“Sentimento do Mundo” – On the Endless Battle for a Justice System

Abstract

In the summer of 1787, New Yorkers were about to ratify a constitution for the US. In a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788 urged New Yorkers to ratify the proposed United States Constitution, which was drafted in Philadelphia in the summer of 1787. The essays (commonly referred to as the Federalist Papers) were published anonymously, under the pen name “Publius,” in various New York state newspapers of the time. On May 28, 1788, Alexander Hamilton published Federalist 78, titled “The Judicial Department.” In this famous essay, he offered a powerful defense of judicial review. Hamilton argued that only a federal judge could guarantee constitutional rights and provide an effective check on state power. At the same time, Hamilton had to convince his political opponents that the unelected judiciary would never dominate the other branches of government. Drawing on the ideas of Montesquieu, he deliberately portrayed the judiciary as “the least dangerous branch of government”. A branch that is inherently weak because it can control neither the country’s financial resources nor the army.

1 A Warning from the Past

In the summer of 1787, New Yorkers were about to ratify a constitution for the US. In a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788 urged New Yorkers to ratify the proposed United States Constitution, which was drafted in Philadelphia in the summer of 1787. The essays (commonly referred to as the Federalist Papers) were published anonymously, under the pen name “Publius,” in various New York state newspapers of the time. On May 28, 1788, Alexander Hamilton published Federalist 78, titled “The Judicial Department.” In this famous essay, he offered a powerful defense of judicial review. Hamilton argued that only a federal judge could guarantee constitutional rights and provide an effective check on state power. At the same time, Hamilton had to convince his political opponents that the unelected judiciary would never dominate the other branches of government. Drawing on the ideas of Montesquieu, he deliberately portrayed the judiciary as “the least dangerous branch of government”. A branch that is inherently weak because it can control neither the country’s financial resources nor the army.

Hamilton’s reassurance to his opponents can easily be turned into a warning. The rule of law is rarely safe in the hands of politicians alone. The independence of the judiciary is a principle which, by its very nature, can only be poorly protected by legal provisions; such provisions can all too easily be changed by the legislature, or misinterpreted or even ignored by an ambitious government which feels secure and confident if it can count on a comfortable majority in parliament.

The practical relevance of Hamilton’s insights should not be underestimated. Too often we take for granted the proper functioning of democracy and our legal system and the fundamental values that underpin them. Yet, the past five years have shown that even in Member States belonging to the European Union, judicial independence is no longer guaranteed. To everyone’s surprise, we have witnessed the rapid erosion of the rule of law in Poland. It is hard to understand how quickly a great and admired country, which played a leading role in overcoming the former division between “Eastern” and “Western” Europe, could fall back in so little time. Who would have expected that, after the proclamation of the Universal Declaration of Human Rights in New York exactly 73 years ago tomorrow, the courts in Europe should remind the Member States once again of the principles of justice which are also the basis and the essence of the Council of Europe and the EU?

Alexander Hamilton’s warnings are today more appropriate than ever. If, as we have seen in Poland, a Member State gets to the point where a government abuses an election victory by introducing LGBT-free zones for populist reasons, and judges are not supposed to protect the rights of the people concerned, then the judiciary indeed has become the least dangerous branch of government. These insights from the past expose the nasty face of a legal system that shows little interest in justice. On October 7th 2021 the Polish Constitutional Court further damaged the already fragile relationship with the EU and the other Member States, by denying primacy and precedence of EU law over national law.¹ But we can be equally concerned about the Hungarian case decided less than a month later by the Court of Justice.² In this case the ECJ had to remind the Hungarian Supreme Court that no disciplinary proceedings can be brought against a lower national court on the sole ground that it has referred a question to the Court for a preliminary ruling under that provision. Even more disturbing, perhaps, is that the referring court had originally intended to draw the ECJ’s attention to inappropriate external and internal pressure within the Hungarian judiciary.

2 ECJ Case Law

The sad conclusion today is that we are still in the midst of a crisis of the rule of law and not in its aftermath. Yet, there is also good news. For both courts in Europe have acted swiftly and built up an impressive body of case law in order to respond to the crisis in Poland. We should be grateful to the Portuguese Association of Judges for the opening move in Luxembourg. The case of Associação Sindical dos Juízes Portugueses³ gave the Court the opportunity to bring the independence of the judiciary in the Member States under the protective mechanism of the TEU. For the reasoning behind its judgment on judicial independence, it relied on its previous case law, which had always leaned heavily on the ECtHR’s earlier findings in this regard. By doing so the court provided itself with the legal framework that it would apply six months later in its Celmer judgment⁴.

In retrospect, none of this was a coincidence. It is an open secret that in the Portuguese case the ECJ had sent a strong signal to Poland (and others) and was preparing for a future engagement with what might be independent Polish courts. The ‘Celmer’ case was in turn followed by a flood of judgments from the courts in Europe. Among these are landmark decisions on the lowering of the retirement age of judges and public prosecutors (case C-192/18) and on the newly created Disciplinary Chamber of the Polish Supreme Court (joined Cases C-585/18, C-624/18 and C-625/18)⁵.

In 2021 also the ECtHR stepped into the ring to stop the further backsliding of the rule of law in Poland. In a short period of time, it found numerous violations of the Convention. First in its Xero Flor judgment⁶, on the composition of the Polish Constitutional Tribunal, then in its Broda ruling⁷, on the premature termination of Polish court (vice) presidents. In the Reczkowicz case⁸ the court found, together with the ECJ, that the Polish Disciplinary Chamber did not meet the standard of a “court established by law”, and in its Dolinska judgment⁹ it urged Poland (again) to take rapid action to resolve the lack of independence of the National Council of the Judiciary. An impressive long list of newly communicated cases from Poland, is waiting now for decision or judgment in the Strasbourg Court.

3 Effects on the National Level

The strong messages from both the Luxembourg and Strasbourg courts were welcomed in the Member States and satisfied moral indignation. In the following, the difficulties encountered by the national courts in applying the case-law of the Court, particularly in cases of surrender, will be discussed, as the consequences of the Polish crisis of the rule of law have become particularly apparent there.

In Celmer the ECJ instructed the national courts to make a multi-layered assessment in surrender cases. The executing authority must determine, specifically and precisely, whether there are substantial grounds for believing that a person will run a real risk if he is surrendered to a Member State. The Court does so on account of systemic or generalised deficiencies of the independence of the issuing Member State’s judiciary, having regard to his or her personal situation, as well as to the nature of the offence in question, and the factual context, and – this is remarkable - in the light of “the information provided by the issuing Member State”.

The court sets the bar very high in Celmer. Only to a very limited extent can an executing authority refuse to execute an EAW. In practice, requests for surrender from Poland are rarely refused. There is widespread concern, also among judges, that the Celmer test falls short. The Court ‘responded’ to these concerns last year but not to everyone’s satisfaction. It ruled that even in the case of established systemic shortcomings, a concrete assessment of the case is necessary. Such an assessment should not assume that there are substantial grounds for believing that a person would face a real risk of not receiving a fair trial following his surrender. (Joined Cases C-354/20 PPU and C-412/20 PPU).

In light of the strong position the ECJ takes on surrender (to Poland), the decision of the Vestfold District Court in Norway 0f 27 October 2021 is worth noting. The court refused surrender in that case on the grounds of general deficiencies in judicial independence in Poland. The Norwegian court adapted the Celmer test in that “the greater the general risk of a breach, the less specific grounds for a violation of the right to a fair trial should be required in the particular case”.¹⁰ According to the Norwegian court, the ECJ does not leave the national court sufficient discretion to provide effective legal protection in surrender cases; therefore, the Court’s strict line is adjusted to a more realistic approach of a “real risk” of an unfair trial. The Vestfold judge’s decision has been appealed in Norway. But it is certainly not the first time that a national court has disagreed with the ECJ on the level of legal protection in human rights matters.

It goes without saying that the Vestfold court goes far beyond the ECJ and that its ruling is, to put it mildly, not even in the spirit of the ECJ. But the Irish Supreme Court and the Court of Amsterdam have also asked the ECJ whether the shortcomings of the Polish judiciary are not such that they in themselves pose a real risk to the right to a fair trial.

It is important to point out here that a difference of opinion between judges is not in itself a cause for concern. On the contrary, I would call it a valuable feature of jurisprudence. Let us not forget that in many Member States the development of law is often initiated by lower judges. A reasoned dissent from a first instance court and the subsequent reconsideration by a higher court have an intrinsic value for the administration of justice. In this way, the law remains a living constitution.

In this connection, there is often talk of the famous ‘dialogue’ between judges at European and national level, but on closer inspection it is not yet very substantial. The preliminary ruling procedure is not in itself a dialogue if it is limited to a Q&A format. A real dialogue between courts presupposes reciprocity and requires a serious exchange of arguments, with a willingness not only to listen to each other but also to change position if necessary, on the basis of reasonableness and preferably conviction.

However, we have to conclude that this dialogue between judges, which should lead to progressive insight in surrender cases, does not function well. Exemplary is the fact that some national surrender judges do not find sufficient resonance with the ECJ on the workability of its jurisprudence. If true this is a serious matter. When signals come from member states that the ECJ provides insufficient guidance for effective legal protection and when its jurisprudence is called ‘unrealistic’, the Court cannot let this pass without providing a convincing counter argument.

4 How About us, National Courts?

Let us not forget that dialogue with the ECJ also serves a legitimate self-interest of national courts. Involvement and responsibility in the development of the Court’s jurisprudence also contributes to the credibility of judges at the national level and strengthens public confidence in judicial fairness and justice. After all, it is the national judges who have to apply European law as interpreted by the ECJ in concrete cases. This is sometimes not an easy task. For many in the Member States, it is difficult to grasp how a systemic weakness in another country’s legal system can be ‘remedied’ in an individual case, under the Celmer test, by reassuring statements from authorities in that country who are themselves part of the problem. Justice should not demand the utmost of people’s imagination.

Admittedly, the input of national judges into this dialogue is still very limited. That is a shortcoming and we need to change it. With an anticipated further integration of the Member States into the EU, the ECJ will have to rule much more than before on fundamental shortcomings in one of the Member States. In this respect, the ECJ cannot do without the critical input of national courts. If only for the sake of its legitimacy and the cooperation at national level that it needs. Therefore, dissent from the national courts should be valued positively and not considered too easily as rebellion or disobedience. This puts great responsibilities on the shoulders of national judges. They will have to develop a proactive and strategic attitude in order to contribute effectively to the development of European law.

Meanwhile, the ECJ is not to be envied in the role it has to play. It is quite understandable that it does not want to be tempted, as a judicial authority, to make a general political judgment on the rule of law in Poland. After all, a crisis of the rule of law in a Member State is essentially a political issue for the EU, not a legal problem to be solved first and foremost by judges, insofar as there is a role for judges here. The Court would certainly be stronger if the political European institutions not only spoke out strongly against violations in the Member States, but also took full responsibility for acting accordingly and effectively.

The crisis of the rule of law in Poland has led to a flood of preliminary references and cases before the European courts. The ‘juridification’ of the political problem with Poland plays into the hands of the Polish Government and is being misused as a negotiating tactic, leading to further destabilisation of the EU. The mere fact that these cases are ‘sub iudice’ should not become a false argument for European politicians to further postpone necessary decisions in the current crisis.

5 Sentimento Do Mundo

In 1940, the famous Brazilian poet, Carlos Drummond de Andrade, expressed his deepest concern and anxiety about what awaited him in the coming years. My reflection on the endless battle for a justice system could have the same sad effect. My reflection on the endless struggle for a legal system could have the same sad effect. But that is not my intention and it would also be wrong. For the inherent fragility of the legal system should not be confused with weakness. The sensation of vulnerability serves a purpose. It warns us of nearing danger, it defines what is essential, it encourages us to choose which side we are on, and it unites in times of crisis. The courts must protect the rights of the individual; the European political institutions must lead the community to a secure future. Let us respect their responsibilities, and above all, encourage them to put words into action.

What is heartening and reassuring today is that in the current crisis almost the entire European community is speaking out fearlessly about the protection of human rights. That is why I am tempted to read Carlos de Andrades’ poem, in a spirit that may not quite reflect his sad feelings at the time. But why couldn’t a poem, like the law, be a living document and help us move forward? After all, “two hands and the sense of the world” (as the poem reads) may not seem much, but it is certainly a good start to building Europe’s promising future.