges in so called “Frame quantitative criteria for judges”1 .
2. Working results in absolute numbers and in percentage according to all type of cases.
3. Is a judge following the time frames for delivering decisions2.
4. Quality of decisions which is measured in percentage of those decisions which are
squashed by higher court.
5. Other activities of a judge.
In purpose to make this process transparent and fair to all judges, and to make in unified
State Judicial Council had an obligation to deliver a Methodology how the assessment of
judge’s work should be delivered because result of assessment process is pronounced in a
1
Document delivered by Ministry of Justice after the Opinion of General Assembly of Supreme Court is
obtained.
2
In procedural laws there are provisions in how many days decision has to be delivered to the parties after
the hearings are closed. ( around 1 to 2 months.)
form of a decision which evaluates judges work on a base of points system and where
each ruling has to be reasoned.
The decision on the assessment of judge can be:
1. “Excellent” if a judge gained 130 to 150 points.
2. “Very successful” if judge gained 110 to 129 points
3. “Successful” if a judge gained 90. to 109 points.
4. “Satisfactory” if a judge gained 70 to 89 points
5. “Not satisfactory” if a judge gained less than 70 points.
Each judge has a right to appeal the decision to the Supreme Court of Republic of
Croatia. The panel of five judges is deciding on the appeal and its decision is final.
This brings us to the answer how judges are assessed.
To this has to be added that State Judicial Council conducts an interview with the
candidates to evaluate those who are most suitable for the vacant post among the
candidates who made their application after there was a public announcement for a need
for a judge in particular court. .
Interview is opened to the public, all members of SJC3 give points to the candidate on
their own assessment of the interview (from 1. to not more than 20) and then average
number of points is calculated to each candidate. This points gained on the base of the
interview are added to the points in the decision of Council of Judges and than final list
of candidates is delivered by SJC.
Candidate with highest number of points then is appointed for a vacant post.
This brings us to the answer to the third question - Why the process of assessment is
done?
3
Beside 7 judges there are two professors of law from Law Schools, and to memberes of parliament one
from majority and one from the oposition.
One could say that the law maker tried to establish such a system where there is high
degree of probability that those judges who are best in their performance by objective
criteria will be promoted to higher posts within judiciary and that this process will be
one of most important elements of having accountable, independent and effective court
system.
Evaluation as part of disciplinary responsibility
Evaluation of judge’s performance has also another aspect in the frame of his/hers
disciplinary responsibility.
According to Article 62 of LHJC one of proscribed disciplinary offences is when a judge
is not performing his/hers duties in a proper manner. This mostly means that quantitative
criteria are not satisfied set in above mentioned document “Frame quantitative criteria for
judges”.
Presidents of courts have a duty to follow are judges performing their duties in proper
manner and if they do not meet quantitative criteria without real and justified reason (
i.e.illness, other duties, particular case etc.) presidents of courts have to initiate
disciplinary proceedings against those judges.
In that respect one aspect of assessment (quantitative performance) is done not by
Council of Judges or High Council of Judiciary but by presidents of courts. Of course as
High Judicial Council has only authority to decide on disciplinary responsibility of a
judge assessment made by a president of court is matter of the proceeding and can be
challenged as any other evidence in the case.
Conclusion
Having in mind the system of assessment of judges in Croatia as it is proscribed by Law
on Courts and Law on State Judiciary Council it could be stressed as conclusion:
1. Judges are evaluated in ordinary circumstances only if they apply for a promotion or
transfer to another court or to become president of court,
2. Assessment is done by two bodies which both are judicial bodies,
3. Judges through their application, right to appeal against decision of Council of Judges
and through interview before SJC have opportunity to express their own view on their
activities and performance,
4. Judges have right to challenge the assessment before court (Supreme Court)
5. Interview before State Judicial Council which also brings some points to the candidates
can open space for some misuse of the this stage in appointment process but only and
when all eleven members of SJC would be in arrangement to do so which is not likely to
happen,
6. Elements of assessment as they are defined in Law are pure judicial duties but data
which is needed for fulfilling those elements
is
mostly based on statistic which
sometimes could lead to wrong conclusions about abilities of a judge who is evaluated .