President of the Administrative Court, Lueneburg =
&nb=
sp; =
&nb=
sp; =
Jaka Curkovic
Judge at the Higher Social Security Tribunal,
Resident Twinning Advis=
or,
CARDS
2004 Twinning-Project
“Support to more
efficient, effective and modern operation and functioning of the Admin=
istrative
Court of the
Activity
2.1: Functional organizational review of the
Recommendations for sho=
rt
term and mid term changes concerning the organization of and working
methods at the
I. Introdu=
ction
For the ye=
ar 2007,
the average duration of proceedings before the
In order t=
o address
these problems, the project’s work plan under act. 2.1 provides that =
a team
of Croatian, German and Austrian experts
- analyzes=
the
organization of and the working methods at the
- assesses=
the
impact of the draft for a new Law on General Administrative Procedure =
on
the
- based on=
the
aforementioned reports proposes short- and mid-term measures to reform the
organization of as well as working methods at the Administrative Court, pay=
ing
special attention to the reduction of the backlog.
All
recommendations in the present report are made on the basis of the current =
Law
on Administrative Disputes. I=
t can not
yet be predicted when exactly and with which content a new Law on
Administrative Disputes which is drafted under component 1 of this project =
will
enter into force.
The organi=
zation
of and the working methods at the
a) The
court’s registry (kancel), the transcript service (daktilobiro), the =
mail
service (otprema) and the delivery service (dostava) are well organized and=
are
not causing any delays in the processing of cases.
b) The mai=
n factor
for the long duration of proceedings and the huge backlog of cases is the t=
ime
span that a case has to “wait” before it gets assigned to a
judge or court advisor for further processing. This time span for most cases
accounts for approximately 90% of the three years and four months that=
a
case on average is pending at the
Therefore,=
the present
report puts a focus on measures to reduce this time span (II.). In addition=
to
that, measures to improve the overall work efficiency (III.) and measu=
res
concerning the introduction of summary proceedings (IV.) are proposed.
The assess=
ment of
the draft for a new Law on General Administrative Disputes (report fro=
m 30
January 2008; annex 3) shows that the impacts of this law – provided =
that
there will be no major amendments in the legislative process – on the=
II. Reduct=
ion of the
duration of proceedings and reduction of the backlog
1. Human resources (short-term)
The analys=
is of
the Administrative Court’s statistics (backlog, number of incoming and
number of decided cases, number of judges and court advisors) shows a sever=
e mismatch
between the number of pending cases and the number of judges and court advi=
sors
working on these cases. Over the last three years, the
a) Optimization of the deployment of judges =
and
court advisors already working at the
b) Immedia=
te
filling of vacant posts
c) Hiring =
of new
judges and court advisors
ad a) At t=
he end
of the year 2007, two judges =
and
four court advisors (out of a total of 62 judges and court advisors, that is
almost 10 %) were not deciding cases because they were assigned to oth=
er
tasks. One judge and two court advisors were working in the formality
check office (služba kurrencije), one judge and two court advisors
were working in the case evidentiary office (služba evidencije
praćenja i proučavanja sudske prakse).
aa) The fo=
rmality check
office examines all incoming law suits on formalities. Should a law suit not
meet formal requirements (e.g. a missing signature), the plaintiff is asked=
to
take all steps necessary to fulfil them. Admissible law suits are delivered=
to
the defendant administrative body along with a request to send the
administrative files to the Court. Inadmissible law suits (e.g. failure to
observe the time limit to file a law suit) are immediately sent to the
responsible chamber for decision.
The formal=
ity
check office is not required by law. It is based on a organizational de=
;cree
by the President of the
It is prop=
osed to
dissolve the formality check office and transfer its tasks to the chambers.
Based on the figures for 2007, the court receives about 1200 new cases per
month, which amounts on average to about 20 cases per month for every
judge/court advisor. Since the processing of a new case does not take a lot=
of
time, this work can be handled by each judge/court advisor for the judges
assigned to him/her in addition to his/her current workload.
bb) The ma=
in task
of the case evidentiary office is to identify decisions that deviate from
established case law. For this purpose, the staff of the office examines all
decisions taken by the chambers. The case evidentiary office is based =
on
Art. 36 Para 1 of the Law on Courts. According to this provision, each court
with more than 20 judges has to have such an office. But there is no legal
provision that stipulates that all decisions regardless of their content ha=
ve
to be checked by this office.
It is sugg=
ested
that the staff of the case evidentiary office is reduced to one person. In
order to be able to do this, the number of cases which are reviewed by this
office has to be significantly reduced. This can be reached if the case
evidentiary office only reviews decisions presented to it by the chambers. =
It
is not necessary that decisions on the withdrawal of an action or decisions=
on
questions of law which have been decided by the Court before are
automatically reviewed. Furthermore, judges and court advisors have to know
their own case law and consequently also have to know in which cases they m=
ight
deviate from it. In addition to that, each chamber is headed by a chamber
president who is a particularly experienced judge.
If the
aforementioned proposals are implemented, five more judges/court advisors w=
ould
decide cases. According to Section 12 of the annual work schedule for the <=
st1:Street
w:st=3D"on">
ad b) Betw=
een
November 2007 and February 2008 five judges were retired because they reach=
ed
the age limit. Although proceedings to appoint new judges have been initiat=
ed,
the retired judges have not yet been replaced. In future, these proceedings
should be initiated in time in order to avoid gaps between retirement and t=
he
appointment of new judges. These gaps prevent the
ad c) The =
above
mentioned figures show that the measures proposed under a) and b) will not =
be
sufficient to reduce the backlog in the near future. The number of judges
and court =
advisors
that are needed in addition to the judges and court advisors already
working at the Administrative court depends on the political decision to wh=
at
extent and in which time the backlog should be reduced. The working group p=
repared
a management strategy (annex 4) to reduce the number of pending cases within
the next three years (June 2011) from about 38.000 to about 20.000. If this
proposal is adopted 17 additional judges and/or court advisors would h=
ave
to be appointed. For further details (including models to reduce the
backlog at a slower pace) please refer to the management strategy.
The expert=
team
recognizes the obstacles that speak against the hiring of new judges in the
current situation. If the Croatian Government follows the proposal of the
working group for the preparation of a draft for a new Law on Administrative
Dispute and decides to establish a two tier administrative jurisdiction less
judges and court advisors will be needed at the
When new c=
ourt
advisors are hired, regional aspects should be taken into account. It is
assumed, that not many judges or court advisors currently working at the
Administrative Court would volunteer to leave Zagreb to work at one of=
the
new first instance administrative courts in Osijek, Rijeka or Split. Theref=
ore
newly hired court advisors should be regarded as the core for the new first
instance courts in these cities. This means that applicants should be chosen
who are prepared to work in these cities and will fulfil the requirements f=
or
appointment as a judge at a first instance administrative court in the mome=
nt
that these courts start working.
2. Further
specialization of judges and court advisors (short-term)
The
It is prop=
osed
that the judges and court advisors further specialize in certain fields of =
law:
For example, the Department for Social Law could – dependent on the
number of pending cases for each field of law – be divided into two
chambers for pension law, one chamber for health insurance law and one cham=
ber
of veterans law. In the Financial Department, all labour disputes coul=
d be
concentrated in one chamber. And in the Property Department building law ca=
ses
could be divided among the chambers by districts (županija). Fields of=
law
with only a few new cases per year (e.g. competition law, asylum law)
should be concentrated on two persons. A higher specialization leads t=
o a
better knowledge of the relevant regulations as well as the relevant case l=
aw and
will increase the efficiency of judges and court advisors.
3. Reducti=
on of
the quota of cases decided by judgment (mid-term)
The Court&=
#8217;s
statistics show that around 95 % of the law suits are decided by judgm=
ent
(presuda) or court order (rješenje). By comparison, in
In order t=
o lower
the quota of cases decided by judgment or court order, judges and court
advisors have to change their working methods. Currently, judges and court
advisors do not work on a case right from the moment a law suit is filed. N=
ew law
suits are processed first by the formality check office. After all formalit=
ies
are settled and after the defendant has submitted his statement of defence,=
the
case is stored away until it is assigned to a judge or court advisor by the
President. If a case is not urgent – thus in about 90 % of the time
– it is assigned about two and a half to three years after the suit w=
as
filed. Judges and court advisors are assigned 30 to 50 cases at a time. Aft=
er
cases are assigned judges and court advisors begin to work in order to prep=
are
them for the in-camera sessions in which judges decide on the cases. On
average, cases are decided about five months after they are assigned.
This worki=
ng
method has two grave disadvantages: First of all, judges and court adv=
isors
often do not know whether the case they are deciding is a single case or
whether there are parallel cases concerning the same or similar legal probl=
ems.
And secondly, there is no communication between the court and the parties a=
fter
the defendant has submitted his statement of defence, neither in an or=
al
hearing nor per telephone or in written form. Consequently, the parties do =
not
know the legal opinion of the court and are not able to withdraw their law =
suit
in hopeless cases or to settle a case where appropriate.
Instead of=
the
current procedure, judges and court advisors should start to work on a case=
at
the moment it is filed. This would enable them to clarify open questions (e=
.g.
vague applications, factual questions) in an early stage of the proceedings=
if
necessary and – even more important – allow them to give t=
he
parties leads on the likely outcome of the case. This especially appli=
es to
cases for which an established practice of case law already exists. In
these cases, parties should be informed about the established practice=
by
sending them a copy of a judgment in a similar case and asked whether they
withdraw their lawsuit (plaintiff) or acknowledge the plaintiff’s cla=
im
(defendant) respectively. This working method also would enable judges to
propose an amicable settlement where appropriate. Experience shows that in =
most
cases the chance to finish a case without a written decision is greater the
shorter it is pending in court.
Furthermor=
e the
proposed working method would give judges and court advisors an overview of=
the
cases in their docket. This would enable them to decide cases that address =
the
same or similar legal questions at the same time or to choose some of these
cases as pilot cases which are decided in advance in order to try to finish=
the
rest of these cases without judgment.
The propos=
ed
working method is completely in line with the current Law on Administr=
ative
Dispute (LAD): According to Art. 33 LAD the issues listed in Art. 29 to 31 =
LAD
even have to be examined before the law suit is delivered to the defendant.=
The expert=
team
acknowledges that it is not possible to transfer all pending cases to judges
and court advisors at once. Currently, this would be about 630 cases per pe=
rsons.
As a start, all new cases and the 200 oldest cases should be transferred; t=
he
rest of the already pending cases following later.
In order t=
o raise
the confidence of judges and court advisors to use new working methods, they
should be trained appropriately. A joint team of Croatian and German expert=
s is
already developing a training module that – among other topics
– covers the proposed working methods (cp. act. 3.3 of the
project’s work plan).
As a last =
step,
the administrative jurisdiction should also offer mediation proceeding=
s.
In these proceedings a judge who followed a special training does not act as
judge but as a referee who tries to help the parties to find an amicable
solution for their problems. Experience shows that this method in selected
cases allows to settle complicated cases with comparably little effort,
especially in three party constellations (e.g. neighbour filing a law suit
against building permit).
III. Impro=
vement
of overall efficiency
1. Abstract
assignment of cases in the annual work schedule (mid-term)
Currently,=
cases
are assigned to judges/court advisors on request of presiding judges (30 to=
50
cases at a time per judge/court advisor). For each case, the President has =
to
sign an assignment order which is then taken to the file. This task could f=
all
away if cases were assigned to judges/court advisors in the annual work
schedule in an abstract way.
Example:
The first =
chamber
of the Property Department is responsible for all pending cases from the
following fields of law:
a) &nbs=
p;
building law
b) &nbs=
p;
access to information
c) &nbs=
p;
intellectual property law
Assignment=
of new
cases:
a) buildin=
g law:
the first (forth, seventh etc.) case to Mrs. A, the second (fifth, eigth et=
c.)
case to Mr. B and every third (sixth, ninth etc) case to Mrs. C
b) access =
to
information: Mrs. C
c) intelle=
ctual
property law: every first (third, fifth etc.) case to Mrs. A and every sec&=
shy;ond
(fourth, sixth etc.) case to Mr. B
2. Simplif=
ication
of keeping of registers (mid-term)
Some regis=
ters are
still kept electronically and in (hand-) written form. This practice has to=
be
reviewed with the goal to abolish (hand-) written registers. Special attent=
ion
has to be paid to the question whether any provisions (law, bylaws) exist t=
hat
explicitly require handwritten registers
3. Wider u=
sage of
computers (mid-term)
The review=
of the
working methods at the
The expert=
team
realizes that the software in use at the
The measur=
es proposed
above will not (yet) have a great effect on the efficiency of the work of
judges and court advisors. The main goal of these proposals is to get every
judge and court advisor used to using computers on a daily basis to enable =
them
to profit from the future introduction of new IT-solutions (e.g. full text
research case law data bases). In order to reach this aim, the
4. Improve=
ment of
public relations (mid-term)
Citizens o=
ften are
not informed about the work of courts. To strengthen the trust in state
institutions transparency and information of the public are essential. Judi=
cial
decisions will be less respected by citizens if they are perceived by the
public as anonymous “machine” that nobody understands. In order=
to
reach the public an active public relations work is necessary. Press
spokespersons not only have to respond to inquiries by the media, but =
ex
officio have to provide the media with all information relevant for the
public.
The expert=
group
will draft detailed recommendations concerning the improvement of public
relations under act. 2.2 of the project’s work plan.
5. Improve=
ment of
contacts to administrative bodies and the bar association (mid-term)
The
The expert=
group is
planning to meet with representatives from selected administrative bod=
ies
as well as with representatives of the bar association to discuss the es&sh=
y;tablishment
of regular meetings between these institutions and the
IV. Introd=
uction of
summary (=3D preliminary) proceedings (upon entering into force of the new =
Law on
General Administrative Procedure)
The draft for a new Law on General Administrative =
Procedure
for the first time introduces summary proceedings to administrative
dispute. In order to ensure that these cases can be decided in due time, it=
is
recommended that
- files for summary proceedings can be recognized =
as
such at a first glance (e.g. folders of different colour, stamp
“urgent”),
- new applications for summary proceedings are
submitted immediately to the responsible judge(s),
- the responsible judge(s) is/are available during
core hours at least by telephone,
- administrative bodies are informed immediately a=
bout
respective applications in order to prevent that a challenged administrative
act is executed while summary proceedings are pending,
- summary proceedings can be decided in due time, =
in
extreme cases on the very same day.
Furthermore, administrative courts as well as
administrative bodies have to possess the necessary technical means (fax,
scanner, e-mail connection) to enable them to deliver applications and files
without delay, in extreme cases within a few hours.
Lüneburg/Mainz/Zagreb, 31 March 2008
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