A Method for Assessment of the Independence and Accountability of the Judiciary (original) (raw)
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International Journal For Court Administration, 2018
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.
Perceptions of Judicial Independence in European Countries
2020
The perceptions of judicial independence of judges, lawyers, general public and companies are analysed across countries. The perceptions of these categories are strongly correlated. However, the mean scores differ: judges are much more positive about their independence than lawyers, and lawyers are much more positive than the general public and companies. As to the general public, highly educated citizens are generally more positive about the presence of independence than citizens with lower education levels. The difference increases with the degree of independence. Citizens with little education in very different countries have similar perceptions of judicial independence. The limited information that is available about court users suggests that persons with recent experience with the courts are less positive about independence than persons without experience. For companies the reverse is apparent. Among both the general public and companies, the perceptions diverge more with exper...
International Journal for Court Administration
to this Special Issue. Their commentaries on the indicators for independence and accountability of the judiciary as developed for the ENCJ give many useful ideas for future development. The comments also reflect the different disciplinary backgrounds of the authors and point to the need to position the ENCJ approach within the diverse disciplines that engage in the analysis of judicial independence. It is obvious that the approaches of the commenters on the ENCJ study differ widely. In economics the approach focuses on measuring independence for inclusion as variable in econometric models about, for instance, economic growth or protection of property rights. More (de-facto) independence enhances economic performance, but how more independence is to be achieved is not addressed. From the perspective of performance management of organizations, independence is part of court performance for the clients and to some degree subservient to it. In a legal, descriptive approach, the situation in different countries is described in detail, also as a part of judicial culture. The ENCJ study only sets criteria for measuring judicial independence, and does not address performance measurement of courts and judges in general.
From the Managing Editor: Measuring Judicial Performance, Independence and Accountability
International Journal for Court Administration
By Philip Langbroek, Managing Editor On April 12-13, 2018, The European Network for Councils of the Judiciary, together with the Montaigne Center of Utrecht School of Law organized a seminar to discuss and validate a report on a major research project conducted by Frans van Dijk, Kees Sterk, Alain Lacabarats, and Guillaume Tusseaud of the Netherlands and the French Councils forthe Judiciary respectively, on the measurement of Judicial Independence and Accountability. The reports on this project can be found at the website of the ENCJ. This Special Issue is dedicated to that report and to that seminar, and guest editor Frans van Dijk and I acted as editors for this special Issue.
Judicial Independence and Perceptions of Judicial Independence
2020
The three key concepts of this study are: perceived judicial independence, respect for judicial independence and trust in the judiciary. To provide the basis for the empirical chapters that follow, theoretical considerations are explored. Due to the subjective nature of independence, perceptions matter. According to European case law, the appearance of independence needs to be taken into account when the independence of a court is evaluated. The perceptions held by parties, lawyers, media, general public and judges are not homogeneous, and depend on different sets of factors. In the literature, it is widely believed that the judiciary needs a positive perception of independence to gain the trust of society. This trust in turn bolsters the legitimacy of the judiciary. Trust and legitimacy are many-faceted concepts. In this study trust is used in the sense of diffuse institutional trust. Respect for independence is used as an expression of the legitimacy of the judiciary. These concep...
Challenges for judicial independence and impartiality in the member states of the Council of Europe
———————————— Challenges for judicial independence and impartiality in the member states of the Council of Europe Report prepared jointly by the Bureau of the CCJE and the Bureau of the CCPE for the attention of the Secretary General of the Council of Europe as a follow-up to his 2015 report entitled " State of Democracy, Human Rights and the Rule of Law in Europe – a shared responsibility for democratic security in Europe ". The report addresses challenges to judicial independence and impartiality, especially political influence on the appointment and promotion of judges and prosecutors, but also the financial situation of the judiciary and corruption
Some insights into the concepts of judicial independence, accountability, control, and constraints
Ladislav Orosz, Sabina Grabowska and Tomáš Majerčák (eds.), Úvahy o zmenách v ústavnej úprave súdnej moci a ich dopady na rozhodovaciu činnosť Ústavného súdu Slovenskej republiky – IX. ústavné dni, 2021
The idea that a constitutional mechanism is needed to ensure that judges who do not meet the high standards required for the exercise of their function should not continue to exercise their role is a common one. This work focuses on four different concepts, often referred to as support for this assumption: Judicial accountability, constraints, control, and independence. These notions are treated separately to clearly demonstrate both the theoretical influences and practical problems that each concept generates for the others. Indeed, the main objective of this paper is not to identify the best constitutional solution to the problem of judges’ responsibility but rather to indicate how a clear understanding of the concepts of judicial accountability, constraints, control, and independence could lead to a constitutionally informed choice regarding the work of judges and its consequences. In pursuing this goal, this research illustrates the critical role that these concepts, adequately conceived, play in the Western constitutional system, and hence the crucial role that politics must play in the work of courts and the judiciary if judges are to continue to serve as the guardians of our fundamental rights and liberties.