The Hague and a Failure of Justice

If I hear one more time on NPR that Radovan Karadzic has "refused to attend" his war crimes trial, I am going to deliberately run over a small animal. Mr. Karadzic is not in a hotel. He is in prison. He can be forcibly taken to the trial and, if need be, manacled to his seat.

Something is seriously wrong in the Hague. Milosevic's trial was four years and counting when he died. The Karadzic trial is expected to last two years. This is excessive, surely. Equally bad, they seem unable to punish anyone. A woman was convicted of war crimes and sent to Sweden where, apparently, serving 2/3 of your sentence is considered good enough for government work. Plavsic is, therefore, already returning home to a heroine's welcome in Belgrade. What has happened in a place where the trials exceed the punishments in length?

Here in the USA, we have some experience with excessively long civil and criminal trials, but they are not fixtures in the system. Their emergence has been unexpected and the judiciary is trying to figure out how to tamp it down. Not so in Europe, it seems. The Hague operates like most European courts.

I get the sense that the European civil law system, as a whole, is totally broken, perhaps beyond repair. Criminal trials routinely take years. There is no right to a speedy trial in Europe, it seems. In Italy, you basically have to be convicted twice before you can be sentenced. French Appellate courts (courts of cassation) have the power to remand, but not to reverse - meaning that decisions are interminable.

The liberal sentiments are so excessively written into the law that accused persons -like Karadzic - are treated like honored guests. The contempt power of courts seems nonexistent. Punishments are bizarrely lenient. I am not advocating the overcrowded rape-and-murder factories of our American prisons, most of which are rightfully condemned by international human rights organizations. But there must be some middle ground between 25-to-life in Angola for murder (or the death penalty) and 5 years in a Swedish spa.

Part of the problem, I fear, is that the Euro-lawyering profession itself is undereducated. European lawyers need only the equivalent of a bachelor's degree. Judges also are not chosen from the practicing bar, but are specially and separately trained in college and -also- have the equivalent of a 4-year-degree only. They are by design just bureaucrats. This means that the academic study of law is insufficiently integrated with the judiciary. In the USA, judges and experienced lawyers routinely participate in academic legal discussions.

I have tried for some time to figure out why the European justice system works so badly, and I am finally convinced that Europe needs a judicial revolution.

Now, I am *not* arguing that the American system needs to be adopted. I do believe the American system is better overall, but it has enormous faults too. The core of the American system - the adversarial system - need not be imported. But a few reforms seem necessary.

Part of the problem is that Europe's professional judges lack the disinterested impartiality of jurors, and the lack of an (unpaid) jury means that there is no incentive to finish trials quickly. Some form of citizen participation in criminal trials would be a great help.

Also, the American judicial system is by and large dominated by the bar, which has proven to be a pretty good thing in criminal law for a few interesting reasons. Our system is adversarial, the bar is overwhelmingly civil, not criminal, and prosecutors play very little role in it. Most of the elite lawyers' participation in criminal matters is pro bono representation of indigent defendants or theoretical advocacy. So the judiciary is more acccused-friendly and is a counterweight to the legislature and executive that are pro-prosecutor. The European bar needs to organize itself. Having judges selected from the bar, rather than through special schools with no professional exposure involvement to the bar, is crucial.

Europe needs to create post-university law schools with special training and specialized academic faculties, not just have a law department as part of the poli sci department. The 3-year law school is most useful because the third year is the place where academic study of law can really take place after a couple of years of intensive training.

Above all, Europe needs to construct and independent judiciary. The Napoleonic-era desire to make courts into mere bureaucratic adminitrators of Napoleonic-code justice (mere instruments of the code) is a failed experiment. The independent judiciary with its own contempt power and political power is the better model. Judicial power, feared and hated by French revolutionary reformers as tied up with King and Pope, needs to be restored and reinvigorated.

This is not bash-Europe day for me. What Europe must not lose in this process is its great desire to protect human rights. But the system is out of balance and, I fear, by design. The most visible part of the european justice system, the Hague, is a total fiasco. Thousand-page indictments and multi-year criminal trials have to stop. Due process cannot become an end in itself. It is not necessary to adopt an adversarial system with its philosophical constraints, but something must be done to alleviate the problem that the judges are charged with the roles of investigating, prosecuting, and defending the rights of the accused all at the same time. Shifting some of these burdens to a more profesionalized bar and leaving the judges to manage the efficiency of the system (ah, docket and calendar control!) will do a great service.