Transcript | 6. lecture: From independence to impenetrability (Lucia Žitňanská) - University for modern Slovakia

In today's lecture, I would like to deal with the problems of independent justice in transitive countries, so in those, which are going through a shift (transition) from non-democratic to democratic political regime. Within the frame of preparation, I have read again an article, that I've written in 2009 for the weekly magazine .týždeň. I have decided to use it again, because I've realised how little we remember about what has happened in those 20 years within the Slovak justice. While, only if we understand the development of the Slovak justice, can we search and set solutions for a functioning justice. A twenty year long story of the Slovak justice isn't so unique, more or less only copies problems of all transitive countries.

So, here's the original story:

Justice usually isn't the top topic of the social and political discourse, not even if it appears once in a while on the cover of a magazine- until something "big" happens. Big is a case or finding of the Constitutional court, which de facto is cancelled by the Specialised court. "Big" is also the nomination of Štefan Harabin for the post of chairman of the Supreme Court.

Usually following a "big case", there are reactions of parts of the population and commentators, statements from politicians and "deliberate professional" statements of lawyers. Besides exceptions, discussion about justice is missing. In there, we could find an answer to the question, why do we need a Specialised court and why is Štefan Harabin for judges (also on the post of minister of justice , after all that has been promoted in the media) acceptable. Discussion to the question "how is that possible?" and mainly to look in the discussion for an answer to the question "what to do with it?" cannot go without the naming and judging of everything, that we already went through in the justice department since 1989. It wasn't a little.

The Velvet revolution (the 90's)

The Velvet revolution was also tender within justice. The majority of judges stayed in courts. Many of those, who left, became advocates, and so stayed a part of a broader justice system. The position of justice was set by the constitution and laws accepted at the beginning of the 90's. The judges were elected by the National Council of the Slovak Republic after the proposal of the government at the beginning for four years. After the four year period of action a judge could apply for a re-election for the post of a judge without a time limitation, at the proposal of the government.
At the beginning of the 90's has the number of cases, where a court had to take action, increased. A wave of restitution disputes came, cases of commercial disputes in courts increased, after the first wave of privatisation also many cases between civilians and investment funds  from coupon privatisation. After 1989 has the legislation started to rapidly change, the court proceedings however went according to the process rules from the 60's.  Modifications from the early 90's didn't change in any major way the "spirit" of these rules, which lay in the obligation of the court to search for a materialistic truth. The justice wasn't prepared in capacities nor professionally to deal with the wave of new cases and new legislation. The consequence was the lengthening of cases and many times a repugnant verdict. An environment "asking for" corruption was created. Mistrust in the justice started to be a problem.

The pressure for a change in justice arose in this situation at the end of the 90's. The leaders of this process within the country were the judges autonomy (at that time represented by the Association of judges of Slovakia) and the third sector. The pressure from outside to create a standard environment of independent justice has been arising together with the process of preparation of the country for the entry to the European union.

The trustworthiness of justice - the first attempt

The topic of first attempt - the independence of justice (years 1998 - 2002). The result of the pressure for changes in justice led to the adoption of a complex of legal norms in years 2000 to 2002, which strengthened the guarantee of the independence of justice. The most essential changes were the establishment of the Judicial council of the Slovak republic as an organ of legitimate judicial power and the elimination of the "four year judge" institute. The crucial competencies of the executive power and parliament for judges election ,judges distribution to courts and career promotions of judges went over to the Judicial council. The Judicial council submits proposals for the election of judges to the president and decides the placement of judges to  individual courts. The judge can be moved to a different court only with the approval of the Judicial council. The president names the judges from the proposal of the Judicial council till "death" (without a time limitation). Councils of the magistracy have been established at courts as organs of judicial autonomy. All these changes came out of the narrow cooperation with the Association of judges of Slovakia and it was mainly this association, which had an idea of how the guarantee of independence of the justice should look like. The association in this sense found a partner in the ministry of justice. If at this time, there were any ideas about how the guarantee of independence of justice should look like, then there was no complete idea about what to do, in order for the justice to be also effective. However, there was room for the creation of multiple projects financed from foreign grants. This was the time when the pilot project for change of the work organisation at courts with the support of computer equipment and higher judicial officers started (the project of judicial management). Similarly, the principle of random allocation of cases to individual judges with the help of computer programs has been tested and consequently also legally introduced as one of the most important anti-corruption devices in justice.

Changes in the position of justice has evoked great expectations, which, however, weren't met. The reality, also confirmed by research, showed, that the independence of justice, as an assumption of an impartial decision in itself isn't a guarantee of trustworthiness of justice, and it really isn't a guarantee of its effectiveness..

The trustworthiness of justice - the second attempt

The topics of the second attempt - effectiveness of justice, criminal policy of the country ( years 2002 - 2006). The results of multiple projects, thanks to which some courts have tested new means of organisation of work at courts for the Slovak justice, have been reflected in the official policy of the ministry of justice. The conservative justice environment in Slovakia has went within a short time frame  through the process of computerisation, the arrival of a new category of court employees - higher court employees/higher judicial officers- and a strong pressure for a change of work organisation. The courts management system has changed in such way, so that the chairman of court wasn't assigned to normal management of the court, but to specifically secure the  proper execution of justice. The application of the court management project showed, that the building of a team around the judge and a good technical ground of the court - if the organisation of work changes at the same time - can make a great contribution to the effectiveness of its functioning. The random allocation of court cases by electronic registry has dramatically narrowed the space for manipulation at the allocation of cases to individual judges.

The changes also affected the judicial map. The concept of a three degree system of courts has been implemented and in the politically very sensitive case were ten small courts incorporated into bigger ones. The Specialised court and the Special prosecutor's office were established as individual specialized organs for the detection and prosecution of criminal offences of corruption and organized crime. Together with the pressure for changes in the means of work, management of courts and court organisation, the judges had to absorb major changes in the legal regulations, mainly of the proceedings regulations. The criminal law was re-codified. The criminal process was changed. Audiovisual technology for the recording of processes has been introduced in criminal proceedings.

The leader of these changes at this time was the minister of justice Daniel Lipšic. The ministry cooperated practically on all modifications and law proposals with judges. However it wasn't a case of institutional cooperation. On the contrary, many proposals and solutions were between the ministry and the judicial autonomy causing tension. It was shown, that the conservative environment of justice had problems getting accustomed to changes and was against the change of work organisation. The result is, that the effects of all changes to individual courts are different - dependent on the degree it was successful to truly implement the changes in work organisation at courts and to absorb all changes. In other words, the results significantly easier to be felt and seen in courts, where the chairman of court and also a critical mass of judges were convinced, or at least willing to actively apply the changes.

Since 2005, the courts process annually more cases than they gain new ones, however the results of courts are different. The amount of corruption perception in courts has according to a research decreased from 59 percent (2004) to 47 percent (2005). However, according to the research of Transparency International Slovensko from March 2006 is nearly half of the respondents (47 percent) still considering the courts and the public prosecutors office to be an area of  very common bribes. The positive trend shown by the statistics and the positive trend of corruption perception shown in research has once again not managed to fulfil the expectations. The expectations of a fast change have been shown to be unrealistic.

Štefan Harabin for minister

Minister Harabin has started his activity with open criticism of the Specialised court. He recalled the court chairmen, who were known for participation at the preparation of law and projects like the management of courts during the previous regimes of government . He couldn't get the cancellation of the Specialised court by law through the parliament. However he put through the re-opening of the courts cancelled by the previous government. He put through the increase of the number of judges. The judges started to get a 14th salary.  At the same time is the public perceiving, that the minister is building his popularity by checking trials and threatens to "take off the robes" of the judges, who don't work. These are visible and easily seized changes. At the same time, at the disciplinary senate, there were judges, who were known to the public as the ones, who were cooperating during the changes in justice, managed to tell them their opinion and saw them as honest. The misuse of the disciplinary proceeding for getting even is less seizable by the public. A few judges publicly criticize the situation. The judicial autonomy is seriously considering, whether it was right for a judge to publicly say, that judges are afraid. The leader of these processes is the minister of justice Štefan Harabin. The statistical findings confirm a trend, which was started by the previous government - the capacity of courts is sufficient. However the trustworthiness of justice doesn't even reach 30 percent.

Unfulfilled expectations in combination with the fact that the changes in justice are often hard to understand cause, that the public doesn't perceive, and also has no chance to perceive the threat to the independence of justice as a problem. On the contrary, it is not a rare opinion, that slow courts are the consequence of the independence of justice. It is an environment, in which people, who have power within justice, can afford to do practically anything. The fact the the Constitutional court really cancelled the Specialised court has awakened the interest of the public. Same as the  candidacy of Štefan Harabin for the function of chairman of the Supreme Court. Less interest has awakened the proposal of the government (of minister Harabin) to move practically all competencies of the ministry of justice , which the minister and the ministry today has towards courts and judges, to the chairman of the Supreme Court (who at the same time is legally also the chairman of the Judicial council) and to the Judicial council.

The paradox of the submitted government (Harabin's) proposal is, that last year this government (the same Harabin) proposed, on the contrary, important strengthening of the competencies of the minister of justice in relation to courts. The law has gone through and will be valid from the 1st January. The proposed changes of the court environment go a completely opposite direction today . They mechanically "divide" the competencies of the minister and ministry of justice between the Judicial council /the chairman of the Judicial council or the Supreme Court/ chairman of the Supreme court. And the same minister, who a few months ago defended, why it is necessary to strengthen the competencies of the minister of justice towards courts, is today proposing amendments of those same rules with the argument, to finally make the justice in Slovakia truly independent.

The independence of justice?

The independence of justice is important to guarantee the impartial verdicts of courts, regardless of the influence of the executive power. That's why we ask the legitimate question, why protest against the complete "separation" of courts from the ministry of justice.

The main reason is that the impenetrability of justice power is not the same as the independence of justice power. The division of power (judicial, legislative and executive) doesn't mean an absolute vacuum between those three powers in a country, however a balance of these powers, so that none of them could be misused. There has to be space, in order for the excesses to not be tolerated and this also in case of a failure of the self-regulating mechanisms of justice. The more, if the self-regulating mechanisms don't work. The government's (Harabin's) changes of the judicial laws are leading towards the impenetrability of the judicial power, to the absence of any kind of outside control. Because even if according to the law is half of the 18-member Judicial council elected by the government, executive power and the president (3 + 3 + 3), the second half consists of judges, where as a consequence, it is not possible to make decisions about anything without the agreement of the judges in the Judicial council. That's why the complete "separation" of courts from the other powers in a country according to minister Harabin means the dependence of judges and courts on the chairman of the Supreme Court and chairman of the Judicial council in one person. If nothing unexpected happens and the law changes proposed by the government (Harabin) regarding the courts and judges will be approved by the parliament, it will come to a state in justice, when a change will be very hard and long. For a long time has Štefan Harabin been as a minister working to concentrate the power in judicature and at the same time silently, and today also loudly, works on becoming that person with unlimited power and without control.

We need professionally qualified and honest judges in justice, that is today the key problem for the future justice. Even though many more changes are necessary, starting with the proceedings regulations up to crucial improvement of effectiveness of the work of judges and courts, the system may be set up any way, it will not work without qualified and honest people. Today we have judges working in justice , who have been active in the system since before 1989, then judges who were elected by the Slovak parliament and also judges, who were nominated by the president on the suggestion of the Judicial council. The upbringing of new judges, selection of new judges, education of judges, career promotion of judges and disciplinary proceedings were and are usually taking place in the closed judicial system.

In relation to the future of justice there are two key areas of legislation. The point is , who gets into justice (because a judge is nominated "till death"), and how the leaving mechanism of a judge is set in justice in case of inability or failure (because a judge is nominated "till death").

Selection process

The judge is nominated by the president under the suggestion of the Judicial council. The suggestion of the Judicial council is preceded by the selection of candidates. Who in Slovakia can become a judge crucially depends on the rules of the selection of candidates for judges and on who has the possibility to influence this decision. When the current government took the lead, there was a valid legislation, according to which the nomination of judges to free places always had to go through a selection process, which was also the case for judicial candidates and higher judicial officers. So also people, who were active in courts, had to apply for a judge position in the selection process, the same as lawyers of "non-judicial" environment. The announcement of the selection proceedings was decentralised to the point of district courts.

From the 1 January 2009, this year, there is a valid legislation, which even though retains the institute of selection process and a possibility to apply for the post to people from "non-judicial" environment, but it prefers people " brought up by the court". The judicial candidates have a right of priority to take the vacancy for a judge. A vacancy for a district court judge is taken without a selection process by a judicial candidate, who is carrying out permanent civil service at this court. Only if they won't be able to fill this vacancy by a judicial candidate, there will be a selection proceeding. At the same time we have to say, that the strategy of the previous period was aiming at the decreasing of the number of judicial candidates, allowed also the higher judicial officer to apply for a judge post at the selection proceeding after accomplishing the justice exam and deliberately opened the selection proceeding also to people outside of the judicial environment. The strategy of the current management of the ministry of justice is reversed - there is a visible attempt to bring up own people. That's why are the places of judicial candidates opened on purpose. The judicial candidates are in permanent civil service at court, the selection procedure is going according to law of civil service and the option of "qualification change" from temporary civil service to permanent civil service - which is the way, how to become a judicial candidate also without a selection proceeding. The chairman of the region court  declares the selection proceeding for a judicial candidate as well as for a judge (if there isn't a judicial candidate ready) and assembles a selection committee for district courts in the region. To be exact, we also have to mention a "tiny" change in legislation, which is valid from the 1st January of this year, thanks to which the only person who can  apply to a selection proceeding at a regional court and the Supreme Court for a judge post is a judge, not a professional with practice, who meets the requirements to become a judge.

The change, which has already happened, consequently caused, that the chairmen of the regional courts accept judicial candidates, who will become judges after judicial exams. The judicial candidates know, that after the judicial exam they will become judges without having to go thought a selection. According to the number of newly accepted judicial candidates I can be certain today, that in the future there won't be any selection proceeding for judge positions. It is no surprise, that there is great interest in the position of judicial candidates, that the places are taken by the children of lawyers of the judicial environment. The circle closes.

The concentration of power

The independence of justice isn't purposeless. It is the independence that is supposed to guarantee impartial verdicts of courts without any influences of the executive power, without the influence of people, who concentrate power inside justice. That, what is happening today, is an attempt at a total concentration of power over justice in the hands of a few people inside justice, in the hands of the Judicial council and chairman of the Supreme Court and chairman of the Judicial council in one person. And all this in a situation, when the justice system as a whole still didn't show the ability and interest to accept the best of the best and to push out the unqualified and dishonest. Unfortunately, we don't have and informal rules, which in traditional democracies help to upkeep the justice system in independence and effectiveness. And they also won't exist, until there will be a critical mass of judges, who will have the will and ability to talk and persuade them. The circle, which will probably close at the nearest parliamentary meeting - through the changes of judicial laws- there isn't even any potential for such a will and ability to have any space and chance to make it through.

What next?

The whole development in the area of justice is eye-opening and can be concluded into a few theses. Independence guarantees of justice from the executive power are preconditions for non-intrusion of the executive power into the decision, but they do not guarantee impartial verdicts nor fast court proceedings. The success in the justice environment depends on the degree of their acceptance from judges. The sustainability of the changes is minimal, if there is no critical mass of judges, who will not only accept the changes, but also wants them. The closed system of justice creates an environment, in which the judge position isn't resistant to misuse of power, on the contrary, informal rules which allow for the misuse of power at individual levels of the justice management are created. "The silent majority" (of judges) loses the label polite, if they watch repression against colleagues, who show their stand, and don't do anything. However such constellation or appeal doesn't actually change anything. The motivation is crucial for the behaviour of people, judges are no exception. Fear of repression is a great motivation. A peaceful life is also a sufficient motivation, mainly if there is no stronger positive motivation. Changes in justice will require a "strong group" of positive motivated judges. In the closed system of justice, without informal rules, respectively with the existing informal rules, there is no space for the creation of such a group. The politicians, who will decide about the proposals of the government (Harabin) at the parliamentary meeting, carry the responsibility to not accept the complete closing of the justice system. The setting of the system is in the hand of politicians, who accept laws. The opening of the justice to public control can prevent a state, where this closed circle of justice becomes impenetrable. Public selection proceedings, public judicial exams, a civil element (also people without a legal education) in disciplinary senates, the use of a random selection at the creation of disciplinary senates can help at the beginning.
Not closing the justice system, but on the contrary, opening of the doors, is in today's situation a safety break. (source: .týždeň, 31 May 2009)