The Executive Power Has Sadistically Penetrated the Judicial

Recently, I was socializing with legal experts, and in a casual conversation, I was pointed to the problem of appointing court experts. Until March 1 of last year, they were appointed by the courts, and since then, this authority has been taken over by the Minister of Justice and Administration. One does not need to be an expert in constitutional law; it is enough to occasionally follow the judiciary to wonder whether this is in accordance with the Constitution.

How sensitive this issue is, perhaps even scandalous (we really do not want to exaggerate the matter), is evidenced by the information that such a poor solution has also been pointed out by the Supreme Court, but the Ministry of Justice and Administration remained deaf to these and other warnings.

Article 127.b states that ‘permanent court experts are appointed and dismissed, and their other rights and duties are decided by the minister responsible for justice. In the appointment process, the prior opinion of the president of the competent county court will be requested… Appeals against the decisions from paragraph 1 of this article are not allowed, but an administrative dispute can be initiated before the competent administrative court.’

The Government’s Extended Arm

While they were telling me this, the principle of the separation of powers immediately came to my mind, which is dangerously violated in this case. Legal experts confirmed this because the executive power has partially taken over judicial power. This can be easily demonstrated with an example. Court experts are a very important ‘tool’ (forgive me for this expression) for judges, often decisive when a judgment needs to be made in which the opinion of an expert is essential. Judges cannot know everything nor can they assess from every situation which party is right, so they rely on court experts as reliable advisors.

Considering that they can (although they do not have to) take into account the expert’s opinion, this means, to simplify, that court experts practically decide in court cases. For this reason, court experts must be independent just like judges; that is, in the separation of powers into legislative, executive, and judicial, they must be exclusively part of the judicial power. Therefore, until a year and more ago, judges appointed them as their assistants and depended on their assessments of whether they were good experts for engagement in court or not. But that dependence was from judges who were also part of the judicial power, and they and court experts could make decisions independently of the parties in the proceedings, that is, whether one of the parties was the state, for example.

Now the situation is different. Court experts practically depend on the Minister of Justice as a state official from the executive power. Let us now imagine a situation where one of the parties in the proceedings is the state and an expert assessment is needed regarding some dispute with a citizen or entrepreneur. Let us further imagine that any objective assessment would show that the citizen or entrepreneur is right. Surely there are experts who will dare to make an assessment in their favor, regardless of the fact that they depend on the will of the state official. But there are all kinds of us, in all kinds of situations, and I am sure there will be court experts who will pull the handbrake in such cases and at least mitigate the situation so that the minister or some lower state official does not get angry with them, and it is not excluded that they might falsify their findings because of this.

Experts Are Appalled

Such a finding can indeed be rejected by the judge, but they do not have to, and they can make a judgment based on a poor finding of the expert in favor of the state. Not to mention other abuses, for example, the Minister of Justice or some other minister, perhaps even the Prime Minister, privately suing someone, and an expert finding is necessary in the proceedings. We cannot ignore the possibility that a state official will exert pressure on the court expert even in a private court proceeding.

The legal experts I spoke with are also appalled by such a legal solution. The question is how someone in the Ministry of Justice and Administration even thought to propose such a thing, later to adopt it. It is incredible that we have well and truly ‘stepped’ into the 21st century, and that we are further adding salt to the wound of our already wounded judiciary by reaffirming that old saying – the judge sues you, the judge judges you!

POST SCRIPTUM

That the Supreme Court of the Republic of Croatia is also against such a solution is confirmed by the unanimous position adopted at the General Session on November 29, 2021, regarding ‘disagreement with the proposal to amend the Law on Courts whereby experts would be appointed by the Minister of Justice, and only with a non-binding opinion of the presidents of the courts. Namely, this fact not only represents interference of the executive power in the judicial but also, considering that the state is a frequent participant in court proceedings, would lead to the impression of bias in civil and criminal proceedings and would jeopardize the parties’ right to an impartial court that will decide on their rights and obligations.’