Independence of Courts in the European Union

Chairman, distinguished colleagues, ladies, and gentlemen,

it is an honour to be invited to address the distinguished participants in this important and timely conference!

In my presentation, I shall focus on independence of courts in the European Union. I am going to concentrate on three points of view, i.e., from whom the courts shall be independent, why independence is important, and in which ways independence may be violated and how it can be safeguarded.

In parliamentary democracies, the rule of law is a principle of paramount importance. As part of access to justice, the Venice Commission rule of law checklist acknowledges that the judiciary should be independent. The idea of independence is linked to the Montesquieuan doctrine of separation of state powers into legislative, executive, and judicial branches. A system of checks and balances shall prevail. According to the EU Treaty, the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

To highlight, there can be no rule of law without democracy and respect for human rights and fundamental freedoms. Just like the rule of law is the bedrock of pluralistic societies, a constituent part of democracy, independence of courts and individual judges is the cornerstone of the rule of law.

But what does independence mean, from whom courts and judges shall be independent? Legality and its corollary, the supremacy of the law, presuppose that courts and judges are under the obligation to obey the law. Hence, they are not independent in relation to Parliament as legislator in abstracto, but the legislator must not intervene in concrete court cases. Parliament is free to enact laws in the appropriate legislative procedure, given that human rights and other constitutional constraints are respected. And here the judges’ role is crucial to control the constitutionality and in safeguarding human rights.

Independence means that the judiciary is free from external pressure. Judges should not be subject to political influence or manipulation. Not under the thumb of the Government, as World Peace and Liberty Award Laureate, Justice Ruth Bader Ginsburg has crystallized. But, of note, individual judges shall also be independent from chief justices and their colleagues when judging cases.

Why is independence of the judiciary from the executive so important? Rights of people, companies, and organisations, provided by the constitution and other laws, can be realized only if effective legal protection is guaranteed. Protection may be needed against other persons but more often against authorities, be it tax authorities, authorities competent to grant different licenses, permits, or allowances in the fields of environmental law, social security law, immigration law, etc. Independent courts enable those seeking justice to get what they are entitled to under the law. If the executive, i.e., the authorities making the above-mentioned decisions, could influence the courts, the rights would become illusory. Independence of courts is not as such guaranteed for the sake of the courts themselves, but ultimately for the sake of citizens seeking justice. The reason for and significance of independence is making the courts free to do justice under the law even if the judgments would not be welcomed by those in power.

Recently, there have been numerous regrettable examples of violations on the independence of courts in Europe. The rule of law is fragile. We should be cautious before signs of its erosion. Case law of the Court of Justice of the European Union and the European Court of Human Rights reveal, for instance, that legislation has been amended to lower the mandatory retirement age of judges retroactively, chief justices’ terms of office have been terminated prematurely, organisational rearrangements within the judiciary have taken place, and appointment procedures of judges have been violated. Obviously, the goal is to exert political control over supreme courts by appointing loyal justices.

These warning examples make us ask how to defend the independence of judiciary. In my opinion, one of the key answers is to foster a solid legal culture, in which all the central societal actors, as well as ordinary citizens, recognize the significance of the rule of law. To make them realize the importance of the independence of courts, to make them fight for the rule of law. We also need robust legal provisions, partly at the level of the Constitution, protecting that basic guarantees of independence cannot be amended by a strong government using a weak Parliament’s majority. We shall ponder thoroughly if, e.g., basic provisions concerning mandatory retirement age, number of judges at the supreme instances, and appointment procedures should be sealed in the Constitution.