It is definitely a pleasure to be part of this panel, because first of all it is organized by a civil society organization and I strongly believe that Civil Society Organizations can play an even greater role, to do exactly this thing that has brought us together today, the discussion about the justice reform, the expectations, its progress, the challenges, the successes, as well as the standards that are being set, or not by the Justice bodies. Of course, all these challenges must be measured based on qualitative and quantitative indicators and, of course, professional analysis, so that civil society, the society in general, the media, politics, can be clear about how an external actor views the work of justice bodies and I definitely thank the Center which organized this meeting today, as well as the Embassy of the Netherlands, because it is the third or fourth time that different organizations have organized activities regarding the work of the High Inspector of Justice and it is a pleasure to see that our work is evaluated, or at least analyzed or reviewed on the basis of professional analysis.
Second, the topic is very delicate. Arjani said that the HIJ is in a more favorable position. I would say that the HIJ is in a more delicate not favorable position to do exactly this thing – to spread the legal and political culture in the community, to set the standards of law in the community. Actually, this is the work of us all. The justice reform was conceived as an address to the identified problems of delays, non-delivery of written court decisions, corruption and so on, and a new architecture of institutions resulting from the reform in justice was created. But I think that this new architecture created a new, strong basis for a new social mentality – the mentality of respecting the separation of powers, which in my view, unfortunately, is not being conveyed today, neither by the justice bodies nor by the civil society organizations, media, or politics.
This is the corner stone where the discussion on the progress of the reform in the institutions of justice should start, I think, because only by recognizing and respecting the independence of the separation of powers will we understand that the standards we are talking about are not standards to protect judges, or prosecutors, but they are standards to protect the society.
If the society does not agree today with a court decision, or if a judge, or prosecutor is held responsible today, because the society does not agree with his/her decision, or is not oriented towards the institutions defined by the constitution for the concerns about the judicial system, or even worse, in case other powers want to take advantage of the fact that prosecutors and judges cannot defend their decisions because of the law, then we only add problems to our society. If we fail to understand this, then the whole discussion goes to unknown levels and unknown directions.
On the other hand, this reform, or the conveyance of the idea of the separation of powers, may succeed if we as a society do not begin to cultivate standards of law. The work of judges and prosecutors is not a statistic, nor is their dismissal from service. It is a matter of standards; standards used nowadays to legally proceed prosecutors and judges, so that the body of judges and prosecutors know exactly what they will be inspected for, so that they will not be caught by surprise by the bodies that proceed the judges and prosecutors so as to make sure that these bodies do not
use this inspection for political and financial influence traffic. For this reason, they have separated the powers.
Second, as I said, justice is not a statistic, it is a social value. If we as a society do not start developing it in schools, in politics, in the family, then how can we expect judges and prosecutors to deliver justice? Obviously, we want independent justice, but is this society ready to accept independent justice? Is this politics ready to accept independent justice? Is the media ready to accept this independent justice? These are discussions that go to the genetics of social development. And unless they are discussed openly and fundamentally, I think that the discussion about the progress of justice institutions will be incomplete. From this point of view, I also consider this topic today, because at first glance it seems simple. I believe that this is the foundation of the misunderstandings the society has today even with the bodies of justice, that is, with the work of the bodies of justice.
The society, for different reasons, and we cannot judge the society, because due to the lack of prosecutors and judges, today citizens are not receiving justice. This is evident and of course we are in this part of the society, but on the other hand the new bodies of justice HIJ, HJC, HPC are taking measures as far as they are entitled by law, to address these issues. However, if we point the finger, without understanding the problem, without understanding the work of our institutions, the standards we are trying to set with great difficulty, which in our view, do not respond to the political debate of the moment but to the challenges of the future, and what we are trying to build concerns the next 10 years, the next 15 years, and not the solutions of present situation, because we solve the situation today, but most likely it will turn into a precedent, which we will suffer 10 years later.
And so, we go round and round again in a vicious circle. Therefore, we must understand why the justice reform and the separation of powers were created. Once we begin to understand and accept with great difficulty this separation of powers, then we will facilitate our future work. There are many difficulties at the moment, but at least we have a clear path for the future, with a clear vision for the future. This is my way of looking at what is happening today. We may not see eye to eye on this, but I think that we tried the opposite of what is happening today for 30 years, and this is where we are. Then let’s try to respect the separation of powers
Question: I checked out the HIJ site and saw some interesting data, if I may call it that. From the processing of data, or complaints, there are 5685 administered complaints and others in the process of review, a considerable number. You talked about standards. Can you tell us, what are the standards that you are setting with your work?
High Inspector of Justice Artur Metani: Standards are the ones that law provides, so let’s protect and respect what law provides. This means that the procedures followed by the High Inspector of Justice for the verification of a complaint against a magistrate, for the investigation against the magistrate based on this complaint, and then for the disciplinary proceedings before the councils, must have the greatest guarantees that the law provides for the confidentiality of this judge or prosecutor data and information. And this is not to protect a specific judge or prosecutor, but to protect the guarantee provided by the Constitution for the figure of the judge and prosecutor as
well as for a regular legal process. And this is the most important standard set by the High Inspector of Justice together with the Councils. And what makes me feel the happiest today is these standards we are talking about, standards which have been confirmed by the Councils, which have been followed by the High Inspector of Justice and have been confirmed by the Appeal Chamber and undoubtedly the Councils in cases of disciplinary proceedings. But what does this create? This undoubtedly creates guarantees and convince judges and prosecutors that neither the High Inspector of Justice nor the Councils are being used politically, or for influence trafficking to prosecute them against the law. And this gives independence and by giving independence it gives confidence! And obviously judges and prosecutors are independent although you cannot become independent within a day. It needs time. However, this independence may lead to cases of judges and prosecutors abusing their decision-making discretion. Therefore, regarding all the above, I say that we must cultivate the right as a society and for this reason we must all do our part, not only the HIJ and the Councils, but also the media, civil society, the society in general must develop the sense of right. And the judges and prosecutors in this society have encountered these advantages, developments but also these shortcomings. Just as there are good prosecutors and judges, there are also bad ones; there are good and bad doctors; there are good and bad journalists; there are good and bad politicians. For these reasons we should focus on the vision of the future, such as the separation of powers and respect for the independence of judges and prosecutors, and we must not consider it a protection for judges and prosecutors, but a protection for the society. Obviously, this independence I am talking about, and I would like to emphasize it once more, may come with a price at the moment, which is normal, but it is better to pay this price now rather than punish a judge or a prosecutor because of his inner conviction which may not be professional because of his/her professional development. And in my view, this is better than making a constitutional violation just to fix a situation today.
Question: If a citizen files a complaint with the HIJ today, how long does it take for this complaint to be reviewed?
High Inspector of Justice Artur Metani: Pursuant to the law, the High Inspector of Justice must respond to the citizens for the complaints they make – if the complaints will be verified or archived, within 3months. This time limit is generally not met due to the burden caused by the backlog inherited from the previous institutions of Justice, which were responsible for handling citizens’ complaints and did not handle them. All this backlog of unhandled complaints came to the High Inspector of Justice. Over 2,100 complaints came from the previous institutions, while for a year and a half, the High Inspector of Justice has worked with two people. Undoubtedly, it seemed illogical to carry out thematic inspections and disciplinary proceedings, but we started the latter immediately. And it is enough to see how long it took the HIJ to present its first disciplinary proceeding compared to how long it took other institutions, e.g. Independent Qualification Commission (IQC) to start the first re-evaluation process from the moment it was established, to realized it. There is clear data. That’s why I say that when it comes to measuring the work of justice bodies, it should be measured by analysis and standards, not by general perception.
Question: Is there a specific procedure for pensioners, or disabled people?
High Inspector of Justice Artur Metani: There is no special procedure for special categories. The High Inspector of Justice, because of the burden created by the backlog of complaints as well as the new complaints coming, approved a methodology for handling complaints, a methodology which is public, which states what the priorities are – like the statute of limitation, the magistrates in the system, all of which makes it possible to select complaints and at the same time have a transparent process for selecting the complaints.
Question: If there is flagrant violation to the citizen in the court of first instance, do you handle these cases?
High Inspector of Justice Artur Metani: The law stipulates that the decision-making of the HIJ is final, in the sense that it archives it and if it is archived, the citizen has the right to appeal this decision of the HIJ to the High Prosecutorial Council for prosecutors, or to the High Judicial Council for judges. And if the Councils decide that the Inspector should investigate it, they send it back. In all this multitude of complaints that have gone to the Councils for the decision-making of the HIJ, there is no single case in which the Councils have expressed the opposite decision, that is against the decision given by the HIJ. If the request is archived, because the case is at trial in the court of first instance, then it ends there. If the citizen agrees with the decision of the Court of Appeal or the Supreme Court, then he still has the right to file a complaint. But there is a problem here, because the citizens who make a complaint think that they will get the solution of the court case at the HIJ, which is totally wrong. What is happening now, and I don’t know what to do about it, is that citizens, after submitting a complaint, receive a letter with a protocol number from the HIJ, which is the registration of the complaint, and they present this letter at every civil and criminal court process by saying that they have filed a complaint with the HIJ and request the dismissal of the magistrates. Whereas this is not a legal effect, so they exert pressure and this is a delicate role, because you have to maintain very important balances. It is very important that the judges, through the letters of the High Inspector of Justice, are not influenced by even the slightest pressure. And that is why the role and position of the High Inspector of Justice is delicate and not favorable.
The final remark of the High Inspector of Justice Artur Metani:
I would like we all to agree in this meeting that first of all, we need the separation of powers and the independence of the institutions. We must come up with the idea that the Parliament should ask me for information or to give account of the HIJ performance, we must agree that the HIJ and all independent institutions have the right to ask the Assembly for a different quality of laws, a different quality of their legal or political debate, a different quality of their decision-making, because things are interrelated. An institution cannot be successful, no matter which institution, if others have a low performance. This is what should come out of this meeting I believe.
Second, we must come up with a common opinion again, that we cannot accept that the Assembly, in its parliamentary debates, appeal to the High Inspector of Justice to investigate this or that. No, definitely not! The Constitution stipulates in the system that if you have a complaint, file it with the institution. We start our verification of course, but this is if you don’t agree, so if you start the
verification, you must maintain the balance, why you start it so that the judge will not understand or will not feel that you are doing it for political reasons. It has happened before and the judge was protected by the fact that the High Inspector of Justice was set in motion by politics, a guarantee that Strasbourg protects a lot. It costs nothing to make a complaint. I have been scandalized by a parliamentary debate between the majority and the opposition, on a pregnant woman who was arrested in Shkodër. “We appeal to the HIJ to release her from prison”, – I heard them say. I could not believe that they expressed themselves like that. No, definitely not, we must all agree that this cannot happen, not even for the sake of I have been scandalized by a political debate.
