Iva Buljan: There Are Good Judicial Solutions in Other Countries

Two months ago, we published an interview with Iva Buljan, a judge at the Commercial Court in Zagreb. The conversation was interesting, and Judge Buljan spoke very openly about the shortcomings in the judiciary, as well as suggestions on how to address them. Unfortunately, due to limited space, the entire interview could not fit in the printed edition, so we are now publishing the part that was omitted for that reason.

When I spoke a couple of years ago with the former president of the High Commercial Court (VTS), Mario Vukelić, he told me that he has no great powers, but he has great responsibility. He cannot choose judges or clerks. Judges are appointed by the State Judicial Council, and in the hiring of officials and clerks, the competition committee, of which the president of the court is not a member, plays a decisive role. Furthermore, the resources for the court’s work, the number of judges, officials, and clerks in the court are determined by the Ministry of Justice and Administration, or the minister. In other words, the president of the court has very limited powers regarding personnel, finances, and material resources of the court in performing his duties. Is that still the case?

– We know that financial independence guarantees the sovereignty of branches of government. In our case, the judiciary is not financially independent. I can say that in other member states, there is also no full financial independence. But I particularly like the Scandinavian model: a certain amount of money is allocated from the state budget for the courts. They have an Administrative Board composed of court presidents, as well as those who understand the needs of the court and allocate money among the courts. There, court presidents send detailed reports on the spending of these funds, which are checked by audit offices. These countries are also leaders in digitalization, and the courts have autonomy in implementing funds for digitalization. For example, in Sweden, courts can adapt digital systems to their specific needs. Although the funds are obtained from the state budget, decentralization and functionality are prioritized.

You have seen the state of the Commercial Court in Zagreb, with three printers and old computers. We have to beg for every printer… I believe that this also represents a burden for them in the Ministry, and they do not even know the needs of each court. Therefore, a partial financial independence would be necessary, not only so that judges could manage that money themselves, but it would simply be technically more feasible and better for each court to articulate its needs and receive funding. The Commercial Court serves the economy and the business world, and in the 21st century, when transactions are conducted through modern technologies, it is unacceptable that our court does not follow these technological trends and does not use them in its daily work. The business processes within the court are not organized in a way that guarantees efficiency, and the clerical staff is not adequately trained and, moreover, is underpaid, which in turn does not motivate them to work.

And how to appoint new judges? This task in our country is the responsibility of the State Judicial Council (DSV).

– I was in Portugal, at their DSV, as well as in most EU member states. The problem is the criteria based on which judges are selected. In our case, it is a points system, but it does not reflect the actual state of affairs. For example, we judges who adjudicate in civil proceedings, our cases are valued almost equally to those in expedited bankruptcy proceedings. By those points, we civil judges can never reach the number of points of registry or bankruptcy judges, and this, among other things, creates discord in the judicial staff. So, to be honest, who would want to resolve old complicated cases in such a system! Therefore, judges prefer easier cases. Thus, this model does not work. In Portugal, they do not measure judges’ work by points. They come once a year for some kind of oversight, randomly select one case, and give the judge the opportunity to propose their ruling, which they consider the best, the most challenging… And then when the judge applies for a position, you have a file of their decisions, and you can really see the quality, timeliness, and progress in their personal judicial development.

Does the frequent change of laws and their interpretation pose a problem for you?

– I am not so angry about the changes; it is good that the laws have been modernized, but it is not commendable that they change so quickly. Often, they are poorly structured from a nomotechnical perspective (nomotechnics studies the logic and content of legal norms, ed.). But it is easy for us to deal with, for example, changes to the Civil Procedure Act, but the real problem for us is the decisions of the European Court. We still do not have, although work is being done on it, well-structured departments for monitoring European practice, and that is why we all wander here. Often, Croatian judges are criticized for not referencing the decisions of the European Court in their reasoning. Therefore, we judges who strive and study the material beyond what is our duty know how to refer to those rulings. But when we start studying them through the pages of the Supreme Court and the basic court, we encounter problems. I would quote my grandfather, who was a judge: Never be afraid of changes in the law. You must think about how to learn to think about a particular branch of law. In civil proceedings, the law is interpreted teleologically. This is one approach, especially now in the context of European events, which increasingly leans towards fairness and justice, rather than hyper-bureaucratic interpretation of the law. In enforcement, you must have a more formal way of thinking where fluid interpretation is not appropriate. So, if you learn to think correctly about one branch of law, no minor change in some regulation will catch you off guard. It is only important that the legislator does not change the model and spirit on which a law rests. However, in civil proceedings, the legislator has, to be fair, made certain shifts because the speed of proceedings was a problem.

What shifts?

– We have been given tools, and thus the noose around judges has tightened so that they can no longer easily find excuses for delays in proceedings. For example, small claims disputes. It is not the same whether someone sued someone for 50 euros or for 800 million euros. Those with a more classical mindset say that every dispute is a dispute, but that is not the case. Triage is needed. The legislator has excluded all those cases, such as labor disputes or disputes related to real estate, from small claims disputes. These are disputes that cannot be measured solely by economic interest, so it is justified to conduct regular proceedings in them. The number of lawsuits is drastically decreasing every year. And everyone at professional gatherings asks why. And I tell them, well, who will sue you for a hundred euros or a few thousand euros when the costs of the proceedings are 20 thousand euros? Procedures in small claims disputes are regulated in the legislations of many countries as special procedures in which the principle of economy is strengthened, and the evidentiary process is simplified. Procedures that take disproportionately long in relation to the value of the subject of the dispute produce high litigation costs and hinder citizens’ right to access the court. Moreover, such procedures harm small and medium-sized enterprises in regular business operations and thus disrupt economic balance. The Croatian legislator, through numerous amendments to the fundamental procedural law, has sought the most appropriate solution that would meet the needs of modern adjudication and that would integrate into the existing system. In these disputes, judges can render a judgment without holding a main hearing, which significantly speeds up the process.

Is the judiciary still too slow despite legal improvements?

– It is not popular to say this because if a judge says it, it seems that they have betrayed the other judges. But that is not true. We must be self-critical because if, according to the latest Eurobarometer survey, over 90 percent of citizens are not satisfied with our work, then we must start thinking about where we are going wrong. Despite good legal amendments, these proceedings still take too long. In my opinion, the reason is the underutilization of the tools that the legislator has provided us and the need for that change, but also the paradigm of what the function of the courts is. The function of the courts is to resolve citizens’ problems. The problem is also in the system because when you ask first-instance judges why they hear witnesses regarding the fact that the building in Ban Jelačić Square is their property, they will respond that if they do not present all the evidence, at the second level, which is indeed conservative, the judgment will be overturned. And that then hinders their advancement. I am not burdened by that scoring and I say let them abolish it because it is not my purpose to please the second-instance court, but to resolve the case in a reasonable time. We have documents; why hear witnesses? The legislator has enabled a wonderful institute, which is that we can accept a written statement from a witness into the case.

But the state also bears its share of responsibility. We do not have audio recording; instead, my colleague types, that is, while I paraphrase the statement into the record, and she types, we lose hours and hours in the hearing. Moreover, if the state does not enable digitalization, unrealistic expectations that the situation will improve are unfounded. Also, the selection of judicial staff, as I mentioned, and education, in my opinion, are based on incorrect criteria.