September 16, 2008
Keynote Speech
Jiří Pospíšil- Czech public discussion gives more attention to particular media attractive cases rather than the need for and process of a systematic judicial reform
- Czech judicial system is not in a crisis, it is comparable to EU average, we however strive to join the ranks of countries we are looking up to.
- Basic criteria for a reform is the lenght of judicial process, the number of unresolved cases and the number of successful appeals
- The reform has three main pillars - legislative changes, e-justice and a gradual change of judicial organizations structure
- In the legislative pillar, novelization of key codes (most of them are numerous times novelized laws from 1960s) is necessary; about 50 pieces of new legislation are being prepared.
- E-justice is one of topics of Czech EU presidency and the Czechs are well off compared to other EU members. The ultimate goal is to launch electronic prosecution in 2010.
- The Constitutional court ruled against a part of the new legislation concerning the process of suspending judges, the government has prepared a compromise solution
- My opinion is that time-limited mandates for judges are necessary, other countries with communist experience seem to share that view
- U.S. federal judges are nominated by the President and confirmed by the Senate; they serve for life and there is a strong political element to the process
- The notion of independent judiciary is often adverse to political power
- Judges have one the highest public approval ratings, they are perceived as independent and accountable
- Most Americans have sat on a jury as the findings during a court are made by the jury
- U.S. system, far from perfect, has over 200 years of tradition and accountability and checks and balances - process of appeals, media, very active judiciary committees in both Congress and Senate, U.S. Bar association
- Nominations and Senate hearings get a lot of public and media attention, to a point where some candidates turn down the offer for that resaon, which I think is a deficit of the system
- Federal judges don't report to the President nor the Senate, they have their own administration that can suspend judges, have very strict rules on income reports, conflict of interest etc.
- Unless a court has huge moral authority, its decisions are just a piece of paper
- The ultimate measure of rule of law is how people perceive their judges
Panel 1
Vojtěch Cepl Sr.- There is too strong executive influence over the Czech judiciary system in the institution of the Ministry of Justice; it is where party loyality interferes with the need for independent judiciary
- This has not been corrected by any of the novelizations so far
- Judiciary system should have at least its own budget
- My view is that supreme courts should be abolished, the comparison to Austria and Germany doesn't quite work, since those countries are federations, and this decision keeps being delayed by the Minister as something for the next government to care about
- There is a discussion whether the Prosecution is rather a judicial or executive structure
- The executive power has to guarantee at least some degree of independence to the Prosecution from its big brother - the judicial system.
- The are four main problems - bureaucracy (which causes anonymity), lack of accountability - (the Prosecution is tied by the requirement to act as one unit); lack of personal competence (the system enables to hide it behind regulations and bureaucracy); unwillingness to engage in a positive confrontation (which is a force to innovate the system and make it work better)
- The role of Prosecutors is to protect public interest, which is difficult when the ones to be protected don't have the trust in the system
- We are in similar situation now as we were in 1989
- How is it possible that the communist judiciary had adopted a legislation system from the times of the Monarchy, which remained more or less in place until now?
- How does the curent judiciary reform advance democracy? - In my view not much
- The Czech Repulbic and Latvia are two of coutries with the highest dependence of judiciary on executive. This, in my view, has even deepened with the reform
- The law is partly useless and partly dangerous if executed with ill will - there is much higher risk of political influence and virtually no control mechanisms
- The system is strongly dependent on executive to a degree where it is unclear whether we can talk about its accountability, regardless of the independence of particular judges
- The authors of the law cannot have the experience, but I have seen a situation where a large majority of honest judges are defenseless against a handful of carrierists and rogues
- The Minister of Justice has not been empowered by the reform, quite the contrary - until 2001, the Minister was empowered almost totally
- The law has at least brought a control mechanism to disciplinary proceedings (kárná řízení), it is possible to suspend judges this way;
- The seven and ten year mandates of judges obviously have a different frequency and run across terms of general elections
Q&A
Cepl Sr. - comment to Benda - I do not seek absolute independence, I welcome control mechanisms, but the ultimate mistake of our politicians is their trust in the rule of a majority and that the final decision should always be done by the Parliament.Josef Baxa - Laws should be written to work even if they are used in ill will. Is there a discussion among prosecutors on the recent process of investigation of the Deputy Prime Minister, how do they perceive it now?
Bradáčová - There in an intensive discussion, not only because of this case, it brought the attention to other problematic cases in the past as well. I think this case has caused a great damage to Prosecution, with a drop of public confidence in the system. Prosecution has to convince the public (and unfortunately not only the public) that the system is solid, which will be very difficult.
Lipšic - Prosecution should not be perceived as a political tool
Jan Sváček - How did Slovakia establish the Supreme Judicial Council (Nejvyšší radu soudní moci)? Did you, Mr. Lipšic, as a Minister succumb to a pressure from judges?
Lipšic - After 1998 we succeeded in establishing the Council, and if I'm to judge the results, they are not entirely positive. We hoped that decisions that are not transparent (to push forward prefered judges, for example) will not happen in that system, but it did not quite work that way. Some of judges seem to realize that. We are on our way to empower the Minister to be able to suspend some judges, and there isn't much opposition from the judicial camp to the idea.
Jan Ruml - Isn't it better to start from the other end and give judges absolute self-governence and build in limits to it from there? Has this option been considered in writing the judicial reform?
Benda - This debate has been here from the beginning - I think the time is not quite right yet. Judicial "self-governance" doesn't work here according to both public and also according the judges.
Vojtěch Cepl Jr. - The judicial reform is a struggle to control judiciary system. There have been cases where a judge was suspended for lack of competence after a politically problematic ruling.
Benda - the possibility to suspend judge on the basis of lack of competence is not there, that idea has never been realized. The judicial reform is not perfect, but I don't believe in self-management of courts.
Vyklický - our system is here since the times of Emperor Josef. And since the WWII, a clash with a brutal power, the system continually fails whenever there are problems. This system has never been a positive influence since WWII. The judicial system has to correct the mistakes of politicians, made by nominating the wrong person.
Cepl - Contrary to the statement by the Minister, I think the public trust in our judicial system is lost and it is up to the judges to rebuild that
Lipšic - the public trust in a judicial system lays on the individualities of judges.
Panel 2
Ambassador Graber introduced new CEELI Director Karen Mathis. She welcomed the attendees to Villa Groebovka and briefly explained how CEELI conducts international education for emerging democracies specifically focusing on rule of law. Ambassador Graber then introduced Ales Bartunek, General Manager of IBM Czech Republic and President of the American Chamber of Commerce Czech Republic, to give the business community's perspective on judicial reform.Ales Bartunek said that he was glad to have participated in the morning's discussion of judicial reform, which was a really open exchange between the legislative and judicial branches. He mentioned that in his capacities as IBM General Manager and AmCham President, he has the opportunity to hear from potential investors considering investment in the Czech Republic. He also stated that IBM has made two major investment decisions concerning the Czech Republic. The first was the establishment of their Shared Services Center in Brno in 2001, which now has over 2,000 employees. The second was the recent decision to move IBM's Central and Eastern Europe headquarters to Prague. A decisive factor in both investment decisions was the local business climate, of which the court system was an important element.
According to Bartunek, the business community considers consistency and efficiency to be the two most important factors in the implementation and enforcement of law. By consistency, he means the predictability and fairness of court decisions. In his experience, some business people use the unpredictability of the court system to reduce their risk and gain advantage over those businesses that respect the laws. By efficiency, he said that if businesses have to wait on the courts for years than it is difficult for the court system to be predictable and fair.
Bartunek observed that the morning discussion was interesting to him, a non-lawyer, because it raised theoretical issues that help define the judicial climate in the Czech Republic. He said that the perception of the legal climate formed by potential investors has a direct impact on their eventual investment decision and ultimately a direct impact on the Czech economy. He emphasized that without predictable judicial decisions, businesses can't be sure that they can rely on a fundamental interpretation of the letter and spirit of the law, which could create the possibility of distortions and leave businesses vulnerable.
Bartunek commented that AmCham has 450 members and that they appreciate the endeavors of the Ministry of Justice to reform the judicial system. He specifically mentioned that businesses were very pleased by the ministry's launch of e-registration of insolvent businesses. Other positive steps include efforts to speed up court procedures, introduction of e-filing and e-systems in general. Bartunek concluded that as a representative of IBM, he believes that the Czech Republic is a good place for business and he thanked the Ambassador and attendees for making the conference an important event.
Panel 3 and 4
Code of Ethics and its Violation
Josef Baxa - introduction of the panel- Ethics must pervade all aspects of human activity, including law making. Ethic is vital also in application and interpretation of law. Even a bad law can be applied well by a good judge
- The judicial system has to build on trust of the society.
- There is a need for change in provisions on disciplinary panels in terms of both substance and procedures.
- Not being a judge himself, he took an interesting perspective.
- In the Netherlands, the judiciary is fully independent. It is not subordinated to the Ministry of Justice. Vital elements of independence are impartiality, carefulness about appearance, impeccable conduct, and other factors which are specified in the law. Judges can be dismissed by the president of the court.
- However, the most important instrument in keeping high quality of the judiciary is the selection of judges. It is followed by 6-year traineeship and demanding exams.
- Ethics is the key element of a functioning system.
- Judicial ethics is important because ethical judiciary is a core of strong democracy. It takes independence, impartiality, integrity, diligence and emotional intelligence of individual in the system.
- The German judiciary had to deal with the period of injustice and crime during the WWII to regain respect and trust in the society. Judges are independent and committed only to law.
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Preconditions of independent judiciary:
- Separation of powers
- No interference by politicians
- Justice needs power - Judicial ethics should come from the bottom. The judges should take responsibility into their hands.
- Importance of law and ethics winds throughout the whole history
- Fundamental task of law is to assure that each member of the society behaves according to opinions of others.
- There is a need of harmony in the modern world. While the distances are getting smaller, necessity of accountable orders is bigger. Power of law should be even and equal.
- Law must always comply with principles of ethics. Ethical principles have to be cultivated as they concern all aspects of human coexistence. Pure ethical conscience is more than law.
- Ethical norms have to reflect changes in the modern world, including developments in medicine and biomedical research.
- We should all act as guardians of ethics. Even the best law is not useful if applied with ill will. The worst law cannot destroy the society if applied reasonably. Formalism is not useful.
- No fear or favor can be let influence the justice.
- Application is about bringing harmony to world.
- Unfortunately, there exist also sophisticated ways how to influence a decision by a judge.
- In the Czech Republic, people do not indentify themselves either with the judiciary or police. They see the society divided into "we" and "they".
- Whatever the rules are, it is important who applies them. If there is a dispute over application, the court should bring harmony. However, only good judges can do it.
Q&A
Daniela Kovářová- Being a good judge takes a person of good character. How do we gain, find the character or are we born with it. Education is important in shaping character.
- A: All levels of education are important. However, a good person is not necessarily a good judge. (and bad person should never be a judge). Teaching ethics is important in every stage. But selection is also very important as character cannot be "learnt" - it is a matter of heart and mind.
- There is vacuum behind ethical codes in the Czech Republic. Ethical norms exist but not ethical thinking of judges. How should the norms be transferred to the judicially system?
- How does the selection of judges work elsewhere?
- A: In the Netherlands, there is a mixed model of taking in both young graduates of law and experienced lawyers.
Practical Solutions
Roger A. Keller- The biggest check in the US judiciary is the jury trial.
- People trust judges when they behave like judges and not politicians.
- Public participation is important
- Presence of neutral arbitrators is vital
- Process must be open and transparent
- Jury trial is consistent and efficient
- Nothing changed in the way of teaching at law faculties. Only theory is being taught. There is no link made between the study and application.
- Important to learn how to apply law, including the procedural law of the process.
- Students want to be prepared for the real worlds.
- The teachers have often no experience in practicing law.
- The link between theory and practice is insufficient.
- The Czech Ministry of Justice is trying to speed up and improve the judiciary.
- The judiciary received material and administrative assistance (introduction of the position of higher judicial cleark and judicial assistant).
- The problems include length of proceeding, lack of unity and predictability in the proceeding, ineffective work of judges and insufficient use of IT.
- The Ministry has the same interests as the judges which is the fast performance of justice.
- The reform has three pillars: personnel - financial - legislative
- Instruments to introduce: e-justice, insolvency register, electronic systems
- The law is labyrinthine for users.
- The legislative process is vital. The goal of the Government's Legislative Council is not a "legislative hurricane" but moderation in numbers and quality of submitted legislation. The Parliament/individual MPs act often irresponsibly and destroy the systemic nature of specific pieces of legislation.
- Law faculties should teach a course on legislation drafting.