Abstract
Systemic constraints of flagrant violations of judicial independence, like in Poland or Turkey—in line with an alarming, steadily increasing number of other European judicial systems coming under pressure—have not turned up abruptly, but have developed. Some of these deformities could evolve by making use of certain structural weaknesses in the respective judicial system and by simple reference to similar structural weaknesses of other systems—ignoring that those weaknesses are balanced by other ways of mutual checks between the different State powers. This article attempts to shed light on systems which are not in the spotlight and to give a brief tour d’horizon with examples from the viewpoint of a practitioner. To put a more sensitive focus on such access points will be of relevance in the upcoming years.
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Report of the Secretary General of the Council of Europe Thorbjörn Jagland, 2017, ‘State of Democracy, Human Rights and the Rule of Law’.
To give one example out of many: the report of the Council of Europe, GRECO, of 21.10.2016, GrecoEval4Rep(2016)1, (adopted by GRECO in the 73rd General Assembly, Strasbourg, 17.-21.10.2016) on the evaluation of the Austrian judicial system.
For instance Case C-64/16 Associação Sindical dos Juízes Portugueses, EU:C:2018:117.
Like the Consultative Council of European Judges, CCJE with so far 21 opinions, as well as the Recommendation CM/Rec(2010)12 of the Committee of Ministers to Member States on judges: independence, efficiency and responsibilities.
See CCJE (2002), Op N°3, point 71.
See decision of the Austrian Supreme Court as disciplinary court, judgment of 20.3. 2014, Ds25/13, point 6; AT:OGH0002:2014:0000DS00025.13.0320.000.
In the administrative judiciary this goes back to a different social demand. The welfare state increases and with it the need to have legal control of the actions of the public administration. Therefore the increase does not only concern asylum or migration law areas, but the full range of administrative law areas.
See CCJE (2008), Op N°11 on the quality of judicial decisions.
E.g. even in Austria, a federal state, no unified measuring approach exists between the different administrative courts of first instance.
Also to uphold public trust.
Adam Blisa/David Kosar: ‘Court Presidents: the missing Piece in the Puzzle of Judicial Governance’, Vol. 19 German Law Journal, No. 7 (2018) on Judicial Self Governance in Europe, p. 13 with further references.
See e.g. CCJE (2014), Op N°17.
See CCJE (2014), Op N°17.
Adam Blisa/David Kosar: ‘Court Presidents: the missing Piece in the Puzzle of Judicial Governance’, Vol. 19 German Law Journal, No. 7 (2018) on Judicial Self Governance in Europe, p. 10.
Adam Blisa/David Kosar: ‘Court Presidents: the missing Piece in the Puzzle of Judicial Governance’, Vol. 19 German Law Journal, No. 7 (2018) on Judicial Self Governance in Europe.
See in detail also CCJE, (2016), Op N°19.
Each of them having also the positions of court presidents in their focus, e.g. to change the court structure, to lower the retirement age in order to appoint new court presidents, or to provide for the right of a minister to dismiss and re-appoint new court presidents.
Austria must be mentioned as a negative example for such a relevant structural weakness in administrative judiciary.
Adam Blisa/David Kosar: ‘Court Presidents: the missing Piece in the Puzzle of Judicial Governance’, Vol. 19 German Law Journal, No. 7 (2018) on Judicial Self Governance in Europe, p. 12.
Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe to Member States of judges: independence, efficiency and responsibilities (para. 49, 52) as well as CCJE (2001) Opinion No°1, para. 60.
European Charter on the Statute of Judges of 1998, para. 3.4.
The two other options are by way of a disciplinary sanction or in the case of a temporary assignment to reinforce a neighbouring court with a maximum duration of such assignment being strictly limited by the statute.
Exemplified out of many others, the public statement of the Polish Prime Minister stigmatised that there were ‘nepotism and corruption’, being a result of the nomination procedure by a judicial council with a majority of judges. This interview was given by the Prime Minister, Mr Mateusz Morawiecki, on 13.12.2017, see http://www.washingtonexaminer.com/prime-minister-mateusz-morawiecki-why-my-government-is-reforming-polands-judiciary/article/2643279.
CCJE (2018), Opinion No°21, stresses also a preventive effect of properly investigating and penalizing corruption among judges, para. 49.
Adam Blisa/David Kosar: ‘Court Presidents: the missing Piece in the Puzzle of Judicial Governance’, Vol. 19 German Law Journal, No. 7 (2018) on Judicial Self Governance in Europe, p. 12 et seq.
Adam Blisa/David Kosar: ‘Court Presidents: the missing Piece in the Puzzle of Judicial Governance’, Vol. 19 German Law Journal, No. 7 (2018) on Judicial Self Governance in Europe, p. 16.
For this definition see https://en.wikipedia.org/wiki/Litigation_public_relations.
Headline of the UK newspaper Daily Mail, 4 November 2016.
For such activities also simple budgetary considerations come into play.
Polish Prime Minister, Ms Beata Szydło, used stigmatising slogans in public speeches, like ‘judicial guilt’ or saying ‘everyone knows someone who was hurt by the judicial system’ in 2016/2017, https://www.youtube.com/watch?v=njzV1xa-zno.
It is a violation of point 13 of the CM/Rec (2010)12 and of point 18 of the CM/Rec (2010)12 and CCJE (2015) Opinion No°18, points 18 and 19.
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Zeller, E. Access points for infringements of judicial independence—a practical tour d’horizon. ERA Forum 20, 129–139 (2019). https://doi.org/10.1007/s12027-019-00550-4
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DOI: https://doi.org/10.1007/s12027-019-00550-4