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Confidence in Justice as a Moral Emotion and Five Mechanisms That Support Its Renewal or Enhancement

DÉMUTH, A. - DÉMUTHOVÁ, S.: Confidence in Justice as a Moral Emotion and Five Mechanisms That Support Its Renewal or Enhancement. Právny obzor, 103, 2020, special issue, pp. 50-62.
transparency, intelligibility, timeliness, personal responsibility, professional ethics
Confidence in justice and the system that ensures it are basic preconditions for afunctional society. The main indicators of confidence in the justice system are satisfaction of the general population and the willingness of economically active entities to operate within the sector. Social philosophers, psychologists, sociologists, political scientists, and theorists of the state and law have long studied the determinants and selected discriminators that influence our perception of the reliability and enforceability of the law, as well as of the mechanisms that benefit or interfere with the function of the justice system.
After the widespread media reporting of the Threema case and the operations of the National Criminal Agency (NAKA),
such as Tempest (judicial bribery), Mills of God (prosecutorial bribery), Gale (judicial corruption), and Purgatory (investigatory corruption), public confidence in the Slovak judiciary and justice system has experienced one of its most significant declines since the Slovak Republic was established.
Therefore, in the present study, we focused on five tools that should help improve the justice system of the Slovak Republic and thus restore public confidence in the functionality, lawfulness and reliability of the judiciary. We conceive trust as a moral emotion; that is, as a mental state 'that is linked to the interests or welfare of either society as a whole or at least of persons other than the judge or agent'.
1. Transparency
In 1776, Jeremy Bentham wrote the book
A Fragment on Government,
in which he introduced the basic ideas of utilitarianism and moral and legal philosophy. In the introduction to the
Principles of Morals and Legislation
(written in 1780, published in 1789), he subsequently developed his theory of criminal law, culminating in the famous idea of the Panopticon
(Panopticon; Or, The Inspection House,
which described the radical reform of prison and the entire social system. Notwithstanding the contemporary conception and critique of this infamous idea, the principle of visibility and transparency has become a basic tenet of the modern understanding of the state and law in Western culture. The central principle of Bentham's proposals was to transform the dark and invisible areas in society to make them bright and under control. According to Bentham, this should result in well-disciplined prisoners, while allowing for supervision of the guards, and thus a solution to the age-old question, 'Who will guard the guards themselves'.
Bentham realised from the beginning that the Panopticon principle could be applied to other areas of social life, as well as to prisons.
Indeed, as Michel Foucault
demonstrated, the idea of panopticism and supervision became one of the most effective ways to impose discipline and control the use of power in the modern epistemic.
The requirement for transparency and (public) supervision is by no means new. It can be found to varying degrees and in the Greek polis and ancient Rome, as well as in Machiavelli's principle of the public prosecutor,
Sartre's conception of conscience,
and Popper's concept of an open society.
For a long time, the transparency of court decisions has been strengthened in the Slovak legal system by requiring courts to publish their judgements and make them accessible, under the conditions and to the extent provided by
Section 82a of Act No. 757/2004 Coll. on courts.
The details of the publication of court decisions are regulated by the
Decree of the Ministry of Justice of the Slovak Republic on the publication of judicial decisions No. 482/2011 Coll.
Furthermore, in accordance with
Act No. 211/2000 Coll. on free access to information,
courts must make all judgements public, including void prosecutions and those rejected because the case had no merit.
These measures have increased the transparency of court decisions by making the outcomes publicly available, thus bringing them into the light and allowing assessment by the general public.
However, as numerous publicised cases and public opinions have shown, this legislation currently provides insufficient public oversight for several reasons.
The practical application of justice in the Slovak Republic is influenced by the economic and financial connections between the parties involved in investigations or court proceedings; these lead to a risk of prejudice in the proceedings. Such factors are unacceptable because they compromise the impartiality of decision-making and the equality of the parties involved in a case. As such, they could affect the trial itself or the outcome of the proceedings outside the so-called visible area. These factors most often include direct or indirect corruption, as well as personal, economic and financial links that lead to corruption or bending of the law.
Act No. 385/2000 Coll. on judges and lay judges
obliges judicial representatives to declare their assets and the assets of their immediate family members-their spouses and minor children. However, this amendment has proved to be inadequate. In practice, property acquired in this way can be made less visible by being signed over to a member of the extended family or associate, as may have been occurred in several high-profile cases, such as those of the Head of the Administration of State Material Reserves of the Slovak Republic, Kajetán Kičura, and former state secretary of the Ministry of Justice of the Slovak Republic, Monika Jankovská. A person who is obliged to disclose assets must only do so if those assets are legally available to them; they need not disclose assets that they have placed into the ownership of others, such as their parents or adult children. Broadening the circle of people who must disclose their assets when taking office to include investigators and other public officials, in addition to judges, would limit the efforts to circumvent the obligation of disclosure of property by making over one's property to relatives or potential heirs. After all, the stronger the legal or moral claim that leads to the transfer of property rights of public official to a relative, the greater the willingness to sign over the property. The declaration of the assets of public officials could be made more transparent by expanding the circle of family members whose assets must be disclosed to include parents, adult children or people living in the same household. Admittedly, it would still be possible to circumvent the obligations, as possessions could be hidden with more distant family members and the obligation could not be implemented
ad infinitum.
Nonetheless, the willingness to undertake such circumvention could be partially reduced. Given the potential invasion of privacy, the appropriateness of such an encroachment on individual rights must be weighed against the possible benefits that arise from the potential inheritance of assets acquired from illegitimate income received while holding the position ofjudge, prosecutor, investigator or other public official.
xxxx1.1.b) Ownership information is only publicly available in the case of property and land held within the territory of the Slovak Republic, so any property elsewhere is not accessible to control. Similarly, because of bank secrecy and other obstacles, it is difficult to check whether asset declarations are complete in terms of movable assets, property rights and other property valuations. One possible solution is the open control of financial circumstances
by the public.
Another is a comprehensive overview of the structure of these rights and the introduction of new powers that allow the Judicial Council or higher judicial body to examine the assets of judges or judge candidates when they appear to own property that exceeds their legal income or their annually declared assets.
xxxx1.1.c) Some cases have demonstrated that public figures often use the real estate or other property rights of third parties without any proven relationship with them. In this regard, Sections 336c and 336d extended the obligation to establish a reason, forming the foundation of a new offence of undue advantage; that is, the offer and acceptance of bribes.
This legislation obligated claimants to provide evidence for any legal claims of a proprietary or non-proprietary nature that have no immediate legal basis and whose value exceeds 200 EUR. In addition, the legislation addressed the acceptance of bribes as constituting an undue advantage to a public official or a person close to them. The purpose of this legislation was to prevent the acceptance of undue advantage that is counter to morally acceptable behaviour but had not previously been counter to the law.
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