Independence of the Judiciary in Europe

Chairman, distinguished colleagues, ladies and gentlemen,

it is a privilege to be able to share some thoughts about independence of courts in the European Union with the participants of this prestigious conference!

In my presentation, I will not focus on any specific country but the situation in Europe in general. I am going to concentrate on three points of view, i.e. from whom the courts shall be independent, why is independence important, and independence can be safeguarded.

In parliamentary democracies, the rule of law is a principle of paramount importance. Just like the president of the World Jurist Association Javier Cremades put it, it is the bedrock of our pluralistic societies. 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. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Illiberal democracy is not the European model.

One of the basic ingredients of the rule of law is the independence of judiciary and individual judges. 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 tripartition of state powers into legislative, executive, and judicial branches.

What does independence mean, from whom courts and judges shall be independent? Legality and its corollary, the supremacy of the law, presuppose that also (and especially!) 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 legislators 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 safeguarding of 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 Justice Ruth Bader Ginsburg has crystallized.

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 maybe more often against authorities, be it tax authorities, authorities competent to grant different licenses, permits, 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. That is why the 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, as rightly pointed out by the president of the American Bar Association Patricia Lee Refo. 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 compulsory 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.

These warning examples necessitate asking how independence of judiciary can be safeguarded. 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. We also need robust legal provisions, partly at the level of the Constitution, protecting that basic guarantees of independence cannot be amended by simple parliamentary majority. We shall ponder thoroughly if e.g. basic provisions concerning compulsory retirement age, number of judges at the supreme instances, and appointment procedures should be sealed in the Constitution.