Quo Vadis Judicial Reforms? The Quest for Judicial Independence in Central and Eastern Europe

Abstract

This article examines judicial reforms in the new member states of the EU in a comparative perspective. It explores the interactions between domestic and European actors in the Czech Republic, Poland, Hungary, Romania and Bulgaria and explains why the EU has had a differential impact on the way the principle of judicial independence has been implemented nationally. The differential impact of the EU is explained by considering both the nature of EU conditionality and the relationship between the judiciary and the political actors at the domestic level. The comparison reveals that the power of the EU is greater when tensions at the domestic level between judicial and political actors increase.

Notes

¹ There is a considerable confusion about what ‘judicial reform’ means and what sort of problems and solutions it displays.

² Their degree of independence depends on a set of institutional features, including their composition, methods for choosing their members and the functions they discharge. See Pederzoli and Piana (2010, p. 100).

³ They cover a variety of measures including the appointment procedures of judges, disciplinary sanctions against them, but also decent salaries and financial resources which can help to isolate the judiciary from undue political influence.

⁴ Interview with Prosecutor at the Superior Council of Magistracy (Consiliul Superior al Magistraturii—CSM), Bucharest, 12 September 2006; interview with Judge 1, member of the CSM, Bucharest, 1 June 2012.

⁵ No concrete policy plans to reform them have materialised in Romania and Bulgaria.

⁶ The outcomes of policy change have mainly been conceptualised in the literature on Europeanisation as inertia, absorption, accommodation and transformation (Börzel & Risse 2000). In the field of judicial independence, there is a limited consensus on how to measure the impact of the EU (Exadaktylos & Radaelli 2009; Coman 2009): ‘what one researcher may classify as “adaptation” may look like “transformation” to another’ (Radaelli & Pasquier 2008, p. 40).

⁷ In this article, the comparative method is used as a method for discovering empirical relationships among variables (domestic and European), rather than a method of measurement or assessment of the effectiveness of the judicial reforms.

⁸ The legacy of the past has been used as an explanation in the recent reforms introduced by the Hungarian Prime Minister Viktor Orban. In 2010, it was put forward by the Czech Constitutional Court, which stated in its ruling that ‘judges’ communist past could influence their reasoning today'. The Constitutional Court ruled that people have the right to know which judges were party members before 1989 (Richter 2011).

⁹ The former candidate countries represented a promising empirical field to test the hypotheses of Europeanisation, for a variety of reasons already extensively developed in the literature (Brusis 2005, p. 24; Juncos 2011, p. 372).

¹⁰ For example, Verdery notes that in June 1994 in Romania, 6,236,507 claims had been filed, of which 4,897,573 were accepted as totally returnable land, representing two thirds of Romania's entire agricultural land surface (Verdery 2004, p. 101). In 1998, the Romanian Minister of Justice—Valeriu Stoica, member of the National Liberal Party (Partidul Naţional Liberal)—stated that the law on restitution ‘had produced the largest number of court cases in the history of Romanian jurisprudence’ (interview with former Romanian Minister of Justice, Bucharest, April 2005). In spite of this, in 2001, there were still ‘whole villages in which not a single title had been given out’ (Verdery 2004, p. 101). In 2010, over one million Romanians were still struggling for restitution. This situation was due to Romania's chaotic land reform and to the ambiguities of the legislation; interview with Judge 1 at the CSM, Bucharest, 12 September 2006; interview with the president of the Open Society Foundation at the Cotroceni Palace, Bucharest, 29 March 2005; interview with Judge 2, member of the CSM, Bucharest, 13 September 2006.

¹¹ The ‘Lustracni zakony’ came into force soon after the collapse of communism, with the aim of preventing former communist agents and other people associated with the former regime from taking government and civil service posts (Asiedu 2005). According to judge Jan Vyklicky ‘The first one was something like a wild purge … in the first few weeks in 1990, the former Minister of Justice, Mrs Buresova, asked some judges to leave the judiciary because of their behaviour before the revolution and some of them—perhaps dozens rather than hundreds—did so. During the second phase, the Committee for the Protection of Unjustified Investigated Persons had a list of judges with a problematic past from before 1989—some 25 people—and they were screened. Some of them had to leave the judiciary. During the third phase, I remember hundreds leaving for better-paid jobs outside the judiciary’ (Asiedu 2005).

¹² In 2007, there was a total of 4,462 magistrates in Romanian judicial institutions (Coman 2008, p. 479), while the Czech Republic, in the same period, had one of the highest number of judges in the world: 3,028 judges in a population of over 10 million (Cameron 2007).

¹³ A series of articles published in the Revue international de droit comparé published between 1950 and 1995 support this argument. ‘Réunion de la section des Pays de l'Est de la Société de législation comparée’, Revue internationale de droit comparé, 16, 3, 1964, pp. 633–35; ‘Première rencontre juridique franco-roumaine, Paris, Dijon, Lille, les 25–28 avril 1967’, Revue internationale de droit comparé, 19, 3, 1967, pp. 709–14; ‘Quatrième rencontre juridique franco-roumaine, Bucarest-Iassy, les 15–25 octobre 1974’, Revue internationale de droit comparé, 27, 2, 1975, pp. 439–50; ‘Cinquième rencontre juridique franco-roumaine, Montpellier, les 13–16 octobre 1977’, Revue internationale de droit comparé, 30, 3, 1978, pp. 847–59; ‘Huitièmes journées juridiques franco-roumaines, Bucarest-Sinaia, le 26 octobre–1er novembre 1992’, Revue internationale de droit comparé, 45, 1, 1993, pp. 266–69; ‘Dixièmes journées juridiques franco-roumaines, Bucarest-Iassy, les 4–8 juin, 1996’, Revue internationale de droit comparé, 48, 4, pp. 928–38; ‘Neuvièmes journées juridiques franco-roumaines, Bordeaux, les 22–24 septembre, 1994’, Revue internationale de droit comparé, 47, 1, 1995, pp. 233–42.

¹⁴ Lech K. Paprzycki, President of the Supreme Court of the Republic of Poland, Head of the Criminal Law Chamber, October 2005, available at: www.at.gov.lv/files/docs…/L[1].Paprzycki_2.doc, accessed 10 June 2012.

¹⁵ ‘The Guarantees of the Independence of Judges—Evaluation of Judicial Reform’, multilateral meeting organised by the Council of Europe in collaboration with the Association of Judges of Hungary, Budapest, 15 May 1998.

¹⁶ As mentioned previously, the independence of the judiciary is not only about norms and principles, but also about financial resources and salaries. In this respect, the Bulgarian Constitutional Court ruled against the political parties and challenged them to increase the budget of the judicial branch (Ganev 2003, p. 603). Another example which supports the above argument is that in 1994 the institution blocked the attempts of the Videnov government to dismiss the members of the NJC before the end of their mandate (Smilov 2010, p. 112).

¹⁷ Romania Parliamentary Debates, Chamber of Deputies, Ordinary session, 24 June 1992, Monitorul Oficial, second part, An III, no. 128, 25 June 1992.

¹⁸ Csiha Tamas Ernestin, representative of the Democratic Union of Hungarians from Romania, Chamber of Deputies, Ordinary session, 24 June 1992, Monitorul Oficial, second part, An III, no. 128, 25 June 1992.

¹⁹ Interview with Judge 1 at the Ministry of Justice, Bucharest, 18 March 2005.

²⁰ Interview with Valeriu Stoica, former Minister of Justice, Bucharest, 24 March 2005.

²¹ In 2002, the Hungarian Socialist Party (Magyar Szocialista Párt) won parliamentary elections and adopted new measures aimed at consolidating the independence of the judiciary. The new government increased judges' salaries and courts' budgets.

²² ‘The Czech Constitutional Court held that the President of the Czech Republic cannot assign any judge to the Supreme Court without the consent of its Chief Justice, that the salaries of judges cannot be reduced under any circumstances, and that an obligation to follow continuing education cannot be imposed upon the judiciary’ (Kosar 2010b).

²³ Interview with the President of the CSM, Dan Lupascu, the Romanian coordinator of this twinning programme, Bucharest, 13 September 2006; interview with G. I., Executive Director of the Centre for Legal Resources, Bucharest, 20 March 2005; interview with S. T., Delegation of the European Commission in Bucharest, 19 September 2006.

²⁴ The recent decision to approve Romania's and Bulgaria's accession to Schengen on the basis of the results achieved in the field of the judiciary is considered as an additional sanction. As in 2004, when several European officials declared that the reform of the judiciary in Romania was a question of trust, in 2011 and 2012 the Dutch immigration minister—who vetoed the Schengen accession of the two countries—argued that ‘it is also a matter of trust and confidence that our collective external borders will be safe and secure’. Even if the technical requirements for Schengen were fulfilled in Romania and Bulgaria, the heads of the old member states from France, Germany, Sweden, Belgium, Finland and the Netherlands argued that Romania and Bulgaria ‘could not be trusted with guarding the EU external borders’. See ‘Romania and Bulgaria—The Winding Road to Schengen’, 2 November 2011, available at: http://www.thenewfederalist.eu/Bulgaria-and-Romania-The-winding-road-to-Schengen,04586, accessed 3 July 2012. See also ‘Europe Denies 2 Nations Entry to Travel Zone’, New York Times, 22 September 2011, available at: http://www.nytimes.com/2011/09/23/world/europe/romania-and-bulgaria-are-denied-entry-to-schengen-zone.html?adxnnl = 1&adxnnlx = 1390064773-WdXGS0E6EIzxbQ0a9Bh4VQ, accessed 18 January 2014.

²⁵ Interview with S. T., Delegation of the European Commission in Bucharest, 19 September 2006; interview with civil servant, Ministry of Interior, Bucharest, 1 June 2012.

²⁶ Interview with Judge 1 at the Ministry of Justice, Bucharest, 18 March 2005; interview with S. T., Delegation of the European Commission in Bucharest, 19 September 2006; interview with G. I., Executive Director of the Centre for Legal Resources, Bucharest, 20 March 2005.

²⁷ Interview with S. T., Delegation of the European Commission in Bucharest, 19 September 2006.

²⁸ The author conducted interviews with all the representatives of the Alliance for a European Justice in 2005 and 2006.

²⁹ Interview with S. T., Delegation of the European Commission in Bucharest, 19 September 2006; interview with Lucian Augusting Bolcas, Member of the Parliament, representative of the Greater Romania Party, Bucharest, 18 September 2006.

³⁰ Interview with the President of the CSM, Dan Lupascu, Bucharest, 13 September 2006.

³¹ The amendment introduced in September 2003 is known under the name ‘the Verheugen amendment’.

³² For this I explored 1,839 articles published in English by Radio Prague, the Prague Post, Cesky Noviny, Prague Daily Monitor and Prague Tribune. I conducted this analysis in 2012 in the framework of a research project devoted to the state of democracy in Central and Eastern Europe. The aim was to explore how corruption and the functioning of the judiciary were framed in the region. The results of the project are not yet published.

³³Radio Prague, 8 September 2011, available at: http://www.radio.cz/en/section/curraffrs/bis-slams-justice-officials-for-corruption-and-criminality, accessed 18 January 2014.

³⁴Radio Prague, 8 September 2011, available at: http://www.radio.cz/en/section/curraffrs/bis-slams-justice-officials-for-corruption-and-criminality, accessed 18 January 2014.

³⁵Radio Prague, 13 September 2006, available at: http://www.radio.cz/en/section/curraffrs/clash-of-wills-between-president-and-judiciary, accessed 18 January 2014.

³⁶Radio Prague, 13 September 2006, available at: http://www.radio.cz/en/section/curraffrs/clash-of-wills-between-president-and-judiciary, accessed 18 January 2014.

³⁷Radio Prague, 7 September 2010, available at: http://www.radio.cz/en/section/news/news-2010-09-07#2, accessed 18 January 2014.

³⁸ National Council of the Judiciary of Poland, available at: http://www.krs.pl/main2.php?node = info&mnu = 15&lng = 2, accessed 29 March 2012.

³⁹ While most of the observers expected that the two parties would form a governmental coalition, in April 2006, Law and Justice (PiS) agreed to govern with Self Defence (Samoobrona Rzeczpospolitej Polskiej), the political party led by Andrzej Lepper. Even though the party did not win an absolute majority, it emerged as sufficiently strong to lead a cabinet.

⁴⁰History of the National Council of the Judiciary, available at: http://krs.pl/en/about-us/history/history-of-the-national-council-of-the-judici, accessed 18 January 2014.

⁴¹History of the National Council of the Judiciary, available at: http://krs.pl/en/about-us/history/history-of-the-national-council-of-the-judici, accessed 18 January 2014.

⁴² European Network of Councils for the Judiciary, Bulletin, no. 2, 2009, p. 9, available at: http://www.encj.eu/images/stories/pdf/encj_bulletin2.pdf, accessed 18 January 2014.

⁴³ ‘Commission Decision of 13/XII/2006 Establishing a Mechanism for Cooperation and Verification in Bulgaria to Address Specific Benchmarks in the Areas of Judicial Reform and the Fight against Corruption and Organised Crime’, C (2006) 6570 final, p. 5, available at: http://ec.europa.eu/enlargement/pdf/bulgaria/bg_accompanying_measures_1206_en.pdf, accessed 18 January 2014.

⁴⁴ ‘Commission Decision of 13/XII/2006 Establishing a Mechanism for Cooperation and Verification in Romania to Address Specific Benchmarks in the Areas of Judicial Reform and the Fight against Corruption’, C (2006) 6569 final, p. 5, available at: http://ec.europa.eu/enlargement/pdf/romania/ro_accompanying_measures_1206_en.pdf, accessed 18 January 2014.

⁴⁵ Interview with Judge 3, Université libre de Bruxelles, 9 July 2012.

⁴⁶ ‘The Bulgarian Judges Association Wins the 2011 Human of the Year Award’, Bulgarian Helsinki Committee Press Release, 13 December 2011, available at: http://www.bghelsinki.org/en/news/press/single/press-release-bulgarian-judges-association-wins-2011-human-year-award/, accessed 18 January 2014.

⁴⁷ ‘The Bulgarian Judges Association Wins the 2011 Human of the Year Award’, Bulgarian Helsinki Committee Press Release, 13 December 2011, available at: http://www.bghelsinki.org/en/news/press/single/press-release-bulgarian-judges-association-wins-2011-human-year-award/, accessed 18 January 2014.

⁴⁸ ‘Deputy Prime Minister Tibor Navracsic Gives an Account to Parliament of the Government's First Two Years in Office’, Website of the Hungarian Government, 14 June 2012, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/deputy-prime-minister-tibor-navracsics-gives-an-account-to-parliament-of-the-government-s-first-two-years-in-office, accessed 20 August 2012.

⁴⁹ ‘Deputy Prime Minister Tibor Navracsic Gives an Account to Parliament of the Government's First Two Years in Office’, Website of the Hungarian Government, 14 June 2012, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/deputy-prime-minister-tibor-navracsics-gives-an-account-to-parliament-of-the-government-s-first-two-years-in-office, accessed 20 August 2012.

⁵⁰ ‘Tibor Navracsic on Conservative Home: Hungary's Constitution and Cardinal Law’, Website of the Hungarian Government, 10 January 2012, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/hungary-s-constitution-and-cardinal-laws, accessed 20 August 2012.

⁵¹ ‘Zoltán Kovács: Partial Solutions are Not Solutions’, Website of the Hungarian Government, 8 March 2012, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/zoltan-kovacs-partial-solutions-are-no-solutions, accessed 19 January 2014.

⁵² ‘European Parliament Resolution of 10 March 2011 on Media Law in Hungary’, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef = -//EP//TEXT+TA+P7-TA-2011-0094+0 + DOC+XML+V0//EN, accessed 19 January 2014.

⁵³ Guy Verhofstadt, leader of the ALDE, declared that ‘the case of Hungary is not just about technical breaches of EU legislation, but a wider concern of gradual but persistent erosion of EU values, as spelled out in Article 2, concerning freedom of expression, of the media and of religion’. More critical voices were heard among Green/EFA group, whose leaders called for launching the infringement procedure under Article 7 of the EU Treaty, the measure adopted by the Hungarian Prime Minister being considered a ‘persistent breach of the basic European values and rights’ (European Parliament 2012).

⁵⁴ ‘MEPs Voice “Serious Concern” on Hungary's Democracy’, EU Observer, 16 February 2012, available at: http://euobserver.com/political/115286, accessed 19 January 2014.