Srđan Šimac attacked because he wants to publish court decisions on the web

lider_29082008_Page_1.jpgThe system of publishing court decisions on web pages will allow complete control of the work of commercial court judges and will also decrease the number of cases since the parties dealing in shady affairs in commercial courts will think twice if it is worth to see their cases in media
Anybody who is serious about poking around or restoring order may expect a counterattack. Whether it is physical, like in the case of journalist Dusko Miljus or director Igor Radenovic, or it is through media, like in the case of Srdan Simac, the President of the High Commercial Court. The potential recall of Srdan Simac due to his ruling in benefit of the members of his own family would only increase the chances of stopping the reform of Croatian commercial judiciary. The beginning of the system for publishing all decisions of the High Commercial Court on the web site announced for September, which is realized in cooperation with Drazen Komarica and Judge's Web, is most likely the real motive behind anonymous actions against Simac.

Anonymously against changes

Around 160 commercial court judges, of which especially 29 in the High Commercial Court will be totally opened to the public after their court decisions have been published on the web page. The system for publishing court decisions on the internet will allow fast access to judicial practice for analysts. It will allow full public control over the work of commercial court judges and will also decrease the number of cases since the parties dealing in shady affairs in commercial courts will think twice if it is worth the risk of publishing their cases in the media. Additionally, there is a number of judges who are afraid of publishing their decisions on the web page and revealing their oversights, questionable decisions, incompetence and illiteracy. There are many of those who would eagerly stop the start of the functioning of the web page where all decisions of the High Commercial Court will be available to the public. For the purpose of realizing the web page where all decision of the High Commercial Court will finally be published, the process against Srdan Simac should be suspended and the real motives for this anonymous attack analyzed. It is one question whether Srdan Simac should be recalled for his ruling in favor of his family and entirely another whether it should be allowed to stop the changes which are happening in commercial judiciary since Simac came to the position in the beginning of 2006. It is a long list of the changes which many in commercial judiciary would like to stop. Apart from the web page with all the decisions of the High Commercial Court planned for September, the electronic distribution of cases to the judges was introduced (excluding the human factor in case distribution). The possibility of one-sided replacement of a missing court council member with another judge has also been prevented. Only in exceptional cases the court president may authorize that a case can be solved ahead of its turn. The work of judges in the Department for monitoring and analyzing judicial practice who check the correctness and legality of the content of decisions before they are sent to the parties has been made stricter. In cooperation with Judge's Web the specialized web page "Web Bankruptcy was established. The electronic register of the High Commercial Court was activated that enables each party to check the status of its case. The electronic case management system has also been established. All these measures have significantly limited the possibilities for corruption.

The anonymous charge is nothing to fall over since its form clearly shows it was written by a court employee. The information provided in it is not available outside of any commercial court. It has been delivered almost two years after it occurred. It is in question whether this is corruption or conflict of interest considering the negligible value of the disputed case of only 26,726 kuna. An never before did anybody from commercial courts react when commercial court judges ruled in cases where they had family, business or other relations with the parties.

In response to the civil action for causing "psychological pain" to Ivan Sivak, judge of the Commercial Court in Zagreb, the undersigned author of this text has demonstrated in vain that this judge has ruled against the law in cases of Prva obrtnicka stedionica, with which he had business relations (P-4748, P-9055, P-3672, etc.). The cases against the undersigned journalist and his HTV colleague have been covered up, but the proceedings against judge Sivak for failing to exempt himself from the court council have never been instigated. Until now not one case was recorded against judges for avoiding the obligation of exemption. By publishing court decisions on web pages, the failure of exemption in cases where it is prescribed will be prevented.

Enforcements moving to commercial courts

Commercial courts are not yet included in the plan of closing down courts. The Act on Amendments to the Civil Procedure Act widened their jurisdiction on which basis a significant inflow of new cases is expected. After the range of that legal amendment in relation to the number of cases is assessed, it will be decided whether there is a need to close some commercial courts.

Those courts, according to the adopted amendments, will decide in first-instance civil procedures in disputes arising from commercial contracts and disputes for damages arising from those contracts between persons who perform economic activities. They will also decide in disputes relating to the establishment, functioning and termination of companies as well as disputes concerning membership and membership rights in a company. Additionally, they will solve disputes between company members and between company members and the company relating to the management of the company and management of its activities as well as rights and obligations of company members arising from their position within the company, disputes between the president and members of the management or supervisory board of the company or its members which arise in relation to their performance in or on behalf of the company. Furthermore, they will handle disputes concerning the responsibility of a company member, management or supervisory board member in regard of the obligations of the company

Closing of commercial courts

The courts will also decide in matters where a party is the person in bankruptcy, regardless of the function of the other party and the time of instigating proceedings as well as all disputes related to bankruptcy, unless law prescribes that other courts have material jurisdiction for particular types of disputes. They will also adjudicate in disputes concerning ships and maritime and inland water transport as well as disputes where maritime law applies (maritime disputes), excluding passenger transport disputes.
Commercial courts shall also have jurisdiction over disputes relating to the protection and use of industrial property rights, copyrights or similar rights and other intellectual property rights as well as the protection and use of inventions and technical improvements, unless otherwise prescribed by a special law, followed by disputes pertaining to the acts of unfair market competition, monopolistic agreements and infringement of equality on the single market of the Republic of Croatia.

They will also have jurisdiction over disputes between legal persons, legal persons and craftsmen including individual tradesmen, if the disputes concern their activity. All of this means that from now on any disputes where companies are involved shall be resolved by commercial courts and until now disputes between natural persons and companies were under the jurisdiction of regular courts. Since July this year, larger commercial courts shall also take over enforcements from regular courts, which means that enforcements based on commercial court decisions shall be executed by commercial courts themselves or that part of commercial court employees will be "re-qualified" to enforcement officers. Until the end of the year, all commercial courts have to take over the execution of enforcements on movable and non-movable property. Until now commercial courts have executed enforcement only on debtors' accounts. In Croatia there are 13 first-instance commercial courts and the High Commercial Court as second-instance. In Rijeka, Split, Osijek and Zagreb there are, for Croatia, larger commercial courts and in nine smaller towns - Dubrovnik, Sibenik, Zadar, Pazin, Sisak, Varazdin, Bjelovar, Slavonski Brod and Karlovac - the "dwarf" courts. Highest value disputes decided in commercial courts are commercial, maritime and inland water traffic, air traffic, copyright disputes and disputes concerning the protection and use of inventions, discoveries, samples, models and trademarks, rights to use a company name and in automatic law disputes, and also implemented are enforcement and bankruptcy proceedings, liquidations, commercial violation procedures, court registries for registration of companies are maintained, etc. For such disputes judges must be trained and specialized and, contrary to the opinion "for businessmen it is excellent to have at least small commercial courts for the purpose of realizing court protection", it is not good that three judges in a "dwarf" court do everything (there has to be at least three of them so they could adjudicate in a council, regardless of the number of cases in a "dwarf' court).

Every time there is an affair in commercial courts, it is seriously suggested that they should be closed and their cases transferred to the jurisdiction of regular courts. Specialized courts for commercial disputes have been closed in Slovenia and Macedonia but, due to bad experiences, it is already thought about returning commercial courts after all. When the list of topics which are handled by commercial courts is compared with the proposal to remove them and give their cases to regular courts, it becomes clear that, in spite of the affairs in commercial courts, this would not be a good solution after all. Rather then closing them, it seems much more useful to start publishing all commercial court decisions on the web page and in this way make the work of those courts available for public control.
 

Wider competencies of commercial judiciary Commercial judges

  • will decide in cases arising from commercial contracts
  • will decide in disputes for damages arising from those contracts between persons who perform economic activities
  • will decide in disputes relating to the establishment, functioning and termination of companies
  • will solve disputes between company members
  • will decide in disputes between the president and members of the management or supervisory board of the company or its members
  • will resolve disputes pertaining to the responsibility of a company member, management or supervisory board member in regard of the obligations of the company
  • will decide in disputes in which a party is the person under bankruptcy proceedings
  • will decide in disputes relating to the protection and use of industrial property rights, copyrights or similar rights as well as other intellectual property rights will take over disputes between companies and natural persons from regular courts larger commercial courts will take over enforcements from regular courts

Types of disputes in commercial courts

More than two thirds of all the cases in the High Commercial Court are civil procedures and they are slowest to be solved. In the first year after their receipt, the clearance rate is only 14.3 percent. Fastest to be solved are bankruptcy cases with 81.6 percent in the first year. Also, enforcements are solved quickly, 60.3 percent in the first year. Also, rare non-contentious civil claims and registry procedures are solved quickly. Among the most numerous civil cases, the majority of them relate to delivered, but unpaid goods or to performed, but unpaid services. Cases due to non-payment make up even 50 percent of the total number of all cases in commercial courts. Priority is given to cases which are prescribed as urgent under the law. These are bankruptcy procedures (which are not civil procedure), enforcement procedures and different measures of insurance. The solving of these priority cases takes up to 30 percent of the capacities of commercial courts. Simultaneously, it is also tried to speed up the solving of cases older than ten years or cases whose proceedings are lasting longer than ten years.

www.liderpress.hr | Lider, 20.08.2008.

Send to a friend
Archive >>>
 
 

Our donors

become a donor >>>

Calendar

Do you like our new WEB site?