JUDICIAL SYSTEM INSTITUTIONAL FRAMEWORKS: AN OVERVIEW OF THE INTERPLAY BETWEEN SELF-GOVERNANCE AND INDEPENDENCE (original) (raw)
Judicial Independence in Central and East Europe: The Institutional Context
Tulsa Journal of Comparative and International Law, 2006
constitutions that established and legitimized experimentation with democratic reform. The new constitutions outline governments that are organized by function, and distinguished by the manner in which authority is apportioned among those functions to achieve a separation of powers. A primary functional component of each of these new governments is a judiciary. 2 Under the constitutions or laws and statutes issued under the constitutional umbrellas, the judiciary was to be organized and maintained independently. 2. E.g., see generally infra note 3. Although the governments of the countries under discussion typically feature a constitutional court, such courts exist independently and fall outside the jurisdiction of the judicial branch. To that extent, they are not included in this discussion. 3. ALB. CONST. art. 145 (Adopted on August 4, 1998; states that "Judges are independent and subject only to the Constitution and the laws." To underscore that independence, § 3 adds that "Interference in the activity of the courts or the judges entails liability according to law."); BELR. CONST. art. 6 (Adopted on March 1, 1994; ordains that the State shall rely on the principle of dividing power into legislative, executive, and judicial power. State bodies, within the limits of their powers, shall be independent. They shall cooperate among themselves and check and counterbalance one another. Chapter 6, art. 110, § 1 states that "In administering justice judges shall be independent and subordinate only to the law."); BULG. CONST. art. 117 (Adopted on July 12, 1991; provides that "Judicial power is independent."); CHECHNYA CONST. art. 94 (Adopted on March 12, 1992; provides that the judicial power in Chechen Republic is executed only by court and acts irrespective of legislative, executive authority as well as of parties, other public unifications and movements. Nobody, except for bodies of justice stipulated by the Constitution and laws of Chechen Republic, have the right to incur functions and authorities of judicial power. Article 97 provides that judges are independent and subordinated only to the law. CROAT. CONST. art. 4 (Adopted in December 1990; specifies that the government "[S]hall be organized on the principle of separation of powers into legislative, executive, and judicial branches." Article 117 specifies that "Judicial power shall be autonomous and independent." t"STAVA CR [Constitution] art. 2 (Czech Rep.), (Adopted on December 10, 1992; declares that "All state power derives from the people; they exercise this power by means of their legislative, executive, and judicial bodies." Article 81 provides that "Judicial power is exercised by independent courts on behalf of the Republic." Article 82 states further that "Judges are independent in the execution of their function."); EST. CONST. art. 4 (Adopted on June 28, 1992; prescribes that "The work of the Parliament, the President of the Republic, the Government of the Republic, and the Courts shall be organized on the principle of separate and balanced powers." Article 146 specifies that "The Courts shall be independent in their work and shall administer justice in accordance with the Constitution and laws."); A MAGYAR KOzTARSASAG ALKOTMANYA [Constitution] art. 50 (Hung.) (Adopted on August 20, 1949 and subsequently amended; provides that "Judges are independent and subordinate only to the law."); LAT. CONST. art. 83 (Adopted on February 15, 1922; article 83 ordains that "Judges shall be independent and subject only to the law."); LITH. CONST. art. (Adopted on October 25, 1992; provides that "In Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and Government, and the Judiciary." Article 109 ordains that "While administering justice, judges, and courts shall be independent."); MACED. CONST. art. 98 (Adopted on November 17, 1991; states that "Judiciary power is exercised by courts. Courts are autonomous and independent."); POL. CONST. art. 10 (Adopted on April 2, 1997; provides that "The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive, and judicial powers." Article allocates legislative power to the House of Representatives (Sejm) and the Senate, executive power 2006] JUDICIAL INDEPENDENCE 55 However, precisely what this independence entails is left unstated to varying degrees. 4 Some specify that once judges are appointed, they serve unlimited terms or are guaranteed tenure until a certain age. 5 Others ordain that once to the President of the Republic and the Council of Ministers, and judicial power to the courts and tribunals. Article 173 identifies the judiciary as a "separate power" that "shall be independent of other branches of power." Article 178 ordains that "Judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes." The body within the Judicial Branch that is charged to "safeguard the independence of courts and judges" in art. 186 of the Constitution is the National Council of the Judiciary.); ROM. CONST. art. 123 (Adopted on December 8, 1991; provides that "Judges shall be independent and subject only to the law."); KONSTITUTSIA RosSlSKO1 FEDERATSII [KONST. RF][Constitution] art. 10 (Russ.) (Adopted on December 12, 1993; provides that "State power in the Russian Federation is exercised on the basis of the separation of the legislative, executive, and judiciary branches. The bodies of legislative, executive, and judiciary powers are independent." Article 120 provides that "Judges are independent and obey only the Constitution and the federal law."); SLOVK. CONST. art. 141 (Adopted on September 1, 1992; provides that "The judiciary shall be administered by independent and impartial courts of the Slovak Republic." Section 2 provides that "The judiciary shall be independent of other branches of government at all levels." Article 144 ordains that "Judges shall be independent and bound only by law."); SLOVN. CONST. art. 3 (Adopted on December 23, 1991; provides that "In Slovenia, power is vested in the people. Citizens exercise this power directly and through elections, consistent with the principle of separation of legislative, executive, and judicial powers." Article 125 provides that "Judges shall be independent in the performance of the judicial function. They shall be bound by the Constitution and laws."). 17. See generally 1-4 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand, ed., 2d ed. 1937) (referencing the separation of powers argument in the debates among the framers).
Judicial Independence in Poland
Judicial Independence in Transition (Ed.) A. Seibert-Fohr, Springer, 2012
From the Preface by Anja Seibert-Fohr This book describes judicial independence as a central aspect of the rule of law in different stages of transition to democracy in the OSCE region. From a legal comparative perspective it shows that the implementation of this principle requires continuous efforts, not only in countries in transition but also in established democracies which are confronted with ever new challenges to judicial independence. Based on the conviction that States can learn from each other’s experience it gives a broad overview of a variety of mechanisms to ensure judicial independence and identifies shortcomings in the current implementation of this principle. By analyzing judicial reforms in transitional countries it also seeks to guide international actors engaged in rule of law reforms. [...] The country studies on post-communist states originated from a joint project of the Max Planck Minerva Research Group on Judicial Independence and the OSCE Office for Democratic Institutions and Human Rights (ODIHR). I started thinking about it during the course of several OSCE Human Dimensions Meetings which showed once again that without an independent judiciary the guarantee of human rights is futile. [...]
2019
I. The essence of the democratic power established in the Constitution of the Republic of Poland (hereinafter the Constitution) is to limit this power in order to protect the rights of the individual from threats that may be posed by the rule of the majority, especially when this majority seeks to impose its values and beliefs on others. This limitation is expressed both by the principle of the separation and balance of powers, as well as by the principle of a democratic state ruled by law and, above all, by the principle of inherent and inalienable human dignity. The system of the Republic of Poland and the interpretation of provisions concerning the organisation of the state apparatus and its mode of operation are subordinate to the latter principle.1 According to Article 30 of the Constitution, the source of rights and freedoms is the inherent and inalienable dignity of the person. This dignity is inviolable, and it is the responsibility of the public authorities to respect and p...
Poland: Current Debates on the Supervision over the Administrative Activity of the Common Courts
European Public Law, vol. 20, issue 3, 2014
This article examines the institution of the supervision over the administrative activity of the courts of general jurisdiction (the so-called common courts) in Poland. This kind of supervision is performed in Poland by the Minister of Justice, judges seconded to the Ministry, as well as the presidents of the courts. The author considers the basic constitutional principles referring to the status of the judiciary and draws the reader's attention to the discussion on the current regulations concerning such supervision. The problem, first of all, lies in the ambiguous wording of the statutory regulations, which makes it difficult to clearly distinguish administrative tasks in a strict sense from duties connected with the dispensation of justice. Despite the friendly attitude of the Constitutional Tribunal towards the supervisory competences of the Minister of Justice, the author argues, like many scholars and judges in Poland, that the administrative activity of the common courts should instead be controlled by judicial organs (i.e., the First President of the Supreme Court on his own or with the cooperation of the National Council of the Judiciary). At the same time, the author is convinced on the necessity of pending general debates concerning the competence of executive power towards the judiciary in future.