The Greek Justice at a critical juncture

I. Justice is sought

Eresearches, studies, convictions, statistics, show and prove:

In our country we have 37 judges per 100,000 inhabitants, while the average in the European Union is 17 judges per 100,000 inhabitants. For a court decision it takes 450 days in the EU, in Greece more than 1,600 days. The World Bank ranks the performance of the Greek Judiciary in 146th place worldwide.

The number of cases introduced annually is steadily decreasing year by year: In the Court of First Instance, from 342,539 in 2014, the year of the peak of the crisis, to 200,000 in 2019 and to 126,869 by October 2020. In the Supreme Court, from 4,675 appeals in 2016, to 3,521 in 2019 and 2,365 in 2020 (Ministry of Justice data). In the customary reference “the independent Justice” 70% of our citizens answer that the Justice is not independent from the current government and the centers of power (Public Opinion Survey of the University of Macedonia). In the E.U. 36% of citizens estimate that the independence of the Judiciary is bad to very bad.

Brussels questions Greece’s performance in the Rule of Law (functioning of the Judiciary, wiretapping, etc.). Prominent EU official considers that the problem of Greece is not so much the Public Administration as the Justice – and he does not mean only the delays. The footprint left by our justice system is nothing to be proud of. We do not lack judges, cases are steadily decreasing. The chronic problems that remained unsolved also brought to the surface the hidden pathogens. Problems that are not solved and referred to the future eventually erode the entire system.

The judicial edifice rests on three pillars: people, procedures, infrastructure. In the procedures and procedural rules, the essence was forgotten, i.e. the search for the truth, which alone legitimizes the functioning of any judicial system. Let’s finally look at Civil Procedure from a perspective different from the current one, with a different focus and a different lens. I refer mainly to Civil Procedure because the adjudication of private disputes is the main volume of judicial work, it concerns the current activity of citizens. That is where the bet of justice is played.

The European Court of Human Rights has repeatedly condemned Greece, not only for outrageous delays in resolving judicial disputes, amounting to denial of justice, but also for excessive attachment to formulas at the expense of the truth. However, hundreds, perhaps even the majority, of decisions are issued in a timely manner without errors of law or fact. But there are also decisions that exceed the limits of time, law and logic. These arouse criticism and questioning at many levels and paint our judicial system with their own dark color. Delays invalidate what we consider a reasonable and legitimate state, they affect its function as a protective framework for the development of the individual, of business activity.

Many important ideas have been proposed to deal with the problem (digitalization, new judicial maps, etc.). Of the many causes of delays, I will focus on the one due to the judge himself. It’s the one we don’t want to admit, because it hurts so much. I was prompted in this by the statistics that show that the number of serving judges is more than adequate and that the number of cases brought to trial even after the end of the economic crisis, either in the courts of first instance or in the Council of State, is constantly decreasing.

Generally, judges have their own modus operandi. As a rule, they abhor the fast. Unlearning these habits is not easy and is difficult to address legislatively. Human nature prefers routine, and routine has the power to turn the sense of duty, the enthusiasm of the young, and their sensibilities into a bureaucratic process.

There are cases that await the definition of jurisdiction and others that have been tried. The latter are the subject of this article. How much time elapses between the trial and the court conference for decision, which must of course be short for public hearings, witness statements, etc. to be of any value. And after the conference how long does it take until the decision is published? The labor of many diligent judges has shown that the presenters of even the most difficult cases require but a few days, of which they have devoted a few hours to the case. And the ruling composition of the court does not need countless hours to decide. So why months? How close to what was decided at the conference is a decision drafted and published months later?

Centuries ago, the solution found was radical. In Charlemagne’s law, when the judge delays his decision, the litigant settles in the judge’s house, “where he lives at the judge’s board, bed, and expenses.” Appreciation of the importance of time was the reason why the 1952 constitution provided for the issuance of a special law for the protection of foreign investments. This law was passed and provided for recourse to international arbitration to avoid the slow pace of justice. In the upcoming review of the constitution, the investments made for large productive projects (and not for the purchase of real estate), of particular importance for the national economy, I think it is worth paying attention to stop the current endless appeals in various jurisdictions, which end up, not infrequently, in the cancellation of projects. In addition to the delays, the reasoning, the substance of some decisions raise questions. They are, of course, not the norm, but they are characteristic for both the assessment of the facts and for legal reasoning.

The late professor of Constitutional Law St. Tsakyrakis wrote: “THE judicial function is unable to perform its basic task, i.e. to resolve citizens’ disputes in a reasonable time. We don’t just have delays, we have negativity.” He becomes even stricter, pointing out that “the most failed function emerges with some of its decisions as a decisive political factor.” Not infrequently, and in any case in typical cases, reputable legal commentators distinguish in judicial decisions obvious legal errors, unfounded or incomplete assessments of the real, complete contempt forn litigation time. When this happens, the dcourt is no longer a jurisdictional institution Kratouof Law at the service of the citizens, in whose name we pretend that the judicial decisions are executed, but a dcourt in the sense given by Kafka (“THE Trial»), that is, a power that judges because it has the power from which alone it derives legitimacy.

The loss of trust, of the faith that you will find your right and in a time when your justification will have some value, breaks the link of the citizen with the institutional framework. The judicial dysfunctions go deep because the citizens do not only lose their trust in the judicial system, but gradually more generally in the democratic-representative institutions, from which they are alienated because they are distant, indifferent, uncertain. And a problem of democracy, then.

Justice reform is not enough to proceed with small, uncoherent changes in Kears. We need another perspective and above all to move away from the Justice of complicated procedures, towards the Justice that seeks the truth ex officio in the civil and criminal trial. We have the best trained young lawyers. We also need other specialties for organizational issues, statisticians, programmers, data analysts, etc. THE 4th Bengineering Erevolution is already happening. In the US, algorithms have taken over the Judiciary.

II. The “reprehensible” legislative initiatives of the government

We heard the Minister of Justice angrily present his legislative proposals to deal with crime in Parliament. “Until now, the laws were aimed at protecting criminals,” he said. His own draft law “is aimed at protecting victims,” ​​he added. How will it protect victims? What does he mean; By tightening the penalties? The solitary confinement in prisons? Is he, a willing receiver of the perceived anger of society, dangerously moving away from the principles of the Rule of Law? We believed that punishments imposed by organized society have other meanings.

The myth of impunity circulates in Greece. The numbers disprove this myth. Per 100,000 inhabitants the number of prisoners in our prisons is higher and in some cases much higher than many countries in the European Union. While among the 48 member states of the Council of Europe the number of prisoners in prisons was close to the average, which is 104 prisoners per 100,000 inhabitants, in Greece it is 106/100,000, in France 107, in Italy much less, 90, in Germany 67, in the Netherlands 59. In Turkey 365. Who do we want to be like?

We heard again, “we will fight crime. Zero tolerance for crime.” How is this going to be done; Toughening sentences, filling prisons? It is a commonplace now that the tightening of sentences, the lengthening of prison time do not reduce crime, they do not protect the victims. They make prisons more difficult to manage and reduce any chance of incarceration. This is what the world has learned, we are behind. Our prison system cannot be only a threat and the state only a punisher.

In the Rule of Law repression should exist only as long as it is necessary. The example of the juvenile detention center operating in England will illuminate this position. In it juvenile prisoners are free to move around, work throughout the day. But they have to return to the penitentiary in the evening. They have their own key. Asked the person in charge, how many don’t come back? The perfectly cool answer was “about 25%”. In the remark “there are many unruly people. How are you;” the answer is: “We are very satisfied with this development, because the 75% who return and follow the rules have a good chance of returning to society.” Another world, of course, another concept of imprisonment. We would have abolished licenses for prisoners because a very small number of licensees do not return, if it were not for a Directive of the European Union.

EKPA professor Ioannis Giannidis in his article (Kathimerini, 9/12/2023) compares the recent legislative initiatives with the pre-existing legislation. “For all its flaws, the 2019 legislation was (almost) European legislation. The proposed is Greek legislation, proving primarily that Greece belongs to the Greeks who do not belong to Europe”. This legislation (of 2019) is darkened, the columnist also alludes to it, the way in which it was passed, with the extension of its life under dissolution Bscar by one week and the conversion of certain felonies into misdemeanors, so that with their statute of limitations, stars of the Criminal Law can be acquitted. It was an abominable case of the legislative power being used to serve interests contrary to those of society, which made it possible. Tthe climate prevailing then, transaction and reduced respect for legitimacy. It is a pity, because otherwise that legislation followed the evolution of society in many ways and, among other positive regulations, imposed the conversion of certain felonies into misdemeanors.

New methods to deal with youth crime are also proposed in the draft law. Indeed, the picture is that the new generation is becoming violent. But who really believes that this violence will be dealt with by toughening the penalties? Punishments, especially severe ones, cannot replace the authority of the family and the collapsed school and the observed distancing of teachers/teachers from their students.

A reference to Seferis in a text on the penal code will surprise. But his writing is so close to our topic: “When Oedipus met the Sphinx on the road to Thebes and she asked him the riddle, his answer was “Man”. This simple word broke the monster. We have many monsters to destroy. Let us consider Oedipus’s response.’

III. School (?) Dcollectors

More than twenty-five years have passed since the opening of the School of Judges. Therefore, all, or almost, of the judges of the first and second degree must be graduates of the School. However, the general conclusion is that we are not moving towards the better. What’s wrong with them?

Ehas there been any investigation into the causes or is it all the fault of the state, which does not change the judicial maps and does notn improve infrastructure? These must be done. But aren’t the judges themselves to blame for anything? Where are the youth studies? Kodices or the criticism of government initiatives? Where is the living organism that acts and reacts? Where is the questioning of the routine, the procedures that bog down judges, lawyers and litigants?

At the University of Frankfurt hangs the sign “You come in here not to love science, but to question it.” If this is considered heretical, let the School be guided by the shocking phrase with which the “Hellenic Province” (1806) begins: “Think and ait’s enough.” What is fair, ethical, correct or socially acceptable is constantly changing. The ideas and attitudes of society as well. The difficult task of judges is to be aware of these changes and pe these the School had to be the main helper. These schools Nevertheless they focus not on legal accumulation, but on critical thinking and the combined operation of different fields of knowledge. They understood the truth, that “the material of legal science is the rule of law and social reality” (Commander). And something else. For now it’s just whispers: Sschool success statistics show an excessive number of children of judges. The differences in written and oral exam scores leave questions.

THE,what was not realized at the School and is left only on the shoulders of the graduates is a burden that explains a lot. Struggles for progress and justice are the fate of all generations. And these will potentially give new content to what was initially thought to fill a void. Perhaps I should moderate my criticism somewhat, for even if we had the perfect School, the best candidate judges, “if society is exhausted, morally and spiritually, if it is in general apathy and acts with blunted criteria, what pool of Siloam can to highlight judges who shoulder the burden of moral choices’? (Ronald Dworkin)

* Giorgos E. Kouvelakis is an honorary State Councillor, former Minister of Justice