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Slovenia		 EU accession: the Copenhagen political criteria in ten Central and East European countries
 
Independence of the Judiciary
 
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Judicial Independence
by country
Bulgaria
Czech Republic
Estonia
Hungary
Latvia
Lithuania
Poland
Romania
Slovakia
Slovenia

Goal of the project
The Open Society network places judicial independence among the priority objectives to achieve substantive reform in Central and Eastern Europe. Ideally, the judiciary is the guardian of democracy, rule of law and human rights; only the judiciary can safeguard democratic values against political interests. When necessary, judges must stand ready to act against the executive and legislative branches of government, political parties, pressure groups and media. Only those judges who assert their independence can effectively fulfil their role.

The ideological and political legacy of the region continues to hinder national judiciaries from functioning independently of political branches. Moreover, the current debate on the operation of the judiciary in a number of countries is framed rather in terms of effective case management. From this perspective courts are viewed as an instrument to achieve specific results rather than as an independent power assigned the higher task of guarding democracy and free market economy. For these reasons, it becomes necessary to define the debate further in terms of the consolidation of the independence of the judiciary rather than merely in terms of capacity, effectiveness, and productivity. 

This project seeks to assess the current state of judicial independence—both in law and in fact—in Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovenia and Slovakia.

The research focuses on two main aspects: institutional independence and personal independence. Within these areas, researchers are to analyse the following criteria for determining judicial independence:

  • Constitutional/Legislative construction of judicial branch:
    • Norms and Regulations
    • Relationship to Government branches
    • Extra and post-judicial activities of judges
  • Participation of judicial power in the in the administration of judicial system
    • Supervisory bodies
    • Management
    • Other pressure areas
  • Material conditions
    • External Conditions
    • Internal Conditions
  • Constitutional and legal guarantees for judges
  • Selection of judges
    • Tenure
    • Performance
    • Compensation
    • Association
  • Decisional Independence
    • Decision-making processes
    • Case management and relations with court chairpersons
    • Accountability of judges
International instruments in support of an independent judiciary
Giacomo Oberto, Deputy Secretary General of the International Association of Judges, in a recent statement has described the principles underpinning independence of the judiciary as a "mosaic" of international instruments, which have gradually taken on the status of an "International Judicial Corpus Juris". The main agreements he refers to are the following:
Twelve basic principles of an independent judiciary

Oberto summarises the principles enshrined in the above documents as follows: 

  1. The Judiciary is an autonomous body. It is not subject to any of the other two powers of the State. Public prosecutors should enjoy the same guarantees provided for by the law concerning the judicial status. 
  2. Judges and public prosecutors are only subject to the law. 
  3. Judges and public prosecutors should be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect. 
  4. Judges and public prosecutors should be selected through competitive examinations. The selection and each appointment of a judge or of a public prosecutor must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation. 
  5. No influence at all should be given to the executive or to the Legislative power in the process of selection of judges and public prosecutors. 
  6. A High Council for the Judiciary should be established. The High Council for the Judiciary should be entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning judges and public prosecutors. This body should be composed of judges and public prosecutors, or at least have a majority representation of judges and public prosecutors. 
  7. Judges and public prosecutors cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure. 
  8. Disciplinary action should be carried out by independent bodies that include substantial judicial representation. Disciplinary action against judges and public prosecutors can only be taken when provided for by pre-existing law and in compliance with predetermined rules of procedure. 
  9. Each judge and each public prosecutor has the right to be provided with an efficient system of initial and further judicial training; attendance to these two forms of training should be, for a certain period, compulsory for each judge or public prosecutor, or at least it should represent an essential condition for moving to a higher post. Judicial training should be provided by an independent institution, such as the French Ecole Nationale de la Magistrature, or by the independent body, that include substantial judicial representation. 
  10. Judges and public prosecutors must be granted proper working conditions. 
  11. Salaries of judges and of public prosecutors be fixed by statute (and not by an act of the executive power) and linked to the salaries of parliamentarians or of ministers. They should not be reduced for any reason. 
  12. Judges and public prosecutors must be granted full freedom of association, both on national and international level. Activity in such association must be officially recognised as judicial work. 
Institutes and Organisations 
Country specific institutes are given on the country pages. The following are international organisations.


Internet link resources:

EU evaluations of judicial independence
In its 1997 Opinions on the ten accession countries, the European Commission noted that all countries with the exception of Slovakia, had instruments in place to guarantee the independence of the judiciary. Nevertheless, the Opinions and the later progress reports note many cases in most countries where the principles outlined above are not in force, or recognised in the constitution or other legal instruments.

In the country pages we link to the constitutions of ten countries, the EU's Opinions and Progress reports, relevant organisations in each country and any other sources of available information. 


EU law sites:

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