Corruption, Miscarriages and Vetting Procedures

In 1995, the Venice Commission observed that

the low level of salaries of judges in Albania, relative to other professions and activities though not comparable positions in the civil service, was repeatedly identified as an objective factor contrib­uting to corruption among judges and to the consequent reduction of public confidence in the courts.^[260]

For a long time, this problem sparked the attention of the Albanian political authorities.

Corruption, Miscarriages and Vetting Procedures 87

constitutional revision.^[261] Therefore, a vetting process of the judges presently in office was started concurrently with the adoption of amendments of the constitution. The complexity of the choice was justified, and was destined to deal with the peculiar critical situation of the country's judiciary.^[262]

In Ukraine, it was considered necessary to emphasise - in addition to the preserva­tion of the frame of the traditional model of government of the judiciary (the High Judicial Council) - the role of a specific and peculiar institution, the High Qualification Commission of Judges.

The phenomenon also concerns other new democracies. For instance, complaints have simultaneously been growing in Georgia. It was said that judicial decisions were adopted according to political choices and for political reasons, they constituted possible cases of miscarriages of justice and they raised questions about the way to restore law and justice. A temporary state commission was proposed by the Georgian authorities. Its examina­tion of possible cases of miscarriages of justice was considered admissible by the Venice Commission. However, it had to be regulated in conformity with the principles of separa­tion of powers and independence of the judiciary. The decisions on criminal charges against the interested persons had to be left to a court.^[266]

A new case concerned the reactions of the Armenian authorities to the presence of the equally dangerous phenomenon of ‘instructions or pressure on individual judges made by their fellow judges and vis-a-vis their judicial superiors’. In such a situation, the possible opening of disciplinary proceedings on the basis of the overall results of a specific evalua­tion was considered admissible, but only in case of the concerned judge's wrongful conduct and of the unlawful exercise of his/her functions.^[267] Therefore, Armenia has not adopted extraordinary measures but has solved its problems through a reform of the system of administration of the judiciary and the ordinary institutions of that system.

The Venice Commission has been ready to accept the information provided by the authorities regarding the general problems of judicial corruption and inefficiency, which

justified the adoption of exceptional constitutional measures. However, the Commission had always presented possible alternative interventions to settle the cases submitted to its attention. It was necessary to choose between constitutional reforms, the creation of a special ad hoc transitory institution or the activation of the existing machinery of judi­cial government. Moreover, there was often the risk of possible tensions between political authorities and j udges. For instance, information of the Georgian authorities about the exist­ence in that country of many cases of judicial miscarriages cast some doubts in the view of the Commission. The Commission refused to take a position on whether there really were miscarriages of justice in Georgia. If miscarriages were of a systemic nature, they required the creation of a temporary ad hoc state commission.^[268] In these situations, the Commission admonished the concerned authorities to stick to the fundamental principles of constitu­tionalism, having regard both to the external aspects of its independence and impartiality, and to the internal organisation of the system of courts.

This attitude confirms the line adopted by the Venice Commission in the contemporary overview of the legislative drafts of judicial reform submitted to its attention by Montenegro and Macedonia. It took into consideration the preoccupation of the authorities of the two states about the efficiency and fairness of the exercise of the judicial functions. The Commission underlined that the criteria for the evaluation of the judges and their behav­iour have to be primarily qualitative: in this sense, criteria should focus on the professional skills, personal competence and social knowledge of the judges.^[269] Corruption, inefficiency, miscarriages of justice and lack of professional qualifications are signs of a poor ability to govern and administer the judiciary.

In analysing these developments, the Venice Commission was aware that these reforms should not become means of interference in the exercise of the judicial functions by the other state powers. Therefore, special qualification requirements had to be introduced, for instance, for the appointment of the members of the Albanian Independent Qualification Commission. Their election should depend on a qualified majority vote of the parliament, while specific rules have to guarantee their impartiality and independence. Moreover, specific substantive and procedural rules guarantee the rights of the judges and prosecutors subject to the vetting.

VIII.