UNCLAS SECTION 01 OF 03 LJUBLJANA 000514

SIPDIS

SIPDIS

DEPT FOR: EUR/NCE, DRL/G/TIP

E.O. 12958: N/A
TAGS: ECON PGOV PHUM SI
SUBJECT: SLOVENIA: ELIMINATING BACKLOGGED COURT CASES AND

REFORMING THE JUDICIARY

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1. Summary: The Slovenian court system is plagued with
backlogs -- over 600,000 cases are currently pending in the
courts. GOS reform efforts have taken on greater urgency as
the European Court of Human Rights (ECHR) has begun fining
Slovenia for failure to guarantee the right to a trial within
a reasonable time. While the judiciary has embraced some
proposed reforms, concerns over preservation of judicial
independence have increased resistance to other measures,
such as wage restructuring and replacing life-tenure for
judges with limited terms. Ultimately Slovenia will have to
implement a broad array of reforms to improve cooperation
between prosecutors and police and to enable the judiciary to
manage cases efficiently. End summary.

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Background: Failed Reforms and Mounting Backlogs
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2. Despite years of efforts to reform Slovenia's judicial
system, many cases still await resolution in Slovenian
courts. As of December 2005, the Slovenian courts recorded
524,016 unresolved cases and more than 613,000 cases when
including unresolved misdemeanors. Though backlogged cases
have decreased from approximately 667,000 in 2004, the
numbers remain large and problematic for a country of roughly
2 million people.


3. Since Slovenian independence in 1991, the courts have
steadily carried a small backlog of cases, but the number of
pending cases rose significantly during a period of
unsuccessful judicial reform in 1995-1997. Later in 2001,
further attempts at reform were made through the Supreme
Court's Hercules Project. The Hercules Project sought to
solve the problem by shifting backlogged cases to
better-functioning courts and providing the courts extra
payment for the extra work. Despite some success with
individual courts, the reforms of the Hercules Project failed
to produce a substantial reduction in the number of pending
cases nationwide.


4. The large backlog that remains today contributes to a
sense of public distrust in the courts and has become a
symbol of the need for real and lasting judicial reform.
Recently, the r

eduction of the backlogs has become
increasingly urgent due to international criticism, including
rulings against Slovenia from the European Court of Human
Rights (ECHR).

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European Court of Human Rights: Slovenian Violation of the
Right to a Fair Trial
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5. Slovenia became a member of the Council of Europe in 1993
and ratified the European Convention on Human Rights in 1994.
Despite the substantial backlogs, it was not until October of
2005 in the case of Lukenda v. Slovenia that the ECHR ruled
against Slovenia for violating the right to a fair trial, as
guaranteed by Article 6 of the Convention. In Lukenda v.
Slovenia, the ECHR declared that delays in the Slovenian
judicial process violated the human rights guarantee to a
trial within a reasonable time. The applicant in the case,
Franjo Lukenda, had suffered a work-related in jury for which
he filed a claim for an increase in disability benefits. He
brought his case to the ECHR after pursuing the claim in
Slovenian courts for over five years. Given the relatively
low degree of complexity of the case, the ECHR found that
five years was an excessive duration and constituted a
violation of the Convention.


6. Since Lukenda v. Slovenia, the ECHR has ruled against
Slovenia on over 50 similar cases, with several hundred still
pending. Despite the gravity of the violations and the
imposing number of backlogged cases, Slovenia's problem is
not unique. A number of countries, including Belgium,
Croatia, France, Greece, Italy, and Slovakia, have previously
been found in violation of the right to a trial within a
reasonable time. Like these countries, Slovenia must regard
the ruling as a call for lasting reform and repair of the
judicial system.

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Proposals for Reform from the Jansa Government
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7. Seeing the backlogged cases as the heart of the problem of
judicial delay, the Ministry of Justice (MOJ) responded to
the ECHR rulings with a plan to reduce the number of pending
cases. In December 2005, the MOJ announced the Lukenda
Project, a plan to eliminate the backlogs by 2010. Unlike
Hercules, the Lukenda Project is an expansive plan which will
combine the efforts of a wide range of actors involved in the
judicial process including the National Assembly's Committees
for Interior and Justice, the National Council, The Ombudsman
for Human Rights, the Bar Association of Slovenia, NGOs, and
Courts across the country. The Lukenda Project reforms are
designed to improve the operation of Slovenian courts.
Measures include the employment of 500 auxiliary court staff,
improved working conditions for judges and court officials,
rewards for judges who successfully eliminated backlogs from
their courts, and upgraded courtroom technology. Other
announced reforms promise the implementation of a system to
accelerate and simplify resolution of small claims, the
creation of a unified statistical database, and the
establishment of a coordination mechanism between the MOJ,
the Court Council, and the Supreme Court in order to better
follow the progress of the courts.


8. The Lukenda reforms are in the beginning stages and have
not yet produced measurable results. However, similar efforts
to improve courtroom operations have already achieved
preliminary success on a small scale. In February of 2006,
the Ljubljana District Court, among the most overburdened
courts in Slovenia, reported a decrease in backlog by 5% for
2005, despite a 4.2% increase in the caseload that year. The
Ljubljana District Court's Vice President, Marjan Pogacnik
attributed the court's success to legislative change, which
provided for financial and staff improvements. The court has
since applied for additional staff.

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Criticism of Proposed Reforms of Term-Limits and Wage
Restructuring
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9. Shortly after the Lukenda ruling, the Justice Minister
called for cooperation from courts in the creation of plans
to reduce the backlogs. This effort to collaborate with
judicial bodies has helped the MOJ win support from within
the judicial system for many of the aforementioned reforms.
However, other proposed reform measures of the Lukenda
Project have been highly contentious and a great deal of
tension has developed between the legal community and the
GOS. While all agree on the necessity of eliminating the
backlogs, disagreement over the fundamental causes of the
courts' problems and the best means of repairing them has
created controversy.


10. Debate centers on the role of judges and their
responsibility for the backlogs. Some reformers blame the
lack of review and accountability of judges who have life
tenure for the courts' problems. Proposals for term limits
for judges have the support of the MOJ and many legislators.
The Minister of Justice has presented proposals calling for
five-year term appointments instead of lifetime appointments
for some new judges. However, the heads of the Supreme Court,
the Judicial Council, and the Judge's Association, as well as
a number of political parties opposed the proposal. These
opponents view the term-limits as a threat to judicial
independence and criticize the extreme nature of the measure,
which would require a change in the Constitution. They also
cite existing mechanisms in place to remove incompetent
judges. Moreover, opponents of the limits object that
lifetime tenure is not the cause of the backlogs. Rather they
blame insufficient funding, poor working conditions, and lack
of technological support. Alongside a statement of opposition
to the MOJ's plan, the heads of the Supreme Court called for
an increase in full-tenure judgeships and administrative
staff, as well proposals for reorganization of the judicial
structure. The Supreme Court has not, however, put forth its
own proposal for reorganization.


11. Debate likewise surrounds proposals that include a
program of wage restructuring for judges. In December 2005,
amid cooperative efforts between court officials and the MOJ
in the development of the Lukenda Project, the MOJ suggested
implementing a system of bonuses for productive judges, which
the Prime Minister also supported. The atmosphere of goodwill
did not last, however. More recent proposals, including one
from the Prime Minister, have called for wage restructuring
to incorporate a decrease in wages for judges with

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problematic backlogs.


12. Like term-limits, the plans for wage restructuring aim to
increase judicial accountability and improve the performance
of the courts. However, proposals for wage decreases incited
strident resistance from judges and the implementation of
wage restructuring was stayed by a Constitutional Court
decision. The execution of the Law on Judges, the Law on
System of Salaries in Public Sector, and the Decree on
Salaries of Officials that contain provisions to reduce
judicial salaries has been temporarily withheld while the
court reviews whether the laws will interfere with the
division of powers, and the preservation of judicial
independence.

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Comment
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13. The reforms of the Lukenda Project aim for widespread,
long-lasting change. With cooperation between the GOS and the
judiciary there is great potential for success in this
transformation. As a new generation of judges and lawyers
emerge, so does an opportunity for real reform to take root.
This will not occur, however, without a commitment to change
from within the judicial community and support for the
process from all involved. Though the GOS may continue to
adopt reforms, the changes will have to be implemented from
within the judicial system and will require sustained and
widespread support for reformative measures, especially given
the long-term nature of the project.


14. Further, while judicial backlogs are themselves a
significant cause for alarm, it is important that the GOS
considers the possibility that the build-up of pending cases
is symptomatic of deeper, systemic problems. While backlogs
affect the capacity of courts and judges, simple reduction of
the number of pending cases may not be a sufficient goal for
guaranteeing the right to a fair trial. Slovenia must also
remain focused on building a judiciary capable of managing
cases without delay, both in civil cases like Lukenda, and in
criminal proceedings, where delay may allow a guilty party to
go uncharged or unconvicted.


15. Though the Slovenian cases brought to the ECHR have been
almost entirely complaints about delay in civil matters, the
need for judicial reform exists in the criminal system as
well. On 14 June, the State Prosecutor Barbara Brezigar
reported that criminal activities by unknown perpetrators are
rising, while the number of charges filed against known
criminals is declining. The report paints a troublesome
picture of the decreasing ability of the legal system to
prosecute crime. Brezigar further expressed a concern over
difficulties in communication between police and prosecutors,
suggesting that police may be overburdened by processing
petty crime. Such systemic problems as a lack of coordination
between police and prosecutors suggest the need for systemic
solutions, to address not only courtroom aspects of judicial
reform but also the entire law enforcement system.


16. The European Council has laid out potential measures for
systemic judicial change in "Recommendation No. R (87)
Concerning the Simplification of Criminal Justice." Some
recommendations are relevant to Slovenia's situation,
including the simplification of procedures for minor
offenses, the limited use of "guilty pleas" and the reduced
practice of judicial investigation, where appropriate. The
European Council has also published a note on successful
measures taken by countries that have achieved judicial
reform. Some simple practices, such as the courtroom use of
binding deadlines for filing papers and penalties for parties
who misuse the system, could be useful expedients in
Slovenian courts. Additionally, more fundamental changes have
been successfully implemented in other countries, including
the switch from an inquisitorial system to an adversarial
system, and the development of a program for alternative
dispute resolutions, or out of court settlements. Though the
suitability of specific measures must be carefully examined
by Slovenia itself, serious exploration of these
recommendations for substantial change will be essential to
building a functioning, sustainable judicial system.
COLEMAN