Does the reform promise «reforms in judicial system»?

In spite of the fact that inevitable reforms in the judicial system have much and long been talked of at various levels, the lack of progress on this track frustrates belief in justice. A meeting of President with the art community on March 1, 2019 and his emphasis on the necessity of such a reform infused people with hope that some steps would be made in a day or two.

On April 3, 2019, a Decree of President of the Azerbaijani Republic "On Deepening Reforms in Judicial System" was signed[1]. That way, expectations of the general public have formally proven true. But how are things in reality? The Decree must be evaluated from different perspectives.

Let"s look at Decree acceptance process.

Throughout many years the civil society activists, independent jurists and lawyers have been faced with serious problems in the judicial sphere, regularly publicized them in mass media and showed effective ways of their removal.

However, up to the signing of the Decree neither civil sector, nor independent jurists have been engaged in the process of its drafting and acceptance. Thus, no broad discussions with the participation of public and experts have been held. In the meanwhile, it is the participation of citizens in implementing forthcoming reforms in the judicial system that raises the scope and recognition of the reforms in Azerbaijani society.

Moreover, the country"s legislation, particularly, Articles 3 and 19 of the Law of the Azerbaijani Republic "On Public Participation"[2], stress the necessity of citizens" participation in the process of crucial decision-masking. Also, Article 29 of the Law of the Azerbaijani Republic "On Information Acquisition"[3] requires that draft normative legal acts be published on web-site of the state body from the date of its submission for for approval.

Unfortunately, already signed and effective regulatory legal enactments are spread in the country only. No spreading of draft decrees has so far been used in the country. The Decree in question has not either been brought for public debates but adopted behind closerd doors. So it is not sdurprising that the Decree is full of numerous defects, recurrences and unfeasible provisions. Besides, a crucial question - reforms have not been even mentioned.

Is the Decree enough to implement reforms?

As a whole, perception of serious problems in the judicial system and measures planning to remove them is a positive step. Below-cited are a number of problems specified in the Decree text:

· Courts fall short of today"s requirements;

· Courts lack credibiklity in society;

· Justice is low-quality and ineffective; its formation is rather slow;

· Access to courts and lodging of judicial appeals are restricted;

· There is no transparency in court activity; effectiveness of legal proceedings is low;

· Principles of justice, legality, impartiality, glasnost, and equality before the law are violated at courts;

· Court judgments are fulfilled imperfectly and untimely;

· There are numerous cases of prevarication, other negative cases at courts;

· Judicial examination mechanisms are ineffective;

· Even despite the passage of more than 5 years, court judgments have not been published in E-format;

· In spite of the fact that the Decree ptrovided it 5 years ago, classification of cases and drawing up judges have not been automated so far;

· Judges are not specialized, so they commit serious errors and adopt improper decisions;

· Estimation of the professional level of judges and cheifs of court is formal and indistinct;

· Courts adopt differing decisions on one and the same judicial matters; there is no unified judicial practice, so the justice suffers greaty losses;

· Courts are not independent; there are numerous facts of intervention (political, administrative, etc.) on their work; however, nobobody has so far been held responsible;

· Judges committing an offence have not been brought to justice;

· Social security of judges and judicial officeholders is very poor ;

· Legal infrastructure is updated less than fully;

· Present-day information technologies are applied out of place and not fully in legal proceedings;

· Philosophy of punishment is inhumane and criminal entourage is defined too broadly;

· State duty is defined at random;

· Court heasrings are marked by "randomnerss", minutes of court hearings are reminiscent of filmscripts; no real debates are echoed in munites;

· Medical examination is in many cases formal and ineffective;

· Entrepreneurs are frequently faced with prevarications; they insist on more effective and unbiased legal proceedings;

· Courts are notorious for non-procedural actions; lawyers, judges, investigators and attorneys are asctively involved in non-procedural actions (think "trading");

· E-performance is not carried out, functionaries are haggling and abusing their official duties; take bribes for fulfilment or non-fulfilment of court judgment;

· 500-600 justice officers fail to cope with above 800, 000 court judgments which are meant to be fulfilled. So therte is need in private justice officers rendering paid services;

· Despite above 780, 000 court casses by 48[4] courts currently at legal proceedings and integrated into portal of E-courts, there is need in judicial examination. It has to be kept in mind that the Center of Judicial examination under the Ministry of justice of the azerbaijani Republic fails to cope with its duties, so therec is need in an alternative, special examination (note: the number of non-integrated courts in the portal of E-courts makes up 63);

· Note that 5 years have passed since; however, E-court has not yet been secured fully; 48 out of 111 judicial proceedings have partly been integrated into the system; however, 63 courts remain unintegratedinto portal of E-court, and most of what has been provided in the 5-year old Decree remained on paper;

· It should be noted that 569 serving judges are in charge of 10 mln population and must consider 1 mln cases. It is insufficient forv effective work, so judges are suffering from tremendous job.

All the issues shown above are opposite to what has been set forth in the Decree. When adding to it what has been omitted that"ll be a reform. The above-mentioned issues are real; however, the matter is not confined to them.

Note that the judicial independence as branch of power can be reformed through the use of constitutional approach, not the Decree. Surface measures cannot piece out a deficit of the judicial independence, for the judicial power is dependent upon the executive power.

Another problem necessitating the judicial reforms is the formation and structuring of the Legal and Judicial Council. Note that 9 out of 15 members as set forth in Article 6 of the Law of the Azerbaijani Republic "On Legal and Judicial Council" [5] which is responsible for formation and activity of this structure, are, directly or indirectly, apopointed by the executive power. In 2014, 4 members of the Legal and Judicial Council are elected by the Council proper to comply with an absurd amendment to the Law.

In other words, yet-forming and yet-nonexistent has elected 4 members by voting. Even worse, an Article (single democratic qualification) was withdrawn from the Law in 2010 that debarring the election of members for more than 2 times. The reform that does not provide for the formation and activity of the Legal and Judicial Council cannot be defined as a legal-judicial reform.

Another matter requiring the implementation of the judicial reform lies in the fact that problems in the system of investigation bodies, including the police and attorney office, bring discredit to the justice.

Separate measures in respect of courts, including the pre-trial investigation, evidence gathering, arrests and tortures of innocents, preservation of the system "producing" political prisoners, interference with human rights advocacy, cannot be regarded as adequate reforms. The question is that reforms must cover investigation bodies, police and attorney offices.

It ought to be noted that the judicial reforms make it necessary to reform the legal defence institutions into democratic and autonomous structure. The judicial system cannot be reformed without reforming the legal profession institution. The question is that the said institutions are led by those who violate the secrecy of defendant"s correspondence; patronize lawyers concealing tortures and saying their defendants "you are young, and you"ll move on"; shut off those unmasking and publicizing illegal actions against the defendant, etc..

Reforms in the mentioned sector are aimed at transforming the legal profession institution; restoring the representation insdtitutions; offering opportunities for establishment of alternative collegium; cancelling job-talking after successful lawyer"s examination; declining from lawyer"s discharge on investigation bodies" instruction.

There cannot be refoms ignoring the system of education. The judicial reform cannot be regarded full-valued without liquidation of monopoly of state universities in legal education granting of the right to such an education to private universities and without introduction of democratic methods and academic freedoms.

Is it possible to realize Decree-stipulated provisions?

The lack of control mechanism over the decree-stipulated "reforms" is a separate issue. It is not feasible to attain the goal and create authoritative court without the public control over the judicial system; without a structure carrying out an independent monitoring and evaluating the performance of instructions and recommendations.

As for Decree provisions and possibility of their fulfilment, it"d be appropriate to look at Decree"s signing validity. A decree"s preamble signed on April 3, 2019 refers to factors that necessitated its signing as follows:

"With a view of hastening the justice formation process in line with up-to-date requirements, it is essential to widen opportunity of court references, enhance transparency in the judicial system, raise effectiveness of legal proceedings, ensue full and timely enforcement of the court judgement, strengthen measures on removing prevarications and other negative cases".

Of interest is the fact that a Decree № 268 of February 13, 2014[6] signed by President 5 years ago and titled as judiciary reform, used the same definitions and expressions, for example: the Decree "will widen court references; removal of prevarications and misuses, ensuring of glasnost and operativeness in justice execution; raise effectiveness of control over execution of judgments; ensuring of E-procedures and E-document circulation; ensuring of transparency, effectiveness of defence of human rights and freedoms; acceleration of the process of introduction of up-to-date information technologies".

The situation around judicial reforms repeated 5 years later. A question arises: What measures were provided 5 years ago? Was a monitoring of their fulfilment carried out and a report submitted to the public?

An answer to the question gives a clue to the following: will a new Decree of April 3 carry out a judicial reform. In short, the steps of the government on this track will be a guarator that it "ll do the same over the next 5 years. Or, what the government had meant to do but failed will enhance doubts regarding fulfilment of thisDecree.

What was meant 5 years ago? Was it identical to what has been provided today?

It was intended to create E-courts and take 12 various measures since February 13, 2014 as follows:

· E-acceptance of application, complaint and other documents;

· Legal proceedings on criminal cases, civil, administrative and economic disputes, as well as E-distribution of documents;

· Automated distribution of cases between judges;

· E-timetable of lawsuits;

· E-information delivery to persons engaged in legal proceedings (E-mail, SMS-message, etc.);

· Recording of legal proceedings through the use of audio, video and other recording systems and opportunity of their listening and viewing in on-line mode;

· Control over compliance with procedural deadline and expiry termination;

· Enforcement of judgment and control over implementation process;

· Creation of "personal area" where a procees actor can get information about a specific case process progress; about recognized resolutions, complaints, protests, etc.;

· Integration with "Electronic government" portal and information system used at the Procurator"s Office of the Azerbaijani Republic;

· E-judicial statistics;

· Systematized data storage.

Any person has his own tentative judgment about implementation of the above-mentioned over the past 5 years. The question is that most people must have had to do with a judicial instance, at least, once in a lifetime. It has become common knowledge about filing a complaint, protest or petition on Internet. In spite of the fact that an electronic judicial portal has been created over the 5 years, its functionality is rather restricted. Note that 63 out of 111 country"s courts have not been integrated into the system while integrated courts provide a full range of E-services non-systematically.

Neither electronic document circulation, nor audio- and video- records of judicial processes have been made across the country. It is impossible to watch the processes in online mode. In a word, no commitments on each items have no been met fully. Otherwise, a part of the Decree of April 3, 2019 would not have been made of problems reiteration.

To enhance access and transparency of the justice, Decree provides as follows:

· To ensdure completion of organizational work related to the application of information system "E-court";

· To take measures aimed at ensuring appropriate functional opportunities for effective criteria over court judgments published in E-court information system;

· To take measures aimed a encouraging the use of "E-court" information system by physical and legal entities"

· To ensure impartiality of legal proceedings, it is essential to identify demands on making continuous audio-records of all court hearings and drawing-up protocols;

· To publish court judgments at E-form;

· To distribute legal cases at random and automatically at E-form.

Most significally, the Decree-meant operations have been set on the Cabinet of Ministers as an executive body in charge of compliance with decisions adopted; however, most of them remained unfulfilled. It is obligatory to comply with instructions set on an executive body.

According to the latest Decree, the executive body has been instructed to recommend unrelated structures to take appropriate measures. Note that the fulfilment of recommendations is not obligatory. The executive body is entitled to recommend while the fulfilment of recommendations is a matter of parties" conscience. It is worth pointing out that the Decree recommends 24 proposals to be fulfilled by courts, Legal and Judicial Council, Bar Association, National Businessmen Confederation. The above-listed makes it no possible to exert control over performance of the proposals.

To sum up, the present Decree itemizes directives directed to improving the judicial system. These dirtectives include an alternative examination, drawing-up of protocols in keeping with audio-record.

Regretfully, no serious changes are expected to take place when adjusted for government"s earlier approaches. Moreover, issues of the judicial system are not mere technical matters to be easily removed by means of recommendations. What we have now is mainly a technical approach to the issue.

[1] https://president.az/articles/32587?fbclid=IwAR0pGOYAM6kDfAESomu3PwCmenykkeH1l0MzGKG07ykWNnslZsqiCaydP8I

[2] http://e-qanun.gov.az/framework/11142

[3] http://e-qanun.gov.az/framework/26879

[4] https://courts.gov.az/az/courts/Hamisi_0

[5] http://e-qanun.gov.az/framework/7303

[6] http://www.e-qanun.az/framework/26996