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Europaudvalget 2010-11 (1. samling)
EUU Alm.del Bilag 269
Offentligt

Joint Opinion of the Croatian civil society organisations

on the readiness of the Republic of Croatia

for the closing of negotiations in

Chapter 23 - Judiciary and Fundamental Rights

Zagreb, February 16, 2011

This report is a joint effort of a group of Croatian civil society organizations (CSOs) with

a long-standing track record in the area of human rights protection: B.a.B.e. – Be Active

Be Emancipated, ZINH - Association of Investigative Journalists of Croatia, Centre for

Peace, Non-violence and Human Rights Osijek, CESI – Centre for Education,

Counselling and Research, CMS – Centre for Peace Studies, Documenta – Centre for

Dealing with the Past, GOLJP – Civic Committee for Human Rights, GONG, Green

Action, Right to the City, Centre for LGBT Equality, SDF – Serbian Democratic Forum

and Transparency International Croatia.

We have embarked on this endeavour to enable access to relevant information to Croatian

voters prior to the EU accession referendum, so that they can make an informed decision

based on their own conclusion of Croatia’s respect for EU, but more importantly, its own

standards regarding the rule of law and status of human rights’ protection. We also wish

to provide additional, independent information and perspective to the European

Commission prior to its March 2011 Progress Report on Croatia, on issues which the

Croatian institutions have, in our opinion, failed to address adequately so far.

It is our opinion that at this time – mid February 2011 – Croatia is not yet ready to

close Chapter 23, given the Chapter’s essence, i.e. ensuring adequate levels of the

rule of law by means of an effective judiciary and human rights protection

mechanisms.

Namely,

closing of Chapter 23 should mean that positive changes in the

rule of law are irreversible, which is still not the case.

In some crucial benchmarks we

have identified lack of evidence of sincere political will to ensure that reform initiatives

result in tangible positive improvements for everyday lives of Croatian citizens.

Furthermore, significant challenges remain in some normative solutions, but more

importantly, there are insufficient guarantees of sustainable implementation capacities.

However, it is our sincere belief that the

specific legislative and especially

implementation measures that we propose can be implemented by the Croatian

Government and Parliament by mid June 2011, if these issues are indeed recognized

as a political priority. The adoption of the proposed mid-term obligations would be

proof of such a standing commitment, regardless of the configuration of the future

ruling structures.

Information and inputs on specific issues have also been obtained from the Association of Roma Women

“Bolja budućnost”, Bosnian National Community for Zagreb and Zagreb County, the Youth Initiative for

Human Rights, Centre for LGBT Equality (member organizations: Zagreb Pride, Queer Zagreb and LORI -

Lesbian Organization Rijeka)

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In the meantime, we expect from both the Croatian Government and the EC to

transparently and in a timely manner communicate progress on this Chapter with

Croatian public.

We remain committed to reporting in detail on specific issues considering the reform of

the judiciary, preventing and combating corruption, human rights protection, political

rights, national minority and returnee rights, processing war crimes and cooperation with

the ICTY. Our positive assessment will depend on the success of all three branches of

power in accomplishing the following measures.

In the area of Reform of the Judiciary, we demand that:

the January 2011

appointment of 57 judges be annulled

and the entire

procedure carried out again in full accordance with the new Law on State Judicial

Council;

the reform and independence of the Judiciary be effectively monitored

means of an institutionalized independent monitoring mechanism with the status

of independent rapporteurs to the Croatian Parliament and the EU institutions, at

least in the first three years upon accession.

In the area of preventing and combating corruption, we demand that:

the

Code of Practice on Consultation with the Interested Public in

Procedures of Adopting Laws

be consistently adhered to and its

institutional

standing strengthened by linking it to the prospective Law on Regulatory

Impact Assessment (RIA) and the roll-out of RIA procedure.

the

Law on Golf Courses be annulled immediately,

given its corruptive

potential and the fact that it has turned into a symbol of state capture by interest

groups;

the February 2011 passed

Law on the Conflict of Interest

Public Officials be

annulled and a new one adopted after thorough deliberation,

ensuring that the

appointments to the Commission on the Prevention of Conflict of Interest do not

reflect the government majority represented in the Parliament. Furthermore, the

law should be binding for all state and local level appointed and elected holders of

public office or other duties, as well as managing public servants;

relevant parliamentary working bodies –

the Commission for the Prevention of

Conflict of Interest and the Commission for Monitoring the Implementation

of the Anticorruption policy

- should be adequately staffed and resourced to

ensure timely substantial support to the work of the Commissions’ members;

the

Law on Lobbying Activities

and the

Law on Protection of Whistleblowers

and Human Rights Defenders be passed and enacted,

the

newly enacted amended Freedom of Information Act

be annulled, given

that it was not adopted by the qualified majority. Furthermore, the amendments to

the Act should ensure establishment of the independent body in charge of

conducting the test of public interest, followed by harmonization of the Data

Secrecy Act.

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In the area of human rights protection, we demand that:

the

Free Legal Aid Act be amended,

to remove administrative and other

obstacles to effective implementation, and ensure that the Act becomes an

adequate mechanism for accessing justice;

paragraphs 9 and 10 of Article 9 of the Antidiscrimination Act be annulled

they directly discriminate against foreign nationals and same-sex relationships,

respectively;

the results of the negotiation process with the EU be urgently publicized,

with

emphasis on negotiated exemptions and adjustment periods;

the Law on Security and Intelligence System be amended

in order to

strengthen the mandate of the Council for Civilian Oversight of Security and

Intelligence Agencies and improve the compliance of security agencies with

human rights standards;

independent civilian control

be insured in the scope of the new law

on police;

criminal acts motivated by hatred as well as assaults on human rights

defenders, whistle-blowers and journalists be classified as aggravated

assaults

in the Criminal Code;

decriminalization of slander to misdemeanour;

criminalizing censorship in the media;

policies in the area of protection of persons with disabilities

be coherent in

terms of classification as well as the causes/circumstances of disability, and

harmonized with relevant international standards.

In the area of political rights, we demand that:

the Law on the Amendments to the Law on Free Assembly be annulled,

enable free expression of political views on St. Mark’s Square in Zagreb;

the Law on Referendum be amended

to enable easier referenda initiation by

citizens;

the Law on Residence be amended

as a prerequisite for the

necessary and

urgent review of voter lists;

In the area of national minority and returnee rights, we demand that:

the pending

11 cases of illegal investments in returnee properties be settled, so

that State takes over the responsibility for damage compensations,

compensations for length of procedures and all disputes with ex temporary users

of these properties;

the State produces evidence of

the implementation of Article 22

of the

Constitutional Law on the Right of National Minorities pertaining to

employment

of national minorities in public services;

the law on election of representatives to the Croatian parliament

be amended to

ensure equal treatment of all national minorities,

taking into account their

specific interests and rights,

the legal deadline for the applying for the process of (con) validation of

working years (pension rights) be extended.

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In the area of processing war crimes and cooperation with the ICTY, we demand

that:

the Act on Implementation of the Statute of the International Criminal Court

and Prosecution of Criminal Acts against International War and

Humanitarian Law be changed,

in order to allow the use of testimony given to

ICTY investigators in proceedings before national courts;

first instance proceedings be put under the exclusive competence of the

county courts and prosecutor's offices in Zagreb, Osijek, Rijeka and Split,

including only judges and prosecutors experienced in the gravest criminal cases;

Furthermore, the

Supreme Court should decide on these issues without jurors.

a legal mechanism in accordance with the UN reparation standards,

initiating adoption and securing resources for the National program and action

plan for compensation of damages for wrongful death of close family members,

including compensation of expenses in court proceedings;

cases in which courts applied Act on Amnesty be revised

so that the

questionable use of the Act would be analysed and cases of grave human rights

violations re-tried;

regarding effective

assistance to victims and witnesses of war crimes,

adequate

strategy and action plan, including financial resources, be developed in

cooperation with civil society organizations;

full political and institutional support for establishing all facts about war

crimes be ensured,

as a prerequisite for a widespread societal process of dealing

with the past.

The following sections of the report

represent a summary of the wider Shadow Report

on Croatia’s readiness to close Chapter 23,

which is currently being prepared by the

above mentioned group of organizations and will be presented to the Croatian public and

interested domestic and international state and non-state actors upon the March 2011

Progress Report released by the EC. In the shadow report, we will provide a detailed

review of the key achievements and challenges, with a number of illustrative examples,

related to the normative, operational and communicative aspects of the key objectives

and benchmarks stated in this negotiation Chapter.

In this summary report, the focus is on the key open issues and remaining

challenges

related to the benchmarks placed by the EU for closing Chapter 23 - Judiciary

and Fundamental Rights,

with a proposed set of actions that should be taken

immediately

to increase independence and effectiveness of the judiciary system,

anticorruption policy, human, minority and returnee rights and prosecution of war crimes,

including cooperation with the ICTY.

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Conclusion Related to the Reform of the Judiciary

In the area of the reform of the judiciary, which should be geared towards the attainment

of sustainable, high standards of independence, transparency, accountability and

professionalism of judicial officers as well as judicial institutions, serious concerns

remain in respect to the actual will of the political and judicial elites to truly and fully

separate politics from the judiciary. This very prerequisite has proved to be missing in the

case of hasty appointment of 57 judges in January 2011, carried out in accordance with

the old Law on State Judicial Council, even though the new, reformist law – a key

component of the benchmark 2 in Chapter 23 – was in the final process of adoption.

Political influence on high courts has been evidenced in several prominent cases, where

conspicuous coincidences in the timing and contents of court and executive decisions or

stances could be noted, e.g. Constitutional Court’s opinions on the Law on Medically

Assisted Conception, Law on Golf Courses, referendum on Labour Law; massive arrests,

indictments and convictions of the protesters in Varšavska street.

It is of particular concern that there is no revision of the status of judges of the

Constitutional Court, who were appointed by political decree of parliamentary majority,

with questionable integrity and competencies, and whose voting track-record (e.g. cases

Hrastov; Blažević and Vukojević; Banić) generates negative public opinion on the

Court’s credibility and impartiality in defending fundamental human rights.

Even though the appointment of the new State Judicial Council is being carried out in

line with the new procedure which

de iure

guarantees the prominence of professional vs.

political criteria and confidentiality of each vote, the lack of clearly defined

implementation plan meant that in several courts the conditions were far from optimal,

resulting in several official complaints submitted to the Council and reported for further

investigation to Croatian civil society organizations.

Public trust in the independence and impartiality of the judiciary is insufficiently

supported by expected improvements in the openness of judicial institutions, e.g. State

Judicial Councils and State Prosecutorial Councils’ sessions remain fully closed to the

public, while timely and comprehensive information on court proceedings and decisions

is insufficiently accessible on official websites, with striking discrepancies between the

practices of individual courts.

There has been only limited change evidenced regarding chronic inefficiencies of the

investigative and court proceedings in cases of assaults on journalists and human rights

activists or war crimes, which poses questions of political commitment, as well as

technical capacities and internal organization. Timely and effective access to justice has

continuously been lacking in administrative court proceedings related to the Freedom of

Information Act and issues related to spatial planning construction and environmental

protection, where long-lasting procedures make the eventual decisions not only overdue

but also irrelevant. For example, according to independent research by GONG in

November 2010, even three years are considered a reasonable timeframe for the cases

regarding freedom of information, while average duration of these cases ranges from 6 to

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9 months. A related problem is the lack of sanctions or follow-up actions for frequent

cases of non-compliance of public bodies with the Administrative Court decisions, as

evidence in the case of non-compliance with the valid decision in a Freedom of

Information Act case in favour of the plaintiff Ivica Bačić against State Prosecutors’

Office of the Republic of Croatia. In that sense, insufficient budgetary allocations for

adequate equipment of courts with Integrated Case Management System (ICMS), in

particular the misdemeanour courts, and a lack of implementation plan with financial

backing for the upcoming reform of administrative court system are particularly

concerning indicators of a disconnect between declarations and actions.

Finally, significant gaps remain in respect to the professional competencies of judicial

officers regarding the application of international conventions and the European law in

domestic proceedings concerning the exercise of political and citizens’ rights, i.e. in

respect to environmental protection and impact assessments as well as human rights

protection. For example, there is only one case evidenced by watchdog CSOs of a court

decision with direct reference to Aarhus Convention provisions. Another area of

professional development of judicial staff that lacks evidence of effectiveness is the

current system of training of junior staff and interns in courts and prosecutorial offices.

In order to ensure and sustain satisfactory level of actual implementation of the reform of

the judiciary, which should unequivocally and irreversibly result in undoubted

independence, professionalism and accountability of judicial officers and institutions

the

following actions should be taken in the scope of the very final stage of Croatia’s

accession to the EU, in order to convince both the Croatian and the EU citizens that

the Croatian political and judicial elite are truly committed to sustained rule of law

in the Republic of Croatia:

The January 2011 appointment of 57 judges should be annulled and the entire

procedure carried out again in full accordance with the new Law on State Judicial

Council.

Reform of the Judiciary should be exacerbated and sustained beyond potential

government change and budget cuts - the

Action Plan on the implementation of the

next phase of the judicial reform should be devised and adopted both at the government

and parliamentary levels for the period 2011–13. accompanied by a three-year program

budget, with special attention paid to the earmarking of adequate financial, technical and

human resources for judicial institutions, inspections, as well as the Ministry of Justice,

including a fully rolled-out Integrated Case Management System with the statistical case

analysis. The Government should pass a decision on the lasting exemption from the

current employment ban of government and judicial agencies responsible for the judicial

reform.

Reform and independence of the Judiciary should be effectively monitored -

independent monitoring mechanism of the judicial reform should be set up and

institutionalized, granting the experts from the academic community, professional and

civil society organizations access to official information and a status of independent

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rapporteurs to the Croatian Parliament and the EU institutions.

EU institutions should

consider independence of the judiciary, high courts in particular, as one of the areas

for the follow-up monitoring of Croatia’s capacity to act as a member of the EU, in

the first three years upon accession.

Administrative courts system reforms should be made operational -

an ex-ante

feasibility study should be urgently conducted, as a basis for a comprehensive

Operational Plan for the Administrative Court System Reform, with precise three-year

program budget 2012-14. The fine-tuning and operationalisation of the reform should pay

special attention to the risks of inefficiency and implementation deficits, i.e. it should

envisage the introduction of enforceable sanctions for the non-compliance with the

Administrative Court decisions.

Public Communication Plan for Courts and Prosecutorial Offices

should be devised

and adopted in consultations with the interested public, with clearly defined minimum

standards and indicators of transparency relating to the entire investigative and court

proceedings, with specified timeframe, budget and monitoring of implementation.

Professional development of Croatian judges should be enhanced, with stronger

focus on key gaps in their competences and performance.

A comprehensive gap

analysis of competences of all Croatian judges should be conducted, against the new

criteria for judges’ appointment and advancement defined in Law on State Judicial

Council, as a basis for setting priorities and targets for professional development and

staffing in the upcoming period 2012-14. Application of international conventions and

the EU law in the area of civil and human rights should be defined among top thematic

foci for the professional development of judges in the period 2012-14, with respective

program allocation. The system of professional training and supervision of junior court

and prosecutorial officers, including interns, should be urgently improved.

Conclusion Related to Prevention and Combating Corruption

While there has been visible progress in the number of high profile cases of corruption

under investigation, the selectiveness of investigative and prosecutorial proceedings is

equally visible, as well as chronic lack of valid convictions and seizures of illegally

obtained property. That has already raised considerable public concern about political

impartiality of the police and prosecutor's office, especially in the striking case of

numerous, repeated and enduring allegations of corruption in the City of Zagreb and

Ministry of Sea, Transport and Infrastructure which have not resulted in any formal

investigation, let alone indictments.

Upon recent amendments of the Law on criminal proceedings, State attorney gained huge

powers in leading the investigation including granting of “pardon” to those perpetrators

of crimes who give information on perpetrates or other facts in relation to other usually

more severe crime. These procedures of granting a pardon by State attorney are without

any court monitoring or involvement of judiciary. Furthermore, the definition of those

powers is very vague and allows granting of the pardon for all types of crimes (including

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war crimes) for any type of information, depending merely on the discretion of state

attorney. This leads to unequal treatment of perpetrators and victims of crimes; because

some are severely punished by Court for certain criminal act, while others do not even

face indictment due to the pardon of State attorney.

Social and institutional support and protection of witnesses, whistle-blowers,

investigative journalists and human rights defenders, transparency and anticorruption

activists is insufficient, as evidenced by numerous examples of physical assaults, media

lynching, degradation or loss of job. There has been no significant success in the

prosecution of the ones who ordered the attacks on Dušan Miljuš, Igor Rađenović and

Josip Galinec, while cases of whistleblowers prove deficiencies in the legislative

framework and judiciary (Damir Mihanović, Srećko Sladoljev, Vesna Balenović, Tonči

Majica, Mirjana Juričić, Helena Puljiz, Marko Rakar, Ankica Lepej, Ruža Tomašić,

Matko Marušić, Marija Petrušić, Nada Stanović, Vesna Majer, ...).

The recently proposed draft Law on Police, which is supposed to facilitate full

depolitization of the police forces, contains unacceptable provisions for the appointment

of managing police officers, including Police Director General, as well as for the

appointment and composition of the new mechanism for civilian oversight, both of which

provide full control to the current minister of interior, without adequate engagement of

other decision-making stakeholders, including the Parliament. As this law is supposed to

be adopted over the upcoming months, the appointment of the new managing cadre

would take place just before the national elections, which puts this allegedly reformist

law in the context of consolidation of political power of the current ruling majority for

the upcoming period of five years.

It is particularly discouraging for democracy and human rights activists that there is no

evidence that the accession process has significantly altered the prevalent, long-standing

political and administrative culture of secrecy of information. First and foremost,

negotiation positions and all related documentation have been treated as secret

throughout the negotiation process, including this very final stage when all exemptions,

and transition periods have already been agreed upon. The lack of transparency has, we

believe, negatively affected the public trust in Government, as suspicions about

preferential treatment of certain businesses or interest groups remain, without convincing

disclaimers, in the form of disclosed official documents. Similarly, parts of weekly

Government sessions are routinely closed to the public, without any justification, publicly

announced agenda, concerning decisions on allocations from state budgetary reserves,

political appointments, and reports on policy implementation.

The exemplary case of clientelism in legislative process is the Law on Golf Courses,

which derogates proprietary rights, favours exclusively one type of investment and

stimulates corruption in the scope of spatial planning at local government levels. Despite

numerous complaints and public protests, including extensive argumentation provided by

leading anti-corruption, democratization and environmental CSOs, as well as individual

citizens and local communities, the government continues to ignore its negative effects

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on human rights, public interest, economic development and international reputation of

Croatia.

Despite the eventual adoption of the Code of Practice on Consultation with the Interested

Public in Procedures of Adopting Laws in November 2009, this soft policy instrument

has yet to become implemented systematically. It was not respected even in the cases of

flagship legislative initiatives related to the prevention of corruption and the closing of

Chapter 23, i.e. the Law on Financing of Political Activities and electoral promotion, the

Law on prevention of conflict of interest of public officials. Both laws have been drafted

without the inclusion of key CSOs with outstanding track-record of monitoring these

policy issues, while the adopted proposal for amendment to the Freedom of Information

Act in summer 2010, ignored the key recommendation of the working group members

and consulted public were ignored - the introduction of independent body for conducting

the test of public interest.

Even though the right to access information has recently been introduced into the

Croatian Constitution as one of the fundamental human rights, the prospects of its

practical consumption are severely limited by the laws and insufficiencies in the most

recent normative changes and implementation capacities coupled by the track-record of

violations on part of public bodies. The amended Freedom of Information Act was

adopted in December 2010 as part of the EU legislative package, without qualified

majority, which is mandatory for all acts regulating human rights issues defined in the

Croatian Constitution. Hence, the Constitutional Court’s opinion on its constitutionality is

pending. Content-wise, the very purpose of amendments, i.e. ensuring effective scrutiny

of public interest has not been realised, as this task has been entrusted to the Croatian

Personal Data Protection Agency, as opposed to a specialised, independent body, such as

Ombudsman for Information. At present, the Agency has not been provided with full

institutional autonomy in respect to the Government, which appoints the Agency Head,

nor have additional budget, staff and technical assistance been put in place for timely and

high-quality performance of the test of public interest. Most importantly, the provisions

of the Data Secrecy Act derogate the provisions of the Freedom of Information Act in

respect to the conduct of test of public interest that cannot be performed in all cases

where state level institutions have labelled any information within their jurisdiction as

secret.

The new Law on Prevention of Conflict of Interest of Public Officials, adopted on

February 11, 2011, only a week upon the adoption of its first draft, is an illustrative

example how accession obligations are used as an alibi for the neglect of interested public

and arguments espoused by political opposition, resulting in a law which contradicts its

very purpose – increasing the standards for political accountability and public trust in

government officials. The appointment procedure of members of the Commission for the

Prevention of Conflict of Interest and the simple majority vote enable the parliamentary

majority to install their favourite candidates, while eligibility criteria do not refer to

individual or public integrity. The scope of interests that should be disclosed and checked

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against potential conflict with public duties is very limited

, while the law envision

adequate support to whistle-blowers, as the Commission cannot consider any allegations

of conflict of interest submitted anonymously. The law omits several important categories

of public officials, such as members of local and regional government representative

bodies, management of public institutions, including the Croatian Radio-Television and

Croatian Information Agency, and members in a number of supervisory and managing

boards of public agencies such as the Agency for Electronic Media, appointed by the

Parliament. The passing of this law primarily serves the purpose of formal closing of the

Chapter 23 and the political promotion of the current government. It should also be noted

that there is no evidence of systematic application of provisions of the Civil Servants Act

on the disclosure of interests, which have not been further elaborated in the form of

internal administrative procedures at the level of state institutions. In conclusion, the

current normative and institutional mechanisms of managing conflict of interest are fully

unsatisfactory.

While the new and long-awaited Law on Financing of Political Activities and Election

Campaigns, adopted on February 11, 2011, brings significant improvements in terms of

transparency of election campaigns, there is area for improvement in respect to the

efficiency of scrutiny and sanctioning of non-compliance, including parallel data

collection on media advertising expenses, the mandate of the Central Election

Commission and the severity of sanctions.

Given the described problems

in the area of fight against and prevention of

corruption, we propose the following corrective measures to be undertaken,

prior to

closing of Chapter 23:

State should

amend provisions of the Law on criminal proceedings

which are allowing

State attorney to grant a pardon for any criminal act by the fact that perpetrator gave any

information on other act or acts. State should put

granting a pardon to the jurisdiction

of the courts and narrow the scope of criminal acts and types of information for

which it could be given.

It should also secure that perpetrators who are also witnesses

are under indictment and that pardon can be allowed only in relation to sentence, not the

whole procedure.

The Law on Golf Courses should be annulled immediately,

given its corruptive

potential and the fact that it has turned into a symbol of state capture by interest groups;

The newly enacted amended

Freedom of Information Act

should be annulled, given

that it was not adopted by the qualified majority. Furthermore, the Act should be

amended to ensure and include key recommendations proposed by relevant CSOs, i.e. the

For instance, according to Article 13, paragraph 3, public officials do not need the

Commission’s approval for the exercise of the following professional and public activities,

including income-generation: scientific, research, educational, sports, cultural, artistic,

agricultural; income-generation on the basis of intellectual and industrial ownership rights, as

well as income-generation based on the participation in international projects financed by the EU,

other foreign state, international organization or association.

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establishment of the independent body in charge of conducting the test of public interest.

Most importantly, human and financial resources should be ensured for adequate

implementation and monitoring of the law. Finally, the Data Secrecy Act should be

harmonized with the changes of the Constitution and Freedom of Information Act;

The

Law on Protection of Whistleblowers and Human Rights Defenders

as well as

the

Law on Lobbying Activities

should be enacted, following an open process of

consultation in accordance with the provisions of the Code of Practice in Passing

Legislation and relevant UN Resolution;

The recently passed

Law on the Conflict of Interest

should be urgently annulled, and a

new one passed which would ensure that the appointments to the Commission on the

Prevention of Conflict of Interest do not reflect the government majority represented in

the Parliament. Furthermore, the law should be binding for all state and local level

appointed and elected holders of public office or other duties, as well as managing public

servants.

Relevant parliamentary working bodies –

the Commission for the Prevention of

Conflict of Interest and the Commission for Monitoring the Implementation of the

Anticorruption policy

- should be adequately staffed and resourced to ensure timely

substantial support to the work of the Commissions’ members.

The Law on Financing Political Activities

should be amended to specify and make

more stringent the sanctioning procedure for non-compliance with reporting obligations,

i.e. rather than postponing the allocation of funds until the report has been submitted,

rendering it illegal to allocate funds after the dead-line has passed. Additionally, the

mandate the Central Election Commission should be broadened to include the possibility

of sanctioning political actors for non-compliance with the election rules during the

campaign, while all media organizations, as well as mediators such as agencies, should be

forced to publicize their price-lists.

The

Law on Government

should be amended to ensure significant improvements to the

transparency of the government’s work, i.e. significantly limiting the possibility of closed

sessions of government, and specifying topics which can justly be discussed behind

closed doors (e.g. national security). Additionally, the Law should explicitly prohibit any

allocations of budgetary funds during closed sessions of Government.

Urgently publicize the results of the negotiation process with the EU

by chapters,

with emphasis on negotiated exemptions and adjustment periods;

Ensure consistent implementation of the

Code of Practice on Consultation with the

Interested Public in Procedures of Adopting Laws

and

strengthen its institutional

standing by linking the Code to provisions of the prospective

Law on Regulatory

Impact Assessment (RIA) and the roll-out of RIA procedure. The

adoption of the Law

on RIA should be treated as a condition for the closing of negotiations in Chapter

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23,

Government Governments’ track record of delays in its institutionalization over the

past five years.

The Government’s intention to penalize slander more severely with the possibility of

imprisonment is in direct contradiction with the disclosure of possible corruptive

practices by journalists, whistleblowers and human rights defenders. In that sense, instead

of more severe punishments,

the Penal Act should be amended to decriminalize

slander and treat it as a misdemeanour rather than a criminal act,

so that persons

disclosing possible corruptive practices are not discouraged to do so. At the same time,

censorship in the media should be classified as a penal act,

discouraging editors-in-

chief to censor any and all media reports or investigations pertaining to political or

market-related corruption.

The current level of achievement in respect to both prevention and combat of corruption

is far from being internalized at the level of political elites, state institutions and the wider

society. It is

therefore necessary to ensure ongoing monitoring of Croatia’s efforts in

this respect, beyond the accession period and Croatia’s closing of Chapter 23.

Conclusion Related to Human Rights Protection

Notwithstanding Croatia’s progress in the area of human rights protection since the

opening of the accession negotiations, we are of the opinion that there are several issues

that warrant serious concern and require immediate action.

In the area of political rights,

Croatia’s legislation still impedes the right to free

assembly and expression of political views in front of the Parliament and Government

buildings. The Law on Referendum, despite recent changes, did not change the very strict

conditions regarding citizens’ initiated referenda - 10% of registered voters must sign the

referendum petition within a two week period. This is exacerbated by the fact that

amendments to the Law on Residence, as a prerequisite for the review of voter lists, have

not taken place yet, despite proclaimed state authorities’ acknowledgment. Thus, the lack

of credibility in voter lists shamefully fuel citizens’ mistrust of the state institutions and

still, 20 years after Croatia’s first democratic elections, render doubts on the fairness of

the election process.

Therefore, before closing Chapter 23, Croatia should:



Annul the Law on the Amendment to the Law on Free Assembly, to enable

free expression of political views on St. Mark’s Square



Change the Law on Referendum

to enable easier referenda initiation by citizens



Change the Law on Residence

as a prerequisite for the necessary and urgent

review of voter lists

Vulnerable groups’ access to justice

has not improved with the enactment of the Free

Legal Aid Act; quite the contrary. The procedure itself is highly bureaucratized and

complicated, and is, as such, a completely inadequate mechanism for accessing justice.

The only costs covered by the Act are those of legal representation, and at the rate far

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below the official rate of the Bar Association. Therein lie the real reasons for attorneys’

refusals of such cases, while at the same time CSOs are restricted to provide free legal aid

to citizens, despite their experience and long-standing positive practice. The proscribed

conditions for attaining this right are inadequately aligned to the living conditions of

citizens, especially poor ones living in rural areas who have no means to visit the relevant

state office to obtain necessary receipts. Finally, the Act vaguely stipulates that free legal

aid is to be granted if “existential” issues of beneficiaries are at stake, thus enabling

discretionary decisions and potential inequalities in decision-making.

Therefore, before closing Chapter 23, Croatia should amend the Free Legal Aid Act,

in a participatory manner, and ensure that by removing administrative and other obstacles

to effective implementation, the Act becomes an adequate mechanism for accessing

justice.

The institutionalization of

antidiscrimination

policies and measures and the

Antidiscrimination Act itself, although in place and for the most part implemented, show

weaknesses in the effectiveness of monitoring and implementation of recommended

correction measures. This is evidenced by the inability of the People’s Ombudsman, the

Ombudsperson for Gender equality and the Ombudsperson for Persons with Disabilities

offices to influence the executive to take corrective action, as their authorities lack

punitive measures, while their offices remain under capacitated. Additionally,

antidiscrimination policies lack performance and impact indicators, as well as monitoring

and evaluation plans.

There are also several concrete steps that need to be taken to enhance protection

against discrimination:



First and foremost,

the Law on Golf Courses should be immediately annulled

as it represents a striking example of state capture, directly infringing on the

property rights of land owners and discriminating against potential investors

whose entrepreneurial interests lie beyond golfing;



Criminal acts motivated by hatred as well as assaults on human rights

defenders, whistle-blowers and journalists should be classified as aggravated

assaults

in the Criminal Code and should be statistically labelled and tracked;



The

Law on Protection of Persons with Mental Illnesses

should stipulate

regular reviews of their status;



Article 9, paragraphs 9 and 10 of the

Antidiscrimination Act

should be annulled

as they directly discriminate against foreign nationals and same-sex relationships,

respectively;



Policies in the area of protection of persons with disabilities

should be

coherent in terms of classification as well as the causes/circumstances of

disability, and harmonized with relevant international standards;

Chapter 23 should not be closed before the state carries out the decision of the

Constitutional Court on harmonizing the pensions and paying the debt to

pensioners.

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Additionally, in the complex area of

human rights protection, there are several

changes to the Croatian legislation that should be introduced to immediately

improve the protection of human rights.

These include:



forbidding and penalizing mobbing in the Labour Law;



introducing sanctions for disregarding the provisions of the Law on Media

considering the adoption of self-regulatory acts, and transparency of ownership.

Additionally, journalists’ opinion regarding editors-in-chief should be binding;



decriminalization of slander to a misdemeanour,

as opposed to the current

government’s intention to introduce the possibility of imprisonment for slander;



criminalizing censorship in the media.

At the

systemic level,

in order to enhance

human rights’ protection,

Croatia should:



Accelerate efforts to create

favourable normative and infrastructural

conditions for inclusive education in local communities,

which is critical to the

prevention of institutionalization and deinstitutionalization of children with

disabilities;



Increase the

capacities of the Office for Monitoring of Practice and

Representation before European Courts;



Ensure

timely translation and availability of the ECHR Decisions



Introduce

education on human and civic rights in the formal education system

as a separate subject;



Systematically

build professional capacities

of police, prosecutors and judges

and other officers of the court

on antidiscrimination policies

and international

human rights protection standards;



Start working, in a participatory and transparent manner, on

the formulation of

the national integration policy of immigrants.



Amend the Law on Security and Intelligence system

in order to specify

conditions and procedure of secret data collection; ensure that People’s

Ombudsman can review the alignment of internal acts of security agencies with

human rights standards; and to enable the

Council for Civilian Oversight of

Security and Intelligence Agencies

to scrutinize activities of the Operational-

Technical Centre, initiate inquiries and proactively inform the public of cases of

severe human rights violations.

Conclusions related to Sustainable Return of Refugees

Although the matter of return of refugees is being addressed, there are still several

essential issues that need to be tackled: administrative procedures for realization of rights

are still extraordinarily long, status and social rights for refugees without Croatian

citizenship is still not sufficiently regulated and economical conditions for sustainable

return are systematically unfavourable. Although the issue of illegal investments in

property of returnees is not widespread, there are still 11 cases for which Government is

not taking responsibility to compensate damages done during temporary use by internally

displaced persons and/or war veterans after 1995.

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In order to give satisfying resolution of these issues, it is necessary to speed up

administrative procedures and equalize their results within the reform of the judiciary and

administrative adjudication process.

For refugees who do not have Croatian

citizenship, it is crucial to alleviate the process of materialization of their property

rights by providing permanent residence status.

Considering returnees who are former

holders of tenant rights outside areas of special state concern,

it is of vital importance to

immediately start the implementation and public oversight over the Government

Programme,

so all returnees would be able to meet the application deadlines and

evidential requirements and buy the apartments under the same conditions as all other

Croatian citizens.

Furthermore,

it is of key importance to extend the legal deadline for the applying for

the process of (con) validation of working years (pension rights)

spent in Croatian

areas not under the Croatian Government control during the war period 1991-95. In order

for all this to be done transparently,

it is necessary for the Directorate for

Reconstruction as well as for Housing of the Ministry of Regional Development to

have sufficient budgetary funding, precise implementation plans and performance

indicators, and publicly share the information.

Considering 11 cases of illegal investments in propriety of returnees,

the State should

prepare individual contracts with owners of property so that State takes over the

responsibility for damage compensations

and compensations for length of procedures

and all disputes with ex temporary users.

Conclusion Related to the Protection of National Minorities

The status of national minorities’ rights has been significantly upgraded, but there is a

continuation of cases of discrimination, hate speech, verbal and physical violence,

indifference of political actors and specific unresolved issues regarding all national

minorities. There is still significant under-representation of minorities in state

administration proving the lack in implementation of the article 22. of the Constitutional

Law on the Rights of National Minorities. Furthermore, the new legislature on elections

introduced discrimination between the biggest and all other national minorities.

In order to comply with Constitutional Law provisions on the employment of national

minorities in public services,

it is necessary to publish the accompanying Action plan

and produce evidence of its implementation.

It is of

vital importance to enhance the effectiveness of activities and financial

support of the National Programme for Roma and Action Plan for the Decade of

Roma inclusion 2005-2015.

Croatia needs to continue to foster a spirit of tolerance

towards national minorities and take appropriate measures to protect victims of

discrimination, hostility or violence.

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The law on election of representatives to the Croatian parliament

should be amended to

ensure equal treatment of all national minorities,

taking into account their specific

interest and rights.

Conclusions Related to Processing of War Crimes

Although the number of Croatian investigations into war crimes committed by members

of the Croatian Armed Forces increased in 2010, investigations of command

responsibility of individuals at the highest political and military levels are still lacking

(Šeks, Vekić, Domazet, Brodarac, Laušić, Merčep, the case of the Josip Reihl Kir). It is

not possible to use testimony given to ICTY investigators in evidence procedures before

national courts (based on Supreme Court verdict in the Marino Selo case).

Court proceedings of war crimes against civilians have not yet started in 403 cases as is

the case in still not prosecuted crimes in Sisak, Požega and Vukovar. There is a high

discrepancy on the data regarding unprocessed cases between Ministry of Justice (38%)

and State Attorneys Office (57%). The specialised war crime courts are not being used

enough (in 2010 no trials were conducted in Split and Rijeka but have been conducted at

other county courts). The length of certain proceedings is unreasonably long (the Hrastov

case started in 1992, but the Constitutional Court recently annulled the condemning

conviction; there are recent ECHR decisions in cases Jularić from Osijek and Skendžić

from Otočac).

Sentences are, in general, considerably lighter than those imposed for the equivalent

underlying crimes not classified as war crimes. The use of mitigating factors gives rise to

different treatment linked to ethnicity. Furthermore, individuals who lost their case

against Croatia regarding non-material damages have to pay high procedural expenses.

In order to address these issues,

it is of vital importance to change the Act on

Implementation of the Statute of the International Criminal Court and Prosecution

of Criminal Acts against International War and Humanitarian Law,

in order to

allow the use of testimony given to ICTY investigators in proceedings before national

courts.

First instance proceedings should be put under the exclusive competence of

the county courts and prosecutor's offices in Zagreb, Osijek, Rijeka and Split,

including only judges and prosecutors experienced in the gravest criminal cases.

Furthermore, the

Supreme Court should decide on these issues without jurors.

Considering the issue of

expense compensation in proceedings for compensation of

damages for wrongful death of close family members, the State should immediately

and completely establish a legal mechanism in accordance with the UN reparation

standards

, by initiating adoption and securing resources for the National program and

action plan.

United Nations' General Assembly Resolution adopted on 16 December 2005 titled

Basic Principles and

Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations of International

Human Rights Law and Serious Violations of the International Humanitarian Law.

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Cases in which courts applied Act on Amnesty should be revised

so that the

questionable use of the Act would be analysed and cases of grave human rights violations

re-tried.

In order to enhance efficiency of the Police, State Attorney's Offices and judges, it is

necessary to improve their human, technical and material capacities and facilities,

as well as widen the network of support.

Further education of judges, state attorneys

and police officers is necessary, as well as enhancement of the cooperation between state

attorneys and police officers themselves as well as with their regional colleagues.

Considering the

assistance to victims and witnesses of war crimes,

the adequate

strategy and action plan including financial resources should be developed in cooperation

with civil society organizations. Finally, in order to

ensure a widespread societal

dealing with the past,

it is necessary to ensure

full political and institutional support

for establishing all facts about war crimes.

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Sources of Information

Act on the Prevention of Conflict of Interest in Public Office (NN 163/03, 94/04, 48/05,

141/06, 60/08, 38/09, 92/10)

Act on the Security and Intelligence System of the Republic of Croatia (NN 79/06)

Administrative Disputes Act (NN 53/91, 9/92, 77/92)

Antidiscrimination Act (NN 85/08)

Antimobbing Advisory Network (2010).

Comparative Legal Analysis of Anti-mobbing

Legislation (Country studies: Croatia, Macedonia, Montenegro and Serbia)

Caucus of Croatian Investigative Journalists (publication pending),

Special Report:

Chronology of the Assaults and Threats on Journalists 1990-2010,

Zagreb

Comparative research regarding the Law on Golf Courses (performed by the NGO Green

Action – organizational documentation)

Constitution of the Republic of Croatia (NN 56/90, 135/97, 8/98, 113/00, 124/00, 28/01,

41/01, 55/01, 76/10, 85/10)

Constitutional Act on the Rights of National Minorities (NN 155/02, 47/10, 80/10)

Convalidation Act (NN104/97)

Council of Europe’s Group of States against Corruption (GRECO) - Second and Third

Round Evaluation Report on Croatia

Croatia Progress Report issued by the European Commission (2006 - 2010)

Data Secrecy Act (NN 79/07)

Draft Proposal of Amendments to the Penal Act (January 2011)

Electronic Media Act (NN 153/09)

Amendments of the European Parliament’s Committee on Foreign Affairs on statements

by the Council and the Commission pursuant to Rule 110(2) of the Rules of Procedure on

the 2010 progress report on Croatia (December 2010)

Free Legal Aid Act (NN 62/08)

Freedom of Information Act (NN 172/03, 144/10)

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General Public Administration Procedure Law (NN 47/09)

GONG (2009)

Final report of the LOTUS research (Local, Responsible and Transparent

Government and Self-government),

Zagreb

GONG (2010)

Research on Political Literacy and Attitudes regarding Accession of

Croatia to EU among High School Seniors – Data analysis,

Zagreb

GONG’s Regular Reports on presidential, parliamentary and local elections

GONG's Analysis of the official Central State Office for Administration/Ministry of

Administration Reports on the Implementation of the Freedom of Information Act in

Croatia (2008 and 2009)

GONG's Annual Reports on Evaluation of Croatian Freedom of Information Act (2005-

2010)

Government of the Republic of Croatia (2008).

National Plan for the Fight against

Discrimination 2008-2013,

Zagreb

Government of the Republic of Croatia (2010).

Action Plan for Fight against Corruption

– revision,

Zagreb

Government Office for Cooperation with NGOs (2010).

Guidelines for the

Implementation of Code of Practice on Consultation with the Interested Public in

Procedures of Adopting Laws,

Zagreb

Government Office for Human Rights (2007).

National Program for the Protection and

Promotion of Human Rights 2008 – 2011,

Zagreb

Government Office for Human Rights (2009).

Research on Attitudes and the Level of

Awareness about Discrimination and Manifestations of Discriminations,

Zagreb

Johnsen, J. T., Stawa G. & Uzelac, A. (2010).

Evaluation of the Croatian Free Legal Aid

Act and its implementation (International expertise),

Zagreb, Center for Human Rights

Judgement, Lukenda vs. Slovenia, no. 23032/02, para. 67, ECHR 2005-X

Judiciary Reform Strategy

Labor Law (NN 149/09)

Law on Election of MPs to the Lower Chamber of the Croatian State Parliament (NN

116/99, 109/00, 53/03, 69/03, 167/03, 44/06, 19/07, 20/09, 145/10)

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Law on Election Units for the Election of MPs to the Lower Chamber of the Croatian

State Parliament (NN 116/99)

Law on Financing of Political Activities and Election Campaigns (February 2011)

Law on Golf Courses (NN 152/08, 80/10)

Law on Referendum (NN 33/96, 92/01, 44/06, 58/06, 38/09)

Law on the Central Election Commission of the Republic of Croatia (NN 44/06, 19/07)

Law on the Government of the Republic Croatian (NN 101/98, 15/00, 117/01, 199/03,

30/04, 77/09)

Law on the Office for the Fight against Corruption and Organized Crime (NN 76/09,

116/10, 145/10)

Law on the State Judiciary Council (NN 116/2010)

Law on Voters' Lists (NN 19/07)

Media Act (NN 59/04)

Meetings and direct communication with State Attorney Office and Office for the Fight

against Corruption and Organized Crime (USKOK) (GONG, B.a.B.e. – Be Active Be

Emancipated, Association of Investigative Journalists of Croatia, Green Action, Caucus

of Court Reporters of the Croatian Journalists’ Association)

Ministry of the Family, Veterans' Affairs and Intergenerational Solidarity (2009).

Report

on Implementation of Anti-discrimination Law,

Zagreb

Monitoring of legal actions regarding environmental protection (NGO Green Action)

Monitoring of legal actions in the case of Varšavska (NGO Green Action)

Ombudsman (2010).

Report on the Appearance of Discrimination in 2009,

Zagreb

Ombudsman Act (NN 60/92)

Partnership for Social Development (February 15

th,

2011).

Croatian progress related to

meeting benchmarks within Chapter 23 - Judiciary and Fundamental Rights,

Zagreb

Personal Data Protection Act (NN 103/03, 118/06, 41/08)

Proposal of Police Act (February 2011)

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Report on the Implementation of the Action Plan for Fight against Corruption with the

execution period for 1st, 2nd and 3rd quarter of 2010 and continuously

SIGMA Croatia Assessment Report 2010

State Attorney Act (NN 76/09, 153/09, 116/10, 145/10)

Strategy for Fight against Corruption (NN 75/08)

Submissions to the Constitutional Court

Trade Union of Croatians Journalists and expert group of International Federation of

Journalists (IFJ) for free journalists (2006).

Report on the State of the Free Journalism in

Croatia,

Zagreb

Transparency International: Corruption Perceptions Index (2006 - 2010)

Transparency International: Global Corruption Barometer (2006, 2007, 2009 and 2010)

United Nations' General Assembly Resolution (16 December 2005).

Basic Principles and

Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations

of International Human Rights Law and Serious Violations of the International

Humanitarian Law