Central and East European Law Initiative, by American Bar As

Re: American Bar Association: Central and East European Law

Postby admin » Tue Jun 20, 2017 3:50 am

MACEDONIA

I. INTRODUCTION


CEELI's program in the former Yugoslav Republic of Macedonia is relatively new. CEELI first held discussions with Macedonian Government officials in Fall 1992, and later in the year CEELI agreed to send a resident liaison to Skopje, Macedonia's capital city. In late January 1993, Lisa B. Dickieson was posted as CEELI's first liaison to Skopje. Ms. Dickieson resided there until late April 1993, and was succeeded by Barbara Cavanagh. Ms. Cavanagh worked in Skopje until early July, when she was replaced by George J. Farrell. Mr. Farrell will remain in Skopje until early 1994.

II. SUMMARY OF CEELI ACTIVITIES IN MACEDONIA, JANUARY - AUGUST, 1993

A. Resident Liaison Activities to Date


During initial exploratory meetings with CEELI, Macedonian officials identified a number of rule of law issues on which CEELI assistance might be provided. Despite their initial request for assistance, however, little groundwork apparently was laid for the arrival of CEELI's first liaison. Upon their arrival, Ms. Dickieson and her successor devoted much of their time to developing local contacts, explaining the purposes and capabilities of CEELI, and working to identify specific rule of law projects in which CEELI can become involved (as well as becoming acquainted with individuals who can work with CEELI on a regular basis).

Specifically, while in Skopje Ms. Dickieson and/or Ms. Cavanagh met and discussed CEELI's program with:

• Various Government ministers, including the Minister of Justice and Administration; the Minister of Development; the Minister of Planning, Civil Engineering, Telecommunications, and Environment; the Minister of Internal Affairs; and several "Ministers without Portfolio"
• Various legislative branch officials, including the President of the Assembly; the Secretary of the Assembly; and members of the Assembly
• Representatives of the Public Prosecutor's office
• Judges at all levels of the Macedonian judiciary (including the president and justices of the Constitutional Court, who have expressed a strong interest in judicial independence issues) [26]
• Macedonian "solicitors, " and the President of the Bar Association (or Solicitors' Guild) of Macedonia [27]

Additionally, both Ms. Dickieson and Ms. Cavanagh responded to numerous requests for information and written materials on a variety of legal topics, including the American judicial system, American legal education, U.S. regulation of the securities and banking industries, and the U. S. tax system.

Ms. Dickieson also observed sessions of all levels of Macedonian courts, and gathered extensive information regarding the current structure of the Macedonian judicial system. In June, Ms. Cavanagh spoke at a conference of the Association of Business Lawyers of Macedonia, regarding the role of the lawyer in a private market economy.

Since his arrival in Skopje in July, Mr. Fanell has had introductory meetings with many of CEELI's governmental contacts, with the acting USAID representatives, Ronald Nicholson and James Grossman, and with the Director of the USIS Center, Susan Krause. Based upon these meetings, he has identified several projects for which CEELI assistance is desired, and has helped CEELI to develop its long-range strategy for Macedonia. During the coming months, he will work to refine further and implement that strategy.

B. Draft Law Assessments

In February 1993, CEELI provided comments on a draft law on privatization, in response to a request from Jane Miljovski, an economist who serves as a Minister without Portfolio with responsibility for various economic issues. The privatization legislation recently was enacted by the Macedonian Assembly.

C. Legal Education/Sister Law School Program

While in Macedonia, Ms. Dickieson and Ms. Cavanagh met with the dean of the Law Faculty in Skopje, as well as with various law professors and with the librarians at the Law Faculty, to discuss ways in which CEELI can assist the Law Faculty as it works to restructure its programs and to build its library in response to changes in the governmental system. Ms. Dickieson and Ms. Cavanagh also discussed with the Law Faculty ways of strengthening the relationships established with American law schools under CEELI's Sister Law School Program. [28] Farrell plans to pursue these matters with the Law Faculty in the coming months.

III. RULE OF LAW COUNTRY STRATEGY FOR MACEDONIA

A. Current Status of Legal Reform


In November 1991, following its declaration of independence from Yugoslavia, Macedonia adopted a new Constitution. Since that time, it has functioned under the laws that were in place under the prior regime. To date, it has enacted only some 20 new statutes, many of which address such matters as the state name, flag, and national anthem (at least two pieces of more substantive legislation have been passed during the past several months: one on privatization, and another on the structure and functions of local government). Accordingly, little progress has been made on legal reforms of any type.

B. Priority Issues for CEELI Assistance

CEELI's work in Skopje to date has revealed that the young Macedonian state requires assistance on a very broad range of rule of law reforms. While acknowledging this fact, however, CEELI's hosts from the outset have repeatedly focused on the young country's urgent need for assistance on a variety of economic issues (including, for example, reforms to the tax, banking, and insurance systems, and creation of a stock market/securities system). Moreover, at the time of CEELI's arrival in-country last January, its governmental hosts had not identified any specific rule of law projects on which CEELI assistance was desired, or any specific individuals with whom CEELI could work on a regular basis. Accordingly, one of CEELI's highest priorities in Macedonia continues to be the establishment of a working group comprised of representatives of the Government, the Law Faculty, and the Macedonian bar, that can identify and prioritize specific projects for which CEELI's assistance is desired and feasible.

In the meantime, as a result of its ongoing exploratory discussions with Government officials, judges, academics, and members of the bar, CEELI has identified the following rule of law issues on which it hopes to provide assistance over the next six months. CEELI's primary method of providing assistance during this period will continue to be via the work of its resident liaison in Skopje; as discussed below, CEELI also plans to send a legal Specialist to Skopje to work on ethnic minority issues. [29]

1. Priority Issue #1: Equal Rights/Ethnic Minority Issues

(a) Goal Statement


CEELI's goal is to assist the Macedonians as they seek to draft, enact, and implement laws and regulations that ensure equitable treatment of the various minority groups that comprise the Macedonian populace.

(b) Factual and Legal Background

For the nearly six centuries that the geographic region comprising "Macedonia" was under Ottoman Turkish rule, ethnic Albanian Macedonians, a largely Muslim population, enjoyed a prominent and privileged position. In the modem-day Former Yugoslav Republic of Macedonia (which covers only one part of the Ottoman Macedonian administrative region), ethnic Albanians make up a minority of the population (they are estimated to comprise between 20 and 40 percent of the total population of over two million), while ethnic "Macedonians" (Macedonians of Slavic ethnicity, mainly Orthodox Christians) are in the majority (comprising approximately 60 to 70 percent of the population). Most ethnic Albanian leaders claim that Albanians are significantly under-represented in the current Government; at this time, there are 23 Albanian members of the 120-member Assembly, and five Albanian ministers among the 27 members of the Government (which is made up of a coalition of various parties). [30]

Because of its central Ballcan location and mixed ethnic population, the territory comprising the Former Yugoslav Republic of Macedonia historically has been the source of much dispute and several wars involving Greece, Bulgaria, Serbia, and Albania. Nationalists in each of these countries envision the territory that now is part of the former Yugoslav Republic of Macedonia completing their respective national domain: Greek nationalists regard Macedonia as the legacy of Alexander the Great and part of its own northern province of "Macedonia;" Bulgarian and Serbian nationalists see Macedonia as a historic part of their respective Slavic domains; and Albanian nationalists see Macedonia as part of a "Greater Albania." Both ethnic Albanian and ethnic Macedonian leaders have said they wish to preserve the Republic's independence in the face of these outside pressures, but some ethnic Macedonians claim that ethnic Albanians are interested only in secession.

The new Macedonian Constitution provides that "Macedonia is constituted as the national state of the Macedonian people, in which the integral civil equality and enduring coexistence of the Macedonian people with Albanians, Turks, Wallachians, and Gypsies and other nationalities inhabiting the Republic of Macedonia are protected." [31] It also states that "[c]itizens of the Republic of Macedonia have equal rights and freedoms regardless of sex, race, color of skin, national and social origin, political or religious beliefs, or property ownership and social status. . . . All citizens are equal before the Constitution and the law." [32]

Notwithstanding the guarantees set out in the Constitution, however, the Albanian minority has asserted that existing laws and their implementation discriminate against them as a group. Thus, ethnic Albanians complain that there is no Albanian-language university and little Albanian-language instruction at the primary and secondary levels of education. They also claim the right to use their national symbol, the flag of Albania -- a move ethnic Macedonians see as paving the way for secession.

The Albanians also protest blatant, national manifestations of ethnic Macedonian culture, (e.g., the depiction of Orthodox Christian churches on the country's new currency). The ethnic Macedonian and Albanian cultures (faith, traditions, language, even alphabet) are so radically different as to make misunderstandings frequent and serious. Neither group mixes readily with the other.

(c) Priority Project Identified by CEELI

The Center for Ethnic Relations, which is a branch of the Macedonian Institute for Sociological, Political and Juridical Research of the University of Skopje, conducts research on legal and educational issues affecting ethnic minority rights, organizes seminars, lectures, and conferences on such issues, and assists in the preparation of legislation on such issues. In July 1993, the head of the Center, Dr. Emilija Simoska, requested that CEELI provide a Legal Specialist to come to Skopje for a two to three month period to assist in analyzing existing laws regarding minority rights and in "constructing models for their improvement."

The role of CEELI's specialist presumably would be to review existing laws on ethnic minority rights, and make recommendations regarding (a) the need to implement such laws more effectively; (b) the need for additional laws; and (c) the need for programs (to be co-sponsored by government and private agencies) aimed at fostering greater inter-ethnic tolerance. Additionally, pursuant to Dr. Simoska's suggestion, the Specialist also would lecture on the subject of ethnic minority rights.

In addition to Dr. Simoska, CEELI's governmental hosts in Macedonia have repeatedly expressed an interest in having CEELI provide assistance with the "ethnic minority issue." The significance of the instant request from Dr. Simoska is that: (a) it has been requested by the academic community in apparent cooperation with the Government; (b) the University created the Center for Ethnic Relations specifically to undertake a program of this nature; (c) a significant part of the initiative is already underway, as factfiders are presently gathering data for the project; [33] (d) it compliments specific constitutional provisions aimed at securing human rights; (e) it is very timely, because it will precede or be contemporaneous with the drafting of legislation to implement the Constitution; and (f) hopefully, it will create a benchmark for the BaIkans.

In view of CEELI's access to American practitioners and academics knowledgeable in the field of the law on equal rights, CEELI is well-suited to provide the requested specialist. The magnitude and urgent nature of the problem at issue -- the treatment of ethnic minority groups in Macedonia -- make the project a high priority.

(d) Benchmarks - Targeted Areas of Improvement

This project can be broken down into the following benchmarks:

(i) Compilation and Translation of Existing Laws/Recruiting of Legal Specialist

During the first phase of the project, CEELI's liaison in Skopje will work with Dr. Simoska in-country to identify and have translated all existing law related to the treatment of ethnic minority groups in Macedonia. CEELI contemplates that this phase of the project will require eight to ten weeks to complete.

During this same time period, CEELI's Washington office will recruit and interview candidates for the specialist position, and will select the specialist.

(ii) Review of Laws in U.S./Gathering of Additional Facts In-Country

During the second phase of the project, the specialist will (while still in the U.S.) review existing Macedonian law, and become knowledgeable about the historic bases for inter-ethnic tensions in Macedonia.

During the same time period, CEELI's liaison in Skopje will seek to establish contacts with individuals, groups, and government officials in Macedonia who are knowledgeable about the ethnic minority problem there, and to gather additional information about the issue from these contacts. Of particular importance during this phase of the project is the forging of ties in Skopje with government officials responsible for ethnic minority/equal rights issues.

(iii) In-Country Work

During the third phase of the project, the specialist will travel to Skopje, where he/she will work directly with officials at the Center for Ethnic Relations and with other knowledgeable contacts (established by the liaison, see above), to (a) gain additional insight into the nature of the problems confronting the Macedonians; (b) gain additional insight into existing law; (c) consult on a daily basis and provide the Macedonians with information about American (and other countries') "equal rights" law; and (d) prepare a written report containing a description of the problems confronting the Macedonians and recommendations for addressing such problems. Additionally, while in Macedonia the specialist may (if requested) lecture on the topic of ethnic relations.

(e) Intended Result /Impact

The Macedonians acknowledge the existence of an "ethnic minority" problem, and have expressed an interest in having CEELI provide technical legal assistance on this issue. In view of the deep-rooted, historic bases for the problem, an ethnically diverse, harmonious society cannot be created overnight. However, establishing solid legal bases for equitable treatment of all ethnic groups in Macedonia is a crucial first step towards better inter-ethnic relations. This project will help to focus the Macedonians on the concrete steps that need to be taken to create the legal bases needed to protect minority rights.

2. Priority Issue # 2: Criminal Justice (In Developmental Stage)

The Ministry of Internal Affairs, Ministry of Justice, and Public Prosecutor's Office share responsibility for law enforcement and criminal justice in Macedonia. The Minister of Internal Affairs, Ljubomir Frckoski, a young, energetic former law professor, recently approached CEELI's liaison and discussed with him the possibility of obtaining assistance on a number of issues currently confronting his Ministry. Specifically, he has expressed interest in advice on, inter alia, coordinating the work of the Ministry with the Public Prosecutor's Office; how to train members of the police force to deal equitably with suspects, without regard to ethnic background; and how to balance certain individual rights granted in the Constitution (such as the guarantee of the free "reception and transmission of information") with the Ministry's duty to enforce the law.

Mr. Farrell currently is working with the Ministry of Internal Affairs to identify specific projects related to the above issues on which CEELI assistance may be appropriate. In the meantime, however, the Ministry has asked Mr. Farrell to participate in the planning and presentation of a seminar/conference that it is being planned for this fall. While the issue(s) to be addressed at the seminar are still being developed, some of the issues listed above may be included. The Ministry of Internal Affairs is sponsoring the program, but the Ministry of Justice, Public Prosecutor's Office, and the Law Faculty also are expected to participate. Mr. Farrell's participation in the program will provide an excellent opportunity to establish closer working relationships with the Macedonians, and to more sharply define the criminal justice issues on which assistance is needed.

3. Priority Issue #3: Reform Related to the Practice of Law (In Developmental Stage)

As noted above, CEELI's liaisons have established contacts with various private practitioners in Skopje, and with the Bar Association there. CEELI's contacts have expressed a strong interest h assistance on various issues related to the reform of the practice of law in Macedonia (these issues include the role of the bar in providing continuing legal education to its members; the role of private practitioners in a democracy; legal ethics; how to increase the stature of lawyers in the society; and how to control the unauthorized practice of law). Accordingly, Mr. Farrell currently is working to identify specific projects in this area on which CEELI assistance may be provided.

4. Priority Issue # 4: Judicial Reform (In Developmental Stage)

As noted above, the President of Macedonia's Constitutional Court has expressed strong interest in CEELI assistance in connection with Macedonia's efforts to develop an independent judiciary. Mr. Farrell will continue to investigate the current status of reforms on this issue, and to explore ways in which CEELI can provide direct assistance.

5. Priority Issue #5: Legal Education/Law Faculty Reform (In Developmental Stage)

CEELI will continue to explore, with officials at the Law Faculty, concrete ways of providing assistance to the Law Faculty as it seeks to restructure its programs and establish communications with Western law schools.

Additionally, Minister Jane Miljovski recently proposed that a new course be created, in the nature of a "continuing education" course for practicing lawyers and government officials, addressing legal issues raised by the changes to the government and economic systems. Minister Miljovski has suggested that the course be held at the Law Faculty, and that CEELI participate in its planning and implementation. Mr. Farrell plans to explore this matter further.

6. Priority Issue # 6: Legislative Assessments - Economic Reform

As noted above, CEELI's Macedonia hosts repeatedly have requested assistance on a wide variety of economic issues. In the past, CEELI has provided written comments on , Macedonia's draft privatization law, and in response to a recent request from the Minister of a Finance it will in the near future provide comments on four key pieces of tax reform legislation.

In response to a request from the Ministry of Development, CEELI also will assess a draft law on public enterprises, and a draft law on the stimulation of underdeveloped areas of Macedonia.

7. Additional Potential Issues

During the past several weeks, CEELI's Macedonian hosts have suggested to Mr. Farrell that assistance on various additional matters may be needed, including: (a) the drafting of a new "administrative code;" (b) regional planning and restructuring; and (c) legislation on "public enterprises" and on the "stimulation of underdeveloped areas of Macedonia." Additionally, CEELI has been asked to assist with the legal aspects of a proposed USIS project aimed at establishing regional centers that would teach short-term courses in small business management.

CEELI will provide written comments on the legislation identified above, and Mr. Farrell is exploring possible CEELI involvement in the remaining projects. [34]

C. Conclusion

Although CEELI's assistance program in Macedonia is relatively new, CEELI believes it is well-positioned to strengthen the infrastructure needed to ensure a functioning legal system based upon the rule of law, by building an independent judiciary, an equitable criminal justice system, and a well-organized, professional bar.

CEELI's work also will help to establish the legal bases for the equitable treatment of ethnic minorities in Macedonia. In this regard, the present crisis in Bosnia stems from the very issues to be addressed by the project developed by the Macedonian Center for Ethnic Relations. It seems reasonable to assume that, if similar work had been done with regard to the problems in the North, a different result might have ensued. CEELI views it as critical that these pressing human rights issues be addressed in an academic environment with the type and nature of support as has been expressed by the leading political figures in the Macedonian Government.
_______________

Notes:

26. CEELI has provided the Constitutional Court with (1) materials compiled for a February 1991 CEELI workshop on the independence of the Yugoslav judiciary, including criteria for selecting judges in the United States; (2) procedural rules used in the U.S. Supreme Court; (3) ethical rules for lawyers and judges; and (4) information about U.S. Supreme Court decisions on issues such as human rights, freedom of speech, and discrimination.

27. This quasi-official group speaks on behalf of all lawyers who have passed the bar examination and who represent private clients.

28. The Law Faculty in Skopje has been paired with law schools at the University of Baltimore, New York University, and the University of Dayton.

29. In addition to continuing its rule of law work in Skopje, CEELI would like to explore with USAID the possibility of expanding its work in Macedonia to encompass much-needed commercial law assistance.

30. The most recent census in Macedonia apparently was in 1991. It may not have accurately reflected the number of ethnic Albanian Macedonians, because of low Albanian participation (many Albanians either refused to participate or were unable to do so because the census forms were not available in Albanian). Accordingly, the number of ethnic Albanians may actually be greater than the census results indicate.

31. Id. at "Preamble. "

32. Id. at Article 9.

33. Dr. Simoska and her staff already have begun to assemble demographic data regarding the ethnic composition of their country's population; the existence and effectiveness of existing statutes and programs; and the attitudes toward ethnic issues of Macedonian citizens.

34. Mr. Farrell also is exploring the possibility of assisting the Macedonians on various other matters, including the following: (1) developing conflict of interest guidelines for government officials (including Assembly members and judges); (2) developing a program aimed at encouraging operation of a free press; and (3) developing some type of governmental body aimed at ensuring coordination of legislative initiatives.
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Re: American Bar Association: Central and East European Law

Postby admin » Tue Jun 20, 2017 4:07 am

POLAND

I. INTRODUCTION


During the week of December 16-21, 1991, CEELI undertook an ambitious project to determine the current state of events within the Polish legal community as a barometer of existing motivation and need for technical assistance. Stanley Glod, Chair of the CEELI Working Group on Poland and fluent Polish-speaker, held discussions with leaders of the organized bar, law schools, the Supreme Court, the Parliament, and various government agencies to plan for and coordinate future CEELI assistance to Poland.

Mr. Glod first met with Dr. Aleksander Ratajczak, President of the Polish Lawyers Association. The Polish Lawyers Association is a national voluntary membership organization consisting of approximately 8,000 lawyers. It is dedicated to improving the overall standards and ethics of the profession, promoting respect for the law, and cooperating with national and international institutions that strengthen these goals. Although formerly a Communist Party organization, the Polish Lawyers' Association has been transformed into a reform-minded organization, due largely to efforts of a group of young Polish lawyers and judges in Warsaw. These discussions led to CEELI's participation in a conference in Poznan in May 1992 on money laundering and other economic crimes issues.

In Krakow, Mr. Glod held meetings with President (Mayor) Krzystof Bachminski, Vice- Mayor Jacek Fitt, Stanislawa Szumlinska, Treasurer of the city of Krakow, and Professor Andrzej Pankowicz of the Jagiellonian University. The session resulted in a proposal for a CEELI workshop, co-hosted by Krakow officials and the Jagiellonian University, to focus on local self-government issues, and the posting of a CEELI legal specialist to Krakow.

Finally, Mr. Glod conferred with parliamentary (Sejm) officials, the President and Vice- President of the National Administrative Tribunal, and representatives from other Ministries and government agencies. These meetings let to the posting of the CEELI liaison at the Sejm's Bureau of Research.

II. SUMMARY OF CEELI's ACTIVITIES IN POLAND, APRIL 1991-AUGUST 1993

A. Resident Liaison Activities


Bozena Sarnecka-Crouch served as CEELI's first on-site liaison in Poland from February 1992-January 1993. J. Larry Mabry succeeded Ms. Sarnecka-Crouch and intended to remain in Poland for a full year; however, he returned to the United States after two months because of a medical emergency. Currently, Vera Hartford is CEELI's resident liaison in Poland. She will be posted in Warsaw until May 1994. CEELI's liaisons have completed numerous projects in Poland, including the following:

• Distributed materials on the U. S . Administrative Conference and the protection of minority stockholders to the Legislative Council of the Council of Ministers (May-June 1992).
• Provided a summary of U.S. law on public service companies and utility ownership to a Member of Parliament (May 1993).
• Wrote an extensive report on Poland for a publication [35] on "Laws and Regulations on Public Participation in (Environmental) Decision-Making on Investment Projects in Central and Eastern Europe." Translated appropriate provisions of the Polish Constitution, the Environmental Act, the Planning Act, the Building Code, and other laws.
• Conducted a seminar in Warsaw in June 1992 for Polish parliamentary staffers on legal regulation of lobbying in various countries.
• Lectured to the Office of the Council of Ministers on lobbying regulations in the United States and other countries. The lecture was organized by the Section of Constitutional Law and Legislation of the Legislative Council of the Council of Ministers.
• Attended the 34th Annual Conference of University Professors of Constitutional Law in Jastrzebia Gora from May 30-31, 1992. Ms. Sarnecka-Crouch spoke about separation of powers in the Polish and American constitutional models.
• Attended numerous conferences, including the Senate Conference on Criminal Policy (June 1992); the Conference on the Private Sector in Poland (April 1992), organized by the Polish Chamber of Commerce; and the Conference on Transition to Advanced Market Economies (June 1992).
• Met with and provided information on CEELI programs and the state of reforms in Poland to various organizations and individuals who provide legal assistance to Poland.
• Prepared extensive reports on Poland's government structure and legislative process and on commercial dispute resolution (October 1992).
• Consulted with Adam Strzembosz, President of the Polish Supreme Court, regarding a possible CEELI workshop focusing on criminal law (January 1993).
• Developed a proposal with Jan Zybler, a Member of Parliament, for long-term assistance on lobbying issues (May 1993). The proposal calls for a CEELI concept paper, designed to guide the Polish Sejm in drafting laws and regulations on lobbying, followed by the placement of a legal specialist to work with the drafting committee on a final version of the bill and a possible workshop with Members of Parliament.

B. Legal Specialists

In response to requests from host countries, CEELI sponsors technical legal specialists to assist with specifically-designed legal reform projects. The specialists, who typically have substantial experience in the relevant area of law, spend several weeks observing particular aspects of the Polish legal system, meeting with government officials and attorneys, and making recommendations.

Legal Specialist for Land Use Planning and Local Government Issues

In response to the city government's request, CEELI sent William Valletta to Krakow for over two months in November 1992 to assist with land use planning, city administration and regulation, and other local government issues. For the past five years, Mr. Valletta has served as General Counsel for the New York City Department of City Planning and the City Planning Commission. Mr. Valletta consulted with all pertinent city agencies, regional planners, City Council representatives, and outside organizations working under contract with the city on planning and home-rule questions. Mr. Valletta completed several technical assistance projects, including the following:

• Assisted in developing a procedure for democratic approval of the city's master plan, consisting of a series of formal review stages by appropriate city agencies, followed by district council review, public hearings, and final review and adoption by the City Council.
• Conducted training sessions for the directors and staff of city agencies on "Planning and Decision-Making in a Democratic and Capitalistic Society." Completed final briefings and a written report on land use and regulatory decision-making for the Director of Strategic Planning and Deputy-Mayor Wladislaw Brzeski.
• Recommended an inter-agency team approach to the process of planning for individual strategic development sites.
• Reviewed a hotel proposal with the Office of International Investment. Helped prepare a World Bank application for public transport feasibility study funding.

Mr. Valletta has been asked to return for follow-up assistance by the City of Krakow, and CEELI is discussing this possibility with Mr. Valletta.

C. Technical Legal Assistance Workshops

Through its technical legal assistance workshops, CEELI provides practical legal training to judges, government officials, legislators, lawyers, legal academics, and law students. Workshops are developed through consultation with the CEELI resident liaison, AID officers, and host country representatives. The goal of CEELI workshops is to provide substantive, practical, comparative training that advocates the development of the rule of law and enhances the participants' understanding of legal principles relevant to the Polish legal infrastructure.

Technical legal assistance workshops focus on a particular substantive area of law and involve the participation of experienced lawyers, judges, and professors, usually including one from a civil law country. CEELI workshops are designed to promote energetic and open dialogue among participants and provide host countries with an in-depth, immediate analysis of critical nuances in the law.

1. Local Government Relations
April 1-4, 1992
Krakow, Poland

Pursuant to Mr. Glod's meetings in Poland in December 1991, CEELI conducted a workshop in Krakow four months later on local self-government issues. Organized by the city of Krakow and its Mayor, Krzysztof Bachminski, the workshop focused on the specific needs and problems of the local governments that were created in Poland in March 1990. Among the sixty local participants were Jagiellonian University professors, city government officials, and local self-government representatives from over twenty cities in southern Poland. [36]

2. White Collar Crime
May 18-25, 1992
Poznan, Poland

CEELI sent a delegation [37] to the Second Polish Law Days, a yearly conference organized by the Polish Lawyers Association, in May 1992. The event is designed to organize Polish lawyers to lobby in support of the rule of law in Poland. CEELI panelists discussed legal issues related to white collar crime and official corruption.

Following their participation in the Second Polish Law Days, CEELI envoys Scott Michel and Sarah Welling presented a White Collar Crime Seminar at the University of Warsaw Law School. The seminar was organized by Professor Dubrochna Wojcik, President of the Polish Society of Criminology and Head of the Department of Criminology at the Institute of Legal Studies of the Polish Academy of Science. Mr. Michel and Ms. Welling made presentations addressing criminological, sociological, and psychological issues connected with white collar crime.

3. Polish Prosecutor's Training Workshop
June 9-11 and 14-16, 1993
Popowo, Poland

One result of the political and economic transformation in Poland is that prosecutors are faced with increasing levels of white collar crime. After initial consultations with Ferdynand Rymarz, Deputy General Public Prosecutor, CEELI sponsored a workshop for public prosecutors on white collar criminal prosecution. [38]

The workshop featured an introduction to the criminal justice system and the organizational structure of prosecution in the United States. During two working sessions, participants discussed American and Polish experiences in the areas of money laundering, tax fraud, organized crime, drug trafficking, and terrorism with over 75 Polish prosecutors and judges. Finally, the prosecutors explored possibilities for broader international cooperation in combatting organized international criminal activity.

D. Assessments of Draft Laws

Another key element of CEELI's activities in Poland is the provision of written assessments of draft legislation. Through the assistance of hundreds of judges, law professors, and practitioners, CEELI gathers comments on proposed laws and compiles reports for liaisons to distribute to the agencies and individuals who are drafting legislation. The following assessments were provided to Polish officials:

• Draft Constitution July 1991
• Proposed Housing Law December 1991
• Draft White Collar Crime Law June 1992

E. Legal Education/Sister Law School Program

CEELI's Sister Law School Program promotes cooperative programs between American and Central and East European law schools by pairing each European law school with three American sister schools. Under the auspices of the Sister Law School Program, participants explore possibilities for faculty and student exchange programs, opportunities for joint research, proposals for graduate study programs, and ways in which U.S. law schools can assist Central and East European law schools with respect to curriculum development, library resources, and continuing legal education programs for law professors and deans.

1. Workshop
April 15-19, 1991
Warsaw, Poland

CEELI conducted a preliminary workshop on the proposed Sister Law School Program in Warsaw in April 1991. The participants included the deans of twenty American and Polish law schools. [39] The educators discussed approaches to teaching law, continuing legal education, and graduate legal programs from the American and Polish perspectives. The workshop focused on the needs of Polish law schools, including faculty training, graduate retraining, and library resource needs, and proposals for future joint efforts with U.S. sister schools.

2. Law Faculty Training Institute
August 30-September 13, 1992
Lodz, Poland

The Law Faculty Training Institute in Lodz, organized in conjunction with the University of Lodz and the University of Warsaw, was the first in a long-term series. CEELI created the Institutes to assist Central and East European law faculty in developing and expanding law school curriculum in substantive areas of the law. The Institute in Lodz offered intensive faculty training in intellectual property law and human rights. The participating faculty also had an opportunity to experiment with practical law school teaching techniques.

3. Participating Polish Law Schools and Their American Sister Law Schools

University of Gdansk
University of Minnesota School of Law
Notre Dame Law School
St. John's University School of Law

Silesian University
University of the Pacific, McGeorge School of Law
University of Houston Law Center
Widener University School of Law

Jagriellonian University
Cleveland State University, Cleveland-Marshall College of Law
Indiana University School of Law, Indianapolis
Fordham University School of Law

Lodz University
Villanova University School of Law
University of Alabama School of Law
Catholic University of America, Columbus School of Law

University of Warsaw
University of Florida College of Law
Saint Louis University School of Law
Capital University School of Law

Marie-Curie Klodowskiej University
Indiana University School of Law, Bloomington
Southern Methodist University School of Law
Stetson University College of Law

Szczecin University
Case Western Reserve University, Backus School of Law
University of Wyoming College of Law
University of Louisville School of Law

Catholic University of Lublin
St. John's University school of Law
St. Mary's University School of Law
Albany Law School, Union University

Nicolas Copernicus University
Southern Illinois University School of Law
Cornell University School of Law
Rutgers University School of Law

Adam Mickiewicz University
University of Toledo College of Law
Whittier College School of Law
University of Iowa College of Law

Warsaw University, Bialystok
Marquette University School of Law
University of South Dakota School of Law
University of Kansas School of Law

University of Wroclaw
Boston University School of Law
Drake University Law School Wayne State University Law School

A. Current Status of Legal Reform

The government of Prime Minister Hanna Suchocka fell in May 1993, after losing a noconfidence vote. President Walesa dissolved the Sejm. Ms. Suchocka will stay on as Prime Minister, heading a caretaker government, until the new parliamentary elections scheduled for September 12. Suchocka will continue to press the European Community for faster acceptance of Poland into its institutions.

After the September elections, CEELI anticipates receiving numerous requests from the Bureau of Research, the research arm of the Sejm, for assessments on draft legislation. The President is forming a non-party union of candidates for the Sejm. Under the new election law, representation in the Sejm is permitted only given to a party representing at least 5% of the population or 8% of the population if it is a coalition. As a result of this law, several parties are attempting to form coalitions.

In May of 1993 the lower house of the Polish Parliament approved a privatization plan that converts approximately 600 state companies into private enterprises. Although passage of the law gives economic reform a major lift and bolsters the position of Prime Minister Suchocka, foreign investment in Poland has proceeded in fits and starts. Foreign investment in Poland is still less than in Hungary or in the former Czechoslovakia. The Polish economy, however, has shown encouraging signs in the last year and has received praise from international financial institutions for its moves towards a market economy. Parliamentary passage of the privatization law was also critical for the release of new money to Poland by the World Bank and other multilateral financial institutions.

B. Priority Issues for Providing CEELI Assistance

CEELI's primary method of providing assistance in Poland is through the activities of its resident liaison, Vera Hartford. Ms. Hartford has established an excellent working relationship with various Polish government officials and she provides advice daily to their questions and is respond to their requests for further information by coordinating with the CEELI office in Washington.

1. Priority Issue #1: Polish Prosecutor Training

(a) Goal Statement


To improve the ability of Polish Prosecutors to recognize and prosecute complex economic crimes, such as organized crime, white collar crime, money laundering and similar offenses.

(b) Factual and Legal Background

As Poland's economy continues to develop, a rise in economic crime has also occurred. Reports of official corruption and organized crime are commonplace. Poland has become a haven for stolen vehicles, drug transshipment and other illegal activities. Furthermore, complex financial crimes, such as money laundering and financial swindles are increasing. Polish law enforcement officials are ill-equipped and not well-trained to deal with these issues. Moreover, under the Polish legal system, the prosecutors are expected to play a substantive role in criminal investigations.

At present, Polish Prosecutors do not receive sufficient training in sophisticated investigatory techniques, nor are they sufficiently knowledgeable in how these complex crimes are transacted.

(c) Priority Issue Identified by CEELI

As a follow-up to CEELI's workshop on white collar crime (Poznan 1992) and CEELI's Prosecutor Training Workshop (Popowo 1993), the Polish Ministry of Justice has requested additional technical legal assistance from CEELI. At this point, and after additional consultations with the industry, it appears that CEELI can best provide assistance through a resident, long-term, legal specialist. This legal specialist would be an individual with a background as a criminal prosecutor and, ideally would have some experience in adult legal education. This specialist would provide assistance and counsel to the Ministry and Parliament on the Drafting of Law to Combat Sophisticated Economic Crimes, will be able to provide practical training to Polish Prosecutors on investigative techniques, and will be able to work with prosecutors "On-The-Job" to provide prosecutor advice and consultation.

(d) Benchmarks

(i) The legal specialist will work with officials of the Ministry of Justice to determine whether sophisticated economic crimes can be prosecuted under existing Polish laws. If not, the specialist will recommend amendments or modifications to the law.

(ii) The legal specialist will organize and participate in practical prosecutor training workshops in which modem investigatory techniques and criminal theory and implementation of criminal schemes will be discussed.

(iii) The specialist will visit Prosecutor's offices throughout the country to obtain practical information on Prosecutorial issues and provide on-the-job training.

(e) Intended Results/Impact

As a result of these efforts, the Ministry will gain a better understanding of whether existing laws can be used to effectively combat economic crime. Moreover, Polish Prosecutors will receive training in modem investigatory and prosecutorial techniques.

2. Priority Issue #2: Lobbying/Conflicts of Interest

(a) Goal Statement


To assist the Polish government in preparing a pragmatic law on lobbying/conflicts of interest and to assist in informing the public and Parliament about the need or desire for such legislation.

(b) Factual and Legal Background

The concept of conflict of interest, at least as it is understood in the United States, is a completely foreign concept in Poland. As a result, legislators often are involved in relationships which, at best, appear to promote self-dealing. This perception has eroded the confidence of Polish citizens in their elected officials. Many complain that the "New Nomenklatura" are simply taking up where the communists left off.

(c) Priority Project Identified by CEELI

CEELI has been asked to provide technical legal assistance in the drafting of a lobbying law for the parliament. CEELI has provided this type of information/assistance in several of the countries of Central and Eastern Europe and the NIS. Experts identified by CEELI, private lawyers, academics, and government lawyers, are well-positioned to provide the necessary background information and practical experience to insure that a draft consistent will Poland's needs can be developed.

(d) Benchmarks

(i) CEELI will work through its liaison to identify the exact information and assistance required, and will respond accordingly.

(ii) CEELI will crate a working group to provide information and a formal assessment of the draft law.

(iii) CEELI will work with the Parliament and Counsel of Ministers to assist in a public education campaign with regard to the need for lobbying legislation.

(e) Impact

It is CEELI's intent to provide assistance and advice so that a workable, transparent lobbying statute is drafted and enacted. CEELI also hopes to disseminate information to the general public about the need for lobbying legislation.

3. Priority Issue #3: Criminal Law (In Developmental Stage)

Based upon its workshop on white collar crime, CEELI continues to identify criminal law and procedure as a high priority in Poland. Officials from the Ministry of Justice who attended the workshop have commented to our liaison that the prosecutors are interested in implementing some of the techniques discussed during the workshop, and are interested in additional CEELI training workshops.

4. Priority Issue #4: Judicial Reform/Training (In Developmental Stage)

The Ministry of Justice has expressed interest in training workshops for judges in civil courts. These judges are in need of additional training to understand the new laws and regulations that they are asked to apply.

5. Priority Issue #5: Local Government (In Developmental Stage)

CEELI is interested in assisting in the restructuring of local governments. Poland is currently trying to simplify its system of local governments in an attempt to increase the efficiency of local government. Issues concerning the devolving of power from the national government to local to local governments are very pressing in Poland. For example, our liaison has received requests for information regarding the manner in which utility companies are operated in the United States.

6. Priority Issue #6: Bar Reform (In Developmental Stage)

Legal advisor practice is one option in the two track Polish legal education system. The other track is formal "advocate" training. Approximately 4,500 advocates make up the mandatory membership of the Polish Bar Association, whose purpose is the continuing education and qualification of advocates. Realizing the growing importance and potential monetary rewards of business law practice, the Advocates Association is lobbying to end the segregation of advisors and advocates within the legal community, perhaps by opening its membership to legal advisors. CEELI hopes to work with the Polish Bar Association and Advocates Association on reform issues.

C. Conclusion

Providing assistance in Poland can be particularly difficult due to the official Polish bias against "outside" assistance. Particularly in the area of criminal law reform, however, Poland is looking to the United States and the European Community for substantive assistance; There is also a misconception in Poland that the Polish legal system is completely different than the American system. For example, during the Polish Prosecutor Training Workshop, Polish prosecutors realized that although the legal constraints and requirements were different, American prosecutorial theory could be modified and used under existing Polish law. This workshop challenged the Polish prosecutors and judges to think more creatively about legal solutions to their criminal law issues, and also allowed them to understand how Americans approached the same issues.

With CEELI's rule of law liaison located within the Sejm's Bureau of Research, CEELI has unique access to Polish members of parliament and legal issues that arise in the legislative process. The Polish government is particularly interested in government ethics and lobbying issues, and CEELI has provided information and assistance for well over a year. With this access, CEELI has the ability to work directly with members of the legislature. CEELI anticipates receiving several requests for assessments after the elections of the Sejm in September 1993.

_______________

Notes:

35. Research for the publication was conducted by CEELI and the European Bank for Reconstruction and Development.

36. The CEELI participants were John Glynn, People's Counsel, State of Maryland; Richard Hill, Chair, ABA Land Use and Zoning Subcommittee; Francis Keating, General Counsel, U.S. Department of Housing and Urban Development; Professor James Nicholas, Holland Law Center, University of Florida; and Michael Diedring, CEELI Deputy Director.

37. Including Michael Diedring, CEELI Deputy Director; John Byrne, Senior Legislative Counsel, American Bankers Association; Scott Michel, tax law specialist; and Professor Sarah Welling, University of Kentucky College of Law.

38. CEELI participants included: Jonny Franks (Assistant U.S. Attorney, Eastern District of N.Y. ) ; Nelson Cunningham (Assistant U. S . Attorney, Southern District of N.Y.); and Stephen Ryan (former Assistant U.S. Attorney, now an attorney in private practice).

39. The U.S. participants included Dean Jacqueline Allee, St. Thomas University School of Law; Dean Bernard Dobranski, University of Detroit School of Law; Dean Steven Frankino, Villanova University School of Law; Dean Rudolph Hasl, Saint Louis University School of Law; Dean H. Reese Hansen, Brigham Young University, J. Reuben Clark Law School; Dean Henry Ramsey, Howard University School of Law; Dean Frank Read, University of California, Hastings College of Law; and Dean Steven Smith, Cleveland State University, Cleveland- Marshall College of Law. Professors from the Universities of Gdansk, Katowice, Krakow, Lublin, Lodz, Poznan, Szczecin, Torun, Warsaw, Wroclaw, and Bialystok comprised the Polish delegation.
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Re: American Bar Association: Central and East European Law

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ROMANIA

I. INTRODUCTION


CEELI has been involved in legal reform efforts in Romania since early 1991. CEELI's earliest efforts in Romania took the form of technical legal assistance workshops in the areas of constitutional drafting and judicial restructuring. Since February 1992, CEELI has placed resident liaisons in Bucharest who work with government officials, legislators, judges, law professors, legal practitioners, and nongovernmental organizations to identify legal reform priorities.

II. SUMMARY OF CEELI ACTIVITIES IN ROMANIA. NOVEMBER 1990 -AUGUST 1993

A. Resident Liaison Activities


CEELI places attorney liaisons in host countries to facilitate long-term legal assistance. The liaisons coordinate project activities, respond to requests for legal materials, and provide direct legal assistance to judges, parliamentarians, attorneys, and other members of the legal community. The first resident liaisons in Romania, Karen Connolly and Gregory Surman, arrived in February 1992 for a six-month stay. Thomas and Patricia Pahl continued their intensive activities from September 1992 to April 1993. Mark Dietrich is currently serving as CEELI's resident liaison in Romania until at least January 1994.

1. Provision of Legal Materials and Other Information

Among the most fundamental barriers to the rule of law in Romania is the legal community's lack of access to materials from other countries. In response to requests by Romanian officials and non-governmental actors, resident liaisons perform the critical function of obtaining and translating American and international legal materials on a wide range of topics. The following are examples, by no means an exhaustive list, of requests to which CEELI liaisons have responded with legal materials and information.

• CEELI's liaisons distributed copies of American and international standards for magisterial and ethical attorney conduct to the Romanian Superior Council of the Magistrature and to all forty Romanian bar associations.
• Information on the organization and operation of American courts and prosecutors7 offices was given to the Romanian Ministry of Justice and the Superior Council of the Magistrature.
• The liaisons obtained written materials for the Romanian Ministry of Justice about white collar crime, money laundering, execution of criminal penalties, organization of prison systems, and other aspects of criminal law and procedure.
• In the area of property and local government law, the Romanian Department of Urban Planning received information from the CEELI liaisons about the process of regional planning in the United States, zoning, the transfer, sale, and lease of property, and mortgage financing.
• Commercial legal materials on American securities laws, export-import financing, and American and other commercial codes were made available by the CEELI liaisons to the Romanian Ministry of Trade and to members of the Romanian Parliament.
• Materials on the tax aspects of non-profit associations were forwarded to Professor Sorin David at the University of Bucharest Law School.

2. Direct Legal Assistance

In addition to formal lectures and informal talks with members of the Romanian legal community, the liaisons have provided direct legal assistance to Romanian lawmakers, government staffers, judges, and attorneys. The following is a sample of the projects which CEELI's liaisons have undertaken:

• Coordinated CEELI's support of the Magistrates' School, which was created to provide specialized training for new magistrates and continuing education for current magistrates. Because judicial restructuring is essential to establishing the rule of law in Romania, CEELI consistently provides the School with legal materials and guidance. The resident liaisons completed a report for Dean Valeriu Stoica on the status and needs of the School, organized a technical assistance workshop on cufiiculurn development, continuing education, and administration, helped prepare a grant application, and sponsored a reception to increase domestic support for the School. The liaisons have also advised the faculty and students on substantive legal issues, through lectures on commercial law topics for example.
• Conducted workshops to promote discussion of legal issues and to illustrate how those issues are resolved in the American and other legal systems. The liaisons held a two-day mock American criminal trial for students at the Magistrates' School, a one-day workshop concerning judicial and attorney ethics for Romanian magistrates and lawyers in Brazov, and a one-day workshop on the basics of contract law with Professor Sorin David of the University of Bucharest.
• Provided materials and guidance on substantive areas of law to the Deputies and staff of the Juridical Commission of the Chamber of Deputies. The liaisons received an unprecedented invitation to participate in the normally closed meetings of the Juridical Commission and offered testimony during Commission meetings regarding proposed legislation.
• Offered advice to the Ministry of Justice on constitutional issues. The liaisons prepared memoranda on a Romanian public meeting law, on free exercise and establishment of religion in the United States, and on American anti-discrimination laws. *Assisted a member of the Romanian Parliament and members of the Romanian Helsinki Committee in drafting a freedom of information law.
• Worked with the Bucharest Young Lawyers Association and other lawyers on matters relating to the regulation of the practice of law, including the drafting of a code of professional ethics
• Assisted a group of Romanian judges in creating Romania's first association of judges, which will be devoted to promoting an independent, well-trained, and well-informed judiciary.
• Served as members of an international election observer delegation which monitored local elections in Tirgu Mures, national presidential and parliamentary elections in September 1992, and presidential run-off elections in October 1992.
• Wrote a contract form book for Romanian lawyers and small businesses with Professor Sorin David of the University of Bucharest Law School. The book, to be published by Editura Tehinca, contains basic information about contract formation and is designed for use by entrepreneurs and commercial law students.
• Helped locate a forensic anthropologist to assist a Romanian prosecutor in his investigation of a mass grave at the site of a former security police post in Caciulati.
• Spoke at conferences organized by IFES in Oradea and Salonta on civic education regarding the role of judges and lawyers in a democratic society, as well as the importance of citizen participation in a democracy.
• Provided information on Congressional investigative committees to Victor Babuic, the former Minister of Justice and current Democratic Party politician.

B. Technical Legal Assistance Workshops

Through its technical legal assistance workshops, CEELI provides practical legal training to judges, government officials, legislators, lawyers, legal academics, and law students. Workshops are developed through consultation with the CEELI resident liaison, AID officers, and host country representatives. The purpose of the technical assistance workshops is to provide substantive, practical, comparative training that advocates the development of the rule of law and enhances the participants' understanding of legal principles relevant to the Romanian legal infrastructure. To date, CEELI has conducted the following technical legal assistance workshops in Romania:

CEELI technical legal assistance workshops focus on a particular substantive area of law and involve the participation of experienced lawyers or judges, usually including one from a civil law country. CEELI workshops are designed to promote energetic and open dialogue among participants and provide host countries with in-depth, immediate analysis of critical nuances in the law.

1. Constitutional Drafting Symposium
November 19-23, 1990

One of CEELI's first projects in Romania was to provide technical assistance in the drafting of the country's new constitution. As part of this project, CEELI sponsored a symposium on constitutional reform in November 1990. The CEELI delegation worked closely with the Constitutional Drafting Committee of the Romanian Parliament. Among the CEELI participants were Jerome Barron, Professor of Law, National Law Center, George Washington University, and Justice Ben Overton, Florida Supreme Court.

2. Judicial Restructuring
April 15-19, 1991

CEELI conducted a workshop on Judicial Restructuring in Bucharest in April 1991. The discussions centered on the functions and structures of a judicial system and on the existing judicial structures in Romania, the United States, and various West European countries. The CEELI participants made presentations on the role of judges and lawyers, the criminal component, and human rights in a judicial system.

Romanian officials from the President's Cabinet, the Parliament, the Ministry of Justice, the Attorney General's Office, and the Supreme Court attended the workshop. The CEELI delegation was comprised of Justice Martha Daughtrey, Tennessee Supreme Court, Professor Joachim Herrman, University of Augsburg, Germany, Douglas Amdahl, retired Chief Justice of the Minnesota Supreme Court, and Judge Earl Johnson, Court of Appeal, State of California, among others.

3. Constitutional Drafting
May 15-19, 1991 (Bucharest, Romania)
August 19-23, 1991 (Follow-Up Workshop, Washington, D.C.)

CEELI sponsored a technical assistance workshop in Bucharest in May 1991 with the full Constitutional Drafting Committee and other Members of the Romanian Parliament. The CEELI delegation included Professor Paul Bender, Arizona State University College of Law, Professor A.E. Dick Howard, University of Virginia, Professor Mark Tushnet, Georgetown University Law Center, and Professor Ken Vinson, Florida State University. A follow-up workshop, attended by five Drafting Committee members, took place in Washington, D.C. in August 1991.

In both sessions, Committee members participated in discussions and received technical guidance in the area of constitutional drafting. Specifically, the workshops focused on constitutional provisions relating to the protection of human rights and basic freedoms, emergency powers and national security exceptions, the powers and appointment of the Constitutional Court, and separation of powers.

4. Curriculum and Administration Reform for the Magistrates' School November 2-6, 1992

CEELI sponsored a week-long workshop for the faculty of the Romanian National Institute for Professional Training of Magistrates. The Magistrates' School was created in Spring 1991 to provide practical and theoretical training to new magistrates (i.e. prosecutors and judges), continuing education for practicing magistrates, and information to magistrates regarding changes in Romanian laws, foreign laws, and judicial doctrine. The ultimate goal of the School is to promote an independent, well-trained, and respected judiciary.

At the CEELI workshop, American and French magistrates with experience in judicial training offered practical suggestions about teaching methods, curriculum, and other issues related to the training of judges and prosecutors. The CEELI participants also discussed how to promote public confidence in the judiciary, increase the status of judges, and establish a judiciary that is truly independent from the executive branch of government and the prosecutors' office.

James DeAtley, Assistant U.S. Attorney, Judge Joseph Hatchett, U.S. Court of Appeals for the Eleventh Circuit, Monsieur Marcel LeMonde, Sous-Director des Stages, Ecole Nationale de la Magistrature, V. Robert Payant, Dean, National Judicial College, and Judge William Schwarzer, U.S. District Court Judge and Director, Federal Judicial Center, were among the CEELI participants.

5. Ethical Codes of Conduct for Lawyers and Judges
January 25-26, 1993

CEELI conducted a two-day workshop for magistrates from more than twenty different judets in January 1993. The CEELI participants included Bernice Donald, President, National Association of Women Judges, Paul Godfrey, Chuck Labella, Office of the U.S. Attorney, Southern District of New York, Lawrence Latto, and Dr. Hans Luhn.

The American and German magistrates and lawyers made presentations on the sources and types of ethical restrictions on magistrates, prosecutorial ethics, and the investigation and discipline of ethical violations. The workshop participants discussed the ethical restrictions in the Romanian Judicial Organization Law and the enforcement of similar European and American restrictions.

C. Legal Specialists

In response to requests from host countries, CEELI sponsors Technical Legal Specialists to assist with specifically-identified legal reform projects. The Specialists, who typically have substantial experience in the relevant area of law, spend several weeks observing particular aspects of the Romanian legal system, meeting with government officials and attorneys, and making recommendations.

1. Legal Specialist to the Judicial Training School

Judge Nely Johnson travelled to Romania in July 1991 to assist the Magistrates' School with curriculum development and reform.

2. Legal Specialist to the Federation of Mayors

Mr. Gary Binger, Planning Director of the Association of Bay Area Governments, worked in Romania from July 19-August 13, 1992. He spent most of his time working with the newly-created Federation of Mayors in Brazov. Mr. Binger also spent two days working with the Department of Urban Planning and commenting on its draft urban and regional planning law. In addition, Mr. Binger visited the Office of the Mayor in Pitesti and consulted with the Department of Local Public Administration on taxation and other issues.

3. Legal Specialist for Court Administration

At the request of the Ministry of Justice, CEELI placed Karen Kramer in Romania from March 1-12, 1993 as a technical legal specialist for court administration. Ms. Kramer is a Senior Administrative Clerk for the Chief Judges of the U.S. Federal District Court, San Francisco, California. While in Romania, she toured courts in Bucharest, Constant., and Fagaras, interviewed court personnel, and assessed court administration procedures. Ms. Kramer's itinerary was selected by the Ministry of Justice to present a cross-section of large, small, urban, rural, trial, and appellate courts. Ms. Kramer then prepared a report for Mr. Radu Giroveanu of the Ministry of Justice as to how current court administration procedures can be improved at the new Romanian Courts of Appeal.

D. Assessments of Draft Laws

Another key element of CEELI's activities in Romania is the provision of written assessments of draft legislation. Through the assistance of hundreds of judges, law professors, and practitioners, CEELI gathers comments on proposed laws and compiles reports for liaisons to deliver to the individuals and committees who are drafting legislation. The following assessments were provided to Romanian officials:

• Proposed Legislation on Organization of the Judiciary June 1991
• Law on Election of Local and Country Councils September 1991
• Foreign Investment Laws October 1991
• General Cadastre and Public Register of Fixed Properties June 1992
• Law on the Ownership of Certain Expropriated Land and Buildings June 1992
• Urban and Regional Planning Law August 1992
• Law on Sponsorship September 1992
• Law on Expropriation of Property for Public Utility October 1992
• Magistrates' School's Administrative Rules November 1992
• Draft Lawyer's Code of Conduct December 1992
• Informal Comments Provided on Romania's Proposed National Television and Radio Law March 1993

E. Concept Papers

Concept papers offer concise overviews of particular areas of law. The papers outline the primary issues that draft laws should cover, including various approaches to those issues as reflected in international treaties, U.S. and West European law, and developments in other East European and NIS countries. CEELI then delivers the concept papers to individuals and • drafting committees. CEELI has provided the Romanians with conceptual reports on local government finance and export-import financing.

F. Legal Education/Sister Law School Program

Under the auspices of CEELI's Sister Law School Program, each participating Romanian law school has been paired with three American law schools.

University of Bucharest
Ohio State College of Law
New England School of Law
National Law Center, George Washington University

University of Craiova
University of Miami School
Fuchsberg Law Center, Tauro College
West Virginia University College of Law

University of Sibiu
University of Puerto Rico School of Law
University of Denver College of Law
University of Mississippi School of Law

Al. I Cuza University, Iasi
State University of New York at Buffalo School of Law
University of California, Davis, School of Law
Inter-American University School of Law

The University of Bucharest Law School and the New England School of Law have established a joint program, in which American professors teach commercial law and contract drafting and negotiation courses at the University of Bucharest Law School. Ln May 1993, Professor Susan Sinneran of the New England School of Law taught a course in contracts at the University of Bucharest. The New England School of Law also plans to donate books, computer equipment and technical training, and other supplies to the University of Bucharest Law School.

The on-site liaisons identified candidates from the Universities of Sibiu and Iasi for the Sister Law School Exchange Program and from Iasi, Sibiu, and Craiova for the Summer Faculty Training Program in Lodz, Poland.

III. RULE OF LAW COUNTRY STRATEGY FOR ROMANIA

A. Current Status of Legal Reform


Legal reform is moving slowly in Romania. Romania suffers from several problems. First, Romania, has no tradition of democracy. Throughout its history, Romania has been ruled by despots, kings, and dictators. As a result, it has little experience with the concept of an independent judiciary. The judicial branch, even prior to the Fascist and Communist eras, was based upon the Napoleonic Code, which gave judges the status of little more than civil servants. Under the Communists, the role of judges was subservient to that of prosecutors and this perception of subservience continues even today. For example, in courtrooms, prosecutors sit on a higher level than do the judges.

Second, President Iliescu and his party (which has a plurality in Parliament) do not seem fully committed to reform. Their interest in a truly independent judiciary is minimal. For example, the justice minister recently removed the Chief Judge of Bucharest for obvious political reasons.

Third, Parliament itself is also a problem. No party currently holds a majority (although President Iliescu's government stays in power with the support of the nationalistic parties) and sessions typically involve charges and countercharges of corruption. Recently, a fist fight broke out between two members of Parliament.

Due to this in-fighting, very little of substance was accomplished. Nevertheless, the Parliament did manage to enact a law on judicial reform, a revised penal procedure code, and a revised civil procedure code. The civil procedure code apparently retains the prosecutor's right to take an extraordinary appeal in civil matters, even when the state is not a party. This is a vestige from the Communist era which the liberal forces in Parliament tried, but failed, to have removed from the law.

Romania adopted its Constitution on December 8, 1991. This Constitution provides for a parliamentary system comprised of a Chamber of Deputies and a Senate, with a strong President elected by direct universal suffrage. This Constitution provides that the provisions concerning the rights and liberties of citizens are to be interpreted and enforced in conformity with the Universal Declaration of Human Rights. The Constitution as written promotes democratic principles; however, its implementation is yet to be truly tested. The Constitution establishes the Constitutional Court, which is comprised of nine judges who are appointed for one term of nine years. This court is empowered to decide, among other matters, the constitutionality of laws, before promulgation, by the President of Romania, by the President of either Chamber of Parliament, by the Government, the Supreme Court of Justice, by at least 50 Deputies or at least 25 Senators, as well as, ex officio, on initiative to revise the Constitution.

Rumors are circulating that a new government will be installed this fall, and there is a possibility that the government will be more liberal. Fundamental change, however, may require the election of a new president and a new parliament.

B. Priority Issues for CEELI Assistance

CEELI's primary method of providing assistance is through the activities of its resident liaison, Mark Dietrich. CEELI consults daily with key government officials regarding legal reform. Mr. Dietrich is able to provide prompt answers to questions raised concerning potential solutions to problems concerning legal reform in Romania.

1. Priority Issue # 1: Judicial Reform

(a) Goal Statement.


To promote the creation of a strong, independent and professional judiciary. CEELI has identified several projects in Romania that address reforming the judiciary. These projects include supporting the Romanian Magistrates' School and the Judges Association. CEELI hopes that its work with the Magistrates' School and the Association of Judges will promote judicial independence and training by establishing a self-sustaining, indigenous institution devoted to the training of judges. In addition, CEELJ has undertaken projects to address court administration problems and judicial ethics.

(b) Factual and Legal Background

In Romania, there is no tradition of a strong and independent judiciary. Instead, the tradition is one of an all-powerful prosecutor and a timid judge acting as a "rubber stamp. " Judges receive a relatively low salary and they bear heavy workloads. Although Parliament recently raised judges' salaries, they set some prosecutors' salaries higher than those of judges. Also, many of the judges are very young and inexperienced. Also, judges lack control over counsel and parties in managing cases and disciplining the parties.

On July 1, 1993, the new Law on the Organization of the Judiciary went into effect in Romania. This is the most important piece of legislation in Romania affecting the judiciary. This law essentially sets up three levels of courts (judicatorii, tribunals, and courts of appeal), together with prosecutor's offices for each court. The law also provides for the appointment, advancement, and supervision of judges, including some ethical and disciplinary provisions. The law, however, does not do much to support the independence of the judiciary.

The new Law on the Organization of the Judiciary provides some control over the prosecutors, making the Chief Prosecutor responsible to the Justice Minister for the first time (previously, the prosecutor reported directly to the President). The law also provides some protection to the judiciary, making "irremovable" those judges appointed by the President. But the Ministry of Justice can review the work of judges through Inspectors General, and the law seems to indicate that this review can affect the results of individual cases. Also, the Superior Council of Magistrates, responsible for advancing and censoring judges, includes nine prosecutors in its membership (out of a total of nineteen members), even though the Council has no jurisdiction over prosecutors.

On the issue of irremovability, recently the Minister of Justice fired the Chief Judge of Bucharest, ostensibly for illegally appointing the presidents of other courts in Bucharest. The newspapers report, however, that the true reason for the firing was that the Chief Judge had come down with some decisions against President Iliescu in 1992 when he tried to run for president and senator at the same time. Apparently, the Chief Judge was not "irremovable" under the new law because he had not been appointed by the President. Examples such as this demonstrate that the judiciary is still beholden to political pressures.

c. Judicial Reform Priority Projects Identified by CEELI:

(i) Romanian Magistrates' School

(a) Goal Statement


To support the establishment of the Romanian Magistrates' School as a self-sustaining institution for the training of magistrates.

(b) Factual and Legal Background

The Romanian Magistrates' School was established pursuant to Governmental Decision No. 183, dated March 20, 1991. The stated goals of the Magistrates' School were:

(1) To provide post-graduate training for Romanian law school graduates interested in becoming magistrates; and

(2) To provide a continuing education program for current and existing magistrates.

The Romanian judicial system is modeled on the French system. The French recognized that its judges, who sit on the bench directly after finishing school, have very little practical experience. To provide their judges with more experience, the French created the Ecole Nationale de la Magistrature. The Romanian Magistrates School is modeled upon the French school.

Although the Magistrates' School was originally under the Ministry of Education, it is currently a part of the Ministry of Justice. The Dean of the Magistrates' School reports to a fourteen member Administrative Council (the governing body of the school), which is a semi-independent body comprised of professors, judges, prosecutors, and representatives from the Ministry of Justice. The Administrative Council handles the day to day administration of the Magistrates' School; however, the Ministry of Justice provides funding for the school and has been involved in the selection of students and the salaries of the professors. Normally, each class consists of approximately 45 students, who attend classes for one year prior to assuming positions on the bench or in the prosecutor's office.

The faculty consists of approximately 17 part-time professors, who are either practicing judges or prosecutors, or professors at the Bucharest Law School. The curriculum is both theoretical and practical. The practical component entails placing students directly into the courtrooms and the theoretical component involves additional lectures.

The Romanian Magistrates' School has experienced some difficulties since its creation. Romania is suffering from a lack of judges and the Ministry of Justice has been hesitant to require students to attend the school due to vacancies. Also, the Ministry of Justice does not have the resources to support the school completely.

CEELI will continue to support the Romanian Magistrates' School. In June, 1993, Dean Valeriu Stoica resigned as dean of the school and CEELI understands that the current vice dean, Dana Vartires, will become dean. CEELI has worked closely with both Mr. Stoica and Ms. Vartires, and will continue to do so in the future. The Magistrates' School is still in need of additional funding to establish its presence as a viable means of training new judges, as well as a vehicle for providing continuing education for more senior judges.

(c) Benchmarks

(i) Work with the Romanian Magistrates' School to help it obtain a physical presence, including office space, a library, and standard office equipment.

(ii) Advise the Romanian Magistrates' School regarding curriculum reform and administrative efficiency.

(iii) Attempt to secure funding for the school from other sources, such as the European Bank for Reconstruction and Development.

(iv) Consult with the Romanian Magistrates' School regarding methods of providing both initial training and continuing education.

(d) Impact

CEELI hopes that by systematically reforming the manner in which law is taught to judges and prosecutors, the judiciary will become increasingly strong and independent. Judges and prosecutors need to understand their role in a democratic society. The Magistrates' School is a newly created institution dedicated to legal training. The Magistrates' School also fosters judicial independence by acting as a conduit for interaction with judges and prosecutors from the West.

(ii) Romanian Association of Magistrates.

(a) Goal Statement

CEELI promotes the continued development of the Romanian Association of Judges ("Association") as a means of strengthening the judiciary and eventually providing continuing education for the judges. This Association needs assistance in preparing a newsletter and a grant proposal to obtain basic funding for office equipment.

(b) Factual and Legal Background

The Association of is a professional association originally established in 1933. During the Second World War and the Communist era, the Association fell into a period of neglect. Late last year, several judges in Bucharest decided to resuscitate the Association. They have prepared and drafted by-laws, and contacted judges in other municipalities, some of whom have formed local chapters of the Association. To our knowledge, the Association consists solely of judges--not prosecutors--and has approximately 100 members.

One of the stated goals of the Association is to assist judges in preventing interferences with the judiciary and to improve judicial independence. These goals are similar to what the French Association of Judges, established in the 1950's achieved for French judges. But the Romanian Association has little expertise and no funding to reach its goals.

(c) Benchmarks

(i) Develop an agenda with the Association to increase the credibility and respect for judges among prosecutors, lawyers, and the public.

(ii) Assist the Association in developing a newsletter that will publish articles of scholarly and practical interest among judges. For example, these articles may address how to interpret the new (and controversial) land law, the effect of the high rate of inflation on money judgements, and judicial ethics.

(iii) Assist the Association in organizing round table discussions or lectures in Bucharest.

(iv) Attempt to use videotapes to demonstrate the relatively more active role American judges play in U.S. courts.

(v) Assist the Association in expanding its membership from other districts.

(vi) Assist the Association in securing funding from other sources, such as the Soros Foundation, the German Marshall Fund, and the European Bank for Reconstruction and Development.

(d) Impact

By creating a strong Association of Magistrates, CEELI hopes to increase the stature and professionalism of the judiciary.

(iii) Judicial Ethics

(a) Goal Statement


CEELI has been actively involved in focusing attention on judicial ethics in Romania. By developing an awareness of the importance of judicial ethics, CEELI hopes to promote further the development of a strong, independent and well-respected judiciary.

(b) Factual and Legal Background

In January 1993, CEELI held a workshop on judicial ethics in Bucharest. The workshop discussed the sources and types of ethical restrictions, conflicts of interest (especially due to commercial activities), political and professional activities of magistrates, prosecutorial ethics, role of magistrate, investigation, disciplinary proceedings and enforcement.

(c) Benchmarks

(i) The CEELI liaison will work with the newly established Superior Council of the Magistratura, which is responsible for selecting, promoting, and disciplining magistrates, to develop ethical guidelines for magistrates.

(ii) CEELI has already translated the ABA Code of Judicial Conduct and the United Nations ethical standards for Judges into Romanian, which were distributed at the CEELI workshop held in January, 1993.

(iii) Continue to have CEELI liaison speak at training sessions for judges concerning ethical issues. The Justice Ministry has invited Mr. Dietrich to attend training sessions for judges that it has organized around the country. Mr. Dietrich has already attended tow such conferences, one in Hunedoara in May and the other in Iasi in June. At each session, Mr. Dietrich addressed approximately 35 judges on the topic of judicial independence and ethics. These sessions were well received, and the Justice Ministry has signalled its intent to invite Mr. Dietrich to additional training sessions this fall.

(d) Impact

CEELI hopes to provide information that will enable the Romanians to develop judicial ethics guidelines and regulations so as to improve the stature of the judiciary.

(iv) Court Administration (Monitoring Stage)

Our liaison will follow up with any requests for further assistance based upon the report prepared by the court administration specialist, Karen Kramer, who assessed the court system in the early spring and provided recommendations for changes. This report was requested by Mr. Giroveanu, the assistant secretary in charge of courts, who has since been named to the new Courts of Appeal. Due to the increased workload of the judges, the current court system is under severe pressure. In her report, Ms. Kramer made several suggestions for improving the efficiency of the courts, as well as suggestions to strengthen the courts as an institution by improving the stature of judges. These recommendations would, in turn, increase public confidence in the court system. Our liaison, Mark Dietrich, continues to monitor court administration issues and is following up to determine whether there are any requests for further assistance, especially in the implementation of the recommendations contained in Ms. Kramer's report.

(v) Constitutional Court (In Developmental Stage)

Through its early workshops, CEELI was integrally involved in providing assistance during the drafting of the Romanian Constitution. CEELI has continued to monitor the implementation of the Constitution in Romania and recently met with several members of the Romanian Constitutional Court. These judges described the important issues they are facing as they carry their the difficult task of applying the new Constitution. For example, novel issues concerning human rights and jurisdiction are confronting the court. CEELI is assessing various methods of assisting the court. For example, CEELI is considering hosting a workshop in which various members of other Central and East European Constitutional Courts, as well as Western European Constitutional Courts, may participate to discuss commonly faces issues.

2. Priority Issue # 2: Bar Reform

(a) Goal Statement


CEELI will assist the Romanians in enhancing the competence and professionalism for the bar.

(b) Factual and Legal Background

During the communist era, lawyers were not well respected in Romania due to a perceived lack of independence. The only lawyers with any power were prosecutors. A defense lawyer was not expected to provide a strong defense. Apparently, during the communist era, bribery of lawyers was commonplace. The current reputation of lawyers is somewhat improved. Lawyers are finding it more lucrative to go into a commercial practice than to become a judge, prosecutor or defense attorney. Bar associations in Romania under communism were essentially clearing houses which assigned cases to lawyers and arranged for the payment of fees (keeping a substantial share for the association itself). There are now many private practitioners, and the new law apparently does away with the rigid control over fees. The Parliament will consider the Law on the Organization and Practice of the Legal Profession ("Law on Lawyers") in the fall. The proposed Law on Lawyers is drafted by the current practitioners, who do not wish to open their practice to others. For example, Romanian lawyers do not want to permit foreign lawyers to practice in Romania, except on the basis of reciprocity. The law on lawyers, however, includes too many controls over where an attorney may practice and whom he may represent.

(c) Benchmarks

• Prepare an assessment of the Law on Lawyers.
• Consult through the CEELI liaison with the drafters of the Law on Lawyers regarding suggestions contained in the assessment.
• Provide information regarding the establishment and management of private law firms.
• Consult through the CEELI liaison with Romanian members of the bar and leaders of bar associations regarding areas in which they would like assistance.

(d) Impact

CEELI hopes to assist the Romanian in improving the professionalism of the bar, which will strengthen legal reform efforts in Romania.

3. Priority Issue # 3: Criminal Law Reform (In Developmental Stage)

CEELI will continue to work on criminal law reform in Romania. Mark Dietrich has provided Nicolae Zaharia, the Director of Legislation at the Ministry of Justice, with information relating to prisons, money laundering, and organized crime. CEELI understands that the Justice Ministry will draft and Parliament will consider next year, a law on prisoners and revisions to the substantive penal code. CEELI will assess these laws if it receives requests from the Justice Ministry to do so.

4. Priority Issue # 4: General Legislative Reform (In Developmental Stage)

The Parliament is required to establish an Office of Legislative Council, which is responsible for drafting and reviewing legislation. CEELI has been coordinating its efforts wit the U.S. Embassy to determine whether the placement of a legal specialist to the Romanian Parliament to focus on issues of legislative drafting would be useful. Last month, Mr. Dietrich met with Lloyd Ator, a legislative expert who had been sent by USIA to assess the type of assistance needed by the Romanian Parliament. CEELI will continue to monitor this request and will assess the need to send a parliamentary expert when the Parliament reconvenes this fall. A legal specialist could assist this new office in legislative drafting, as well as provide general background information regarding staffing issues.

CEELI has developed several contacts with key members of the Juridical Commission of the Romanian Chamber of Deputies and anticipates obtaining requests for assessments of draft legislation in a variety of areas. CEELI's assessments have been very effective in Romania. For example, CEELI's assessment of the draft law concerning the expropriation of property was used extensively during the Juridical Commission's deliberations concerning modifications of this law. Also, due to coordination with the Commercial Law Development Program, CEELI anticipates possibly providing an assessment of the proposed Romanian trademark and copyright law. Also, CEELI has received a request from the Romanian Commerce Ministry to assess the Romanian unfair competition law.

CEELI is actively involved in providing assessments of draft legislation in Romania. Currently, CEELI is assessing the draft Law on Lawyers, Law on Political Parties, and Bankruptcy Law. CEELI is also in the process of assessing various laws and decrees relating to the establishment of standardization agencies and the promulgation of standards relating to consumer protection and measurement pursuant to a request from Mihail Ciocodeica, Director General, Romanian Institute for Standardization. In addition, CEELI is also assessing various international trade laws. CEELI understands that the Ministry of Justice may also be working on a civil code, and CEELI will monitor this legislative development.

C. Conclusion

Due to the scars left by Ceausescu's repressive regime, the rule of law program must endeavor to change the mentality of an entire generation of Romanians to encourage them to take responsibility themselves for initiating democratic reforms in their society. The goal of the Magistrates' School is to enable the Romanians to provide training for their own judges. Similarly, the creation of the Judges Association will enhance the stature of the judiciary and encourage the judges to communicate among themselves. CEELI also views the Judges Association as a vehicle to supplement the judicial training that is to be provided at the Magistrates' School.
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