Outcome 1.2.3
“Accountability bodies (HIJ)/legislation revised/amended, including, but not limited to, internal regulations”.
The third outcome that relates to the successful fulfillment of Objective 1.2, analyzed above, is that HIJ, after an analysis process, shall review the legislation that regulates its activity, its internal regulations and other acts with general force, as well as the structure of HIJ, which means its internal organization.
This outcome has the same content as the results required for the HJC and HPC. However, the problem of spending enough time to conduct this analysis of the law and bylaws, or the structure and staff of HIJ in order to understand the level of transparency, efficiency and accountability exercised by this body, is even more evident, as HIJ is the last body to have been established. It has yet to be fully effective[1]. Due to these issues, HIJ also proposed legal amendments[2], but they were not approved to be included in the changes made to Law 115/2016.
The only measure foreseen by the Action Plan as partially fulfilling this outcome is Measure 1.2.11 “Review and consolidation of HIJ internal regulations”. All the measures planned for HIJ have a timeframe until 2022, a very short timeframe both to initiate the analysis process, taking into account that HIJ acts have only been implemented for less than a year, as well as to reach conclusions about their effectiveness or the necessary changes that could improve the functioning of HIJ.
The projected outcome for HIJ is a step further from the previous outcome set out in CJS I (2016-2020), which provided for the “establishment of a single independent inspectorate responsible for investigating disciplinary violations committed by judges and prosecutors, and to develop other inspection services in courts and prosecution offices in accordance with European standards” and another concrete measure was the “developing of internal rules and manuals”. However, the delay in the establishment of this body and in its functioning, makes it difficult for this outcome to be successful in the years 2021-2022.
Referring to the Passport of CJS Indicators I, one of the indicators (namely no. 2) was related to improving the administration of complaints against judges and prosecutors according to the new legal deadlines. This document also defines the targets for HIJ as well as the verification methods. Respectively, for 2019, they would verify internal procedures, inspection manuals, data protection and public access, 10 employed inspectors, buildings, etc. As a result, for 2020/2021 the indicator would be the number of complaints received and processed, which are divided by the number of complaints received by November 30 of the respective year. Processing means: final HIJ decision, with listed reasons, on whether or not to open investigation, close after prima facie verification or dismiss the complaint.
The objectives in the Passport Indicators were related to the grievance (complaints) system as the key to understanding the proper functioning of the accountability system. This means independence in the exercise of duty, transparency in the way complaints are handled, efficiency in their management, coordination with the HJC and HPC, as well as harmonization of procedures between magistrate judges and prosecutors. All of this requires the right time to see them implemented. Only during the implementation of the above, HIJ may be able to understand/assess how much the law prevents it from exercising its functions according to the above-mentioned standards and how many other factors are influencing (e.g. the recruitment of magistrate inspectors, especially judges, who so far have shown no interest in running for this position). Establishment of a professional body of inspectors (lawyers, judges and prosecutors) ensures independence in the exercise of authority, transparency and efficiency in the handling of complaints.
Although there is a certain coherence, which means that the listed activities are necessary and sufficient prerequisites to achieve the specific objectives, Specific Objective 1.2 partially creates a natural/harmonious connection between the provisions of CJS I and its Passport Indicators. This is a solution dictated by the circumstances, as during the CJS I lifetime, HIJ had not yet been created and the Specific Objectives, Outcomes and Measures failed to be implemented during the validity of that Strategy. Basically, they were just ‘theoretical provisions’. Given this situation, the drafter of the Strategy has considered integrating those provisions into CJS II, as long as they have judged them to be valid, re-considering/re-evaluating some aspects. The re-evaluation also came as a result of the role played by HIJ itself during the drafting of CJS II, giving concrete ‘input’ to the drafting and commenting on its aspects based on the problems/challenges that have arisen from the implementation of the legal framework. There is already a ‘concrete voice at the Strategy table’ to consider. Furthermore, it is worth noting that HIJ itself has adopted its institutional strategy. Whereas CJS I was designed/conceived at a time when HIJ existed only on paper and the Objectives, Outcomes and Measures had a more abstract character.
Even the preliminary provision of the IPA III Action Plan, foresees the improvement of the rules on career and oversight of magistrates in a time frame until 2027.
Conclusion: Seen as a whole, although this outcome appears in line with the objective and in line with it and is in chronology with CJS I, the success of this outcome is debatable. Its time span should be longer. Together with the other outcomes analyzed for the HJC and HPC, it is estimated that these outcomes are in place to assist in achieving the set Strategic Objective. Doubts that may exist about the outcomes are in fact related to the very purpose of Specific Objective 1.2; Institutions exercising their authority in accordance with applicable requirements and European standards (so that they are independent and work professionally, efficiently and maintain standards of accountability) does not necessarily mean reviewing legislation. This is because it is presumed that the legal framework adopted in 2016/2017 provides guarantees for independence, professionalism, efficiency and accountability standards.
[1]HIJ started working only in February 2020 and it has been challenging to make this institution effective due to the lack of inspectors, especially magistrate ones. Recruiting non-magistrate inspectors has also been difficult, and so far, HIJ has decided to allow eleven candidates to run.
[2]The two main interventions proposed were, firstly, the abolition of the ratio between non-magistrate and magistrate inspectors, but keeping a preference for those who are magistrates, and, secondly, making all salaries of all inspectors equal, based on the fact that they carry out the same duty and the law should provide the same guarantees.