ICJ Project to Support the
Independence and Impartiality of the
Judiciary in the Southeast Adriatic
Countries

Summary of Project, 2003-2004

B
etween December 1998 and the present, ICJ Canada has implemented three projects on judicial independence and impartiality in the Southeast Adriatic countries. The general objectives of these projects have been to promote greater professionalism among individual local judges and to build stronger, independent, and more efficient judicial institutions.

At the conclusion of our successful project in Croatia (2000-2002), ICJ Canada and its funding agency, CIDA. were convinced of the necessity to reach out to other countries of the Southeast Adriatic. In January 2002, CIDA agreed to finance a second phase of the Project to pursue the work already achieved in Croatia and to establish similar projects in Serbia and Montenegro.

The Project, which has been supervised from the beginning by Judge Michèle Rivet, President of the Quebec Human Rights Tribunal and Commissioner of ICJ Geneva, aims to help Croatian and Serbian and Montenegrin judiciaries to strengthen their independence and impartiality in a unique judge-to-judge approach that has successfully facilitated our educational objectives through direct exchanges between Canadian and Southeast Adriatic judges.

Canadian Advisory Committee Meeting
Because the current phase of the Project will end in the coming months, the Project convened a formal meeting of the Canadian Advisory Committee for a consultative session, which took place in Montreal on April 3, 2004.

During this session, the Project’s work to date was summarized and plans were introduced for the new phase of the Project that will allow ICJ Canada to continue the work already started in Serbia and Montenegro

and to extend this work to Bosnia Herzegovina and Kosovo. The purpose of this meeting was to collect the views and suggestions of those who had generously participated in the development and contributed to the success of the current Project, whether in Croatia, in Serbia and Montenegro, or here in Canada.

More than 30 judges and lawyers participated in this consultative session, including the Honourable Ian Binnie of the Supreme Court of Canada and Chief Justices from the Provinces. National Vice-President Brian Crane represented the ICJ Canada Executive and conveyed its ongoing support for the Project, as well as its appreciation of the efforts of Judge Rivet and all the participants in the Project.

An overview of the current Project provided by Judge Rivet was followed by a general discussion of the experiences of participants in the Project in order to gather insights and suggestions that might be incorporated into the proposal presented to CIDA at the end of May 2004. In addition, two speakers who have worked in the Southeast Adriatic in non-ICJ capacities shared their experiences. Georgette Gagnon, former Director of Human Rights and the Rule of Law for the Organization for Security and Cooperation in Europe (OSCE) Mission to Bosnia and Herzegovina and 2003 recipient of the Tarnopolsky Award, spoke about the judiciary in Bosnia. Judge Paul Chevalier of the Court of Quebec, who acted as an international judge in Kosovo for nine months in 2003, gave his views on the judiciary in Kosovo. Finally, Philip Rawkins, an external Advisor to the Project, gave very useful advice from his own experience of addressing the Committee on Programming and Approaches to Judicial Co-operation.

Judge Radmila Dicic visits Canada
In October 2003, the Project sponsored the one-week visit to Canada of Serbian Judge Radmila Dicic. Over the course of an intensive speaking tour, Judge Dicic addressed Canadian law faculties, high school students in Alberta, local gatherings of ICJ members, and the Annual Conference of the Canadian Institute for the Administration of Justice (CIAJ).

Judge Dicic sits on the Special Tribunal for Organized Crime of the District Court of Belgrade and serves as the President of the Board of the Association of Judges of Serbia. She is a high-ranking judge who has experienced first hand the fragility of the independence and impartiality of the judiciary in Serbia and the former Yugoslavia. In her repeated engagements, Judge Dicic explained that, in the past 12 years, the Serbian judiciary has witnessed enormous historical and political changes, passing through civil war, the regime of Slobodan Milosevic, sanctions of the international community, bombings, war crimes, political murders, growing poverty, refugees and the eradication of the rule of law. Throughout this period, she said, the judiciary suffered profoundly when the division of power was destroyed, and as a result, many judges who did not yield to political pressure were dismissed from their positions. She emphasized the importance of creating the Association of Judges of Serbia and the significance of its role throughout this very bad time.

With the assistance of Professor Daniel Gervais, the Law School Liaison for ICJ Canada, Judge Dicic spoke at several law schools, beginning with the McGill Law School, where Professor Armand de Mestral organized and welcomed her visit. With the collaboration of Professor Ed Ratushny, President of ICJ Canada, Judge Dicic then spoke to law students and others at the University of Ottawa law school. A dinner in honour of Judge Dicic was also organized in Ottawa, where local members of ICJ Canada, a representative of the Embassy of Serbia and Montenegro, and other guests were able to engage in lively discussion with Judge Dicic on a range of topics.

During her stay in Canada, Judge Dicic was also invited, along with Judge Michèle Rivet, to speak at the Annual Conference of the Canadian Institute for the Administration of Justice at the Banff Centre. She also managed a stop in Calgary to meet with high school students. The Honourable Rosemary Nation of the Court of Queen’s Bench of Alberta has provided a detailed account of Judge Dicic’s visit to Alberta for this Newsletter (see Local meetings held across Canada).

Collaboration with the Council of Europe, Strasbourg and the École Nationale de la Magistrature, Bordeaux and Paris
In order to enhance the harmonization and integration of European court efficiency and human rights standards in the Southeast Adriatic countries, ICJ Canada’s Project is linked to other regional organizations, specifically the Council of Europe, with which Canada acquired official observer status in 1996. Working in close collaboration with the Council of Europe in each of the countries and at the regional level is of the utmost importance because it permits ICJ Canada to promote the harmonization of national domestic laws with European standards within all the countries. Collaboration with the Council of Europe has already been instigated in the current Project through a series of meetings and discussions with the two main Directorates in Strasbourg. On May 3, 2004, Judge Michèle Rivet and Me Manon Montpetit met with Mr. Pierre Henri Imbert, Director General of Human Rights (DG II); Mrs. Svetlana Kostadinova-Schall from the Human Rights Cooperation and Awareness Division; and Mr. Jean Claus and Mr. Philippe Biju-Duval from the Directorate of General Legal Affairs (DG I). The likely participation of ICJ Canada in seminars or a round table organized by the Council of Europe has been suggested for October and December 2004, as well as in a future phase of the Project. ICJ Canada has also established links with the École Nationale de la Magistrature – Centre de Bordeaux and Paris in France, where curricula for permanent education have been implemented for several years. The possibility of future collaboration and sharing of resources to build an effective program of activities between ICJ Canada and the École Nationale de la Magistrature was discussed in meetings between Judge Rivet and representatives of the École Nationale in Bordeaux and Paris in May 2004.

Summary of activities in the field

Within the context of its activities in the fields of independence and impartiality of the judiciary, specific themes were developed in the Project’s curriculum, including the critically important human rights education. The judiciaries of Croatia and Serbia and Montenegro have faced many phases of reform in the last few years. Croatia became a member of the Council of Europe in 1996, and Serbia and Montenegro became a member in 2003. Because it is necessary to secure respect for and protection of human rights in Croatia and in Serbia and Montenegro, and to ensure that these countries conform to international and European human rights standards, the Project has undertaken to develop a program on human rights training for the members of the judiciary. The fact that a greater understanding of human rights issues in the judiciary would contribute to the achievement of democratic reforms and to the establishment of legal security and the rule of law was also an important consideration

Series of three human rights seminars
The Project selected 25 local judges from each country to attend three intensive three-day training seminars in the field of human rights. Through these seminars, the judges from the Southeast Adriatic countries have gradually been made aware of the importance of international, regional, and domestic instruments designed to ensure the protection of human rights and freedoms. The first seminar in Croatia and in Serbia and Montenegro took place in September 2003, the second in December, and the third in April-May 2004. This staggered schedule allowed participants to assimilate and integrate new elements into their day-to-day work. For each seminar, conference speakers included both local experts, from within and outside the judiciary, and Canadian judges.

The Canadian delegation for the first seminar was composed of Judge Michèle Rivet, who addressed equality rights and protection against discrimination; Judge René Dussault of the Quebec Court of Appeal, who addressed the topic of national minorities protection in Europe and in Canada; and Judge Kathryn Neilson of the Supreme Court of British Columbia, who explained the right to gender equality. Me Caroline Meilleur, Project Director, and Me Manon Montpetit, Deputy Director, were also part of the delegation.

The themes of the second seminar were the freedoms of speech and of the press, the right to privacy, and the limitation clauses associated with each. Canadian judges conducted this phase of the Project through workshops on European Court cases. Judge Rivet, Chief Justice Catherine Fraser of the Alberta Court of Appeal, and Justice Doug Campbell of the Federal Court of Canada conveyed the Canadian perspective on and approach to those rights and freedoms, which are protected under our Constitution. In light of the similarity between the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights and both Charters of Rights in Croatia and in Serbia and Montenegro, this approach allowed Canadian judges to extend their analysis to the same rights protected under the European Convention. The experience acquired by the Canadian judiciary since the adoption of the Canadian Charter has been of primary importance to the participants in these workshops.

The Canadian delegation for the third seminar included Judge Rivet, who explained the Canadian experience of working with international mechanisms for the protection of human rights; Judge Jean-Louis Baudouin of the Quebec Court of Appeal, who discussed enforcement problems and remedies available in cases of violations of protected rights and freedoms; and Judge Robert Sharpe of the Ontario Court of Appeal, who addressed human rights protection within educational and social contexts.

Through these seminars, ICJ Canada has undoubtedly contributed to the development of a human rights culture in the Southeast Adriatic countries. Local judges have been able to take increasing responsibility for their own judicial education and for tackling problems, and they will gradually be able to take a leading role in the development and implementation of human rights training within their own institutions.

As a follow up to the three seminars, a regional conference, comprised of judges, law professors, lawyers, and representatives from NGOs and international organizations working in Serbia and Montenegro, Croatia, Bosnia Herzegovina, Slovenia and Macedonia, will be held in October 2004, in order to introduce the educational program to a wider audience and to present the model developed during the intensive seminars.

The Project also intends to publish legal articles to serve as both a source for future reference and a legacy of the project. The contents of these publications will be determined in close collaboration with the local judiciaries of both Croatia and Serbia and Montenegro as well as with our local partners in each country and with the advice of Canadian judges.

Because concrete alternatives must be developed to solve the difficulties that all judiciaries in the Southeast Adriatic countries are facing, including longstanding backlogs of cases, the Project has established four pilot courts in the region. In addition, alternative dispute resolution and mediation have been introduced to address a crucial need to improve the efficiency of the courts in Serbia and Montenegro and in Croatia. Ultimately, new mechanisms and tools must be introduced uniformly into justice systems to improve efficiency in order to bring Serbia and Croatia into line with European and international standards. Due to Canada’s widely recognized expertise in all these areas, ICJ Canada’s Project has been crucially important in this field.

Series of two court efficiency seminars
In May 2003, ICJ Canada established a Pilot Courts Project in order to increase judges’ leadership in changing daily practices and to promote institutional improvement of court efficiency.

Throughout its field presence in both Croatia and Serbia and Montenegro, ICJ Canada has observed that practical implementation has to be promoted and supported and that modern court management techniques and case management tools must be reinforced. In order to achieve these objectives in Serbia and in Croatia, two pilot courts have been selected in each country. The Pilot Courts Project was created to provide exchanges between Canadian, Serbian and Croatian judges in order to tackle the particular problems hampering the efficiency of their courts and to implement different mechanisms to enhance efficiency and expediency.

The Project established a program of collaboration with 20 judges assigned to each of the four courts. With the involvement of their Presidents, the Pilot Courts Project organized for each court two main training sessions addressing mediation within the court, caseload management, court administration, pre-trial conferences, and skills development.

Because neither of the Croatian courts had participated in a long-term international project before, ICJ Canada held an introductory preparatory conference before focusing on new models and techniques. This specially prepared conference for the pilot courts of Croatia took place in May 2003. The Canadian delegation was made up of Judge Michèle Rivet, Chief Justice Michel Robert of the Quebec Court of Appeal, Judge Danielle Grenier of the Superior Court of Quebec, and Me Caroline Meilleur.

The first series of seminars on court efficiency was held in June 2003 in the two pilot courts of Serbia, and in September 2003 in the pilot courts of Croatia. The Canadian delegations for the two first seminars included Judge Michèle Rivet, Judge Melvin Rothman of the Quebec Court of Appeal, Judge Ginette Piché of the Superior Court of Quebec, Judge William Kelly of the Supreme Court of Nova Scotia, and Me Caroline Meilleur. Also part of the delegation was Me Randall Richmond, Deputy Chief Prosecutor for Organized Crime in Quebec, who provided an overview of the Quebec experience in dealing with organized crime. This round table brought together all judges appointed to the organized crime division of the District Court, representatives of the Ministry of Justice, and Supreme Court judges.

Following the intensive discussions of the first seminars, judges from Croatia and Serbia worked for six months to put in place techniques and methods to solve the problems that had been identified. During this time, a strategy for monitoring progress was established with the participating judges of each court.

The Canadian judges who attended the second seminars were there to evaluate the judges’ experience in implementing their own recommendations and to promote knowledge of specific mechanisms to improve court efficiency, particularly the skills associated with mediation. During these second seminars, the Croatian and Serbian judiciaries shared the results obtained and the difficulties encountered. The delegation for the March 2004 seminars was composed of Judge Michèle Rivet, Judge Ginette Piché, Judge Ted Scanlan of the Supreme Court of Nova Scotia, Me Bernard Grenier, retired judge of the Court of Quebec, Me Caroline Meilleur, and Me Manon Montpetit.

A final regional Conference was held June 17-20, 2004, to present to a wider audience the results achieved by each court during the project. This audience was composed of members of the judiciaries, lawyers, and representatives of international and regional organizations, as well as state institutions from Serbia and Montenegro, Croatia, Bosnia Herzegovina, Macedonia and Slovenia.

The published results of the Pilot Courts Project and the legal publications on court efficiency are now available.

One-week seminar on mediation in Canada
In the early stages of the Project, Serbian judges targeted mediation and alternative dispute resolution (ADR) as the priorities to be addressed. Within this context, the Project defined a specific framework to target ADR as a means to improve court efficiency in Serbia. Building on its Pilot Courts Project, ICJ Canada invited a core group of ten Serbian judges and lawyers to a one-week intensive seminar in Montreal in October 2003, to introduce them to Canadian models of mediation and ADR. This seminar enabled Serbian judges and lawyers to enhance their knowledge of ADR models and to assess the possibility of using this process in Serbia.

The seminar was presented by Canadian experts, including members of the Canadian judiciary and lawyers specializing in mediation, who laid out the Canadian approach to mediation, explained its successful adaptation in Canadian judicial matters, and provided an introduction to the practical skills required of mediators. Both Presidents of the pilot courts in Zrenjanin and Belgrade were among those who attended this seminar in order to improve their knowledge and identify specific tools to be implemented in their own courts.

Future activities
ICJ Canada’s Project to support the Independence and Impartiality of the Judiciary in the Southeast Adriatic Countries has accomplished a great deal of work and has organized many activities in the past two years. Furthermore, the positive outcomes of the last five years’ involvement have paved the way for future, more in-depth activities in the field of independence of the judiciary, human rights protection, and court efficiency. Conditional to agreement funding from CIDA, ICJ Canada intends to continue to deliver its activities in the Southeast Adriatic countries for a four-year period, within the context of a new phase of the Project due to begin on January 1, 2005.