Public has the Right to Criticize the Judiciary

The content of a two-day work conference known as the “Cogency and Transparency in the Decisions of the Courts,” was a debate about the relationship between the public and the courts. The conference was organized by VIA IURIS – Center for Public Advocacy and was held on November 26th and 27th, 2009. The representatives of VIA IURIS informed journalists about the conference’s outcomes at a press conference today.

More than 60 attorneys participated at this conference. These attorneys are all currently active in various judicial professions – lawyers, judges from both constitutional and general courts, educators, and NGO lawyers – from Slovakia as well as Czech Republic met at the conference this year. This group of judicial professionals devoted their attention to three main issues that are directly connected to relationship between the public and the courts:

(1) The Right of the Public to Access Courts’ Decisions

The discussion raised opinions stating that the public’s access to courts’ decisions is a primary condition for ensuring stability and predictability in the decision making process of the judiciary, as well as guaranteeing legal security of citizens’ rights, and maintaining public control of the courts. As a result, participants of this conference have agreed that it is necessary for both the Supreme Court and Court of Appeal to at least publish their decisions on the Internet, because this is already a common practice in many other countries. Furthermore, participants mentioned that there are several barriers that prevent the courts from posting there decisions on the Internet. Two examples include the weak financial situation, and lack of human capacities in the court offices. Moreover, the courts should establish some standard guidelines regarding the publication of court decisions in order to create a precedent to follow for all further publishing of court decisions in the future. However, all the information that is considered classified will be excluded from the publications of the court decisions. 

Participants also agreed that the texts of judicial decisions should be made available under the Law on Free Access to Information.

(2) Possibility to Criticize the Courts’ Decisions, Judges’ Actions, or the Situation in the Judiciary

Deliberations on this matter were related to the area in which both the general public and professionals of law are allowed to criticize judicial decisions, judges and the judiciary.  For instance, the European Court of Human Rights has clearly stated that every citizen has the right to criticize the courts, judges and judiciary as part of their freedom of expression. As a result, the participants agreed that only in a free and democratic society is it possible to criticize the judicial decisions, and the judiciary.  As well the participants stated in the debate that judges cannot be reluctant in the current situation in Slovakia and are obligated to openly express their opinions on the state of the judiciary.  This expectation is not only expected from judges but also from other participants in the trial process that includes lawyers and other parties involved in the judiciary.
 
Furthermore, the conference participants agreed that it is also the responsibility of the general public to push for an impartial and just judiciary.

(3) Quality of the Judicial Decisions

The participants were asked: “What are the reasons for the insufficient quality of judicial decisions?” The participants answered that many of the courts’ decisions are cancelled by higher court because the higher court considered the original decision to be unconvincing, arbitrary, or lacking arguments. Consequently, if a decision is deemed to be unconvincing but well argued, it violates the Constitution and thus the Constitutional Court may annul it.

In addition the debate addressed the views that further touched on the functioning of the judiciary system. For instance, according to the participants the current judiciary system emphasizes mostly the quantity over the quality of the work, and therefore judges are urged to close as many cases as soon as possible and do not focus much attention on the quality of their decisions. Another problem is that judges are not educated enough regarding the correct forms of argumentation in judicial decisions. An additional barrier is that judges are not specializing in specific sectors. The reason for this is that in order to become specialized in a specific sector the process is a long-term commitment and most judges are not willing to make that commitment.

Regarding the possible remedies for the current situation in the judiciary, some participants proposed a possibility to either draft a notion on how a correct argumentation in the judicial decision should appear, or to elaborate instructions on correct procedures of argumentation. The conference participants agreed that public access to judicial decisions, and the following free discussions about them are an important tool to improve the quality of the decision-making of the courts.

The conference, “Cogency and Transparency in the Decisions of the Courts” was based on the idea that even though people are a source of power they cannot bring judges and the courts to be accountable for their actions and decisions. However, authority and legitimacy of the judiciary depend on whether the courts justify their decisions with convincing and logical arguments. Furthermore, public feedback and public access to judicial decisions are essential features to ensure a positive direction of the judiciary in the future. Similarly free discussions on the state of the judiciary are also an inevitable tool because they assist in ensuring that the judiciary is accountable towards its citizens.

VIA IURIS would like to thank partners from the Trust for Civil Society in Central and Eastern Europe, Open Society Institute, Open Society Foundation in Bratislava, the U.S. Embassy in Bratislava, and Hotel Dolphin in Senec for their financial support to organize this year’s conference.