JUDICIAL REFORM – DILEMMAS AND GUIDELINES
Summary:
We have been the witnesses of two unsuccessful judicial reforms. Although the past reform was by far the largest failure, the current, in its current stage, both gives and does not give hope that it will permanently and forever remove the influence of the executive authorities and politics on justice, that cases will be resolved efficiently and impartially, and that citizens will enjoy the treatment of services users rather than government executors. Further fate of the reform and the assessment of its impact will depend on the further implementation of the reform, respect for the deadlines set out in action plans and schedules for the execution of commitments.
Keywords: "independent judiciary", "government impact", "corruption", "judiciary efficiency", "Constitution amendment", "financing judiciary", "European Union criteria".
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"National Judicial Reform Strategy 2013-2018" – is the official name of the document devised to be the support for the Serbian justice and offer solutions in the execution of the work that is a nightmare for each state administration: modifying the existing judicial system to make it better and more efficient.
Due to the nature of the task which can be implemented neither easily nor painlessly, judicial reforms mainly fail or succeed with partial effects. Horizontal and vertical reorganization, accelerating the time of proceedings before courts, eliminating corruption, eliminating the impact of government and politics in general, establishing real and functional independence of justice, introducing and implementing new regulations, transferring competencies in parts of procedures to the private sector ... are the challenges that bear both economic and social implications. It is therefore not surprising that even the current reform, which is being implemented in accordance with the cited document, does not give the expected, or coveted effects.
The history of major reforms (in any field, in any environment) proves that innovative ideas turned into brave solutions do not always take root successfully. What is well conceived in theory often does not prove itself successful and even feasible in practice. In addition, some new solutions offered not only do not contribute to the efficiency of the judiciary but are so poor that downgrade it. All former reforms of the judiciary in Serbia have confirmed that.
The causes of possible failure or only partial success are manifold. Prescribed legal solutions of other countries are very often acceptable solutions. However, the mechanisms of their implementation in practice and often added amendments to the regulations indicate the two most common causes of the breakdown of initial ideas. These are a) the reform author’s lack of expertise together with the lack of experience in practice b) the direct intention of the author of the reformation text to weaken a part of the judiciary favoring the other. The best example for this was the introduction of the public notary system. The strike of lawyers, caused by the mechanisms of the application of the idea of introducing public notaries, grew into an open war with the representatives of authorities responsible for the reform. Reason: the envisaged mechanism of application deprived lawyers of the opportunity to draft contracts, wills, and other documents. In practice, that meant that lawyers, by the act of the state, were forced to give up about a third or even a half of their revenues. Apparently, this was not about the incompetence of the reform author, but a conscious and targeted intention to favor one party and decrease revenues, position, and generally, the impact in the justice system to the other.
This example also best demonstrates a historical constant that is often overlooked by the executive government. Any attempt of politicization of the judiciary is directly harming it. It dulls its blade and makes it less able.
The European Union has defined for all candidate countries a set of recommendations for the judicial reform. The aim is to create a system that would enable the effective implementation of the law, reduce the backlog of cases and reinforce the legal security of citizens. First of all, the first recommendation of the EU is: to build the impartial and independent judiciary, free of the influence of a political or any other interest group. For the independence of any judge, the manner in which he/she came to the position is crucial - whether it was due to the personal ability or the influence of some other people. Also, the EU, in the field of justice, emphasizes the entrance to the judicial profession and judges and public prosecutors career management. Clear criteria for their selection, which must be objective and transparent, have been determined. The same is the case with the progress in service. Finally, the EU pays great attention also to strengthening the system of in-service training, with the aim of strengthening professionalism in the judiciary. What is sought is the improvement of the educational plans and programs, as well as the establishment of the Judicial Academy that will train future judicial personnel, train future judges and public prosecutors, as well as ensure their continuous improvement.
The government has made the first step in this regard. It founded a Judicial Academy, announced as an institution responsible for the initial and ongoing training of judges and prosecutors in all areas of law.
However, is it really so?
The quality of any judiciary is primarily assessed through the prism of the independence of the judiciary from the executive and the legislative authority, as a precondition for independent decision-making. Serbia, unfortunately, is apparently suffering from the syndrome of political interference in the judiciary and government impact on the independence of the judiciary. Our justice system has long been affected by chronic illnesses that no previous government was ready to change.
The mechanisms of control and discipline of the judiciary by the government are precise and effective. The High Judicial Council and the State Prosecutorial Council are the bodies designed to ensure the independence of the judiciary, through the mechanism of the apparent impartiality of the election to the office. Unfortunately, in Serbia, to be a judge or a public prosecutor has always had a political dimension. The independence of the judiciary and the independence of the prosecution are only ideals declaratively strived for, but they have never been achieved due to the influence of the executive and legislative authorities on the selection of judges and prosecutors.
The High Judicial Council elects judges, but the members of this body are also the Minister of Justice and the Chairman of the Parliamentary Committee on the Judiciary, Public Administration, and Local Self-Government. Our system of electing judges and public prosecutors, in particular, excludes the possibility of an impartial and politically neutral procedure for which a prosecutor may not have the strength and readiness to conduct proceedings against those who decide about his/her professional future. The Constitutional Court is a special case, for 10 of the 15 judges are elected by politicians, and only five are elected by the judiciary. In the procedure of re-appointment of judges, there was no reliable system that will recognize the judges who are not good and are corrupt. To remove these mechanisms is the first challenge, which cannot be easily regulated only by one law.
The EU has in this regard offered candidate countries clear criteria for this type of checking and evaluation, from the transparency of procedures to clearly measurable results. Both judges and prosecutors believe that the highest judicial bodies that decide on the appointment and dismissal of judges and prosecutors, evaluate their work and will soon dispose of also the judicial budget, must have own integrity.
In order to demonstrate the determination, the Government has recently adopted the "Second Revised National Programme for the Adoption of the EU Acquis". This document represents a plan of harmonizing the regulatory and institutional framework with the EU acquis. Whether these opinions and guidance will be incorporated in the laws that will regulate the future functioning of the judiciary, new anti-corruption, and other relevant regulations, and to what extent, and whether they will actually be implemented remains to be seen. If it really wants to allow for the judicial independence, Serbia is to inevitably change the Constitution, which would ensure the absence of political influence.
However, politics always finds a way to influence the judiciary. Judicial Academy, with which government boasts as the first fulfilled condition in the judicial reform, is already known as the institutionalized influence of the executive and legislative authorities on the selection of judges. It is a process of the selection of the Judicial Academy participants, three years before being elected judges and prosecutors (mostly from the ranks of judges' assistants). The one who selected the Judicial Academy participants in a procedure that was not public in fact conducted the election of judges and prosecutors for three years. It was so provided by the applicable law, therefore not illegal, but obviously enables the influence of politics through an arbitrary selection.
Therefore, it appears that the authorities' declaratory commitment to the independence of the judiciary is not equated with the real political will to achieve such a goal. The loss of a decades-long ability to influence the judiciary is not easily acceptable to any authority.
When we add the inevitable and omnipresent topic of corruption in the Serbian judiciary, only then it can be more clearly comprehended how difficult the task to implement reforms is. Corruption is also a legacy of decades, nurtured, developed and in practice polished almost to perfection. It covers all levels of the judiciary - from workers in registry offices and clerks who trade information of how a just made decision reads, to the high instances and cases covered by the media. The inefficiency of the judiciary is unavoidably related to the lack of an institutional assumption to seriously deal with corruption in courts and prosecutors' offices.
The World Bank has conducted a functional analysis of the Serbian judiciary, which shows that only seven percent of the influence on judges comes from the executive or the legislative authorities, while the rest falls under the influences to which judges are subjected by their colleagues, friends, neighbors, relatives, lawyers, presidents of courts and judges of higher courts. Naturally, the seven percent refers to the largest, most important and politically relevant cases. Unlike the World Bank, the people of Serbia and the actors in the judiciary system think differently. The results of a survey showing that 30 percent of judges believe that there is corruption in the judiciary, 35 percent of prosecutors and 65 percent of lawyers think the same, and 80 percent of the population is convinced of it are worrisome. There is still a dominant impression that the justice system is more an authority executor rather than a provider of services to citizens.
With the independence of the justice, the EU has set the efficient judiciary among the priority objectives. Here it is primarily referred to the length of the proceedings. Data show that the average number of cases resolved in a year in Serbia was 350 cases per judge, while the European average is 840 cases per judge. The aim of the reform must be to achieve the appropriate level of judicial proceedings duration so that Serbia would not have a large number of cases where proceedings last longer than five years or even longer than ten years. In this regard, it is necessary to achieve the standard of trials within a reasonable time and consistent court practice so that citizens and the economy can have legal predictability.
It is indicative that in the United States about 85 percent of disputes end before reaching the courtroom. Mediation – a negotiation skill aimed at achieving a settlement, as well as specialized arbitration (e.g. commercial) greatly contribute to reducing the number of court cases. Also, with the public notaries (who have relieved courts from documents certification), a huge number of enforcement procedures are conceded by the court to public bailiffs (until recently called private bailiffs). All of these solutions are directed at reducing the number of cases before the courts. However, despite these measures, in Serbia, still about 95 per cent of disputes end up in court. The culture of negotiation and compromise has not flourished among citizens.
What are the possible solutions and what frameworks for reform have been provided by the Government? At the recently held meeting dedicated to the reform of the judiciary, Assistant Minister of Justice announced the conclusions on this subject, including:
- the need to enhance interdepartmental cooperation of the state administration bodies,
- to be able to say for the judiciary that it is a "service for the exercise of power"
- that it is necessary to better allocate resources according to the established criteria and levels,
- that it is necessary to provide for inclusive laws passing,
- ICT connection of institutions,
- the adjustment of the court practice and
- to functionally and gradually implement the reform and changes.
Programs and plans of the Government, adopted in the form of the National Strategy and Action Plans, will be considered by the EU critically, both in terms of function (end effect) and in terms of deadlines for compliance. Serbia is already late in the calendar of plans implementation, which certainly does not contribute to creating the image of Serbia as a country firmly determined to actually establish European standards. The opening of Chapters 23 and 24 in the accession negotiations will certainly give a new impetus to the judicial reform. Chapter 23 covers issues such as the judiciary, basic human and minority rights, women's rights, gender equality, fight against corruption ... or topics with which all societies, and thus Serbian, have had serious challenges in recent decades.
In this regard, judicial independence is certainly among the priorities. Amendments to the Constitution are by all instances and all actors recognized as necessary, noting that they should be implemented as soon as possible. A representative of the OSCE Mission in Serbia has recently said that the aim of the Constitution amendment should be the elimination of any possible government influence on the judiciary, pointing out that the independence of the judiciary is essential to guaranteeing the right to justice. On the same occasion, in a similar vein, support to the reform process was given by the head of the Council of Europe Office in Serbia.
Strengthening the set of anti-corruption regulations is a necessary and integral part of envisaged changes. At the same time, it is of the utmost importance that all of the edge areas are systematically covered by the appropriate legislation – e.g. Law on Offences (disable politicians’ offenses to quickly become statute barred and small penalties in the case of avoiding the obligation to report assets, functions, related parties, etc.), Law on Property Origin, Money Laundering, etc ... In addition, it is important to strengthen the capacities of independent institutions such as the Ombudsman, and the Agency for the fight against corruption, in the sense that the recommendations of these institutions are not only heard but also implemented.
As important and life-related elements appear also the questions of financing the judiciary, but also a matter of professional training of future employees. It is indicative that the curriculum at the Faculty of Law has not changed much in the last 25 years, while in developed countries, the method of dispute resolution has changed dramatically.
As justice has never been cheap, it is obvious that the reform has to cope with one of the biggest problems - money, the amount of which will more and more decrease in the judicial reform. The key is to recognize the need to financially strengthen the judiciary. On 28 November 2016 the Government failed to conclude a financial agreement with the European Investment Bank for improving the judicial authorities’ facilities in the amount of 26 million Euros. By Agreement "Improvement of Judicial Authorities Facilities B", the Republic of Serbia was approved the amount of 26 million Euros, with a repayment period of 25 years, involving a grace period of five years with a possibility of choosing a fixed or variable interest rate during each withdrawal of loan tranche.
Author: Laslo Dubajić attorney-at-law, Centar For National Strategies