Full speech of the High Inspector of Justice at the high-level event on judicial accountability
Greetings once again!
First, let me thank all the institutions participating in this meeting, for discussing a topic that affects us all and raises professional dilemmas for finding the right balance between the independence of the judiciary and its accountability. At the same time, during this reflection, I would like to express some considerations, based not only on the experience of the institution of the High Inspector of Justice, but also on the approach that this institution has had so far in finding a fair balance between these two important principles for the rule of law and the existence of a functional democracy in the country.
To have a clear concept of the independence of the judiciary, first, there must be done the fundamental distinction that exists between the independence of magistrates for their decisions in concrete cases and the independence of the judiciary in the framework of its organization and functioning from a structural and systemic point of view. Both concepts are essential for an independent judiciary. The individual independence of magistrates should be understood as a personal value and a prerequisite for the development of a legal and fair judicial process. In this case, individual independence should be understood as a right of magistrates, but also as their obligation, to make decisions objectively, independent of politics, but not only of politics, independently for and by all, free from any interference or influence, and in accordance with the facts and with the legislation in force.
On the other hand, structural and organizational independence has an institutional nature, which aims to ensure the individual independence of magistrates through the way the judicial power is organized and functions. This way of organization and functioning should serve as a protective barrier against any kind of influence on the activity of the judicial power, or unfair interference with the decision-making process for individual judicial processes.
In our country, judicial independence is put to the test. It is for a long time now that magistrates are exposed to and faced with direct public attacks, intimidation or inappropriate influences. From anyone. It is for a long time now that the judicial system is under pressure, to me an unconstitutional one, to exercise or not their duties in a particular fashion. From anyone. It is a long time now that insults for magistrates constitute the most significant part of the rhetoric when it comes to criticizing the judicial power. Naturally, this puts magistrates to a difficult test, but clearly, the test of independence is not only rhetorical in nature.
Personally, I am among those people who believe that the freedom to speak on issues of justice, governance and public officials is the foundation on which the political and social development of a country is built. Judicial decisions, without question, must be implemented, but if the public is not satisfied with a judicial decision or decisions of the justice system, everyone should be free to say so publicly, but certainly also by following the path that the law provides for appealing decisions that are not liked. On the other hand, no matter how difficult it is or how difficult it may seem to face the criticism and the attacks on the work of justice institutions, magistrates are obliged to render decisions, magistrates must be prepared that their decisions will be criticized, but they must not be influenced, because their compass and defense are the constitution and the law.
However, when criticism goes beyond the limits of a different assessment of a judicial decision, then these interventions not only affect the way magistrates make decisions, but also undermine the public trust in the institutions of judicial power and I believe that this is the biggest cost that the principle of separation and balance of powers in a democratic society tries to balance. Exactly because of the irreplaceable role that the judicial power plays in such societies.
Unlike other powers or institutions, magistrates and independent justice institutions have a kind of limitation, which comes with the duty to show composure, even when they are unjustly attacked. Amidst strong public voices, this makes them be perceived as weak, but this is not the case at all. Composure should not be confused with weakness. Despite the statements of various public actors, magistrates should not forget that public reactions are not part of their function. But composure is! Composure is not a weakness of any kind, but respect for freedom of expression in democracy, is a constitutional distance from the political nature of other powers. The political deontology in relation with the judicial power, must not affect the behavior of the magistrates. In this case, I believe that the essence of the rule of law and European values is exactly the way we react, is what we do even when we do not agree with the decisions of each other.
On the other hand, nowadays the phrase “Judicial Independence” and the use of this important constitutional principle has acquired such a symbolic status, where its mere evocation is enough to close a discussion or a constitutional debate on a very important issue such as: “The presence, or existence of an excessive and unchecked independence of the judicial power on the one hand and the lack of a fair and effective accountability system on the other hand”, can bring serious consequences for the society of a country, as well as the very system of law that a society has chosen to operate. Finding the right balance between independence and accountability, not only does not pose a risk to judicial independence. But, but in a rule of law system, it is true that there can be no democracy if the judicial power is not independent of other powers, but also there can be no justice if the judicial power is not accountable. This is the goal of the rule of law: “Building a strong, independent and accountable judiciary.”
In this case, the fundamental issue that is raised for discussion is the identification of the best legal mechanisms and standards on how the accountability system of the judicial power is organized and how it functions. The accountability system is the basis and an important cornerstone for building a fair, effective and trustworthy judicial power, by the public. However, this is a long and dynamic process, which requires a combination of clear legal mechanisms and standards with a preventive character of accountability, as well as in special and exceptional cases of responsibility or punishment.
Here I would like to make an overview or explanation of how the accountability system is built. This system consists of two pillars or two divisions: responsibility standards and liability standards.
When we talk about responsibility standards, we have in mind a preventive mechanism through the application of measures such as:
- Recruitment or selection of magistrates based on merit, as well as their professional qualification.
- Substantive independence, structural and financial independence.
- Immunity and physical integrity.
- The exercise of control by the higher courts based on the principles of internal independence of magistrates, as well as the exercise of informal control between international jurisprudence or legal doctrine.
- The establishment of a system of ethical and professional evaluation of the work of magistrates.
At the same time, in order to further guarantee a professional and integrity-based judicial system, several additional mechanisms are applied, such as:
- Magistrates at different stages of their careers such as recruitment, appointment, or promotion are subject to checking of assets and background.
- Magistrates at all levels are subject to periodic declaration of assets, financial obligations and conflict of interest.
- For magistrates who exercise functions at the Special Structure against Corruption and Organized Crime (SPAK), as well as the Special Courts for Corruption and Organized Crime, there is a higher level of checking where, in addition to periodic checking of assets and background, checking is also exercised over their personal telecommunications or those of their family members.
- Magistrates have only a functional immunity, against criminal and civil proceedings that are directly related to the exercise of their functions. However, this immunity is not absolute.
If these tools are not effective, then in exceptional cases, and depending on certain circumstances, measures or means that relate to the “liability system” of magistrates and that are related to their criminal, civil or disciplinary liability are applied. In support of the provisions of Albanian legislation:
- The magistrate may be prosecuted, according to the provisions of the Criminal Code and the Code of Criminal Procedure. Specifically, the Special Structure against Corruption and Organized Crime (SPAK), which investigates criminal offenses in the field of corruption, has in several cases had magistrates as the subject of its investigation.
- A magistrate shall not be subject to civil liability for the exercise of his or her function, unless he or she has shown at least gross negligence.
- Magistrates of all levels, members of councils, the Prosecutor General, and members of the Constitutional Court shall be subject to disciplinary liability if, during or outside the exercise of their duties, they undertake actions that constitute disciplinary violations under the legal provisions in force.
In the analysis of these legal provisions, the responsibility of magistrates is the highest level of their internal accountability, that is, from within the system. This means that responsibility is not only an individual moral issue, but also an institutional obligation. This is a dynamic process, which requires preventive mechanisms, continuous professional development, as well as an institutional culture based on strong ethical rules and self-restraint. The responsibility of a magistrate does not end at the moment of his recruitment, but it continues uninterruptedly throughout the magistrate’s career through continuous professional training and development, guarantees of structural and financial independence, as well as a system of periodic ethical and professional evaluation, which is not only formal in nature, but serves as a mechanism for reflecting on the quality, efficiency and integrity of the magistrate’s work.
In this context, if the responsibility system functions fully, fairly and effectively, then the judiciary will be organized and will function on a stable basis of professionalism, legitimacy and integrity. Otherwise, if this system does not work, the application of the system of liability of magistrates (sanctioning) may be a delayed mechanism and reaction, not playing a preventive role, but only a punitive one, and resulting in not only undermining public trust in the judiciary, but also the legitimacy or authority of this power.
Therefore, it is essential to emphasize that the quality of a justice system is not measured or assessed by the ability to punish or sanction magistrates, but is measured by the possibilities, mechanisms and capacity to prevent behaviors contrary to the law or ethical rules. At the same time, we must all consider the fact that several issues may require a clear addressing and careful solution, in a systemic aspect and cannot be addressed only by the Office of the High Inspector of Justice, as is constantly claimed, on the role and functions of this institution.
This requires a comprehensive and careful approach, extending from the first processes of fair and meritocratic recruitment of magistrates by the School of Magistrates; to their treatment, career and continuous professional development; or periodic ethical and professional evaluation by the Councils. If these means do not prove effective, then in exceptional cases, depending on certain circumstances, and only within the framework of a due process of law, other measures may be applied, those which relate to the system of liability of magistrates and that are related to their criminal, civil or disciplinary liability.
Here it is the turn of the High Inspector of Justice, which in these 5 years has been committed to maintaining his institutional independence, being an important contributor to guaranteeing the independence of the judiciary. In order not to become a tool of pressure on magistrates and the judiciary, the HIJ is trying to implement the highest standards of due process, to ensure transparency in the procedures developed by it, as well as to demonstrate integrity in every decision-making, since the disciplinary proceedings of a magistrate are not simply an individual measure, but a test and indicator of the independence of the entire judicial system. Every disciplinary process against a magistrate is a test not only for the magistrate, but for the entire justice system, because it is related to the creation and strengthening of public trust in the justice system. Every disciplinary procedure developed in a fair, transparent and impartial manner is a clear message to society that no one is above the law, not even the magistrates themselves, who are tasked with interpreting and implementing it.
Dear Colleagues!
Keeping in mind, at any moment of our working day, the conditions in which magistrates work, the heavy caseload, the insufficient number of magistrates in the system, the increase in users of the judicial system, the fair and unfair expectations from the judicial system, I again believe that public trust in the judiciary is the most precious value of justice, but also its best protection. This value is not gained with rhetoric, but with concrete action and behavior. Our challenge, as institutions of the justice system, is precisely finding this fair balance, between the system of accountability and that of responsibility, which is at the same time the greatest challenge of any functional democracy.
In these times, our highest responsibility is to build a justice system that is independent, but that does not serve itself. Consequently, the mission of all our bodies is clear, to build an independent judiciary, but not an unchecked one. Let us build a disciplinary system that does not punish only in order to interfere with the independence of the judicial power, but to educate magistrates, and through our actions, our activity, our independence but also our functionality, our working examples, let us build a culture of professional and moral integrity of magistrates, where justice is not seen as the power of the magistrate, but as a right of the citizens.
Thank you!
