Original scientific paper

https://doi.org/10.32984/gapzh.13.1.1

The Rule of Law and Judicial Secrecy

Ivan Padjen orcid.org/0000-0001-7606-2337 ; University of Zagreb, University of Rijeka, Zagreb, Rijeka, Croatia

Abstract

The paper discusses the problem of secrecy of the Croatian judiciary, most notably inaccessibility of first instance judicial decisions which is incompatible with the rule of law. A reason why the decisions are published sporadically and incompletely is the reasoning that has been stated plainly in a Croatian judgment. Its gist is that a judicial decision is an act of the will of the state power rather than of good reasons; hence it may be of interest to those whose rights and duties it does not affect only if the decision is rendered by the supreme court or at least a high court of justice. The reasoning may seem to be in accord with Kant’s dictum that there is no rule on how to follow a rule so that legal reasoning is a matter of talent and exercise. Contrary to that line of reasoning the paper argues that the logic of social - including legal - inquiry, is primarily traductive, i.e. a simili, a contrario and a fortiori, and results in knowledge that is probable rather than certain but in most cases nonetheless sufficient. To the extent the argument is that valid judicial reasoning can be binding only if it is in accord with a balanced public opinion. It is balanced in that it respects reasons given by judges but scrutinizes them in the light of criticism provided by other lawyers, including legal scholars. And it can be balanced only if non-lawyers as well as lawyers have free access to all the judicial decisions, most notably the first instance decisions, which dissect minutely points of fact as well as of law. The closing remarks of the paper reveal that common reasons to withhold the publication of first instance judicial decisions are neither legal nor technical. The reasons are political. They benefit judges and public prosecutors, agencies that appoint them and, most of all, public bodies that burden the Croatian judiciary by their disputes, which can and should be settled out of courts.

Keywords

unavailability of first instance judgments, a judgment as an act of the will, traductive reasoning about the social, adjudication as public reasoning, politics of judicial secrecy

Hrčak ID:

285381

URI

https://hrcak.srce.hr/285381

Publication date:

9.11.2022.

Article data in other languages: croatian

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