Ι
On November 28, 2023, a draft law of the Ministry of Justice entitled: ” Interventions in the Criminal Code and the Code of Criminal Procedure to speed up and improve the quality of the criminal trial […] ” was put into public consultation.
Among the declared (legitimate) aims of the legislator: ” the acceleration and qualitative upgrading of the criminal trial “.
Among the (indicatively) proposed means: ” the transfer of the judicial matter of the misdemeanor court and the court of appeal from multi-member courts to small-member courts”.
The (at first sight, logical) stated reasoning: “the same number of judges […] can set up more courts and thus a multiple number of cases can be heard “.
The above legislative initiative concerns: (a) the more general issue, the, from a numerical point of view, composition of the criminal courts and (b) the more specific question: single or multi-member criminal courts?
Legal theory has rulled: “the advantages of the multi-member criminal court” do “outweigh the dissadvantages” (see N. Androulakis, Fundamental concepts of criminal proceedings, A. N. Sakkoulas, 1994, p. 105 ff.).
In the recent past, the establishment of single-member courts of appeals for the adjudication of felonies was discussed with particular acuity: they were established, but with limited competence.
This debate, in the end, was not closed and is being “rekindled” with the proposed transfer of important material to the jurisdiction of these courts.
In addition to this, however, for the first time, generalized material competence of the single-member misdemeanor court is proposed, which will adjudicate all misdemeanors, except for (although important, but few) exceptions.
This is an innovation: cases that are particularly complex in terms of evidence, for which a prison sentence of up to 5 years is threatened, will be tried for the first time by a single judge.
The proposed change is assessed as major and should be discussed, since it potentially concerns a large (perhaps the largest) part of everyday delinquency, and a correspondingly large number of people are involved, either as perpetrators or as victims. The present article constitutes a small contribution to this discussion.
ΙΙ
Although the legislator sets a dual purpose (: speeding up and qualitatively upgrading), they nevertheless justifiy only one (: the speeding up of the process).
No one (not even the legislator) claims that the single-member composition in itself constitutes “upgrading the criminal trial”.
The admittedly increased “sense of responsibility” of the single-member composition harmonizes with and transforms into “freedom and independence of opinion” within the more fruitful, corresponding, multi-member one (see N. Androulakis, p. 106-107).
The advantages of the single-member composition are said to be primarily of an economic nature. This, however, must be proven.
However, the legislator does not provide statistics which prove that indeed the single-member composition adjudicates faster (: acceleration) and more correctly (: quality upgrade) the same highly complex case by a three-member composition.
In this case, speed is assumed to occur simply as a result of freeing up and redistributing existing human resources.
However, to date the draft law is not accompanied by the necessary, in our opinion, plan for the practical implementation of the proposed section:
how many judges, currently of three-member courts, will be freed up in order to set up single-member compositions and with what criteria but also in which chambers and with what secretarial support, at the moment when the three-member misdemeanor court is maintained (albeit deforested) both as a first instance (with adjudication in the second instance by a single-member composition court of appeal) as well as an appellate court? What are the benefits and costs (economic and social) of all the changes? Is the change positive?
The legislator bears the burden of proving that the instrument they propose achieves the dual purpose they proclaim, that the social footprint and economic cost of this initiative is positive, much more so when it is carried out by a technocratic – in the sense of non-ideologically anchored – approach ⸱ otherwise, they are exposed to the criticism that they turn (without being in their intentions) a sloppiness of the executive power into a problem of the judiciary and its officials and co-officials.
ΙΙΙ
The debate is just beginning, and the arguments that are and will be formulated relate, in addition to the above, to the extent to which the specific legislative initiative is consistent with the principles, values, rights, rules and provisions of criminal and constitutional law order, which could be summed up in the question: is it theoretically and systematically consistent but also juridically correct and safe for a single judge to rule on a complex, particularly discreditable act?
The answer to the question cannot but take into account research coming from the field of psycology, that highlights how we perceive the world, recall events and form judgments, and how vulnerable we are to errors and misinterpretations along the way (see L. Mlodinow, Under the Threshold, University Press of Crete, 2021).
But we choose to close by answering a different question: is it reasonable for a single judge to rule on a complex, particularly dispicable act ?
Logic precedes any other assessment: the latter (should) be absent when the former is not established. So what does simple common sense tell us?
Let’s say that judge X decides more often correctly, at least 60% of the time, and acquits the one who should be acquitted and convicts the one who should be condemned.
If judge X is on a three-member panel, then, taking into account all possible negative cases (: two of the three panel members are wrong but the third is not, and all three panel members are wrong) the probability of an “error of the majority” is already decreased by 5% (see L. Zourou, When Hodjas met Einstein, University Press of Crete, 2019, pp. 80-81).
In other words, where judge X alone used to get 60% right, when they judge with two others together, they get 65% right together, even when all three are wrong.
The above indicative improvement is obviously important: the percentage of wrong criminal decisions must (from a logical and juridical point of view) be annihilated, and the multi-member compositions, in the first and second degree, make a key contribution to this.
Logic cannot help but want (and the State cannot but must ensure that) the chances of the judge being exposed to the inevitable choices are minimized, especially the conviction of an innocent person, but also the acquittal of a guilty person. Otherwise, the first negates itself and the second undermines itself.
The above is a “dry” way of expressing the benefit of logic that comes from simply co-deciding, which can be reasonable assumed that it is magnified when it is preceded by a fruitful dialogue – a conference in this case.
The above calculation can only give the opposite results if the basis is different: only if the X judge wrongly decides more times. Then, and only then, does the three-member composition mean that the possibility of “majority error” increases and the advantage becomes a disadvantage.
Conclusion: since we start from the assumption that judge X decides correctly most of the time, we can only defend multi-member compositions for complex and highly dispicable acts. Common sense wants them to be preserved.
Primarily, however, multi-member compositions, in complex and highly discreditable acts (and such are now also misdemeanors) constitute a necessary procedural guarantee of correctness, proof of the social body’s trust in the judges that they decide correctly most of the time and a practical manifestation of the State’s care so that they decide correctly on even more.
George Karanikolas
Senior Associate
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 24th, 2023).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.