The judiciary is closed and non-transparent because it suits the executive branch

03. March 2023.
The judiciary is closed and non-transparent because it suits the executive branch 1

Open data enables public scrutiny of those in power and helps curb corruption. Citizens' trust in the judiciary can only be strengthened through greater transparency and public participation in the work of the judiciary, concludes the Gong conference "Let institutions make their work public", which we are organizing as part of Open Data Day.

"We at Gong are concerned that the important anti-corruption standards we had when we joined the EU are declining: Access to public expenditure data has become more difficult (it used to be completely exempt from proportionality and public interest tests), not only is there now a charge for collecting data from foreign companies owned by the state and local self-government units, but transportation and energy companies are no longer required to submit data for reuse. Most importantly, the main anti-corruption body - the Commission for Conflict of interest - has been weakened, opening the door to corruption. At the same time, the government appoints token associations (slang for allegedly independent associations which are in reality under its control, to working groups on important anti-corruption legislation and feigns involvement," said Gong Executive Director Oriana Ivković Novokmet.

At the panel "Open Judiciary Restores Citizens' Trust," High Administrative Court Judge Mirjana Juričić warned about the state of the judiciary: "I believe that the judiciary is not a government because it has practically no powers. The executive branch governs everything. The situation in the judiciary has never been as bad as it is today, worse than before EU accession. Judges elect judges, but the methodology is dictated by the executive branch. The openness and transparency of the judiciary and the perception of the judiciary depend on the executive branch, and the government does not care about an open, honest, independent and educated judiciary."

A survey of judges, lawyers, notaries, and law professors conducted by the Centre for Democracy and Law Miko Tripalo found that the problem of the judiciary is opacity, although there was wide disagreement on other assessments of the problems of the judiciary. The Centre advocated opening up the process of selecting judges and involving the public so that some associations could give their opinions on the proposed candidates.

"The public should have more insight into the selection of judges, candidates for the State Judicial Council (SJC) must disclose family ties, courts should publish non-anonymous decisions that are available to the public, judges' extrajudicial activities must be restricted, and the public should have more insight into judges' disciplinary proceedings," Gong's lawyer Sanja Pavić explained the recommendations Gong made in 2022.

Martina Vrdoljak from the Ministry of Justice and Public Administration disagreed with other panellists who claimed that Croatia has made better progress in terms of openness and transparency of the judiciary's work since EU accession. "Our courts solve 1,250,000 cases per year, the time spent on processing cases is reduced, but the public does not know that," she said, to which Judge Juričić replied that cases may be solved faster, but the focus in the judiciary cannot be only on quantity, but also on quality. Vrdoljak announced that all verdicts will be publicly available by 2027 and that work is underway to anonymize the verdicts with the help of artificial intelligence.

"Jurisprudence has changed a lot as far as the Commission is concerned. Politicians go to great lengths to prove otherwise. For many years, the courts upheld and accepted the Commission's arguments. Then there is this Copernican turn, and the courts find that the Commission cannot rule on the principles of action under Article 5. Now we will see how the Commission will position itself when a new case of a trip to Helsinki or against a high-ranking official comes up. If it is concluded that it is not necessary to publish decisions on why a certain procedure is not initiated - then the Commission loses all meaning," stressed Davorin Ivanjek, still a member of the Commission for Conflict of interest, at the panel "Let institutions make their work public." More important than the amount of the fine, Ivanjek said, is the public disclosure of the decisions and their dissemination in the media.

"Officials would gladly pay a higher fine than appearing in the main news," he added

Enes Ćerimagić of Green Action said that in practice, "the form exists, but the content is manipulated, which discourages citizen participation."

"The Council for the Prevention of Corruption, a body that all of us on this panel have served on at one time or another, is one such example. We had 20-30 comments on the Corruption prevention strategy that were not adopted. On the other hand, the very bodies to which this Strategy should apply and where corruption should be fought, namely the ministries, have proposed which regulations should be adopted," he explained

When asked who makes access to information the most difficult, Jagoda Botički of the Information Commissioner's Office said, "One of the most stubborn institutions in terms of the right of access to information where we have been able to make progress is the HBOR, which keeps extending the deadlines for publication of data regardless of existing administrative court practice."

Melisa Skender of the Croatian Journalists' Association and Ivković Novokmet of Gong warned against democratic backsliding on the closure and use of data, as well as dangerous statements by state leaders.

"The announcement of Andrej Plenković to change the Criminal Procedure Act is extremely dangerous, among other things because it comes from the top of the state. All the denials of the members of the government that came later did not reassure us in the slightest," said Skender.

Ivković Novokmet stressed that the lack of democratic standards causes the government to close itself to the public.

"A recent example is that the Prime Minister told journalists that the purchase of bonds is a private matter, and we know that such information should be included in the asset declaration. If you are a government official, it means you have power, but also responsibility. You must disclose information that ordinary citizens do not have to disclose. If the law on information leaks is changed, as Plenković announced, journalists could be wiretapped and monitored," she concluded.

The judiciary is closed and non-transparent because it suits the executive branch 2
The judiciary is closed and non-transparent because it suits the executive branch 3
The judiciary is closed and non-transparent because it suits the executive branch 4