Respect for Judicial Independence

Abstract

This Chapter examines whether judges feel that their independence is respected. Three categories of actors are distinguished: the court users, the political system and the internal decision makers of the judiciary. Judges feel in the mean most respected by the internal leadership, to a lesser extent by the court users and least by the political system. In some countries judges do not feel respected by the political system at all. In the opinion of the judges, respect by the different actors has different features. Perceived respect shown by litigants has to do with absence of bribery and other forms of corruption, and inappropriate pressure. Respect by government and parliament is about the implementation of judgments by government and the case load of the judiciary. Case load depends on the resources that politicians make available. Respect by court management concerns absence of pressure on judges to adjudicate cases timely, case load and promotion of judges based on merit. Caseload is a recurring determinant of perceived respect for independence. This suggests that independence is highly affected by resource allocation.

5.1 Respect for Independence by Categories of Actors

The survey among judges provides insight into the extent to which judges feel that their independence is respected by a range of actors.¹ Their perceptions may of course differ from the respect these actors themselves believe to have or express for the independence of the judiciary. Judges observe the behaviour of these actors in court and, for instance, at the macro level in budget allocations to the judiciary, and therefore can provide insight in the respect shown in behaviour instead of only in words. Obviously, judges may have distorted observations or incentives to distort their observations in a survey to influence outcomes. Also, opinions of actors may differ about what respect or due regard for judicial independence actually is. Still, the opinions of those at work in the courts are particularly relevant to understand what the judiciary needs to function independently. As discussed in Chapter 2, respect for judicial independence throws light on the legitimacy of the judiciary. This approach also allows differentiation and comparison between categories of actors. In the next Chapter the perspective of the general public is considered.

For the professional judges the actors that they deal with fall in three categories: (1) the court users: parties, their lawyers and, in criminal cases, prosecutors, (2) the political system: government, parliament and the (social) media, and (3) the leadership of the judiciary: the highest courts (Supreme court, Constitutional Court) and the governance institutions of the judiciary (court management including the president of the court, councils for the judiciary, associations of judges). These are very different categories: the behaviour of participants in judicial procedures is relevant for day to day court cases. Judges interact directly and intensively with them. While there is good reason to show deference to the judges in court given their position of power, this does not preclude participants to try to influence judges inappropriately, such as by bribery in any form, threats, attempts to get judges off cases and attempts to influence case allocation.

The political system that consists of parliament and government in conjunction with the traditional media and to a lesser extent the social media operates at the systemic level of legislation and resource allocation. Government and, to a lesser extent, parliament are also often involved in some way in the appointment of members of the highest courts and the governance institutions like councils for the judiciary,² but they can also attempt to intervene in individual court cases. And government itself is involved in court procedures. In these cases it is particularly relevant whether government abides by the judgments, also when these judgments go against the interest of government. In addition, politicians can express opinions about the judiciary, and influence public opinion. These roles can be played in different ways: by honouring the division of the powers of the state, providing sufficient resources, showing restraint as to influence on appointments and, if involved, by supporting appointments on merit, implementing judicial decisions , not criticizing the judiciary pending court cases and unduly, not doubting the democratic legitimacy of the judiciary, and so on. Or politicians can pursue the opposite. In pure form examples of the first approach can be found in Scandinavia and of the second approach in Poland and Hungary (e.g. Kovács and Scheppele 2018).

In a democracy the media play a crucial role in informing the public and politics about what goes on in the courts and in court cases. They can do this in various ways. State controlled media in particular may exhibit political bias, and influence public opinion in the direction the government wants. Poland is again a case in point. While not owned or controlled by the state, media can be politically associated with political parties to similar effect. An extreme example was set in the United Kingdom where justices of the Supreme Court were depicted as enemies of the people, when the Supreme Court decided against the government in a Brexit related case.³ On social media similar phenomena can be observed. Media differ in their approach. Johnston and Bartels (2010) distinguishes sensationalist and sober media. It finds that sensationalist media reduce the support for the American courts on specific issues but also in general.

The internal independence of judges is determined by the judicial hierarchy, explicit or implicit, within and between courts but also by court management, for instance relating to human resource decisions. While judges may be fully independent in their judgments, career considerations make them dependent on the authorities, such as the president of the court, that have the power to make these decisions (see Schneider 2005). Whether judges let their behaviour be guided by this dependence, is another matter. As mentioned before, the ENCJ survey shows that many judges feel that, in particular, promotion decisions are problematic from the perspective of judicial independence (ENCJ 2019, p. 34). In this Chapter respect for independence is discussed in a national context. The influence of EU institutions will be considered in the next Chapter.

Table 5.1 provides the key statistics. Results are expressed as scores on a scale of 0–10 as before, for ease of comparison, and are recalculated from five answer categories. The Table gives correlations within the three categories of actors. While correlations are moderate to high among most combinations across categories, the perceived respect for judicial independence by the actors in the first two categories are very highly correlated. The third group draws a much more heterogeneous response, where constitutional courts are much less integrated than, for instance, supreme courts in the judicial system. Not depicted in the Table, the perceived respect from supreme courts is highly correlated with that from parties and lawyers. Also not depicted, prosecutors are not only participants in trials but also close to the judiciary or part of a joint magistrature. This explains the perception of high respect from prosecutors for judicial independence. With regard to the actors in the political system, the across country means of government and parliament as well as the means of media and social media are indistinguishable. The means for the court users differ significantly, while the internal actors show varied outcomes (see note 2 of Table 5.1).

Table 5.1 Respect for independence as perceived by judges by categories of actors, for 24 countries of Europe

Most judges report that their independence is respected by parties, lawyers and prosecutors. The score of 7.4 for the parties corresponds with 75% of the judges agreeing with the statement that their independence is respected, 15% being uncertain and 10% disagreeing. In the eyes of the judges much less respect is shown by the other state powers and the media (the score of 6.1 for government corresponds with percentages of, respectively, 54%, 20% and 25%). Judges experience even less respect from the traditional media . There are not many countries in which the relations are better with the media than with politics. Only Denmark, the Netherlands and Romania are exceptions. While the social media get the same mean score as the traditional media , judges are much more uncertain about their relationship with social media: 35% of the respondents is uncertain, compared to 22% for the traditional media. Given the diverse and fluid character of social media , this is understandable.

Internal independence is well respected with generally higher scores than the scores of the other two categories of actors. The lowest scores are reserved for Councils for the Judiciary (7.8 with the corresponding percentages 77%, 13% and 10%), but their mean score is still at a different (higher) level than that of government and parliament.

5.2 Content of Respect for Independence

Respect for independence has a distinct content for the three categories of actors. This can be checked by examining the factors that relate to the respect variables. The ENCJ survey among judges examines a wide range of constituent elements of independence, and these elements can be used. Linear regression is applied at the level of judiciaries. Table 5.2 summarizes the outcomes. Respect by citizens as perceived by judges is related to corruption (such as bribery) and inappropriate pressure that judges experience. Respect by government and parliament depends primarily on the resources made available for the judiciary as reflected in the case load of judges, and on the implementation of judgments that go against the interest of government. The latter factor plays a role for the prosecution as well. This reflects the concerns of the judiciary of not being taken seriously. A judge can be totally independent in her court room, but if her judgments are not implemented, her independence is fundamentally flawed. The respect for independence by the media connects to a statement in the survey about the impact of the media: “decisions or actions of individual judges have, during the last two years, been directly affected by the actual, or anticipated, actions of the media (i.e. press, television or radio)”. There is a strong relationship between respect from the media and the replies to this statement. The differences between countries are large: in Portugal only 25% of judges feels respected by the media, and, consistently, 50% believes judgments and behaviour of judges is affected by the media. In contrast, in Ireland 71% feels respected and only 4% sees an impact on behaviour of judges. The exception is England and Wales: a very low 27% of judges feels their independence respected, but only 6% sees an impact. The second variable that affects respect of the media is disciplinary action to influence judicial decisions. Here, causality is not evident, except that disciplinary measures are newsworthy events and can get magnified in the press. Respect by court management is related to the pressure exerted by management on judges to decide cases in a timely fashion, case load and the promotion of judges . Councils for the judiciary are apparently also seen as responsible for case load. Supreme Courts are expected to take a leadership role. These courts are associated with the implementation of judgments and the case load of judges. Also, inappropriate pressure is significant, indicating that supreme courts not only play a beneficial role. All variables have the expected sign.

Table 5.2 Determinants of respect for independence by selected actors as perceived by judges, linear regression

The results are generally intuitive. What is striking is the large role of case load in relation to respect for independence. Lack of resources apparently permeates the judicial system, and many actors are held responsible, although judges clearly understand where the bucket ends: with government and parliament. Also, the small role of appointment and promotion issues is remarkable. Only, a relation exists between promotion of judges and respect for independence by court management. It seems that judges focus on their day to day work in court, and less on system wide issues.

5.3 Differences Among Countries

As follows from the descriptive statistics of Table 5.1, large differences exist among countries, in particular with regard to respect of independence by politics and media. Figure 5.1 maps the country scores of perceived respect for independence by parties to judicial proceedings and parliament, as representative of, respectively, court users and the political system. The perceived respect by these two actors is positively correlated (Table 5.1), and the difference between the two actors decreases with the increase of one of the scores.

Fig. 5.1

Respect of independence of the judiciary by parties to judicial proceedings and parliament, average per country  (Notes Scores between 0 and 10; See list of country abbreviations at the end of Chapter 3)

The low scores of Bulgaria, Latvia and Romania reflect that only around 20% of the judges feel that their independence is respected by parliament and government. For respect from the media outcomes are similar. On the other hand, 80–90% of judges feels respected in the Scandinavian countries. England and Wales score surprisingly low with 36% and 37% of the judges feeling respected, respectively, by parliament and government, 27% by the traditional media and 17% by the social media . As to the parties and lawyers, a much higher respect score for both of them than for politics and media does not imply that the legitimacy of the judiciary in the eyes of the users of the courts is at an adequate level. For instance, in Bulgaria and Latvia in the order of 50% of the judges feels respected by parties and lawyers. Is this sufficient for a judiciary to function effectively? It must be noted that the percentage of judges that feels not respected by the parties is relatively low (17% in Bulgaria and 15% in Latvia). Many judges (in Bulgaria 30% and Latvia 38%) do not know whether parties respect their independence. It does not seem that these judiciaries—and other judiciaries as well—are positively legitimized by the population to fulfil their mission, and thus they have a double problem: in the political arena and in the court room.

As to the internal actors, judges generally feel respected by the highest judges and by court management. Most variety, apart from several constitutional courts having specific issues, is shown by councils for the judiciary, reflecting different mandates, institutional arrangements but foremost actual behaviour of councils: percentages vary from around 55% of judges feeling respected by councils in Romania, Portugal and Spain up to 90% in Slovakia, Denmark and the UK.⁴ The developments in Poland have made abundantly clear that within a few years a council can play very different roles, varying from protecting the independence of the judiciary to endangering independence by extending the influence of the government within the judiciary. Court management is generally seen as being respectful for independence. The lowest scores are found for Portugal (59% of the judges feels their independence respected) and Latvia (69%). Only Portugal combines relatively low scores for court management and council for the judiciary, pointing to serious internal governance issues.

To summarize, the categorization in court users, the political system and internal actors (highest courts and governance institutions) makes it possible to analyse the main issues the courts face. The issues about independence are largest between judiciary and politics, and play out in resource allocation and implementation of judgments. Respect for independence is much higher among the court users. This does not imply, however, that the respect by the court users is at a high level in all countries. The legitimacy of the judiciary is in several countries an issue. It is, however, difficult to draw a line between judiciaries with and without sufficient legitimacy. In Chapter 7 this is further discussed. The leadership of the judiciary generally respects judicial independence.