<i>Quo Vadis</i>Judicial Reforms? The Quest for Judicial Independence in Central and Eastern Europe

Coman, Ramona

doi:10.1080/09668136.2014.905385

Cited by 38 publications

(24 citation statements)

References 41 publications

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“…These judiciaries have stronger formal safeguards than most countries in Western Europe that traditionally operate on the basis of mutual trust and respect. In several of the countries of Central and Eastern Europe politicians try to recapture the grip that they relinquished (Coman 2014 ; Kovács and Scheppele 2018 ; Sterk and van Dijk 2019 ). Their authoritarian leaders call the resulting form of government illiberal democracy.…”

Section: Judiciary In a Democracymentioning

confidence: 99%

Judiciary in Democracy: Alignment and Disconnect

Dijk

2020

Perceptions of the Independence of Judges in Europe

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In this last Chapter, the consequences of differences in perceptions are examined. Two concepts are used: the lack of alignment and—more extreme—the disconnect between judiciary and society. Ranking countries by trust in the judiciary, in the lowest 20% there is a disconnect of judiciary and society, in the 20% around the median and in the highest 20% there is lack of alignment. Disconnect and lack of alignment seem to be self-perpetuating, as judges do not perceive the state of independence as problematic. Indications are that even a disconnect does not reduce the use of the civil courts, but that it leads citizens to avoid administrative law procedures. A disconnect weakens the position of the judiciary within the trias politica. This reinforces the complicated relationship between the judiciary and the other state powers. Where the other state powers see an increasing influence of the judiciary, the judiciary sees its own independence endangered. These perspectives clash. For the judiciary the way out is to focus on access to justice as an alternative perspective. By addressing the urgent legal needs of citizens, the judiciary has the potential to improve its alignment with society and its position within the trias politica.

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Section: Judiciary In a Democracymentioning

confidence: 99%

Judiciary in Democracy: Alignment and Disconnect

Dijk

2020

Perceptions of the Independence of Judges in Europe

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“…Abusive wiretapping, politicization and other transgressions of the law by secret service and anti-corruption institutions were reported also in Romania and Bulgaria.11 There is also probably more to come, given the recent revelations on the involvement of undercover secret service agents in the Romanian judiciary and the prosecution.12 Furthermore, there is evidence that most of the newly created integrity and anti-corruption structures (dna, ani) became non-transparent, unaccountable and politicized (Transparency International Romania 2012; Di Puppo 2010). The same is true for judicial councils (the best practice eu-model of court administration), which evolved into politicized, unaccountable and non-transparent bodies (see Bobek and Kosar 2014;Seibert-Fohr 2012;Coman 2014;kipred 2011;osce 2009Sigma Montenegro 2012: 5). Even the newly created specialized criminal courts did not function as they were supposed to, and they were also criticized for undermining fundamental rights (Ivanova 2013;Kuzmova 2014).…”

Section: 2mentioning

confidence: 99%

“…The demand for more transplanted laws and adaptation to international standards has improved the external legality of law but at the same time has fostered legal inflation and instability (Mendelski 2015). The demand for more regulations, furthermore, has increased the discrepancy between formal rules and informal practice (Slapin 2012(Slapin , 2015, and the call for more judicial independence has resulted in more independent but less accountable judicial councils (Bobek/Kosar 2014;Coman 2014). Similarly, the demand for a "solid track record" in fighting high-level corruption cases has increased the number of convictions, but has also lead to more instability of anti-corruption legislation and a misuse of newly established prosecutorial structures, including the violation of fundamental rights (Di Puppo 2010;Ivanova 2013;Capussela 2015).…”

Section: The Problem Of Valuing Quantity Over Qualitymentioning

confidence: 99%

“…Even the newly created specialized criminal courts did not function as they were supposed to, and they were also criticized for undermining fundamental rights (Ivanova 2013;Kuzmova 2014). Last but not least, constitutional courts became in many see countries (and beyond) the embodiment of juristocracy (Hirschl 2009) and politicization (Popova 2012;Beširević 2014;Hipper 2015;Morlino/Sadurski 2010;Seibert-Fohr 2012;Coman 2014).…”

Section: 2mentioning

confidence: 99%

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Europeanization and the Rule of Law: Towards a Pathological Turn

Mendelski

2016

Southeast Eur

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Recent scholarship has exposed the "eu's pathological power", which has undermined the creation of the rule of law in South Eastern Europe (see) and beyond. This paper discusses the "pathological turn" in Europeanization studies by identifying and providing evidence for several "pathologies of Europeanization", i.e. legal and political deficiencies related to rule of law reform, such as legal instability, lack of generality and enforcement, and increased politicization. These pathologies result, among others, from a deficient approach of the eu to rule of law promotion and assessment. In particular, the author highlights three main fundamental problems of Europeanization in the area of the rule of law: 1) valuing quantity over quality; 2) partisan empowerment of domestic change agents; and 3) biased assessment of the rule of law. These problematic issues are further clarified on selected country examples of reform failure from see and the 2012 "rule of law crisis" in Romania. It is argued that given the eu's inability to objectively assess and effectively promote the rule of law, the eu should either abstain from evaluating rule of law or radically revise its approach and methodology, for instance by following the policy advice provided in this paper.

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“…The essential role that separation of powers should play within a liberal democratic order is expressed by the incorporation of the principle itself in many national legal systems at a constitutional level, and amongst the many European constitutional legal orders, Article 173 of the Polish Constitution states as follows: 'The courts and tribunals shall constitute a separate power and shall be independent of other branches of power'. 6 Furthermore, it is worth noting that all the main components of the rule of law, namely legality, legal certainty, prohibition of arbitrariness and respect for human rights,7 are mainly influenced for their proper functioning by the further and additional requirement of access to justice mechanisms, with regard to which the concept of judiciary independence entails a constitutive requirement that could be read as 'a pre-requisite of the rule of law system'. 8 At the international level, the Special Rapporteur of the Commission on Human Rights took a further step when it clarified that judicial independence is 'part of the general principles of law recognised by civilised nations',9 and for that reason, 'the independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the Country.…”

Section: Introductionmentioning

confidence: 99%

Judiciary Saga in Poland: an Affair Torn Between European Standards and ECtHR Criteria

Mastracci

2020

PRIEL

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Judicial independence is a cornerstone of contemporary constitutional systems within European legal orders that Poland, among many other European States, codified the principle at a constitutional level through Article 173 of the Constitution of the Republic of Poland. Nonetheless, the concrete implementation of the theoretical framework remains a bone of contention between the national States and the main international actors. The latter faction, based on the acknowledgement that no single political model could ideally comply with the principle of the separation of powers and secure complete independence of the judiciary, has developed an impressive number of legal tools that are part of a more diffuse European trend of interpretation, which should be labelled as European standard or European corpus aiming at preserving the judiciary order from outward interferences by the legislative and executive powers. In Poland, after the extensive victory earned by the Law and Justice (PIS) party in the Parliamentary election of 2015, the executive branch propelled a series of interlock reforms with the aim of reshuffling the whole judicial asset of the country. In the first place, the way forward was marked by a compound diatribe concerning the Constitutional Tribunal, and the essence of the dispute concerned the mandate’s legitimacy of three sitting judges after the Court’s reinterpretation of the K 34/15 ruling that ended up on 2.12.2015 with the election of five new judges appointed ex novo by the ruling party. Afterwards, the attention shifted towards the rethinking of the National Council of Judiciary (KRS), a mixed judicial body guardian of the independence of the judiciary, asserting, firstly, the unconstitutionality of its statute and, subsequently, planning a new method of appointment for the judicial members previously elected by the judiciary itself. Ultimately, as a closing step, the spotlight turned in the direction of the Supreme Courts judges, where the most spectacular sweep was the provision aimed at lowering the retirement age for the sitting judges on a scheme similar to the proposal made by the Hungarian government in 2011, where voices were raised, respectively, by the Hungarian Constitutional Court, the European Court of Justice and the European Court of Human Rights, and where, regretfully, the judicial independence standard played a minor role in the Courts’ reasoning. This concluding phase convinced the Commission to launch an expedited procedure against Poland before the Court of Justice, thus forcing the Polish government to retracts previous law through the adoption of a repealing law on 17.12.2018; in any event, as predicted earlier by the Opinion delivered by the AG Tanchev in Case C-619/18, the ECJ epilogue released on 24.6.2019, dissimilar to the one reached in the Hungarian case, was the heaviest ‘contrariness to EU law’.

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Quo VadisJudicial Reforms? The Quest for Judicial Independence in Central and Eastern Europe

Cited by 38 publications

References 41 publications

Judiciary in Democracy: Alignment and Disconnect

Judiciary in Democracy: Alignment and Disconnect

Europeanization and the Rule of Law: Towards a Pathological Turn

Judiciary Saga in Poland: an Affair Torn Between European Standards and ECtHR Criteria

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