In his column Bogoslav ®ulek, a prominent 19^th century journalist, vividly portrayed the atmosphere in Croatia at the time of the first jury trial in Zagreb in 1850. Is lay participation in Croatia still perceived in such glamorous terms ? This paper analyzes Croatian mixed tribunals (a form of lay participation utilized in Croatian courtrooms for over five decades) in which professional and lay judges hear and decide legal cases jointly, and examines the opinions expressed by Croatian lay judges, professional judges, state attorneys, and defense attorneys about Croatian mixed tribunals.

Croats have been living in southeastern Europe for more than thirteen centuries. History has witnessed an independent Croatian Kingdom and a union with Hungary and Austria. The Mediterranean parts of Croatia were periodically ruled by Italy. Following the collapse of the Austro-Hungarian Monarchy in 1918, Croatia became part of the Kingdom of Serbs, Croats, and Slovenians (subsequently renamed the Kingdom of Yugoslavia). After World War II, Croatia became a socialist republic within the newly formed communist-dominated Yugoslav federation. In the midst of the recent war in Croatia, the Republic of Croatia was recognized as an independent and sovereign country by 1992.

Croatia is currently in transition toward a democratic society and market economy. Croatia features a small open economy, i.e., its economy is characterized by an internal market, a high share of trade in gross domestic product, a limited share in world trade, and little influence on world prices. [3] The economy and infrastructure of Croatia were among the most advanced in Eastern Europe when communism collapsed in the late 1980s. However, the events in the early 1990s, culminating in the war in Croatia (and soon thereafter in Bosnia and Herzegovina) and Croatia’s subsequent independence from Yugoslavia, changed the economic landscape. The countries of the former Yugoslav federation virtually disappeared from the list of Croatia’s major trading partners (with the exception of a moderate presence of Slovenia and Bosnia and Herzegovina).

Furthermore, the war brought considerable destruction to Croatia’s infrastructure, triggered a major refugee crisis and loss of life and property, virtually annihilated the tourism industry in Croatia for several years, and created high unemployment. [4] Interestingly, although the per capita gross domestic product in Croatia sharply decreased from $5,106 in 1990 to $2,079 in 1992, after which it increased to $3,786 in 1995, [5] tight monetary policy was successful in controlling inflation and keeping it at relatively low levels. [6]

The Croatian state is a multiparty parliamentary democracy. Although there were 40 officially registered political parties in Croatia by the end of 1993, [7] the Croatian Democratic Union controls the vast majority of the seats. Despite the recent war, the political situation in the country remained relatively stable since the first multiparty elections in 1990. The coming elections (to be held most likely in early 2000), however, may introduce substantial changes to the present political landscape.

Jurisdiction of district courts extends in the first instance to criminal cases for which the punishment prescribed in the Criminal Procedure Law does not exceed ten years of imprisonment, civil cases, inheritance cases, and labor disputes. [11] These courts also execute verdicts and perform a number of other administrative functions, such as those of a land-registry office.

Regional courts also try criminal cases in the first instance, but only for the offenses for which the prescribed punishment exceeds ten years of imprisonment. In addition, they have a special section that conducts investigations in criminal cases. Regional courts also have an appellate jurisdiction over the criminal cases and civil cases tried by district courts. [12]

The struggle between the Croatian citizens, who wanted to be tried by their fellow citizens, and the absolutist regimes that tried to suppress that desire by appointing professional judges loyal to the regime continued; the jury was again legitimized by the Criminal Procedure Law Concerning Printing Offenses for the Kingdoms of Croatia and Slavonia in 1875, but this law was destined to remain a dead letter on paper, and was never applied in the courtrooms. [15] The jury was “temporarily postponed for three years” in 1884, never to be reintroduced. [16] Interestingly, the Parliamentary Judicial Committee suggested the suspension of the jury system; it argued that, because of the jurors’ subjectivity and dependence, state attorneys were unable to obtain convictions by juries except in the most extreme cases, in which the violation of the law was obvious and the identity of the offender was known. [17]

Before the formation of socialist Yugoslavia in 1945, lay participation was more the exception than the rule. Following the USSR and Marxist ideology regarding the decomposition of the state and the transfer of the state functions to the people, socialist regimes created under the auspices of the USSR after World War II tended to see lay participation as one of the ways the decomposition of the state was to be carried out. Socialist Yugoslavia was no exception to the rule; lay participants – lay judges in mixed tribunals – were a part of the criminal process from the very beginning of its statehood.

Mixed tribunals were first introduced in Croatia in 1944, even before World War II ended, by the National Anti-Fascist Council of the People’s Liberation of Croatia. [18] The advocates of lay participation argued that the introduction of lay judges (called “temporary judges” at the time) increased the democratic character of the new criminal justice system. [19]

Newly formed mixed tribunals consisted of three members : one presiding permanent judge and two temporary judges. [20] Temporary judges could be either female or male citizens of age who were “viceless.” They were elected by the people or by the representatives of the people. Because of the lack of judges trained in law in some liberated territories, a result of the war that was still in progress, the legislature did not require presiding judges to be lawyers but rather to consider their occupation as judges as their full-time occupation. Interestingly, the majority of the permanent judges were lawyers; only 14% of them were not lawyers in August 1946. [21] Gradually, the law started to require that mixed tribunals be composed of professional judges (lawyers) and lay judges. Over the next decade, mixed tribunals have been introduced as decision-makers in all serious criminal cases.

Mixed tribunals have not always been protectors of democracy. The political system of 1946 was established as the centralized system of state government [22] and it was a period of an intensive building of the state, the legal system, and society in general. The judiciary played a role in the removal of political opponents from social life and the political scene. Lampe describes these processes in the subsequent period (1946-1947):

... Communist control of the judicial system made political opposition riskier than it had ever been in the first Yugoslavia [pre-World War II Yugoslavia] ... the UDBa [State Security Administration] exercised unrestricted powers to arrest, imprison, and even execute political opponents without public charges or trials ... Rough estimates vary, but the numbers of people the UDBa executed in 1946-1947 probably run to five figures and those held in concentration camps at least to six ... Convictions from the new network of people’s courts, judges, and public prosecutors (the latter specifically created to root out political opposition) added to the camp population. The system worked without regard to due process or defendant’s rights, in the fashion of the military courts that continued to operate after the war. When Agrarian Party leader Dragoljub Jovanovi complained that the new Communist prosecutors had become ‘the all-powerful organs of the judiciary’, he only hastened his own arrest and nine-year sentence in April 1947. His judge doubtless met the ‘fundamental moral qualifications’, which the party’s chief prosecutor at the Mihailovi trial, Milo© Mini , explained as ‘infinite loyalty’ regardless of prior legal training. [23]

The statute that applied at the time this study was conducted (1993) was the Regular Courts Law (1988). This statute specified the eligibility requirements for lay judges, the election and dismissal process, and the lay judges’ rights and duties. Any citizen of age (18 years) who was “able and worthy” to perform the lay judges’ duty by his/her “personal and working characteristics” could be a lay judge. The election process of lay judges was initiated by the president of a particular court, [24] who suggested to the parliament of that district/region the number of lay judges to be elected. The parliament of that political unit then conducted the election process. During the process, professional judges from the respective court gave their opinion about the candidates. [25] The parliament’s final selection of candidates was then distributed to the potential lay judges and to the court.

Once elected for a four-year mandate, a lay judge was not guaranteed to remain in service for the whole period, and could have been dismissed. The reasons for dismissal from duty were threefold : reasons related to the election process (e.g., the requirements for lay judges were not fulfilled when the election was held); reasons related to the inability to perform their duty (e.g., lay judges requested to be dismissed from duty, a lay judge had not performed duty at all or performed the duty irregularly without acceptable reasons for such a performance, or a lay judge was sentenced to imprisonment of 6 months or more); and reasons related to misuses of the position (e.g., a lay judge overextended the legal limits, damaged the reputation of the court).

Although the law provided that in the instances in which a lay judge did not perform the duty at all or performed it irregularly, the lay judge should be dismissed from duty, it seems that this rarely happened in practice. The results of a few studies [26] suggested that, although a number of lay judges indeed did not respond to the court’s mail and did not participate in trials at all or participated only infrequently, [27] the process of dismissing such lay judges from duty had never been initiated. When faced with this problem, the courts relied on the lay judges who did respond; they formed a pool of “reserve” lay judges. If the originally scheduled lay judges did not appear at the court, those reserve lay judges would assume their positions in the tribunals. Although this practical solution helped courts maintain their caseloads without unnecessary delays, it contradicted the idea of involving as many citizens as possible in the criminal justice system. The courts realized that the persons who would be most likely to volunteer were either retired persons or persons who lived close to the court building.

What were the consequences of the practice of not dismissing lay judges who did not respond to the courts’ mail ? Usually, the immediate consequence was that either the court session was postponed and the duration of the process was thereby increased, or that the principle of oral presentation of evidence in front of the decision-makers had been violated by reading the transcripts of earlier testimonies. Furthermore, according to Baji-Petrovi , one of the long-term consequences was the selective re-election of only those lay judges who responded to the courts’ mail. Such behavior might have influenced the atmosphere in the courtroom by making the presiding professional judge less positive and sensitive toward the opinion of lay judges. In other words, the irresponsible behavior of absentee lay judges might have had serious consequences on the interaction in the tribunal. [28]

The Criminal Procedure Law (1993) provides that, depending on the type of the sanction to be imposed, the decision-maker in the regular criminal trial for adult offenders at the first instance may be either a mixed tribunal or a professional judge. When the sanction to be imposed is a fine or imprisonment of less than one year, [29] a professional judge alone hears and decides such cases. When the sanction to be imposed is more serious, the case will be tried by a mixed tribunal. Unlike the situation in the United States, in which defendants may choose to waive their right to a jury trial, in Croatia the defendant may not choose between a trial by a professional judge alone or a trial by a mixed tribunal.

Size and composition of the mixed tribunal changes depending on the seriousness of the offense. Offenses for which the maximum sanction is between one and fifteen years of imprisonment are tried by a “small tribunal” composed of one professional and two lay judges. Offenses for which the maximum sanction exceeds fifteen years of imprisonment are tried by a “large tribunal” composed of two professional and three lay judges. [30] Criminal cases that reached instances above the first instance (appeal, extraordinary legal redress) are decided by professional tribunals only. [31]

In general terms, the functions of both professional judges and lay judges are public, and, therefore, subject to legal rules. [32] All the rules concerning the rights and duties of professional judges apply to lay judges as well, unless otherwise stated. [33] Both categories of judges have the duty of protecting the legal system and the law, and upholding the reputation of the court. They have immunity from being prosecuted for a vote and/or statement given during trial and/or deliberation. [34]

Lay judges and professional judges are equals during trial and deliberation; [35] their votes have the same power, so two lay judges in a small tribunal can outvote a professional judge, and, similarly, three lay judges in a large tribunal can outvote two professional judges. Although lay judges have the same decisionmaking power as professional judges, the Croatian Criminal Procedure Law (1993) assigns additional rights and responsibilities (e.g., maintaining order in the courtroom or allowing the parties to speak) to the presiding judges, who may be only professional judges. The Croatian criminal process is a typical mixed criminal procedure. Consequently, it features elements of both inquisitorial and adversary criminal procedure.

Mixed tribunals, a form of lay participation introduced in pursuit of communist ideology in 1944, were retained virtually without any changes as an integral part of the new Croatian legal system after the communist regime was abolished in 1990. Specifically, at the beginning of 1994, the territorial organization within the country changed, as did the court system, [36] but there were no major changes that pertained to mixed tribunals.

According to the new Courts Law (1994), every Croatian citizen who is 18 years of age and is worthy of carrying out the lay judge’s duty may be elected as a lay judge. [37] The election process was altered significantly. Lay judges at district, commerce, and regional courts are now elected by the provincial parliament, based on the suggestions made by the district tribunal, the union, the employers’ associations, and the chambers of commerce. [38] Lay judges at all other courts are elected by the House of Representatives of the Croatian Parliament on the basis of the suggestions made by the Minister of Justice. [39] In a manner similar to that from the Regular Courts Law (1988), the respective court has an opportunity to evaluate the potential lay judges before reaching the final decision. However, as a result of the changes introduced in 1994, this evaluation is no longer carried out by all professional judges at the court, but rather by the president of the court. The length of mandate continued to be set at four years, with the possibility of reelection.

The new Criminal Procedure Law (1998) passed after this empirical study had been conducted, establishes that the offenses for which the maximum penalty is either fine or imprisonment for up to three years are to be tried at district courts by a professional judge alone, and the offenses for which the maximum punishment is between three and ten years of imprisonment are to be tried at district courts by a mixed tribunal composed of one professional judge and two lay judges. [40] Similarly, the offenses for which the maximum punishment is between ten and fifteen years of imprisonment are to be tried at regional courts by a mixed tribunal composed of one professional judge and two lay judges, while the offenses for which the maximum punishment is fifteen years of imprisonment are to be tried at regional courts by a mixed tribunal composed of two professional judges and three lay judges. [41]

The new Criminal Code of 1998 introduced a new penalty for particularly serious felonies – long-term imprisonment of 20-40 years (the previous maximum penalty was 20 years of imprisonment). Such offenses are to be tried at regional courts by a mixed tribunal composed of three professional judges and four lay judges. [42]

Decisions on appeal, unless they require a trial session, are decided by professional tribunals. [43] The size of the professional tribunal varies from three professional judges for the least serious offenses to seven professional judges for the most serious offenses. If the case on appeal requires a trial session (hearing), the tribunal is composed of professional judges and lay judges. The number and the composition of the tribunal depend on the seriousness of punishment and vary from a five-member tribunal for the least serious cases at regional courts (two professional judges and three lay judges; [44] to a seven-member tribunal for the most serious cases at the Supreme Court (three professional judges and four lay judges. [45] All the cases that reach the third instance (extraordinary legal redress) are decided by professional tribunals. The size of the professional tribunal at the Supreme Court varies from three for the least serious cases to seven for the most serious cases. [46] The other rules dealing with the work of the tribunals remained very similar to the rules of the Criminal Procedure Law of 1993.

Juvenile criminal procedure was previously a part of the Criminal Procedure Law; in 1998 a separate criminal procedure was established for juvenile offenders. [47] Similar to the earlier statutes, the new Juvenile Courts Law (1998) requires that lay judges selected to decide juvenile cases must have special qualifications and skills. They are elected from the ranks of professors, teachers, and others who possess experience with the education of juveniles. [48] Furthermore, § 57 of the Law requires lay members of the mixed tribunal to be of different gender.

Unlike the mixed tribunals for adult offenders, the size of which depends on the seriousness of the offense, mixed tribunals for juveniles are always composed of one professional judge and two lay judges, [49] unless the trial session is conducted by the appellate tribunal, in which case the tribunal consists of two professional judges and three lay judges. [50] It is noteworthy that none of the cases involving juveniles are tried by a single professional judge; a mixed tribunal is in charge of all juvenile cases.

The Juvenile Courts Law (1998) also regulates trials of younger adult offenders (ages 18 through 21), as well as trials for crimes in which the victims are children (these crimes are listed in §117). Younger adult offenders indicted for crimes for which the punishment is up to fifteen years of imprisonment are tried by mixed tribunals composed of one professional judge and two lay judges. If the punishment exceeds fifteen years of imprisonment or if the crimes victimized children, the tribunals are composed of two professional judges and three lay judges. [51]

The professional judge instructs the defendant about his/her rights during the trial (e.g., the right to ask questions of the co-defendants, witnesses, and expert witnesses), upon where the trial officially starts with the act of reading the charges to the defendant. [54] The next step in the trial is the questioning of the defendant.

One of the key roles the presiding judge performs during the trial is the examination of the defendant(s), witnesses, and expert witnesses; the presiding judge also allows other members of the tribunal speak. [55] Although lay judges have the right to ask questions of the defendants, witnesses, and expert witnesses directly and without the approval of the presiding professional judge, having a presiding judge who is intimately familiar with procedural rules, who conducts the trial, and who asks questions before lay judges are given an opportunity to do so, may place lay judges in an uncomfortable position. The presiding judge may provide opportunities for lay judges (and, if applicable, another professional judge) to participate in the trial by inviting them to ask questions of the defendant(s), witnesses, and expert witnesses. However, the presiding judge has no procedural duty to invite other members of the tribunal to ask questions.

On the other hand, the presiding judge has the duty to allow other members of the tribunal to ask the defendant(s), witnesses, and expert witnesses questions directly, after the presiding judge has completed his/her own examination. In a manner that reflects these procedural rules, the examination conducted by the presiding judge is called the fundamental examination, and the examination conducted by lay judges, the second professional judge (if applicable), and all other parties listed in § 318 of the Criminal Procedure Law (1993), that is, the prosecutor, the defense attorney, the victim, the legal guardian, the legal representative, co-defendant(s), and expert witnesses, is called the supplementary examination. However, the rule does provide the presiding professional judge with the opportunity to allow other members of the tribunal to ask questions if they indicate that they have questions before the presiding judge is done with his/her examination.

The general order of trial is determined by the Criminal Procedure Law (1993), but it may be changed if the circumstances, specified in the statute, so require. [56] The defendant is asked whether he/she understands the charges; if the defendant answers in the negative, the presiding judge has the responsibility to explain the charges to the defendant in a way that will be understandable to the defendant. [57] The defendant is then given the opportunity to present his/her defense. [58]

The trial proceeds with the examination of witnesses and expert witnesses and the presentation of other evidence. [59] The tribunal determines the evidence to be presented and witnesses and expert witnesses to be questioned. Subsequently, the tribunal asks questions of the witnesses and expert witnesses. The presiding judge determines the order in which the evidence is to be presented. [60]

After the examination of evidence is completed, the parties (the public prosecutor, the private prosecutor, the defense attorney, and the defendant) give their respective closing statements and the tribunal determines that the trial is over. [61] The parties then leave the courtroom and the tribunal begins with the deliberation. [62]

According to the Criminal Procedure Law (1993), the next part of the process consists of deliberation and voting. Deliberation is regarded as a discussion with the purpose of clarifying important issues in the case and reaching an agreement among the tribunal members with respect to the resolution of the case. [63] On the other hand, voting is considered to be the announcement of the verdict preferences by each tribunal member. [64]

The presiding judge directs deliberation and voting and has the responsibility of ensuring that the tribunal discusses all the issues comprehensively and thoroughly. [65] The Criminal Procedure Law (1993) does not regulate the order in which the discussion during deliberation takes place.

Decisions are made after oral discussion and voting. [66] The vote of each member carries the same weight, regardless of whether the member is a lay judge or a professional judge. The presiding judge votes last. [67] A majority vote suffices for a valid decision. [68] This rule provides an opportunity for lay judges, who outnumber the professional judge(s) in both small and large tribunals, to outvote the professional judge(s).

Almost all of the respondents from the Criminal Division of the Supreme Court have been judges for at least ten years (90%). The majority (60%) had been judges for at least 20 years; 70% had been judges at the Supreme Court between one and five years. Ninety percent had tried criminal cases. Sixty percent were male; sixty percent were married.

The majority (60%) of professional judges at district and regional courts were experienced judges – they had been judges for over ten years. Furthermore, the majority of them (75%) were experienced in trials with mixed tribunals – they had decided more than 200 cases in mixed tribunals. Interestingly, although experienced as judges, the respondents were young on average; over 60% of the respondents were below 40 years of age. Slightly more than one-half of all professional judges were women (54%), and 64% were married.

The lay judges were experienced; only 14% had been lay judges for less than a year, whereas the majority had been lay judges for three years or longer (54%). Lay judges from district courts decided both civil and criminal cases (for three out of four lay judges from district courts, criminal cases constituted less than one-half of all the cases they decided), while lay judges from regional courts primarily decided criminal cases. One quarter of lay judges did not have a highschool diploma, 41% reported that the highest level of their education was graduation from high school, and one-third reported that they had graduated from college or community college. Only one-third of all lay judges were women, 76% were married, and 12% were below 40 years of age.

The majority of private and state attorneys were experienced as well – they had been employed as state or private attorneys for five years or longer (65% of private attorneys and 71% of state attorneys). For the majority of the respondents, experience with mixed tribunals was gathered exclusively from the observers’ bench, since they have never tried criminal cases in the capacity of a professional judge (80% of private attorneys and 84% of state attorneys). Approximately threequarters of state and private attorneys were married (70% and 75%, respectively). Differences with respect to gender were pronounced : while the majority of state attorneys in the study were women (55%), only one out of five private attorneys was a woman (18%). Less than one-half of state and private attorneys were below 40 years of age (47% and 43%, respectively).

The data for this study were collected by means of detailed questionnaires that examined the respondents’ perceptions about their own activity during trials and deliberations (for lay judges) or lay judges’ activity (for professional judges, state and private attorneys). The questionnaires were distributed to professional judges and lay judges at the courts, to state attorneys in their offices, and to private attorneys either in their offices or in their mailboxes in the court building.

Each questionnaire contained approximately 60 items and had several sections. The first section explored how members of the tribunal evaluated their own behavior and behavior of other members during trials. The second section dealt with perceptions about the lay judges’ ability to understand and evaluate evidence and legal issues. The third section focused on behavior during deliberation. The fourth section examined disagreements during deliberation. Finally, the fifth section dealt with general opinions about mixed tribunals. In addition, a number of questions inquired about the respondents’ demographic characteristics.

The type of experience turned out to be important. Differences in opinions expressed by the respondents from district courts/offices and by the respondents from regional courts/offices suggested that the seriousness of the cases and the experience of participation in large tribunals may have resulted in more positive opinions. Both professional judges and state attorneys from regional courts/offices evaluated lay judges’ questions as more important than their counterparts from district courts/offices did.

In summary, although based mostly on perceptions about lay judges’ activity during trial, the picture about the opportunities lay judges were given to participate and their actual participation (painted by lay judges themselves, as well as by professional judges, state and private attorneys) is relatively uniform among respondents from the same type of court/office. The description of lay judges’ actual activity during trial is very similar across both types of courts : regardless of the frequency with which professional judges invited lay judges to ask questions, lay judges asked questions relatively infrequently. Moreover, lawyers (professional judges, state and private attorneys) generally regarded lay judges’ comments as unimportant.

Another measure of lay judges’ contribution to deliberation was the frequency of disagreements between lay judges and professional judges. Professional judges and lay judges agreed that disagreements were not very frequent; they occurred in “a few cases” or “never”. [74] Furthermore, lay judges were perceived both by professional judges and by the lay judges themselves to influence the final decision by outvoting professional judges very rarely. [75]

The lay judges thought that professional judges had a better opinion about the importance of their comments than professional judges reportedly did. [76] It is quite possible that the lay judges’ conclusion was based on verbal and nonverbal cues given by professional judges. Indeed, when the lay judges perceived that professional judges had treated them with dignity and courtesy, they were more likely to feel that their comments were important. [77]

In summary, professional judges evaluated lay judges’ comments as neither very frequent nor important. Lay judges, whose frequency and importance of comments were inquired about, were likely to report that they participated more frequently and that their comments were perceived as more important than professional judges gave them credit for. Overall, although professional judges and lay judges disagreed about the frequency, importance, and content of lay judges’ comments, they wholeheartedly agreed that disagreements between professional judges and lay judges were rare and that lay judges outvoted professional judges very rarely.

Lay judges were much more enthusiastic about the mixed tribunals than any group of respondents with a legal background; [80] over 85% of lay judges had positive opinions, as opposed to slightly over 50% of professional judges (53%) or state attorneys (51%). Surprisingly, the majority of private attorneys (78%) had much more positive opinions than the majority of state attorneys and professional judges.

The type of court/office was important; professional judges and state attorneys from regional courts/offices had much better opinions than professional judges and state attorneys from the district courts/offices. [81] Since professional judges and state attorneys who work at district/regional courts/offices attended the same law schools and practiced at the same type of courts/offices, the differences in their opinions were probably due to the actual experience they had with trials by mixed tribunals. It seems that regional courts contribute toward a more positive atmosphere for trials by mixed tribunals and toward more positive opinions about mixed tribunals in general. The reasons that may explain such differences include experience with both “small tribunals” and “large tribunals” (larger size of the tribunal itself, presence of another professional judge who is not a presiding professional judge in the tribunal, and seriousness of the cases).

Did the respondents’ general opinion about mixed tribunals change as a result of their experience ? Respondents were asked to compare their opinion at the beginning of their mandate to the opinion they had at the time when the study was conducted. [82] A very small percentage of respondents within each group reported that experience in trials by mixed tribunals actually improved their opinion. [83] Professional judges were more likely to say that their opinions became more negative as a result of their experience with trials by mixed tribunals than state and private attorneys, who reported that their opinions remained unchanged. [84] The expressed negative opinion about mixed tribunals might be a result of the respondents’ negative experiences with trials by mixed tribunals. Since the reported change in opinion of all the groups of respondents with different roles in the criminal justice system (professional judges, state and private attorneys) was not identical, it is important to explore what type of experience contributed to the change. Since state and private attorneys were present only during trials (and are not allowed to be present during deliberations) and their opinions were less likely to change and become more negative, the experience of deliberations by mixed tribunals seems to be a probable factor that steered the professional judges’ opinion toward making it less positive.

A few respondents elaborated and explained their general opinions. An attorney from Zagreb remarked on the questionnaire : [85]

Another attorney from Zagreb agreed with an ex-judge who called lay judges “left and right pests.” Respondents who discussed the reasons for their general opinions mostly focused on the issue of lay judges’ competence to understand legal issues and to evaluate evidence. One of the district state attorneys from Zagreb was concerned about lay judges’ competence in general. He wrote :

The professional judge (educated, well paid, interested, ambitious, serious, conscientious, unburdened...) is the only one competent to decide about the future of a criminal case. In mixed tribunals, the professional judge de facto tries the cases, signs, and is responsible for the verdicts. Current lay judges either do not at all influence the decision or influence the decision insignificantly. There is no use keeping this current system. [86]

It seems that professional judges, and state and private attorneys tended to evaluate mixed tribunals not only based on their theoretical opinion about mixed tribunals, but also on their actual experience with them; at the same time, they tended to evaluate the actual experience based on their general opinions. In other words, their opinions about mixed tribunals in general and their opinions on specific issues were related; the respondents who had a more positive opinion in general were more likely to have a more positive opinion about any of the specific issues, and, at the same time, the perceptions of each separate issue probably influenced their general opinions by reinforcing/weakening them. Therefore, it is not surprising that professional judges, state attorneys, and attorneys who had less favorable opinions about mixed tribunals in general were more likely to say that lay judges never asked questions; [87] that the questions asked by lay judges were of lesser importance; [88] that lay judges made comments less frequently; [89] that lay judges’ comments were of lesser importance; [90] that lay judges were generally not able to understand the evidence; [91] and that lay judges were generally not able to understand the legal issues [92] than professional judges, state and private attorneys who had more positive opinions about mixed tribunals in general.

The respondents did not think about mixed tribunals in “black and white” terms; a large percentage of respondents perceived trials by mixed tribunals as having both positive and negative features. Almost all of the respondents, above 95%, perceived that trials by mixed tribunals had serious disadvantages when compared to trials by a professional judge alone. [95]

Interestingly, lay judges and all three groups of lawyers (professional judges, state and private attorneys) selected the same answer most frequently; the major problem with trials with mixed tribunals, when compared to trials by a professional judge alone, was lay judges’ potential (in)competence to understand and evaluate the evidence (“lay judges are less able than professional judges to understand the evidence and to weigh the evidence properly.” [96]

Among the other frequently selected criticisms of trials by mixed tribunals was the lay persons’ perceived inability to understand and apply the law. [97] Finally, the third frequently selected criticism of lay participation was that lay judges’ decisions were based on bias and prejudice.

Since lawyers (professional judges, state and private attorneys) in general had less positive opinions about mixed tribunals than lay judges did, the expectation was that lawyers would be more likely to suggest drastic changes. [98] Indeed, at least seven out of ten lawyers were not very merciful toward mixed tribunals; they suggested that mixed tribunals should be either changed drastically or abolished altogether, while the majority of lay judges (55%) suggested that the system of mixed tribunals should not be changed or should be changed only slightly. [99]

How can such differences in the opinions between lawyers and lay judges be explained ? One would expect that the respondents’ diverse opinions about the system of mixed tribunals in general would influence their suggestions about future changes to mixed tribunals. Not surprisingly, the results show that the respondents who had a more favorable general opinion about the system of mixed tribunals were more likely to suggest that the system of mixed tribunals should remain the same or be changed only slightly. [100] Lay judges were more likely to have positive opinions about mixed tribunals in general; consequently, they were less likely to suggest drastic changes.

An even more interesting question is how would the respondents change or improve the existing system of mixed tribunals ? [101] Interestingly, both professional judges and lay judges most frequently considered “short seminars about criminal law and procedure” as the most important improvement to the system of mixed tribunals. [102] It seems that the members of mixed tribunals thought that lay judges’ lack of legal education made deliberation and the decision-making process itself more difficult or more complicated. [103]

Introduction of a short seminar would not mean that lay judges would acquire legal knowledge comparable to that possessed by professional judges (just like lay magistrates in England do not become stipendiary justices simply because they are required to take an obligatory course, a part of which focused on a number of procedural issues). Presiding professional judges in mixed tribunals would still continue to be responsible for all the procedural issues. However, professional judges would benefit by spending less time introducing the basic legal concepts to lay judges, and, consequently, by having more time to discuss legal issues and facts.

Some respondents suggested an increase in lay judges’ educational level in general, not only the level of legal knowledge. One of the attorneys from Zagreb used this lack of general education and legal education to support his negative opinion about mixed tribunals :

Lay judges most frequently do not have the most elementary level of knowledge to decide about a particular case, neither legal knowledge, nor education in general.... Furthermore, I think that they are not even familiar with their rights and duties, and they cannot stand up to the professional judge. I see them as absolutely unimportant for the course of trial and the decision. [104]

State attorneys and attorneys, as well as some professional judges, most frequently emphasized that the most important improvement to the existing system of mixed tribunals would be the use of blue-ribbon lay judges (“selection of lay judges who are professionals in certain fields [economists for fraud cases, for example]”). Lawyers emphasized very frequently that they would like to work with lay judges who were professionals in certain fields, and whose specialized knowledge would help the tribunal to resolve the case. One of the professional judges from district courts in the Bjelovar Region suggested detailed changes in this direction :

Mixed tribunals are a positive feature of our legal system, but it is necessary to elect lay judges more selectively, and to dispatch them to tribunals depending on their education and occupation. For example,

Some of the lay judges agreed with this approach. One lay judge wrote, “lay judges in mixed tribunals that decide cases of white-collar crime should know the organization and the internal workings of the economy.”

Why would the respondents want to introduce “specialist” lay judges ? Lay judges who are specialists in certain areas would help the professional judge by clarifying issues in the areas which are not the professional judge’s specialty. “Specialist” lay judges would complement the professional judge in the process of legal decision-making, but the content of their contribution would be different from that which is provided by “regular” lay judges. “Regular” lay judges bring community values, while “specialist” lay judges, such as lay judges in juvenile tribunals, are expected primarily to bring their specialized knowledge. “Specialist” lay judges would shift mixed tribunals considerably toward becoming professional tribunals. Such a change would be very drastic, and the whole concept of lay participation would be limited to only a small section of the population.

Unlike lawyers, lay judges also frequently reported “more thorough explanations given by the professional judge to the mixed tribunals about the evidence in the case” as the most important improvement. It seems that these lay judges perceived professional judges to be either more experienced or better able to evaluate evidence, or perhaps even more confident in their evidenceevaluation skills than lay judges. This help from professional judges would help them proceed throughout an unfamiliar process of decision-making and help them in the process of evaluation of evidence.

Finally, some of the respondents suggested that the selection process should be changed. Comments about the selection process can be grouped in relationship to those dealing with the selection process itself and those dealing with the underrepresentation/overrepresentation of a certain demographic group of lay judges. When the respondents discussed the selection process itself, they frequently mentioned that this process should be organized in a manner that would eliminate the possibility of selecting lay judges who are not genuinely interested in participating in the criminal justice system and would thus not provide an active contribution. Selection of younger and more educated lay judges was among the most frequently mentioned changes the respondents would like to see implemented.

The results of this study suggest that lay judges were not perceived as very active during trial and deliberation, nor were their comments and questions evaluated as very important. These results are by no means surprising. Several other studies conducted in various countries across Europe paint a similar picture. For example, Kubicki and Zawadzki (1970) in the Polish study and Kulcs<r (1982) in the Hungarian study reported that two-thirds of lay judges did not ask any questions during trial; that at least one-half of all lay judges in the Hungarian study did not make comments of merit; [106] and that only one out of eleven lay judges in the Polish study read the case file. [107]

Furthermore, when lay judges’ contribution was examined on a more general scale, Kamhi and alija reported that lay judges contributed actively in onequarter of the cases, while Kubicki and Zawadzki (1970) recorded that lay judges expressed their personal views and evaluations about the cases in four out of ten cases. [108] By contrast, Krystufek reported that lay judges may have been more active; he reported that lay judges generally formed and expressed their opinions. [109]

The Croatian respondents perceived that disagreements between professional judges and lay judges were not very frequent and that lay judges outvoted the professional judge very rarely. Furthermore, almost all of the studies reported that the majority of court decisions seemed to be unanimous verdicts, sometimes up to 95%. [110] Casper and Zeisel examined the estimates of disagreement in German courtrooms (measured as initial disagreements with the professional judge) and concluded that, when all the cases were examined, lay judges affected the verdict in only 1.4% of the cases. [111]

Lay judges in this study were considerably more enthusiastic about mixed tribunals than lawyers were. Although the majority of lawyers also expressed a somewhat positive opinion about the system of mixed tribunals in general, approximately one-half of professional judges from district courts and one-third of professional judges from regional courts and the Supreme Court expressed a negative opinion about mixed tribunals. While the respondents emphasized that lay participation makes the legal process more democratic, they criticized lay judges for their problems in understanding of the evidence. Consequently, the majority of lawyers (professional judges, state and private attorneys) suggested that mixed tribunals should be changed drastically or abolished. One the other hand, the majority of lay judges suggested that the system of mixed tribunals should not be changed at all or should be changed only slightly.

On a comparative note, although the majority of lawyers (professional judges, state and private attorneys) in the Polish study [112] supported the idea of lay participation, most of them were very critical of the actual implementation of the idea (“low quality of selected lay judges”). On the other hand, lay judges presented a somewhat more idealistic image. [113] Similarly, the majority of professional judges in the study by Kamhi and alija believed that lay judges had no influence on the verdict, influenced the verdict very rarely, or, even worse, that decisions would have been more correct had lay judges not participated; consistent with their opinion about the actual system of mixed tribunals, the majority of professional judges suggested drastic changes in the work and the organization of mixed tribunals. [114]

The idea of lay participation was supported among the respondents from the Polish study because, in their opinions, lay participation brought the verdict into accord with public opinion, contributed toward the better work of professional judges, and enhanced the court’s independence. [115] Professional judges from Finland and Sweden in Klami and H≅m≅l≅inen’s study emphasized the latent function as the most important reason in support of lay judges in mixed tribunals – “the professional judge must make his reasoning understandable to them,” followed by the “evidence is evaluated by different people” and “different groups are represented,” whereas they placed very little importance on the safeguard role (“protection against majority power”). Lay judges reported that lay judges’ roles were important because “different groups are represented,” “evidence is evaluated by different people,” they provide “knowledge about local issues,” they “promote the confidence of the people,” and they represent “the principle of democracy.” [116]

In summary, the results of this study and studies conducted in other countries suggest that lay judges are not perceived as very active nor very dominant during trial and deliberation. This finding should not be surprising because presiding professional judges, although considered to be equal to lay judges, are assigned a more active role by law – they invite parties to attend the trial, direct the trial, make procedural decisions during the trial, ask questions first, and so on. In addition, because of their legal knowledge and systematic training in legal decision-making, they are perceived as more influential, leading members of the small decision-making group – the mixed tribunal. [117]

A crucial question is what the expectation of lay judges’ activity should be, that is, what reference point should be used. For example, is it realistic to expect that lay judges should ask questions after each witness testifies ? While that would serve to promote very active lay participation, it would also imply that trials would be unduly long and that presiding professional judges would often fail to fulfill their mission. Is it, then, more reasonable to expect that lay judges would ask questions only occasionally, perhaps not even at each trial ?

In general, the court has the responsibility of truthfully and completely determining all the facts (both exculpatory and inculpatory ones) important for decision-making, in accordance with the law. [118] In particular, the presiding professional judge has the responsibility [119] to conduct a versatile discussion of the case, to search for the truth, and to eliminate the elements which are stalling the process. Since the presiding judge is charged with such a strictly defined statutory duty, it follows that each professional judge would tend to conduct all the actions he/she considers to be relevant for the successful resolution of the case.

The results of the Polish study on mixed tribunals suggested that lay judges thought that their presence improved the conformity of court verdicts to public opinion. [120] This “latent function” of lay judges, [121] the function which makes lay judges’ very presence an instrument of social control over the work of professional judges, seemed to put certain pressure on professional judges to fulfill their statutory duty more fully and carefully than they would have had the lay judges not been present. Analogous arguments can be made in the context of this study; if professional judges indeed fulfilled their duty, as the legislator had expected, and as had clearly been intended by the letter of the law, little room would be left for the lay judges’ participation. The expectation is thus that lay judges participate occasionally.

On the other hand, the role lay judges perform may be only partially overlapping with that of professional judges; lay judges contribute to the case by bringing knowledge of the community values and by focusing on a particular defendant and his/her circumstances. It is quite possible that the function they perform is similar to the function performed by jurors – to “apply a measure of fairness and equity to a case that a judge, preoccupied with the fine points of the law, will ignore”. [122] In fact, the majority of lay judges in the Polish study felt that lay judges served a function in counteracting the tendency of statutory law to ignore the realities of life, facing “social” and “professional” functions in the tribunal. [123] Borucka-Arctowa further reported that lay judges in the Polish study perceived the different roles played by themselves and by professional judges as “mutually complementary.” As Borucka-Arctowa explained :

A lay judge will intervene actively only when the professional judge does not take due account of circumstances which the lay judge feels are essential to the case, or when the questions the lay judge poses may help to elucidate the case. [124]

In summary, the level of satisfaction with the lay judges’ contribution depends on the purposes one wants lay judges to achieve. If lay judges are expected to perform the same role as professional judges, then one needs to be realistic in expectations (because of the more active role assigned to the professional judges by the law and because of the professional judges’ advantage in terms of legal knowledge and experience in legal decision-making) and not be surprised to learn that lay judges participate only occasionally. On the other hand, if one assigns lay judges with a role that is only partially overlapping with the role assigned to professional judges, a realistic expectation is that lay judges will perform their latent role or provide community input occasionally. It is highly unlikely that professional judges will have the tendency to be biased or corrupt in each and every case; it is equally unlikely that each and every case will bring out discrepancies between the legal rules and community values. However, most cases will benefit from group decision-making and focus on each particular defendant.