IT IS NOT enough for judges to make independent, fair and unbiased decisions: they also have to make sure that the public perceives their actions as such, and the way they act outside as well as inside their courtrooms contributes to that perception, according to Lucia Žitňanská. Slovakia’s minister of justice is an advocate of wider public oversight of what happens behind the closed doors of the country’s judiciary.
The Slovak Spectator spoke to Žitňanská about the solution she envisions to address delays in court proceedings, the perceived shortfall in judicial integrity and its consequences, the conduct of disciplinary proceedings within the judiciary, and planned changes to the country’s prosecution system, as well as changes to improve the business environment in Slovakia.
The Slovak Spectator (TSS): Foreign investors and the diplomatic community have been expressing concern over the low level of public confidence in the judiciary, as well as the problem of corruption. What tools can change this situation? How can internal corruption be weeded out of the judiciary?
Lucia Žitňanská (LŽ): Sometimes, the problem is viewed within the judiciary as something artificially produced by vicious politicians, diplomats or perhaps businesses who simply do not understand how the judiciary works. I am convinced that it is important to start openly addressing the issue and quite clearly express that the situation isn’t caused by politicians who do not like the judiciary, but rather by concrete experiences that people actually have with the judiciary. People who lose trials have the right to understand the verdicts so that they are able to accept them.
We have started talking about conditions within the judiciary and are attempting to obtain the truth about its state. The Justice Ministry has already prepared a package of measures, which has already been passed by parliament, intended to open up the judiciary to public control. It involves publishing court decisions, open competitions for judicial positions, but also publication of statistics on the performance of courts so that people can see which courts perform better and which underperform. After all, the truth isn’t black and white: there are courts that are making decisions pretty fast and there are ones that proceed very slowly, and we will focus on those courts.
TSS: Changing the rules cannot always resolve specific people’s lack of integrity. Do you also plan some personnel changes?
LŽ: I haven’t yet carried out fundamental reshuffles because I have to ensure that it is absolutely obvious that all the steps the Justice Ministry is taking are completely legitimate. Thus first I want to uncover the conditions within the judiciary and show differences between the performances of certain courts. I will then pay special attention to the courts which aren’t working in the way they should. In courts where procrastination is frequent and the state often has to reimburse affected citizens it is completely legitimate to demand that the president of the court explains the delays and sets out what he has done to change the situation. If the court president is unable to provide the answers then I will have to take action. I try to avoid political decisions and instead want to make only decisions that can be supported by the condition of the given courts and reach for personnel changes only when these are unavoidable. We are now getting closer to the point when these decisions will come, but I want to make sure that the steps of the ministry cannot be doubted in any way.
TSS: You have started using the expression “integrity” more often than some of your predecessors.
LŽ: Integrity is an expression which has not been used that frequently in Slovakia. Yet I believe that it is very important since not only the directly provable corruption but also the way particular heads of courts are behaving is problematic. It is not only about judges deciding independently and without bias but also whether they are doing their best so that their acts and behaviour are viewed as such. In Slovakia, not all top judges realise what consequences their behaviour can have on the overall perception of the judiciary. It is perhaps important that a judge restrains from hanging out with the local ‘high society’ and remains somewhat reserved so that there are no doubts about his ability to make unbiased decisions. It seems that these issues do not have enough weight in our society.
TSS: Observers, including foreign diplomats, have often stressed that if a system is perceived by the public as corrupt this is equally bad for the system as is actual corruption. Isn’t public trust underestimated by some members of the judiciary?
LŽ: It is a similar threat as when a corrupt environment actually exists. Trust is an absolute basis of the relationship between the citizen and the judiciary. If trust is absent, then people do not view even the fair decisions as being fair, which is a dangerous phenomenon for the functioning of democracy as such. Then, the tendency for people to start trying to solve their problems through means other than the courts can emerge, which is equally dangerous for society. Thirdly, there can also be economic consequences from the lack of confidence of the public in the judiciary since the country might start losing out on investments. Judges sometimes suggest that I should start talking positively about the judiciary so that its image improves. But that is not a job for the justice minister. [The judiciary’s image] is more dependent on how judges themselves behave on a daily basis.
TSS: A recently published statistic suggests that last year the state had to pay out damages of €1,112,000 based on the rulings of the Constitutional Court, and that most of the money went to reimbursement for court delays. How will the ministry solve this problem? Is this phenomenon specific to Slovakia?
LŽ: Based on the information I have, all countries which have been through transition from a communist regime to a new system, which also requires an independent judiciary, have had problems with court procrastination. These problems are very similar. As far as I know, in Poland procrastination is generally worse than in Slovakia. Then, there are countries which have had permanent problems with procrastination, such as Italy, and countries where this problem is essentially non-existent. It has to do with the legal culture in the given country. Before the Velvet Revolution there was almost no court procrastination, but after 1990 the legislation changed dramatically and the courts were suddenly, within two or three years, flooded with different type of problems: commercial disputes, restitution and then huge disputes pertaining to the privatisation process. At that time the capacity of the courts wasn’t strengthened. Also, the system wasn’t able to produce the missing judges overnight, since judges had to become familiar with the new legislation. We have faced this problem since then.
The moment when we started being able to achieve more balance occurred between 2002 and 2004, when court management projects started and the operation of courts were reorganised. We created the position of higher court clerk, someone who was able to decide on minor disputes, leaving judges free to focus on more serious cases. Between 2002 and 2004, along with 1,200 judges, we poured 800 additional lawyers into the system. Since 2005, the average length of civil-law court trials has been continually shortening and some individual courts have above-average performances. At the same time, there are courts which have been exceeding the average court delay by a multiple of two. Some of the courts with extreme procrastination are those in Bratislava, Košice and other large cities, which mostly have key importance for the foreign business community, since companies have their firms registered there. Thus the over-performing courts can hardly change the perception that substantial court procrastination exists in Slovakia.
TSS: Over the past couple of years foreign diplomats started visiting some of the judicial disciplinary proceedings. How did you view the presence of diplomats in the court rooms?
LŽ: Disciplinary proceedings are justified if some judges are not fulfilling their duties, but the principles of application must be clearly defined. Disciplinary proceedings should not be used selectively: applied by the court chairman or minister in certain cases, while omitted in others. The main problem of past proceedings was that they were applied selectively and thus evoked concerns that such proceedings might be used as a tool of internal corruption or a process by which the judiciary could be taken over by the justice minister or, unfortunately, even the Judicial Council. Thus diplomats and also the third sector used the legitimate tool of public access to these proceedings and went there as huge exclamation marks to observe these proceedings and played a crucial role in supporting the democratic and independent functioning of the judiciary. The public is a very strong tool. This is why I am interested in recording court proceedings because a judge understandably behaves in a different way when the public is sitting in the courtroom.
TSS: How do you want to eliminate the easy switch from positions of political power to the judiciary, and vice-versa?
LŽ: We [the ministry] have managed to limit the possibility for a politician to become, overnight, the chair of a court. We haven’t found support for banning former politicians completely from acting as judges for a certain time. I would have liked that. People should not be able to switch back and forth between being politicians and then judges again because these switches have consequences for how the public views them. Even today, if I sometimes object to some judges this is because I do not view these judges apolitically, as being completely free of links to certain political parties.
TSS: You have said that in order to increase public confidence in the judiciary it will also be necessary to shine more light on the prosecution process. How do you plan to do this?
LŽ: We are proposing the same principles for the judiciary as well: publishing decisions, whenever the decision of the prosecutor is final. Prosecutors should be selected in a transparent competition while top prosecutors, regional or district ones, should serve for limited terms. The prosecution authorities in Slovakia are still like a small state within a state. Interestingly, while politicians and the public do not fear the introduction of transparency into the judiciary, there are more concerns when the same transparency is applied to the prosecution authorities. Today the only oversight happens when the prosecutor [Office of the General Prosecutor] submits its report to parliament, or from time to time a journalist sniffs something out – but there is no real public control over the work of prosecutors.
TSS: Public procurement has been one area frequently criticised by transparency watchdogs as well as businesses. What are the most fundamental changes planned in this area?
LŽ: The revision to the Public Procurement Act was an MP’s bill. The motive for the revision is [to create] the largest possible scale of transparency while removing all the excessively bureaucratic obstacles from the way of effective public procurement. The Ministry of Justice is working on a new law on public procurement and we would like to include in this legislation everything that works well in practice. Yet we see the actual process preceding public procurement as being problematic: in this process it is the state that actually decides whether the state administration actually needs the procurement and whether public funds are being effectively used. We want to prevent the possibility of tailoring public procurement for the needs of one particular entity, because the greatest frauds are happening right at the beginning.
TSS: The draft revision to the Penal Code introduces criminal responsibility for public officials in the case of large damages caused by negligence. When do you plan to submit a draft law which would introduce material responsibility for public officials?
LŽ: It is a sensitive issue because material responsibility does not concern only politicians in the government but every single mayor and regional head, thus affecting a rather wide circle of people. The key is to tune the draft in a way so that on one hand there is an adequate measure of responsibility, but on the other hand these people do not become worried about making decisions. Yet we are clinging to criminal and material responsibility as though it can substitute for a non-functioning political culture. In functioning democracies certain things should be about political responsibility, which means that after certain missteps a politician should be simply prevented from returning to the political stage. Here in Slovakia this culture still does not seem to work after 20 years. Now we are focusing on criminal responsibility and also a very tough revision to the law on prosecution; then we will be focusing on measures to improve the business environment, for example more effective restraint proceedings. Every-thing has its time.
11. Apr 2011 at 0:00 | Beata Balogová