1. No category

Estonia and Poland:
Setting Up Regional Examples in Anti-Corruption Performance
Through Independent Judiciaries
(Early Draft)
Cristina Gherasimov
[email protected]
Department of Political Science
Rutgers University
89 George Street
New Brunswick, NJ 08901
Paper for: ECPR Joint Sessions of Workshops, Warsaw, Poland, March 29-April 2, 2015
Workshop: The Intricacies of Accountability: Horizontal, Vertical and Diagonal
Mechanisms to Combat Corruption
Abstract
In the post-accession period, new EU member states in Central and Eastern
Europe have registered significant variation in their anti-corruption performance. States
like Estonia and Poland are consolidating their anti-corruption efforts, while others such
as the Slovak Republic and Hungary are backsliding on previous achievements. Reform
of the rule of law in Central and Eastern European (CEE) states displays a trajectory
similar to the progresses and declines in these states’ control of corruption.
This paper examines the intricacies of the relationship between the control of
corruption and reforms in the judiciary in Poland and Estonia. It contrasts the institutional
reforms implemented to strengthen the independence of the judicial system and analyzes
whether they are related to anti-corruption performance. This study argues that Estonia
and Poland are registering continuous progress in containing political corruption due to
reforms that strengthen the independence of their judicial systems.
It concludes that improvements in the judiciary were often related to changes in
anti-corruption performance indicators both reflected by the World Governance
Indicators (WGIs) and the Freedom House rankings. The main finding of this paper is
that the independence of the judiciary does play a significant role in efforts to contain
corruption at the institutional level. Key actors are judges and public prosecutors as well
as their independence from the executive.
1
Since the largest wave of EU enlargement, the eight CEE new member states have
registered ups and downs in terms of their political and economic post-accession
achievements. One of the domains that undeniably has registered salient performance
variation is control of corruption. In the last two decades, mostly pressured by the EU
integration process, the CEE new member states have introduced numerous institutional
measures to address this phenomenon, and have established diverse anti-corruption
agencies to fight the problem. Yet, corruption is not only prevalent, it is also worsening in
most of the states according to the WGIs1, Transparency International’s (TI) Global
Corruption Barometer and Corruption Perceptions Index, the Freedom House Nations in
Transit Report2, DEMOS Report3, and the latest European Commission Report on EU
Anti-Corruption4 (see Graph 1). The WGI indicators5 show close association between the
evolution of control of corruption, and the other governance indicators that summarize
the quality of democracy (voice and accountability, political stability, government
effectiveness, regulatory quality, and the rule of law).
One of the factors that is closely associated with the control of corruption
indicator of a particular country is the rule of law (see Graphs 2)6. The similar trajectories
of these two indicators are closely related for all eight new EU member states. Driven by
the interest to understand the intricacies of this association, this paper explores the case of
the judiciary, and the institutional reforms implemented to strengthen its independence in
Estonia and Poland. Numerous reports highlight that an effective judiciary system plays a
crucial role in the containment of corruption. It is a “key element in the assessment of
anti-corruption policies”, and a prerequisite for an effective supervision of complex
corruption cases, especially the ones where high-level politicians are under the scrutiny
1
World Bank, “World Governance Indicators,” 2013, http://info.worldbank.org/governance/wgi/.
Freedom House, “Nations in Transit” Report, 2014, https://freedomhouse.org/report/nations2
Freedom House, “Nations in Transit” Report, 2014, https://freedomhouse.org/report/nationstransit/nations-transit-2014.
3
DEMOS Report, “Backsliders: Measuring Democracy in the EU,” 2013,
http://www.demos.co.uk/projects/backsliders.
4
European Commission, “EU Anti-Corruption Report 2014,” 2014, http://ec.europa.eu/dgs/homeaffairs/what-we-do/policies/organized-crime-and-human-trafficking/corruption/anti-corruptionreport/index_en.htm.
5
World Bank, “World Governance Indicators,” 2013.
6
Rule of law as defined in the WGI, includes “perceptions of the extent to which agents have confidence in
and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the
police, and the courts, as well as the likelihood of crime and violence” (World Bank, 2013).
2
2
of the law.7 It is also one of the spheres that has been the least reformed during the
European integration process as the EU has placed little attention to reforming this
sector.8 If we analyze the current legal framework, most of these new member states have
adopted strong institutions similar to their Western counterparts. Yet, corruption persists.
The research question this study addresses based on the cases of Estonia and Poland is to
what extent can reforms in the judiciary explain the variance in anti-corruption patterns in
the new EU Central and Eastern European member states. I argue hence that it is the
reforms in the judiciary that enhance its independence are the ones that set aside these
two cases as regional examples in effective anti-corruption efforts. Further, while not part
of this specific paper, this study will analyze what factors explain consolidated judicial
reforms in Estonia and Poland but not Hungary and the Slovak Republic.
This study employs a structured, focused comparison model to contrast
institutional reforms undertaken by the two cases since the 1990s in the judiciary. I
explore in this context the reforms that have been implemented to strengthen the
independence of the judiciary vis-à-vis the legislative and executive branches. I compare
the cases based on the following aspects of judicial reform: judicial framework and
organization, and independence and accountability of judges and prosecutors. I contrast
the findings to the reforms in the judiciary undertaken in Slovak Republic and Hungary,
two cases where anti-corruption indicators have declined after accession. Finally, this
study will also analyze under what conditions these reforms were possible in Estonia and
Poland, and what conditions led to their failure in the Slovak Republic and Hungary,
though not in the framework of this particular paper.
This study falls under the broader literature of democratic backsliding in the CEE
region. Studying backsliding in anti-corruption performance, and analyzing the potential
factors that explain the phenomenon is important because it weakens civic trust in public
officials, diminishes representation in the policy-making process, erodes democratic
values and the rule of law, and ruins state institutions. This social distress consequently
corrodes the democratic pillars of the EU as a whole, a “reputational risk” that the Union
7
8
European Commission, Annex 17 “Hungary to the EU Anti-Corruption Report,” 2014, 4.
Open Society Institute, “Monitoring the EU Accession Process.”
3
cannot afford.9 Moreover, the newly joined CEE member states represent the new border
of the EU. With the current security challenges that range from illegal migration to
terrorism, it is crucial that these states avoid backsliding on their anti-corruption
achievements and address deteriorated capacity in the policy areas that still are in need of
sustainable reforms. Finally, the overall enlargement policy of the EU further to the East
will be influenced by how these countries’ politically behave post-accession. We already
see a new safeguard measure put in place, the Mechanism for Cooperation and
Verification (MCV) for Romania and Bulgaria partially based on the EU experience with
control of corruption in the 2004 enlargement wave. Therefore it is important to analyze
what worked and what did not, and under what conditions, for more effective EU anticorruption policy frameworks.
Literature Review
The literature on corruption has developed rapidly in the last several decades due
to the increasing salience of the phenomenon’s effects on processes of development and
democratization and the special interest of international organizations to root out
corruption. Existing theories can be grouped into global, regional, and context-specific
explanations. This study breaks down the existing literature into five main schools of
thought that encompass similar explanations, and namely: international factors,
institutional,
political,
economic,
and
socio-cultural
approaches.
Institutional
determinants of corruption only follow a brief analysis below.
Rose-Ackerman argues that anti-corruption research should center on “the
institutional incentives facing officials and citizens to accept and to pay bribes.”10 That is
mostly because institutional change can contribute to the substitution of habits and
patterns of corruption with those of accountability, according to neo-institutional
accounts. Realigning incentives by increasing the risk to be prosecuted or loose seat in
9
European Commission, “EU Anti-Corruption Report 2014,” 2014, 8; Open Society Institute, “Monitoring
the EU Accession Process.”
10
Rose-Ackerman Susan, Corruption and Government: Causes, Consequences, and Reform (New York:
Cambridge University Press, 1999), 51.
4
parliament as a consequence of voter dissatisfaction with officials’ behavior or action
undertaken is hence seen as an imperative in decreasing corruption.11
The predominant institutional argument in the literature is that weak institutions
breed corruption. 12 Among the endless list of ineffective institutions, a particular
attention is given to the checks and balances that should be put in place by countervailing
powers.13 This brings us to the importance of eliminating monopolies of decision-making
power, argument that has been highlighted by scholars on corruption. Rose-Ackerman,
for instance, puts forward an economic rationale behind the bureaucrats’ behavior: these
tend to behave as monopolists who take advantage of increasing prices generated by
scarcity therefore it is a must to de-monopolize decision making if one wants to avoid
worsening corruption.14
Klitgaard extends this argument even further by claiming that the key to
controlling corruption is to limit the monopoly of power of any public official, limit the
potential misuse of discretion by designing and adopting clearly balanced rules and codes
of behavior for civil servants that make criteria for decision making clear with no space
for maneuver, and strengthen accountability.15 Karklins provides a detailed roadmap of
how these three principles can be implemented in post-communist states to achieve
maximum effectiveness.16
Moreover, an independent and effective judiciary and the police are the main
institutions charged in the literature with improving and ensuring legal accountability.17
In this sense, credible enforcement of penalties and compliance with the rule of law are
crucial in containing corruption. Scholars underline in this sense that any punitive
measures are useful only when they are implemented and enforced.18 If the judiciary does
not take action on abuses of legislation on anticorruption, and if trials continue for years,
11
Verena Blechinger, “Political Parties,” in Fighting Corruption in Developing Countries: Strategies and
Analysis, ed. Bertram Spector (Bloomfield, CT: Kumarian Press, 2005), 40.
12
Huntington, Political Order; Heywood, Political Corruption; Karklins, The System Made Me Do It;
World Bank, Anti-Corruption in Transition 3.
13
Karklins, The System Made Me Do It, 105.
14
Rose-Ackerman, Corruption: A Study in Political Economy, 90.
15
Klitgaard, Controlling Corruption, 75
16
Karklins, The System Made Me Do It.
17
O’Donnell, “Horizontal Accountability”; Karklins, The System Made Me Do It; Spector, Fighting
Corruption; Moustafa, The Function of Courts.
18
Blechinger, “Political Parties.”
5
“anticorruption legislation remains toothless.”19 Concurrently, “establishing an independent judiciary without ensuring accountability, can open the door to widespread
corruption.”20 Therefore, when corruption is rooted in the judiciary itself, and internal
accountability mechanisms fail, alternative dispute-resolution solutions should be
found.21
According to the World Bank data on institutional reforms undertaken in the CEE
region up to 2004, areas that have been prioritized by policy-makers have predictably
shown better performance, while those areas that were “the most complicated” or “beset
with conflicting objectives” have proven fewer positive results.22 The report does not
specify which were these specific areas nor does it shed light on the conflicting objectives
surrounding them. Another report, the OSI EU Monitoring Report identifies a list of areas
that were assessed to have received least attention on behalf of the EU in the preaccession reform process that the CEE states undertook.23 It can be hence assumed that
the institutions that have been subjected the least to reforms during the pre-accession
period, mostly the judiciary but not only, are the region’s Achilles heel. These areas,
which can be identified separately for each country, are most vulnerable to corruption and
reform backsliding.
According to Karklins, in post-communist societies there is often plenty of anticorruption legislation. However, it is not the right kind of legislation.24 According to
Sajo, the beneficiaries of the political status quo have mobilized each time the proposed
reforms were meant to hurt the incumbent political elite. Hence, the more promising the
proposed measure, the less chances it had to be implemented.25 Another way to misuse
legislative power was to create confusing and contradictory legislation, which also
promotes corruption. 26 This type of legislation can be partially the result of
disorganization that stems from the overall process of transition but also due to the rapid
19
Blechinger, “Political Parties,” 39.
World Bank, Anti-Corruption in Transition 3, xiv.
21
World Bank, Anti-Corruption in Transition.
22
World Bank, Anti-Corruption in Transition 3, xv.
23
Open Society Institute, “Monitoring the EU Accession Process.”
24
Karklins, The System Made Me Do It, 33.
25
Sajo, “Corruption, Clientelism, and the Future of the Constitutional State in Eastern Europe,” 15.
26
Varese, “The Transition to the Market.”
20
6
process of adoption of the acquis communautaire by the CEE new EU member states.27
Corruption as a consequence, according to Klitgaard, “thrives on disorganization.”28
Extortionist bureaucrats, in his understanding, deliberately over-regulate, and
obfuscate rules, procedures, and regulations, to create more space for bribe offering.
Hence, excessive regulation especially when combined with excessive discretion in
decision-making on specific issues is conducive to increased corruption.29 The question
that immanently derives from this theory is whether the CEE states have the right kind of
legislation on anticorruption in place. Moreover, can it be that by adopting the acquis
communautaire some states still have not fully harmonized their domestic legislation on
anticorruption? Are the effects of contradictory rules only starting to be felt in the postaccession period?
To conclude, the institutional determinants literature states that one can prevent
corruption by designing and implementing appropriate institutional structures,
procedures, and incentives. If we apply the existing theory to the EU post-accession
phase for new CEE member states, corruption is likelier to reemerge when institutions
designed to strengthen government accountability have not been fully reformed to demonopolize decision-making, and when the mechanisms for dismissing policymakers and
bureaucrats that display corrupt practices are either missing or are very limited.30 Finally,
another concluding thought from the literature is that one-size-fits-all institutional
solutions do not work, and these must be based on a careful assessment of the political
context of specific states.31 Now that the rush for EU membership is over, if we look back
to the legislation that has been rapidly adopted to strengthen the judiciary in particular,
how independent are the institutions put in place and how well do they fit the
idiosyncrasies of the political contexts of CEE states? Answering these questions through
the perspective of the judiciary is expected to help explain why some states are coping
better with corruption in the post-accession period.
27
Karklins, The System Made Me Do It.
Klitgaard, Controlling Corruption, 79.
29
World Bank, “New Frontiers.”
30
Blechinger, “Political Parties,” 36.
31
Karklins, The System Made Me Do It, 113.
28
7
Methodology and Case Selection
This study employs the structured, focused comparison method to highlight
differences in timing but also in judicial reforms to strengthen judiciary’s independence
undertaken by Estonia and Poland. The period under scrutiny is the early 1990s since
reforms have started with early democratic transitions until 2013. The criteria for
comparison of judicial reforms are as follows:
(a)
Legal framework and organization – looks at the constitutional separation of
powers, and the organization of the court system that should balance equitably
powers among the branches of government.
(b)
Judges – looks at judges’ terms of appointment, promotion, dismissal of
judges, salary and working conditions as indicators of their effectiveness.
(c)
Public prosecutor’s office – looks at prosecutors’ organization, terms of
appointment, promotion, and dismissal, salary and working conditions as
indicators of their effectiveness.
(d)
Judicial councils – analyzes whether there is a separate independent agency
that represents the judiciary. It also looks at the composition and main powers
of existing councils.
(e)
Finances – this section analyzes how the court system is financed, according
to what criteria, and what institutions have the final decision on the budgeting
process and allocation of funds.
(f)
Areas for concern – this section analyzes whether the problems that persisted
in 1990s are carried out into present or if they have been reformed, what
aspects have been dealt with and how.
This selection of criteria is by no means an exhaustive list of indicators of an
independent judiciary. They are proposed for analysis based on the common aspects
highlighted in various assessment reports analyzed in this paper. Comparative analysis of
these criteria will help understand the causes and conditions that led to the differences in
reforms passed and implemented by Estonia and Poland through further process tracing.
To analyze the reforms undertaken by the two cases, this study analyzes major
assessment reports of the European Commission Monitoring Reports32, Freedom House
32
European Commission, Monitoring Reports, www.ec.europa.eu/enlargement/archives.
8
Nations in Transit reports for the period 2001-201433 , most recent 2014 EU AntiCorruption Report 34 , Transparency International’s National Integrity System (NIS)
Assessments35, GRECO compliance evaluation reports36, World Bank Anti-Corruption in
Transition reports37, and Open Society Institute Monitoring the EU Accession country
reports.38
Further, the findings from the initial comparison will be contrasted to other two
cases, Hungary and the Slovak Republic to understand the difference in underlying
causes and conditions leading to more effective anti-corruption results.
This study analyzes Estonia, Poland, the Slovak Republic and Hungary as
comparative case studies because they all display different patterns of anti-corruption
performance in the post accession period. According to its WGI score on control of
corruption, as well as its Freedom House “Nations in Transit” reports scores for the
period 2004-2014, Estonia continues to register positive developments with an overall
increase from 0.92 in 2004 to 1.11 in 201339. It is the country with the highest control of
corruption score in the CEE region. Poland registers a steady and continuous increase in
its control of corruption score from 0.11 in 2004 to 0.55 in 2013. Hungary and the Slovak
Republic, in contrast, register steady declines of -0.36 and -0.33 points respectively in the
same period.
Moreover, by looking at the pre-accession scores, it is interesting to notice that
out of the four cases, Estonia started with the lowest score for control of corruption, -0.06
in 199640. Hungary, on the contrary, started with the highest score of 0.58 in 1996.
Similarly, Poland had a high start of 0.54 but continued declining until 2004. Further,
unlike Estonia, that had an upward trend in its implementation of anti-corruption reforms,
33
Freedom House, “Nations in Transit,” 2001-2014.
European Commission, EU Anti-Corruption Report 2014.
35
Transparency International, http://www.transparency.org/whatwedo/nis/.
36
GRECO, http://www.coe.int/t/dghl/monitoring/greco/documents/index_en.asp.
37
World Bank, Anti-Corruption in Transition.
38
Open Society Institute, Monitoring the EU Accession Process; also Monitoring the EU Accession
Process: Judicial Independence.
39
World Bank, WGI scores for control of corruption, 2012 - The Worldwide Governance Indicators are a
research dataset summarizing the views on the quality of governance provided by a large number of
enterprise, citizen and expert survey respondents in industrial and developing countries. These data are
gathered from a number of survey institutes, think tanks, non-governmental organizations, international
organizations, and private sector firms. Estimate of governance ranges from approximately -2.5 (weak) to
2.5 (strong).
40
Earliest available score from WGIs.
34
9
Poland started improving its score only in 2005, already being a member of the EU.
Slovakia similarly, started improving on its anti-corruption performance score only in
2003. Hence, we see different patterns of dealing with corruption pre- and also post- EU
accession.
Finally, the rule of law scores provided by the WGI indicators display similar
trends, and closely associated with the control of corruption developments. Due to the
variance registered by these four case studies in control of corruption patterns, but also
close associations to the rule of law scores, these cases have been chosen for comparative
analysis.
Poland and Estonia: Understanding the Reform Process
A. State and Evolution of Corruption
Poland
According to the most recent 2013 Special Eurobarometer on Corruption, 82
percent of Polish citizens acknowledge that corruption is a widespread phenomenon in
their country. This is six percent higher than the EU average.41 Only 28 percent consider
that government efforts to combat corruption are effective, 5 percent higher than the EU
average. Further, 30 percent of respondents agree that there are enough successful
prosecutions in Poland to deter corrupt practices, 5 percent above the EU average. This
data display a less optimistic image of how corruption is overall perceived by the Poles,
but a slightly better picture of government effectiveness in combating corruption when
compared to the EU average. If we look at the WGI indicators for control of corruption,
we do see that Poland is registering constant progress starting with 2004.
Although in 1996 Poland was rated better than most of its CEE neighbors in
controlling corruption42, the period that followed was marked by a steady decline in its
performance until 2004. In 2002, according to the OSI Report on monitoring the EU
accession process in the region, the phenomenon was “at best not decreasing.”43 An
increase in the number of convictions has been noticed in the period 1998-2002, however
these have been the result of active media investigations rather then due to the
41
2013 Special Eurobarometer 397.
World Bank, WGI, 2014.
43
Open Society Institute, “Monitoring the EU Accession Process,” 396
42
10
effectiveness of prosecution and law enforcement agencies.44 At the time, local surveys
suggested that the sectors most widely affected by corruption were the healthcare system
(67 percent of respondents), judiciary (49 percent), sub-national governments (39
percent), and central administration (25 percent).45
Today, according to Freedom House, 2014 Nations in Transit (NIT) report, major
scandals of institutional and political corruption still persist but are more frequently
reported than before. A number of highly-ranked public officials, including the former
Deputy Interior Minister, Deputy Defense Minister, and Transport Minister, were facing
accusations of corruption in 2013.46 Cases continue to pile up over the years, even if the
institutions designed to address the problem are operating effectively. NIT 2014 Chapter
on Poland concludes that, “public figures are undeterred by the prospect of punishment,
and that corruption is more entrenched than previously thought.”47
Estonia
Estonia has always distinguished itself in the CEE region with very high anticorruption performance. It enjoys the reputation of the least corrupt country in Eastern
Europe and in the former Soviet space since 2011 when it replaced Slovenia as regional
leader in anti-corruption reform. According to the 2013 Eurobarometer on Corruption, 65
percent of the population thinks corruption is widespread.48 That makes it the country
with the lowest estimate in the region, and 11 percent below the EU average. It is doing
better than some of the older member states as well (Austria, Belgium, and France).
Moreover, 30 percent of respondents think that the Estonian government efforts to
combat corruption are effective, which places it 7 percent above the EU average. 39
percent of Estonians consider that there are enough successful prosecutions in the country
to deter people from corrupt behavior, 13 percent above the EU average, and only 11
44
Open Society Institute, “Monitoring the EU Accession Process,” 397.
J. Kurczewski, Poslowie a opinia publiczna [Deputies and Public Opinion], Warsaw 1999.
46
Freedom House, “Nations in Transit 2014,” 482.
47
Freedom House, “Nations in Transit 2014,” 482.
48
2013 Special Eurobarometer 397.
45
11
percent below the EU maximum. According to TI’s Corruption Perception Index (2014),
Estonia is on the 25th place out of 175, while Poland is on the 35th.49
Unlike Poland, it experienced though a very different start in the 1990s. Together
with its Baltic neighbors, Estonia began its transformation process with one of the lowest
control of corruption indices in the CEE region, -0.06.50 It had the lowest rating among
the four cases in this study. In a matter of only two years, its score went up to 0.57 in
1998, the most radical increase in the region. Since then it continues to register steady
reform progress and to improve its anti-corruption performance. In this context, Estonia
was one of the first in the CEE region to adopt in 1995 an explicit Anti-corruption Act,
which provides the legal framework for the prevention and prosecution of corruption,
definitions of a public official and corruption, detailed provisions on conflicts of interest
and asset declarations, as well as establishes a Parliamentary Anti-corruption
Committee.51
Unlike Poland, which experienced most corruption cases in healthcare, Estonia
faced most widespread corruption in the 1990s among police and customs administration
authorities.52 According to the same Report data, corruption was considered to be a
relatively minor problem among senior officials and politicians. In this context, the
European Commission has not identified corruption to be a problem for Estonia in its
European integration process. Yet, despite continuous reforms adopted in 2013, widely
broadcasted accusations of money laundering that involved Estonia’s key political parties
have casted doubt over its leading role as one of the least corrupt countries in the EU.53
To conclude, both Estonia and Poland are current regional leaders in containing
political corruption. Estonia, a former soviet republic, started its reform process with a
very low control of corruption ranking, according to most international indicators. It
registered however constant progress due to the reforms implemented. The latter was
categorized as a country with much lower persistence of corruption. Its progressive
upward trend in anti-corruption reform started only in the years after it joined the EU.
49
TI, Corruption Perception Index 2014, www.transparency.org/cpi2014/infographic/regional/europeanunion-and-western-europe
50
World Bank, WGI 1996.
51
Open Society Institute, “Monitoring the EU Accession Process,” 201.
52
Open Society Institute, “Monitoring the EU Accession Process.”
53
Freedom House, “Nations in Transit 2014,” 227.
12
Despite experiencing different trajectories, these countries enjoy good reputation in the
CEE region due to their recent achievements. This next section looks in comparative
perspective at how reforms in the judiciary have helped Estonia and Poland enjoy their
current status as leaders in anti-corruption reform.
B. Judicial Reforms: A Comparative Analysis
The most recent EU Anti-Corruption Report does not highlight the judiciary to be
a source of corruption for either Estonia or Poland.54 Furthermore, it does not recommend
additional reforms as necessary to safeguard the independence and effectiveness of the
judicial branch of the two governments. The Report highlights though that an
independent and effective judiciary is crucial for containing corruption. Moreover, “the
ability of a judicial system to impose dissuasive criminal sanctions plays a major
deterrent role and is a clear sign that corruption is not tolerated.”55 Also, an independent
judiciary is a condition originating from “the right to an effective remedy” embedded in
the Charter of Fundamental Rights of the EU. 56 According to the EU Justice
Scoreboard57, it can also enhance the attractiveness of the investment environment, “as it
assures the fairness, predictability, certainty and stability of the legal system in which
businesses operate.” 58 Both countries, in this context, have comparatively effective
national justice systems. Nations in Transit reports from Freedom House do highlight
some additional measures that the judiciaries of Estonia and Poland could benefit from
based on the already adopted reforms or the ones in process of implementation. This
section hence examines the reforms that have been put in place, their timing, and the
additional measures recommended by various international agencies that consolidate
even further the judiciaries in these two new EU member states.
54
European Commission, EU Anti-Corruption Report 2014. Chapters on Poland and Estonia.
European Commission, EU Anti-Corruption Report 2014, 15.
56
Charter of Fundamental Rights of the EU, Article 47, http://ec.europa.eu/justice/fundamentalrights/charter/rights-breached/index_en.htm.
57
The objective of the EU Justice Scoreboard is to assist the EU and the Member States to achieve more
effective justice by providing objective, reliable and comparable data on the functioning of the justice
systems of all Member States. Quality, independence and efficiency are the key components of an
“effective justice system,” Retrieved from http://ec.europa.eu/justice/effectivejustice/scoreboard/index_en.htm.
58
EU Justice Scoreboard 2015, http://ec.europa.eu/justice/effectivejustice/files/justice_scoreboard_2015_en.pdf.
55
13
Lingering Wounds: 1990 to early 2000s
Poland. In the 1990s and early 2000s, the Polish judiciary did not have the
capacity to sanction effectively corruption. The European Commission country
assessment reports attributed much of this lack of functional capacity mainly to a
problematic prosecution system.59 Since its early set up, the Prosecutor’s Office played a
crucial role in the fight against corruption, even though insufficiently specialized.
Together with police authorities, these were the most important institutions to deal with
cases of corruption since Poland still had no specialized anti-corruption agencies.60 The
general set up of the Prosecutor’s Office however was problematic from a structural
accountability point of view. Prosecutors were hierarchically organized under the
Minister of Justice, who also held the position of Prosecutor-General. 61 These
overlapping positions hinted towards a lack of functional independence of prosecutors
who could have also been working to protect the political elite. Moreover, the
representatives of the ruling party appointed the Prosecutor-General, fact that highlighted
serious concerns about the capacity of the prosecution system to initiate and carry on
objectively high-level corruption cases.62
Moreover, courts were perceived as “one of the most corrupt institutions” in
Poland.63 According to the 2003 NIT report, the Polish judicial system “does not enjoy
the public’s trust”.64 According to a survey cited in 2003 NIT report, the main causes for
this civic distrust are “bad law, corruption, fear of criminals, lack of ‘goodwill’ on behalf
of the prosecutor's office, insufficient personnel, underinvestment, and low professional
qualifications.”65 Moreover, the European Commission Regular Reports noted that the
judiciary was plagued by “poor court organization, burdensome procedures, long delays”,
and “poorly functioning disciplinary mechanisms.”66 These issues have contributed to the
development of a system that was susceptible to corruption. They have also caught the
59
Open Society Institute, “Monitoring the EU Accession Process,” 413.
Open Society Institute Monitoring Report mentions that the idea of setting up a special Central Anticorruption Office was debated in the Sejm on 25 April, 2001 and was rejected.
61
Act on Procuracy, Law Journal 1985.
62
Open Society Institute, “Monitoring the EU Accession Process,” 413.
63
Open Society Institute, “Monitoring the EU Accession Process,” 427.
64
Freedom House, “Nations in Transit,” 2003.
65
Freedom House, “Nations in Transit,” 2003.
66
Open Society Institute, “Monitoring the EU Accession Process,” 427.
60
14
attention of the European Commission that has highlighted the need for reform to
counteract effectively corruption in the judiciary.
Finally, by analyzing the WGI indicators for the rule of law and control of
corruption, in the case of Poland we do see almost perfect symmetry in terms of
trajectory trends. There is a steep decline in its rating, from 0.76 in 1998 to 0.40 in 2004.
Only post-accession Poland’s rule of law and control of corruption indicators start
improving (See Graph 2.2).67
Estonia. Unlike Poland, Estonia has passed in the early 1990s significant reforms
to ensure and support the effectiveness of constitutional independence of the judicial
system. The public prosecutors are administrative officials with broad independence
similar to that of judges. The Public Prosecutor’s Office is a combination of the two
models in which prosecutors are part of the judiciary, and part of the executive. They are
appointed by the Minister of Justice through a competitive selection process, and can be
dismissed only at retirement age or as a consequence of disciplinary action. Multiple
monitoring reports on the eve of Estonia’s integration in the EU have highlighted some
institutional weaknesses with rent-seeking potential: courts and prosecution offices
lacked specialized departments for dealing with corruption.68 They also lacked enough
competent professionals. There were “no clear and defined standards for selecting,
evaluating, and promoting judges.”69 Yet, there was almost no evidence of corruption in
the courts or prosecution offices.70 Moreover, in 2000 nearly 45 percent of respondents to
a local survey expressed trust in the courts, a high estimate for the CEE region overall.71
Two more concerns were raised about the Estonian judiciary and prosecution
system. First was the limited period within which a criminal or civil action could be
brought against an alleged offender. In this context, the statute of limitations for
corruption offences was only two years up to the moment a case was transmitted to court,
fact that could hamper effective prosecution of corruption crimes. Second, the sentences
that were applied to those condemned for corruption were lenient. This fact incriminated
67
World Bank, WGI, 2014.
Open Society Institute, “Monitoring the EU Accession Process.”
69
Freedom House, “Nations in Transit 2003.”
70
Open Society Institute, “Monitoring the EU Accession Process,” 218.
71
Public opinion poll, October 2000 cited in Open Society Institute, “Monitoring the EU Accession
Process,” 220.
68
15
courts for not contributing enough to make corruption a high-cost activity. An example in
the GRECO Evaluation Report on Estonia states that in the period 1995-1999, out of the
55 convictions for “offences in office” only five defendants were imprisoned. 72
Moreover, between 1995 and 2002 only three cases of corruption among judges have
been reported. Moreover, all three were acquitted.73 Yet, the European Commission has
not issued any concern in regards to the independence and functioning of the judicial
system in the case of Estonia.
The aforementioned problems in the Polish and Estonian judiciary were the most
important concerns identified before these countries joined the community of European
states. Moreover, the European Commission highlighted the need for judiciary reform in
the pre-accession period only in the case of Poland. Both countries though were
considered to have the corresponding legal and judicial framework put in place to meet
the requirements of consolidated democracies.
Reforms in the Judiciary – Estonia
Legal framework and organization. Until it gained independence from the former
Soviet Union, Estonia had a short history of a genuine judicial system. Since the early
1990s however it has considerably progressed in consolidating what it previously lacked.
The Constitution and laws offer explicit protection for an effective judiciary to function.
The only serious weakness of the legal framework is that “there is no clear constitutional
representative of the judiciary, and the executive’s interpretation of independence focuses
unduly on individual judges, to the detriment of the institutional independence of the
judiciary.”74
The Estonian Constitution establishes a three-level court system. County courts,
the lowest level, handle civil, criminal, and misdemeanor matters, and administrative
courts hear disputes in public law. Second, the circuit courts whose number has been
reduced over time for efficiency purposes hear appeals from the lower levels. Finally, the
Supreme Court, which according to the Constitution, is both a court of cassation and a
72
GRECO, Evaluation Report on Estonia, 24–25.
Open Society Institute, “Monitoring the EU Accession Process,” 220.
74
Open Society Institute, “Judicial Independence,” 160.
73
16
court of constitutional review. The chancellor of justice, the president, local government
councils, the Parliament, as well as lower-level courts can request the Supreme Court to
investigate the constitutionality of specific legal acts.
Judges. Judges in Estonia are appointed for life, and the rules for removal are not
considered to be threatening judicial independence.75 Life tenure and protections against
removal from office are enshrined in the Constitution. Moreover, judges have explicit
limits on cross-branch and outside activity to ensure their decisional independence. These
cannot hold any other elected or appointed offices. Further, there are no fixed criteria for
assigning or transferring judges. In this sense, judges cannot be transferred without their
prior consent. Judges’ salaries are established by Parliament and are tied to the salaries of
other appointed officials in the civil service.76 The 1991 Legal Status of Judges Act has
significantly increased both the salary and the social benefits of judges. In comparison to
other CEE neighbors, these are much better paid, especially after the 2002 Courts Act
that has further increased judges’ salaries to enhance their economic independence.77 In
2009 though, Chief Justice Rask warned that austerity cuts planned to be implemented as
a measure to address the financial crisis, risk making the wages of judges less
competitive than wages in the private sector. This fact could subsequently undercut the
independence of the judicial system.78 Moreover, the physical working conditions of
judges require significant improvements considering the Soviet disregard for local
courthouses. In this regard, the courts are continuously renovated.
Until recently an important area for concern in regards to judges’ independence
was that the administration of district and regional courts were under the full jurisdiction
of the Ministry of Justice, with the exception of the Supreme Court that is selfadministered. Many judges agree that this hampers judicial independence through
possible direct interference through the Ministry’s discretionary administrative
supervision.79 Until 2010 with the new Courts Act, it was the Ministry that decided the
location of district and regional courts, their territorial jurisdiction, as well as the number
75
Open Society Institute, “EU Accession Monitoring Program, Monitoring the EU Accession: Judicial
Independence,” 150-184.
76
Open Society Institute, “Judicial Independence,” 170-171.
77
EU Justice Scoreboard 2015.
78
Freedom House, “Nations in Transit 2010.”
79
Open Society Institute, “Judicial Independence,” 155.
17
of judges and support staff at each court, given the approval of the Supreme Court first.80
According to monitoring reports of the Commission but also GRECO, the Ministry of
Justice has not abused this authority previously even if this division raises concerns about
maintaining separation of powers between the executive and the judicial branches. Only
in some instances it has urged judges to speed up their proceedings but no signs of
politicization have been attested. Currently the Ministry shares this responsibility with the
Court Administration Advisory Council.
Finances. Another area for concern is that with the exception of the Supreme
Court, all lower courts have a minimum say in the planning and administration of their
own budgets and budgeting process. Moreover, “there are no objective criteria for any
stage of the budget process, nor any legislative or constitutional guarantees of funding
levels.”81 The Ministry of Justice preserves control over the budgeting process as well as
the allocation of funds, fact that grants it significant influence over the courts. This has
not changed with the 2010 Courts Act.
In 2008-2011 repeated attempts to address the reform of judicial autonomy were
made, however, no final legislation was passed. In this context, a special working group
led by Chief Justice Mart Rask took the initiative in December 2009 to suggest to
Parliament the necessary large-scale changes. Recommendations included among others
reforms, the adoption of a clear hierarchy of judicial oversight, meant to built into the
court system more adequate assessment of incompetent judges, and the creation of a
separate agency to deal with the administration of lower courts. Due to both political and
legal disputes regarding the extent of the suggested judicial oversight mechanism, as well
as the set up of the autonomous administrative agency, the legislation was postponed and
finally left aside after a new government came to power in 2011. Further reforms focused
on minor issues such as the decrease in the high level of state fees for judicial procedures,
and shortening the length of judicial proceedings, while more critical reforms addressing
the autonomy of the lower courts have not appeared on the agenda since then.82
Public prosecutor’s office. The Minister of Justice through a competitive selection
process appoints public prosecutors, as previously mentioned. The Code of criminal
80
Courts Act, Arts. 16–20; RT 1991, 38, 472; RTI 2001, 21, 113.
Open Society Institute, “Judicial Independence,” 167.
82
Freedom House, “Nations in Transit 2014.”
81
18
procedure adopted in 2002 transferred the main leadership for pretrial investigation from
the security police to the prosecutor. This reform brings an important change in the anticorruption framework since the “specialization of prosecutors in the fight against
corruption is still limited”. 83 This reform is expected to enhance the efficiency of
proceedings.
Further reforms. The years just before EU accession brought further reforms to
strengthen the judicial framework. In 2002 the consolidation of the independence and
administration of the judiciary took a key step in reducing the influence of the Ministry of
Justice with the adoption of a new Law on the Courts. One of the main provisions that
strengthen the judiciary’s independence is that the Act “eliminates political involvement
in disciplining judges by transferring the authority to initiate proceedings against judges
from the Ministry of Justice to the legal chancellor.”84 As a result, it is now the Council
for Judicial Training that bares full responsibility for the training of judges. Moreover,
the Ministry of Justice has now to share the administration of courts with the Court
Administration Advisory Council, mainly composed of judges. The Ministry, however,
retained the responsibility on budgetary issues.85 Another key document adopted in 2003
that contributed to a stronger judicial framework was the new code of criminal procedure.
In the light of EU accession and full harmonization of the acquis communautaire,
judges were trained in judicial activity throughout 2003-2006, particularly on the
functioning of the European Court of Justice and implementation of EU legislation.
Prosecutors, who also play a salient role in the judicial framework, did not receive similar
trainings as these efforts were blocked by “officials who see prosecutors rather than
judges as central to the control of the courts.”86 According to the same report, the EU
training situation began to change for prosecutors only in 2005.
High-level prosecutions. Starting with 2007 the independence of the courts and
judges was more often put to a test. Several high profile cases, involving amongst others
a cousin of the former president, Arnold Meri, as well as a former judge accused of
taking bribes in exchange for transfer of influence, Ardi Suvalov, were brought to court.
83
Freedom House, “Nations in Transit 2004.”
Freedom House, “Nations in Transit 2003.”
85
Freedom House, “Nations in Transit 2003.”
86
Freedom House, “Nations in Transit 2006.”
84
19
In both cases, the judiciary has proven its consolidated independence. Moreover, in 2010,
the Supreme Court assisted Estonia is reaching a breakthrough in its anti-corruption
performance. It upheld a bribery conviction against Villu Reiljan, the former environment
minister and leader of People’s Union party. According to Freedom House, “the Supreme
Court ruling showed that even high-level political figures are not immune to
prosecution.”87 This indictment helped Estonia improve its Freedom House corruption
rating, as explicitly stated in the Freedom House Nations in Transit Report.
In 2012 though Estonia’s anti-corruption rating slightly fell back. This decline
was related to the activity of the prosecutor’s office that was criticized selectively
monitoring sensitive political issues. Moreover, a major corruption scandal about transfer
of influence in Estonian politics involved the Minister of Justice at the time, who in 20092010 was the secretary-general of the Reform Party party. The prosecutor’s office
however interrupted the investigation, due to apparent lack of evidence.88 Today, all
international institutions converge on the statement that Estonia provides effective
protection of the fundamental rights of its citizens, the courts’ activity is successful, and
that the legal aid services work well.
Reforms in the Judiciary - Poland
Legal framework and organization. The independence of the judiciary is
enshrined in 1997 Polish Constitution. The court system consists of district courts,
regional courts, appeals courts, garrison courts, provincial military courts, and regional
administrative courts. Additional institutions were established after the end of the
communist era, and namely the Chief Administrative Court, the civil rights
commissioner, as well as the Constitutional Tribunal and the Tribunal of State. The latter
are responsible with interpreting and enforcing the rules enshrined in the Constitution,
and comparatively enjoy high levels of societal trust.89 The lower chamber of Parliament
elects the fifteen Constitutional Court justices for a nine-year term.
87
Freedom House, “Nations in Transit 2011.”
Freedom House, “Nations in Transit 2013.”
89
Freedom House, “Nations in Transit 2012.”
88
20
The legal architecture, the court system, and other law enforcement institutions
were considered indisputably democratic even in the early 2000s.90 In 2002, when Poland
was still the most corrupt country among the 2004 candidate countries, and it did not
enjoy a good reputation for its rule of law either, the checks and balances put in place
were credible; there was no widespread official abuse of the criminal code, protection of
human rights was guaranteed by the Constitution, and minority rights were commonly
respected.91
Yet, of the three branches of government, the judiciary, according to Freedom
House, is still the least reformed, “having maintained considerable continuity in
personnel during the transition to democracy.”92 Moreover, the legal system overall does
not enjoy a good reputation among Poles. It is ranked the second most corrupt sector after
healthcare.93 The conditions that challenge its daily functioning are excessive delays in
court proceedings, cases of corruption in the judiciary itself, and politicization of general
prosecutor’s position. In 2005 there were still over six thousand court cases lasting for
more than five years.94 In 2006, Freedom House mentions that the judiciary continues to
be the weakest area of Polish governance. New cases of corruption involving judges and
prosecutors, the leniency of the court system, the long duration of court proceedings, the
numerous cases lost in the European Court of Human Rights, made Poland’s rule of law
but also corruption indicators simultaneously decline.
Problems in the judiciary continue to persevere. During 2007, an undeclared war
between the ruling party, Law and Justice (PiS), and the Constitutional Court has started.
Judges continuously attempted to overturn numerous laws passed by the Parliament,
while PiS regularly criticized the Court as “a body of political opposition” menacing to
weaken its role.95 By autumn 2007, over twenty decisions of the Constitutional Court
were not being enforced.96 Moreover, in 2009, the Ombudsman for Civil Rights draw
again attention in his annual report that the problem of court delays still persists, and
90
Freedom House, “Nations in Transit 2014.”
Freedom House, “Nations in Transit 2003.”
92
Freedom House, “Nations in Transit 2014.”
93
Freedom House, “Nations in Transit 2006.”
94
Freedom House, “Nations in Transit 2006.”
95
Freedom House, “Nations in Transit 2008.”
96
Freedom House, “Nations in Transit 2008.”
91
21
some cases have been extended even for decades.97 In 2010, further, the vote of four new
Constitutional Tribunal justices was split along party lines. According to Freedom House,
“this show of partisanship by the ruling parties constituted a serious setback in efforts to
promote judicial independence in Poland.”98
Judges. According to the Polish Constitution, the President at the nomination of
the National Judicial Council appoints judges for an indefinite term, which usually ends
at retirement. They cannot be dismissed or arbitrarily removed from office. Their
functional independence is protected by certain restrictions placed on outside activity,
such as joining political parties, trade unions, or carrying out public functions that would
question their independence. Moreover, a judge cannot be permanently transferred to
another post without her consent.
In practice, there is a lot of undue influence on judges on behalf of the Ministry of
Justice that comes from existing loopholes in the legislation. According to the 2007 Law
on Court Organization, the Minister of Justice can “reassign judges to different courts for
six months, and to temporarily nominate a chief judge without soliciting the opinion of
other judges.”99 The same law makes it mandatory for the National Judicial Council
(NJC) “to lustrate the courts, to help unify sentencing, and to prohibit all chief justices
from being council members”100 The Constitutional Law has overruled some of these
provisions. Moreover, judges can and are in fact frequently working within the Ministry
of Justice while in parallel adjudicating cases, thus jeopardizing their independence.101
Further, with judge’s consent, the Minister may assign her to duties in the Supreme Court
for a specified or unspecified term.102
The Minister of Justice also appoints and recalls district, regional, and appellate
court presidents once the general assembly of judges of the relevant court have given
their opinion. Court presidents have a term of four years, and can be re-elected for a
second term at the initiation of the Ministry.103 It is important to highlight that local
97
Freedom House, “Nations in Transit 2010.”
Freedom House, “Nations in Transit 2011.”
99
Freedom House, “Nations in Transit 2008.”
100
Freedom House, “Nations in Transit 2008.”
101
Open Society Institute, “Judicial Independence,” 310, 323.
102
Act on Ordinary Courts, Art. 63. cited in Open Society Institute, “Judicial Independence.”
103
Act on Ordinary Courts, Arts. 29(1), 30, and 30(1), cited in Open Society Institute, “Judicial
Independence.”
98
22
political authorities have no say on the nomination or recall of court presidents. Hence,
even though decisions are co-shared with the judiciary, the Ministry’s right to initiate a
second-term appointment grants it undue influence over court presidents interested to
extend their term.104
Furthermore, there is no independent body responsible for the administration of
courts at the national level. NJC’s competences are limited to protecting the
independence of judges as individuals rather as a separate branch of government. Hence
the administrative supervision is delegated to the Ministry of Justice.105 This includes
“efficient case handling and proper enforcement of court rulings.”106 The administrative
competence over lower courts, its supervisory powers, as well as the right to begin
investigations or reverse administrative court decisions open many opportunities for
indirect influence of judges.107
A salient issue that influences judges’ independence and has been a constant
problem is their remuneration. Polish judges are underpaid and do not enjoy satisfactory
administrative support. According to Freedom House, these along with the Latvian
judges, are the worst paid in the entire EU despite the fact that adequate remuneration
was enshrined in the Constitution as a safeguard of judicial independence. 108 This
situation makes Polish judges rely on the branches that control budgeting decisions,
another loophole in the legislation.
Public Prosecutor’s Office. Until March 2010, prosecutors were part of the
executive branch, and under firm control of the government as the Minister of Justice was
also serving as Prosecutor General. Since the Minister of Justice is politically responsible
to the Sejm, this institutional structure had as a goal to ensure parliamentary oversight of
state prosecutors. This practice however, inherited from the communist period, undercut
the autonomy of state prosecutors for decades and had been brought numerous times in
the attention of the Parliament as a critical issue that needed to be addressed. Prosecutors
did not have terms of office and they could be promoted or removed at any time. As an
104
Open Society Institute, “Judicial Independence,” 338.
Act on Ordinary Courts, Art. 10 cited in Open Society Institute, “Judicial Independence.”
106
Regulation of the Minister of Justice of 18 September 1995, Journal of Laws of 28 September 1995,
1995.111.538 cited in Open Society Institute, “Judicial Independence.”
107
Open Society Institute, “Judicial Independence,” 327.
108
Freedom House, “Nations in Transit 2011.”
105
23
example, Freedom House states that “[i]n the first 10 months of 2007, the minister of
justice changed 10 out of 11 appeals prosecutors and half of the regional ones.”109
Following a turbulent adoption of an amendment to the Law on State Procurators,
the positions of Minister of Justice and Prosecutor General have been finally split in
October 2009. Through a national merit-based competition organized by the National
Judiciary Council, a new prosecutor was chosen in early 2010. The Prosecutor General is
appointed for a six-year term, and can be removed only when specified by law
(resignation, incapacitation, or impeachment). Moreover, according to the amendment,
once Prosecutor’s term expires, “the incumbent must retire from the legal profession.”110
Finally, the prosecutors who were working in regional offices but under the supervision
of the Prosecutor General–Minister of Justice were moved back to the regional
prosecutors’ offices.111
Even though the reform is considered to be a breakthrough for the judiciary in
Poland, the prosecutorial offices along with the courts are understaffed and underpaid,
issues that expose them to further pressures.112 Moreover, these are overworked, which
immanently leads to further “delays and hasty decision-making at all stages of the
judicial process”113.
National Council of the Judiciary. NCJ is theoretically the major representative of
the judicial branch. The NCJ is mainly composed of judges who are appointed by the
President for a four-year term. They can subsequently be re-appointed. The Minister of
Justice is also a member of the Council but does not play any special role. The
Constitution defines the Council as an institution that protects the independence of judges
and courts.114 The NCJ’s competences however focus mainly on the issues surrounding
the judges themselves rather than on the role and status of the judiciary as a separate
branch of government.115 Hence,
“In 1989, when the Council was created, there was discussion in Parliament about
109
Freedom House, “Nations in Transit 2008.”
Freedom House, “Nations in Transit 2011.”
111
Freedom House, “Nations in Transit 2008.”
112
Freedom House, “Nations in Transit 2012.”
113
Freedom House, “Nations in Transit 2013.”
114
Polish Constitution, Art. 186(1).
115
Law on the National Council of the Judiciary, Art. 2 cited in Open Society Institute, “Judicial
Independence.”
110
24
whether or not it constituted a representative body of judges. The prevailing view
held that the Council had a special character, but that it was not strictly speaking an
organ of judicial authority and that it did not seem to qualify as an organ of judicial
self-government.”116
NCJ representatives can participate in the meetings of parliamentary committees at
the invitation of the chairman of the committee. Despite being required to ask for NCJ’s
opinions on any bill that concerns the judiciary, the Parliament is not legally bound in any
manner to these opinions. One competence of the Council is the appointment of judges to
higher courts.117
Finances. One serious area for concern is courts’ budgeting process. The state
budget contains no special chapter for the judiciary. Allocation of funds for the judicial
system goes through the budget of the Ministry of Justice, which includes budget items
for various functions such as the judiciary, the prosecution, the prison system. It is only
the Supreme Court, together with the Supreme Administrative Court, and Constitutional
Tribunal that have independent budgets.118
Moreover, the Ministry of Justice prepares the annual budget based on the
“evaluation of the previous year’s performance” while taking into account “the estimated
growth in caseload in courts connected to increasing the number of full-time judge
positions and the requirements for new investments.”119 In this sense, it is the Ministry
who prepares the budget, and decides on the how to distribute budgetary resources based
on court presidents’ submitted applications that outline their financial needs. This vertical
accountability to the Ministry undermines significantly the independence of the judiciary
and has been under parliamentary scrutiny for numerous times as a potential area for
reform.
Further Reforms. The main reforms introduced in the judiciary started in mid2000s. 24-hour courts for petty crimes, increased court computerization, and audio/video
recording of court proceedings, all were meant to unclog the system.120 The 24-hour
courts proved less effective than expected, and were later transformed into 72-hour courts
116
Open Society Institute, “Judicial Independence,” 322.
Open Society Institute, “Judicial Independence,” 343.
118
Open Society Institute, “Judicial Independence,” 330.
119
Open Society Institute, “Judicial Independence,” 330.
120
Freedom House, “Nations in Transit 2008.”
117
25
with the obligatory arrest of the offender.121 The computerization of Polish courts proved
to be very effective: protocols started being digitized, time to access criminal records was
reduced from two days to two hours, real estate books were made available online, and
courts started having information pages on the Internet. Moreover, over 800 courts were
using audio recording equipment, and witness examinations could be conducted via
videoconferences when necessary. 122 In 2009, less stringent criminal law with new
changes to the penal code, and more effective courts were immediately reflected in
Poland’s ranking for rule of law.123 Moreover, the later introduction of e-courts in 2010
where minor claims can be filed and judgments are delivered via Internet proved to be
very successful. In one year, according to Freedom House, the system “had accepted and
resolved over one million cases.”124
The most important reform adopted was the formal division of the positions of
Prosecutor General and the Minister of Justice in 2010. This separation of powers
promises a lot of potential for improvement in prosecutors’ independence but it is still too
early to assess its practical effectiveness.125
Areas for concern. One important challenge for a more effective judiciary is the
vast body of legislation that has been adopted since the end of the communist era.
According to Freedom House, “since 1989, the Parliament adopted almost 3,000 laws
and over 20,000 decrees, out of which 58 percent were intended to modify preexisting
regulations.”126 In consequence, the Polish legislation becomes difficult to be enforced.
A different issue for concern that has been consistently brought up by the media
and also in various assessment reports is the protection of the principle of equality before
the law. There are mediatized cases where politicians, public officials, businessmen, and
Polish celebrities “receive better treatment when facing criminal charges”.127 Moreover,
Article 212 of the criminal code permits imprisonment as punishment for defamation
despite conflicting with basic democratic principles.128
121
Freedom House, “Nations in Transit 2009.”
Freedom House, “Nations in Transit 2009.”
123
Freedom House, “Nations in Transit 2009.”
124
Freedom House, “Nations in Transit 2012.”
125
Freedom House, “Nations in Transit 2014.”
126
Freedom House, “Nations in Transit 2010.”
127
Freedom House, “Nations in Transit 2014.”
128
Freedom House, “Nations in Transit 2014.”
122
26
Finally, the problem that has been discussed earlier but continues to persist is the
involvement of the executive in the administration and budgeting process for the courts.
The judiciary has very limited input when it comes to the allocation of funding, fact that
significantly undermines its independence and equality with the other branches of
government. These issues have not been addressed in the recent reforms of the judiciary.
Concluding Comparisons
Legal framework and organization. Both countries have a sound institutional
framework in place, and the independence of the judiciary is enshrined in states’
constitutions. However, both Estonia and Poland are affected by the fact that the
executive has a skewed understanding of the judiciary’s independence by focusing on
individual judges rather than on the judiciary in its entirety. In this context, there are
numerous areas for concern that jeopardize branch’s independence.
Judges. Overall judges do exercise judicial independence in decision-making in
both countries. In Estonia however, the verticality of judges is clearer ensured in legal
acts and subsequently practiced. While Estonian judges are appointed for life and are
banned from outside activity, Polish judges end their career at retirement or are elected
for a nine-year term in the case of the Constitutional Tribunal. As it has been noticed in
recent elections of new justices for the Tribunal, the process is also highly politicized.
Moreover, many do work for the Ministry of Justice in parallel. Hence, the executive and
the legislative have more undue influence on Polish judges.
Moreover, the judges in Poland are more underpaid and understaffed than their
counterparts in Estonia. This is another aspect that could undermine their functional
independence. Yet, the legal standards that ensure the independence of judges both in
Estonia and Poland do correspond with their Western European counterparts’.
Public prosecutors. A key difference between the two countries is the
independence of public prosecutors. Prosecutors in Poland represented an area for
concern that has been adequately addressed in 2010. Until then it was under the tight
control of the executive where the Minister of Justice was also the Prosecutor General.
Assessment reports acknowledge that there were not as many cases of corruption brought
to court partly because of this double function of the Prosecutor General. After the formal
27
division of the two, there is evidence of more cases of corruption being revealed. The
public prosecutors in Estonia are administrative officials with broad independence similar
to that of judges.
Judicial council. Unlike Estonia that does not have a judicial council altogether,
Poland’s NCJ is not as effective as expected. That is due to its mere advisory role, and
the fact that its function is to represent judges as individuals rather than a monolithic
branch of power. The absence of an independent representative for the judiciary in
Estonia and the existence of a less effective Council of the Judiciary in Poland reflect the
little attention and resources that were directed towards longer-term institution building
in the early 1990s, a general characteristic of judiciaries in the CEE region. Most
attention was devoted to “constitutional change to lock in political reforms and judicial
independence.”129
Finances. Financing and administration of lower national courts represents the
grey area for both Estonia and Poland and significant loopholes that could permanently
undermine the independence of the judiciary. In the case of Estonia, the Ministry of
Justice has control over the budgeting process as well as the allocation of funds for all
lower courts. Moreover, there are no legislative or constitutional guarantees of minimum
funding levels. Poland’s Ministry of Justice also holds control over the budgeting process
and the allocation of funds. The budget allocations for next year depend on the previous
year’s performance. In both states, the judiciary has almost no influence over budgeting.
This lack of control or say over allocation of resources significantly undermines the
independence of the judiciary. It represents an area of concern that was urged to be
reformed by numerous international anti-corruption agencies, but because of legal and
political disputes, has never been reformed.
Another area for concern is the undue influence of the Ministry of Justice over
the administration of lower courts. In Estonia this has been reformed in 2010, and now
the Ministry has to share its administrative supervision responsibility with the Court
Administration Advisory Council. It is interesting to notice that despite numerous
concerns raised before 2010 about potential direct interference on behalf of the Ministry,
there is no evidence of politicization. In Poland on the other hand, there is evidence of
129
Anderson, J. and Gray, C., “Transforming Judicial Systems in Europe and Central Asia,” 333.
28
significance influence of the Ministry on lower courts through the various administrative
supervisory powers it holds over the courts and the judges.
Final difference between the two cases is that Poland faces excessive court delays
even today. Despite the introduction of 72-hours courts for petty crimes as well as the
introduction of e-courts, there is still significant backlog of cases that needs to be
addressed. Moreover, Poland also faces practical issues with ensuring equality before
law, a problem that has been dealt with long ago in the Estonian case.
Conclusions
Both Estonia and Poland represent two cases of improved anti-corruption
performance throughout their transition period as young democracies. These trajectories
coincide with the paths they developed in the reform of the rule of law. This paper
intended to explore whether there is a substantive association between the progresses
these cases made on anti-corruption fronts and the reforms undertaken in the judiciary. It
concludes that improvements in the judiciary were often related to changes in anticorruption performance indicators both reflected by the WGIs and the Freedom House
rankings.
The main finding of this paper is that the independence of the judiciary does play
a significant role in efforts to contain corruption at the institutional level. Key actors are
judges and public prosecutors as well as their independence from the executive. This
finding however is incomplete before it is compared to cases that experienced a different
path. This paper hence leaves open the causes and conditions behind this association but
intends to address this question in future research through a comparison to two other
cases that experience a different trajectory of anti-corruption performance, the Slovak
Republic and Hungary.
29
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Appendices
Graph 1. Control of Corruption130, 1996-2013
1.20 1.00 0.80 EST 0.60 HUN POL 0.40 SVK 0.20 0.00 1996 1998 2000 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 -­‐0.20 Source: World Bank 2013. World Governance Indicators 1996-2013.
130
World Governance Indicators’ estimate of governance (ranges from approximately -2.5 (weak) to 2.5
(strong) governance performance)
32
Graph 2.1. Estonia: Control of Corruption and Rule of Law, 1996-2012
1.40 1.20 1.00 0.80 0.60 0.40 0.20 0.00 1996 1998 2000 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 -­‐0.20 RuleofLaw ControlofCorruption Source: World Bank 2013. World Governance Indicators 1996-2012.
Graph 2.2. Poland: Control of Corruption and Rule of Law, 1996-2012
0.90 0.80 0.70 0.60 0.50 0.40 0.30 0.20 0.10 0.00 1996 1998 2000 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 RuleofLaw ControlofCorruption Source: World Bank 2013. World Governance Indicators 1996-2012.
33
Graph 2.3. Hungary: Control of Corruption and Rule of Law, 1996-2012
1.20 1.00 0.80 0.60 0.40 0.20 0.00 1996 1998 2000 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 RuleofLaw ControlofCorruption Source: World Bank 2013. World Governance Indicators 1996-2012.
Graph 2.3. Slovak Republic: Control of Corruption and Rule of Law, 1996-2012
0.70 0.60 0.50 0.40 0.30 0.20 0.10 0.00 1996 1998 2000 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 -­‐0.10 -­‐0.20 RuleofLaw ControlofCorruption Source: World Bank 2013. World Governance Indicators 1996-2012.
34