Abstract
Today, discussing and reflecting on the rule of law is not just an occasional issue, but an urgency in Europe and within the European Union itself.
A. Carvalho—President of Sindicato dos Magistrados do Ministério Público (SMMP).
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Today, discussing and reflecting on the rule of law is not just an occasional issue, but an urgency in Europe and within the European Union itself.
Founded on values, such as the respect for fundamental rights, democracy and the rule of law that are considered to be consensual, the European Union is today confronted with internal currents that may jeopardise the path outlined.
Hasty reforms carried out by emerging or resurgent political trends in Hungary and Poland have increased political influence on the judiciary and weakened its independence, through changes in the rules of appointment or dismissal for access to the Constitutional Court, higher courts or management boards of the Public Prosecutor’s Office, or control of the inspection or disciplinary process of magistrates.
But situations occurring in other Member States such as Romania, Bulgaria or Slovakia also present concerns regarding judiciary independence.
In addition, the Covid-19 pandemic, apart from the immediate health and economic impact has created a wide and diverse set of challenges for society and, more specifically, for public administrations and legal and constitutional systems.
This context has further emphasised how essential an independent judiciary is to the rule of law, through the possibility of recourse to an independent court and judicial review against possible unjustified infringements on fundamental rights and freedoms.
The fight against corruption is also essential for the preservation of the rule of law. A high perceived corruption rate undermines trust in public authorities.
It is crucial that institutions responsible for the control of compliance with criminal law work effectivel, independently, and impartially.
There is already a consolidated understanding in the case-law of both the CJEU and the ECtHR that the rule of law addresses principles such as legality, which requires a transparent, accountable, democratic and pluralistic legislative procedure; legal certainty; prohibition of arbitrary exercise of executive power; effective judicial protection by independent and impartial courts and effective judicial review, including respect for fundamental rights; as well as the principles of separation of powers and equality before the law.
Respect for the rule of law is essential for citizens and businesses to have confidence in public institutions.
There are increasingly frequent political attacks and orchestrated media campaigns against judges and prosecutors, attempting to discredit the justice system in public opinion so that they can exercise greater control over criminal investigation and prosecution.
The efficiency of the judicial system is based on its assumed independence. To maintain that greater control of the political power over the judicial system would increase its efficiency is false, a strategy designed with the sole purpose of hampering its functioning and preventing some from being reached, in essence generating a manifest inequality in treatment before the law.
Fighting corruption also presupposes that the judiciary, the Public Prosecutor’s Office and the bodies responsible for law enforcement have sufficient funding, human resources, technical skills and expertise.
The independence of national courts is key to ensuring effective judicial protection.
To ensure such independence, they must be subject to the classification and disciplinary authority of councils that guarantee independence in their composition and designation, as well as in the method of appointment and judgement, and the rules of separation of powers and transparency must be respected.
This requirement is also extended to the Public Prosecutor’s Office.
According to a recent judgment of the ECtHR, on the path of the recommendations of the Council of Europe and other international instruments, delivered in case of KÖVESI v. ROMANIA (Application no. 3594/19) of 5 May 2020, the independence of prosecutors is a key element for maintaining judicial independence. Prosecutors must be called upon to participate in reforms of judicial systems and must have an active voice in public debates when these reforms may compromise their independence.
Independence of the Courts and the Public Prosecutor’s Office is an essential premise for the rule of law.
Threats to the rule of law undermine the legal, political, and economic foundations of the European Union and ultimately its very subsistence.
MEDEL, such as at its origins, continues to play an important role in upholding the independence of the judiciary and promoting the democratic rule of law as the cornerstone of our societies and our common identity.
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Carvalho, A. (2024). Independence of the Prosecution System. In: Marques, F., Pinto de Albuquerque, P. (eds) Rule of Law in Europe. Lisbon 2021. Springer, Cham. https://doi.org/10.1007/978-3-031-61265-7_14
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DOI: https://doi.org/10.1007/978-3-031-61265-7_14
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