In a television interview one Croatian Commercial Court judge Mislav Kolakušić announced his plans to stand as a candidate in the upcoming European Elections. The statement raised the question whether Kolakušić, being an active judge, has the right to do so.
We examined national and EU laws and regulations on political participation of judges which could apply to this situation. Even though we found it is true that a Croatian judge can stand as a candidate at the European Elections, what we also discovered are serious contradictions which are yet to unravel.
On the 3rd of March a Commercial court judge Mislav Kolakušić made an appearance in one of Croatia’s most watched TV programmes on Croatian public television, an hour-long political talk show called “Nedjeljom u 2” where he announced he will be standing as a candidate in the upcoming European Elections. In the interview, Kolakušić said: “The Republic of Croatia European Parliamentary Elections Act enables judges, state attorneys, ombudsman and all other state officials to stand as candidates in the European elections (…).
So, of course that is in contradiction with what everybody is saying, because no high state official in Croatia ever reads any laws.” Kolakušić is previously known to Croatian public for his many public appearances, mostly connected to his anti-corruption campaign and initiative called Anticorruption, Given that judge Kolakušić is convinced that he has a right to stand as candidate although he is a judge, we decided to fact check national and EU laws to determine whether he was right.
In his statement, Kolakušić is referring to The Republic of Croatia European Parliamentary Elections Act, Article 10.NN 23/13 which says that “The duty of member of the European Parliament shall not be simultaneously compatible with the position of: (…) a judge” along with many other public positions. It is clearly stated in this article that anyone from the mentioned categories is eligible to run for membership in EU parliament, but that their primary duty “shall cease as at the date of commencement of their term in the European Parliament.” Therefore, according to this, what Kolakušić said is true.
However, in one Croatian national law, in the Judiciary Act, Article 90.NN 28/13 says that “A judge must not be a member of a political party, nor be involved in political activity.” So based on this, he shouldn’t be running for any parliament, no matter if he is a party or independent candidate. Also, Article 91 of the same law says that “A judge must not use his/her judicial position or dignity in pursuance of his/her rights.” It remains dubious whether Kolakušić used his judicial dignity and recognition to support the announcement of his candidacy for European Parliament elections, but also when he launched the mentioned “Anticorruption” campaign in October 2018.
The question that should now be asked is which of these two laws has the “final verdict” for this judge. Kolakušić stated that if he was elected in EU parliament he would resign at his judicial position, according to the European Parliamentary Elections Act. According to the principle of primacy of European Union law, in case of contradiction between national an EU laws, the latter prevails.
Although the EU law has the principle of primacy regarding EU elections, the Croatian law still applies to Croatia and its courts. That is why it is important to examine the consequences of judge Kolakušić’s candidacy within the Croatian law system. The Judiciary Act does not specify what “political activity” means, but Mr Damir Kontrec, vice president of the National Election Commission and president of the Croatian Judges Association, said for Faktograf.hr that any kind of behaviour that targets voters’ opinions on upcoming European elections, is indeed political activity and is strictly prohibited for Croatian judges.
We examined the Report on Judicial Ethics by the European Network of Councils for the Judiciary that says: “In politics, the judge, like any citizen, has the right to have a political opinion. In his reserve, he should simply keep to the judiciary a character such that the individual can have confidence in him, without worrying about the opinions of the judge. A judge cannot behave as an active agent of a political party.” That being said, along with The Republic of Croatia European Parliamentary Elections Act, any judge has the possibility to be on an electoral list, but he/she cannot publicly act as an active representative of the party.
This means that any judge has the right to stand as a candidate in EU elections, but his political promotion and campaign cannot be carried out by him. Someone else should promote his opinions and ideas, while he remains quiet and uninvolved the whole time. Although this is odd, it is the only way this candidacy can be carried out without violating any laws.
To conclude, while standing as a candidate at 2019 European Elections is indeed judge Kolakušić’s right, being involved in any kind of pre-election campaign violates Croatian law. It is quite bizarre and uncommon for someone who is a judge and represents the court itself to be violating the Judiciary Act in this manner. The institution that is in charge of dealing with this situation is National Judicial Council. Since official candidacy lists have not yet been published, it is too early to say how the institutions will react, but it is within their power to start disciplinary proceeding. Once the official candidacy lists are published, the National Election Commission will be determining if all candidates have the lawful right to be on the list.
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RESEARCH | ARTICLE © Lucija Marcec and Emilio Marinovic, University of Zagreb, HR
