O razmerju med neodvisnostjo in odgovornostjo v sodstvu

Mag. Betetto je v svojem nagovoru razdelala razmerje med neodvisnostjo in nepristranskostjo sodniškega dela ter odgovornostjo za to delo in načini njenega uveljavljanja. Poudarila je, da neodvisnost sodnikov ni privilegij sodnikov zaradi varstva njihovih interesov, ampak sredstvo, s katerim se zagotavlja nepristranskost in je v interesu pravne države in vseh tistih, ki pričakujejo pravično rešitev sodnega postopka.

Poleg legitimnosti, ki jo sodnikom dajejo različni načini imenovanja, morajo sodniki legitimnost potrditi tudi z najvišjo kakovostjo svojega dela, ki upošteva visoke etične standarde. Sodnikova odgovornost se v prvi vrsti izvaja skozi transparentost sodnega dela ter sistem pravnih sredstev, le  v primeru nedopustnih ravnanj pa skozi kazensko ali disciplinsko odgovornost.

V okviru demokratičnih sistemov delitve oblasti se s tem povezana vprašanja lahko pojavljajo tudi na politični ravni. Napetosti med sodstvom in drugima dvema vejama oblasti niso nujno grožnja sodstvu ali njegovi neodvisnosti, ampak predvsem znak, da sodstvo opravlja svojo ustavno nalogo.

Čeprav so mehanizmi za zagotavljanje odgovornosti pomembni, lahko pride tudi do njihovih zlorab, predvsem v okviru dialoga z drugima dvema vejama oblasti in splošno javnostjo. Betetto meni, da sta za izboljšanje delovanja vsake veje oblasti  ključna dialog in sodelovanje z drugima dvema. Pogoj pa je, da ta poteka v vzdušju vzajemnega spoštovanja in ob posebnem upoštevanju varstva neodvisnosti in nepristranskosti. Opozorila je na poročilo generalnega sekretarja Sveta Evrope iz leta 2014, po oceni katerega so politiki in drugi komentatorji, ki so v preteklih letih javno kritizirali sodne odločitve, s tem spodkopali javno zaupanje v sodstvo v različnih družbah.

Betetto je zaključno poudarila, da je nesprejemljiva kritika sodnih odločitev na način, ki spodkopava sodno avtoriteto in vzpodbuja nepokorščino ali celo nasilje zoper sodnike, prav tako pa tudi ni sprejemljivo, da drugi veji oblasti upravičeno kritična stališča sodnikov v okviru izvajanja njihove sodne funkcije kaznujeta z odstranitvijo s položaja.

 

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Distinguished audience, dear ladies and gentlemen

What is the rationale for the independence of the judiciary?

The judiciary must be independent to fulfil its role in relation to the other powers of the state, society in general, and the parties to any particular dispute. The independence of judges is not a prerogative or privilege granted in their own interest, but in the interest of the rule of law and of all those who seek and expect justice. It is the means by which judges' impartiality is ensured. It is therefore the pre-condition for the guarantee that all citizens and the other powers of the state will have equality before the courts.

Separation of powers and judicial independence

It is generally accepted that a modern democratic state should be founded on the separation of powers. The judiciary is one of the three essential but equal pillars of a modern democratic state. All three of these powers provide a public service. None of the three act for their own interest but in the interests of society as a whole. In principle the three powers should be complementary, with no one power dominating the others.

However, no man is an island – none of the three powers can ever operate in complete isolation from the others. In that sense there can be never a complete “separation of powers”. Rather, in a healthy democratic state it has to be accepted that a certain level of tension is inevitable between the powers. If there were no such tension between the powers the suspicion might arise that one or two powers had stopped holding the other to account on behalf of society and thus, that one or more powers had obtained domination over the rest. Thus, the fact of tension between the judiciary and the other two powers of the state should not necessarily be seen as a threat to the judiciary or its independence, but rather as a sign that the judiciary is fulfilling its constitutional duty.

Legitimacy of the judicial power – why is it important?

Because the authority and power of judges is exercised on behalf of society as a whole, society and the other powers of the state are entitled to be satisfied that judges who are given this authority and power have a legitimate basis on which to exercise it in the name of society as a whole.

How can legitimacy be established?

The judicial power as a whole is created as a part of the constitutional framework of democratic states that are subject to the rule of law. By definition, if the constitutional framework of such a state is legitimate, then the basis of judicial power as a part of that constitution is just as legitimate and just as necessary a part of the state as the other two component powers. Thus, the fact that a constitution creates a judiciary to carry out this role itself conveys legitimacy to the judiciary as a whole. When deciding cases, each individual judge exercises his authority as a part of the judiciary.

In order to perform the judicial functions legitimised by the constitution, the individual judge needs to be appointed and become part of the judiciary. The appointment in accordance with the constitution and other legal rules of a particular state constitutes an individual judge’s “initial legitimacy”. It is a fact that methods of appointment in OSCE members differ. These include, among others: election by parliament, appointment by the executive and appointment by a council for the judiciary or another independent body. Each system has advantages and disadvantages. An appointment by vote of parliament and to a lesser degree by the executive has the advantage that it can confer additional democratic legitimacy, although it carries a risk of politicization and dependence on other powers. The CCJE has recommended that every decision relating to a judge’s appointment or career should be based on objective criteria and be either taken by an independent authority or subject to guarantees to ensure that it is not taken other than on the basis of such criteria. It has also recommended the participation of an independent authority with substantial representation chosen democratically by other judges in decisions concerning the appointment or promotion of judges.

Yet, the initial legitimacy is not enough. Each judge and the judiciary as a whole must achieve and maintain additional legitimacy by earning and retaining the confidence of the public. This second kind of legitimacy can be called “acquired legitimacy”.

I would like now to discuss how this “acquired legitimacy” can be obtained.

It must be earned through work of the highest possible quality which respects high ethical standards. In its opinions, the CCJE has discussed different aspects of good judicial work and the ways of maintaining and improving the quality and efficiency of judicial systems in the interest of the public, such as initial and in-service training of judges, fair trial within a reasonable time, effective application of international and European law, councils for the judiciary at the service of society, the quality of judicial decisions, the effective enforcement of judicial decisions, information technologies, the specialisation of judges, and the evaluation of judges.

The judiciary must also earn trust and confidence by being accountable to society and the other powers of the state. It is therefore necessary next to examine why and how the judicial power and individual judges are to be accountable to society.

What do we mean by accountability of judicial power?

In recent years, organisations which serve the public have moved towards more openness and towards a greater explanation of their work to the public they serve. A public body will be “accountable” if it provides explanations for its actions and it assumes responsibility for them. This “accountability” is as important for the judiciary as for the other powers of the state. The two principles of judicial independence and accountability are not irreconcilable opposites. In the judicial context “accountable” must be understood as being required to give an account, that is: to give reasons and to explain decisions and conduct. “Accountable” does not mean that the judiciary is responsible to or subordinate to another power of the state, because that would betray its constitutional role of being an independent body.

Why is accountability important?

First, the judiciary (as the other two powers of state) provides a public service. It is axiomatic that it should account to the society it serves. Second, in doing so the judiciary recognises its manifold connections to society as a whole. Third, the judiciary is reliant on the legislature for the legislative framework it applies. Therefore, the legislature is entitled to have an account of how the laws it has enacted are being administered by the judiciary. Four, the judiciary receives financial resources through decisions of the legislature or the executive. Whatever way the budgetary and administrative stewardship of the judiciary is organised in a particular state, its resources are allocated by parliament and come, ultimately, from tax paying citizens. Therefore, the judiciary must account to society for how these financial resources are spent.

How is accountability to be carried out?

What should the judiciary be accountable for?

Justice aims to resolve disputes and, by the decisions which it delivers, to fulfil both a “normative” and “educative” role. Therefore, first and foremost, the judiciary must be accountable through the work of the judges in deciding the cases brought before them, more particularly through their decisions and the reasons given for them. Judicial decisions must be open to scrutiny and appeal. This may be called “judicial accountability” and it is paramount. In accordance with the fundamental principle of judicial independence, the appeal system is the only way by which a judicial decision can be reversed or modified after it has been handed down and the only way by which judges acting in good faith can be held accountable for their decisions.

To whom are the judges accountable and how is it done?

Individual judges and the judiciary as a whole are accountable at two levels. First, they are accountable (in the sense described) to the particular litigants who seek justice. Secondly, they are accountable to the other powers of the state, and through them, to society at large.

There are two forms of accountability. First, judges must be accountable by working in a transparent fashion. By open hearings and by their reasoned judgements, individual judges will explain their actions and their decisions to the litigants. Secondly, if a judge has engaged in unacceptable actions he must be held accountable in a more robust way, e.g. through the application of disciplinary and criminal law. This can be called “punitive accountability”

Besides open hearings and reasoned judgements, there are several other ways that the judiciary can be made to account for its work. One means is external: for example, by annual reports which are available to the general public, audits of a public audit committee, the work of inspectorates, and investigations. The other means is internal: it is by the individual evaluation of judges. In most member states, judges are subject to some form of individual evaluation at some stage or other of their careers after appointment. Evaluation can be a useful means to hold judges accountable. The individual evaluation of the judges’ work can help to gain information on the abilities of individual judges and of the strength and weaknesses of a judicial system. Evaluation can help identifying the best candidates for promotion and thereby improving the quality of a judicial system.

To conclude, each of the three powers of the state depends on the other two to work effectively. Discussion is crucial to improve the effectiveness of each power and its cooperation with the other two powers. Provided that such discussions are undertaken in an atmosphere of mutual respect and have particular regard to the preservation of the independence and impartiality, these discussions will be beneficial to all three powers of the state.

However, while all the mechanisms described above can be valuable in ensuring that the judiciary is accountable, they also bear the risk of being misused. Dialogue between the judiciary and other powers of state as well as with the public at large can be misused to violate judicial independence. In 2014 the Secretary General of the Council of Europe in his report remarked that politicians and other commentators who have publicly criticised court decisions in recent years have thereby undermined the public confidence in the judiciary in various societies.

It is not acceptable for other powers of the state to criticise judicial decisions in a way that undermines judicial authority and encourages disobedience and even violence against judges. Moreover, it is also not acceptable that valid critical comments from the judiciary made in the course of their judicial duties should be met by removals from judicial office by one or other power of the state.

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