More About Innovations for Successful Societies By Malcolm Simmons

The tangled history of the judicial system turned the simplest matters into serious challenges. Attending trials could be difficult because courtrooms were sometimes hard to find and schedules were not easily accessible to the public. In addition, hearings and trials often took place in cramped offices with little or no public notice.

Tristan Dreisbach

Innovations for Successful Societies

Although law required most court sessions to be open to the public, in practice they were seldom accessible. Courtrooms for specific cases were sometimes difficult to find because of inadequate postings and signage. Few court buildings posted schedules showing locations and times of court sessions.

A particularly widespread problem arose from the penchant of many judges for performing judicial functions, including hearings and trials, in their private offices, behind closed doors, out of public sight, and in tight spaces that precluded attendance by anyone who had no specific role in a case. Many judges blamed the practice on insufficient courtroom space, an explanation that sometimes failed to hold up under scrutiny.

“There was a lack of space, but not as much as they pretended there was,” Xharra said. “Even when courtrooms were open and available, they still went to their offices.”

“Although the international community encourages judges to hold sessions in open court, it remains local practice for judges to conduct hearings in their offices,” said Malcolm Simmons, a British judge who served as president of the international judges. “The judges’ offices are so small that you cannot get everyone in there or you’re cramped around the judge’s desk. We’ve had situations where the defendant has been sitting outside . . . handcuffed with police officers while the trial is going on inside the judge’s office because there isn’t enough room for him.”

Although legally, court proceedings were open to the public, there could be no public presence when sessions were held in judges’ offices, Simmons added. “There’s that sense of ‘what is actually going on during these trials?’ There’s no transparency. And of course you hear these allegations that a deal was cooked up between the prosecutor and the defense.”

The court system moved glacially. Xharra and her colleagues wanted the monitoring project
to assess the reasons behind those delays and what could be done about it. There was a growing backlog of unprocessed cases, with more than 50,000 civil and 36,000 criminal cases pending in the court system as of November 2007.4

Resolving even basic matters such as traffic fines often took years. In Kosovo, traffic violations were processed through the courts so that police officers did not levy fines directly. Although the policy reduced opportunities for bribery, it led to thousands of small civil cases’ clogging the court system. Sami Kurteshi, ombudsperson of Kosovo, whose office collected citizen complaints regarding official institutions, including the courts, received complaints from citizens who told him, “It has taken many years, and I haven’t been informed about [my case]. 

What is going on?”

Even when a case made it to trial, the process could seem interminable. “Cases go backward and forward for years on appeal,” Simmons said. “Parties can appeal everything... In some cases you’ve got protected witnesses who have given evidence maybe three times. If they were scared the first time, they were petrified the second time, and now the third time, we’re wondering why suddenly they’re retracting their evidence. There is no concept of ‘harmless error.’ Cases are sent for retrial based on spurious procedural errors. If justice is achieved at the end of a trial, it is perceived as a bonus rather than being the purpose of the process.”

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