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Politics of Judicial Independence and Judicial Accountability in Czechia: Bargaining in the Shadow of the Law between Court Presidents and the Ministry of Justice

Abstract

Judicial independence – Judicial accountability – Court presidents – Judicial politics – Separation of powers – Court administration – Judicial councils – Selection of judges – Czechia – Central Europe

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1 For further details of this model and its rise in Europe see Seibert-Fohr A., ‘Judicial Independence in European Union Accessions: The Emergence of a European Basic Principle’, 52 German Yearbook of International Law (2009) p. 405 ; Müller L., ‘Judicial Independence as a Council of Europe Standard’, 52 German Yearbook of International Law (2009) p. 461 ; Parau C., ‘The Dormancy of Parliaments: The Invisible Cause of Judiciary Empowerment in Central and Eastern Europe’, 49 Representation (2013) p. 267 ; and Bobek M. and Kosař D., ‘Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe’, 15 German Law Journal (2014) p. 1257 .

2 Judicial councils can be roughly defined as intermediary bodies between the political branches and the judiciary that have advisory or decision-making powers mainly in the appointment, promotion and discipline of judges. For a succinct categorisation of judicial councils see Garoupa N. and Ginsburg T., ‘Guarding the Guardians: Judicial Councils and Judicial Independence’, 57 American Journal of Comparative Law (2009) p. 103 .

3 For the purposes of this article, the ‘Judicial Council Euro-model’ means a particular model of judicial council which meets five criteria, namely: (1) it is entrenched in the Constitution; (2) it ensures that judges have at least parity in it; (3) real decision-making power is vested in it; (4) most competences regarding a judge’s career are transferred to it; and (5) the Chief Justice or his/her equivalent is selected as its chairman (see Bobek and Kosař, supra n. 1, p. 1262-1264).

4 See the literature in supra n. 1.

5 See e.g. Popova M., ‘Why the Bulgarian Judiciary Does Not Prosecute Corruption?’, 59 Problems of Post Communism (2012) p. 35 (on Bulgaria); A. Bodnar and L. Bojarski, ‘Judicial Independence in Poland’, in Anja Seibert-Fohr (ed.), Judicial Independence in Transition (Springer 2012) p. 667 (on Poland); R. Coman and C. Dallara, ‘Judicial Independence in Romania’, in ibid. p. 835 (on Romania); Z. Fleck, ‘Judicial Independence in Hungary’, in ibid. p. 793 (on Hungary); and D. Kosař, Perils of Judicial Self-Government (Cambridge University Press 2016) p. 236-333 (on Slovakia).

6 For more details on the ‘outlier case’ logic and on why outlier cases are particularly important for theory-building research see Hirschl R., ‘The Question of Case Selection in Comparative Constitutional Law’, 53 American Journal of Comparative Law (2005) p. 125 at p. 146-152.

7 See e.g. Frankowski S., ‘The Independence of the Judiciary in Poland: Reflections on Andrzej Rzeplinski’s Sadownictwo w Polsce Ludowej (The Judiciary in Peoples’ Poland) (1989)’, 8 Arizona Journal of International & Comparative Law (1991) p. 33 at p. 40–47; and Markovits I., ‘Children of a Lesser God: GDR Lawyers in Post-Socialist Germany’, 94 Michigan Law Review (1996) p. 2270 at p. 2292–2293.

8 See Bobek M., ‘The Administration of Courts in the Czech Republic – In Search of a Constitutional Balance’, 16 European Public Law (2010) p. 251 at p. 252-254; and Kühn Z., The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? (Brill 2011) p. 1-4 and 7–8.

9 See e.g. A. Bröstl, ‘At the Crossroads on the Way to an Independent Slovak Judiciary’, in J. Přibáň et al. (eds.), Systems of Justice in Transition: Central European Experiences since 1989 (Ashgate 2003) p. 141 at p. 143; and E. Wagnerová, ‘Position of Judges in the Czech Republic’, in ibid., p. 163 at p. 167.

10 Due to space constraints, this article cannot get into the details of why the 2000 constitutional bill, which was intended to introduce the judicial council model of court administration in the Czech Republic, was rejected by the Czech Parliament. For further details see Bobek, supra n. 8, p. 269; and Kosař, supra n. 5, p. 182-185.

11 A judicial board is a ‘self-governing’ judicial body created at every Czech court that consists exclusively of regular judges of a given court. Court presidents and vice-presidents cannot sit on judicial boards.

12 Note that Czech court presidents were appointed for life (until September 2008) and then for a term of 7 to 10 years (since October 2008). In contrast, the average length of the term of the Czech Minister of Justice since 1993 has been less than two years; see also infra n. 59.

13 On the importance of such small-scale mechanisms in general see Vermeule A., Judicial Mechanisms of Democracy: Institutional Design Writ Small (Oxford University Press 2007).

14 See Kosař, supra n. 5, p. 188-191 and 215-216.

15 In most civil law systems, court presidents have a reduced case load due to their numerous administrative tasks.

16 I am grateful to an anonymous reviewer for this insight.

17 Interview with a former president of a regional court (who was one of the co-founders of the college) of 6 May 2015.

18 According to one of the ‘founding fathers’ of the college, the idea of creating an informal association of regional court presidents was suggested to them by Mr Jean-Michel Peltier, a French liaison magistrate in Prague (ibid.).

19 Interview with a former president of a regional court (who was one of the co-founders of the college) of 6 May 2015.

20 Note that in 2007 presidents of regional courts attempted to formalise the college and entrench it into the Law on Courts and Judges. However, both the Minister of Justice and the presidents of the top courts rejected that idea, and the relevant amendment to the Law on Courts and Judges was not adopted (ibid.).

21 For further details on the emergence of the college of presidents of regional courts see Kosař, supra n. 5, p. 179-180.

22 This term has not been coined in Czech. Nevertheless, policy makers as well as journalists often speak of the consensus among the ‘trojice’ of the court presidents of the Czech top courts.

23 This was in fact a strategic resignation as her successor was agreed upon beforehand.

24 Note that Iva Brožová was often out of sync with Pavel Rychetský and Josef Baxa.

25 Pavel Rychetský and Josef Baxa have known each other well since the late 1990s as Josef Baxa was a Vice-Minister of Justice in the Government of Miloš Zeman (1998-2002), whose Vice-PM was Pavel Rychetský.

26 See Kühn, supra n. 8, p. 1-4 and 7–8; and Bobek, supra n. 8, p. 252-253.

27 On the distinction of the hierarchical and coordinate ideal of authority see Damaška M., The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (Yale University Press 1986) p. 16-46 and 181-239.

28 The ‘transmission belt’ metaphor suggests that the Czechoslovak court presidents, who could be recalled by the Communist Party anytime at a whim, were the conduit of the Communist Party influence over individual judges. The main role of the court presidents was thus to ‘transmit’ orders from the Communist Party to individual judges in sensitive cases. For the discussion of the ‘transmission belt’ argument in the Czech Republic after the Velvet Revolution, see infra n. 53.

29 Note that under the Soviet model of prokuratura the General Prosecutor was the main guardian of the socialist legality who, apart from vast powers in civil and criminal trials, was also responsible for the court administration and supervising judges. See Art. 6 of Constitutional Law No. 64/1952 Col., on Courts and Procuracy; Wagnerová, supra n. 9, p. 167; and Kühn, supra n. 8, p. 43-45 and 61-62 (all regarding the communist Czechoslovakia). On the Soviet prokuratura more generally, see e.g. G. Smith, The Soviet Procuracy and the Supervision of Administration (Springer 1978) and Hazard J., Communists and Their Law (University of Chicago Press 1969).

30 Since the late 1990s a new constitutional convention has emerged. The Minister of Justice first presents the list of candidates to the Government, which votes on the list and then submits it to the Czech President who formally appoints the judges (Art. 63(1)(i) of the Czech Constitution).

31 See supra n. 14.

32 See Art. 62(f) of the Czech Constitution.

33 See Art. 84(2) of the Czech Constitution.

34 Due to space restrictions, it is not possible to discuss this line of case law in detail here. In a nutshell, the Supreme Administrative Court held that the President of the Czech Republic had to either appoint a judge nominated by the Government or issue an administrative decision that provides reasons for not appointing a given judge. This administrative decision is then, according to the Supreme Administrative Court, reviewable by administrative courts (see Judgment of the Czech Supreme Administrative Court of 21 May 2008, No. 4 Ans 9/2007-197). However, the then Czech President, Václav Klaus, refused to implement this judgment and never issued such a decision. As a result, the scope of administrative review in such cases is unclear. For further details see Bobek, supra n. 8, p. 260-263.

35 See Judgments of the Czech Constitutional Court of 11 July 2006, case no. Pl. ÚS 18/06; of 12 December 2006, case no. Pl. ÚS 17/06; of 12 September 2007, case no. Pl. ÚS 87/06, §§ 40-41 and 70; and of 6 October 2010, case no. Pl. ÚS 39/08, §§ 62-69. All of these judgments are discussed in more detail below.

36 Since 2008 the President has also appointed presidents of high courts and regional courts, in both cases upon nomination by the Minister of Justice.

37 See Bobek, supra n. 8, p. 260-263.

38 See supra n. 30.

39 Note that the Czech Parliament plays a key role in staffing the Czech Constitutional Court, as its upper chamber, the Senate, confirms all Justices of the Czech Constitutional Court (by simple majority) upon the nomination of the President of the Czech Republic (see supra n. 33).

40 All changes to Chapter Four (the Judicial Branch) of the Czech Constitution adopted since 1993 have been rather cosmetic in nature.

41 Note that the only attempt to change the large-scale structure of the Czech judiciary, the 2000 constitutional Bill which was supposed to introduce the judicial council, was rejected by the Czech Parliament in 2000. See also supra n. 10.

42 Kosař D., ‘Conflicts between Fundamental Rights in the Jurisprudence of the Czech Constitutional Court’, in E. Brems (ed.), Conflicts Between Fundamental Rights (Intersentia 2008) p. 347 at p. 348–351. For a broader comparative context see W. Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer 2014) p. 13-27 and 91-117.

43 See Roznai Y., ‘Legisprudence Limitations on Constitutional Amendments? Reflections on the Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act’, 8 Vienna Journal on International Constitutional Law (2014) p. 29 .

44 See Zbíral R., ‘A Legal revolution or negligible episode? Court of Justice decision proclaimed ultra vires (Czech Constitutional Court, judgment of 31 January 2012, Pl. ÚS 5/12)’, 49 CMLR (2012) p. 1475 ; and Bobek M., ‘Landtová, Holubec, and the Problem of an Uncooperative Court: Implications for the Preliminary Rulings Procedure’, 10 EuConst (2014) p. 54 .

45 For a snapshot of these interventions see Bobek, supra n. 8.

46 See ibid.

47 Given the nature and composition of these bodies, the more appropriate translation into English would be ‘judicial assemblies’, but all materials on the Czech judiciary in English, including the accession reports of the European Union, use the term ‘judicial board’. Hence, in order to avoid confusion, this article will also refer to these bodies as ‘judicial boards’.

48 Small district courts are an exception, as there is no judicial board at district courts with fewer than 11 judges. Instead, the plenary session consisting of all the judges fulfils the tasks of a judicial board. For further details see Arts. 46-59 of Law no. 6/2002 Coll., on Courts and Judges.

49 Arts. 50-53 of Law No. 6/2002 Coll., on Courts and Judges.

50 The central position of court presidents is further buttressed by the fact that they set the agenda for judicial board meetings.

51 This mistake was made even by the European Commission. See the 2002 Accession Progress Report on the Czech Republic, p. 22: ‘The … [2002 Law on Courts and Judges] introduced a first step towards self-government of the judiciary by the creation of Judicial Councils which have the status of consultative bodies at all court levels’ (emphasis added).

52 I am grateful to the President of the Judicial Union, Daniela Zemanová, for this information.

53 Note that the ‘transmission belt’ argument has a different twist regarding the apex courts, where it was the Czech President (and not the Minister of Justice) who could, de jure, recall the presidents of the Supreme Court and the Supreme Administrative Court. However, the logic remains the same.

54 However, there was one difference: court presidents were supposed to follow the orders of the executive and not the Communist Party. On the role of court presidents during the communist Czechoslovakia, see supra n. 28.

55 See J. Kolomazníková and L. Navara, ‘Pravým důvodem odvolání soudců je zřejmě jejich minulost’, IDnes.cz, 17 March 1999.

56 For the reasons of this failure see Bobek, supra n. 8, p. 256; and Kosař, supra n. 5, p. 182-185.

57 See infra nn. 63-71.

58 The access to decisions of the Czech lower courts improved significantly in the late 2000s, but not all are available.

59 The term of the current Minister of Justice, Robert Pelikán, who has held the office since March 2015 is not taken into account. See also supra n. 12.

60 That explains why Ministers of Justice needed particular court presidents. i.e. those who already held the office (incumbents), and could not replace the sitting court presidents easily. In other words, the sitting court presidents were well embedded and regarded in the system, and thus it was difficult to dismiss them.

61 Note that Jiří Pospíšil held the office of the Minister of Justice twice (2006-2009 and 2010-2012) and thus he is counted twice.

62 Rychetský P., ‘Pohled ministrů spravedlnosti’ in J. Kysela (ed.), Hledání optimálního modelu správy soudnictví pro Českou republiku Searching for the Optimal Model of Czech Court Administration (Senát ČR 2008) p. 20 at p. 22. The contributions of other three ministers of justice – Otakar Motejl (1998-2000), Karel Čermák (2003-2004) and Jiří Pospíšil (2006-2009 and 2010-2012) – confirm Rychetský’s view (see ibid. at p. 15, 18, and 28-31).

63 For further details including more doctrinal analysis of these cases see Bobek, supra n. 8, p. 263–265.

64 Judgment of the Municipal Court in Prague (Administrative Division) of 24 July 2005, Case 5 Ca 37/2005-42.

65 Note that Brožová was stripped ‘only’ of the position of court president. She was not dismissed from judicial office and thus she still remained a judge of the Supreme Court.

66 Judgment of the Czech Constitutional Court of 11 July 2006, case no. Pl. ÚS 18/06.

67 Judgment of the Czech Constitutional Court of 12 December 2006, case no. Pl. ÚS 17/06.

68 This consent is required by Art. 70 of Law on Courts and Judges, but the Czech Constitution does not contain such rule and merely stipulates that the Czech President appoints judges (Art. 63(1)(i) of the Czech Constitution).

69 See Judgment of the Czech Constitutional Court of 12 September 2007, case no. Pl. ÚS 87/06, §§ 40-41 and 70.

70 However, her conflicts with politicians did not fade away. After the unsuccessful dismissal of Brožová in 2006 by the President Václav Klaus the Czech Parliament attempted to shorten her term of office as Supreme Court President via the statutory amendment in 2008. Nevertheless, this statutory amendment was again quashed by the Constitutional Court in 2010 (see Judgment of the Czech Constitutional Court of 6 October 2010, case no. Pl. ÚS 39/08, § 68). So Brožová won yet again. But she became increasingly tired of the constant battles with politicians and eventually resorted to a strategic resignation in 2015 (see also supra n. 23).

71 Jaroslav Bureš eventually became the Vice-President of the High Court of Prague. For further details see Kosař, supra n. 5, p. 173-175.

72 This is in stark contrast with the post-Soviet judiciaries. On the latter see e.g. Ledeneva A., ‘From Russia with Blat: Can Informal Networks Help Modernize Russia?, 76 Social Research (2009) p. 257 at p. 276 and Popova M., Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine (Cambridge University Press 2012) p. 139-145 .

73 The same limited terms also apply to vice-presidents. However, vice-presidents are vested with only limited competences and hence this article focuses primarily on court presidents, who wield real power.

74 The same procedure applies to the Vice-Presidents of the Supreme Court and the Supreme Administrative Court.

75 Note that the 2008 Amendment to the Law on Courts and Judges (Law No. 314/2008 Coll., amending Law on Courts and Judges) introduced the same limited terms also for vice-presidents. See also Bobek, supra n. 8, p. 263-265.

76 See Arts. 103(2), 104(2), 105(2) and 106(2) of Law on Courts and Judges.

77 See Art. 102(2) of Law on Courts and Judges; and Art. 13(3) of Law No. 150/2002 Coll., the Code of Administrative Justice.

78 Judgment of the Czech Constitutional Court of 6 October 2010, case no. Pl. ÚS 39/08, §§ 62-64.

79 Ibid., §§ 67-69.

80 Ibid., §§ 65-66.

81 That is within seven years from October 2008, when the 2008 Amendment to the Law on Courts and Judges entered into force. See supra n. 76.

82 That is within 10 years from October 2008, when the 2008 Amendment to the Law on Courts and Judges entered into force. See supra n. 77.

83 Note that the incumbent President of the Supreme Court, Iva Brožová, resigned voluntarily in January 2015. See supra n. 24.

84 The situation regarding the vice-presidents is slightly different. For the sake of brevity, this issue is not addressed here.

85 See the next part of this article.

86 The 2012 Bill also intended to introduce judicial performance evaluation and financial declarations of judges. Both of these tools would give the Ministry of Justice the necessary information to counter the existing information asymmetry (which worked, until then, in favour of court presidents) and to make more informed decisions regarding the promotion of judges. These two tools would thus also work to the disadvantage of court presidents, who would lose their competitive edge.

87 See supra n. 14.

88 See J. Hardoš, ‘ Blažek odložil zavedení výběrových řízení na nové soudce’Blažek put the competitive selection procedure for new judges on the shelf, Právo, 2 August 2012, p. 4.

89 See also Kosař, supra n. 5, p. 403 (describing how the same two-fold motivation ‘forced’ Slovak court presidents to fight back against the introduction of the Judicial Council of the Slovak Republic and explaining why Slovak court presidents eventually captured the Judicial Council of the Slovak Republic).

90 See Derka L., ‘Pro soudní funkcionáře právo neplatí?’, 4 Soudce (2015) p. 7 .

91 Ibid.

92 I am grateful for this insight to an anonymous reviewer.

93 For instance, some court presidents used their informal powers and made sure that only the incumbent vice-president responded to the call for a new vice-president. This left the Minister of Justice in a difficult position, as he or she did not have anyone else to choose from, and issuing a new call would leave the position of the vice-president vacant for a long time (without the guarantee that more candidates would participate in the second call).

94 Supra, n. 90.

95 Ibid.

96 This does not mean that these actors ignore or defy the Constitutional Court ruling. Many of them actually respect the ruling, but they do not want to openly criticise their colleagues.

97 In fact, usually there is only one candidate, which: (1) makes the competition meaningless; and (2) reduces the power of the President and the Minister of Justice (who formally appoint court presidents and vice-presidents) as they cannot choose from several candidates. See also supra n. 93.

98 See Guarnieri C., ‘Judicial Independence in Europe: Threat or Resource for Democracy?’, 49 Representation (2013) p. 347 at p. 348.

99 Some Czech court presidents admit that such clans already exist.

100 See supra n. 22.

101 Note that this is a significantly different ‘bargaining in the shadow of the law’ than in the context of divorce (see Mnookin R. and Kornhauser L., ‘Bargaining in the Shadow of the Law: The Case of Divorce’, 88 Yale Law Journal (1979) p. 950 ) or pre-trial bargaining more generally (see Cooter R. et al., ‘Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior’, 11 Journal of Legal Studies (1982) p. 225 ), where the metaphor was originally used.

102 See supra nn. 86-87.

103 For further details of the rise of this pan-European model of judicial council see supra nn. 1-5.

104 Piana D., Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice (Ashgate 2010), p. 43-44 .

105 Piana, supra n. 104, p. 44.

106 See e.g. Bobek, supra n. 8, p. 253–254; and Kosař, supra n. 5, p. 236-333.

107 See e.g. Uzelac A., ‘Role and Status of Judges in Croatia’, in P. Oberhammer (ed.), Richterbild und Rechtsreform in Mitteleuropa (Manzsche Verlags 2001) p. 23 at p. 43-57.

108 See infra nn. 126-130; and Kosař, supra n. 5, p. 317-329 and 355-361.

109 The Slovak case study in the period before the introduction of the Slovak Judicial Council yields similar results. See Kosař, supra n. 5, p. 264-299 and 334-339.

110 See the previous two sections of this article.

111 Piana, supra n. 4, p. 43-44 (Table 1.8).

112 At the same time, Piana overestimates the power of judicial boards and court managers that are in fact marginal players in Czech judicial politics. They are either advisory bodies to court presidents (judicial boards) or their subordinates (court managers) and thus they are far less influential.

113 Of the 246 disciplinary motions lodged from 2003 to 2010 court presidents initiated 213 (87%); see Kosař, supra n. 5, p. 227.

114 For a similar conclusion see Kühn Z., ‘The Democratization and Modernization of Post-Communist Judiciaries’, in A. Febbrajo and W. Sadurski (eds.), Central and Eastern Europe After Transition (Ashgate Publishing 2010) p. 177 at p. 190.

115 This also explains why so many cases regarding the dismissal of court presidents reach the Strasbourg Court. See e.g. ECtHR 5 February 2009, Case No. 22330/05 Olujić v Croatia; ECtHR 21 January 2016, Case No. 29908/11 Ivanovski v FYROM; and ECtHR 23 June 2016, Case No. [GC] 20261/12, Baka v Hungary.

116 On this distinction see Part IV (External Controls) and Part V (Internal Controls) in G. Canivet et al. (eds.), Independence, Accountability and the Judiciary (British Institute of International and Comparative Law 2006).

117 See e.g. European Network of Councils for the Judiciary, ‘Independence and Accountability of the Judiciary’, ENCJ Report, 2013-2014, p. 17.

118 See e.g. Popova, supra n. 72.

119 Note that politicians may also use court presidents as their ‘transmission belts’ and exercise their influence over individual judges indirectly (see supra n. 28 and nn. 53-62). The most recent scholarship even suggests that clientelistic rulers may intentionally transfer significant powers over individual courts and the rest of the judiciary to the loyal court presidents in exchange for favourable rulings (see R. Ellett et al., ‘Chief Justice as a Political Agent: Evidence from Zambia, Venezuela, and Ukraine’, paper presented at the ECPR General Conference in Prague on 9 September 2016 (on file with author)).

120 This has started to change only in 2016 due to the new case law of the Czech Constitutional Court (see Judgment of the Czech Constitutional Court of 15 June 2016, case no. I. ÚS 2769/15).

121 The power of court presidents to reassign cases has also been limited only recently due the new case law of the Czech Constitutional Court (see ibid.).

122 This power of court presidents was recently confirmed by the Czech Supreme Administrative Court. See infra n. 126.

123 Promotion to the position of chamber president not only increases the reputation of a given Czech judge, it also comes with a significant salary rise.

124 This power of court presidents was confirmed by the Czech Constitutional Court in the Brožová cases (see in particular supra nn. 67-68).

125 Decision of the High Court of Prague of 29 June 1994 Judge S. W.

126 Judgment of the Czech Supreme Administrative Court of 19 September 2012, No 1 As 48/2012-28.

127 Email from a judge of the High Court of Prague of 26 September 2015 (on file with author).

128 See L. Kostelanský and V. Vavrová, ‘Harabinovi sudcovia zarobili viac ako premiér’, Pravda, 12 August 2010; E. Mihočková, ‘Šikanovanie v talári’, Plus 7 dní, 12 December 2011, <www.pluska.sk/plus7dni/vsimli-sme-si/sikanovanie-vtalari.html>, visited 14 December 2016; and K. Staroňová, ‘Rovní a rovnejší Štefana Harabina’, Trend.sk, 1 June 2009, <blog.etrend.sk/sgi-blog/rovni-a-rovnejsi-stefana-harabina.html>, visited 14 December 2016.

129 Mihočková, supra n. 126. See also P. Kubík and F. Múčka, ‘Ako úraduje Štefan I. Čistič: Pôsobenie nového šéfa Najvyššieho súdu SR varuje pred rozširovaním jeho kompetencií’, Trend, 30 September 2009, <ekonomika.etrend.sk/ekonomika-slovensko/ako-uraduje-stefan-i-cistic-2.html>, visited 14 December 2016; and P. Kubík, ‘Keď losuje Štefan Harabin: Na Najvyššom súde majú rozhodnutia predsedu občas väčšiu váhu ako paragrafy’, Trend, 11 March 2010, <ekonomika.etrend.sk/ekonomika-slovensko/ked-losuje-stefan-harabin-2.html>, visited 14 December 2016.

130 Ibid.

131 Harabin himself initiated 12 disciplinary motions against Supreme Court judges in 2009 and 2010 and one more motion was triggered by the JCSR, which was chaired by Harabin (some of these cases are reported in L. Bojarski and W. Stemker Köster, The Slovak Judiciary: Its Current State and Challenges (Open Society Fund 2011) p. 102–105). See also Kosař, supra n. 5, p. 319-320.

132 See Mihočková, supra n. 126.

133 See e.g. ECtHR 10 October 2000, Case No. 42095/98, Daktaras v Lithuania §§ 35-38; ECtHR 3 May 2007, Case No. 7577/02 Bochan v Ukraine § 74; ECtHR 9 October 2008, Case No. 62936/00, Moiseyev v Russia §§ 182-184; ECtHR 5 October 2010, Case No. 19334/03, DMD GROUP, a.s. v Slovakia §§ 65-71; ECtHR 3 May 2011, No. 30024/02, Sutyagin v Russia § 190; and ECtHR 12 January 2016, Case No. 57774/13, Miracle Europe Kft v Hungary §§ 53-63.

134 Such a model operates, for instance, in Germany.

135 Such a model operates, for instance, in Austria.

136 This is a position commonly held by Czech court presidents.

137 Even though rank-and-file judges are often reassigned not for their judicial decision-making, but for their criticism of the current model of court administration or for criticising court presidents and their actions.

138 This is exactly what the Slovak centrist government did in 2011 to prevent further misuse of powers by court presidents in Slovakia. See Art. 51a(2) of the Slovak Law No. 757/2004 Coll., on Judges (which introduced a two-month period for reassigned judges to get acquainted with the new area of law).

139 See also cases cited in supra n. 133.

140 ECtHR 15 July 2010, Case No. 16695/04, Gazeta Ukraina-Tsentr v Ukraine §§ 33-34.

141 ECtHR 6 October 2011, Case No. 23465/03, Agrokompleks v Ukraine §§ 137-139. See also ECtHR 9 January 2013, Case No. 21722/11, Volkov v Ukraine.

142 See the cases mentioned in supra n. 133.

143 See e.g. Seibert-Fohr A., ‘Judicial Independence in Germany’, in A. Seibert-Fohr (ed.), Judicial Independence in Transition (Springer 2012) p. 447 at p. 481-483; and Riedel J., ‘Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Germany’, in G. Federico (ed.), Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe (IRSIG-CNR 2005) p. 69 at p. 98-107.

144 See also Guarnieri C., ‘Judicial Independence in Europe: Threat or Resource for Democracy?’, 49 Representation (2013) p. 347 at p. 353.

145 See e.g. supra n. 126.

146 One option for reducing the powers of court presidents would be to adopt strictly random case assignment or to promote judges to the position of chamber president on the basis of seniority.

147 One way to diffuse the powers of court presidents is to require the consent of judicial boards for certain actions of court presidents, such as the reassignment of judges, the reassignment of cases, or the promotion of judges to the position of chamber president.

148 See supra n. 5.

149 See Popova, supra n. 5 (regarding Bulgaria); and Kosař, supra n. 5, p. 409-411 (regarding Slovakia).

150 See G. Gee et al., The Politics of Judicial Independence in the UK’s Changing Constitution (Cambridge 2015) p. 50-55.

151 See Nergelius J., and Zimmermann D., ‘Judicial independence in Sweden’, in A. Seibert-Fohr (ed.), Judicial Independence in Transition (Springer 2012) p. 185-229 .

152 See Landau D., ‘Abusive Constitutionalism’, 47 University of California Davis Law Review (2013) p. 189 at p. 208-211; Tushnet M., ‘Authoritarian Constitutionalism’, 100 Cornell Law Review (2015) p. 391 at p. 433-435; and Halmai G., ‘From the “Rule of Law Revolution” to the Constitutional Counter-Revolution in Hungary’, in W. Bedenek et al. (eds.), European Yearbook of Human Rights (2012) p. 367 .

153 See supra n. 28 and nn. 53-62.

154 See Halmai, supra n. 150, p. 379; and Landau, supra n. 150, p. 209.

155 See Halmai, supra n. 150, p. 379.

156 See ECtHR 23 June 2016, Case [GC] No. 20261/12, Baka v Hungary.

157 See Landau, supra n. 150, p. 209-210.

158 Gyulavári T. and Hős N., ‘Retirement of Hungarian Judges, Age Discrimination and Judicial Independence: A Tale of Two Courts’, 42 Industrial Law Journal (2013) p. 289 at p. 290. See also Belavusau U., ‘On Age Discrimination and Beating Dead Dogs: Commission v. Hungary ’, 50 CMLR (2013) p. 1145 .

159 In fact, court presidents were the main target of this move. I am grateful to Gábor Halmai for this insight.

160 See e.g. A. Radwan, ‘Chess-boxing around the Rule of Law: Polish Constitutionalism at Trial’, VerfBlog, 23 December 2015, <verfassungsblog.de/chess-boxing-around-the-rule-of-law-polish-constitutionalism-at-trial/>, visited 14 December 2016; A. Śledzińska-Simon, ‘Paradoxes of Constitutionalisation: Lessons from Poland’, VerfBlog, 30 March 2016, <verfassungsblog.de/paradoxes-of-constitutionalisation-lessons-from-poland>, visited 14 December 2016; and W. Zuzek, ‘The National Council of the Judiciary is under attack in different ways’, VerfBlog, 11 October 2016, <verfassungsblog.de/the-national-council-of-the-judiciary-is-under-attack-in-different-ways/>, visited 14 December 2016. See also Koncewicz T., ‘Of institutions, democracy, constitutional self-defence and the rule of law: The judgments of the Polish Constitutional Tribunal in Cases K 34/15, K 35/15 and beyond’, 53 CMLR (2016) p. 1753 .

* LLM (CEU), JSD (NYU), Head of the Judicial Studies Institute, Faculty of Law, Masaryk University. Email: . The article’s subtitle is borrowed from Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’, 88 Yale Law Journal (1979) p. 950. I am grateful to Andreas Føllesdal, Tom Ginsburg, members of the Masaryk University Judicial Studies Institute and four anonymous reviewers for their suggestions and comments that significantly improved the original manuscript. The research leading to this article has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant no. 678375- JUDI-ARCH-ERC-2015-STG).

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European Constitutional Law Review
  • ISSN: 1574-0196
  • EISSN: 1744-5515
  • URL: /core/journals/european-constitutional-law-review
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