Chapter 41 the Independence of the Croatian Judiciary

Chapter 41

The Independence of the Croatian Judiciary

Branko Hrvatin *

Th ere has been a great interest in the status of national courts in the former Yugosla- via, specifi cally with respect to the prosecution of war criminals. A central question concerns the level of cooperation between the International Criminal Tribunal for the former Yugoslavia (ICTY) and the national courts in the region. Th is chapter incorporates a philosophical legal approach that specifi cally addresses the independence of the Croatian judiciary. Th e nature of the crimes that are before the jurisdiction of the national courts must be addressed fi rst. Th ese crimes are colloquially called war crimes, and they are very serious. In fact, they are gravely serious. At the conference that served as the inspiration for this essay, the voices of the victims of these gravely serious crimes were heard, and they were pleading for justice. Justice requires others to speak on behalf of the victims, precisely because of the re- sponsibility, gravity, and seriousness of the crimes that were involved. We should not be discouraged by the voices of the victims; instead, we should be compelled to bring these types of crimes before the national jurisdictions. Th e gravity of these crimes is profound.

Independence of the Judiciary In addressing the challenges faced by the national courts, the independence of the judiciary must be considered in order to assess where the Croatian courts have been and where we would like the courts to be in the future. Th e question of the independence of the judiciary automatically implicates national judges. When the accused are placed on the stand before judges, the judges implicitly must place themselves between the state on the one hand and the accused on the other. Accordingly, we need to consider whether the judge should be the in- termediary between the community and the state, or whether he should instead rep- resent either the state or the community independently. Th is tension and position represents the core trait that is required for an independent judiciary. An indepen-

* Branko Hrvatin is the President of the Supreme Court of Croatia.

Richard H. Steinberg (ed.), Assessing the Legacy of the ICTY. © 2011 Koninklijke Brill nv. Printed in Th e Netherlands. isbn 978 9004 18624 8. pp. 247-249. VI National War Crimes Proceedings: Views of Judges, Prosecutors, and Others in the Region

dent judiciary is required for trials to be fair, and fair trials are most needed in cases 248 involving war crimes. Currently, our trials are independent; unfortunately, this has not always been the case. Mistakes regarding the independence of trials were made in the past; certain types of mistakes leave long-lasting adverse eff ects even after they have been rectifi ed. Specifi cally, in the early 1990s, there was an initial lack of independence, where the trials were somewhat infl uenced by public perception of victims. In particular, the public distinguished between diff erent types of victims, and this aff ected those who were brought into trial. As a result, the trials were not conducted as they should have been. Th e defense was not strong, and judgments were enforced without the opportunity to appeal. For instance, in the Lora proceedings in Croatia, the appel- late judge did not act impartially. As a result, Croatia paid a very serious price, both locally and internationally. Th ese weaknesses concerning the independence of the judiciary needed to be rectifi ed. Th ankfully, through a great deal of legal educational activities and cooperation with civil society groups such as nongovernmental organizations (NGOs), we can now safely say that the war crimes trials based in Croatia are being conducted in an independent, impartial, and professional manner. By far, our most important achieve- ment has been the creation of an independent Croatian judiciary. Th is independence enables judges to withstand both national and international pressures that advocate for certain types of punishment or trials. It is hoped that the judges in Croatia are no longer susceptible to these types of pressures.

ICTY Jurisprudence and Practice: Effi ciency and Cooperation We have relied in part on the jurisprudence of the ICTY to develop parts of our own jurisprudence. However, it is important to note that the role of the prosecutor in Croatian courts is diff erent from the role of the prosecutor at the ICTY. As a result, in addition to relying on the documentation provided by the ICTY, we must also consider the evidence that is admitted locally in Croatia. More specifi cally, we have developed our own criminal law, for effi ciency pur- poses. Criminal proceedings must be carried out independently and impartially; in addition there should be a presumption of innocence. Of course, while this may be challenging given the gravity of the crimes concerned, there must be full respect not only for the accused, but also for the witnesses and the injured parties. In Croatia, we have developed a system for protecting witnesses to encourage interparty support and access. Many practices currently engaged in by courts in the region were modeled after practices engaged in by the ICTY, and this is also true in Croatia. For instance, Croa- tian courts adopted the ICTY practice of using video links and inter-court commu- nication in order to enhance effi ciency. To further enhance effi ciency, a cooperative relationship with countries in the region should be developed—not just in the area of war crimes, but for crime in general. Prosecutors in the region are ahead of the courts in terms of regional cooperation; the courts must advance further in this regard.