10.4. Effectiveness and fairness of the justice system
Well-functioning judicial systems play a crucial role in society by guaranteeing the security of citizens’ rights and by ensuring that the legal needs of citizens are met. The effective and fair justice system requires consideration of the full continuum of services, ranging from accessibility of legal information and legal assistance to formal (such as courts) and alternative dispute resolution, and their enforcement mechanisms (OECD, 2019).
Courts remain a core element of the justice systems. Effective functioning of courts and fair application of the law in turn requires judges to be independent from external pressure. A survey of European judges in 2017 found that undue pressure might come from the court management and political parties or their lawyers. One-third of respondents also doubted that councils for the judiciary have the appropriate mechanisms with which to defend their independence (ENCJ, 2017).
According to data from the WJP Rule of Law Index, there is a strong positive linear relationship between effective implementation of civil justice and the absence of improper government influence in the civil justice system. Experts and legal practitioners from the Western Balkans place their countries and economies at the bottom end of both scales compared to their European neighbours. In 2020, the average for the Western Balkan region stood at 0.48 in effective enforcement of civil justice while the OECD-EU countries scored 0.68, on average. The region performed slightly better in freedom from improper government influence on administrative justice lawsuits (0.39) but the surveyed performance of the region stood below the OECD-EU average of 0.75. Based on the evidence, the perception of citizens and experts that the system is effectively enforced has slightly improved in Bosnia and Herzegovina (0.06) and Serbia (0.17) while it decreased in Albania (-0.04) between 2015 and 2020. Improper government influence in civil justice systems has increased in the region since 2015, especially in Albania (-0.10).
From the various types of justice that the judiciary system deals with, criminal justice is one of the most sensitive ones as it affects people’s freedom. In criminal cases, two fundamental human rights collide: personal security and presumption of innocence. Victims have the right to demand an investigation and prosecution of their offender in order to defend themselves and society from future threats, and the accused have the right to a fair process where all guarantees are upheld. For example, pre-trial detention must be avoided and, when used, it must be as short as possible to avoid violating individual freedoms. Court decisions must be fast and fair in order to guarantee that the rights of both the accused and accuser are safeguarded.
Countries where the criminal adjudication system is considered timely and effective are more likely to report lower propensity of resorting to violence to redress personal grievances. Again, according to the WJP Rule of Law Index, which surveys experts and legal practitioners, the Western Balkans score lower on average (0.45, 0.52) on both variables compared to OECD-EU countries (0.63, 0.67). The criminal adjudication system is considered more timely and effective in Bosnia and Herzegovina (0.56), compared to the others in the region, despite the fact that the country has the lowest perception that people do not resort to violence to redress personal grievances. While the criminal adjudication system is perceived the least timely and effective (0.34), people in Kosovo (0.62) have the highest perception in the non-use of self-administered justice in disputes in the region.
Data for this section is drawn from the World Justice Project’s Rule of Law Index. The index is based on replies from a general population survey using a representative sample of 1 000 respondents and a survey of qualified respondents completed by practitioners and academics with expertise in civil law. For more information on the underlying data see: worldjusticeproject.org/rule-of-law-index.
“Freedom from improper influence” is gauged by asking how likely a litigant is to win a case against the state, how likely the government is to respect such decisions or seek to influence the court. “Effective enforcement of civil justice” enquired about the enforcement of court rulings and their timeliness.
“Criminal adjudication system” measures whether perpetrators of crimes are prosecuted and punished. It also measures the degree to which criminal judges and other judicial officers are competent and produce speedy decisions without abuse of pre-trial detention. “People do not resort to violence to redress personal grievances” measures the degree to which people use intimidation or violence to resolve civil disputes amongst themselves, or to seek a resolution of the issue with the government, and the degree to which people are free from mob/riot violence.
Further reading
European Network of Councils for the Judiciary (2017) Data ENCJ Survey on the Independence of Judges 2016-2017, ENCJ, Brussels
OECD (2019), Equal Access to Justice for Inclusive Growth: Putting People at the Centre, OECD Publishing, Paris, https://doi.org/10.1787/597f5b7f-en.
Figure notes
Data for Montenegro, Iceland, Ireland, Israel, Latvia, Lithuania, Luxembourg, the Slovak Republic and Switzerland are not available.
Source: World Justice Project (2020), Rule of Law Index 2020
Source: World Justice Project (2020), Rule of Law Index 2020.
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