6.2.1. First Yugoslavia (1918-1941)
Prior to the creation of the SHS in 1918, Croatia (as part of the Habsburg Monarchy) adopted from Austrian sources pieces of legislation relevant for judicial organisation and process (Uzelac, 2000: 1). But, as Alan Uzelac (2004a: 6), one of the leading professors of law in Croatia, notes: „that process did not develop harmoniously, in full, or without delays‟. For example, some of the key pieces of procedural legislation were adopted in Croatia after they had already been superseded in Austria (ibid). Following the establishment of the SHS, the justice system of this state was „very diverse‟ (Uzelac, 2000:
2). Uzelac (2000: 2) notes that, „Organization and status of judges in this state was never uniform: the state was divided in six “legal areas”.
Croatia‟s legal order of procedures determining the rights and legal interests of physical and legal persons was codified for the first time in 1930 within a special law, the General Administrative Procedure Act28 (GAPA) (Medvedović, 2003: 417). This act was based on
28 Until 1918, within the scope of an autonomous Croatian administration, administrative procedure in individual fields and for individual issues was regulated through legal regulations bearing different legal power (Medvedović, 2003: 416-17).
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the Austrian law of 1925, corresponding therefore to a strong normative tradition. Legal experts claim that GAPA was one of those acts with effects spanning over the entire administrative system of the state, including the administrative jurisprudence system (Medvedović, 2003, Omejec, 2008). Indeed, since its introduction in 1930, GAPA affected Croatian people in various spheres of their lives, from birth to death. Indirectly it also affected the relationship between the economy and public administration (Omejec, 2008).
Thus, GAPA constituted one of the most important laws in the state and was of great strategic, political and social significance (ibid: 20).
6.2.2. Second Yugoslavia (1945-1991)
Following the socialist takeover in 1945, the Croatian judiciary maintained, to a high degree, its independence and an acceptable level of professionalism. Again, compared to the situation in other socialist countries, the destructive impact that the communist party-state had upon the legal profession was „of considerably lower intensity29‟ (Uzelac, 2000:
2). Yet, it was still significant. Uzelac (2000: 2) provides a telling summary:
„Political pressures exercised on judges, their duty to implement party and state politics, politics of the “unity of power” (as opposed to the separation of powers doctrine), requirements of “moral and political suitability”
– all these elements common to all communist regimes could be found at various stages of the existence of SFRY [...] in an overall evaluation, the system of justice had to survive several trends that adversely affected its position and functioning: law was generally neglected as a method of social regulation; social status and prestige of the members of legal profession significantly decreased; courts and their actions were systematically marginalized and isolated. There were two, parallel systems of conflict-resolution: one, informal, at the party level, tended to prevent and resolve every significant dispute by “political consultations”; the other, traditional court system, was greatly adopted to less significant matters, such as small claims, protection of possession, some land-related issues etc‟.
These trends of over-politicisation and marginalisation in the Croatian judiciary were in turn reflected in the expectations of candidates for judicial service, and in the recruitment and the selection of judges: „Through several decades of socialist rule, the judicial profession was considered by graduate lawyers as a relatively poorly paid and bureaucratic
29 Uzelac (2000:2) notes that, „With exception of several “revolutionary” post-war years, majority of courts and majority of judges continued to perform their function in a relatively civilized fashion;
autonomous private bar organization (Rechtsanwaltschaft) continued to exist, and law was taught at universities primarily based on ancient patterns of Roman Law and Civil Code‟.
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branch of the civil service. Its advantages were seen in providing a relatively non-demanding job, with no pressure to do the work urgently and a lot of free time‟ (Uzelac, 2004a: 8). For all these reasons it is hardly surprising that under communism the judicial system was a discredited and under-institutionalised state institution.
Turning to administrative jurisprudence, while in socialist Croatia citizens had the right to appeal against an administrative act, a right stipulated by the federal GAPA of 1956 and the 1977 Administrative Dispute Act30 (ADA), these laws were „too complex, very casuistic and oriented toward the protection of the interests of the state, not citizens‟
(Koprić, 2009: 10; Medvedović, 2003). Regarding GAPA, this act had a subsidiary character and was applied in all matters that were not otherwise regulated by special law (Medvedović, 2003: 417). Besides GAPA, certain procedural issues were also regulated by federal and republic acts (ibid).
This complex normative regime, together with the fact that judicial review was under-institutionalised and therefore insufficient, severely undermined administrative reliability and accountability. Indeed, in the Yugoslav administrative legal tradition the concept of
„administrative dispute‟ as enshrined in the 1977 ADA regarded merely the „lawfulness of an administrative act‟ (ibid: 22). It did not question the actual facts. Put differently, the Administrative Court (AC-established in 1977) could only establish the lawfulness of an administrative act but had no jurisdiction to judge the legality of a decision. This duty was vested in the administrative organ against which the complaint or lawsuit was filed in the first place. Moreover, the administrative dispute was a one instance dispute, so the AC represented the court of original jurisdiction as well as a court of appeal. Again, an AC decision was neither contradictory nor public, meaning that it did not oblige the administrative authority to abide by its decision (ibid). In effect, such a practice was detrimental to the principle of legality and by extension to the „rule of law‟ since citizens filing the lawsuit had slim chance of overturning possibly harmful and illegal administrative procedures. This was because the AC was too feeble to enforce its
„opinions‟: implementation depended on the compliance of the respective administrative
30 The first ADA in the former SFR Yugoslavia was adopted on 31 March 1952. None of the subsequent novelties of the ADA (including those introduced in the 1990s) did touch into the concept of administrative dispute introduced in 1952 (Omejec, 2008: 22).
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authority. Coupled with fuzzy administrative procedures and thin chances for appeal, this situation provided a fertile ground for arbitrary decision-making in the administration, legal uncertainty and the practice of corruption.