Functional Review and Institutional Design of Ministries

Functional Review of the Ministry of Justice

FRIDOM – Functional Review and Institutional Design of Ministries is a DFID-funded project, implemented by HELM Corporation, Consulting and Public Management Group, Governance institute Slovakia and Altair Asesores.

TABLE OF CONTENTS

ABBREVIATIONS ................................................................................................................................ 3 EXECUTIVE SUMMARY ...................................................................................................................... 4 SECTION I:OVERALL FINDINGS AND CONCLUSIONS ................................................................... 6 SECTION II:SPECIFIC FINDINGS AND RECOMMENDATIONS REGARDING CORE FUNCTIONS OF THE MOJ ........................................................................................................................................ 9 2.1 LEGISLATIVE DRAFTING FUNCTION ................................................................................................. 9 2.2 JUDICIAL AND PROSECUTORIAL POLICY FUNCTION ......................................................................... 10 2.3 SUPERVISION OF FREE LEGAL PROFESSIONS ................................................................................ 11 2.4 INTERNATIONAL LEGAL COOPERATION ......................................................................................... 13 2.5 ENSURING ACCESS TO JUSTICE ................................................................................................... 14 2.6 CORRECTION AND PROBATION SERVICES ..................................................................................... 16 2.7 MISSING PERSONS AND FORENSIC EXPERTISE ............................................................................. 18 2.8 FUNCTION OF LITIGATION ON BEHALF OF THE STATE ...................................................................... 19 2.9 CENTRAL ADMINISTRATION .......................................................................................................... 20 IMPACT OF RECOMMENDATIONS ON GENDER DISTRIBUTION OF RESOURCES IN MOJ .... 22 SUMMARY AND SEQUENCING OF PROPOSED CHANGES ......................................................... 23 CURRENT ORGANIZATIONAL CHART OF THE MINISTRY OF JUSTICE .................................... 25 PROPOSED ORGANIZATIONAL CHART OF THE MINISTRY ........................................................ 26 ANNEX 1: COMPARATIVE DATA RELATED WITH THE LEGISLATIVE DRAFTING FUNCTION AND THE RESOURCES ALLOCATED ............................................................................................. 27 ANNEX 2 COMPARATIVE INFORMATION REGARDING THE FUNCTIONING OF JUDICIAL COUNCILS AND PROSECUTORIAL SYSTEMS IN DIFFERENT EU COUNTRIES ....................... 31 ANNEX 3 COMPARATIVE DATA ON THE INSTITUTIONS DEALING WITH THE INTERNATIONAL JUDICIAL COOPERATION IN THE MINISTRIES OF JUSTICE IN EU-7. ......... 35 ANNEX 4 COMPARATIVE DATA ON THE INSTITUTIONS EXERCISING FORENSIC EXPERTISE FUNCTION IN EU. .............................................................................................................................. 36

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ABBREVIATIONS

ACDEI:

Agency for Coordination, Development and European Integration

DFID:

Department for International Development

DLA:

Department of Legal Affairs

DCA:

Department of Central Administration

EU:

European Union

EULEX:

European Union Rule of Law Mission in Kosovo

FRIDOM:

Functional Review and Institutional Design of the Ministries

ICO:

International Civilian Office

KCPS:

Kosovo Correctional and Probation Service

KJC:

Kosovo Judicial Council

KPC:

Kosovo Prosecutorial Council

MoJ:

Ministry of Justice

MTIDP:

Medium Term Institutional Development Plans

OLSS:

Office of Legal Support Services

OPM:

Office of the Prime Minister

PISG:

Provisional Institutions of Self Government

UNMIK:

United Nation Interim Mission in Kosovo

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EXECUTIVE SUMMARY 1

The vertical review of the Ministry of Justice looks on how the ministry is organized in terms of its mandate, structure, capacity and overall functionality. The report identifies the key areas where the MoJ can restructure and better allocate its resources in order to fully fulfill its mandate. Nothing in this report can be perceived as a critique for the performance of the Ministry, rather as an attempt to support strengthening the ministry. As methodology, the functions and organizational structure of the ministry were analysed and then compared with similar ministries in other small European countries (Slovenia, Estonia, Lithuania, Latvia, Slovakia, Finland and Ireland). At the same time, when discussing particular issues, comparative examples were brought from other countries from EU or from the region. The MoJ is a relatively young institution, created in 2006, and focused mostly on transferring all the competencies and attributions from UNMIK. In this period of time the institution has consolidated itself and built processes. But, despite the achievements a lot still needs to be done. The MoJ in Kosovo has a very limited role related to administration of judiciary and prosecution field, although it holds some competencies related to policy drafting in these areas. However the ministry lacks capacities to draft and supervise implementation of policies in these areas. The only department of the ministry charged with policy making is overloaded with tasks and lacks staff. We would recommend to create a separate structure devoted to policy development in the fields related to judiciary and prosecution. The organization of the ministry is not appropriate and does not facilitate the core processes, but focuses mainly on support services functions. Very few capacities are allocated to the departments that are in charge for development of policies in the ministries and for regulatory functions, instead consistent number of staff is allocated to less important functions in the ministry scope of work. At the same time the scope itself of the MoJ is not clear and we find embedded in the ministry organization functions and structures that normally are organized as separate bodies, reporting to the ministry. As a result the MoJ is the largest MoJ from all the countries we compared Kosovo. To avoid the confusion in the ministry scope and functions, we would recommend the organization of the ministry’s portfolio into two tiers system, preserving in the ministry only policy making and regulatory functions and organizing as separate bodies in the form of executive agencies or institutes the structures that perform service delivery functions, like prisons and probation administration, as well as the structures related to forensic expertise (for the latter in a short-term period) In the scope of the ministry there are some functions that are badly or at all resourced to perform the functions established by laws. We refer to free legal professions and legal aid functions. In these areas important developments are expected in short term period, therefore the MoJ should be prepared in advance and should create capacities to sustain those. Drafting the country’s legal framework is one of most important functions of the MoJ. Yet the structure of the ministry as well as capacities allocated for that do not sustain the proper implementation of the function. Analyzing the current situation in Kosovo and comparing that to other countries we have recommended to reduce the “size” of the function that will remain in the MoJ portfolio and transferring to OPM some of the components of this function related to checking of constitutionality and legality of draft normative acts, checking and coordinating the consistency of normative drafts as well as supervising the legal technique. The MoJ will retain only the function of drafting legislative acts in the justice area. One of the functions transferred lately by UNMIK, international legal cooperation, is allocated to a unit that is considered to be the most overloaded unit in the ministry. The high workload is not well distributed in the resources available, therefore we recommend to create a separate Department for International Legal Cooperation and to streamline the processes, clearly dividing the professional

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This report was drafted by the team of FRIDOM experts Ansi Shundi, Ilze Juhansone, Felipe Ureta, Arta Rama, Juris Gromovs, Maria Kolikova, with the major work and contribution from Bardhyl Hasanpapaj

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tasks from the ones related to translation of materials. In the meantime the MoJ should develop the function related to official translation of materials for the Government of Kosovo. A priority for this department is to create policies and incentives to retain the staff. In what regards the function related to correction and probation service, we have recommended to organize the current structures into an executive agency reporting to the ministry. This recommendation is based on the principle of dividing policy making and regulatory functions (remaining to the ministry) from the service delivery function (organized at the second level as executive agencies). However the ministry retains an inspection function to supervise the correct implementation of the laws and policies in this area. One of the first tasks of the new proposed department shall be the review of organization of prisons administration that has a large number of staff, compared to the number of detainees (1:0,8 whereas the acceptable standard is 1:2). Regarding this recommendation, MoJ has a different opinion from that of project’s experts considering that the current organization is most adequate, allowing the implementation into practice of the political responsibility of the ministry in this area, and influencing the overall number of employees. At the same direction goes our recommendation of organizing all structures related to forensic expertise into a separate institute reporting to the ministry. The recommendation is based on the service that is provided from these structures and on the international practice in the area. The institute will be responsible for implementing the function related to missing persons as well. Another function that needs to be better organized is the function of litigation on behalf of the state. We have recommended to narrow the scope of the function the MoJ enforces currently and transfer the obligation of representation in front of the courts to the institutions themselves, making them responsible for the consequences of their actions. The MoJ will continue to have the obligation of representing the state in important cases involving big interests and in international cases. Also the possibility of hiring professional lawyers for specific cases should exist and the MoJ should advise all institutions in this regard on a case by case situation. The function related to ensuring access to justice should be reorganized and the MoJ should be responsible for building and supervising a system for providing legal aid to persons in need. Some of the current structures and functions performed by the ministry currently should be transferred to other institutions. The function of integrating minorities to justice system should be transferred to the KJC, as mostly related to administration of justice. The function related to providing assistance to victims of crime should be transferred to local government institutions and to other institutions providing social services. In fact there is little value added if the MoJ continues to perform these functions. The structures related to support services should be reorganized and the agencies should be responsible of providing their own support services. The units have to be reduced in numbers and transferred to the agencies. At the same time the MoJ should transfer the function of support services to Office of Prosecutor.

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SECTION I: Overall findings and conclusions The Legal Mandate of the Ministry of Justice is mainly stipulated on UNMIK Regulations 2005/53 and 2006/26. Additionally a number of Regulations and laws promulgated, and some to be promulgated, by the Assembly of Kosovo before and after the declaration of independence, such as the ones related to the Bar Exam, Notary, Mediation, Legal Aid, Judicial Institute as well as the drafts Laws on Courts, Prosecutors, KJC and KPC have and will expand Ministry’s legal mandate. At first glance the major characteristic we noted when reviewing MoJ’s functions is the clear delimitation of competencies in the judicial area. The MoJ is responsible for the development of policies, the facilitation, the preparation and the implementation of the legislation in the field of judiciary, including the prosecutorial system. In the mean time the law explicitly excludes the possibility for the Ministry to be involved in any way on the matters related to the administration of the judiciary and courts. This function belongs to the Kosovo Judicial Council (KJC). The MoJ has not even the right to propose to KJC disciplinary measures against the judges. The Ministry is responsible for providing support services to the Office of the Public Prosecutor of Kosovo to ensure the effective functioning of the prosecutorial system. In the mean time the Ministry, through the KJI, is responsible to provide training, including professional and vocational training, of prosecutors and organizes examinations for qualification of prosecutors, lawyers (including trial attorneys) and other legal professionals. It is expected with the new legislation under preparation, the role of providing support services to be transferred to KPC. The ministry was created in 2006 and its structure is an amalgamation of structures from other ministries and from UNMIK structures. Most of the departments were transferred without being adapted to the new status and are still functioning as it was before. Since its creation significant progresses were registered, but still a lot needs to be done. From the creation and up to now the major concern of the ministry was the acquisition of full set of competencies from UNMIK. It is the proper time to think about internal organization and better distribution of resources. In the ministry itself, there is confusion between policy making functions and executive functions. Within the apparatus of the ministry we note some functions and corresponding structures clearly related to execution of policies and service delivery, e.g. the Correctional and Probation Service and the Department of Legal Medicine, as well as the function of providing support to victims of crimes. Normally the apparatus of the Ministry should be mainly focused on policy drafting and strategic coordination, leaving to the second level of organization (executive agencies) the execution of policies and service delivery. As a result of this organizational style, the Ministry is much more focused on administrative and support services, allocating a lot of energy and a large number of staff to these functions, neglecting the strategic functions and the resources allocated to implement those. The Ministry needs an urgent redistribution of the resources and a reorganization of its structure and policy making / service delivery functions into a two tiers system:

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In terms of functioning, the organization of the ministry does not sustain the policy drafting process. There is a notable distortion in allocations of the staff and a concentration towards administrative and support services. Few resources are allocated to important functions that should be the core of MoJ. The Division of Policies and Legislation in the Department of Legal Affairs with 9 employees is responsible for covering all policy areas in ministry scope (including policies in justice and prosecutorial area, legislative policy, free legal professions, etc) and, in the mean time, supporting all ministries in the legislative drafting process by obligatory participation in the working groups. On the other hand a division that can be considered as secondary for the ministry, the Division for the Protection of Victims of Crime, performing essentially a coordination function has 40 employees. Also in the correctional service there is a ratio of detainee / guard of 0,8 / 1, when the acceptable standard is 2 / 1. Therefore we consider there is the case for streamlining and rightsizing the resources allocated to each function. There are a number of functions legally allocated to MoJ, but that do not get resources for their implementation. We are referring to policies in the area related with free legal professions and supervision of these freelance professions, legal aid policies, etc. Also MoJ shares a number of functions (international judicial cooperation and legal medicine) with other institutions, international or domestic, without a proper plan regarding the complete transfer of the function and a plan for building internal capacities to support the implementation of those functions. We would recommend the ministry to create capacities to develop these functions, to draft a detailed plan on transferring residual functions from international organizations and gradually build internal capacities to deal with those. On the other hand the Ministry should avoid providing administrative support services to other institutions like the Office of Public Prosecutor. From the interviews resulted that this practice was not successful and the recipient of the services complained about the quality. From a managerial prospective it is more efficient to allocate this function to the recipient institutions (being that the Office of the Public Prosecutor or the proposed executive agencies for correctional services and the agency for forensic (legal) medicine). The Ministry of Justice has a total of 2182 employees making the Ministry the largest Ministry of Justice in comparison to most small EU countries (such as Estonia, Finland, Latvia, Lithuania, Slovenia, Slovakia etc.) and, in the mean time, one of the largest Ministries of the Kosovo Government as well. But this size is relative and is mainly due to the fact a number of structures that in other countries are organized as separate agencies (correctional, probation and legal medicine), in Kosovo are integral part of the Ministry. Comparative data on number of MoJ employees in EU countries EST

SVN

LAT

LIT

FIN

SVK

KOS

Population (million inhabitants)

1.3

2

2.3

3.4

5.3

5.4

2

Number of MoJ staff

197

160

260

146

272

355

2182

This is the result of most service delivery functions being located in the central ministry. Such organizational set-up is an incentive for micro management of specific sector issues at the expense of ministry’s core business - strategic planning and policy development in all areas of responsibility of MoJ. Ministry’s policy capacity is further undermined by a high staff turnover, as for lawyers there is high demand on the market. There are also not enough collaboration and information flows across various units. Several heads of units are “acting”, creating thus transitional management policies and hampering the establishment of solid bases for sustainable development of the Ministry. Currently MoJ is operating based on three organizational Charts. The first one was drawn by UNMIK DoJ during the transfer of competencies stage and in fact this reflects mostly the current structure in 7

the Ministry. Officially there is another organizational chart (which is attached to this report) but there appear to be divisions and subdivisions that sometimes do not exist at all. Nevertheless at the moment the following departments exist: -

Department of Legal Affairs Access to Justice Department Department of Missing Persons and Forensics (as well as the Forensic Institute operating separately) Correctional Service and Probation Service Department[s] Department of Central Administration There are some other units that are being considered as departments although they have not been granted such status yet – such as the so referred Litigation Department and Procurement Department, currently operating as Divisions under Legal Affairs and Central Administration Departments respectively.

In addition to the departments there are offices attached to the Permanent Secretary’s Office such as the Office for European Integration, Public Information Office etc.

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SECTION II: Specific findings and recommendations regarding core functions of the MOJ 2.1 Legislative Drafting Function As it can be seen from the legal mandate of the Ministry of Justice, drafting legislation is one of its key responsibilities and one of the most important functions. The primary area of preparing legislation falls within the area of competencies of the Ministry, as provided by the law. This includes the functions vested to the mandate of the Ministry referring to the preparation of legislation in justice sector in general. MoJ assumes the authority to ensure the proper implementation of the justice sector legislation, including the public prosecution but excluding the administration of the 2 judiciary and courts . The Department for Legal Affairs (DLA) is the key player for drafting the laws of the entire justice sector, while it supports each line ministry with legislative drafting techniques by participating in each 3 law drafting working group by other line ministries . However, MoJ’s legislative role is particular. Developing codes and legislation for public and private law (criminal, civil, administrative, commercial etc.) and ensuring conformity of all national legal acts with those codes and legislation is one of the core policy areas of the Ministry. The legislative drafting function of a Ministry of Justice in most of the countries is a twofold process: 1) Developing codes and legislation in the justice area – mostly criminal and civil codes and related legislation; 2) Ensuring the quality of outputs of the legislative process through: checking the constitutionality and legality of draft normative acts (primary and secondary); checking and coordinating consistency of draft normative acts; checking the legislative drafting techniques. Different countries have adopted different solutions regarding the second component of this function (ensuring the quality of outputs of legislative process). Some of the EU countries have concentrated this function to the MoJ (Germany, Estonia, Finland, Denmark, Spain, Sweden, and others). This solution has the origin in the history of these countries where the minister of justice was one of the few ministers appointed by the king and was responsible to seal all legal acts and ensure by this the legality (this is the reason why in some countries the Minister of Justice still continues to be called as “Holder of the Seal”). In some other countries (UK, Ireland, Greece, Luxembourg, Italy, Portugal, Austria, France, Slovenia, Slovakia, Poland, Czech Republic) this second component is allocated to the centre of the government, the Ministry of Justice having a role not much different from the one of other ministries. In some other countries we observe that this function is shared between the centre of the government (Office of the Prime Minister) and the Ministry of Justice (Latvia, Lithuania, Albania, Romania, and others). In Kosovo there are no doubts regarding the first component of the function, whereas the second component is shared with the Office of the Prime Minister (OPM) / Office for Legal Support Services (OLSS). At the same time an important process related with the EU integration efforts of the government interferes with the legislative function – the approximation of legislation with the Acquis

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See UNMIK Reg. 2006/26, Annex IV, paragraph (i). Government Regulation No. 01/2007, Article 32, paragraph 4 of the Rules of Procedure of the Government, stating that “Every Government Working Group shall include a representative of the OLSS, a representative of the Government Coordination Secretariat, a representative of the Ministry of Economy and Finances and a representative of the Ministry of Justice. Each member shall be selected on the basis of their specific expertise or interest in the draft law. The Ministry or the proposing body may not have more than two representatives in the working group” 3

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communautaires. Currently this function in Kosovo is performed by the OPM / Agency for Coordination of Development and European Integration (ACDEI). In the international best practices it is considered that better results can be achieved if the function is concentrated to only one institution. Recently OECD highlighted the successes registered in the legislative reform by Spain and Italy. In both these countries the function is concentrated in the Ministry of Justice, respectively in the centre of the government. Analyzing the situation in Kosovo we note that capacities in the MoJ are very weak, both in terms of staff numbers and regarding the skills and expertise. In the Department of Legal Affairs there are 9 lawyers working in this area, but not exclusively, as they are involved in developing policies in all areas falling into the scope of work of the ministry. On the other hand they are generally young and inexperienced and the turnover in the department has been high. They participate in the working groups discussing draft legislation, but have a limited role in implementing common standards and practices in legislation drafting and no role in ensuring adherence of new legislation to legal drafting standards and coordination with existing laws. Currently, these tasks are performed by the OLSS from the centre of the government. In this unit there are a number of capacities created and some standards set. Also the centre of the government is leading two very important initiatives in the legislative area: the work related with avoidance of legal collisions in the complicated legal framework in Kosovo and the efforts related with enforcement of the laws. Moreover in the centre of the government is implemented the function of legal approximation (currently in ACDEI, but with a proposal to be integrated with the OLSS, 4 following the recommendations deriving from OPM vertical and horizontal reviews) . On the other hand in Kosovo the legislative process is the only one through which policies are set. The coordination of policies and prioritization of strategic initiatives in done by the OPM. Given the current situation there are all the prerequisites to concentrate this function to the OPM. Therefore we would recommend to concentrate the second component of legislative function to the OPM / OLSS and to leave to the MoJ only the function of drafting policies and related legislation from the justice area. The Legal Department that we propose to be created from the current Department of Legal Affairs will be different from other LD in other line ministries, as it will have the role of policy setting in the areas related with criminal and private law. This department will also have the role of counselling the government in the process of preparing international agreements for Kosovo (in the MoJ’s area of activity). In the Annex 1 we have provided a comparative approach regarding the organization and the staff involved for this function in different EU countries. 2.2 Judicial and prosecutorial policy function Although the MoJ is in charge of establishing a well functioning judicial system, it can do so only through policy development means. MoJ has no powers in relation to administration of courts and prosecutorial system. The Constitution puts the judiciary under the Kosovo Judicial Council and public prosecution under the Kosovo Prosecutorial Council. According to the Constitution the Minister of Justice will no longer be even a Member of the Judicial Council. Nevertheless the Constitution gives fewer powers to the Prosecutorial Council, leaving more room for the MoJ to 5 acquire more powers regarding the prosecutorial system in Kosovo . Currently the Ministry of Justice is in charge for the administrative support of the Prosecution Offices in Kosovo with some competencies regarding the training of the prosecutors and even policy 6 guidance . MoJ, in cooperation with the Ministry of Finance and Economy, manages administrative, financial and budgetary affairs of the Ministry, and the development of administrative, technical and financial rules and rules governing support personnel and material resources to ensure the effective functioning of the prosecutorial system. Furthermore the law envisages that the Ministry provides

4

See FRIDOM project related reviews. See Article 108 and 110 of the Constitution of the Republic of Kosovo. 6 See UNMIK Regulation 2006/26 5

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guidance in respect of the development and implementation of the prosecutorial policy of the Office of the Public Prosecutor of Kosovo. Nevertheless with the establishment of the Prosecutorial Council some functions might be transferred to this council, including the administrative support. The provisions of the Constitution are clear and the MoJ will continue to have a limited role in the administration of justice. The Ministry might have in the future a more active role regarding the prosecutorial system, but we can judge that only when the laws related with Kosovo Prosecutorial Council will be approved by the Parliament. Nevertheless we would recommend transferring from the MoJ the function of providing support services to the Prosecutor Office. If the ministry will continue to provide these services, most likely will devote more time and attention to micromanagement than to the real strategic development of the prosecutorial system in Kosovo. The current allocation of competences requires a very strong policy capacity in MoJ, if it wants to implement its strategic objective of ensuring first class justice system (Strategic Plan of the Ministry for 2006-2011). Currently such capacity within MoJ is insufficient, as the same small Division of Policy and Legislation deals with justice sector policy and legislation. We would recommend creating a specific policy unit in the MoJ dealing with policy development in the justice and prosecutorial area. They will serve as analytical unit and provide advice to the minister and to the government regarding the organization of the justice and prosecutorial systems, bottlenecks and required interventions. This unit might be placed in a new Department for Policies in Justice Area, dealing with some other policy functions that we will explain in the following sections. This department will also be responsible for formulating the policies related to NGO developments in the future, after the Ministry of Public Administration will be released by this function. The structure of the department might look as follows:

In Annex 2 comparative information on organization, functioning and competencies of Judicial Councils and Prosecutorial systems can be found. 2.3 Supervision of free legal professions The Ministry of Justice in Kosovo is responsible for the development of legislation regulating the function of supervising free legal professions, including mediators, attorneys and notaries. In the mean time the Ministry of Justice is also responsible for providing training, organizing the examination and licensing the representatives of free legal professions. Nevertheless, there is no unit in the MoJ that deals with policy formulation and implementation in this area. The Division of Policy and Legislation within the Department of Legal Affairs is in charge of drafting the legislation for these services. Through Kosovo Judicial Institute the MoJ performs the function of training, examination and licensing. It is internationally accepted practice that MoJ focuses only on legislation governing functioning of legal professions while actual ethics, training, examination, licensing and other issues are left for associations and chambers of free legal professions. The EU Member States have quite divergent national systems of the regulation of the so-called “free legal professions”. Since there is no EU acquis (apart of the area of mutual recognition of diplomas and qualifications of attorneys in law/barristers, which is relevant for the free movement of persons) on this subject, each Member State chooses its own model of regulation. The difference starts 11

already with the fact that not in all countries the notary’s profession is a “free legal” one, because this function can be strictly regulated (e.g. in case Denmark, Sweden, England/Wales, Ireland) and also can be performed by the public or local officials (Finland, Portugal and Spain). The same relates to the work of the bailiffs and the specific categories attorneys dealing with statefunded legal aid. In Latvia, Finland, Lithuania and Estonia the Ministries of Justice have special departments to deal with such professions. Instead in other EU Member States (e.g. in Slovakia, Slovenia) the functions of the Ministries of Justice are more general and primarily related to developing the legislation in the area of legal professions, without creation of the specific administrative units within the ministries. Comparative data on the institutions and numbers of persons dealing with the function of supervising free legal professions in the Ministries of Justice in EU-6 EU - 6

MoJ structural unit

Number of workers/members

Estonia

Ministry of Justice, Judicial Administration Policy Department

35

Finland

Ministry of Justice, the Department of Judicial Administration

11

Ministry of Justice, the Department of Free Legal Professions

7

Ministry of Justice, Division of the Supervision of Judicial System (examines complaints against notaries and bailiffs)

7

Legal Institutions Department

18

Section of Legislation, Department of the Civil and Commercial Law Legislation (notaries)

14

Department of the General Legislation (attorneys, bailiffs, court translators)

3

Directorate for Legislation in the Justice System, Division of Organisational Legislation of Justice Agencies

4

Latvia Lithuania Slovakia Slovenia

The same situation exists regarding the disciplinary measures to be applied to the attorney in law/barrister. In most of the EU Member States (at least in 23 of them) it is the Bar Association and its specialized bodies, which deal with these issues, not the state institution. As the exceptional approach Malta and the Netherlands could be mentioned, where the public body (Commission for the Administration of Justice - the Judicial Council) or judicial one (Council of Discipline within the jurisdiction of each Court of Appeal) respectively are involved in this issue. Although in Kosovo the notary system has not been established yet, the legislation framework is in place. According to the law the Ministry of Justice is responsible to organize the trainings and exams for the notaries. Moreover it licenses the notaries and establishes monitory tools for their operation. The law envisages the establishment of the notary chamber as well, which gradually will assume some responsibility for the functioning of the notary system. The situation is similar regarding the mediation, - the legal framework is in place while secondary legislation needs to be adopted for the implementation of the law. The Ministry of Justice is in charge of organizing trainings for mediators and licensing them as well. There is no policy unit in the Ministry dealing with the policy and implementation regarding the notary system, or attorneys, or mediators. Again it is only the Legislation Unit that drafts the laws without any capacity to draft and implement policies though. Taking into account these free legal professions are created from the scratch, the Ministry of Justice should play its role. Nevertheless such process should not be perceived as a need for incorporating these functions under the umbrella of the MoJ nor should it mean to control them. Indeed, the MoJ should develop capacities that would support drafting policies and strategies for establishing independent and efficient systems for notaries, attorneys and mediators. At the first stage, until the independent associations will be fully functional and accountable, the MoJ should also supervise these professions. Not to be forgotten that notaries will perform a function that is considered of public interest and that, until recently, was provided by the state. Taking into account all these we would recommend to create a separate unit within the proposed new Department for Policies in Justice Area, dealing with policy development and supervision of 12

free legal professions. The supervision will be a temporary task till the moment when independent associations will be able to exercise their own effective supervision. For some of free legal professions (i.e. notary) the supervision will have a continuous character. Another task for this Division will be to set criteria and organise exams for licensed translators. Currently this function is performed by the Courts, but it is much better to be organized and supervised at the same unit dealing with other freelance / licensed professions. This division will closely collaborate with the Division for Official Translations in the proposed Department for International Legal Cooperation, described in the next section.

2.4 International Legal Cooperation The unit dealing with international legal cooperation is one of the most overloaded units in the entire Ministry. This function was exercised by UNMIK until lately but with the majority of employees being local ones. The Division of International Legal Aid performs this function, but only partially. Due to Kosovo state recognition issues, the formal communication with other countries until 2009 used to be under the authority of UNMIK. Although most of the competencies have been transferred to the Ministry some of them still being exercised by UNMIK – only for those countries that have not recognized Kosovo as an independent state yet. International legal cooperation is regulated by international agreements and conventions, EU acquis and bilateral agreements. MoJ would have to have capacity to develop such agreements. However, currently such function is not performed by MoJ. The workload of this Division with just 10 staff is very high. During 2008 the Division’s staff reviewed more than 3000 cases of international legal cooperation and assistance. All cases are in English, which is one of the reasons for constant delays, as not all the staff has good command of English language. Training and staff development activities are obscured by a very high staff turnover. Improved staffing in the context of continuously high workload and retaining of staff are the two key capacity issues MoJ needs to address in relation to performing this function. MoJ also has to elaborate a clear roadmap for full transfer of this function from UNMIK, and to develop some policy capacity in this area (particularly focusing on bilateral agreements with other countries). This is a regulatory function and we would recommend to the Ministry of Justice to create a separate Department for International Judicial Cooperation with two divisions: 1. The Division of International Judicial Cooperation. The main functions of this division will be to deal with requests for extraditions, rogatory letters, transfer of sentenced persons, and drafting of bilateral agreements. Implicitly the language skills of the staff should be improved, but the main tasks and duties shall be done in Albanian (respectively Serbian). This division will be assisted by the second division to externalize its work. 2. The Division for Official Translations. This division will not only assist the other division on preparing materials for international partners, but will also act as the “official translator” for the government in the area of all international agreements. On the other hand this Division should also keep the list of certified translators used for outsourcing.

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In case of the translation service, a number of countries use a combination of in-house providing of this service, combined with outsourcing it to private companies. We recommend the MoJ examines this possibility and do not try to cover everything in-house, otherwise the number of staff will be big and the quality sometimes is not very good. The structure of the Department might look as follows:

In Annex 3 we have provided some comparative examples on the institutions that implement this function in a number of European states.

2.5 Ensuring Access to Justice The Department of Access to Justice seems to be almost the weakest one in the Ministry and it is responsible for the treatment of the victims of crimes and the minority integration in the justice system. There are two main divisions in this Department, the Division for the Protection of the Victims of Crime and the Division of Judicial Integration. The department has around 83 employees. Since the transfer of competencies from UNMIK to the Ministry, there have been several attempts to recruit a Director for this Department. Nevertheless for different reasons there was no stability in this position and frequent changes occurred. For more than two years there is only an Acting Director, who in the mean time acts as head of the Division for Judicial Integration. The main functions of this department are focused on helping minorities to access justice system and on coordinating assistance to victims of violence and crime with the actual assistance provided by NGOs and other organizations. MoJ does not perform a broader function of legal aid to all those who are in a need of legal services but cannot afford it (handicapped people, poor people etc.). Setting up of a legal aid system is one of the requirements of EU acquis (Directive 2002/8/ECK). In Kosovo the function of legal aid to all those who are in a need is performed by the Committee for Legal Aid, established with the UNMIK Regulation No. 2006/36. The Committee is an organ convened on ad hoc basis, whose members are appointed by the Prime Minister after they are proposed by various institutions. The Committee is supported by a Coordination Unit (6 employees in total) and its Offices located in 6 districts. The Division for Judicial Integration is well equipped and has 35 staff spread over 11 regional Court Liaison Offices. However, the services of these offices are not actually used by minorities. Furthermore, given the current constitutional setup of complete independence of judiciary in terms of management of courts, the rationale for having such division under MoJ and not under KJC is unclear. The Division for Victims of Crime within the Department of Access to Justice is also well resourced. It has more than 40 staff working across 14 regional offices. They do not provide actual services, except of maintaining one Temporarily Safety House for victims, but coordinate work of various NGOs. In most small EU member states and across the region the function of assisting victims of crime is limited only to general legal aid provisions. Local governments, social services and NGOs provide 14

further support. MoJ has little value to add to their work. The systems of legal aid for the parties in domestic disputes in EU Member States differ from one another in terms of the nature and scope of the aid available and the conditions for entitlement, but the aim of all systems is the same: to ensure effective access to justice for all. Under certain conditions these national systems provide: Exemption from or assistance with all or part of the court costs. The assistance of a lawyer who will provide pre-litigation advice and will represent you in 7 court, if necessary, either free or for a modest fee . For EU member States Directive 2002/8/EC of 27 January 2003 defines the minimum common rules relating to legal aid for such the cross-border disputes in order to improve access to justice in such disputes. Thus in regard to the cross border disputes each EU Member State shall establish the systems for examination of the applications for such aid and its granting/reception. Usually the same systems provide for the free legal aid in the domestic proceedings. In EU-7 these systems are established and/or supervised by the Ministry of Justice. As it can be seen, in most cases in small EU Member States the Ministry of Justice conducts either direct (by means of the organization structure within the Ministry or the subordinated body) management of the free legal aid mechanism or ensures its functioning via decentralized –via the special aid centres, financed by the state with the assistance of Ministry of Justice (Slovakia). Only in one case (Ireland) such centre is fully independent public body, which size is bigger than the size of the average Ministry of Justice in small Member States. Comparative data on the institutions dealing with the administration of the free legal aid in EU-7. EU Member State

Estonia

Institutions responsible for the provision of free legal aid Judicial Administration Policy Department, Supervision and Legal Aid Division

Number of workers 9

Department of Judicial Administration, Legal Aid Unit

7

Finland

Public Legal Aid Offices subordinated to the Ministry

60

Latvia

The Legal Aid Administration -direct administrative institution subordinated to the Ministry of Justice

37

Ireland

The Legal Aid Board is an independent, publicly funded organization (33 centres under its framework are functioning)

Lithuania

Ministry of Justice, Department of Legal Institutions, Division of Legal Assistance

7

Slovak Republic

The Centre for Legal Aid – a state organization subordinated the Ministry of Justice

60

Directorate for Justice Administration, Ministry of Justice

58

Slovenia

384

Decisions on applications for granting legal aid are made by the Presidents of District Courts, President of the Administrative Court and President of the Labour and Social Court.

Having in mind all these we would recommend a complete reorganization of this Department and transfer of the functions to other institutions: 1. Transfer to the KJC the function related to minority integration in the justice system together with the Division of Judicial Integration and Court Liaison Offices; 2. Devolve the function of assistance to victims of crime to local government institutions and close down the Division of Victims of Crime; 3. Create a policy division dealing with legal aid. This division can be allocated to the Department for Policies in Justice Area.

7

European Commission, Legal aid: guaranteeing access to justice, http://ec.europa.eu/civiljustice/legal_aid/legal_aid_gen_en.htm

15

The creation of this division shall be seen closely linked with future functioning of the Office of the Committee for Legal Aid. The Ministry of Justice and the Government shall analyse the current progress of the Committee and decide whether to keep the current state or reorganise the Office of CLA as an internal structure of the Ministry of Justice. Supporting this suggestion is also the need for saving human resources. Currently in the Coordination Office only 3 out of 6 employees are lawyers, while the others perform supporting services that could be provided by MoJ current structures. The main functions will be to create the policy and legal framework for legal aid, but will also be involved in drafting policies in the area of data protection for the government. We understand there will be a new law on this purpose and a new institution has to be created, however the government should have policy capacities in this area. The division will look as follows:

2.6 Correction and Probation Services Similar with many EU member States Kosovo MoJ is responsible for correctional and probation policy and service. It delivers these functions through the Correction Service with more than 1700 employees (General directorate; six detention centres; the Correctional Centre for Juveniles and Women; and one high security prison with another one being planned); and the Probation Service with almost 70 employees (5 regional offices). All these units are part of MoJ. However, also other ministries provide services to prisons. MoJ has not yet undertaken any assessment of its structures and subordinate bodies and institutions. Rather it has build upon structures inherited by UNMIK. For example Correctional Service and Probation Service used to be units within the UNMIK Department of Justice with no autonomy but direct control and management. UNMIK did not create permanent autonomous structures and institution, obviously due to the fact that was in interim administration. The same situation continues to date, these two services functioning still in the ministry. In what regards the number of the staff working in prisons we observed it is high compared to both: The need – the number of detainees varies from 1200-1300 on average while there are some 1700 staff in the Correction Service. That makes average ratio of 0.8 prisoners per 1 staff; International practice – 2 prisoners per 1 staff (ratio of 2:1) is generally accepted good practice; The data above suggests that there is potential for resource savings and additional investment in improving prison conditions. Unlike other EU countries where ministries of justice focus only on policy and oversight of correctional and probation services, which have the status of executive agencies with “uniformed” staff, in Kosovo both services are integrated into MoJ structure. This is a recipe for MoJ micro-managing both services rather than undertaking a strategic oversight role. As it can be seen from the table below, the usual approach of the small EU Member States is to delegate the legislative regulation and policy-setting, as well as the supervision of the implementation of penitentiary and probation issues to the Ministries of Justice, while the penitentiary 16

service and probation services are conducted by the agencies subordinated to the Ministries of Justice. In some countries (Estonia, Finland, Lithuania) these 2 services are combined under one agency, in other ones (e.g. in Latvia, Ireland) they are performed by 2 different agencies. Finally Slovakia uses the approach of having the probation officers under the district courts. Comparative data on the Correctional and probation services function in EU-7. EU Member State

Ministry responsible for the policy and legislation The MoJ, Prisons Department (33 persons), Sentencing Enforcement Division (7 workers), Legal and Development Division (9 workers) Rehabilitation Division (11 workers), Internal Control Division (4 workers) The department also deals with the administrative management and supervision of the Prison Service

Penitentiary service

Probation Service

Prison Service (676 workers)

Prison Service (676 workers) (penitentiary and probation services are united)

Finland

The MoJ, Prosecution, Criminal Sanctions and Strategy Unit (10 workers)

The Criminal Sanctions Agency under the MoJ, Prison service (2 750 workers)

Latvia

Penal Policy Division, Department of Sectoral Polices, the MoJ (4 workers)

Lithuania

Prison Department under the MoJ (82 workers)

The Prison Administration Board subordinated to MoJ, (3349 workers) 15 penitentiary institutions subordinated to the Prison Department under the MoJ

The Criminal Sanctions Agency under the MoJ, Probation Service (300 civil servants and 400 private supervisors) The State Probation Service subordinated to MoJ, (518 workers)

Estonia

Division of Correction Inspections Prison Department under the MoJ. 48 territorial inspections.

Ireland

Department of Justice, Equality and Law Reform, Prisons and Probation Policy Division.

Irish Prison Service (14 prisons)

Slovenia

MoJ, Directorate for Legislation in the Justice System, Division of Penal Legislation and Protection of Personal Data (responsible for penal legislation)(4 workers)

Prison Administration (794 workers)

Slovak Republic

MoJ, Directorate for Justice Administration, Sector for Execution of Penal Sanctions (legal issues, dealing with amnesty and prisoners complaints) (5 workers) Section of Criminal Law of the MoJ, Department of Criminal Legislation and Crime Prevention (3 workers), Division of Penitentiary Policy (3 workers) Division of Probation and Mediation (1 workers)

Corps of Prison and Court Guard subordinated to the MoJ (5086 workers)

The Probation Service is an Agency under the Department of Justice, Equality and Law Reform

Probation and mediation officers of the District Courts (77 in 2004)

As it could be seen from the data provided in this analytical report, the majority of EU and other western countries have separate and autonomous structures dealing with the execution of criminal sanctions. Therefore it is recommended that the Ministry of Justice does not deal any longer with micromanagement of the correctional and probation services. As such it is recommended to create a new Agency of Correctional and Probation Services and shift all service delivery and administration functions to this Agency (the ministry might apply a scale system for implementing supporting functions) while maintaining policy and supervision capacity in the MoJ. A new function will be the inspection for correctional and probation service that need to remain in the MoJ. This would require creation of a new Department of Correctional and Probation Policy comprising:

17

The Division for Correctional Services The Division for Probation Services Inspection Division As one of its first tasks, the new Department should be tasked with developing policy for prison system / reorganization to ensure more efficient use of resources and improvements in prison conditions. On the other hand, MoJ in Kosovo considers that the way of organization of both of these functions is the most effective, if we take into consideration the current situation in Kosovo. Senior management staff considers that a closer control of both these services allows the implementation of the functions at the highest possible level. Also since the ministry is responsible for this function within the executive, the organization in form of departments within the ministry reflects more accurately its political responsibility for effective implementation. Also, the ministry considers that the decentralization of services will increase the cots of their provision and will add more bureaucracy. In regard to this function, the representatives of the ministry and the team of FRIDOM experts share opposite opinions. 2.7 Missing Persons and Forensic Expertise This is one of the areas of competences that have been transferred to the Ministry only by the end of 2008 and is vested to the Department of Missing Persons and Forensics. It is another sensitive area of competence for both forensic expertise to be provided as well as the search and identification for missing persons. Currently these two functions are performed by the ministry structure, although that involve only service providing and we should consider also the scientific nature of these services. There are around 60 employees working for this Department. One of the issues till recently was the fate of merging the Department with the Forensic Institute, which was functioning under the Ministry of Health. Recently the government decided to approve the merger of these two institutions and the structure created was a department functioning in the MoJ. The institute has around 15 employees. Both these institutions conduct autopsy and provide expertise for the courts and police, while the Institute is more involved in the field of education. Students of the Medicine and the Law faculty and other future specialists in the field of criminal expertise, visit the institute and organize practical exercises. The Department offers expertise for the missing persons as well. In addition to these two bodies there is another modern laboratory for forensic expertise as well, which is under the authority of the Kosovo Police. In this lab it is possible to do chemistry-drugs analysis, analysis of explosives, ballistic and finger prints. It is expected to conduct DNA serology analysis in the future, and to develop the knowledge and the analytical capacity on all forensic areas. Thus this lab is not being used properly due to the lack of specialists in this field. In this regard it is important to emphasize that all these three bodies, the Institute, the Forensic and Missing Persons Department as well as the Modern Lab in MoIA, face a real challenge of losing the trained and specialized staff, including the civil scientists and the police officers. The salary offered to these highly qualified employees are far too low compared to the private sector. A lot of them are even doctors of science. As we can see, the forensic medicine involves first of all the Ministry of Justice, Ministry of Health, the Ministry of Internal Affairs as well as the Ministry of Education and Science. Nevertheless according to the collected data there is no clear and effective cooperation between those. Search for missing persons is a typical function for the police in many EU Member States. Thus in most cases it is not related to the work of the Ministries of Justice, but is related to the Ministries of Interior (except cases like Ireland, where there is no Ministry of Interior). An example of a number of

18

countries like Czech Republic, Slovak Republic, Latvia, Lithuania, Estonia, Slovenia, Bulgaria, United Kingdom, Ireland, shows that implementation of this function does not involve the direct activities of the ministry supervising the work of the police, unless it is not related to the specific situations (e.g. requests for assistance from abroad). In terms of organization of the function the comparative analysis shows that most of all EU Member States prefer to have one separate institution for the forensic expertise, due to possibility to streamline the procedures and to ensure that the necessary budget is provided for this facility with the aim to achieve the highest possible quality of the expertise. On the other hand this function is only service delivery, scientific research and is very specific so we do not see an added value for the ministry to implement it by its core structure. For comparative examples on how this function is organized in other EU states, please refer to Annex 4. Therefore we would recommend creating the Institute for Forensic Expertise Services under the MoJ encompassing all functions in relation to forensics. The function related to search for missing persons should be implemented by the Institute for Forensic Expertise. The MoJ will have the role of policy definition in this are and will supervise the activity of the Institute. In order to create an effective cooperation we would propose the Institute to report to Department of Policies in Justice Area. Completing the transformation of current structures and creating the Institute could be realized in midterm period. In midterm period is important to consolidate the activity of established department and to start planning the establishment of the Institute. The police might continue to administer the lab and use that for investigation purposes. 2.8 Function of litigation on behalf of the state MoJ in Kosovo is also responsible for litigation for and on behalf of all central government entities including executive agencies and in some cases also municipalities. Currently there is a Division working under the Department of Legal Affairs dealing with litigation. The Division is small (9 staff positions) compared to the workload. In 2008 it was litigating more than 150 cases with more than 250 additional cases waiting. This excludes any international litigation, of which there have been no cases so far. MoJ has not been included in the team preparing the case against Serbia’s request for opinion to the International Court of Justice. Most small EU Member States limit this MoJ function only to international disputes. Line ministries and other institutions litigate most local cases, this function being decentralized. This creates the right set of incentives for ministries to act preventively as well as to bear the consequences of mistakes or wrongdoing rather than passing on responsibility to the MoJ. As it can be seen from the table below, the legal departments/divisions/offices of the Ministries of Justice in the small EU Member States represent only their own ministries in the judicial proceedings. They are also rather small in size and actually the current number of staff does not suggest any options for the additional judicial case workload too. Moreover the practice of at least one country (Latvia), shows, that it is not always obligatory for any Ministry to use their own staff for litigation and for some proceedings it may also hire attorney in law/barrister in order to be represented by him/her in the court. Comparative data on departments dealing with the function of litigation on behalf of the Ministries of Justice EU Member State

Department responsible for the central administration

Number of workers

Estonia

Legal Division

3 workers

Latvia

Division of Legal Procedure, Legal Department

5 workers

Lithuania

Division of Legal Representation

4 workers

Slovak Republic

Legal Counsellor´s Office

4 workers

Slovenia

Law and Personnel Service

10 workers

19

This function is very important in most cases as the state enters in different commercial and other type of contracts with representatives of the private sector. In some areas it is impossible to build capacities inside the administration, given the technicality of the area, so most countries use a combination of in-house representation and outsourcing the service to private law offices. Taking into consideration international practice in this area we would recommend the following to the MoJ: The litigation function should be decentralized to ministries and institutions who are responsible for handling of cases against them; MoJ will retain only a small Litigation Department handling only most important cases against the government, representing the government as a whole in international cases, and deal with cases related to MoJ. Different countries use different criteria on triggering the intervention of the central state litigation unit (for example if there is more than a certain amount of money at stake, the central litigation unit takes over the litigation process and the institution involved assists in preparing the case); To use external experienced lawyers for important cases by both – line ministries (requires MoJ approval) and the MoJ itself. The government of Kosovo might want to consider a second option as well. In a number of countries, instead of creating a central litigation unit inside the MoJ, a specialized agency is created. In these cases the agency takes over most of important cases when institutions are challenged. The advantage of creating an agency stands in the possibility of hiring experienced layers to represent government, applying a competitive remuneration package. Given the constraints in the salary system it is difficult to implement separate remuneration package for civil servants inside the government. 2.9 Central Administration Last but not least, MoJ like any other ministry in Kosovo has a Central Administration Department dealing with general support functions such as finance, procurement, HRM, services, and IT. In the case of the MoJ this Department also includes the Division of Security and Operations. Capacities of this Department will have to be adjusted based on planned changes in other sectors of MoJ. The Central Administration Department in the MoJ is a particular case as it offers support services to a number of units and institutions that operate more or less independently from the ministry. This department provides all support services to the State Prosecutor Office prolonging the terms of the service actually arriving to the beneficiary and creating a lot of bureaucracy. Also a number of services are provided to the correctional and probation service, although these services have HR units in their organization. In general all the institutions were complaining about the quality of the services provided and the long delays registered. As it can be seen from the small EU Member States experience, half of them (Slovakia, Slovenia and Estonia) have chosen the model similar to Central Administration department, concentrating the issues within one Department/Sector. Other half of EU-6 preferred the separation of different functions between the independent departments/divisions/units of the Ministries of Justice. The numbers of people dealing with the issues of central administration are also quite divergent - from 20 workers up to 74 workers, with the average- around 35 persons for the enforcement of this function

20

Comparative data on departments dealing with the central administration of the Ministries of Justice in EU-6. EU Member State

Department responsible for the central administration

Number of workers

General Department

in total 49 workers

Development and Personnel Division Public Relations Division Legal Division Finance and Property Management Division Chancellery Internal Audit department (functions separately from the General Department)

9 workers 5 workers 3 workers 20 workers 11 workers 5 workers

Finland

Financial and Personnel Administration Unit Economy Unit Information Service Media and Communications Unit Internal Audit

10 workers 11 workers 5 workers 6 workers 4 workers

Latvia

Budget Department Internal Audit Division Personal Management Division

8 workers 7 workers 5 workers

Lithuania

Division of Internal Audit Division of Public Relations Personnel and Documentation Department Department of Investment and Property Management Department of Strategic Planning and Finance

3 workers 6 workers 15 workers 16 workers

Section of Development, Economic Affairs and Administration, Department of Human Resources Development Department of Sectoral Strategies, Budget and Administration Public Procurement Desk Department of Economy and Financing Department of Investment and Operation Personnel Office Legal Counsellor´s Office Division of Control and Complaints Department of Press and Information Internal Audit Unit

74 workers in total

Office of the Secretary General, Law and Personnel Service Finance Service Informatics Service Common Matters Service Main Office

37 workers in total 10 workers 10 workers 4 workers 3 workers 10 workers

Estonia

8

Slovakia

Slovenia

12 workers

9 workers 8 workers

12 workers 30 workers 9 workers 4 workers 4 workers 5 workers 1 worker

In what regards the HRM function, we believe it should be further strengthened. The situation of the distribution of civil servants in the institution, the unclear role of some of the units, the confusion between the roles and functions performed by the ministry and some of its parts, draws us to the conclusion the HR planning and a functional analysis was never done in the ministry. Further developments should be associated with HR plans in the ministry and should precede any reorganization. In the case of Kosovo we would recommend a two step intervention reforming the Central Administration Department:

8

Function of the central administration are performed by 2 departments, dscribed in the table.

21

1. Decentralize as much as possible the support service functions to the institutions that currently operate independently from the MoJ (Office of the State Prosecutor). This approach will precede the most likely independence of this institution from the MoJ, expected to happen with the new law on prosecutorial system; 2. In case the ministry will implement the recommendations of this functional review and will create at least two executive agencies, then the support services for those should be separated from the ministry and organized in-house the agencies. Of course the ministry will continue to have the overall supervisory power, but the actual management will be done in each agency. The department in the ministry will provide the support services only for the ministry apparatus. In this way it focus will be narrower and will be more chances for an improvement in quality of the service. Impact of recommendations on gender distribution of resources in MoJ Recommendations provided in first part of this report are of a general nature, and they don’t affect the gender balance. Their implementation is neutral, since they only cover process and policy aspects. Currently MoJ has a disproportional distribution of resources having 75% males and 25% females in the staff. However this ratio is influenced by the correctional service, where for obvious reasons male officials are dominant. If we count the remaining part of the staff the distribution is 52% males and 48% females. The second part includes recommendations focused on organizational changes that might affect the gender distribution in various departments. However, we do not expect that the implementation of those changes will have any significant impact on the current gender balance in the ministry.

22

Summary and sequencing of proposed changes Immediately

Short-term (1-2 years)

1. Reorganize the ministerial portfolio into a two tiers system, leaving policy making and regulatory functions to the ministry and organizing service delivery functions in the form of executive agencies

X

X

2. Reorganize the ministry by redistributing the resources focusing on core policy making and regulatory functions

X

3. Create structures, allocate resources and improve capacities to functions already in the portfolio of the MoJ.

X

4. Avoid providing support services to other institutions of pars of MoJ portfolio that should be organized as separate agencies

X

Recommendation / Implementation period

Medium-term (3-5 years)

General recommendations

X

Specific recommendations 1. Make the MoJ responsible only for drafting legislation in justice field area and fully transfer to OPM the legislative drafting functions related to checking constitutionality and legality of draft laws; coordinating and checking consistency of draft laws and checking legal technique of draft normative acts.

X

2. Create a specific policy unit in justice and prosecutorial area within the Department for Policies in Justice Area

X

3. Create capacities in policy making and supervision for free legal professions

X

4. Create a separate division for free legal professions

X

5. Reorganize the function and capacities related to international judicial cooperation by dividing substance activities from support ones

X

6. Draft policies and plans to strengthen capacities and retain the staff in the International Judicial Cooperation Division

X

X

7. Create a specific division for official translation of documents within the new proposed Department for International Judicial Cooperation and channel all official translations through this division

X

8. Create capacities in the translation division building at the same time processes and systems for outsourcing and controlling translations

X

23

X

9. Create a specific division and build capacities for creating a system for providing legal aid to persons in need (if decided to transfer the function from the Coordination Office of the Committee for Legal Aid to MoJ).

X

10. Transfer the function of integrating minorities into the judicial system to KJC

X

11. Devolve the function of assistance to victims of crime and the shelter to local government institutions and to other institutions providing social services

X

X

12. Consider building capacities for drafting policies in data protection area

X

X

13. Reorganize the correctional and probation service by creating a separate executive agency under the ministry

X

14. Maintain policy drafting an oversight function for correctional and probation services in the ministry apparatus

X

15. Reorganize all the units dealing with forensic expertise and missing persons in the form of institute under the ministry

X

16. Decentralize the function of representing the state to the court to interested institutions. Preserve in the MoJ the representation function for important and international cases.

X

X

X

17. Create the system for outsourcing the representation function to specialized lawyers, under the supervision of MoJ

X

X

18. Reorganize the support services functions by devolving those to the agencies to be created

X

X

24

Current organizational chart of the Ministry of Justice

25

PROPOSED ORGANIZATIONAL CHART OF THE MINISTRY

Agency for Correction and Probation Service

Institute for Forensic Expertise and Missing Persons

26

Annex 1: Comparative data related with the legislative drafting function and the resources allocated Most small EU states recognize this function as very important part of MoJ mandate and invest more staff resources in performing it. In many justice ministries across EU one would find the department for legislation consisting of at least two divisions – one for public law, one for private law. Further specialization can be into administrative law, commercial law, criminal law etc. The Ministries of Justice in EU Member States are usually not only entrusted with the legislative initiation’s functions, related to the areas of the direct competence and functions of the ministries, but also with the development of policies and laws and their application in the broad areas of the national law (e.g. constitutional law, international law etc.). Usually as shown at the comparative table below, the structure of the Ministry of Justice in the small EU Member State contains a number of departments or divisions dealing with such policies and laws. Some of them separated the drafting of actual legislation in the particular areas of law from the development of the policies in these areas (e.g. Slovakia). Other countries mixed the policy-making function and the law-drafting function together (e.g. in case of Latvia). Finally some countries took even more elaborated approach. Swedish MoJ has organisational units for each major field of law, development of which is in their competence – the Division for Penal Law, the Division for Intellectual Property and Transport Law, the Division for Migration Law, the Division for Business and Family Law, the Division for Constitutional Law, the Division for Real Estate and Company Law, and the Division for Procedural Law and Court Issues. Similar structure is also in Denmark, where MoJ has the Law department, which contains the following organisational units: the Property Law Division (Civil law, law of contracts and torts, property law, commercial law, consumer law, land registration, insurance law and international property law cooperation), Legislative Technique Division (legislative technique, review of draft bills from other ministries, succession law), the Constitutional Law Division (constitutional law, administrative law and data protection law), Criminal Law Division (criminal law, criminal policy, criminal procedure, and general matters concerning criminal justice, including international criminal law cooperation, media liability), EU Law and Human Rights Division (European Community law, treaty infringement cases, counselling on the European Community law and Public International Law, the European Convention on Human Rights, counselling on human rights, complaints before international human rights bodies), Procedural Law Division (civil procedure, enforcement law, arbitration, court fees, insolvency law, administration of estates law and international civil law cooperation).

27

Comparative data on legislative policy and legislative initiative functions, including the workers thereof, of the MoJ in EU-6, Specialised Department / Division for:

EST

SLO

LAT

LIT

FIN

SVK

Criminal Law

Criminal Policy Department, Penal Law and Procedure Division (10 persons)

Directorate for Legislation in the Justice System, Sector of preparation of Legislation, Division of organisational legislation of justice agencies (4 persons), Division of penal legislation and protection of personal data (4 persons)

Criminal Law Department (10 persons)

Criminal Law Department (12 persons),Division of Criminal Law (5 persons), Division of Judgment Execution Law (5 persons)

Law Drafting Department, Criminal and Procedural Law Unit (20 persons),

Section of Legislation, Department of the Criminal Law and Penitentiary Legislation (6 persons)

Civil Law

No separate Department/ Division

Directorate for Legislation in the Justice System, Sector of preparation of Legislation, Division of civil and economy legislation (4 persons)

Civil Law Department (10 persons)

Private Law Department (11 persons), Division of Civil Law (5 persons), and Division of Commercial Law (4 persons).

Law Drafting Department (89 persons),Civil Law Unit (17 persons),

Section of Legislation, Department of the Civil and Commercial Law Legislation (14 persons)

Constitutional law

No separate Department/ Division

No separate Department/ Division

No separate Public Law Department, Constitutional Law Division (5 Department/ Division persons)

No separate No separate Department/ Department/ Division Division

Administrative law

No separate Department/ Division

No separate Department/ Division

No separate Public Law Department, Administrative Law Division (8 Department/ Division persons)

No separate No separate Department/ Department/ Division Division

International public law

No separate Department/ Division

No separate Department/ Division

Civil Law Department, consists of General Civil Law Division (6 persons), Commercial Law Division (3 persons), International Private Law Division (4 persons)

No separate Section of International Department/ Division and European Law, Department of Judicial Cooperation in Criminal Matters (10 persons)

28

Department of International Law, Division of Law of International Treaties, Division of Legal Cooperation

International private law

No separate Department/ Division

No separate Department/ Division

Civil Law Department, International Private Law Division (4 persons)

No separate Department/ Division

No separate Section of International Department/ Division and European Law, Department of Private and Procedural International Law (7 persons)

European Union Law

No separate Department/ Division

No separate Department/ Division

No separate Department/ Division

No separate Department/ Division

Law Drafting Department (89 persons), European Law Unit (15 persons)

Section of International and European Law (34 9 persons)

Public Law

Legislative Policy No separate Department/ Division Department, Public Law Division (13 persons)

Public Law Department (18 persons), Division of Constitutional Law (5 persons), Division of Administrative Law (8 persons), Division of International Public law (4 persons)

Department of Legislation and Public Law (14 persons), Division of Legislation and Law Technique (5 persons), Division of Public Law (7 persons)

Law Drafting Department, Public Law Unit (22 persons),

No separate Department/ Division

Private law

Legislative Policy Department, Private Law Division (11 persons)

No separate Department/ Division

Civil Law Department, consists of General Civil Law Division (6 persons), Commercial Law Division (3 persons), International Private Law Division (4 persons)

Private Law Department (11 persons), Division of Civil Law (5 persons), and Division of Commercial Law (4 persons).

No separate Department/ Division

No separate Department/ Division

9 Irrespectively of the title of the Section, there is no separate organizational unit within this section dealing exclusively with “EU law”. The Department of International Relations and Human Rights (8 persons out of 34) are dealing with the issues of relations of the MoJ with the international organizations and the performance of tasks of the ministry in the area of international cooperation in the protection of human rights and fundamental freedoms

29

Comparative data on numbers of workers dealing with the function of ensuring quality and dissemination of legislation in the Ministries of Justice and Government offices in EU-6 Country

MoJ and/ or other public institution responsible

EST

Legislative Policy Department (41 persons in total), Legislative Drafting and Legal Language Division (14 persons)

SLO

No separate Department/ Division in the MoJ

The Government Office for Legislation is responsible

LAT

LIT

Ministry of Justice, Civil Law Department (10 persons) Public Law Department (18 persons) Criminal Law Department (10 persons)

Ministry of Justice, Department of Legislation and Public Law (14 persons), Division of Legislation and Law Technique (5 persons), Division of Public Law (7 persons), Legal Theory Division (7persons,

The State Chancellery, Legal Department (17 persons), Legal Acts’ Editorial Department (16 persons)

The State Chancellery, Legal Department, Division of Legislative Evaluation Division of Legislation and Legal Expert Examination

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FIN

Law Drafting Department (89 persons)

SVK

No separate Department/ Division in the MoJ

The Government Office responsible for this function.

Annex 2 Comparative information regarding the functioning of Judicial Councils and Prosecutorial systems in different EU countries

Judicial Policy functions in EU Member States There is no EU acquis, which would regulate the establishment of both the Judicial Councils and the Prosecutorial Councils. Thus only certain models of these Councils may be examined as the example of EU Member States’ practices in these issues. In most of EU Member States the judicial councils are established with a very few exemptions (e.g. Latvia, Austria, Czech Republic, please see for more details in Table below). They act as intermediaries between the Government and the judiciary in order to guarantee the independence of the judiciary in some way or in some respect. These court administration authorities have different powers in different EU countries. Some of them act as boards charged with the appointment of judges and disciplinary action against judges (e.g. France and Italy), while other authorities play an active role in the budgeting and general financial and administrative management of courts, as well as housing, education, automation etc. (e.g. 10 Sweden and Denmark) . The powers of the Council for the Judiciary are quite diverse and may include: 1) in the field of policy: public relations; public service; judicial co-operation; personnel policy; appointment policy; research policy; advice to the Ministry of Justice; quality monitoring. 2) in the field of management, such issues as: housing and security; automation; administrative organisation; public information. 3) in the field of budgeting and budgeting procedures, such issues as: budgeting policy; 11 allocation of resources; spending policy. Based on the research there are two models that can be identified: the Northern and the Southern European models. In Southern European model the Council only fulfils primary functions in safeguarding judicial independence – such as giving advice on the appointment of members of the judiciary or exercising disciplinary powers with regard to these members. The Northern European model, in which the Councils, in addition to primary functions such as advice on appointments and disciplinary judicial procedures, have rather far-reaching powers in the area of administration (supervision of judicial registry offices, case loads and case stocks, flow rates, promotion of legal uniformity, quality care etc.) and court management (for example, housing, automation, recruitment, training, etc.) and, in addition to that, play an important part in the budgeting of courts (involvement in 12 setting the budget, distribution and allocation, supervision and control of expenditure, etc.).

10 W. Voermans, P. Albers, Councils for the Judiciary in EU Countries, Council of Europe, 2003, p. 11. 11 W. Voermans, P. Albers, Councils for the Judiciary in EU Countries, Council of Europe, 2003, pp. 12-13. 12 W. Voermans, P. Albers, Councils for the Judiciary in EU Countries, Council of Europe, 2003, p. 14.

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Comparative data on the institutions and numbers of persons dealing with the judicial policy function in EU-24 EU Member State

Institution Responsible for Judiciary

Number of workers/members

Austria Belgium Bulgaria

Federal Ministry of Justice The high Council of Justice of Belgium Supreme Judicial Council of the Republic of Bulgaria

N/A 44 members 25 members

Cyprus Czech Republic Denmark England and Wales Estonia

Supreme Council of Judicature Ministry of Justice Council for the Judiciary The Judges Council The Council for Administration of Courts

N/A 13 21 11 (members of the Council)

Ministry of Justice, Judicial Administration Policy Department13 Finland

Ministry of Justice, the Department of Judicial Administration High Council for the Magistrature

France Germany Hungary Latvia

The Judicial Council the National Council of Justice The Court Administration - a direct administrative institution subordinate to the Minister of Justice.

Lithuania Malta Italy Spain Portugal

the Judicial Council The Commission for the Administration of Justice High Council for the Magistrature General Council for the Judiciary High Council for the Magistrature

Poland Romania Slovak Republic Slovenia Sweden Ireland

The National Council of the Judiciary The Superior Council of Magistracy of Romania The Judicial Council of the Slovak Republic The Judicial Council The Council for the Judiciary The Courts Service

35 workers of the Department 11 workers 17 (including President o the Republic and Minister of Justice) N/A 15 104

15 10 27 21 17 (including the President Supreme Court as the chairman) 25 19 18 11 10 17

of

Prosecutorial policy function in EU Member States The situation with the establishment of the Prosecutorial Councils is quite different from the judicial ones. Unlike the case of judicial councils, the idea of the establishment of the prosecutorial councils is not very popular one in EU Member States. In every EU Member State the prosecution service has a different position within the framework of the state. At the same time most often it is the Minister of Justice, who is held accountable in parliament for the performance of that office. The approaches of EU Member States taken to the functions are very divergent and depend on the legal and institutional framework of the prosecutorial office in each country. For example in Latvia, Estonia and Finland the commissions made up of the prosecutors evaluate and assess the candidates for the prosecutors’ positions with the prosecutors hired by the Prosecutor General. Some countries use more elaborated and complicated systems, sometimes involving the Judicial Councils in the procedures related to prosecutors.

13 Courts of first instance and courts of appeal are administered in cooperation between the Council for Administration of Courts and the Ministry of Justice.

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In Austria the public prosecutors are recruited from the body of judges, on the basis of evaluation by a “recruiting commission” and are appointed after an endorsement by the Federal Minister of 14 Justice (the heads of the departments of the ministry of Justice are public prosecutors). The disciplinary system for public prosecutors is regulated differently. A disciplinary commission has to be set up. It consists of a chairman, deputies (both categories are lawyers) and other members, half of whom are appointed by the unions of Civil Servants, the others by the Minister of Justice. The decisions of the disciplinary commissions may be appealed against before the Higher Disciplinary 15 Commission at the Federal Chancellery . In France the judicial system is composed of both sitting judges (magistrats du siège) and State prosecutors. Recruitment and training are the same for both categories. Switching from one position to the other is allowed and the same rules apply. The only difference is that the prosecutors are part of a hierarchy headed by the Minister of Justice. The Minister is, ex officio, vice-president of the High Council for the Magistrature (Judicial Council) and puts forward proposals to the Council relating to the appointment of all local prosecutors (except those at the level of courts of appeal and the Cour de cassation) and of sitting judges, except those who preside over courts, and judges of the Cour de cassation. The chief prosecutor of the Cour de cassation and those of courts of appeal are appointed by the Executive (by the President of the Republic following a deliberation of Council of 16 Ministries upon the proposal of the Minister of Justice) without consultation of the Council . Minister Also decides on the disciplinary issues for prosecutors, although usually following the advisory opinion of the Council. In Germany no special committees/councils for the recruitment of the prosecutors exist. The recruitment commissions for the prosecutors are set up on the administrative level, usually by the Ministry of Justice. They are composed of high ranking civil servants of the Ministry of Justice and /or court presidents. In some of the Länder, such commissions have not been established and it is the respective authority itself that decides, mostly on the basis of the documents supplied and in the light of an interview with the candidate. In cases where the Länder have electoral committees, recommendations as to which candidate should be selected are quite often given to the electoral 17 committee . The prosecution offices are mainly organised, and prosecutors are employed, by the Länder. On the federal level the Federal Prosecutor General and his or her staff are employed by the Federation and appointed by the federal government or the Federal Minister of Justice. The career prosecutors are appointed by the Minister of Justice and usually the prosecutor general is involved in the recruitment proceedings. In Italy similarly to France, the magistrates (both judges and prosecutors) are recruited by means of recurrent public competitions. The same judicial council, which deals with the judges - the Superior Council of the Magistrates – has the exclusive competence to take all the decisions concerning judges and prosecutors from recruitment to retirement (promotions, transfers, discipline, disability etc.). This Council itself is composed prevalently of magistrates (i.e., judges and prosecutors) elected 18 by their colleagues. In Netherlands the College of Procurators-General sends the list of selected persons to the Ministry of Justice. The Minister of Justice will generally propose appointment to the cabinet, and selected persons will be appointed almost automatically. Before that stage of the process, selected candidates will have to talk with the Placement Committee and with the Chief public prosecutor of the district where they want to be appointed. However this does not apply for Chief public

14 “Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe: Austria, France, Germany, Italy, The Netherlands and Spain”, ed. By G. Di Federico, 2005. p.10 15 Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe: Austria, France, Germany, Italy, The Netherlands and Spain”, ed. By G. Di Federico, 2005., pp.20-21 16 Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe: Austria, France, Germany, Italy, The Netherlands and Spain”, ed. By G. Di Federico, 2005.,pp.56-57 17 Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe: Austria, France, Germany, Italy, The Netherlands and Spain”, ed. By G. Di Federico, 2005.,pp.84-85 18 Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe: Austria, France, Germany, Italy, The Netherlands and Spain”, ed. By G. Di Federico, 2005., p.130

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prosecutors and Chief Advocates General. They are appointed by the Royal Decree on recommendation by the College of Procurators General and advice of the Minister of Justice. As to the dismissal the deputy public prosecutors are dismissed by the Minister of Justice, but all other 19 public prosecutors are dismissed by the Crown . In Spain the judges and prosecutors are considered two different professions in terms of selection, training, evaluation and promotion. They cannot move from one position to the other. The Selecting Committee of the General Council of the Judiciary (the Judicial Council) appoints the tribunal for the selection of candidates for the positions of judges and prosecutors. The Selecting Committee is composed of eight members: one member from the General Council, one high level member of the Judicial School, one magistrate, one prosecutor, the Director of the Judicial School, the Director of the Centro de Estudios Jurídicos of the Ministry of Justice, one member from the technical services of the Council, and a high level civil servant from the Ministry of Justice. Its members are appointed by their institutions for a four-year period. The tribunals for selection are composed of nine members: one President (a Supreme Court magistrate or a Fiscal de Sala) and 8 deputies (two magistrates, two prosecutors, one senior law professor, one lawyer of the state, one lawyer with a ten-year professional experience, and a judicial secretary). The institutions of origin of all members make the proposal of candidates to the Commission. The Commission of Selection is entitled to propose the 20 content of the exams and to set them, but the tribunal (-s) decides on the grading of the results .

19 Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe: Austria, France, Germany, Italy, The Netherlands and Spain”, ed. By G. Di Federico, 2005., p.179-182. 20 Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe: Austria, France, Germany, Italy, The Netherlands and Spain”, ed. By G. Di Federico, 2005., p.194

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Annex 3 Comparative data on the institutions dealing with the international judicial cooperation in the Ministries of Justice in EU-7. EU Member State

Institutions responsible for the judicial cooperation in criminal matters

Institutions responsible for the judicial cooperation in civil matters

Estonia

Ministry of Justice, the International Legal Assistance Division of the Criminal Policy Department

Finland Latvia

Ministry of Justice, International Unit

Ministry of Justice, the International Legal Assistance Division of the Criminal Policy Department Ministry of Justice, International Unit

During pre-trial investigation until prosecution The Ministry of Interior of the Republic of Latvia During pre trial investigation until submitting the case to the court: Prosecutor General’s Office of the Republic of Latvia Department of Analysis and Management International Cooperation Division

Ireland

Lithuania

Slovak Republic

During the trial: Ministry of Justice, Department of Court System, Division of Judicial Cooperation Department of Justice, Equality and Law Reform21, The Central Authority for Mutual Assistance

During pre trial investigation until submitting the case to the court: Prosecutor General’s Office, International Relations and Legal Assistance Division

During the trial: The Ministry of Justice, International Law Department, Legal Cooperation Division Ministry of Justice, Department of Judicial Cooperation in Criminal Matters

Ministry of Justice, Department of Court System, Division of Judicial Cooperation

Department of Justice, Equality and Law Reform, The Central Authority for Mutual Assistance The Ministry of Justice, International Law Department, Legal Cooperation Division

Ministry of Justice, Department of Private and Procedural International Law

General Prosecutor´s Office

Slovenia

21

Ministry of Justice, Directorate of International Cooperation and International Legal Assistance, Sector of International Legal Assistance

Ministry of Justice, Directorate of International Cooperation and International Legal Assistance, Sector of International Legal Assistance

Structure, which in part of its functions is similar to the Ministries of Justice in another EU Member States.

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Annex 4 Comparative data on the institutions exercising forensic expertise function in EU. EU Member States

Institution and its Subordination

Netherlands

The Netherlands Forensic Institute is an agency of the Ministry of Justice under the DirectorateGeneral for Law Enforcement. The State Forensic Science Bureau (SFSB) is a government institution under the Ministry of Justice. Division of Expertise, Department of Forensics, the State Police Federal Ministry of the Interior - Department of forensic sciences

Latvia Austria Belgium

Laboratory for Genetic Identification, National Institute of Criminalistics and Criminology

Bulgaria Cyprus

Research Institute of Forensic Science and Criminology

Czech Republic Denmark

Institute of Forensics, Prague

Estonia Finland France

Estonian Forensic Science Institute

Germany

The Laboratory of Forensic Genetics, Cyprus Institute of Neurology and Genetics

National Centre of Forensic Services

National Bureau of Investigation, Crime Laboratory Laboratoire de Police Scientifique de Lille Institut de Recherche Criminelle de la Gendarmerie Nationale, Rosny-sous-Bois Laboratoire de Police Scientifique de Toulouse Kriminaltechnisches Institut des BKA, Wiesbaden Landeskriminalamt Berlin, Kompetenzzentrum Kriminaltechnik, LKA KT - Berlin Landeskriminalamt Nordrhein-Westfalen, Kriminalwissenschaftliches und –technisches Institut, LKA NRW /Dusseldorf Landeskriminalamt Hessen, Kriminalwissenschaftliches und -technisches Institut, LKA Hessen / KTI - Hessen Landeskriminalamt Baden-Württemberg, Kriminaltechnisches Institut, LKA / KTI – Stuttgart

Greece Hungary

Hellenic Police, Forensic Science Division

Italy

Ministry of Interrior Reparto Carabinieri Investigazioni Scientifiche Institute of Forensic Research Central Forensic Laboratory of Polish Police -Scientific Police Laboratory of the Judicial Police (Laboratorio De Policia Cientifica, Policia Judiciaria) Forensic Science Laboratory, Department of Justice, Equality and Law Reform,

Poland Portugal Ireland

Hungarian National Police Headquarters, Institute for Forensic Sciences

Slovak Republic

Forensic and Expertise Centre of the Police Forces (Kriminalisticky a Expertizny Ustav Policajneho Zboru)

Slovenia Spain

Ministry of the Interior, Forensic Science Laboratory

Sweden

The National Laboratory of Forensic Science – public Agency under the Ministry of Justice

United Kingdom

Ministerio de Interior - Comisaria General Policia Cientifica - Servicio Central Analitica Ciminalistic Investigation Center (C.I.C) - Analysis Department - Centro de Investigación y Criminalística de la Guardia Civil National Institute of Toxicology and Forensic Sciences,Ministry of Justice.

England and Wales - The Forensic Science Service Northern Ireland - Forensic Science Agency of Northern Ireland Scotland - Police Forensic Science Laboratory, Dundee - Police Forensic Science Laboratory, Strathclyde

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