Values and rights, rule of law, security
#TheFutureIsYours Looking after citizens’ freedoms
PUBLIC DEBATE ON THE RULE OF LAW AND DEMOCRACY
The rule of law as a legal and political concept, i.e. the form of social regulation, guarantees the protection of fundamental rights and values. To date, the European Court of Justice has expressly emphasised the concept of the rule of law in its case-law in order to justify and express the importance of the powers of the courts in the review of other institutions of government, in order to protect the individual from their arbitrariness. It is one of the fundamental values on which the European Union is founded and calls for a regulation based on the values of liberal democracy. On the other hand, the problem of the phenomenon of so-called ‘illiberal democracies’ in Europe (events in Poland and Hungary) undermines the whole idea of a European Union based on the rule of law.
Jurišićeva ulica 1, 10000 Zagreb, Hrvatska
Event reportSpeakers: Dr. sc. Siniša Rodin (Court of Justice of the European Union, Faculty of Law, University of Zagreb) and Darko Milković, mag. iur. (Supreme Court of the Republic of Croatia, National Council for the Judiciary)////The rule of law and democracy are some of the fundamental values on which the concept of the European Union is based, as can be seen in the founding Treaties themselves. Despite their fundamental importance, these are still concepts that a large number of citizens understand only at a superficial level. That is why the aim of this panel was to try to clarify these two concepts, especially the rule of law, through the experience of two experts, one at European and the other at national level. ///Dr. sc. Siniša Rodin, a judge of the European Court of Justice, focused on explaining the concept of rule of law through its potentially most important aspect — the proper functioning of the judiciary, on which the practice of the European Court of Justice has also concentrated. Identifying three dimensions — judicial independence, judicial impartiality and judicial neutrality, he analysed the impact of the justice system on the rule of law, democracy and liberal constitutionalism. ///As an essential element of judicial independence, it identifies the necessary presumption that a judicial body carries out its obligations independently, without subjecting or receiving any instructions from other institutions and entities likely to influence the resolution. He concluded that without proper judicial independence, liberal constitutionalism, which could be defined as limiting the behaviour of individual groups in order to achieve the protection of weaker groups and individuals in society, could not exist. ///The judicial impartiality can be divided into two subtypes — internal, which emphasises the need for impartiality of the judges themselves, as persons performing judicial functions (without bias/prejudice), but also external, as the success of the court in creating an impression towards external entities to act impartially, i.e. that an independent observer cannot doubt that the court acts impartially. ///Judicial neutrality is a concept in respect of which the European Court of Justice has not yet developed an extensive practice. For the time being, it could be said that the view was taken that neutrality was the result of the previous two characteristics. ///These three dimensions, neutrality, impartiality and independence have set the context with the tradition of the legal order of the EU Member States. Judicial independence and impartiality are not dependent on tradition, while acting within its traditions may run counter to neutrality. It is only when courts are aware that they protect the tradition of the legal order that it is possible to speak of independence and impartiality — each national court actually protects its own tradition. The problem arises when courts belonging to legal orders with different traditions decide — in most EU Member States it is a liberal-democratic tradition. Countries whose liberal-democratic orientation is not part of their legal traditions often perceive it as a foreign body, and this can result in certain problems. ////Darko Milković, president of the National Council for the Judiciary of the Republic of Croatia and judge of the Supreme Court, has troubled the concept of the rule of law by linking it to the current problems of the Croatian public space. Emphasising that the public perception of the judiciary largely depends on subjective elements — the efficiency of the judiciary is viewed differently depending on the party to the dispute, he gave an example of how the jurisdiction of courts can significantly influence the public understanding of the concept of rule of law. Increasing the jurisdiction of a court has the effect that courts cannot deal with all cases in an efficient way, especially within a reasonable time — in this way an individual may also have a distorted position on the rule of law. The biggest problem in Croatia, which has a particularly significant impact on the understanding of the presence of the rule of law in the Republic of Croatia, highlights the lengthy conduct of criminal proceedings against economic crimes, especially those committed by former state officials, undermining the concepts of impartiality and independence of the judiciary. ///In short, he gave his assessment of the Commission’s report on the situation of the rule of law in the Republic of Croatia in four areas. In the context of the judiciary, the decrease in the number of cases and the average length of cases is highlighted; The National Council for the Judiciary has dismissed 11 judges in the last ten years and has imposed around 80 sentences in total. Nevertheless, the Commission is seeking an increase in the number of members of the National Council for the Judiciary and of the State Attorney’s Council in order to better observe the asset declarations. In the context of corruption, the absence of an ethical code for members of the Croatian Parliament and members of the Government of the Republic of Croatia is emphasised. In the context of media freedom, there is satisfactory legal protection for journalists and protection through media lawsuits, but there is a relatively large number of lawsuits against journalists, which points to the need to protect the right of journalists to disclose information. Finally, in the context of the system of mutual control and balance, the Commission praised the Republic of Croatia for the public consultation processes, but still stresses the need to develop civil society as an additional form of control. ///In conclusion, the biggest problem has been identified as still a major misunderstanding of the concept of rule of law in the general population, who consider it too broad, which is used as a technical term that is substantively vain. Of course, the term is necessarily abstract, but we believe that action by the Union, as well as national authorities, is needed accordingly, which will focus on familiarising citizens with the concrete content of the concept of the rule of law. The rule of law and democracy are fundamental concepts on which the EU’s legal and social order is based and should be given such importance in the future.
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