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Access to Justice in Macedonia and Some International Experiences
Assembly of Republic of Macedonia
The Republic of Macedonia is facing numerous, heavy problems in the judiciary. The researches of the public opinion show a very low rating of the judicial sector compared to the other segments of the society. In the period between 2007 and 2015 there has been a process of partisation going on and a complete subordination of judiciary toward the executive power and close party circles. Although there are reforms all the time, the results are more than poor, one can even say that the reforms are being abused for hiding of and resisting to the required changes or are being used as an excuse for maintaining status quo and establishing of interests. The Strategy for Reform of Judicial Sector in Republic of Macedonia, for the period of 2018-2022, states that despite all new legal projects and institutions in the judicial sector which bear international standards and norms, the problem still remains of their inconsistent realization and application, whereas the achieved results rest in the shadow because of its violated independence resulting in low quality and distrust among citizens. The part on quality, independence and fairness states that all recent analyses prepared by the domestic and international experts show an uneven practice of courts which is a problem and results in legal insecurity among citizens.
2. Aspects of access and implementation of justice in Republic of Macedonia
Regarding the accountability, independence and fairness, it's been said to be a state of denial of responsibility by all makers of the judicial system about the unfavorable situations and consequences of their work. Usually this is done by shifting the responsibility from one to another institution and hiding behind the close interpretation of own authorizations and competences of each of those institutions. Especially alarming is the fact that there is no legal ground (nor actual opportunity) for individual accountability of the members of the Judicial Council and the Council of Public Prosecutors. The part on transparency says that many relevant international reports state a non-transparent work of the Judicial Council and the Council of Public Prosecutors with regard to the content of the elaborations of their decisions. The part on efficiency states that the rate of solved cases in most of the courts is 100% which means that they are able to manage the income of new cases for one year. For few years now, the unsolved court cases are no longer a significant problem. For certain number of old cases which are still unsolved, the Judicial Council in cooperation with 19 presidents of courts has adopted a Strategy for their solving with projection and proposition of activities for overcoming the situation. Pursuant the Report on the work of the Judicial Council of Republic of Macedonia for 2017, in January 2017 there were 10.019 cases over 3 years old, 342 cases which were over 7 years old and 165 cases over 10 years old. In December 2017, there were 3865 cases over 3 years old, 229 cases over 7 years old and 91 cases over 10 years old. According to the numbers stated, the number of unsolved cases has been reduced to 6.154 cases over 3 years old, 113 cases over 7 years old and 74 cases over 10 years old. The rate of solved cases which are over 3 years old is 61,42 %, for cases over 7 years old is 33,04% and for cases over 10 years old the rate is 44,8%.
On 01/01/2017 the number of unsolved cases from the previous year is 123.205, accepted new cases were 480.370, and total cases in operation were 603.211, 503.680 of which were solved, so on 12/31/2017 there were 97.933 unsolved cases. This means that the courts worked efficiently and up to date, taking into consideration that they managed to overcome the bringing in of the new cases and reduce the unsolved ones by 25.272 cases. According to the previously gathered data, by areas of appeal, in 2017 the most new cases, cases in operation and solved cases, were in the area of the Court of Appeal in Skopje and, the least, by all categories, in the area of the Court of Appeal in Shtip. In the Administrative Court, for the period October-December 2017, the court has 38 unsolved cases in duration from 3 to 7 years, whereas there are no unsolved cases which 7 or 10 years are old or over 10 years old (Annual report on the work of the Judicial Council of RM 2017: 24).
The Strategy expresses the concern for the dysfunctionality of the access to defender in a criminal proceeding. That is to say, there are no detailed standardized written procedures and mechanisms that would provide or facilitate the right to defender of the suspect when they are called to interrogation in the police, especially if put under custody, which is only one of the reasons why the suspects in Republic of Macedonia almost never use defender in the police. Also, it has been stated that the system of witness protection introduced in 2005 points to number of problems and inconsistencies in its application.
3. The issue of politically motivated cases
1. During the preparation of the Draft Strategy for Reform of Judiciary, a discussion was opened about the acting on court cases where there were significant violations of freedom and rights of citizens, and which in the reports of the international organizations are qualified as "politically motivated cases". This issue was not treated in the Strategy but was left to be subject of discussions for finding legal modality together with citizens' associations in which members are persons concerned with such court cases. These court cases were labeled as "police staged cases" by the citizens' associations and domestic public. In the initial version of the Strategy it was stated that:
for the past period Macedonia has experienced serious falling of the independence of the judicial institutions and the system. This was caused by the aggressive interference of the executive power in the position of the system independence and autonomy of these institutions. Such a strong partisation especially in the judiciary, has led to fatal results whereas the standard European norms and reforms that were accepted, did not give the expected results and effects. Fundamental institutional stability and opportunity for justice have been violated, selective justice has been applied and the rights and freedoms of the citizens have been violated, exactly by the institutions which were supposed to defend them. This unstable position of judiciary sector has brought into question the wholeness of democracy and protection of freedoms and rights of the citizens in Macedonia.
2. In the period of preparation of the Strategy for reform of the judicial system, the citizens' associations which make efforts for solving the politically motivated cases (the Committee for Protection of Rights and others) delivered their own suggestions to the draft Strategy, as well as a draft legal solution whose goal would be to provide repetition of the court proceedings with fair trial. The request was elaborated with the assessments that the stated period was marked with massive and severe violations and deprivation of guaranteed rights and freedoms and that
every year there is an increase of the number of such cases creating a state of personal, property and legal insecurity among the citizens. A social awareness was created that there is no rule of law in Republic of Macedonia, but rather sole interests of the leadership of the ruling party. The pillars of the constitutional regime were crashed: the citizens, their freedoms and rights, the principal of power superstation, as well as the fundamental value of the constitutional regulation and the parliamentary democracy.
Furthermore, the elaboration states that the perception of justice being unavailable, unachievable and invisible was confirmed everyday more by the massive violations of human freedoms and rights in all areas, especially the judiciary but also in the acting of Public Prosecution and the Ministry of Interior. The
Massive and aggressive shapes of violation of rights and freedoms were stated in all annual Resolutions of the European Parliament for Republic of Macedonia; the Reports of the European Commission on the progress of Macedonia; the Reports of the expert team of EC led by Reinhard Priebe from 2015 and 2017; the Annual Reports of the State Department (Parts from the Completed summaries and chapters of "political prisoners" in the Reports on human rights for Macedonia); OSCE and ODIHR, GRECO, the Helsinki Committee for Human Rights and other international government and non-government organizations. Especially emphasized were the assessments for alliance of the party with the country, the existence of politically staged or motivated processes, as well as the political detainees and prisoners.
3. Pursuant the assessments of these associations and the experts, in the period from 2007 until 2015 the judiciary was severely pressed by the partisation regime, whereas several facts are listed. The Annual Reports of the Public Prosecution of Republic of Macedonia for 2012, 2013 and 2014 indicate absurd data, which illustrate the unbreakable relation of the executive power with judiciary and its subordination. The analysis of the stated data leads to the conclusion that there is a serious problem with serving justice in the criminal court. The fact that 99.9% of the criminal charges filed to this public prosecution came from the Ministry of Interior (MOI), the Ministry of Finance and the other state organs and, only a small number of those criminal charges were dismissed (less than 2%), whereas the percentage of convictions by the court to these charges is extremely high (over 95%), points to several conclusions. Either MOI and the other state organs prepare perfect criminal charges, or the public prosecution takes them without being critical enough and initiates criminal prosecution.
This relation of the prosecution toward the Ministry of Interior would not be a reason for great concern had the court acted upon the requests and charges of the prosecution with the necessary independence and competence. It's a defeating data that in the three years that have been analyzed, acting upon total of 717 requests for custody the court has accepted literally all requests of the public prosecution (100%)! In only 11 cases or 1, 5% instead of the required custody it was set a house arrest. Not one request was dismissed. Unlike 2012 when instead of custody 7 persons (around 4%) were given house arrest, in 2014 the court was more in favor of the prosecution and so a house arrest was set to only one person or 0, 4% of those who filed for custody. This means that, during the rule of the old Law on Criminal Proceeding (LCP) when an investigative judge was deciding on custody, the court had ten times more severe criterion for setting custody, than today when pursuant the new LCP this is decided on by judge in a previous proceeding. The big efficiency, that is to say the short duration of the proceedings is very often a result of the compromise of the suspects with the unjust, in a phase of making arrangements with the prosecution on the type and level of penalty.
The fact that within the analyzed period, in more than 95% of the cases of the public prosecution for prosecuting organized crime and corruption the criminal court passed convictions, only confirms the suspicion in the fairness of the court and the consistent application of law. According to this one can undoubtedly conclude that in the past period the criminal court had high favorability toward the public prosecution, which clearly indicates to favorability toward the power.
4. In the recommendations of the group of high experts on systematic issues of the rule of law led by Reinhard Priebe which referred to the tracking of communications in the spring of 2015, point (15) emphasizes that: "Many of the previously raised suspicions in relation to the interference in court matters, the limitations of the freedom of media, electoral irregularities, inseparability of country from the party, as well as the lack of supervision over the intelligence activities were confirmed by the group's findings". Part 2) that refers to "Judiciary and prosecution" states the following:
Judicial and prosecution services should be able to act independently and fairly (this way avoiding giving any impression- justified or not- of treating the cases on a selective or imbalanced manner) and in many areas this seems to be the case. On the other hand, there is a perception that in some areas, and especially in relation to the cases which are considered to have political dimension or are believed to be of interest to the politicians, common standards are put aside. The group was notified by several sources that there is an atmosphere of pressure and insecurity within the judiciary. This was confirmed by the leaked conversations. Many of the judges believe that the promotions within judiciary are reserved for those whose decisions favor the political establishment. A court process must not have a thing like "political case". All cases that come into the judicial system should be solved with the same approach of efficiency, independence and fairness, by simply applying the law, both material and procedural, on a clear and predictable manner. This is necessary if we want to maintain the trust of the public in proper functioning of judiciary and the public prosecution or if we want to regain this trust.
The Second Report of the group of high experts led by R. Priebe which was published on 14.09.2017, the part on judiciary, point 26 states that
Only one of the twelve recommendations from 2015 in the area of judiciary and prosecution was implemented". The next point, 27, states the following: Many of the practices revealed in the report for 2015 have continued to exist. The control and abuse of the judicial system by small number of judges on powerful positions in order to serve and promote political interests have not reduced significantly. These judges have continued to make pressure on their colleagues through control over the five systems for appointing, assessment, promotion, discipline and dismissal, which are used for awarding of the obedient and punishment of the disobedient.
Previously in point 18 it was stated that: "The fight against no punishment requires determination of accountability. The wrong acting and the irregularities should be accompanied by proper correctional measures and sentences".
5. In this sense, the associations, i.e. the Committee for Protection of rights as an association of the organizations and the concerned citizens has requested that
all criminal and other court proceedings which decisions were passed against the principal of rule of law and the compliance with the generally accepted norms of international law, by wrongly applying the law and using selective, biased and inaccurate assessment of facts and evidence by violating the rights of the convicted, be repeated. This repetition is requested in cases of: violation of the right to equal freedom by violating the right to freedom and right to life; violation of the principal of presumption of innocence in the proceeding; violation of the principal for guarantee of safety and secrecy of personal data; abuse of witness under protection by using fake witness, police or agent provocateur; abuse of special investigative measures by unauthorized tracking of communication and existence of illegally tapped materials; abuse of the deal concept with authorized plaintiff by forcing the prosecuted to sign a punishment deal and using the deal as evidence to harm other persons who participated in the same procedure; wrong application of law; abuse of the system for automatic allocation of cases (AKMIS), violation of the right to defense and in all cases of fabricating and staging facts and evidence.
6. "Under scrutiny" is the title of a report on twelve effective court cases prepared by the professional team of "Transparency International Macedonia" in cooperation with the citizens' association which makes efforts to solve the politically motivated cases "Zelena Lupa" and the initiative for founding of the "Committee for Protection of Rights". Expert analyses were conducted of politically motivated cases and of the implementation of the law by the Public Prosecution and the Court. "From the analyses and the presented conclusions, it seems that usually the presented positions on the work of the Public Prosecution indicate on failures in the acting which reflect as failures in the accusations regarding the legal qualifications of the acts, determining specific actions on which are based the claims for guilt and accountability of the accused and insufficient analysis of evidence".
This analysis brings out the following conclusion and statements: incomplete determination of circumstances for setting custody; public prosecutors have no clear idea of the criminal degree that is subject of prosecution; the accusations are not sufficiently elaborated in relation to the entities in the criminal acts and the guilt of the accused and are not supported with enough evidence. There's a lack of description of the actions based on evidence; the treatment of organized criminal group, association, "gang" or creator/creators is incomplete and inappropriate; incompletely determined actual state of the verdicts, the motive and the actual state for passing the verdicts are not being established and there are verdicts based only on circumstantial evidence; there are verdicts with obvious violations of the Criminal Law damaging the convicted; there's a strict criminal policy going on where the personality of the accused is not taken into account.
7. Taking into consideration that there was no political will to pass legal solution for the politically motivated cases, the Committee for Protection of Rights and the other allied citizens' associations adviced the Government of Republic of Macedonia to adopt by-laws, i.e. decision on measures and mechanisms for their monitoring. These measures should provide the concerned citizens access to documents, facts and evidence in the institutions. The government accepted this initiative and on its 68-session held on 05/15/2018 reviewed and adopted Information which was prepared based on the analyses submitted by the Committee for Protection of Rights. The Government adopted the decisions in order to provide access to justice for the persons concerned through the ministries and the other state organs of the state administration, in accordance with the positive regulation, by manner of requests and complaints, for the purposes of control and collection of facts and evidence. Among other things, there is also the decision for forming Work Group that will monitor the acting upon requests, complaints and proposals to the organs of the state administration through control and collection of facts and evidence, a process which is set to last one year. The Work Group consisteds of a representative of the Government of RM, the state secretaries of the Ministry of Justice and the Ministry of Interior, a representative of the Ombudsman of RM and a representative of the Committee for Protection of Rights and the allied organizations. The NGO sector is part of joint activity with the Government for monitoring the process. So far, the Work Group has held several meetings. Nonetheless, the associations and the concerned citizens are not satisfied with the current flow of the implementation of the government decisions and especially with the acting of the Ministry of Interior. That is to say, even though this Ministry has received many requests by the concerned citizens, no positive replies were delivered, i.e. the replies which were delivered cannot serve the purposes for which the government decisions were adopted.
8. When talking about the problematic in the efficient access to justice in Republic of Macedonia, one cannot forget the issue of acting of the executive power, i.e. the ministries and other organs of state administration. For the requirements of this paper we will address this issue as relevant here, but this requires more thorough research about the main reasons why this has been existing for such a long time. The reports of the expert group that was led by R. Priebe point to some directions in this regard. That is to say, it is a fact that many of the effective proceedings come exactly from the disputable or right acting of the organs of the executive power. To the extent in which the executive power obeys the legal regime and creates lawful separate administrative and other acts and lawful acting in whole, is the extent in which it could expect the citizens to create the perception of justice and opportunity to ask for justice before the judiciary organs.
4. Abuse of the system for electronic allocation of court cases
In order to stop the abuse and avoidance of the system for electronic allocation of cases (AKMIS) in courts, the Strategy for Reform of Judiciary states that it is necessary to implement processes for investigating the ways of its use. This system is not yet put into operation in the public prosecutions which are technically equipped. Unfortunately, in Republic of Macedonia, technology development does not facilitate the access to justice. Instead, it becomes a tool for manipulation and block out. The report from the "Conducted insight on the functionality of the information system and supervision over the application of the provisions from the Court work book in courts" (AKMIS) by the Ministry of Justice, clearly shows that this system has not yet started to operate properly and this makes room for its severe abuse. The mentioned Report concludes the following: "The courts do not apply properly the provisions of the Law on management of the movement of cases in courts and the Court work book, AKMIS is not being used completely according its purpose, the provisions of the legal regulations for common changes of yearly schedules in courts are being abused, the provisions for specializations of judges by areas are not complied with". In point 4 of the Report, it is stated that: "The provisions of the Law on management of the movement of cases in courts pursuant which "the automated computer system for management of court cases must be used when managing the movement of the court cases" are not complied with. And in point 5 of the Report, it is stated that "the allocation of cases was made by hand, which the acting president of Court Stojanche Ribarev called "double AKMIS". The movement of cases was not made in direction of judges, the cases were not registered, and the registrar only made selection of professional associates who then made selection of criminal council to report the case to. From the beginning of the operation of AKMIS until the moment of supervision, cases are being allocated by hand in 14 registers".
5. Violation of trial in reasonable time limit: condition and indicators
One of the authorizations of the Supreme Court of Republic of Macedonia is to decide upon request of parties and other participants in the procedure for violation of the right to trial within reasonable time limit, in a procedure set by law before the domestic courts in accordance with the rules and principals set by the European Convention on Human Rights and Fundamental Freedoms and implementing the court practice of the European Court for Human Rights. To acquire this right, the party that considers that the competent court has violated the right to trial within reasonable time limit has a right to file a request to the Supreme Court for protection of the right to trial within reasonable time limit.
The trial within reasonable time limit is a fundamental principal of the process law and primary process legal standard. It comes from the principal of rule of law and refers to the fundamental qualities of justice serving. It is a complex nominal conglomerate because no one can say its scope in general and in advance for all cases. The legislator cannot determine the duration of every specific proceeding a priori, simply because the proceedings are different by many objective and subjective elements. Therefore, when creating a norm that establishes the right to timely legal protection, one should use general clause that is individualized in every specific case. In modern conditions one tends to establish acceptable final time limits in which, except in some exceptions, a certain court proceeding is expected to end reasonably.
When assessing whether or not the criminal proceeding is consistent with the standard of trial within reasonable time limit, the preliminary question that has to be addressed is what period should be considered as legally relevant. In general, the proceeding is considered to begin in the moment the person finds out about the criminal charges against them. According to the European Court for Human Rights (ratified by Republic of Macedonia on 10th of April 1997); the beginning of the criminal proceeding is timely moved before the filing of charges. Hence, the beginning is considered to be the moment the person is officially notified that they would be charged or that there are grounds for suspicion that they have committed a criminal act or, it's the moment when the person is deprived of its freedom or against them is initiated preliminary investigation. The end limit of this period is the moment a decision is passed. The criminal proceeding ends with the passing of decision in last instance, which depending on the circumstances of the case may include a proceeding both by regular and exclusive remedies.
The European Court for Human Rights considers the following criteria when assessing whether or not there is violation of the right to trial within reasonable time limit: 1. The complexity of a case: this criterion refers to whether it's about a large and complex case, both regarding actual and legal matters. 2. The behavior of the accused: whether or not the accused caused the proceeding to be prolonged with their behavior. At the same time, the accused is not expected to restrain from taking process actions which are at their disposal. 3. The behavior of the authorities i.e. the court and the public prosecution: an obligation of the state organs to take all actions necessary for efficient and expedited completion of proceeding. 4. The significance of the proceeding outcome for the accused: the additional criterion that the Court in Strasburg assesses refers to the special circumstances related to the personal circumstances of the accused and the requirement for expedited decision making for the criminal charges against the accused, for example, in cases when the accused is in custody, when is ill from certain heavy disease.
Taking into consideration the received data on the court proceedings, a conclusion can be drawn that the two courts of first instance in Skopje have the most filed requests and established violation of the right to trial within reasonable time limit, by the Supreme Court of RM, but this is to be expected considering the scope of work these courts have. In the Courts of First Instance in Kumanovo, Gostivar and Bitola there is significantly smaller number of filed requests. Hence, in the period between June 2015 and September 2017 in relation to acting, there were 105 filed requests to the Court of First Instance Skopje 1 Skopje, for 38 of which a violation was established. In the period between September and December 2017 there were 15 filed requests, for 8 of which a violation was established. And for the period between January and March 2018 there have been 8 filed requests, for 3 of which a violation was established. In the period between June 2015 and September 2017 in relation to acting, there were 323 filed requests to the Court of First Instance Skopje 2 Skopje, for 100 of which a violation was established. For the period from September to December 2017 there were 38 filed requests, for 11 of which was established a violation. And for the period between January and March 2018 there have been 29 filed requests, for 4 of which was established a violation.
The total number of filed requests for protection of the right to trial within reasonable time limit and the number of cases in which was established a violation of this right by the Supreme Court of RM, for proceedings before the Administrative Court of RM, is the following: in the period between June 2015 and September 2017 in relation to acting of the Administrative Court of RM there were 345 filed requests, for 109 of which a violation was established. For the period between September and December 2017 there were 54 filed requests, for 21 of which was established a violation. And for the period from January to March 2018 there have been 48 filed requests, for 19 of which was established violation.
6. Free legal aid: a new law as a solution to the old cruel model
The Law on Free Legal Aid established the right to free legal aid for the first time in Republic of Macedonia. The first law was adopted in 2009, started to apply on June 1st, 2010 and experienced three amendments. The purpose of the law was to provide equal access for the citizens and other entities to the institutions of the system, introducing, achieving and providing effective legal aid, which is in accordance with the constitutional principal of equal access to justice. The main goal is efficient and effective providing of access to justice for the socially vulnerable categories of citizens. Three main problems were detected during its application: 1) insufficient access for the most vulnerable categories, including the children at risk; 2) enormously high expenses paid to only 39 out of total 329 registered lawyers who provide legal aid. The existing system, besides the lawyers is also consisted of less than 30 solicitors of the Ministry of Justice located by areas and solicitors supported by 7 civil organizations which throughout the country mobilize the community and are involved in the process of mediation, providing free legal aid. The number of filed requests for FLA (free legal aid) remains pretty low. The percentage of approved requests for FLA is below 50% from the filed requests. The Budget of RM for free legal aid has been 3 million MKD for years now, which is one of the smallest budgets in Europe, but on the other hand the average expenses for legal aid by case in Macedonia are the highest in Europe. There are notions of abuse by the lawyers who create unnecessary expenses for the cases they work with. Monitoring our situation, the European Commission states the following: 1) deficient financing of the system for free legal aid in absolute and relative sense in relation to the comparable European standards; 2) lack of holistic approach in regards to the functions and the allocation of roles of different actors of the state and non-state sector.
Many inconsistencies have been noted in the practical application of the law, such as: inadequate availability for the most vulnerable categories of citizens as a result of cumulative compliance of pretty strict conditions for acquiring the right of legal aid; enormously high lawyer expenses pursuant the increased Lawyer Tariff that came into effect on July 1st 2016; unclear responsibilities and accountability of the main participants of the system for free legal aid; the existing provisions of the law cannot be applied in the approving of free legal aid in trials before a competent court or public organ, in which there are short time limits; the country does not cover all the expenses for providing legal aid such as court fees, forensics etc. All this means in general that providing free legal aid in some cases is pointless.
Surveys over the past several years also show that, in general, people are not convinced that the country tries to provide access to justice for all its citizens, regardless of their social status. The current law cumulatively requires compliance with very strict conditions, and so there was an initiative for adopting a new one. During 2017 there were 113 decisions filed for free legal aid, 74 of which were approved and 39 rejected. Most of them were filed by women. Republic of Macedonia is a contracting party of the international conventions for human rights of the United Nations and the Council of Europe and they are part of the legal regime pursuant article 118 of the Constitution of RM.
A public hearing was held in the Assembly in March 2018 where amendments were submitted for the finalization of the text of the new draft law. At the hearing, it was decided to withdraw this draft from a further parliamentary procedure, and to submit to the Assembly either a new consolidated text or a completely new text with all the ideas, proposals and suggestions that were presented at the public hearing.
Generally speaking, the matter of the "price" to get to justice, i.e. the expenses required to start and conduct court proceeding is especially relevant in societies with low standard and high percentage of poverty such is ours. The amount of court fees and lawyer tariffs is a factor that discourages citizens to seek justice in the competent courts and institutions. On the other hand, the forms of mediation in disputes did not see a day of light, so in this vacuum so to speak, in practice obviously work improvised models for solving of disputes arising from the sphere of common law, which, under pressure of the degradation of values becomes changeable and insecure mechanism for solving the legal and everyday problems.
7. Some international experience and indicators for effective access to justice
The reasonable duration of the court processes is an important feature of good court operation, along with the independence and fairness of trial, the predictability of court decisions and access to system. The analyses of OECD point to the fact that the increase of 10% in the average duration of trials is related to the decrease of around 2 percentage points in the likelihood for trust in the legal system. The international differences in the average length of trials are huge, although these comparisons also reflect the different systems and court statistics. In 2010 the average length of the civil trials in first instance in the area of OECD was around 240 days and only 107 days in Japan. Around 420 were required in Slovenia and Portugal and 564 in Italy. The average duration of a civil dispute that goes through all three instances is 788 days, starting from 368 days in Switzerland to almost 8 years in Italy.
The expenses for access to judicial system significantly vary in different countries. With some exceptions, systems which characterize with long trials have a tendency to be more expensive, which indicates that the reasonable length of trial is important conditions for accessibility of the judicial system.
One of the challenges the institutional framework for providing justice is facing with, is the part of the population that comes in formal contact with the police or the criminal legal system. In the poor countries the low level of incomes reflects on the investigative capacity of the policy (it limits them), the reluctance of people to report criminal acts and to prefer traditional non-state mechanisms to deal with criminal acts.
The factors that influence the length of trials can be divided into two, as follows: in the part of providing court service the potential factors of impact are: quantity and quality of financial and human resources that work in the legal judicial domain: the efficiency of the work process as an impact among other things and the degree of specialization of tasks, the use of techniques for efficient management of cases and the spread of information and communication technologies (ICT); and the managerial structure of courts including the structure of stimulations for judges and court personnel. The factors that influence the initiation of court proceedings include those that are internal both for the organization and the functioning of the legal system. Such are the expenses for access to court service, regulation of compensations for lawyers, the outspread and functioning of mechanisms for alternative solving of disputes and the degree of assurance of the law. There are also external factors, so to speak, and those are related to the cultural differences and structural features of the economies. Also, there's the perception of fairness of the system and the chance to get justice as one of the factors that impact the initiation of court proceedings.
The differences in the length of trials are not related to the scope of resources meant for justice. That is to say, there is no obvious connection between the total public expenditure for justice (as part of the GDP) and the efficiency of judicial systems (in the data collected by OECD). Countries with similar rates of spending show lot different indicators. For example, Italy, Slovakia, Switzerland and the Czech Republic award around 0,2% of the GDP to the court budgets, while in Switzerland and the Czech Republic the average duration of trial is around 130 days, which is 2,7 times longer than in Slovakia and even four times longer in Italy.
The court systems that dedicate larger part from the budget to ICT investments, in average show shorter duration of trials, as well as bigger productivity of judges. The improvement of efficiency is also supported by active management of time and systematic processing of statistical data. With few exceptions (England and Wales, Slovenia), the length of the trial seems to be shorter in systems with higher processing of statistics. Specification of tasks and cases is also related to shorter duration of trials. The other kind of specialization refers to the presence of personnel that is not judicial but provides legal assistance to judges. The legal assistance can improve the work by freeing the judges from tasks that require less of a skill, giving them an opportunity to focus only on the verdict. In the countries covered with the OECD data, every professional judge has an average of 1,6 legal assistant. This ratio tends to be higher in countries with common law and German legal system (2, 2 and 2, 0 proportionally) and lower in the Nordic systems (0, 6). The systems where the main judge, i.e. the head of the court has wider managerial responsibilities also show shorter duration of trials. That is to say, the managerial structure of courts is key determinant of performances because it is the main channel through which the stimulation models can be designed and implemented.
The free arrangements for compensation of lawyers as opposed to the regulated ones, is related to lesser court proceedings. In average, the regime of freely arranged compensations is characterized with less court proceedings in comparison to the regime of regulated compensations (pursuant the law or lawyer associations), with 0,9 cases to hundred people against 2,9.
The predictability of court decisions, i.e. the opportunity to predict ex ante how the law will be applied by the court, is exceptionally important from an economic standing point. This is the way to provide legal security and this gives the economic entities a chance to form expectations about the potential legal and economic consequences from their court proceedings. The predictability of court decisions also impacts the choice whether to start a court dispute or to file a complaint. Measuring predictability just like that is very hard, but some indicators can be stated from the rates of complaints filed before the higher instances. Usually, the countries with case law show lower rates of complaints. The differences in the rates of filed complaints within different countries can be explained by the legal limitations.
Good regulation and timely and efficient implementation of policies decrease the likelihood for conflicts. By diminishing the transparency and assurance of the business surrounding, the presence of corruption can have opposite effect on the frequency of disputes. The empirical relevance of these factors on the court disputes is supported by the OECD analysis, based on the indicators of the World Bank for effectiveness of government, the regulatory quality and the integrity of public administration.
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Currie A, 2009. The Legal Problems of Everyday Life, in Sandefur R.L. (ed.), Access to Justice: Sociology of Crime Law and Deviance, Vol 12, Emerald, p. 37
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