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6.3.1. Transition and the mechanisms of continuity

Compared to the case of the civil service, changes in the Croatian judiciary were more dramatic during the first period of the TuĎman regime. Writing on the issue, Lenard J.

Cohen (1997: 86) summarise the key problem:

„The initial decision of the TuĎman government to purge judicial officials from the old regime was designed to achieve both ethnic and political goals. Thus, the disproportionately high representation of ethnic Serbs in Croatia‟s justice system during the communist period made the judiciary an attractive target for nationalist forces in the new Zagreb government. The fact that a large number of the newly elected Croatian political elite were disillusioned communists and former political dissidents who had been persecuted and imprisoned by the previous regime, also made changes in the judicial sectors a particularly high priority for the postcommunist government. Less than six months after taking power in Croatia, for example, the government had already replaced 280 judicial officials [including the president of Administrative Court].‟

Indeed, although the independence of the judiciary was guaranteed by the „Christmas Constitution‟ (1990), a number of controversial laws and constitutional provisions gave President TuĎman and his several Justice Ministers wide latitude over the appointment and removal of personnel in the judicial sector throughout the 1990s. According to Uzelac (2000: 7), the Courts Act of 1993 legitimised the „tacit removal of „unsuitable‟ judges‟. In fact, newly devised „flexible criteria‟ replaced the former ideological (communist) criteria in judicial appointments and dismissal thus leading to the creation of a „state judiciary‟

(Nikolić, 1990; cited in Cohen, 1997). Thus, staff-turnover and outflow was so extensive that the vacuum in human resources in some segments of the judiciary such as the Administrative Court troubles Croatia to this very day.

To be more precise, given „a prolonged period of uncertainty and political purges‟, a great deal of the most accomplished and proficient judges left their posts „to other private legal work where they expected to find more peace, higher incomes and a greater level of

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personal and professional freedom‟ (Uzelac, 2004a: 9). At the same time, as in the case of the civil service, a certain dose of continuity and reproduction informed the workings and habits of the Croatian justice system. Under TuĎman‟s „national reconciliation‟ dogma, converted yet old judicial elites remained in office as „change of generations in Croatia either did not occur or, where they did, were controlled by the old social elites who were able to invest in their own successors‟ (Rodin, 2007: 237). In particular, as regards the newly appointed judges, because a great deal of them „were mostly young and without experience‟, they were appointed according to „criteria of political and ethnic

„appropriateness‟ (Uzelac, 2004a: 9). For Siniša Rodin (2007: 237), such conditions of social transition were not „incidental‟. Rather, they were the consequence of „a carefully designed regulatory policy‟ (ibid). For instance, the Courts Act of 1993 provided that in order to qualify for the position of judge in the High Commercial Court or Administrative Court, a candidate must have had at least eight years of practice as a judge, or at least twelve years of working experience as an attorney, professor of law, or public notary.

Judges of the Supreme Court must meet a fifteen-year requirement (cited in Rodin, 2007:

237-38). Thus, it is quite obvious that such requirements could only be met by „persons who acquired their legal education under communism‟ (ibid: 238).

Overall, the war, combined with limited generational change, the subsequent survival of the „old cadre‟, the selective political „cleansing‟ and patrimonialism, as well as the recruitment of inexperienced young judges, impacted heavily on the independence, staff power and efficiency of the Croatian judiciary(Uzelac, 2004a: 9). Indeed, the huge backlog of almost 895,000 pending cases in 1998 provides a general indicator of the inefficiency of the Croatian justice system at the dawn of the third millennium.

6.3.2. The administrative procedures and justice systems in the 1990s

Regarding administrative procedures and jurisprudence systems, no actual reform can be reported between 1989 and 1999 as the new leadership simply adopted (with slight modifications related mostly to terminology) relevant socialist legislation and structures (Medvedović, 2003). Thus the core tenets of the last amended versions of the federal GAPA of 1986 (Official Gazette, No. 53/91, 103/96) and the ADA of 1977 were literally transferred unchanged to Croatia‟s new normative order (Omejec, 2008: 20, 22).

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Significantly, in the realm of public administration, individual questions of administrative procedure were, largely unnecessarily, regulated differently in separate pieces of legislation in relation to the solutions in the „taken-over‟ GAPA. In particular, throughout the 1990s (and well after the regime change in 2000 - see below), a sizeable number of special administrative procedures were adopted (Ljubanovic, 2006). For this reason the field of administrative procedure became increasingly complex, the level of legal security of parties was reduced and the principle of the rule of law was also significantly brought into question (SIGMA, 2006). In particular, citizens, including (foreign) businessmen and legal experts, found it hard to determine which procedure applied in a given situation.

Consequently, the administration perpetuated an inherited trend of legal insecurity.

Moreover, in keeping with the regime‟s anti-EU discourse and policy in the second half of the 1990s, GAPA was not adjusted to modern European developments and no provision was made related to electronic tools and legal constructs, such as public law contracts or space planning (Omejec, 2008). In effect, institutional continuity combined with the strong entanglement of the ruling party with the new corrupted capitalist class meant that some segments of the business community closer to the regime enjoyed a privileged relationship with the HDZ-controlled state administration and judiciary (cf. Kregar, 1999; Petricević, 2000; Dragicević, 2005). In this sense, they constituted strong veto-players in opening up the Croatian economy both to healthier autochthonous forces and, most importantly, foreign capital by simplifying the excessively complex and non-transparent administrative regulatory regime (World Bank, 2001b). This element of continuity has been elegantly summarised by Jasna Omejec (2008: 21): „[...] the existance of the GAP[A] in the legal organisation has frozen the Croatian administration at the level where it was found at the moment of disintegration of the former SFRY. The administration has felt no changes in that segment, nor has it been confronted with requests for a conduct different from the one valid in the system of the former SFRY and SRC‟. This, in turn, meant that past habits, administrative practices and socialist legal knowledge continued to be transferred from one generation of administrative lawyers and jurists to the other, including numerous students of law faculties (ibid). Unsurprisingly, Croatian administration and justice remained extremely conservative; thus, reluctant or unmotivated to change or push for changes.

Meanwhile, the Administrative Court (AC) of the Republic of Croatia, although free from its „Socialist‟ connotation, remained the only instance of judicial review in the country

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(Koprić, 2006a). ADA continued to stipulate that the administrative dispute was a „dispute regarding lawfulness of an adminsitrative act and only in extraordinary cases as a dispute of full jurisdiction‟ (Omejec, 2008: 22). In addition, an AC procedure remained neither contradictory nor public. In this context, the Croatian legislator needed to „make a reservation vis-a-vis a part of the Article 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms by the Council of Europe (the Convention) in the course of the ratification process‟ (ibid). Thus, the Constitutional Court‟s ruling of November 2000 would render the AC a partly-jurisdictional court, as the court is neither obliged to independently establish the facts of the cases submitted for its appraisal nor to have public sessions. Consequently, the European Court for Human Rights did not recognise its powers as being fully jurisdictional (SIGMA, 2005b: 24; see also Koprić, 2006b).

Overall, as with the case of GAPA above, neither the ADA nor the status of the AC was aligned with the respective European standards throughout the reporting period, owing partly to the regime‟s isolationist foreign policy and partly to „the political resistance of the Judiciary to the reforms, especially if such reforms were aimed at interfering with political appointees…‟ (Uzelac, 2004a: 9).

6.4. The Acquis Communautaire in the field of administrative procedures and