Specific Objective 1.2
“Update and improve justice reform legislation based on findings from analysis and monitoring of reform implementation, including, but not limited to, legislation on authority, transparency, efficiency, and coordination”.
This objective implies the need to, after a three-year period in 2017-2020, make an analysis of the functioning and activity of the governing bodies of the justice system to check for the possibility of making interventions in the law governing these bodies. This objective, in its content, envisages the main areas where the analysis will be extended, such as the authority of the bodies, transparency, efficiency and coordination among them.
First, the way this objective is expressed, using the words “update” and “improve”. It is worth mentioning here that the purpose of the changes in the legal framework is related to the improvement of the functioning of the bodies in cases when the law has hindered or made difficult their work, as well as when the new reality requires a review of existing provisions. It is not the duty of the law to make an update, so this language does not fit the nature of the objective and should be avoided.
Secondly, from the analysis of the way this objective is expressed, it is clear that it has predetermined that there will have to be changes in the law and/or regulations, without even waiting for the results of an analysis of the legislation adopted in 2016 and also it does not take into account the recent changes of 2021 that affect important elements of the functioning of the justice system. Even the way the required outcomes are expressed and the measures planned for meeting the objective, it is clear that the review of laws and regulations is one of the goals of this objective and the deadline set for these changes is 2021-2022, i.e., the beginning of CJS II implementation. It is worth recalling here that the strategic performance of the justice sector is based on an in-depth analysis of the previous system and the reform laws are the product of this analysis. In light of Policy Goal 1, it is debatable whether this objective adds value to the functioning of the governing bodies of the judiciary or acts in the opposite way, producing institutional uncertainty and making it impossible for these bodies to carry out their duties independently of the legislative and the executive.
Also, the functioning of the mechanism, in light of the strategy of the justice system, has not been fully operational throughout CJS I and still continues to be incomplete. Such is for example the case of HIJ, where the institution has not yet hired all inspectors. Likewise, the cases of HJC and HPC, which are still drafting entirely new internal regulatory frameworks, so it cannot be said that this regulatory framework is mature enough to be ready to undergo an analysis process or – even further – an amending process.
Thirdly, the very focus of Policy Goal 1 lies in implementing the reform, in strengthening the capacity of the justice governing institutions and not in redesigning it. Although the authors of the strategic document may have been oriented towards a functional approach aimed at improving the elements that are seen as problematic in the law (keeping in mind that a law or regulation, no matter how well they have provided for or how close they are to meeting their objectives, there may be elements that will need to be analyzed ex post and improved), setting legal reviews as a separate objective, with concrete measures planned for governance institutions (analysis of law enforcement by justice institutions, preparing the response on the analysis of the law review, finalizing the review of the legal framework in the 2021-2025 strategic document), is not appropriate. Failure to provide for this objective in CJS II would certainly not remove or dilute any initiative or analysis of legislative bodies or powers to intervene in these laws, but would, however, avoid the idea that amending the laws regulating the governance of the judiciary is again undergoing a process of strategic change.
Conclusion: Setting legal reviews as a separate objective of CJS II, with concrete measures planned for governance institutions is not appropriate. Failure to provide for this objective in CJS II would not remove or dilute the initiatives or analysis of legislative bodies or powers to intervene in these laws, but would, however, avoid the idea that changing the laws regulating the governance of the judiciary is again undergoing a process of strategic change. At this stage, the emphasis of the Strategy should be on the implementation of the legal framework and the tasks of the new governing bodies of the justice system. This framework and these tasks are relatively new and sufficient implementation time should be left to be analyzed significantly.