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Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe

  • Michal Bobek and David Kosař

Abstract

Judicial independence appears on most laundry lists of all bodies or institutions engaged with the rule of law. It is considered an unqualified public good. As a result, all major players engaged in legal reform and building a rule of law have diverted significant resources to this issue. For instance, the United Nations created the office of Special Rapporteur on the Independence of Judges and Lawyers in 1994. The World Bank has been investing heavily in judicial reforms in Latin America and Asia. In Europe, the Council of Europe has been pushing for judicial independence and judicial reform throughout the continent. Additionally, the European Union included judicial independence among its core requirements for the accession countries. Both organizations, the European Union and the Council of Europe, then jointly encouraged legal and judicial reforms in Central and Eastern Europe (CEE). A number of non-governmental organizations have likewise paid considerable attention to this issue.

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References

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1 Contra Ferejohn, John, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. Cal. L. Rev. 353, 362 (1999) (referring to the U.S. judiciary as “[the] system of independent judges within a dependent judiciary”).

2 Throughout this paper, we look primarily at the European judicial standards. However, a number of suggestions and arguments made with respect to the European standards are also applicable with respect to worldwide or “global” standards, as far as such can genuinely exist, thus, warranting to use the adverb “global.” See, e.g., Violaine Autheman & Sandra Elena, Global Best Practices: Judicial Councils: Lessons Learned from Europe and Latin America (2004); Linn Hammergren, Do Judicial Councils Further Judicial Reform? Lessons from Latin America (Carnegie Endowment for Int'l Peace, Working Paper No. 28, 2002); Brent T. White, Rotten to the Core: Project Capture and the Failure of Judicial Reform in Mongolia, 4 E. Asia L. Reform 209 (2009). Seen from a different angle, it might be also suggested that European judicial standards are the most developed subset of a worldwide standardization trend.

3 Adopted at the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held in Milan in 1985 and endorsed by G.A. Res. 40/32, U.N. Doc. A/RES/40/35 (Nov. 29, 1985) and G.A. Res. 40/146, U.N. Doc. A/RES/40/32 (Dec. 13, 1985).

4 Note that the term “court administration” has a broader meaning in Europe than in the United States. In Europe, it also includes selection, promotion, and discipline of judges.

5 See, e.g., U.N. Basic Principle No. 10 (“Any method of judicial selection shall safeguard against judicial appointments for improper motives.”); U.N. Basic Principle No. 13 (“Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.”); U.N. Basic Principle No. 17 (“A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure.”).

6 See Bangalore Principles of Judicial Conduct of 2002, Nov. 25–26, 2002, U.N. Doc. E/CN.4/2003/65 Annex (Jan. 10, 2003).

7 Id. at para. 1.5.

8 See id. at paras. 1.1–6.7.

9 Neudorf, Lorne, Promoting Independent Justice in a Changing World, 12 Hum. Rts. L. Rev. 107, 112 (2012).

10 See Bangalore Principles, supra note 6.

11 Id. at para. 1.1.

12 See Parau, Cristina, The Drive for Judicial Supremacy, in Judicial Independence in Transition 619, 643 (Anja Seibert-Fohr ed., 2012).

13 But note that the pushing for one JC Euro-model is by now no longer limited to the CEE. For instance, the Parliamentary Assembly of the CoE has recently criticized Germany for not having a judicial council. See Eur. Parl. Ass., Allegations of Politically Motivated Abuses of the Criminal Justice System in Council of Europe Member States, para. 5.4.1, 32nd Sess., Res. 1685 (Sept. 30, 2009). For further details, see also Anja Seibert-Fohr, European Perspective on the Rule of Law and Independent Courts, 20 J. für Rechtspolitik 161, 166 (2012) (arguing that the problem of recent documents produced by the CoE is that they have gradually shifted the emphasis from obligations of results to obligations of means).

14 Recommendation No. R (94) 12 to Member States on the Independence, Efficiency and Role of Judges, 1994 Y.B. Eur. Conv. on H.R. 453, Principle I(2)(c).

15 Id. at para. 16 (Explanatory Memorandum).

16 Namely, Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Estonia, Latvia, and Lithuania. The other two countries that joined the EU in the 2004 enlargement were Malta and Cyprus.

17 See infra Section F.

18 Generally on the double or even multiple standards in the accession process, see, for example, Dimitry Kochenov, EU Enlargement and the Failure of Conditionality 264–66, 271–90 (2008).

19 See, e.g., Smilov, Daniel, EU Enlargement and the Constitutional Principle of Judicial Independence, in Spreading Democracy and the Rule of Law: The Impact of EU Enlargement on the Rule of Law, Democracy, and Constitutionalism in Post-communist Legal Orders 313, 323–25 (Adam Czarnota, Martin Krygier & Wojciech Sadurski eds., 2006); Parau, supra note 12.

20 See Piana, Daniela, Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice 49–88 (2010) (providing a comprehensive overview of these bodies).

21 See Parau, , supra note 12, at 646–47.

22 See, e.g., Seibert-Fohr, Anja, Judicial Independence in European Union Accessions: The Emergence of a European Basic Principle, 52 German Y.B. Int'l L. 405 (2009).

23 See Piana, , supra note 20.

24 See Eur. Network of Councils for the Judiciary (ENCJ), Councils for the Judiciary Report 2010–2011 para. 1.4; Consultative Council of European Judges (CCJE), Opinion no. 10 (2007) para. 11 (Nov. 23, 2007). See also European Charter on the Statute for Judges para. 1.2 (July 8–10, 1998).

25 See ENCJ, supra note 24, at para. 2.1; CCJE supra note 24, at para. 18. See also European Charter on the Statute for Judges, supra note 24, at para. 1.3; General Assembly of the European Network Councils for the Judiciary, Self Governance for the Judiciary: Balancing Independence and Accountability, para. 4(b) (May 2008), http://www.encj.eu/images/stories/pdf/resolutionbudapestfinal.pdf [hereinafter Budapest Resolution]; Recommendation CM/Rec (2010) 12 of the Committee of Ministers to Member States on Judges: Independence, Efficiency, and Responsibilities, para. 27 (Nov. 17, 2010), https://wcd.coe.int/ViewDoc.jsp?id=1707137.

26 See ENCJ, supra note 24, at paras. 3.4, 3.13; CCJE, supra note 24, at paras. 48, 49, 60. See also European Charter on the Statute for Judges, supra note 24, at paras. 3.1, 4.1, 7.2; Recommendation CM/Rec (2010) 12, supra note 25, at para. 46.

27 See ENCJ, supra note 24, at para. 3.1; CCJE, supra note 24, at para. 42. See also European Charter on the Statute for Judges, supra note 24, at para. 1.3.

28 See ENCJ, supra note 24, at para. 4.1; CCJE, supra note 24, at para. 33.

29 For instance, some documents preclude the participation of the Minister of Justice in the judicial council or require judicial councils to have budgetary powers, oversee judicial training, process complaints from the users of courts, comment on bills affecting the judiciary, or propose new legislation. See, e.g., ENCJ, supra note 24, at paras. 3.5–3.9, 3.14–3.18; CCJE, supra note 24, at paras. 65–90.

30 The Court Service model is sometimes referred to as a “Northern European Model” of judicial council. See, e.g., Wim Voermans & Pim Albers, Eur. Council for the Efficiency of Justice, Councils for the Judiciary in EU Countries (2003). We reject this label as unhelpful and misleading. See also Nuno Garoupa & Tom Ginsburg, Guarding the Guardians: Judicial Councils and Judicial Independence, 57 Am. J. Comp. L. 103, 109, n. 20 (2009).

31 These different models are described immediately below in Section D.

32 It could be suggested that the term “self-government model” should be used instead of the “judicial council model.” In our opinion, however, the term “judicial council model” better captures the nature of the institutional design in question of which the judicial self-government is an important, but not the sole, component. Furthermore, the “judicial council model” is also the term under which the model has been promoted and marketed in the CEE.

33 ENCJ, supra note 24, at para. 1.4.

34 See CCJE, supra note 24, at para. 26. Contra ENCJ, supra note 24, at para. 2; European Charter on the Statute for Judges, supra note 24, at para. 1.3; Budapest Resolution, supra note 25, at para. 4(b); Recommendation CM/Rec (2010) 12, supra note 25, at para. 27. Similarly, the JC Euro-model does not set any limit on the number of senior judges of appellate and top courts.

35 A rare exception is the synthesis report on states without judicial councils, see Lord Justice Thomas, Council of Europe, Councils for the Judiciary Preliminary Report: States Without a High Council 4 (Mar. 19, 2007).

36 Different classifications are equally plausible. Our classification relies on Nicola Picardi, La Ministère de la Justice et les autres modèles d'administration de la justice en Europe, in L'indipendenza della giustizia, oggi. Judicial independence, today: liber amicorum in onore di Giovanni E. Longo (Philippe Abravanel et al. eds., 1999).

37 What many critics attacked in the CEE was in fact the “state administration of courts,” which was based on the socialist model—discussed immediately below in this section—rather than the current Ministry of Justice model.

38 Moreover, the classification of several judicial councils is open to debate. For instance, one may reasonably claim that the Dutch judicial council is in fact closer to the Court Service model.

39 For descriptions of the office of the Procurator and its functions in English, see Gordon B. Smith, The Soviet Procuracy and the Supervision of Administration (1978); G.G. Morgan, Soviet Administrative Legality: The Role of Attorney General's Office (1962). For a comparative East/West assessment, see Mauro Cappelletti & J.A. Jolowicz, Public Interest Parties and the Active Role of the Judge in Civil Litigation (1974).

40 Only the Belarusian model of court administration gets close. On the state of the Belarusian judiciary, see Alezander Vashkevich, Judicial Independence in the Republic of Belarus, in Judicial Independence in Transition 1065, 1068–71, 1101–03, 1109–10, 1115–18 (Anja Seibert-Fohr ed., 2012). However, the socialist model is still alive outside Europe, in China for instance. See Peter H. Solomon, Authoritarian Legality and Informal Practices: Judges, Lawyers and the State in Russia and China, 43 Communist & Post-Communist Stud. 351 (2010); Xin He, Black Hole of Responsibility: The Adjudication Committee's Role in a Chinese Court, 46 L. & Soc'y Rev. 681 (2012); Ling Li, The “Production” of Corruption in China's Courts: Judicial Politics and Decision Making in a One-Party State, 37 L. & Soc. Inquiry 848 (2012).

41 Alternatively, we may perceive the socialist model of the administration of courts as a perverse version of the classic Ministry of Justice model. Still, the merging of these two models into one would ignore important differences between them.

42 For a helpful taxonomy of judicial councils, see Garoupa & Ginsburg, supra note 30, at 122; Les Conseils superieurs de la magistrature en Europe (Thierry S. Renoux ed., 1999).

43 Thus, the Hungarian model of court administration after the 2011 judicial reforms belongs to the category of “hybrid models.”

44 See Parau, , supra note 12, at 643–44; Les Conseils superieurs de la magistrature en Europe (Thierry S. Renoux ed., 1999); Jean-Francois Weber, Conseil supérieur de la magistrature (CSM), in La Justice en France 219, 221–22 (Thierry S. Renoux ed., 2013).

45 See Hammergren, Linn, Envisioning Reform: Conceptual and Practical Obstacles to Improving Judicial Performance in Latin America (2007); Javier Couso, Judicial Independence in Latin America: The Lessons of History in the Search for an Always Elusive Ideal, in Institutions & Public Law: Comparative Approaches (Tom Ginsburg & Robert A. Kagan eds., 2005).

46 Note that most U.S. judges on the state level are elected and often face regular retention review. In addition, non-Art III federal judges—such as magistrate judges, bankruptcy judges or administrative judges—are usually appointed for the specified terms of office and face additional forms of accountability. Only the “Article III judges” (judges of district courts and circuit courts and Justices of the Supreme Court of the United States), the tiny minority of the U.S. judiciary, are appointed for life (by the U.S. Senate upon nomination of the President) and enjoy the full set of safeguards. In sum, the elected branches have a major say in the career of judges at all levels of the judicial hierarchy in the United States.

47 See supra Section B.

48 See Unger, Roberto, What Should Legal Analysis Become 72–73 (1998); Jeremy Waldron, Dirty Little Secrets, 98 Colum. L. Rev. 510 (1998).

49 For the discussion of this traditional distinction, see Fritz W. Scharpf, Governing in Europe: Effective and Democratic? 6–30 (1999); Fritz W. Scharpf, Legitimacy in the Multilevel European Polity, 1 Eur. Pol. Sci. Rev. 173 (2009).

50 See supra Section B.

51 See Guarnieri, Carlo & Pederzoli, Patrizia, The Power of Judges: A Comparative Study of Courts and Democracy 54– 59, 174–77 (2002); M. L. Volcansek, Judicial Selection in Italy: A Civil Service Model with Partisan Results, in Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World 159 (Kate Malleson & Peter R. Russell eds., 2006).

52 See supra Section D.

53 See Benvenuti, Simone, Presentation at the XXII World Congress of Political Science on ‘Challenges of Contemporary Governance’ (July 19–24, 2012): The French and the Italian High Councils for the Judiciary Observations Drawn from the Analysis of Their Staff and Activity (1947–2011). See infra Section H (explaining the strong influence of Italian and Latin-style judicial councils within the European structures and their ensuing ideological domination in elaborating common standards therein).

54 On judicial accountability avoidance and other negative accountability phenomena, see David Kosař, The Least Accountable Branch, 11 Int'l J. Const. L. 234, 259-60 (2013).

55 See Vermeule, Adrian, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy Of Division, 14 J. Contemp. Legal Issues 549 (2009).

56 See Pokol, Béla, Judicial Power and Democratization in Eastern Europe, in Europeanisations and Democratisation: the Southern European experience and the perspective for the New Member States of the Enlarged Europe 165, 182, 188 (2005).

57 See infra Section H (discussing the Slovak case study).

58 See Thomas, , supra note 35.

59 See Piana, , supra note 20, at 43–44; Solomon, supra note 40, at 354; Michal Bobek, The Administration of Courts in the Czech Republic: In Search of a Constitutional Balance, 16 Eur. Pub. L. 251, 253–54 (2010); Kosař, supra note 54.

60 See supra Section B.

61 See Thomas, , supra note 35. We will explain how this electoral law, or its deficiencies, can influence the functioning of the judicial council in Section H, where we discuss the Slovak case study. The mode of selection of judicial members had great consequences also on the operation of the Hungarian judicial council (before Orbán's 2011 judicial reform). See Pokol, supra note 56, at 188–89.

62 Traditionally, governments do not have a strong record for willingly keeping the national parliaments informed about international affairs. Even if they inform national parliaments, the parliamentary control tends to be carried out only ex post and limited to the (non)ratification of treaties negotiated by the executive. Within the EU context, see National Parliaments on their Ways to Europe: Losers or Latecomers? (A. Maurer & W. Wessels eds., 2001); John Fitzmaurice, National Parliamentary Control of EU Policy in the Three New Member States, 19 W. Eur. Pol. 88 (1996).

63 Scalia, Antonin, Commentary, 40 St. Louis U. L.J. 1119, 1122 (1996).

64 The buzzword of the last 10 years or so in Europe is “judicial networks.” See Monica Claes & Maartje de Visser, Are You Networked Yet? On Dialogues in European Judicial Networks, 8 Utrecht L. Rev. 100 (2012); Alexis Le Quinio, Recherche sur la circulation des solutions juridiques: le recours au droit comparé par les juridictions constitutionnelles 179–87 (2011). See also Arjen W.H. Meij, Circles of Coherence: On Unity of Case-Law in the Context of Globalisation, 6 Eur. Const. Law Rev. 84 (2010).

65 See, e.g., sources cited supra note 51 (quoting the critical voices on the state and performance of the Italian CSM). The same model has delivered rather questionable results also in Latin America. See sources cited supra note 45.

66 The question is also when it is over, if ever. A legal transformation may be conceived of at different levels. In the narrow sense, it just means the shift from one regime to another, a mere change in the constitutional structure. In the broader sense, it means much more: Not just a constitutional shift, but also change in values, their enforcement and the real life of the new institutions. See, e.g., Csaba Varga, Transition to Rule of Law: On the Democratic Transformation in Hungary 74 (1995). Varga quotes the former president of the Hungarian Constitutional Court, L Sólyom, who claimed that for him, the “transition” was, from the legal point of view, finished in October 1989. From then on, Hungary has been a law-governed state and there is no further stage to which to transit. Id.

67 Many scholars have been perplexed about why the CEE parliaments gave up their power so easily. See, e.g., Cristina Parau, The Dormancy of Parliaments: The Invisible Cause of Judiciary Empowerment in Central and Eastern Europe, 49 Representation 267 (2013).

68 See supra Section B.

69 Conclusions of the Presidency, European Council in Copenhagen 13 (June 21–22, 1993), http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/72921.pdf.

70 See, e.g., Kochenov, , supra note 18; Kirstyn Inglis, EU Enlargement: Membership Conditions Applied to Future and Potential Member States, in The European Union and Its Neighbours: Legal Appraisal of the EU's Policies of Stabilisation, Partnership and Integration (Steven Blockmans & Adam Lazowski eds., 2006).

71 Agenda 2000 - Vol. I: For a Stronger and Wider Union, COM (2000) 97 final (July 13, 1997); Vol. II: The Challenge of Enlargement, COM (2000) 97 final (July 15, 1997).

72 See, e.g., European Commission's Regular Report On Czech Republic's Progress Towards Accession, at 18–20, SEC (2001) 1746 final (Nov. 13, 2001); at 22–24, SEC (2002) 1402 final (Oct. 9, 2002).

73 For example, mostly in the period before the EU Accession. The two new Member States that joined the EU in 2007, Romania and Bulgaria, represent in this respect a special case of de facto extending the pre-accession conditionality to the period after the Accession. Although, the EU's input has been crucial in these countries. Diana Bozhilova, Measuring Success and Failure of EU-Europeanization in the Eastern Enlargement: Judicial Reform in Bulgaria, 9 Eur. J. of Legal Reform 285 (2007). Parau, supra note 12, at 655, states:

Ironically, it was the Commission who imposed on Romania the formal institutions designed to autonomise the Romanian judiciary. Without such pressure it is highly unlikely that the SCM would have been given so much power and autonomy: ‘The 2004 reform would probably not have happened without pressure from the Commission and pressures associated with wanting to join the EU … or it might have taken longer, it might not have followed the same path. … The European Commission was strongly associated with it.‘

74 Cf. Open Society Institute, Monitoring the EU Accession Process: Judicial Independence 112–13, 127–28 (Central European University Press 2001).

75 Piana, , supra note 20, at 162–63.

76 Parau, , supra note 67. See also Cristina Parau, Explaining Judiciary Governance in Central and Eastern Europe: External Incentives, Transnational Elites and Parliament Inaction, (67) 2 Europe-Asia Studies (forthcoming 2015).

77 In Slovakia, which is covered neither by Piana's nor Parau's research and which we discuss in more detail below (Section H), the internal factors prevailed as well. The major rationale for the introduction of the JC Euro-model in Slovakia was “anti-Mečiarism.” The period of “mečiarism” refers to years between 1992 and 1998, when Vladimír Mečiar was the Prime Minister of Slovakia. Mečiar was known for his autocratic style of government. In 1998, after the democratic centrist coalition won the general elections, it wanted to ensure that “Mečiar-style interferences” with the judiciary could not be repeated. In order to prevent these interferences, the centrist coalition founded a new institution, the Judicial Council of the Slovak Republic, which meets all the criteria of the Euro-model.

78 See supra section D.

79 See supra notes 51–52 and accompanying text.

80 See, e.g., ENCJ, supra note 24, at 2.

81 See, e.g., Ginsburg, Tom, Pitfalls of Measuring the Rule of Law, 3 Hague J. Rule L. 269 (2011); Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept?, 21 L. & Phil. 137 (2002) (regarding the rule of law). These challenges apply, mutatis mutandis, to other values mentioned in ENCJ, supra note 24.

82 See ENCJ, supra note 24, at para. 1.7; CCJE, supra note 24, at para. 8; Budapest Resolution, supra note 25, at para. 1; European Charter on the Statute for Judges, supra note 24, at para. 1.3; Recommendation CM/Rec (2010) 12, supra note 25, at para. 26.

83 See CCJE, supra note 24, at para. 8; Recommendation CM/Rec (2010) 12, supra note 25, at para. 26.

84 See, e.g., ENCJ, supra note 24, at para. 2.2; CCJE, supra note 24, at paras. 12–13; Recommendation CM/Rec (2010) 12, supra note 25, at para. 4.

85 See Recommendation No. R (94), supra note 14.

86 See Budapest Resolution, supra note 25, at para. 1; ENCJ, supra note 24, at para. 1.7; CCJE, supra note 24, at para. 10; Recommendation CM/Rec (2010) 12, supra note 25, at para. 26.

87 See ENCJ, supra note 24, at para. 1.7; CCJE, supra note 24, at para. 10.

88 Compare in particular, the pre-Accession Reports with respect to the individual CEE countries, put together by the European Commission. See sources cited supra notes 71, 72.

89 See, e.g., Recommendation No. R (94), supra note 14; European Charter on the Statute for Judges, supra note 24 (observing that there is no mention to transparency at all).

90 See, e.g., ENCJ, supra note 24, at paras. 1.7, 7.2; Budapest Resolution, supra note 25.

91 See CCJE supra note 24, at Part VI; ENCJ, supra note 24, at para. 2.5.

92 Compare ENCJ, supra note 24, at para. 2.2, or Recommendation CM/Rec (2010) 12, supra note 25, at para. 27 (referring to the most recent documents that accept “only” 50% of judicial members in the judicial council), with CCJE, supra note 24, at para. 18 (referring to older documents that claim that “a substantial majority of the members should be judges”).

93 See Garoupa, & Ginsburg, , supra note 30, at 110.

94 See CCJE, supra note 24, at Part VI. But cf. ENCJ, supra note 24, at para. 2.2.

95 Budapest Resolution, supra note 25, at para. 10.

96 CCJE, supra note 24, at Part II Title.

97 Kühn, Zdeněk, The Democratization and Modernization of Post-Communist Judiciaries, in Central and Eastern Europe After Transition 177, 181 (Alberto Febbrajo & Wojciech Sadurski eds., 2010).

98 Note that not all CEE countries adopted the JC Euro-model. For instance, the Czech Republic retained its Ministry of Justice model. Although, the Czech Republic is not alone. Some countries that introduced the judicial council model did not opt for the JC Euro-model. For instance, Poland never transferred virtually all powers regarding the career of judges to its National Council of the Judiciary (NCJ) and, moreover, in 2007 it banned court presidents from membership in the NCJ. See Adam Bodnar & Lukasz Bojarski, Judicial Independence in Poland, in Judicial Independence in Transition 667, 669–79 (Anja Seibert-Fohr ed., 2012). Estonia also preferred the cooperative model of court administration where judicial councils share many powers with the Ministry of Justice. See Timo Ligi, Judicial Independence in Estonia, in Judicial Independence in Transition 739, 741–55 (Anja Seibert-Fohr ed., 2012). In contrast, Slovakian, Romanian, Bulgarian and Hungarian (until Orban's judicial reforms in 2011) judicial councils are examples of the JC Euro-model.

99 See also Bobek, Michal, Comparative Reasoning in European Supreme Courts 255–72 (2013).

100 See in particular the judicial council model envisaged by ENCJ, supra note 24 and CCJE, supra note 24.

101 See supra Section E.

102 On the functioning of Italian judicial council, Consiglio superiore della magistratura, see Daniela Piana & Antoine Vauchez, Il Consiglio superiore della magistratura (2012).

103 Id.

104 We do not intend to provide a deep level empirical study of the impact of the JCSR on the Slovak judiciary. However, we believe that the ensuing snapshot at what has been happening after the introduction of the JCSR clearly support the main arguments of our article.

105 Art. 141a of the Constitution of the Slovak Republic and related legislation, especially zákon č. 185/2002 Z. z., o Súdnej rade Slovenskej republiky (Law no. 185/2002 Coll., on the Judicial Council of the Slovak Republic).

106 Nominally at least 9 members must be judges; in practice, however, even the other institutions appoint judges as members of the JCSR.

107 See supra Section E and notes 58-61.

108 For instance, he referred to Žitňanská as a “liar.” See Günter Woratsch, Zpráva o stavu slovenské justice -fenomén Štefan Harabin, Pecs (Apr. 23, 2011).

109 See id.; see, e.g., Dubovcová, Jana, Umožňuje súčasný stav súdnictva zneužívanie disciplinárneho konania voči sudcom, zneužívanie výberových konaní a dáva výkonnej moci oprávnenie zasiahnut' do súdnej moci?, in Výzvy slovenského súdnictva a možnosti zlepšenia existujúceho stavu 53-56 (Transparency International Slovensko ed., 2010); Lukasz Bojarski & Werner Stemker Köster, The Slovak Judiciary: Its Current State and Challenges 94, 107-09 (2011).

110 See Art. 82a of Law No. 757/2004 Z. z., as amended by Law No. 33/2011 Z. z. & Law No. 467/2011 Z. z.

111 Voting done by the so called “per rollam” (by letter) means that it is a voting without calling a meeting (e.g., by correspondence), which meant that nobody could attend the JCSR's meetings.

112 Katarína Staroňová, Projekt “Súdný manažment” ako protikorupčný nástroj, in Jedenásť statočných: prípadové studie protikorupčných nástrojov na Slovensku 215, 217 (Emília Sičáková-Beblavá & Miroslav Beblavý eds., 2008) (quoting the Transparency International Slovakia poll from 2004).

113 Note that the Constitutional Court of Slovakia is not considered to be a part of the system of general courts in Slovakia and thus it was not covered by this question.

114 Institute for Public Affairs (IVO), Slovenská justícia očami verejnosti, odborníkov a sudcov 1 (2011). Note that the remaining responses (up to 100%) was “I do not know.”

115 Id. at 2.

116 Id.

117 Id.

118 See Woratsch, , supra note 108.

119 See Bojarski, & Köster, supra note 109; Dubovcová, supra note 109, at 54-56; Woratsch, supra note 108.

120 Some of these cases are reported in Bojarski & Köster, supra note 109, at 102-05.

121 Dubovcová, supra note 109, at 54-55.

122 The listed examples of Harabin's judicial “administration” originate from Eva Mihočková, Šikanovanie v talári, Plus 7 dní (Dec. 12, 2011). See also Pavol Kubík & František Múčka, Ako úraduje Štefan I. Čistič: Pôsobenie nového šéfa Najvyššieho súdu SR varuje pred rozširovaním jeho kompetencií, TREND (Sept. 30, 2009); Pavol Kubík, Ked' losuje Štefan Harabin: Na Najvyššom súde majú rozhodnutia predsedu občas väčšiu váhu ako paragrafy, TREND (Mar. 11, 2010).

123 details, For further, see Bojarski & Köster, supra note 109, at 111-12; L'uboš Kostelanský & Vanda Vavrová, Harabinovi sudcovia zarobili viac ako premiér, Pravda (Aug. 12, 2010); Mihočková, supra note 122.

124 See Mihočková, supra note 122; See also Kubík & Múčka, supra note 122.

125 Pokol, , supra note 56; Z. Fleck, Judicial Independence and its Environment in Hungary, in Systems of justice in transition: Central European Experiences Since 1989, 12 (J. Přibáň, P. Roberts & J. Young eds., 2003).

126 See, e.g., Smilov, , supra note 19, at 313.

127 Parau, , supra note 12; Ramona Coman & Cristina Dallara, Judicial Independence in Romania, in Judicial Independence in Transition (Anja Seibert-Fohr ed., 2012).

128 See, e.g., Open Society Institute, supra note 74.

129 For detailed discussion, see Bobek, supra note 59.

130 See, e.g., Jakab, András, On the Legitimacy of a New Constitution - Remarks on the Occasion of the New Hungarian Basic Law of 2011, in Crisis and Quality of Democracy in Eastern Europe 61 (MA Jovanović & Đorđe Pavićević eds., 2012); see also László Salamon, Debates Surrounding the Concepts of the New Constitution, 3 Hungarian R. 1522 (2011).

131 Including the lowering of the compulsory retirement age for judges, which has been subsequently declared unconstitutional by the Hungarian Constitutional Court (Decision 33/2012. (VII. 17.)) AB, published also in the Magyar Közlöny 2012/95. The new law was also declared to be in violation of EU law. See Comm'n v. Hungary, CJEU Case C-286/12 (Nov. 6, 2012), ECLI:EU:C:2012:687.

132 One can only speculate whether some “Western” judges, who have been active in various European organizations that gave birth to the JC model qua “European standard,” tried to implement this model in the “East” so that they could later use it as leverage in their home countries. See, e.g., Strengthen the Judiciary's Independence in Europe! International Recommendations for an Independent Judicial Power (Peter-Alexis Albrecht & John Thomas eds., 2009) (containing contributions of several Western judges).

133 For instance, Germany has been recently criticized by the CoE for not having a judicial council. See sources cited supra note 13 and accompanying text.

* Michal Bobek is Professor of European law, College of Europe, Bruges, and research fellow, University of Oxford Institute of European and Comparative Law. Email:

** David Kosař is Assistant Professor at the Law Faculty of Masaryk University, Brno. Email: The research carried out by the second author and leading to this article has received funding from the European Union's Seventh Framework Programme (FP7/2007-2013) under grant agreement No. 303933. We are thankful to Daniela Piana, Roger Errera, participants of the 2nd ASIL Research Forum at the University of Georgia Law School, and participants of the 2nd Annual New Perspectives on Comparative Law Conference of the American Society of Comparative Law at the Robert H. McKinney School of Law for helpful comments on earlier versions of the paper.

Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe

  • Michal Bobek and David Kosař

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