DANUBE | Law and Economics Review 4 (2011) 1

THE SOCIAL PERCEPTION OF JUDICIAL DECISIONS Albin Iglicˇar1

Abstract In addition to the main social function of the judiciary (solving conflicts), there are other important social tasks of the judiciary that can be summarised as solving conflicts, protecting the interests (rights) of individuals and general (state) interests, social control, the judiciary in the function of a homeostatic mechanism and achieving system legitimacy and control of the executive branch of power. The public’s perception of the judiciary and its confidence in the judicial system depends first and foremost on the public’s notions of the tasks and competencies of the judicial authorities as they are formed in public opinion. These notions and the related perception of the social functions of the judiciary are to a small extent formed on the basis of the individual personal experiences of participants in judicial proceedings and the experiences of others that these impart to their social environment. To a greater extent, the social perception and public opinion of the work of the courts depends on media reports, the appearances of politicians and the public appearances of representatives of the judiciary. Keywords Public, Judicial Decisions, System Theory, Confidence in the Judiciary

I. Introduction The judiciary exercises two, sometimes contradictory, functions in society. Its task is to protect – in the process of settling conflicts – the interests of both society and/or the state and the individual; this is protection of actual or proclaimed general interests as interests of the individual, as long as all these interests are legally protected by so-called public and private rights. The said interests must be encompassed by general legal norms and/or acts, as care for legality and the solving conflicts between legal subjects is the basic task of judicial institutions. Under legality in this context, we stress mainly the guaranteeing and enforcing of such behaviour of citizens and their organizations which is required by legal norms.

II. The Social Functions of the Judiciary The concrete image of judicial institutions in a global society depends on a number of circumstances. The most important of these are the society’s class structure, the type of political regime, a greater or lesser democratic tradition, the general level of culture and civilisation, the segmentation and developmental level of the legal system, etc.

1University of Ljubljana, Faculty of Law, Poljanski nasip 2, SI-1000 Ljubljana, Slovenia. E-mail: [email protected]. 2 Albin Ilgicˇar | The Social Perception of Judicial Decisions

Researchers of the judiciary find that the regulation of the judiciary and legal proceedings do not depend so much on the social and economic system of a state as they do on the structure of the legal system. Formal decision-making procedures did not differ substan- tially in a socialist and a capitalist country2, though there can be significant differences in the legal proceedings of two legal systems of two countries with the same capitalist social and economic system3. There are fundamental differences between the European continental and the common-law legal system in how judiciary and legal proceedings are regulated (Damasˇka, 2008, p. 7). The notion of the judiciary’s organisation is further impacted by the hierarchical or parity model of organisation of state authorities. The first conditions the judiciary in continental Europe and the latter in England and in countries that assumed the first or latter model. In the first model, the role of a specially educated professional judge is important, while in the second there is a high level of lay implementers of the judicial branch of power (justices of the peace, conventional jury). In the first, the judiciary is more hierarchically organised, while in the second it is decentralised with the all-encompassing jurisdictions of the first instance courts (Damasˇka, 2008, p. 48). In the first case, the decision-making process is distinctively graduated and legally regulated, while in the second it focuses on the main hearing with more procedural discretion and the judge playing the deciding role in determining the legal norms (Barak, 2006)4. The basic social function of the judiciary is to solve conflicts between legal subjects. On the one hand, legal institutions are the most complex and expensive mechanism for implementing this social activity, but on the other hand, the judiciary ensures rationality and predictability in solving conflicts. With such an operation, the judiciary generates re- lative stability and security in social relationships. Each judicial decision prevents anarchy when deliberating between established solutions and social changes5. The conflict-solving function is especially emphasised in a state that allows extensive activities of the civil society and a broad field of contractual freedom (a reactive state) while in the so-called activist state, the implementation of state policy is more in focus. This is why the contra- dictory or accusatory model of (criminal) proceedings is at the fore of the first case and the inquisitor model is at the fore of the second. In a reactive state, the norms of procedural law are more important, while in an activist state the norms of material law, etc. (Damasˇka, 2008). In a constitutional system with a division of power, the judiciary also prevents “. . . the tyranny of civil servants or the specific and particular interests of those with access to power.” (Vehovar, 2001, p. 96). With the practical merger of the legislative and executive branches of power6, the independence and autonomy of the judicial branch of power is

2For example, judicial decisions in the former Socialist Federative Republic of Yugoslavia and the Federal Republic of Germany. 3For example, judicial decisions in France and Great Britain. 4Example: “Indeed, judges created the common law.” (Barak, 2006, p. 10). 5Example: “The judge must balance the need for change with the need for stability . . . Stability without change is degeneration. Change without stability is anarchy.” (Barak, 2006, p. 11). 6In a parliamentary system, the legislative and executive branches of power come from the same political basis, so there is only a division of functions between them. In contemporary society, there are also a number of bodies DANUBE | Law and Economics Review 4 (2011) 3 gaining in importance. In a polyarchic political system7, the judiciary enables the planned and future-oriented activity of subjects, as it provides the required stability and strategic operation of the individual players8. Following the principle of the rule of law, it thus acquires the society’s confidence and legitimacy, or so-called social capital. On the other hand, this requires a high level of responsibility from the judicial system and for it to be responsive to the requirements of its social environment (Pavcˇnik, 2004, p. 222). In continental legal proceedings, the solution to a conflict is sought on the basis of preset general and abstract legal norms and relevant facts. There is a clear division of participants into those who decide and those for whom the decision is intended (Luhmann, 1992, 2004). The fundamental social function of legal proceedings is not to search for the truth – that is the task of science – but to solve a conflict. In society, the solving of the conflict is accepted as legitimate precisely because it was achieved via an autonomous and yet institutional legal proceeding. In the Anglo-Saxon system or the laissez-faire ideology, the judge has a more passive role, while in the continental legal system and the ideology of an intervening state, judicial decisions require a more active judge (Damasˇka, 2008, p. 176). By institutionalising conflicts, we specify and generalise them. In evolutionary terms regarding the global society, the legal institutionalisation of conflict-solving proceedings represents the framework for admissible conflicts. Settling and resolving conflicts through legal proceedings is based on a differentiation of the roles that appear in the judicial system and a mutual recognition of these roles. Solutions are searched for on the basis of legal norms and facts that are important for the utilisation of the pre-set norms. This is why social scientists establish that the only information that is relevant for a legal proceeding is foreseen in the decision making programme (Luhmann, 1992). In so-called civilised societies, decision making on the basis of selected information and general and abstract legal norms has replaced the self-help and self-defence that were characteristic of so-called primitive societies. This is why the participants in legal proceedings predominantly also accept unfavourable decisions. This is due to the specific system of social relationships that are shaped in relation to the legal proceedings. In addition to the relations of opposition and conflict relations, the players in these proceedings also establish characteristic conformational relations (adaptations, accommodations), especially in the shape of tolerance, reconciliation and compromises. Relationships of compromise especially appear during a longer period of that are difficult to classify into one of the three conventional branches of power, such as the Constitutional Court, Election Committee, the Court of Auditors, various agencies, etc. Alongside the horizontal, there is also a vertical division of power between the central state and the local communities, etc. (Sˇturm, 1997). 7Polyarchy – the rule of more or many persons. Polyarchy is actually another term for democracy (the antonym of monarchy). The theory of polyarchy was introduced by Robert Dahl, who listed the following as characteristics of a polyarchic political system: freedom of expression, the right to vote, freedom to form and join organisations, eligibility for public office, the right of political leaders to compete for support and votes, pluralism of the mass media, free and fair elections, government policies depending on votes (Dahl, 1971). 8The primary viewpoint is that “. . . the judicial system is an institutional and normative foundation for stabilising the activity framework of modern and highly complex societies and thus also one of the fundamental conditions for their existence and future development.” (Vehovar, 2001, p. 103). 4 Albin Ilgicˇar | The Social Perception of Judicial Decisions time, when “success and failure” in legal proceedings are distributed among the conflict participants. This strengthens the legitimising function of the judiciary and amplifies its expressive position in the entire social system. The special nature of the relationships that appear in legal proceedings lies in their high level of institutionality (Androjna, Kersˇevan, 2006, p. 103). The latter has replaced the spontaneous social relationships that integrated preindustrial societies through the non- governmental function of the judiciary. In a state-organised judiciary, the roles of the participants are reduced from the viewpoint of the aim of the proceeding, i.e. the judicial decision. Even though these roles need to be played in accordance with the legal and normative framework, the participants have enough freedom to show their view and understanding of a case and the events and circumstances that are relevant for the decision making process. In a state-organised judiciary, a certain level of spontaneity is thus retained as, in addition to the different roles played by the participants in the legal proceedings, there is room to be filled by the subjects in the proceeding with their own “self”. This commonly increases the subjective and internalised acceptability of judicially solving disputes. Institutionalised election, parliamentary, administrative and legal proceedings legitimise the existing political system. All the processes of creating and using the law or accepting general and individual legal decisions act as a legitimising mechanism that justifies these decisions and provides them with social acceptability (Luhmann, 1992). This is also the intent of the rules that provide authorisation for the operation of the courts by determining conditions and limits for the validity of judicial decisions (Hart, 1994). In this way, the judiciary is actively incorporated into the legal system. As a whole, the legal system appears as a means of social control (Hart, 1994). In this social function, the judicature and the legal system appear with the characteristics of a homeostatic mechanism. In addition to the aforementioned stability and predictability, they introduce frameworks for social changes into the social relations that the existing social order is able to accept (Vuksanovic,´ 2008, p. 491). On the other hand, qualitative social changes triggered by processes outside the legal sphere require shifts in the legal composition and consequently a new regulation of the judicature. Both the court and the legislative body are a creation of the law. In this respect, Hart points out that the court or a legislative body can only be constituted if there are laws that vest power in people to lead court deliberations or introduce new laws (Hart, 1994, p. 95, 96). The judicial function does not cease with the decision in the courtroom. In order for the idea or mental formation (decision) to be transferred to the reality of social relationships, a shift in the material world is required and, for that to happen, the decision has to be accepted and supported in the social environment (Trajkovic,´ 1975, p. 141). In addition to the main social function of the judiciary (solving conflicts), there are other important social tasks of the judiciary that can be summarised as solving conflicts, protecting the interests (rights) of individuals and general (state) interests, social control, the judiciary in the function of a homeostatic mechanism and achieving system legitimacy and control of the executive branch of power. DANUBE | Law and Economics Review 4 (2011) 5

III. The Perception of Judicial Decisions in the Slovenian Public

The Public and Public Opinion

The term “public” usually denotes all the persons and groups that direct their interest and attention to a certain exposed area of social activity. This is also the area of communication between members of social groups and in the total global society in which viewpoints, beliefs and opinions are formed (Sruk, 1995, p. 146). The public therefore comprises numerous social relationships and processes via the intervention of corresponding means of communication. Alongside pluralism and democratic legalities, the public is an essential element of civil society (Iglicˇar, 2009a, p. 364). Modern theory distinguishes between the micro-, meso- and macro-public spheres9. In micro-public spheres, the public is manifested in coffee shops, discussion circles, citizen gatherings, church groups, friend groups and similar that often coalesce into different social movements and public demonstrations (Keane, 2000, p. 178). The beginnings of social movements, even the larger ones, which strive for social changes in certain patterns of social behaviour, are to be sought in everyday human contact. In primary social groups, direct contact (face-to-face) is established between people who communicate over a longer period of time and who are not specialised in a narrow area of social activity. These groups are therefore not organised10 and as such are the source of the civil society with elements of freedom and privacy. The meso-public sphere is the public formed under the influences of the media or mass media, i.e. newspapers, radio and television. Originally, the extent of this public is present within the national state, even though it is becoming less limited to national borders, as modern technologies of mass communication are radically erasing them. Whether these are privately owned or public media is irrelevant. Their impact on public opinion is massive and often decisive. The macro-public sphere stretches across the borders of the territory of the national state and is shaped under the influence of global media houses. Their activity generates a “global audience” that shapes opinion on common public matters of transnational importance. These matters are again determined by the mass media. The latter shape the opinions of millions of people during prominent social events11. The World Wide Web is also highly successful at strengthening the civil society at the macro level. The World Wide Web and email strongly facilitate the growth of the public on a macro level. It is additionally questionable how the public is shaped in terms of Habermas’ ideal notion in the sense of communication, in which a consensus is achieved supported by the power of the best evidence (Habermas, 1996, p. 362).

9Quote according to John Keane (2000): John Fiske, Paul Mier, Alberto Melucci, Keane. 10Organised groups are characterised by an intensive division of labour, general rules, management bodies, entry conditions, membership records, external symbols, etc. 11Such as CNN’s reports on the Tiananmen Square protests of 1989 or the major role of media reporting during the Ten-Day War in Slovenia in 1990, etc. 6 Albin Ilgicˇar | The Social Perception of Judicial Decisions

The independent public is largely manifested through public opinion. The latter can be shaped under certain conditions that enable social activity in the sense of so-called active citizenship. When these conditions are not met, a passive mass society appears instead of a developed independent public (Mills, 1965) and this is the ideal breeding ground for different political and ideological elites. The Encyclopaedia of the Social Sciences determines public opinion as a collection of individual opinions on public matters (Davison, 1968, 13, p. 188). In order to speak of a developed public opinion or for a developed public to exist, approximately the same number of people need to create and accept an opinion, it needs to ensure the possibility of answering a publically expressed opinion, there needs to be the possibility of social activity in order to realise an idea and there should be no state control over the content of the opinion processes (Mills, 1965). In addition to ideas, the pluralism of a civil society is especially evident in the diversity of proprietary relationships and the freedom of political association. The legal elements of a civil society are provided by human rights and fundamental freedoms as immediate components of social communities and as the pre-state legal consciousness and culture. These are all legal notions covered by the ancient knowledge of Ubi societas, ibi ius. From civil society, public opinion extends its influence to the political state and its in- stitutions. This finding predominantly relates to the modern era, when this role of public opinion is related to the emergence of the free press and unhindered discussion in society (Matteucci, 1999, p. 282). This is why the thinkers of the liberal era have associated the political effects of public opinion with the freedom of the press. In terms of public opinion, the latest theories stress elements of communication, consensus and influence upon the institutions of authority12. Another characteristic of the industrial society is its quantitative measures for establishing public opinion, especially based on questionnaires, standardised interviews, sampling and statistical analyses. The viewpoints of the respondents are increasingly influenced by radio and television, ideological and economic propaganda, so that in civil society the independent emergence of public opinion is highly endangered. State-managed channels of control over civil society are increasing in number, leading to a reduced difference between the so-called general will, which is the foundation of democratic authorities of power, and public opinion that represents critical control over the operation of these bodies with a corresponding culture of reason and dialogue. Rousseau has already linked public opinion to the legal sphere, seeing public opinion as the state’s true constitution and saying: “To these three types of laws is added a fourth, the most important of all, which is not engraved on marble or bronze, but in the hearts of the citizens; which is the true constitution of the State; which gains fresh force each day; which, when other laws age or die out, revives or replaces them, preserves a people in the spirit of its constitution, and imperceptibly substitutes the force of habit for that of authority. I am speaking of mores, customs and especially of opinion – a part of the laws unknown to our political theorists but on which the success of all the others depend;

12E.g.: “Public opinion is a communication process in which individuals and groups strive to reach consensus on disputable public matters with the aim of influencing the operation of institutions of authority.” (Splichal, 1997, p. 4). DANUBE | Law and Economics Review 4 (2011) 7 a part to which the great legislator attends in secret while appearing to limit himself to the particular regulations that are merely the sides of the arch of which mores, slower to arise, at last form the unshakable keystone” (Rousseau, 1960, p. 124). Kant saw the idea of law that is anchored in public opinion as the result of reasonable public discussion as the foundation of peace that leads away from collisions between politics and morals. Rational elements of public opinion are often left in the background, as public opinion changes into moral evaluations of a group of facts (Lippman, 1999, p. 102). When values enter public opinion, this form of consciousness acquires a normative nature. Alongside values as collective notions of the desired characteristics and goods, the normative content is filled by numerous social rules from the regular, professional and political to legislative or legal rules. From this point of view, legal rules are thus determined, on the one hand, by public opinion upon their creation, while on the other hand, they co-shape these (legal) rules. Legal rules enter social consciousness, and the general legal culture of a global society, through public opinion. In an ideal model, public opinion may spring from discussions and deliberations so that, accompanied by verified information, it could turn into “. . . a common way of thought, the corporate spirit of any group or association. . . ” (To¨nnies, 1998, p. 62). Public opinion could, in effect, be understood as an expression of general will13. This would include the sum or cross section of the human sense of justice formulated in legal standards and legislation (Novak, 2000, p. 85). In such ideal circumstances, the recipients of legal norms would consider these as their own, since man, as a “norm-internalising being” (Zupancˇicˇ, 1995, p. 69), would spontaneously follow them when establishing social relationships. Today, however, spontaneity and confidence are diminished in social relationships, thus increasing formalism and counting on laws and judicial decisions. In the course of actual social life, public opinion in modern times, also as a determinant of legislation and interpreter of judicial decisions, is under the influence of the public or the so-called mass media. At the end of the nineteenth and in the first half of the twentieth century, this predominantly related to printed media, though this role has now been taken on by radio, television and the Internet. Through their reports and comments, the media arrange social events by importance, thus determining the topics, scope and direction of public debate. In this way, the events that receive the most media attention are those that the citizens perceive as more important (Splichal, 1997, p. 336). Media content in turn affects the viewpoints and actions of the majority of modern society. It is for this reason that political parties and interest groups set up their own public newspapers or assert their interests through already existing media. It becomes less important whether the media reflect the social situation and the course of social processes or display the situation in the economic, social, political, cultural and legal segment of the global society in a more subjective, biased and selective manner. It often happens that the media place a greater emphasis on certain phenomena that objectively do not have such importance.

13“Public opinion is the spiritual expression of the general will revealed also in convention and legislation.” (To¨nnies, 1998, p. 62). 8 Albin Ilgicˇar | The Social Perception of Judicial Decisions

The public has always been interested in the work of the courts in two different directions. On the one hand, initial emphasis was placed on the basic information on court decisions, while on the other hand, there was always the public’s desire to participate in concrete cases, at least with its presence or directly in making decisions (Trajkovic,´ 1975, p. 136).

Circumstances that Condition the Social Perceptions of the Judiciary

An essential condition for realising the social role of a judge is public confidence in the judge. This means confidence in judicial independence, fairness and impartiality (Barak, 2006, p. 109). Confidence in the judicial system depends first and foremost on the public’s notions of the tasks and competencies of judicial authorities as they are formed in the public opinion. These notions and the related perception of the social functions of the judiciary are to a lesser extent formed on the basis of the individual personal experiences of participants in judicial proceedings and the experiences of others that these impart to their social environment. To a greater extent, the social perception and public opinion of the work of the courts depends on media reports, appearances of politicians and public appearances of representatives of the judiciary. On the one hand, all these circumstances affect the public’s perception of the role of the judiciary and, on the other, affect the greater or lesser independence of judges in legal proceedings. Reports of international organisations on the position of the judiciary in Slovenia have recently been pointing out that “. . . we cannot deny the indirect influence and pressure on judicial decisions that usually come from politics.”14 Appearances, explanations and answers provided by representatives of the judicial branch of power are important for shaping public opinion and the greater or lesser confidence in the judiciary but these appearances are too rare. It is true that judges need to be reserved in their public appearances and to express their viewpoints in decisions (sentencing and reasons) but, especially in the Slovenian low legal culture15, additional explanations and interpretation of judicial decisions are required. Merely the annual reports issued by the Supreme Court of the Republic of Slovenia on the operation of the Slovenian judicature are not enough for the general (lay) public to get the right idea about how the judicial system fulfils its tasks. This is why we come across statements that “. . . in practice, the public’s knowledge of the information pertaining to the activities and decisions of the judiciary is inadequate.”16. The Public Relations Office of the Supreme Court of the Republic of Slovenia, which was set up in 201017, and the growing number of publications on judicial decisions in the mass media18 will undoubtedly contribute to improving this

14Transparency International Slovenija (2011). 15E.g.: A statement made by State Prosecutor General of the Republic of Slovenia Dr Zvonko Fisˇer: “The reputation and authority of our country’s judicial institutions are on the line. . . . To crown it all, legal culture in our society has slipped so low that attacks against the judicature are happening without actually affecting some of those who should care about the situation in the country.” DELO, 5 August 2011, Ljubljana. 16Transparency International Slovenija (2011). 17The Report of the Supreme Court of the Republic of Slovenia for 2010 states that the Public Relations Office dealt with about 650 journalist questions and 590 requests for taping main hearings. The judiciary received 1,543 questions via the online module. 18The number of publications on legal proceedings increased from 17,000 in 2009 to 24,000 in 2010 (SCRS, DANUBE | Law and Economics Review 4 (2011) 9 situation. The majority of questions addressed by journalists and the general public to the Supreme Court are answered by the aforementioned office. The amount of specifically requested information of a public nature also increased19. In a special press release issued in 2011, the Judicial Council of the Republic of Slovenia recommended that the judiciary establish more efficient ways of regularly informing the public about the operation of the courts and the most important circumstances surrounding the leading of individual legal proceedings20, while it also undertook to be better at notifying the public itself21. This would result in the public being better informed about and understanding the nature of judicial decisions. For example, it would not happen that courts are blamed for the unsuccessful fight against white-collar crime, even when cases do not even come to court (because the State Prosecutor did not file any charges) or when the courts acquit the defendant due to lack of evidence or unproven guilt22. It is the public’s notions about the jurisdiction and tasks of the police, the Public Prosecutor Office and the courts that are often unclear and mixed. This is why the public’s criticism of the unchanging amount of white-collar crime most often falls on the last link in the chain that pursues this deviant phenomenon, i.e. the courts. For parties to concrete legal proceedings and their “social networks”, decisions are important as well as their participation in the proceedings, and especially the grounds for the decision. These also affect the public’s view when evaluating the work of the courts. In this respect, a long-standing judge says: “To those who know nothing about the case, our decision will tell all that we believe they need to know.”23 This is why process legislation already stipulates that each decision has to contain the reasons for the decision24. For the right impression to be conveyed to the public, the comprehensive picture of the written court decision is important.

2010, p. 53). 19The total number of requests for information of a public nature stood at 57 in 2009 and at 90 in 2010. In both years, none of the requests for information of public character were denied in full. Some requests were partially denied due to the protection of personal data or due to the absence of required information (SCRS, 2010, p. 61). 20The stance of the Judicial Council of the Republic of Slovenia, adopted at its 36th session, 17 January 2011. 21Decision of the Judicial Council of the Republic of Slovenia: “From hereon, the Judicial Council shall publish on its website its decisions on the appointment and discharge of presidents of district and higher courts and some of its other decisions or stands that are of public importance.” 22For example, the telephone survey conducted by DELO-Stik on 2 and 3 August 2011, which asked the question “Do you believe that the Patria case, for which the bill of indictment has already been filed, will receive a judicial epilogue?” and showed that 59.3% of respondents said “no” and only 29% said “yes” (11.7% answered “I do not know”). 23Dusˇan Ogrizek: Decision (some thoughts on Article 338 of the Civil Procedure Act), hectographed. The quote continues with the following advice: “It will tell them what dispute there was between the parties – what the court learned about legally important facts from the derived evidence – why it failed to believe certain evidence and believed other – what legal consequences are borne by the established facts and why these legal consequences result in the decision of the court as evident in this judicial decision.” 24E.g.: 364/Articles 1, 7, 8 of the Criminal Procedure Act (Official Gazette of the Republic of Slovenia, 32/07, 26/08): “. . . A judicial decision shall contain an introduction, the finding and the reasons for the decision. . . . The court shall list the individual reasons for each point of the decision under its reasons.” Or 324/4 the Civil Procedure Act (Official Gazette of the Republic of Slovenia 26/99, 42/08): “The court shall state the parties’ claims in its reasons and their statement of the facts on which these claims are based along with the evidence and rules on which it grounded its decision” or Article 71 of the Administrative Disputes Act (Official Gazette of the Republic of Slovenia 105/06). 10 Albin Ilgicˇar | The Social Perception of Judicial Decisions

In this respect, the sense of the following provisions is brought into question: “The decision shall be issued and announced on behalf of the people”25 or “The decision shall be rendered and announced on behalf of the people.”26. In the current times of the emphasised lay- oriented and rational nature of institutions of authority and with the self-evident nature of its origin, this symbolic and ideological element of a court decision as an individual and concrete legal act could be abandoned. In justifying this proposal, we need to draw on the concept of popular sovereignty, which means that the power comes from the people and belongs to the people. This principle is a principle of the modern era, as the idea of the divine origin of power prevailed before that. The French Revolution of 1789, whose documents mark the formal beginning of the modern era, said that: “The principle of all sovereignty resides essentially in the nation. No body or individual may exercise any authority that does not proceed directly from the nation.”27 The ideological founder of the French Revolution, Rousseau, marked this sovereignty as an inalienable and indivisible characteristic of the people who join a political community via a social contract. The people form a so-called general will, which forms the essence of sovereignty that remains with the people as a collective being that “. . . cannot be represented by no one but itself. . . ” Rousseau, however, continues by saying that: “it is possible to transfer authority but not will.” (Rousseau, 1960, p. 86). The Constitution of the Republic of Slovenia similarly says: “In Slovenia power is vested in the people. Citizens exercise this power directly and through elections, consistent with the principle of the separation of legislative, executive and judicial powers.”28 This therefore means that all acts and actions of any branch of power derive from popular sovereignty. From this viewpoint, it is not understandable why this fact is only specifically stated in decisions where the address of each decision states: “Decision on behalf of the people”. If we were consistent and respected the equality of all three branches of power and their basis in popular sovereignty, each act adopted by the National Assembly should say “Act on behalf of the people” and the same with governmental decrees: “Decree on behalf of the people”. The same also applies to the decisions of an administrative unit or a ministry, which should also state “Decision on behalf of the people”. The decisions of the Constitutional Court should also bear the same wording. Why is this emphasis or addition only present in the judicial branch of power and not in the other two? Considering the constitutional basis, the origin of all three branches of power or authorities is the same. After the Second World War, the popular origin of power was especially emphasised by the so-called popular democracies, where next to the actual monopoly of power with a single political party, there were indications of the need to ideologically and formally stress the promulgated bearer of power – the people or, more exactly, the working people, or even narrower, the working class. In those days, we initially had the so-called people’s courts that decided according to the people’s revolutionary sense. At the time, the decisions might have been right to entail the addition “on behalf of the people”.

25321/1 the Civil Procedure Act. 26353/1 the Criminal Procedure Act. 27Article 3 of the Declaration of the Rights of Man and of the Citizen – 1789. 28Article 3/2 of the Constitution of the Republic of Slovenia. DANUBE | Law and Economics Review 4 (2011) 11

Furthermore, we must not forget that, after the Second World War, each decision issued in our territory ended with the abbreviation “s.f.s.n.” (Death to Fascism, Freedom to the People). And again, this was not present at the end of an Act or a Decree but only at the end of court decisions. Why? Without extensive deliberations on the reasons behind the original “consistency” and “faithfulness” of the judicial branch of power to the governing ideology, living in a true democracy (the rule of the people) in Slovenia, we might omit the addition of “on behalf of the people”, as it goes without saying alongside the principle of popular sovereignty for both the judicial and the other two branches of power. This addition should therefore be used by the authorities of all branches of power or none of them. The latter is of course rational and, especially with the judicial branch of power, in accordance with stressing its professional and independent nature. In neighbouring Croatia, for example, decisions are passed, as stated in the title, “on behalf of the Republic of Croatia”, or occasionally “in the name of the law” and similarly no addition is probably necessary for the legal and legitimate operation of courts, as it might trigger an eventual ironising of court decisions, which sometimes happens in the media and in public opinion. A court decision should build its authority on its legal professional nature and the principles of humanity without the paper referencing the will of the people. In general, the activity of judges is subject to continual control by the people or the public. Not only are the main hearings open to the public, but the triennial performance assessment of judges by personnel councils and the Judicial Council29 confirms that the profession of a judge is one of the most controlled professions in society. The performance assessment comprises an assessment of the judge’s professional knowledge and work abilities, the extent of the work conducted and the quality of solving legal questions, written and oral expression skills, protecting the reputation of the judiciary, the relationship with co-workers and conducting additional tasks.30 The changes in the image of the judiciary in the eyes of the Slovenian public will be affected by shorter times for dealing with individual cases. From 14.1 months in 1998, this time dropped to 5.6 months in 201031. A similar effect will be evident in a reduced number of unsolved cases, as their number reduced by 4.6% in 2010 compared to 2009.32

Public Confidence in the Judiciary

From the three branches of power, in most countries the public usually has the highest level of confidence in the judicial authorities. In the mid-nineties this also applied to Slovenia. However, after the year 2000, confidence in the courts began declining and, at the end of 2003, a public opinion survey on confidence in institutions showed that Slovenian courts fell behind the government and the National Assembly33. However, confidence in the

29Article 31 of the Judicial Service Act (Official Gazette of the Republic of Slovenia 94/07). 30Article 29 of the Judicial Service Act. 31With the so-called more important cases, the average time needed to close a case was 21.8 months in 1998 and end of 2010 only 9.7 months (SCRS, 2010). 32Ibid. 33Politbarometer (Political Barometer Survey) from 2003. 12 Albin Ilgicˇar | The Social Perception of Judicial Decisions courts rose again in 2005, to slightly over 32% in 2005 and to slightly over 37% in 2006, so that throughout the period of Slovenia’s independence the average confidence in the courts stands at 32.6 percent34, which is a few percent more than the confidence in the government and almost fifty percent more than confidence in the National Assembly. A distinct decline of confidence in the courts and in the bodies of other branches of power began after 2007, so that by 2010 we can speak of a “disdain” for political institutions in general and of a “crisis of democracy”35. There is a general trend of declining confidence of the Slovenian public in all state institutions, including the judiciary. With a few exceptions, Slovenian public opinion displays higher levels of confidence in civil society institutions than in central national bodies. This is also evident from the following table, showing the percentages of confidence in national and social institutions measured in mid-2011 (the sum of the answers “have confidence” and “have full confidence” in %)36: The fire brigade 95 The army 49 The President of the Republic 43 Healthcare 40 The school system 39 The euro 33 The police 30 The media 29 The Constitutional Court 27 The European Union 24 The Bank of Slovenia 22 NATO 21 Trade unions 16 The church, the clergy 15 The courts 15 State administration 13 The Prime Minister 10 The government 8 The National Assembly 5 Political parties 2

If these results of public opinion are arranged according to confidence in the typical representatives of all three branches of power (the legislative, the executive and the judicial), it is clear that the courts still record the highest levels of confidence:

34SPO (Slovenian Public Opinion) Surveys from 1999–2006 (by Public Opinion and Mass Communication Research Centre, Faculty of Social Sciences). 35Politbarometer (Political Barometer Survey) 10/2010. 36Politbarometer (Political Barometer Survey) from May 2011. DANUBE | Law and Economics Review 4 (2011) 13

Year 2010 2011 1. The courts 18 % 15 % 2. The government 12 % 8 % 3. The National Assembly 11 % 5 %

These answers indicate the exceptionally low legitimacy of all three branches of power, including the judiciary. The bodies of all three branches of power are at the bottom of the confidence scale, so that the institutions of the political system in Slovenia have reached “an extreme lower level”37. We can also observe a trend of persistent decline in confidence in state bodies, including the courts. The general lack of confidence in the operation of state bodies indicates a serious crisis of the political system, which not even the courts can avoid. The yearlong average levels and longitudinal surveys show distinct variations in the confidence of Slovenians in the institutions of the political and legal system. This also applies to the courts. In the 1991 to 2011 period, the public’s confidence in the courts stood at the following percentage rates38: 1991 34.7 1994 26.2 1996 24.3 1998 33.2 2001 41.7 2003 34.9 2006 37.5 2007 24 2008 15 2009 18 2010 18 2011 15 In the 1991–2006 period, the average confidence in the courts was rather favourable (32.6%) but changed over the next years, with public confidence in the courts ranking them lower than the Government of the Republic of Slovenia and the National Assembly in 2008 and 2009. Confidence in the courts declined drastically, to a meagre 15% in 2008 and 18% in 2009, so that the courts recorded the lowest level of confidence in all three branches of power. Despite the precarious decline of the public’s confidence in the work of the courts from the average confidence in the 1991 to 2006 period (32.6%) to only 18% in 2010 and only 13% in 2011, the Slovenian judiciary records higher levels of confidence than the Government (8%) or the National Assembly (5%). The reason for this ranking however does not lie in a higher confidence in courts but in the distinct decline in confidence in the Government and the National Assembly.

37Ibid. 38SPO (Slovenian Public Opinion) Surveys from 1991–2006 and Politbarometer (Political Barometer Survey) from 2007–2010. 14 Albin Ilgicˇar | The Social Perception of Judicial Decisions

Several factors contributed to the decline of confidence in the judiciary: from court backlogs39 and the unpredictability of court solutions40 to the negative depiction of the judiciary in the media, misunderstanding the function of the courts by the general public41, the so-called strike of the judges and the inappropriate and incomplete occupation of systemised judiciary posts. There is a certain paradox that stands out in all this. In spite of the declining trend of confidence in the Slovenian judiciary, the number of new cases received by Slovenian courts is inversely proportional to the decline. The number of all new cases in individual years42: 2001 530,056 2002 543,073 2003 588,957 2004 627,638 2005 620,345 2006 648,806 2007 637,964 2008 681,069 2009 824,562 2010 969,955 Together with court backlogs from previous years, the Slovenian courts handled over 1.45 million cases in 2010. The continually increasing trend of court litigations is present across the world (Zupancˇicˇ, 2009, p. 45). In Slovenia at the end of 2010, these cases were being solved by 1,024 judges43. Their number has been declining since 200944, but Slovenia is still far from the average number of judges per 100,000 people (17.4), as even its 53.5 judges in 2008 put it well above the average.

39The number of court backlogs as pending cases that are pending before the court for a longer period than prescribed in individual years 2001: 298,227 cases 2002: 313,196 cases 2003: 323,520 cases 2004: 310,333 cases 2005: 303,901 cases 2006: 291,941 cases 2007: 287,175 cases 2008: 231,207 cases 2009: 263,000 case 2010: 270,000 cases (The MJRS and RSCR, 2010). In 2010, the criteria for what constitutes a court backlog have become much stricter. 40This is also indicated by Constitutional Court Judge Jan Zobec, adding that the flood of litigation is the result of the lack of confidence in courts, a lack of confidence that is due to unstable legal practice (Zobec, 2011, p. 3). 41Example: “Increasingly, people criticize court decisions without reading them; too many people criticize decisions they don’t understand. I fear that the future does not hold positive developments in this area.” (Barak, 2006, p. 313). 42MJRS; data for 2010 is taken from the Government’s Opinion on the Request for a General Discussion about the Proposed Resolution of the National Assembly Regarding the Situation in the Judiciary, 2010. 43As on 13 December 2010 (note under number 13) 44The number of judges in Slovenian courts (Annual Report of the Supreme Court of the Republic of Slovenia, Ljubljana, 2010 p. 64) Year 2002 2003 2004 2005 2006 2007 2008 2009 2010 Number 774 772 776 969 1,002 1,083 1,067 1,076 1,024 With regard to gender, Slovenian courts employed 77.6% female and 22.4% male judges at the end of 2010. DANUBE | Law and Economics Review 4 (2011) 15

We also need to pay attention to the trend of a reduction in the number of unsolved cases. Despite an almost 5% increase in the number of new cases in 2010, Slovenian courts managed to additionally reduce the number of unsolved cases45. This is why the Supreme Court states in its report that: “All the main indicators show that the judiciary has returned to its position prior to the 1995 reform, which was the main reason for the long-standing crisis.”46 Confidence in the judiciary is closely connected to the general confidence of the public in the entire legal system (Iglicˇar, 2009b). At the turn of the century, these confidence levels in different countries were as follows (expressed as a percentage)47: France Germany Canada USA have full confidence 7 13 10 12 mostly have confidence 48 52 44 47 have little confidence 31 31 39 34 have no confidence 11 4 7 7 no answer 3 – – – In a comparable period, Slovenian public opinion shaped the following answers (expressed as a percentage) to the questions on confidence in the legal system expressed using a ten- stage scale, with 0 meaning that the respondent has no confidence in the legal system and 10 that it has full confidence in the legal system48: 0 1 2 3 4 5 6 7 8 9 10 8.3 3.6 7.1 11.5 9.5 26.2 7.1 12.7 9.1 2.0 2.8 Confidence in the judiciary relates to the predominant values of a global society. An international survey ranked the confidence in courts at the end of the 1990s in individual European countries as follows (Tosˇ, Bernik, 2002): The Czech Republic 34 % The Slovak Republic 39 % Hungary 43 % Poland 38 % Slovenia 43 % Germany 50 % Austria 60 % As mentioned before, the level of public confidence in the Slovenian judiciary distinctly decreased in the second half of the first decade of the twenty-first century and poses a serious problem from the viewpoint of political and legal culture.

45Unsolved cases at all Slovenian courts by years (the Supreme Court of the Republic of Slovenia, Annual Report 2010, p. 96): Year 1998 2005 2006 2007 2008 2009 2010 Number 597,587 524,016 503,140 491,757 459,256 425,636 413,369 46SCRS (2010), p. 123. 47Raiser (2007), p. 330. 48Tosˇ(2004). 16 Albin Ilgicˇar | The Social Perception of Judicial Decisions

These answers indicate that legal culture conditions them in many aspects. The values of a legal state need to be generally present in a society and not only referenced by legal experts. The true operation of a legal state thus foresees a legally conscious or “legal society” (Cerar, 1994). In such a society, it is vital for the collective legal consciousness to be developed together with confidence in the legal elite and especially in legal institutions. Judges can maintain and strengthen confidence in the judiciary by the reasonable use of their powers, an absence of arrogance, recognising their mistakes and with persistent endeavours to reach fair decisions (Barak 2006, p. 111, 112).

IV. Conclusion Sociological research usually establishes the public opinion aspects of legal socialisation and legal culture first through public opinion polls on trust in legal institutions and then by observing and describing the actual social acts of legal subjects. Trust in institutions and general acquaintance with the legal system is the starting-point of legal culture. Trust in institutions as a part of legal culture also indicates the internalisation of legal values and norms. Besides this, the degree of trust in the institutions of legal and political systems also suggests their legitimacy. The higher the support to institutions, expressed in public opinion polls, the higher the legitimacy of the legal and political systems. The public opinion aspect of legal culture as shown by the public opinion polls was rather poor for Sloveniain the last decade of the 20th century. We can see that, in comparison with selected European countries, trust in the legal system in Slovenia is among the lowest. The declining trust of people in political and legal institutions proceeds from the unfulfilled expectations formed in Slovenia at the beginning of the nineties. The then optimism and faith in the legal system were probably in fact too idealistic, although poor quality work and the great emphasis given to weaknesses in the work of these institutions by the media, adds to the decrease of trust in classical institutions of the state. References Androjna, V., Kersˇevan, E. (2006). Upravno procesno pravo. Ljubljana: GV Zalozˇba. Barak, A. (2006). The Judge in a Democracy. Princeton: Princeton University Press. Cerar, M. (1994). Predpostavke pravne drzˇave. Pravnik, 49(10–12), 433–449. Davison, Ph. (1968). Public Opinion. In: Encyclopedia of the Social Sciences, 1888–1970. Houndmills: Palgrave Macmillan. Dahl, R. (1971). Polyarchy. New Haven: Yale University Press. Damasˇka, M. (2008). Lica pravosuy¨a i drzˇavna vlast. Zagreb: Naknadni zavod Globus. Government’s Opinion on the Request for a General Discussion about the Proposed Re- solution of the National Assembly Regarding the Situation in the Judiciary, 21 December, 2010. Habermas, J. (1996). Between Facts and Norms. Cambridge: Polity Press. Hart, H. L. A. (1994). Koncept prava. Ljubljana: Sˇtudentska organizacija Univerze v Lju- bljani. Iglicˇar, A. (2009a). Pogledi sociologije prava. Ljubljana: GV Zalozˇba. DANUBE | Law and Economics Review 4 (2011) 17

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