The Rule of Law and Establishing Trust in Judicial Institutions should be one of the Main Priorities of the Riga EaP Summit

Today marks the second and final day of the Fourth Eastern Partnership Summit, which is taking place in Riga. The Summit provides EU leaders with a platform to discuss the future of this joint initiative with EaP country representatives. It may prove to be a critical event. In light of recent events in Ukraine, the EaP policy is currently being evaluated with potentially far-reaching consequences.

The Eastern Partnership is the EU’s principal mechanism for strengthening relationships with its eastern neighbors. In addition to establishing political ties and providing for economic and technical assistance, the EaP offers Association Agreements to these countries, including Deep and Comprehensive Free Trade Areas [DCFTAs], which are among the most ambitious and comprehensive international treaties. In addition to taking stock of the prevailing political environment, the Riga Summit represents a particular opportunity to reaffirm the importance of EU support in the implementation of legal reforms carried out in some of the EaP countries.

Building the rule of law is at the heart of the EaP agenda, and it is a major agenda item at the Summit. The Hague Institute has been active in this field. Leading up to the gathering in Riga, the Institute held a seminar on “Public Trust in Judicial Institutions in the Eastern Partnership Countries,” together with the Dutch Ministry of Foreign Affairs. The seminar included experts from different donor organisations including the EU, the Council of Europe, the OSCE and the OECD, as well as officials, civil society and academics from the EaP countries.

The seminar focused attention on the centrality of trust in the justice system. When people are concerned about corruption, independence, or professional competence, it is likely that credibility will be undermined and the legitimacy of the judicial system diminished. A lack of confidence and trust discourages citizens from participating in their government. They may turn to non-judicial means as a solution or fail to respect court rulings. Impartiality and independence as well as efficiency and effectiveness are essential in order to ensure respect and acceptance of the law, both vital elements in the proper functioning of the judicial institutions. A potential erosion of trust presents a serious problem for democracy, while enhancing public trust in a justice system is essential for gaining legitimacy. Not only must justice be done, it must be seen to be done.

Unfortunately, in the EaP countries, the current situation could benefit from policies and practices that will enhance greater trust in judicial institutions. For this reason, the seminar at The Hague Institute convened experts from these countries, investigating the following questions:

  • Which specific policies or strategies have been implemented within your country to increase trust in judicial institutions; and
  • Have there been tangible efforts towards addressing this issue through international donor initiatives?

Generally speaking, it appears as though many of the countries are implementing initiatives to increase trust, even if it is too soon to know the impact of these programs and policies. These include lustration policies (the exclusion of discredited public officials), tougher rules to tackle corruption, capacity building efforts and the measurement of satisfaction. These are no easy tasks with various risks involved. For example, lustration can be easily misused as a political tool. When implemented, it must tackle only situations that genuinely pose a significant threat to human rights or democracy.

By the same token, evaluating the performance of judges is necessary, but it can also easily be instrumentalized for political gains in a fragile judicial system. Decisions related to selection and promotion of judges must use objective standards in order to mitigate the risk of favoritism or conservatism. Judges should be given permanent or long-term appointments, and reappointments; the risk of influence from the appointing authority should be minimized. In any event, there is a crucial need for greater transparency and accountability in order to counter existing distrust in judicial institutions. This cannot be achieved in isolation – international financial and technical support is required.

Amendments to policies and legislation can also enhance public trust. For example, in Armenia, amendments have led to a change of distribution of cases between judges (eliminating the human factor by introducing an automatic system that will perform the distribution) and calls for periodic reports of the judiciary. Other measures included establishing a press centre for the judiciary, improving cooperation with mass media, raising the culture of perceptions of the judiciary, providing education to youths at an early age on the criminal justice system, and implementing legislation requiring publication of property declarations of judges.

These measures directly address the issue of public perception and public trust and will eventually translate in a change in the mindset of the legal culture not only of the general population, but also the judges and prosecutors who must trust and believe in the system themselves. The key element for success is a combination of leadership, ownership, and patience, not only from Brussels but also from the respective EaP countries. Leadership is needed because hard decisions will have to be made; ownership is necessary to gain responsibility and accountability; and finally, trust is intrinsically linked to reputation – once lost it is very hard to rebuild and time is required. In addition, more effective and transparent collaboration and coordination among the donor states and organisations as well as the EaP countries’ institutions themselves will lead to a much wider impact.

The incidents in Maidan last year have shown that EU norms, values and ideals are appreciated and desired by the general population. This showed that the EU’s soft power leads by example, not by coercion. Although the EaP does not offer the prospect of EU membership – and this will not change at the Summit – one major outcome should be a stronger commitment to European values, in particular the rule of law – and trust in judicial institutions should play an intrinsic role. For implementation of these aims to be possible, the EU’s rule of law promotion efforts must be tailor-made to the specific needs of each country – a one size fits all approach has been shown to fail. In this way, if the countries show willingness to implement reforms, additional technical and financial support should be made more readily available. If the Eastern Partnership is to succeed, change in these countries must come from within and support from without.

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