Judges Assessing the Independence of Judges: Historical Foundations and Practical Procedures in Facing the Threats against the Rule of Law in Europe (original) (raw)
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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
Perceptions of the Independence of Judges in Europe
2021
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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.
Judicial Independence & National Judges in the Recent Case Law of the Court of Justice
European Public Law, 2019
Judicial independence did not only become more visible in the recent case law of the Court of justice but has also been analysed as a systemic parameter of the Union. This article discusses a sample of three cases, Associação Sindical dos Juízes Portugueses, Achmea, and L.M., to assess the notion of judicial independence as applying regarding the national judges in the judicial system of the Union. Judicial independence, as a notion of EU law, is primarily a constitutional requirement presumably deferent to Member States’ standards and pursuing the proper functioning of the Union’s judicial system, namely its effectiveness. However, the recent case law testifies the emergence of a common EU standard of judicial independence, which does not only apply as a minimum standard throughout the Union but also affects the national legal orders. Ultimately, the analyses of the paper point out a curious harmony regarding judicial independence between the principles of effectiveness of Union law and of effective judicial protection under that law without clarifying their articulation.
CONSTITUTIONAL PROVISIONS ON JUDICIAL INDEPENDENCE AND EU STANDARDS
Anali Pravnog Fakulteta Univerziteta u Beogradu (Annals of the Faculty of law in Belgrade, Belgrade Law Review, LXIV, 3, 192-204, 2016
Implementation of the “Checks and balances” principle as one of the milestones in modern democracies, demonstrates its full complexity when it comes to balancing guaranties of judicial independence and the need to prevent misinterpretation or abuse of the rights. Additional issue in that process is determination of the border line between constitutional and guaranties of judicial independence prescribed by law. Raising that issue opens various questions which go beyond the legal framework itself . Actually it tackles the historical, political and cultural country background. Furthermore, if analyzed from the prospective of the requirements defined in the accession negotiation process with the EU, constitutional guaranties of judicial independence become division criteria that challenge the idea of EU standards’ existence and their unselective application as an accession benchmark. Furthermore, lack of clear and objective criteria of (non)application of the EU standards’ might demotivate candidate countries in their efforts to achieve substantial reform results.
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...
What do the European Judges Strive for - An Empirical Assessment
International Journal for Court Administration, 2011
Caseload backlogs and the quality of judicial decision-making have attracted worldwide scholarly attention for quite some time. The puzzle lies in explaining the observed persistence of backlogs alongside the quest for improvement in judicial decision-making. This is especially true since many countries, while trying to cope with this challenging issue, continue to enact regulatory provisions to seemingly improve the judiciary. The principal and agent theory suggests that the incentives of the agent (courts) and the principal (citizens) are going to be aligned under certain circumstances. This article analyzes the incentive mechanisms of continental judicial administration in view of traditional principal-agent theory and provides additional insights into the current legal, behavioral and economic discussion. Specifically, the article analyzes whether the current incentives for judges are in line with theoretical predictions. If one takes for granted that the European-continental judicial systems can be treated as bureaucratic systems, then discussion should, apart from judicial salary increases, focus upon interpretation of the observed differences in evaluation of judges in different countries, and upon the main incentives for judges' good performance and promotion. This article offers a multidisciplinary analysis of current European and most recent Finnish guidelines on effectiveness and quality of judicial administration, and provides a law and economics assessment of proposed guidelines. Moreover, the identified multiplication effect of sticks in judiciary setting offer an additional argument for cautious application or even complete abolishment of such an inducement mechanism.