Judicial independence and accountability

Shetreet, Shimon

doi:10.1017/cbo9780511996399.003

Cited by 9 publications

(5 citation statements)

References 10 publications

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“…In fact, accountability and high integrity are critical elements of a non-corrupt judiciary (Rose-Ackerman 2007, p. 24). Institutional independence must be understood as being instrumental to the independence of individual judges in deciding on cases free from any influence, whether coming from within or without the court structure (Shetreet 2011, Popova 2012. Therefore, any healthy judiciary system requires proper accountability mechanisms that would prevent powerful judges or other judiciary figures or groups from hijacking the branch under the appearance of independence.…”

Section: Definitions and Causesmentioning

confidence: 99%

“…As a result of these two conflicting visions provided by the government and the media and NGOs respectively, public trust towards public institutions deteriorates, which is most visible when it comes to courts and the judiciary. Yet, public trust towards an independent and impartial judiciary is a prerequisite for the rule of law and a functioning democratic establishment (Shetreet 2011).…”

Section: The Context Of the Judiciary In Slovakiamentioning

confidence: 99%

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Judges under corruption stress: Lessons from leaked files about corruption in Slovakia

Mazur

2024

Oñati Socio-Legal Series

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Judicial corruption represents a critical issue for proper functioning of the rule of law and democracy. I explore the topic of judicial corruption and the role judges and lawyers may play in it in Slovakia. We are accustomed to think of judges under stress from political actors or for ideological reasons, although the Slovak case highlights that pressure may also come from rather banal greed-motivated corruption. The paper compares assumptions about judicial corruption, based on in-depth interviews with judges and lawyers (i. e. “how the judges and lawyers believe the judicial corruption works”), and revelations from the leaks of private communications of a prominent Slovak criminal with multiple judges and lawyers (so-called “Threema” scandal, 2019-2021), which caused an upheaval among the politicians and judiciary in Slovakia (i. e. “how the judicial corruption actually works” as based on investigative journalism and published criminal investigations). The leaks led to dozens of criminal investigations of public servants, politicians, businessmen, judges, or lawyers with over 40 of these investigations concluded with a lawful verdict, which provide credence to the leaks. Both from interviews and leaks, judicial corruption in Slovakia appears to have been available to parties willing to access judges through trust brokers, or “fixers”, typically either lawyers, or “entrepreneurs”. The nature of judicial corruption was thus be twofold; (i) low-stake, relying on social capital of judges, lawyers, and “fixers”, established through common socialization and interests; (ii) relying on cash payments facilitated by specific trust brokers – “fixers”, including payments through virtual trusts or secondary trusted service providers. Fixers were not only supposed to influence procedural and meritorious decisions on behalf of their “clients” but also in their own interest in self-initiated legal cases on certain familiar courts and thereby enriching themselves. The paper provides details of suspected corrupt practices, including mechanisms of paying bribes, through comparing interviewees’ perception of judicial corruption and the nature of judicial corruption as based on the leaks covering instances of corrupt practices. En el artículo, exploro el tema de la corrupción judicial como fuente de estrés judicial y el papel que jueces y abogados pueden desempeñar en ella en Eslovaquia. El documento compara las suposiciones sobre la corrupción judicial, basadas en entrevistas en profundidad con jueces y abogados (es decir, “cómo creen los jueces y abogados que funciona la corrupción judicial”), y las filtraciones de las comunicaciones de un destacado delincuente eslovaco con múltiples jueces y abogados (es decir, “cómo funciona realmente la corrupción judicial” según el periodismo de investigación y las investigaciones penales publicadas). Las filtraciones condujeron a múltiples investigaciones penales y condenas, lo que dio credibilidad a las filtraciones. Descubrí que la naturaleza de la corrupción judicial era, por tanto, doble: (i) de bajo riesgo, basada en el capital social de jueces, abogados y “amañadores”, y establecida a través de la socialización y los intereses comunes; (ii) basada en pagos en efectivo facilitados por intermediarios de confianza específicos, los “amañadores”, incluidos los pagos a través de fideicomisos virtuales o proveedores de servicios secundarios de confianza. Al parecer, los amañadores no sólo influían en las decisiones procesales y meritorias en nombre de sus “clientes”, sino que también actuaban en su propio interés en casos judiciales iniciados por ellos mismos en determinados tribunales conocidos, enriqueciéndose así. El documento ofrece detalles de las presuntas prácticas corruptas, incluidos los mecanismos de pago de sobornos.

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Section: Definitions and Causesmentioning

confidence: 99%

Section: The Context Of the Judiciary In Slovakiamentioning

confidence: 99%

Judges under corruption stress: Lessons from leaked files about corruption in Slovakia

Mazur

2024

Oñati Socio-Legal Series

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“…The connection between the insulation of choices related to judges' careers and judicial independence is rather straightforward. The argument that to secure judicial independence the judiciary must be institutionally insulated from other actors has not only been present in the scholarly literature (e.g., Larkins, 1996 ; Rios‐Figueroa, 2006 , p. 4; Shetreet, 2011 , p. 3), but can also be found in several documents backed by democracy and rule of law promoters such as Recommendation CM/Rec (2010) 12 on the independence, efficiency, and responsibilities of Judges of the Committee of Ministers issued by the Council of Europe, the European Charter on the statute for judges approved in 1998 by the European Association of Judges and the Universal Charter of the Judge adopted in 1999 by the International Association of Judges. However, several scholarly works suggest that structural insulation is not sufficient to secure de facto independence, whether measured at the level of actual decisionmaking regarding judicial careers (Spáč, 2020 ; Voigt et al, 2015 ) or at that of adjudication (Popova, 2012 ).…”

Section: Power To Judges? Theories On Jsg and Its Measuringmentioning

confidence: 99%

Judicial Self‐Governance Index: Towards better understanding of the role of judges in governing the judiciary

Šipulová

Spáč

Kosař

et al. 2022

Regulation & Governance

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The aim of this article is to introduce a novel view on how to evaluate the share of power held by judges in judicial governance. Its contribution to court administration and the regulation of judges is three-fold. First, it provides a novel empirically tested conceptualization of judicial governance that includes 60 competences grouped into eight dimensions (ranging from selection and education of judges to case allocation and publication of judicial decisions). Second, it proposes a new Judicial Self-Governance (JSG) Index that measures how much power domestic judges hold in these eight dimensions of judicial governance. Third, by applying the JSG Index to the longitudinal data for Germany, Italy, Czechia, and Slovakia this article demonstrates that the Judicial Council model is not the only institutional model of judicial governance leading to the empowerment of judges. This means that judges can hold many powers without the existence of judicial councils and even in the Ministry of Justice model.

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“…Probably all conceptualizations of judicial independence fall in the spectrum between perceiving independence as a feature of institutional design, and as a feature of judicial decision-making. Various terms can be applied to this dichotomy: some differ between independence as means and ends; 26 others apply labels such as 'structural insulation' 27 or refer to judicial independence as a specific mechanism 28 14 D. Kosař when speaking about the former; while others perceive it as a value in itself, 29 or label it as 'party detachment', 30 'impartiality' 31 or 'judicial autonomy', 32 when speaking about the latter. One can also distinguish between institutional, decisional and behavioral independence, 33 here the first term focuses on the level of the judiciary, while the other are understood at the level of individual judges.…”

Section: Reconciling De Iure and De Facto Definitionsmentioning

confidence: 99%

Conceptualization(s) of Judicial Independence and Judicial Accountability by the European Network of Councils for the Judiciary: Two Steps Forward, One Step Back

Kosař¹,

Spáč²

2018

IJCA

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This article focuses on conceptual issues regarding the new methodology of the European Network of Councils for the Judiciary (ENCJ) for measuring judicial independence and accountability. First, we argue that the proposal mixes up several concepts-judicial independence, judicial accountability, transparency of the judiciary, and public trust in the judiciary-which should be treated separately. Second, the proposal relies too much on conceptions of independence developed by the judicial community. As a result, it treats judicial administration with higher levels of involvement of judges as inherently better without empirical evidence, and does not sufficiently distinguish between de iure and de facto judicial independence. Moreover, the ENCJ's indicators of judicial accountability are underinclusive as well as overinclusive and do not correspond to the traditional understanding of the concept. Finally, we argue that the ENCJ has to accept the possibility that (at least some types of) judicial councils (at least in some jurisdictions) might negatively affect (at least some facets of) judicial independence and judicial accountability. As a result, the ENCJ must adjust the relevant indicators accordingly.

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Judicial independence and accountability

Cited by 9 publications

References 10 publications

Judges under corruption stress: Lessons from leaked files about corruption in Slovakia

Judges under corruption stress: Lessons from leaked files about corruption in Slovakia

Judicial Self‐Governance Index: Towards better understanding of the role of judges in governing the judiciary

Conceptualization(s) of Judicial Independence and Judicial Accountability by the European Network of Councils for the Judiciary: Two Steps Forward, One Step Back

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