To what extent does an independent judiciary ensure that the government, administration and legislature operate in accordance with the constitution and law?
The judiciary effectively ensures that the government and legislature act in accordance with the law.
10
Canada
Judicial independence is a cornerstone of the Canadian legal system. Judges are expected to decide cases impartially, without interference from the government or other external pressures. This independence strengthens the judiciary’s ability to hold the government accountable.
Canada has an independent and impartial judiciary, with many steps taken to ensure it remains that way, including appointment and disciplinary procedures that are at arm’s length from the government. The judiciary plays a crucial role in holding the government accountable by ensuring that government actions and decisions comply with the law, particularly since 1982 with the Charter of Rights and Freedoms (Russell 1982 and 1983).
The primary mechanism through which the judiciary holds the government accountable is judicial review. Courts have the authority to review the constitutionality and legality of laws, regulations, and government actions. The Charter of Rights and Freedoms guarantees fundamental rights and freedoms to all Canadians. The judiciary – particularly the Supreme Court of Canada – is responsible for interpreting and enforcing the Charter. Individuals and groups can challenge government actions they believe violate Charter rights, and the courts can strike down laws or government decisions that are inconsistent with these rights.
Canada’s nine Supreme Court justices are appointed based on the advice of a non-partisan advisory board. Although the provinces are consulted about these appointments, the final decisions remain essentially unilateral.
The judiciary reviews administrative decisions made by government agencies, boards, and tribunals. Courts scrutinize these decisions to ensure they are within the scope of the law and that the decision-making process is fair and reasonable.
The judiciary ensures that the actions of the executive and legislative branches of government do not exceed their constitutional authority. Courts can intervene if they find the government is overstepping its legal boundaries or infringing on the rights of individuals.
Canada has an independent and impartial judiciary, with many steps taken to ensure it remains that way, including appointment and disciplinary procedures that are at arm’s length from the government. The judiciary plays a crucial role in holding the government accountable by ensuring that government actions and decisions comply with the law, particularly since 1982 with the Charter of Rights and Freedoms (Russell 1982 and 1983).
The primary mechanism through which the judiciary holds the government accountable is judicial review. Courts have the authority to review the constitutionality and legality of laws, regulations, and government actions. The Charter of Rights and Freedoms guarantees fundamental rights and freedoms to all Canadians. The judiciary – particularly the Supreme Court of Canada – is responsible for interpreting and enforcing the Charter. Individuals and groups can challenge government actions they believe violate Charter rights, and the courts can strike down laws or government decisions that are inconsistent with these rights.
Canada’s nine Supreme Court justices are appointed based on the advice of a non-partisan advisory board. Although the provinces are consulted about these appointments, the final decisions remain essentially unilateral.
The judiciary reviews administrative decisions made by government agencies, boards, and tribunals. Courts scrutinize these decisions to ensure they are within the scope of the law and that the decision-making process is fair and reasonable.
The judiciary ensures that the actions of the executive and legislative branches of government do not exceed their constitutional authority. Courts can intervene if they find the government is overstepping its legal boundaries or infringing on the rights of individuals.
Citations:
Russell, Peter. 1982. “The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts.” Canadian Public Administration 25 (1): 1–33.
Russell, Peter. 1983. “The Political Purposes of the Canadian Charter of Rights and Freedoms.” Canadian Bar Review 61: 30–54.
Russell, Peter. 1982. “The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts.” Canadian Public Administration 25 (1): 1–33.
Russell, Peter. 1983. “The Political Purposes of the Canadian Charter of Rights and Freedoms.” Canadian Bar Review 61: 30–54.
Denmark
The Danish constitution (articles 3, 62 and 64) states that “judicial authority shall be vested in the courts of justice … the administration of justice shall always remain independent of executive authority … [and] judges shall be governed solely by the law. Judges shall not be dismissed except by judgment, nor shall they be transferred against their will, except in such cases where a rearrangement of the courts of justice is made.”
Formally, the monarch appoints judges, following a recommendation from the minister of justice on the advice of the Judicial Appointments Council (since 1999), with the goal being to broaden the recruitment of judges, enhance transparency and safeguard organizational independence (Courts of Denmark (2020)). In the case of the Supreme Court, a nominated judge first has to take part in four trial votes in which all Supreme Court judges take part, before he or she can be confirmed as a judge.
The judicial system is organized around a three-tier court system: 24 district courts, two high courts and the Supreme Court. Lower-level judgments can be appealed to high courts and eventually to the Supreme Court. Administrative decisions can normally be appealed to higher administrative bodies first, and after exhaustion of these possibilities, to the courts (Danish Court Administration, 2021).
Denmark does not have a dedicated constitutional court. The Supreme Court functions as a civil and criminal appellate court for cases from subordinate courts.
There is judicial review in Denmark. The courts can review executive action. According to the constitution, “The courts of justice shall be empowered to decide on any question relating to the scope of the executive’s authority.” The judiciary is independent even though the government appoints judges
Governments have always complied with Supreme Court rulings. Even though the Supreme Court has the right to initiate cases on its own initiative against the state, it exercises this power very rarely.
Formally, the monarch appoints judges, following a recommendation from the minister of justice on the advice of the Judicial Appointments Council (since 1999), with the goal being to broaden the recruitment of judges, enhance transparency and safeguard organizational independence (Courts of Denmark (2020)). In the case of the Supreme Court, a nominated judge first has to take part in four trial votes in which all Supreme Court judges take part, before he or she can be confirmed as a judge.
The judicial system is organized around a three-tier court system: 24 district courts, two high courts and the Supreme Court. Lower-level judgments can be appealed to high courts and eventually to the Supreme Court. Administrative decisions can normally be appealed to higher administrative bodies first, and after exhaustion of these possibilities, to the courts (Danish Court Administration, 2021).
Denmark does not have a dedicated constitutional court. The Supreme Court functions as a civil and criminal appellate court for cases from subordinate courts.
There is judicial review in Denmark. The courts can review executive action. According to the constitution, “The courts of justice shall be empowered to decide on any question relating to the scope of the executive’s authority.” The judiciary is independent even though the government appoints judges
Governments have always complied with Supreme Court rulings. Even though the Supreme Court has the right to initiate cases on its own initiative against the state, it exercises this power very rarely.
Citations:
Danish Court Administration. 2021. “A Closer Look at the Courts of Denmark.” https://domstol.dk/media/mmxnidch/a-closer-look-at-the-courts-of-denmark.pdf
Courts of Denmark. 2020. “Historic outline.” https://domstol.dk/om-os/english/historic-outline/
Danish Court Administration. 2021. “A Closer Look at the Courts of Denmark.” https://domstol.dk/media/mmxnidch/a-closer-look-at-the-courts-of-denmark.pdf
Courts of Denmark. 2020. “Historic outline.” https://domstol.dk/om-os/english/historic-outline/
Estonia
The independence of the judiciary is established by the constitution and specified in the Courts Act and other acts governing court procedures. Amending these acts requires a majority of the members of the Riigikogu. The Estonian court system consists of county courts and administrative courts at the first level, circuit courts at the second level, and the Supreme Court at the top level. The Supreme Court simultaneously serves as the highest court of general jurisdiction, the supreme administrative court and the Constitutional Court.
Most judges in Estonia are graduates of the law school at Tartu University; however, there are also BA and MA law programs at two public universities in Tallinn. In total, the national government recognizes 11 study programs in law. Access to legal education does not have specific criteria and is based on competitive admission scores. There is no fee for students in Estonian-language law programs.
Judges are appointed by the national parliament or by the president for life, and cannot hold any other elected or nominated position. The status of judges and guarantees of judicial independence are established by law. Justices of the Supreme Court are appointed by the national parliament on the proposal of the chief justice of the Supreme Court. The chief justice of the Supreme Court is appointed by the national parliament on the proposal of the president. In all cases, simple majority voting is applied.
The judiciary’s jurisprudence reflects a commitment to independent judicial review. Estonian judges evaluate their own independence at 8.7 on a 10-point scale, slightly above the EU average (ENCJ, 2022). The Estonian Association of Judges has established a code of ethics, and 90% of judges rate themselves as adhering to high ethical standards (ENCJ, 2022: 41).
Together with the chancellor of justice, courts effectively supervise authorities’ compliance with the law and the legality of the executive and legislative powers’ official acts. About 70% of judges agree that in the last three years (2020 – 2022) judgments against the government’s interests have usually been executed (ENCJ, 2022: 23).
Most judges in Estonia are graduates of the law school at Tartu University; however, there are also BA and MA law programs at two public universities in Tallinn. In total, the national government recognizes 11 study programs in law. Access to legal education does not have specific criteria and is based on competitive admission scores. There is no fee for students in Estonian-language law programs.
Judges are appointed by the national parliament or by the president for life, and cannot hold any other elected or nominated position. The status of judges and guarantees of judicial independence are established by law. Justices of the Supreme Court are appointed by the national parliament on the proposal of the chief justice of the Supreme Court. The chief justice of the Supreme Court is appointed by the national parliament on the proposal of the president. In all cases, simple majority voting is applied.
The judiciary’s jurisprudence reflects a commitment to independent judicial review. Estonian judges evaluate their own independence at 8.7 on a 10-point scale, slightly above the EU average (ENCJ, 2022). The Estonian Association of Judges has established a code of ethics, and 90% of judges rate themselves as adhering to high ethical standards (ENCJ, 2022: 41).
Together with the chancellor of justice, courts effectively supervise authorities’ compliance with the law and the legality of the executive and legislative powers’ official acts. About 70% of judges agree that in the last three years (2020 – 2022) judgments against the government’s interests have usually been executed (ENCJ, 2022: 23).
Citations:
ENCJ. 2022. “Survey on the Independence of Judges.” European Network of Councils for the Judiciary. https://www.ekou.ee/mat/EST-2022-ENCJ-survey-independence.pdf
ENCJ. 2022. “Survey on the Independence of Judges.” European Network of Councils for the Judiciary. https://www.ekou.ee/mat/EST-2022-ENCJ-survey-independence.pdf
Finland
The independent judiciary in Finland ensures that the government, administration and legislature operate in accordance with the constitution and law. The national courts can effectively review actions and norms implemented by the executive and legislative branches. The courts can pursue their own reasoning free from the influence of incumbent governments, powerful groups or individuals, and corruption.
Legal education is inclusive and accessible to all segments of society. However, children whose parents have university degrees are more likely to study law, as well as other academic disciplines. The judiciary’s jurisprudence reflects a commitment to independent judicial review. Ethics rules and standards are followed.
It is easy to bring a case to challenge government action as long as no legal advice is needed (legal advice is very costly). The court’s rulings are independent, even in cases that are significant to the government. The government always complies with important decisions of the court, even if it disagrees with them. There are no examples of noncompliance.
Petteri Orpo’s government is committed to strengthening the rule of law in Finland. According to the government program (Orpo 2023), enhancing adherence to legal principles involves bolstering the autonomy of the judiciary through the augmentation of permanent judge positions. The government aims to transform court training into a pivotal stage in the legal profession that benefits the overall judicial administration and encourages recruitment in the administrative sector. This includes increasing the number of trainee judges and expanding training programs for junior judges.
Additionally, the government is committed to guaranteeing the provision of services in Swedish in bilingual areas to ensure access for the Swedish-speaking population.
Legal education is inclusive and accessible to all segments of society. However, children whose parents have university degrees are more likely to study law, as well as other academic disciplines. The judiciary’s jurisprudence reflects a commitment to independent judicial review. Ethics rules and standards are followed.
It is easy to bring a case to challenge government action as long as no legal advice is needed (legal advice is very costly). The court’s rulings are independent, even in cases that are significant to the government. The government always complies with important decisions of the court, even if it disagrees with them. There are no examples of noncompliance.
Petteri Orpo’s government is committed to strengthening the rule of law in Finland. According to the government program (Orpo 2023), enhancing adherence to legal principles involves bolstering the autonomy of the judiciary through the augmentation of permanent judge positions. The government aims to transform court training into a pivotal stage in the legal profession that benefits the overall judicial administration and encourages recruitment in the administrative sector. This includes increasing the number of trainee judges and expanding training programs for junior judges.
Additionally, the government is committed to guaranteeing the provision of services in Swedish in bilingual areas to ensure access for the Swedish-speaking population.
Citations:
Orpo, Petteri. 2023. Government Program: A Strong and Committed Finland.
Publications of the Finnish Government. 2023. “Publications of the Finnish Government 2023:60.” https://valtioneuvosto.fi/en/governments/government-programme#/
Orpo, Petteri. 2023. Government Program: A Strong and Committed Finland.
Publications of the Finnish Government. 2023. “Publications of the Finnish Government 2023:60.” https://valtioneuvosto.fi/en/governments/government-programme#/
Germany
The separation of powers in Germany, which ensures an independent judiciary, is regulated by the Basic Law (Article 20, Paragraph 2; Article 92ff.). Judicial power is vested in judges and courts, including the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) and other specialized federal courts. A similar structure exists at the subnational state level. Notably, judges are independent and exclusively bound by the law, meaning they possess the legal autonomy to interpret and review existing laws and decide on issues without outside interference. However, the BVerfG does not initiate legal proceedings; it only becomes active once a complaint is submitted.
Next to the framework conditions set by the law, additional measures ensure the exercise of independent judicial review. For instance, judges must swear an oath (Richtereid) to fulfill their positions true to the law and with the purpose of only truth and justice (Article 38 Deutsches Richtergesetz, DRiG). Additionally, the German Association of Judges has outlined multiple theses for judicial ethics in Germany, including independence, impartiality, and integrity (Deutscher Richterbund, 2018).
Still, the capacity to exercise independent judicial review is restricted by the required legal education, which is offered only by universities (Article 5f. DRiG). In principle, access to a sufficient legal education is open to everyone, provided they hold a higher education entrance qualification (Abitur) with minimum grades. However, in Germany, school performance and the likelihood of achieving a university degree are significantly influenced by socioeconomic background. In this respect, an indirect selection bias might exist.
The members of the Federal Constitutional Court are elected by the Bundestag and the Bundesrat, with each body electing half of the members. Elections are conducted based on a two-thirds majority (Bundesverfassungsgericht, 2023a). While the standard majority for votes in the Bundestag or Bundesrat is a simple majority, the vote for appointing judges to the BVerfG requires a higher majority, which increases the likelihood of politically unbiased justices. Additionally, judges are appointed for a limited term of 12 years and are not eligible for reelection.
Generally, citizens in Germany have secure and effective access to justice (V-Dem, 2023) and can challenge government action through a constitutional complaint to the Federal Constitutional Court if they claim the action violated their fundamental rights or rights equivalent to fundamental rights. While any person may lodge a constitutional complaint, there are preconditions. All legal remedies must be exhausted before a complaint can be lodged. Additionally, the complaint must meet the deadline of one month after a court or administrative decision and adhere to certain requirements in its content and form (Bundesverfassungsgericht, 2023b).
The judicial independence established by law holds for the majority of rulings by the Federal Constitutional Court. For instance, the Freedom House Index considers Germany’s judiciary to be independent. Further, the index indicates that the court seldom makes decisions that disregard its actual views and merely reflect the government’s decisions. Nevertheless, some criticism focuses on the regular meetings between the Federal Constitutional Court and the federal government, with allegations that these meetings affect the judges’ impartiality. The BVerfG dismissed these complaints as unfounded (FAZ, 2023).
Finally, the government and parliament accept rulings by the FCC and act accordingly.
Next to the framework conditions set by the law, additional measures ensure the exercise of independent judicial review. For instance, judges must swear an oath (Richtereid) to fulfill their positions true to the law and with the purpose of only truth and justice (Article 38 Deutsches Richtergesetz, DRiG). Additionally, the German Association of Judges has outlined multiple theses for judicial ethics in Germany, including independence, impartiality, and integrity (Deutscher Richterbund, 2018).
Still, the capacity to exercise independent judicial review is restricted by the required legal education, which is offered only by universities (Article 5f. DRiG). In principle, access to a sufficient legal education is open to everyone, provided they hold a higher education entrance qualification (Abitur) with minimum grades. However, in Germany, school performance and the likelihood of achieving a university degree are significantly influenced by socioeconomic background. In this respect, an indirect selection bias might exist.
The members of the Federal Constitutional Court are elected by the Bundestag and the Bundesrat, with each body electing half of the members. Elections are conducted based on a two-thirds majority (Bundesverfassungsgericht, 2023a). While the standard majority for votes in the Bundestag or Bundesrat is a simple majority, the vote for appointing judges to the BVerfG requires a higher majority, which increases the likelihood of politically unbiased justices. Additionally, judges are appointed for a limited term of 12 years and are not eligible for reelection.
Generally, citizens in Germany have secure and effective access to justice (V-Dem, 2023) and can challenge government action through a constitutional complaint to the Federal Constitutional Court if they claim the action violated their fundamental rights or rights equivalent to fundamental rights. While any person may lodge a constitutional complaint, there are preconditions. All legal remedies must be exhausted before a complaint can be lodged. Additionally, the complaint must meet the deadline of one month after a court or administrative decision and adhere to certain requirements in its content and form (Bundesverfassungsgericht, 2023b).
The judicial independence established by law holds for the majority of rulings by the Federal Constitutional Court. For instance, the Freedom House Index considers Germany’s judiciary to be independent. Further, the index indicates that the court seldom makes decisions that disregard its actual views and merely reflect the government’s decisions. Nevertheless, some criticism focuses on the regular meetings between the Federal Constitutional Court and the federal government, with allegations that these meetings affect the judges’ impartiality. The BVerfG dismissed these complaints as unfounded (FAZ, 2023).
Finally, the government and parliament accept rulings by the FCC and act accordingly.
Citations:
Bundesverfassungsgericht. 2023a. “Die Richterinnen und Richter des Bundesverfassungsgerichts.” https://www.bundesverfassungsgericht.de/DE/Richter/richter_node.html
Bundesverfassungsgericht. 2023b. “How to Lodge a Constitutional Complaint.” https://www.bundesverfassungsgericht.de/EN/Homepage/_zielgruppeneinstieg/Merkblatt/Merkblatt_node.html
Deutscher Richterbund. 2018. “Judicial Ethics in Germany.” https://www.drb.de/fileadmin/DRB/pdf/Ethik/1901_DRB-Broschuere_Richterethik_EN_Judicial_Ethics.pdf
FAZ. 2023. “Karlsruhe bespricht Krisenpolitik mit Bundesregierung.” https://www.faz.net/aktuell/politik/inland/bundesverfassungsgericht-redet-mit-bundesregierung-19295577.html
Freedom House. 2023. “Germany.” https://freedomhouse.org/country/germany/freedom-world/2023#PR
Varieties of Democracy. 2023. https://v-dem.net/data_analysis/VariableGraph/
Bundesverfassungsgericht. 2023a. “Die Richterinnen und Richter des Bundesverfassungsgerichts.” https://www.bundesverfassungsgericht.de/DE/Richter/richter_node.html
Bundesverfassungsgericht. 2023b. “How to Lodge a Constitutional Complaint.” https://www.bundesverfassungsgericht.de/EN/Homepage/_zielgruppeneinstieg/Merkblatt/Merkblatt_node.html
Deutscher Richterbund. 2018. “Judicial Ethics in Germany.” https://www.drb.de/fileadmin/DRB/pdf/Ethik/1901_DRB-Broschuere_Richterethik_EN_Judicial_Ethics.pdf
FAZ. 2023. “Karlsruhe bespricht Krisenpolitik mit Bundesregierung.” https://www.faz.net/aktuell/politik/inland/bundesverfassungsgericht-redet-mit-bundesregierung-19295577.html
Freedom House. 2023. “Germany.” https://freedomhouse.org/country/germany/freedom-world/2023#PR
Varieties of Democracy. 2023. https://v-dem.net/data_analysis/VariableGraph/
Sweden
The Council on Legislation (Lagrådet) has the mandate to advise and provide an overall assessment of the quality of all legislation that could relate to constitutional issues.
The council has a purely advisory (non-binding) role. Judicial review is mainly carried out by the government and public agencies, with Swedish courts traditionally serving as tools of political executive power rather than as a means of balancing power (Ahlbäck Öberg and Wockelberg 2016). In the consensus-oriented corporatist Swedish system, agreements are typically reached by political parties and other actors, rendering judicial intervention less important than in the United States, where the courts are commonly used as adjudicators. Supreme Court justices are appointed by the cabinet by simple majority. These appointments shall be meritocratic and not guided by political allegiances. The findings of a landmark commission of inquiry titled Enhanced Protection for Democracy and the Independence of the Courts (Förstärkt skydd för demokratin och domstolarnas oberoende) were released in 2023. This report concerns a series of proposed legislative changes, including constitutional amendments, aimed at further protecting the independence of courts and justices.
The commission posits that the current system effectively ensures the independence of courts and judges but proposes proactive changes to safeguard this independence in the long term. One key recommendation is a constitutional amendment explicitly stating that “justice is administered by independent courts” (SOU 2023, 47).
Additionally, the commission calls for the establishment of a new, autonomous central court administration agency named Domstolsstyrelsen, or the Board of Courts. The leadership of this agency would be selected by a board, with a majority of its members being permanent judges, thus ensuring independence from the government.
The commission further suggests amendments related to the appointment and removal of justices. These amendments would limit governmental influence in the appointment procedure and include formal rules to ensure diversity and broad representation on the Judges Proposal Board, which handles the nomination process.
Further recommendations include changes in the oversight and accountability of courts, the number of justices, and, if necessary, the special composition of the Supreme Court. These proposals are consolidated in a joint act, the Law about Courts and Justices (lag om domstolar och domare).
In summary, this commission of inquiry recommends sweeping and fundamental changes in a proactive attempt to strengthen institutions against potential future misuse. As of January 2024, these changes are in the process of being legislated.
The council has a purely advisory (non-binding) role. Judicial review is mainly carried out by the government and public agencies, with Swedish courts traditionally serving as tools of political executive power rather than as a means of balancing power (Ahlbäck Öberg and Wockelberg 2016). In the consensus-oriented corporatist Swedish system, agreements are typically reached by political parties and other actors, rendering judicial intervention less important than in the United States, where the courts are commonly used as adjudicators. Supreme Court justices are appointed by the cabinet by simple majority. These appointments shall be meritocratic and not guided by political allegiances. The findings of a landmark commission of inquiry titled Enhanced Protection for Democracy and the Independence of the Courts (Förstärkt skydd för demokratin och domstolarnas oberoende) were released in 2023. This report concerns a series of proposed legislative changes, including constitutional amendments, aimed at further protecting the independence of courts and justices.
The commission posits that the current system effectively ensures the independence of courts and judges but proposes proactive changes to safeguard this independence in the long term. One key recommendation is a constitutional amendment explicitly stating that “justice is administered by independent courts” (SOU 2023, 47).
Additionally, the commission calls for the establishment of a new, autonomous central court administration agency named Domstolsstyrelsen, or the Board of Courts. The leadership of this agency would be selected by a board, with a majority of its members being permanent judges, thus ensuring independence from the government.
The commission further suggests amendments related to the appointment and removal of justices. These amendments would limit governmental influence in the appointment procedure and include formal rules to ensure diversity and broad representation on the Judges Proposal Board, which handles the nomination process.
Further recommendations include changes in the oversight and accountability of courts, the number of justices, and, if necessary, the special composition of the Supreme Court. These proposals are consolidated in a joint act, the Law about Courts and Justices (lag om domstolar och domare).
In summary, this commission of inquiry recommends sweeping and fundamental changes in a proactive attempt to strengthen institutions against potential future misuse. As of January 2024, these changes are in the process of being legislated.
Citations:
Ahlbäck Öberg, Shirin and Helena Wockelberg. 2016. “The Public Sector and the Courts.” In Jon Pierre, ed., The Oxford Handbook of Swedish Politics. Oxford: Oxford University Press, 130-146.
SOU (Statens Offentliga Utredningar). 2023. Förstärkt skydd for demokratin och domstolarnas oberoende. SOU 2023:12 https://www.regeringen.se/rattsliga-dokument/statens-offentliga-utredningar/2023/03/sou-202312/
Ahlbäck Öberg, Shirin and Helena Wockelberg. 2016. “The Public Sector and the Courts.” In Jon Pierre, ed., The Oxford Handbook of Swedish Politics. Oxford: Oxford University Press, 130-146.
SOU (Statens Offentliga Utredningar). 2023. Förstärkt skydd for demokratin och domstolarnas oberoende. SOU 2023:12 https://www.regeringen.se/rattsliga-dokument/statens-offentliga-utredningar/2023/03/sou-202312/
9
Australia
Australia has a well-established and highly effective judicial system, with the High Court of Australia (HCA) at its apex. Appointment processes are quite independent, with political considerations playing no more than a marginal role in determining who is appointed as judges. The norms of the Westminster system leave most “political” matters to the executive to define and determine, giving the executive significant discretion on controversial questions. That said, on matters that touch on the law, judicial independence from politics is widely accepted in both the legal and political communities, as evidenced by the reluctance of judges to make statements that would reveal any ideological or partisan preferences, and the deference that politicians show to the courts on legal questions.
Such deference is shown even when the courts reach judgments that are clearly opposed to government policies. A recent example is provided by the HCA’s decision on 8 November 2023 to rule indefinite immigration detention unlawful, causing the collapse of a policy that both major parties had supported while in power. Although the government did act in accordance with the court’s judgment by immediately freeing all those held in detention, it immediately prepared new legislation that would allow the government to re-detain a released individual by submitting to a court evidence that the person has been convicted (either in Australia or overseas) of a crime that carries a sentence of seven years or more, and the court agrees that the individual poses “an unacceptable risk of committing a serious violent or sexual offense” and there is “no less restrictive measure available” to keep the community safe (Peterie and Nethery 2023).
HCA jurisprudence is sophisticated, and it is supported by rich legal debate among legal practitioners and academics. Among the challenges facing the judiciary that have received attention in recent times are the struggles with achieving satisfactory levels of diversity among judicial officers, workload and well-being considerations, and difficulty with removing judges for consistently poor performance or misconduct.
Such deference is shown even when the courts reach judgments that are clearly opposed to government policies. A recent example is provided by the HCA’s decision on 8 November 2023 to rule indefinite immigration detention unlawful, causing the collapse of a policy that both major parties had supported while in power. Although the government did act in accordance with the court’s judgment by immediately freeing all those held in detention, it immediately prepared new legislation that would allow the government to re-detain a released individual by submitting to a court evidence that the person has been convicted (either in Australia or overseas) of a crime that carries a sentence of seven years or more, and the court agrees that the individual poses “an unacceptable risk of committing a serious violent or sexual offense” and there is “no less restrictive measure available” to keep the community safe (Peterie and Nethery 2023).
HCA jurisprudence is sophisticated, and it is supported by rich legal debate among legal practitioners and academics. Among the challenges facing the judiciary that have received attention in recent times are the struggles with achieving satisfactory levels of diversity among judicial officers, workload and well-being considerations, and difficulty with removing judges for consistently poor performance or misconduct.
Citations:
Peterie, M., and Nethery, A. 2023. “What is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system.” The Conversation. https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226
Appleby, G., Le Mire, S., Lynch, A., Opeskin, B. 2019. “Contemporary Challenges Facing the Australian Judiciary.” Melbourne University Law Review 42 (2): 299-369. https://law.unimelb.edu.au/__data/assets/pdf_file/0004/3066880/NEW-Appleby-422-Advance-1.pdf
Peterie, M., and Nethery, A. 2023. “What is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system.” The Conversation. https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226
Appleby, G., Le Mire, S., Lynch, A., Opeskin, B. 2019. “Contemporary Challenges Facing the Australian Judiciary.” Melbourne University Law Review 42 (2): 299-369. https://law.unimelb.edu.au/__data/assets/pdf_file/0004/3066880/NEW-Appleby-422-Advance-1.pdf
Austria
The role of the various courts in Austria is notably strong, characterized by qualified personnel, autonomy, and public trust and support. The EU-Justice-Barometer 2022 ranked Austria in the top group of countries for the fifth consecutive year; 83% of Austrians had a “very good” or “fairly good” impression of the independence of the Austrian courts.
The entire sphere of politics in Austria operates under the principle of independent judicial review. The three high courts – Constitutional Court, Administrative Court, and Supreme Court – effectively oversee the legality of all government actions as stipulated by the constitution.
The established written and unwritten rules for selecting justices have so far proven sufficient to guarantee a high degree of judicial independence in constitutional practice. The 12 judges of the Austria Constitutional Court are appointed by the federal president, who acts on the suggestions of the federal government (nominating six judges), the Nationalrat, and the Bundesrat (each nominating three judges). The president and vice president of the Court are nominated by the federal government. The federal president is bound by suggestions from the executive and legislative chambers but does not have to accept individual nominations. The appointment procedures for judges to other courts have occasionally been criticized for the weak position of parliament and the widespread absence of any legal protection for applicants who have been passed over. However, the overall quality of the selection and appointment regime has been judged as good (see Vasek 2022).
Government actions can be effectively challenged by invoking the courts. Legislative minorities, and in some cases individual citizens, have the right to take matters to the Constitutional Court. Governments have been aware of this and acted accordingly. Court rulings have been independent, and governments have complied with court decisions even when they disagreed with them.
The entire sphere of politics in Austria operates under the principle of independent judicial review. The three high courts – Constitutional Court, Administrative Court, and Supreme Court – effectively oversee the legality of all government actions as stipulated by the constitution.
The established written and unwritten rules for selecting justices have so far proven sufficient to guarantee a high degree of judicial independence in constitutional practice. The 12 judges of the Austria Constitutional Court are appointed by the federal president, who acts on the suggestions of the federal government (nominating six judges), the Nationalrat, and the Bundesrat (each nominating three judges). The president and vice president of the Court are nominated by the federal government. The federal president is bound by suggestions from the executive and legislative chambers but does not have to accept individual nominations. The appointment procedures for judges to other courts have occasionally been criticized for the weak position of parliament and the widespread absence of any legal protection for applicants who have been passed over. However, the overall quality of the selection and appointment regime has been judged as good (see Vasek 2022).
Government actions can be effectively challenged by invoking the courts. Legislative minorities, and in some cases individual citizens, have the right to take matters to the Constitutional Court. Governments have been aware of this and acted accordingly. Court rulings have been independent, and governments have complied with court decisions even when they disagreed with them.
Citations:
Vasek, Markus. 2022. Richterbestellung in Österreich. Zugleich ein Beitrag zur demokratischen Legitimation der Gerichtsbarkeit. Wien: Verlag Österreich.
https://www.bmj.gv.at/ministerium/presse/Pressemitteilungen-2022/EU-Justizbarometer-2022_%C3%96sterreich-f%C3%BCnftes-Jahr-in-Folge-im-Spitzenfeld.html#:~:text=%E2%80%9C&text=Laut%20dem%20aktuellen%20Justizbarometer%20haben,oder%20Deutschland%20(76%20Prozent)
Vasek, Markus. 2022. Richterbestellung in Österreich. Zugleich ein Beitrag zur demokratischen Legitimation der Gerichtsbarkeit. Wien: Verlag Österreich.
https://www.bmj.gv.at/ministerium/presse/Pressemitteilungen-2022/EU-Justizbarometer-2022_%C3%96sterreich-f%C3%BCnftes-Jahr-in-Folge-im-Spitzenfeld.html#:~:text=%E2%80%9C&text=Laut%20dem%20aktuellen%20Justizbarometer%20haben,oder%20Deutschland%20(76%20Prozent)
Belgium
In Belgium, the independence of the judiciary is central to the constitution and the rule of law. The Belgian constitution includes provisions (Art. 159 and 160) for the judicial oversight of unilateral administrative measures. The Conseil d’État (Council of State) is responsible for judicial review, and the Cour de Cassation is the Supreme Court of the Belgian judicial system, hearing appeals in the last resort against judgments and other decisions of lower courts.
While the courts generally operate unhindered, ensuring the capacity to challenge government action, two adverse developments must be noted. One is the chronic underfunding of the judiciary, which limits its capacity for investigation. The second was temporary: during the COVID-19 crisis, the government had to take rapid actions and declared a state of emergency, imposing restrictions on fundamental liberties such as meeting in public or private spaces and operating businesses. During this period, the courts often sided with the government out of urgency, but some officials complained that their independence was under threat. This tension evaporated after the emergency period, and independence was restored. The only serious constraint to effective oversight remains the chronic underfunding of the justice system.
While the courts generally operate unhindered, ensuring the capacity to challenge government action, two adverse developments must be noted. One is the chronic underfunding of the judiciary, which limits its capacity for investigation. The second was temporary: during the COVID-19 crisis, the government had to take rapid actions and declared a state of emergency, imposing restrictions on fundamental liberties such as meeting in public or private spaces and operating businesses. During this period, the courts often sided with the government out of urgency, but some officials complained that their independence was under threat. This tension evaporated after the emergency period, and independence was restored. The only serious constraint to effective oversight remains the chronic underfunding of the justice system.
Citations:
Renders, David, Luca Ceci, and Sarah Koval. 2021. “Administrative Procedure and Judicial Review in Belgium.” In Judicial Review of Administration in Europe, eds. David Renders, Luca Ceci, and Sarah Koval. Oxford: Oxford Academic. https://doi.org/10.1093/oso/9780198867609.003.0004.
http://www.raadvst-consetat.be/?lang=fr&page=news&newsitem=640
http://www.raadvst-consetat.be/?page=news&lang=fr&newsitem=651
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW9oVixnwFxc9x
L1Osr7QWIfxei5srTR0exdYA3bKT8diQ0ZNoXOVMczrMWXwhteibbSfJvG%2f0KhroTNHkqwvs%2bp7
sQrVWzfSfh6Pv%2fX5E2xM
https://www.liguedh.be/wp-content/uploads/2020/06/Urgence-sanitaire-et-restrictions-des-libertespubliques_
Chronique_LDH_191.pdf
https://www.lecho.be/economie-politique/belgique/federal/que-vont-changer-ces-pouvoirsspeciaux/
10214652
https://www.lecho.be/entreprises/horeca/un-conseil-d-etat-fort-avec-l-horeca-faible-avec-legouvernement/
10272082.html
Renders, David, Luca Ceci, and Sarah Koval. 2021. “Administrative Procedure and Judicial Review in Belgium.” In Judicial Review of Administration in Europe, eds. David Renders, Luca Ceci, and Sarah Koval. Oxford: Oxford Academic. https://doi.org/10.1093/oso/9780198867609.003.0004.
http://www.raadvst-consetat.be/?lang=fr&page=news&newsitem=640
http://www.raadvst-consetat.be/?page=news&lang=fr&newsitem=651
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW9oVixnwFxc9x
L1Osr7QWIfxei5srTR0exdYA3bKT8diQ0ZNoXOVMczrMWXwhteibbSfJvG%2f0KhroTNHkqwvs%2bp7
sQrVWzfSfh6Pv%2fX5E2xM
https://www.liguedh.be/wp-content/uploads/2020/06/Urgence-sanitaire-et-restrictions-des-libertespubliques_
Chronique_LDH_191.pdf
https://www.lecho.be/economie-politique/belgique/federal/que-vont-changer-ces-pouvoirsspeciaux/
10214652
https://www.lecho.be/entreprises/horeca/un-conseil-d-etat-fort-avec-l-horeca-faible-avec-legouvernement/
10272082.html
Czechia
Czechia has a clear separation of powers with robust checks and balances. The judiciary is independent, free from unconstitutional interference by other institutions, and mostly free from corruption. When corruption in the judiciary is identified, it is rigorously prosecuted. The Constitutional Court, the Supreme Court, and the Supreme Administrative Court are appointed by the Senate – the second chamber of the parliament – following proposals from the president. The judicial appointment process is transparent and adequately covered by public media. Moreover, the involvement of the president and the Senate increases the likelihood that the political views of judges are diverse.
In November 2022, then-President Zeman announced his intent to appoint the new president of the Constitutional Court before the end of his term in March 2023. However, the term of the sitting president of the Constitutional Court was not due to end until August 2023. Legal experts, the government, and the majority of the Constitutional Court opposed this step, as did the later president-elect, Petr Pavel, during electoral debates. The possibility of the Constitutional Court’s paralysis and the standoff between the Senate and the president increased the stakes of the 2023 presidential election. The new president, Petr Pavel, pledged to stay within the constitution’s remit and will have to appoint 11 Constitutional Court judges during the first 18 months of the court. During his campaign, Petr Pavel named widely respected judges and constitutional law experts as his picks, and his choices were approved by the Senate.
Decisions made by the Constitutional Court have primarily pertained to judgments by other courts, although 50 cases in 2022 concerned laws. Issues often take a long time to reach the Constitutional Court; it was still handling the case involving Petr Nečas, prime minister in 2012, whose partner and later wife used the intelligence service to follow his former wife. The court concluded that the intelligence service can only operate as stipulated by law, not on orders from a state official.
The court also addressed constitutional issues related to emergency measures during the COVID-19 pandemic, determining that the laws adopted were largely acceptable given the need to protect public health, especially as public control and scrutiny were always possible. In some cases, directives by local administrations during the COVID-19 era were found to conflict with the Charter of Human Rights, which is incorporated into the Czech constitution.
In November 2022, then-President Zeman announced his intent to appoint the new president of the Constitutional Court before the end of his term in March 2023. However, the term of the sitting president of the Constitutional Court was not due to end until August 2023. Legal experts, the government, and the majority of the Constitutional Court opposed this step, as did the later president-elect, Petr Pavel, during electoral debates. The possibility of the Constitutional Court’s paralysis and the standoff between the Senate and the president increased the stakes of the 2023 presidential election. The new president, Petr Pavel, pledged to stay within the constitution’s remit and will have to appoint 11 Constitutional Court judges during the first 18 months of the court. During his campaign, Petr Pavel named widely respected judges and constitutional law experts as his picks, and his choices were approved by the Senate.
Decisions made by the Constitutional Court have primarily pertained to judgments by other courts, although 50 cases in 2022 concerned laws. Issues often take a long time to reach the Constitutional Court; it was still handling the case involving Petr Nečas, prime minister in 2012, whose partner and later wife used the intelligence service to follow his former wife. The court concluded that the intelligence service can only operate as stipulated by law, not on orders from a state official.
The court also addressed constitutional issues related to emergency measures during the COVID-19 pandemic, determining that the laws adopted were largely acceptable given the need to protect public health, especially as public control and scrutiny were always possible. In some cases, directives by local administrations during the COVID-19 era were found to conflict with the Charter of Human Rights, which is incorporated into the Czech constitution.
Citations:
https://www.usoud.cz/vyrocni-zpravy/vyrocni-zprava-za-rok-2022
https://www.usoud.cz/vyrocni-zpravy/vyrocni-zprava-za-rok-2022
Latvia
Latvia’s judicial system is autonomous and structured into three levels. According to the constitution, legal authority is allocated among district and city courts, regional courts, the Supreme Court, and the Constitutional Court. In 2020, 31% of the population had complete or partial confidence in the judicial system. Meanwhile, 53% of entrepreneurs rated the independence of courts and judges as very high or somewhat high.
The judiciary’s ability to function independently hinges on factors such as the legal education system, which should be inclusive and accessible to all segments of society. Additionally, the jurisprudence of the judiciary reflects its commitment to independent judicial review, upheld by ethics rules and standards. The Latvian judiciary demonstrates a capacity for independent judicial review. This is evidenced by the consistent application of legal principles and the court’s ability to make decisions free from external influences.
There is an ethical code for judges and the appointment process of justices. The appointment process of justices in Latvia, particularly for the Supreme or Constitutional Court, is designed to ensure independence. A study on the freedom of the judiciary conducted in 2021 surveyed 61% of judges and reflected a relatively high self-assessment of the judiciary’s independence. Both the breakdown of responses and the assessment of autonomy at the judicial system level, a particular court, and the individual judge show that Latvian judges rate their personal independence higher than the collective one. The higher the court level, the higher the self-assessment of independence on all issues.
The Judicial Council has approved the following guidelines: the Judicial Communication Guidelines (2023) and the Judicial Communication Strategy (2023). It has also approved guidelines for writing judgments in administrative and civil cases for courts of first instance and appeal. These guidelines aim to improve the quality of judgments and ensure a uniform approach to judgment writing in all courts.
In Latvia, challenging government action through the judiciary is relatively accessible, reflecting the courts’ operational independence. The judiciary’s rulings in significant cases are generally perceived as independent, suggesting a robust judicial system. The frequency with which the government complies with important court decisions, even in cases of disagreement, is a crucial indicator of judicial effectiveness. While the government compliance rate is high in Latvia, instances of noncompliance do occur.
The Saeima declined to confirm Sanita Osipova, former president of the Constitutional Court, as a judge of the Supreme Court. The decision was influenced by debates over her liberal views and past rulings on same-sex couples’ rights. This rejection – amidst concerns about judicial independence and political interference – marks the third recent instance of a Supreme Court candidate not being confirmed. Legal experts and officials, including the president of Latvia, have expressed concerns over this trend, indicating a potential shift in Latvia’s democratic governance and values.
The Constitutional Court ruled that the norms establishing vaccination against COVID-19 as a precondition for participating in parliamentary work did not comply with the first part of Article 101 of the Constitution. The court emphasized that every Member of the Saeima plays a vital role in Latvia as a parliamentary democracy. Even an opinion expressed by just one or a few members of the Saeima is relevant to its work. A Member of the Saeima can represent the people, including the expression of their will, only if they are allowed to exercise the rights crucial to their role.
Overall, Latvia’s judiciary operates with a considerable degree of independence, ensuring that the government and legislature act according to the law, even if there are areas for improvement.
The judiciary’s ability to function independently hinges on factors such as the legal education system, which should be inclusive and accessible to all segments of society. Additionally, the jurisprudence of the judiciary reflects its commitment to independent judicial review, upheld by ethics rules and standards. The Latvian judiciary demonstrates a capacity for independent judicial review. This is evidenced by the consistent application of legal principles and the court’s ability to make decisions free from external influences.
There is an ethical code for judges and the appointment process of justices. The appointment process of justices in Latvia, particularly for the Supreme or Constitutional Court, is designed to ensure independence. A study on the freedom of the judiciary conducted in 2021 surveyed 61% of judges and reflected a relatively high self-assessment of the judiciary’s independence. Both the breakdown of responses and the assessment of autonomy at the judicial system level, a particular court, and the individual judge show that Latvian judges rate their personal independence higher than the collective one. The higher the court level, the higher the self-assessment of independence on all issues.
The Judicial Council has approved the following guidelines: the Judicial Communication Guidelines (2023) and the Judicial Communication Strategy (2023). It has also approved guidelines for writing judgments in administrative and civil cases for courts of first instance and appeal. These guidelines aim to improve the quality of judgments and ensure a uniform approach to judgment writing in all courts.
In Latvia, challenging government action through the judiciary is relatively accessible, reflecting the courts’ operational independence. The judiciary’s rulings in significant cases are generally perceived as independent, suggesting a robust judicial system. The frequency with which the government complies with important court decisions, even in cases of disagreement, is a crucial indicator of judicial effectiveness. While the government compliance rate is high in Latvia, instances of noncompliance do occur.
The Saeima declined to confirm Sanita Osipova, former president of the Constitutional Court, as a judge of the Supreme Court. The decision was influenced by debates over her liberal views and past rulings on same-sex couples’ rights. This rejection – amidst concerns about judicial independence and political interference – marks the third recent instance of a Supreme Court candidate not being confirmed. Legal experts and officials, including the president of Latvia, have expressed concerns over this trend, indicating a potential shift in Latvia’s democratic governance and values.
The Constitutional Court ruled that the norms establishing vaccination against COVID-19 as a precondition for participating in parliamentary work did not comply with the first part of Article 101 of the Constitution. The court emphasized that every Member of the Saeima plays a vital role in Latvia as a parliamentary democracy. Even an opinion expressed by just one or a few members of the Saeima is relevant to its work. A Member of the Saeima can represent the people, including the expression of their will, only if they are allowed to exercise the rights crucial to their role.
Overall, Latvia’s judiciary operates with a considerable degree of independence, ensuring that the government and legislature act according to the law, even if there are areas for improvement.
Citations:
The Constitution of the Republic of Latvia. 1992. https://likumi.lv/ta/id/57980-latvijas-republikas-satversme
Augstākā tiesa. 2020. “Iedzīvotāju aptauja: tiesiskuma stiprināšanai nepieciešami skaidri likumi.” https://likumi.lv/ta/id/57980-latvijas-republikas-satversme
Tieslietu ministrija. 2023. Tiesu administrācijas pārskats 2022. gads. https://www.tm.gov.lv/lv/media/10187/download?attachment
Tieslietu padome. Tiesnešu ētikas kodekss. (In Latvian) https://www.tiesas.lv/tiesnesu-etikas-kodekss
Satversmes tiesa. 2023. “Gada pārskats par 2022. gadu.” https://www.satv.tiesa.gov.lv/wp-content/uploads/2023/02/WEB_ST_gada_parskats_par_2022_gadu_pa_atverumiem.pdf
Putnina, A., and M. Alksne. 2021. “Ziņojums par Tiesas Neatkarību.” https://juristavards.lv/wwwraksti/JV/BIBLIOTEKA/PRAKSES_MATERIALI/ZINOJUMS%20TIESAS%20NEATKARIBA_.PDF
Tieslietu padome. 2023. “Tieslietu padome pieņem nozīmīgus ar tiesu darba organizāciju saistītus lēmumus.” https://lvportals.lv/dienaskartiba/352698-tieslietu-padome-pienem-nozimigus-ar-tiesu-darba-organizaciju-saistitus-lemumus-2023
Satversmes tiesa. 2023. “Ierobežojums pret COVID-19 nevakcinētam deputātam pilnvērtīgi piedalīties Saeimas darbā neatbilst Satversmei.” https://www.satv.tiesa.gov.lv/press-release/ierobezojums-pret-covid-19-nevakcinetam-deputatam-pilnvertigi-piedalities-saeimas-darba-neatbilst-satversmei/
Upleja, S. 2021. “Saeima apstiprina Anitu Rodiņu Satversmes tiesas tiesneša amatā.” https://www.delfi.lv/193/politics/53012637/saeima-apstiprina-anitu-rodinu-satversmes-tiesnesa-amata
Kincis, J., Līcīte, M., and Krenberga, O. 2022. “Bijušo Satversmes tiesas priekšsēdētāju Osipovu neapstiprina par Augstākās tiesas tiesnesi.” https://www.lsm.lv/raksts/zinas/latvija/bijuso-satversmes-tiesas-priekssedetaju-osipovu-neapstiprina-par-augstakas-tiesas-tiesnesi.a443985/
The Constitution of the Republic of Latvia. 1992. https://likumi.lv/ta/id/57980-latvijas-republikas-satversme
Augstākā tiesa. 2020. “Iedzīvotāju aptauja: tiesiskuma stiprināšanai nepieciešami skaidri likumi.” https://likumi.lv/ta/id/57980-latvijas-republikas-satversme
Tieslietu ministrija. 2023. Tiesu administrācijas pārskats 2022. gads. https://www.tm.gov.lv/lv/media/10187/download?attachment
Tieslietu padome. Tiesnešu ētikas kodekss. (In Latvian) https://www.tiesas.lv/tiesnesu-etikas-kodekss
Satversmes tiesa. 2023. “Gada pārskats par 2022. gadu.” https://www.satv.tiesa.gov.lv/wp-content/uploads/2023/02/WEB_ST_gada_parskats_par_2022_gadu_pa_atverumiem.pdf
Putnina, A., and M. Alksne. 2021. “Ziņojums par Tiesas Neatkarību.” https://juristavards.lv/wwwraksti/JV/BIBLIOTEKA/PRAKSES_MATERIALI/ZINOJUMS%20TIESAS%20NEATKARIBA_.PDF
Tieslietu padome. 2023. “Tieslietu padome pieņem nozīmīgus ar tiesu darba organizāciju saistītus lēmumus.” https://lvportals.lv/dienaskartiba/352698-tieslietu-padome-pienem-nozimigus-ar-tiesu-darba-organizaciju-saistitus-lemumus-2023
Satversmes tiesa. 2023. “Ierobežojums pret COVID-19 nevakcinētam deputātam pilnvērtīgi piedalīties Saeimas darbā neatbilst Satversmei.” https://www.satv.tiesa.gov.lv/press-release/ierobezojums-pret-covid-19-nevakcinetam-deputatam-pilnvertigi-piedalities-saeimas-darba-neatbilst-satversmei/
Upleja, S. 2021. “Saeima apstiprina Anitu Rodiņu Satversmes tiesas tiesneša amatā.” https://www.delfi.lv/193/politics/53012637/saeima-apstiprina-anitu-rodinu-satversmes-tiesnesa-amata
Kincis, J., Līcīte, M., and Krenberga, O. 2022. “Bijušo Satversmes tiesas priekšsēdētāju Osipovu neapstiprina par Augstākās tiesas tiesnesi.” https://www.lsm.lv/raksts/zinas/latvija/bijuso-satversmes-tiesas-priekssedetaju-osipovu-neapstiprina-par-augstakas-tiesas-tiesnesi.a443985/
Lithuania
Lithuania’s court system is divided into courts of general jurisdiction and courts of special jurisdiction. This differentiated system of independent courts allows for the monitoring of government and public administrative activities’ legality. The Constitutional Court rules on the constitutionality of laws and other legal acts adopted by the parliament or issued by the president or government. The Supreme Court reviews judgments, decisions, rulings and orders from lower general-jurisdiction courts. Disputes arising in the sphere of public administration are handled within the system of administrative courts. These disputes can include the legality of measures and activities performed by administrative bodies, such as ministries, departments, inspections, services and commissions. The administrative court system consists of five regional administrative courts and the Supreme Administrative Court.
The rule of law and the independence of the courts are established by the constitution and other legal norms, such as the Law on Courts. Generally, the national judiciary possesses the legal autonomy to independently interpret and review existing laws, legislation and policies. The independence of the courts is reinforced by the rules for appointing justices, which distribute these powers between the president and the Seimas, requiring their cooperation. For example, the president of the Supreme Court is proposed by the president of Lithuania upon the advice of the Judicial Council and appointed by the Seimas. The Seimas also appoints members of the Constitutional Court, with candidates proposed by the president of Lithuania, the chair of the Seimas and the president of the Supreme Court.
Sometimes disagreements between the country’s president and the ruling majority in the Seimas regarding the candidacies of justices can lead to significant delays in appointments. For example, the Supreme Court was headed by an acting president from September 2019 until March 2023, when the permanent president was appointed by the Seimas.
According to Vilmorus opinion surveys, levels of public trust in the courts are low. In December 2023, only 20% of survey respondents indicated that they trusted the courts, compared with 22% two years previously, while 35.9% expressed mistrust, compared with 31% two years before. As noted by Freedom House, judicial corruption remains a concern. Its 2023 report on Lithuania expressed “concerns regarding transparency in the selection of judges and low pay for some work in the court system.”
According to the European Commission Rule of Law Report 2023 on Lithuania, “new legislation was adopted, improving the transparency of judicial appointments. Stakeholders continue to raise the need for additional safeguards in this regard. The Constitutional Court clarified the principles regarding the dismissal of judges of higher courts, reaffirming the role of the Judicial Council. There are serious concerns regarding the level of remuneration for prosecutors and court staff, which were only partially addressed by the legislative reform. The reform of the legal aid system advanced, while the workload and remuneration of legal aid providers remains to be addressed.”
In the 2023 World Justice Project Rule of Law Index, Lithuania was ranked 18th out of 140 countries, and 17th in terms of constraints on government powers.
The rule of law and the independence of the courts are established by the constitution and other legal norms, such as the Law on Courts. Generally, the national judiciary possesses the legal autonomy to independently interpret and review existing laws, legislation and policies. The independence of the courts is reinforced by the rules for appointing justices, which distribute these powers between the president and the Seimas, requiring their cooperation. For example, the president of the Supreme Court is proposed by the president of Lithuania upon the advice of the Judicial Council and appointed by the Seimas. The Seimas also appoints members of the Constitutional Court, with candidates proposed by the president of Lithuania, the chair of the Seimas and the president of the Supreme Court.
Sometimes disagreements between the country’s president and the ruling majority in the Seimas regarding the candidacies of justices can lead to significant delays in appointments. For example, the Supreme Court was headed by an acting president from September 2019 until March 2023, when the permanent president was appointed by the Seimas.
According to Vilmorus opinion surveys, levels of public trust in the courts are low. In December 2023, only 20% of survey respondents indicated that they trusted the courts, compared with 22% two years previously, while 35.9% expressed mistrust, compared with 31% two years before. As noted by Freedom House, judicial corruption remains a concern. Its 2023 report on Lithuania expressed “concerns regarding transparency in the selection of judges and low pay for some work in the court system.”
According to the European Commission Rule of Law Report 2023 on Lithuania, “new legislation was adopted, improving the transparency of judicial appointments. Stakeholders continue to raise the need for additional safeguards in this regard. The Constitutional Court clarified the principles regarding the dismissal of judges of higher courts, reaffirming the role of the Judicial Council. There are serious concerns regarding the level of remuneration for prosecutors and court staff, which were only partially addressed by the legislative reform. The reform of the legal aid system advanced, while the workload and remuneration of legal aid providers remains to be addressed.”
In the 2023 World Justice Project Rule of Law Index, Lithuania was ranked 18th out of 140 countries, and 17th in terms of constraints on government powers.
Citations:
European Commission. 2023. “2023 Rule of Law Report: Country Chapter on the Rule of Law in Lithuania.” Brussels, 5.7.2023. SWD (2023) 815 final. https://commission.europa.eu/publications/2023-rule-law-report-communication-and-country-chapters_en
World Justice Project. “Rule of Law Index: Country 2023 – Lithuania.” https://worldjusticeproject.org/rule-of-law-index/country/2023/Lithuania
European Commission. 2023. “2023 Rule of Law Report: Country Chapter on the Rule of Law in Lithuania.” Brussels, 5.7.2023. SWD (2023) 815 final. https://commission.europa.eu/publications/2023-rule-law-report-communication-and-country-chapters_en
World Justice Project. “Rule of Law Index: Country 2023 – Lithuania.” https://worldjusticeproject.org/rule-of-law-index/country/2023/Lithuania
Norway
Norway’s government and administration are predictable and operate in accordance with the law. The country has a sound and transparent legal system with minimal corruption within its judiciary. The state bureaucracy is considered both efficient and reliable, and Norwegian citizens generally trust their institutions.
Although the supreme court can, in principle, test the constitutional legality of government decisions, it has not done so for many years. The court system provides mechanisms for reviewing executive actions and follows principles of the Scandinavian civil law system (Norwegian Bar Association, 2023a). Unlike other civil law countries, Norway does not have a general codification of private or public law. Instead, comprehensive statutes codify central aspects such as criminal law and the administration of justice.
Norwegian courts do not place as much emphasis on judicial precedents as do courts in common law countries. Court procedures are relatively informal and simple, with significant lay influence in the judicial assessment of criminal cases.
At the top of the judicial hierarchy is the supreme court (Høyesterett), followed by the Court of Appeal (lagmannsrettene). The majority of criminal matters are settled summarily in the District Courts (tingrettene) (Norwegian Bar Association, 2023b). A Court of Impeachment is available to hear charges brought against government ministers, members of parliament, and supreme court judges, although it is very rarely used. The last time someone was charged and convicted was in 1884.
The courts are independent of any influence exerted by the executive. Professional standards and the quality of internal organization are high. The selection of judges is rarely disputed and is not seen as involving political issues. All judges are formally appointed by a government decision based on a recommendation issued by an autonomous body, the “Innstillingsrådet.” This body is composed of three judges, one lawyer, a legal expert from the public sector, and two members not from the legal profession. The government almost always follows the recommendations. Supreme Court justices are not considered political, and their tenure security is guaranteed in the constitution. There is a firm tradition of autonomy in the supreme court. The appointment of judges attracts limited attention and rarely leads to public debate.
There are very few instances of corruption in Norway. The cases that have surfaced in recent years have been at the municipal level and are related to public procurement. As a rule, corrupt officeholders are prosecuted under established laws. There is a great social stigma against corruption, even in its minor manifestations.
Access to the court system is relatively easy, but the risk of potentially high legal fees may prevent many from bringing their issues to court.
Although the supreme court can, in principle, test the constitutional legality of government decisions, it has not done so for many years. The court system provides mechanisms for reviewing executive actions and follows principles of the Scandinavian civil law system (Norwegian Bar Association, 2023a). Unlike other civil law countries, Norway does not have a general codification of private or public law. Instead, comprehensive statutes codify central aspects such as criminal law and the administration of justice.
Norwegian courts do not place as much emphasis on judicial precedents as do courts in common law countries. Court procedures are relatively informal and simple, with significant lay influence in the judicial assessment of criminal cases.
At the top of the judicial hierarchy is the supreme court (Høyesterett), followed by the Court of Appeal (lagmannsrettene). The majority of criminal matters are settled summarily in the District Courts (tingrettene) (Norwegian Bar Association, 2023b). A Court of Impeachment is available to hear charges brought against government ministers, members of parliament, and supreme court judges, although it is very rarely used. The last time someone was charged and convicted was in 1884.
The courts are independent of any influence exerted by the executive. Professional standards and the quality of internal organization are high. The selection of judges is rarely disputed and is not seen as involving political issues. All judges are formally appointed by a government decision based on a recommendation issued by an autonomous body, the “Innstillingsrådet.” This body is composed of three judges, one lawyer, a legal expert from the public sector, and two members not from the legal profession. The government almost always follows the recommendations. Supreme Court justices are not considered political, and their tenure security is guaranteed in the constitution. There is a firm tradition of autonomy in the supreme court. The appointment of judges attracts limited attention and rarely leads to public debate.
There are very few instances of corruption in Norway. The cases that have surfaced in recent years have been at the municipal level and are related to public procurement. As a rule, corrupt officeholders are prosecuted under established laws. There is a great social stigma against corruption, even in its minor manifestations.
Access to the court system is relatively easy, but the risk of potentially high legal fees may prevent many from bringing their issues to court.
Citations:
Norwegian Bar Association. 2023. “Features of the Norwegian Legal System.” https://www.advokatforeningen.no/en/features-of-the-norwegian-legal-system/features-of-the-norwegian-legal-system
Norwegian Bar Association. 2023b. “Structure of the Courts.” https://www.advokatforeningen.no/en/features-of-the-norwegian-legal-system/structure-of-the-courts/
Norwegian Bar Association. 2023. “Features of the Norwegian Legal System.” https://www.advokatforeningen.no/en/features-of-the-norwegian-legal-system/features-of-the-norwegian-legal-system
Norwegian Bar Association. 2023b. “Structure of the Courts.” https://www.advokatforeningen.no/en/features-of-the-norwegian-legal-system/structure-of-the-courts/
Portugal
The national judiciary can be regarded as an independent system, accountable solely to the law and bolstered by a heightened level of independence perceived by the general public (European Commission, 2023). Portugal’s judiciary stands as a vital and sovereign entity actively ensuring that both the government and society adhere to the rule of law.
Within the realm of civil jurisdiction, the justice system encompasses the Judicial Courts. These include the Supreme Court – the apex body of the Portuguese judicial system – and the ordinary courts of first and second instance, which comprise courts of appeal, district courts, and specialized courts. The Supreme Court exercises jurisdiction in both civil and criminal matters and consists of 60 justices known as Conselheiros.
On the administrative jurisdiction front, the system includes the Supreme Administrative Court and the corresponding administrative and tax courts of first and second instance. Additionally, there is the Constitutional Court, which is primarily tasked with assessing the constitutionality or legality of legal norms, as well as the previously mentioned Court of Auditors.
All these legal institutions and judges operate independently and enjoy tenure. For example, when appointing judges to the Constitutional Court, 10 out of the total 13 are appointed by a qualified majority of two-thirds of the members of parliament, while the remaining three are co-opted by the elected judges. These factors potentially contribute to the selection of politically impartial judges (Tribunal Constitucional, n.d).
The judicial autonomy in Portugal has been prominently highlighted since Prime Minister António Costa began his third term in 2022. This period witnessed a surge in legal challenges against government actions, leading to significant resignations, including those of high-ranking officials such as the secretary of state and the minister of infrastructure, the secretary of state for agriculture, and the assistant secretary of state to the prime minister. The most notable political development was Costa’s resignation in November 2023.
Costa’s resignation was precipitated by allegations of his involvement in facilitating procedures related to the lithium and hydrogen industries (JN, 2023). The gravity of the situation was underscored when the attorney general confirmed that Costa was under a corruption investigation. This investigation was the first to lead to the resignation of a sitting prime minister. Although the investigation has yet to produce substantial results, it underscores its capacity to maintain independence from political influence.
Within the realm of civil jurisdiction, the justice system encompasses the Judicial Courts. These include the Supreme Court – the apex body of the Portuguese judicial system – and the ordinary courts of first and second instance, which comprise courts of appeal, district courts, and specialized courts. The Supreme Court exercises jurisdiction in both civil and criminal matters and consists of 60 justices known as Conselheiros.
On the administrative jurisdiction front, the system includes the Supreme Administrative Court and the corresponding administrative and tax courts of first and second instance. Additionally, there is the Constitutional Court, which is primarily tasked with assessing the constitutionality or legality of legal norms, as well as the previously mentioned Court of Auditors.
All these legal institutions and judges operate independently and enjoy tenure. For example, when appointing judges to the Constitutional Court, 10 out of the total 13 are appointed by a qualified majority of two-thirds of the members of parliament, while the remaining three are co-opted by the elected judges. These factors potentially contribute to the selection of politically impartial judges (Tribunal Constitucional, n.d).
The judicial autonomy in Portugal has been prominently highlighted since Prime Minister António Costa began his third term in 2022. This period witnessed a surge in legal challenges against government actions, leading to significant resignations, including those of high-ranking officials such as the secretary of state and the minister of infrastructure, the secretary of state for agriculture, and the assistant secretary of state to the prime minister. The most notable political development was Costa’s resignation in November 2023.
Costa’s resignation was precipitated by allegations of his involvement in facilitating procedures related to the lithium and hydrogen industries (JN, 2023). The gravity of the situation was underscored when the attorney general confirmed that Costa was under a corruption investigation. This investigation was the first to lead to the resignation of a sitting prime minister. Although the investigation has yet to produce substantial results, it underscores its capacity to maintain independence from political influence.
Citations:
European Comission. 2023. “2023 Rule of Law Report: Country Chapter on the Rule of Law Situation in Portugal.” https://commission.europa.eu/system/files/2023-07/50_1_52628_coun_chap_portugal_en.pdf
Law on the Organization of the Judicial System (Lei da Organização do Sistema Judiciário). 2013. Law No. 62/2013, of August 26. https://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1974&tabela=leis
Tribunal Constitucional. n.d. “Estatuto dos juízes.” https://www.tribunalconstitucional.pt/tc/tribunal-estatutojuizes.html
Jornal de Negócios. 2023. “Aberto inquérito no Supremo por alegado envolvimento de Costa nos processos do lítio e hidrogénio.” https://www.jornaldenegocios.pt/economia/politica/detalhe/aberto-inquerito-no-supremo-por-alegado-envolvimento-de-costa-nos-processos-do-litio-e-hidrogenio
European Comission. 2023. “2023 Rule of Law Report: Country Chapter on the Rule of Law Situation in Portugal.” https://commission.europa.eu/system/files/2023-07/50_1_52628_coun_chap_portugal_en.pdf
Law on the Organization of the Judicial System (Lei da Organização do Sistema Judiciário). 2013. Law No. 62/2013, of August 26. https://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1974&tabela=leis
Tribunal Constitucional. n.d. “Estatuto dos juízes.” https://www.tribunalconstitucional.pt/tc/tribunal-estatutojuizes.html
Jornal de Negócios. 2023. “Aberto inquérito no Supremo por alegado envolvimento de Costa nos processos do lítio e hidrogénio.” https://www.jornaldenegocios.pt/economia/politica/detalhe/aberto-inquerito-no-supremo-por-alegado-envolvimento-de-costa-nos-processos-do-litio-e-hidrogenio
UK
The UK has a manifestly independent judiciary that has, on occasion, halted government plans. One notable instance occurred in 2019 when the judiciary overturned an attempt by the Johnson government to prorogue Parliament. Although the government may complain about certain judgments, it always respects them. However, a Supreme Court ruling in November 2023 against a plan to send illegal immigrants to Rwanda has prompted an interesting response: a bill currently making its way through Parliament, perceived as an attempt to circumvent the decision. This bill has elicited substantial opposition from many quarters, including factions within the governing Conservative Party. The UK Supreme Court also plays a role in constitutional matters, including disputes between the UK and devolved parliaments.
The judicial appointments system, reflecting the UK’s lack of a written constitution, has a degree of informality and has undergone substantial changes in recent years. The Constitutional Reform Act of 2005 divided the powers of the Lord Chancellor and established the Supreme Court of the United Kingdom, replacing the Appellate Committee of the House of Lords. The 12 judges of the Supreme Court are appointed by the crown based on the recommendation of the prime minister, who is advised by the Lord Chancellor in cooperation with a selection commission. It would be surprising if the prime minister ignored the advice of the Lord Chancellor and the selection commission, or if the king ignored the prime minister’s recommendations.
While there is no empirical basis to assess the actual independence of judicial appointments, there is every reason to believe that the process ensures judicial independence. Indeed, a public outcry would be expected if judicial independence were seen to be seriously threatened.
The judicial appointments system, reflecting the UK’s lack of a written constitution, has a degree of informality and has undergone substantial changes in recent years. The Constitutional Reform Act of 2005 divided the powers of the Lord Chancellor and established the Supreme Court of the United Kingdom, replacing the Appellate Committee of the House of Lords. The 12 judges of the Supreme Court are appointed by the crown based on the recommendation of the prime minister, who is advised by the Lord Chancellor in cooperation with a selection commission. It would be surprising if the prime minister ignored the advice of the Lord Chancellor and the selection commission, or if the king ignored the prime minister’s recommendations.
While there is no empirical basis to assess the actual independence of judicial appointments, there is every reason to believe that the process ensures judicial independence. Indeed, a public outcry would be expected if judicial independence were seen to be seriously threatened.
The judiciary usually manages to ensure that the government and legislature act in accordance with the law.
8
France
Judicial oversight and review efforts are rather powerful in France, even if the caseload is comparatively low. This function is exercised by a specialized court – the Conseil Constitutionnel (Constitutional Court). The caseload has increased significantly since the court’s beginnings in 1959, but remains modest compared to other European courts serving comparable functions. In the past 20 years, there has been an average of 173 decisions per year. However, this number is driven by post-electoral and electoral decisions, as the court is tasked with overseeing presidential and parliamentary elections. Outside election years, the caseload falls to less than 100 cases a year.
This comparatively low number is mostly due to the limited triggers for constitutional review. The only figures with the power to refer a case are the president, the prime minister, the presidents of the two chambers, and 60 senators or members of the National Assembly. Since 2008, the two supreme courts have also been able to raise constitutional questions raised by defendants before their courts. This procedure – a sort of preliminary constitutional ruling – now accounts for the vast majority of the caseload.
For traditional rulings, the Constitutional Court has to make a decision before a law comes into force. The underlying idea is that no unconstitutional bill should ever become law. While the caseload in this area remains small, the rulings that have invalidated all or parts of laws have been relatively important. This procedure has proven rather reliable, and the public image of the Constitutional Court is very positive despite the fact that the judges mostly have a background within politics.
One issue that may present a challenge for the court’s work is the strategic use of constitutional oversight by politicians. In some cases, invalidation can be anticipated, but the government may still prefer to pass the law for electoral or coalition-related reasons. This is a way of shifting the blame for non-adoption to the court, which may have the effect of undermining the court’s legitimacy. For example, this happened when the National Assembly voted on a highly controversial immigration bill in December 2023. The government accepted amendments from right and extreme-right groups despite regarding them as unconstitutional (and hoped these amendments would be rejected by the court). In January 2024, the court rejected substantial portions of the bill passed by the legislature in December 2023, declaring them to be incompatible with the constitution. The court’s president, Laurent Fabius (2024), publicly criticized this governmental tactic, declaring that “the court’s role was not to offer political services.”
This comparatively low number is mostly due to the limited triggers for constitutional review. The only figures with the power to refer a case are the president, the prime minister, the presidents of the two chambers, and 60 senators or members of the National Assembly. Since 2008, the two supreme courts have also been able to raise constitutional questions raised by defendants before their courts. This procedure – a sort of preliminary constitutional ruling – now accounts for the vast majority of the caseload.
For traditional rulings, the Constitutional Court has to make a decision before a law comes into force. The underlying idea is that no unconstitutional bill should ever become law. While the caseload in this area remains small, the rulings that have invalidated all or parts of laws have been relatively important. This procedure has proven rather reliable, and the public image of the Constitutional Court is very positive despite the fact that the judges mostly have a background within politics.
One issue that may present a challenge for the court’s work is the strategic use of constitutional oversight by politicians. In some cases, invalidation can be anticipated, but the government may still prefer to pass the law for electoral or coalition-related reasons. This is a way of shifting the blame for non-adoption to the court, which may have the effect of undermining the court’s legitimacy. For example, this happened when the National Assembly voted on a highly controversial immigration bill in December 2023. The government accepted amendments from right and extreme-right groups despite regarding them as unconstitutional (and hoped these amendments would be rejected by the court). In January 2024, the court rejected substantial portions of the bill passed by the legislature in December 2023, declaring them to be incompatible with the constitution. The court’s president, Laurent Fabius (2024), publicly criticized this governmental tactic, declaring that “the court’s role was not to offer political services.”
Citations:
Brouard, S. 2016. “Constitutional Politics.” In R. Elgie, E. Grossman, and A. Mazur, eds., The Oxford Handbook of French Politics, 220-242. Oxford: OUP.
Fabius, Laurent. 2024. “Interview.” https://www.francetvinfo.fr/societe/immigration/loi-immigration-le-conseil-constitutionnel-est-la-non-pas-pour-rendre-des-services-politiques-mais-pour-rendre-une-decision-juridique-justifie-son-president-laurent-fabius_6327135.html
Brouard, S. 2016. “Constitutional Politics.” In R. Elgie, E. Grossman, and A. Mazur, eds., The Oxford Handbook of French Politics, 220-242. Oxford: OUP.
Fabius, Laurent. 2024. “Interview.” https://www.francetvinfo.fr/societe/immigration/loi-immigration-le-conseil-constitutionnel-est-la-non-pas-pour-rendre-des-services-politiques-mais-pour-rendre-une-decision-juridique-justifie-son-president-laurent-fabius_6327135.html
Greece
Greece’s national courts can effectively review actions and norms implemented by the executive and legislative branches, with the independence of the judiciary guaranteed by the constitution (Article 26 on the separation and balance of powers and Articles 93–100 on the organization and jurisdiction of courts).
The judiciary in Greece operates with legal autonomy from the government and parliament. Although Greece does not have a Constitutional Court, it employs an independent, diffuse system of constitutional review, allowing even first-instance courts to declare government decisions (e.g., presidential decrees, ministerial circulars) unconstitutional, thus rendering them invalid. However, the Supreme Administrative Court (Symvoulio tis Epikrateias), modeled after the French Conseil d’État, has the final say on citizens’ appeals against government decisions.
There is a cooperative procedure for appointing high-ranking judges to lead the supreme administrative court and the supreme civil and criminal court (the “Areios Pagos”). Both parliament and the cabinet participate in the selection process. Courts submit the names of candidates for the head positions of these supreme courts to the Minister of Justice, who then forwards the list of candidates to a designated parliamentary body. This body consists of the speaker, the vice presidents, and other heads of parliamentary committees (the so-called “Conference of Parliamentary Chairmen”). It serves in a consultative capacity, auditing candidates for the posts of heads of supreme courts and voting on them.
Eventually, based on the constitution (article 90 paragraph 5), the cabinet makes the decision on new heads of the supreme courts. This decision is effected by a presidential decree issued on the cabinet’s proposal. The cabinet usually follows the suggestions of the other institutions involved in the process. The entire procedure is publicly transparent, and the media report on it. Thus, the independence of justices appointed to the top of the supreme courts is largely secured.
Challenging government actions in Greece is relatively accessible through the administrative courts of first instance. If a citizen is dissatisfied with the court’s decision, they have the right to appeal to the administrative court of second instance, and ultimately, to the supreme administrative court, the Symvoulio tis Epikrateias. The cost of pursuing legal action is relatively low. For cases in the first-instance administrative courts, the court fee is approximately €100 (Lawspot 2024), while legal representation by a lawyer typically starts at around €200. If the case is brought before the supreme administrative court, the total cost can exceed €1,500.
Court rulings, even those significant to the government, are respected and complied with. The government is obligated to adhere to these decisions. The only method by which the government can avoid compliance with a court ruling is by passing new legislation that amends the relevant regulations invalidated by the courts. However, such amendments would only apply to future cases and not retroactively. For instance, during the Greek economic crisis, the government complied with court decisions requiring the payment of higher pensions to individuals whose pensions had been reduced by austerity measures, which were lower than those stipulated by earlier legislation. Nonetheless, subsequent legislation passed by parliament set pensions at lower levels for future payments.
The judiciary in Greece operates with legal autonomy from the government and parliament. Although Greece does not have a Constitutional Court, it employs an independent, diffuse system of constitutional review, allowing even first-instance courts to declare government decisions (e.g., presidential decrees, ministerial circulars) unconstitutional, thus rendering them invalid. However, the Supreme Administrative Court (Symvoulio tis Epikrateias), modeled after the French Conseil d’État, has the final say on citizens’ appeals against government decisions.
There is a cooperative procedure for appointing high-ranking judges to lead the supreme administrative court and the supreme civil and criminal court (the “Areios Pagos”). Both parliament and the cabinet participate in the selection process. Courts submit the names of candidates for the head positions of these supreme courts to the Minister of Justice, who then forwards the list of candidates to a designated parliamentary body. This body consists of the speaker, the vice presidents, and other heads of parliamentary committees (the so-called “Conference of Parliamentary Chairmen”). It serves in a consultative capacity, auditing candidates for the posts of heads of supreme courts and voting on them.
Eventually, based on the constitution (article 90 paragraph 5), the cabinet makes the decision on new heads of the supreme courts. This decision is effected by a presidential decree issued on the cabinet’s proposal. The cabinet usually follows the suggestions of the other institutions involved in the process. The entire procedure is publicly transparent, and the media report on it. Thus, the independence of justices appointed to the top of the supreme courts is largely secured.
Challenging government actions in Greece is relatively accessible through the administrative courts of first instance. If a citizen is dissatisfied with the court’s decision, they have the right to appeal to the administrative court of second instance, and ultimately, to the supreme administrative court, the Symvoulio tis Epikrateias. The cost of pursuing legal action is relatively low. For cases in the first-instance administrative courts, the court fee is approximately €100 (Lawspot 2024), while legal representation by a lawyer typically starts at around €200. If the case is brought before the supreme administrative court, the total cost can exceed €1,500.
Court rulings, even those significant to the government, are respected and complied with. The government is obligated to adhere to these decisions. The only method by which the government can avoid compliance with a court ruling is by passing new legislation that amends the relevant regulations invalidated by the courts. However, such amendments would only apply to future cases and not retroactively. For instance, during the Greek economic crisis, the government complied with court decisions requiring the payment of higher pensions to individuals whose pensions had been reduced by austerity measures, which were lower than those stipulated by earlier legislation. Nonetheless, subsequent legislation passed by parliament set pensions at lower levels for future payments.
Citations:
Lawspot. 2024. “Detailed list of fees for the Athens first-instance administrative court.” https://www.lawspot.gr/nomikes-plirofories/voithitika-kemena/analytikos-pinakas-telon-ensimon-kai-paravolon-gia-dioikitiko
Lawspot. 2024. “Detailed list of fees for the Athens first-instance administrative court.” https://www.lawspot.gr/nomikes-plirofories/voithitika-kemena/analytikos-pinakas-telon-ensimon-kai-paravolon-gia-dioikitiko
Ireland
The Liberties Rule of Law Irish Report (2022), published by the Civil Liberties Union for Europe (Liberties), highlights the continued use of the Special Criminal Court, a legislative legacy related to the Northern Ireland conflict, as a serious concern. This issue is currently under review as part of the Offences Against the State Act. The report also calls for a comprehensive review of the legal aid system and the provision of an enhanced civil legal aid system. Despite these concerns, V-Dem (2023) rates Ireland highly for rule of law indicators, and the World Justice Project (WJP) scores Ireland highly, with an 81 for due process of law and the rights of the accused, and a 90 for freedom from arbitrary interference.
The national judiciary, including specialized courts, has the legal autonomy to independently interpret and review existing laws, legislation and policies, and the capacity to exercise independent judicial review. Contemporary practices and proposals aim to limit housing and environmental planning decisions’ exposure to judicial review (ICCL 2022). Legal education in Ireland is not yet inclusive and accessible to all segments of society, showing clear class bias in judicial pipelines, though recent progress has been made in gender balance. Judges are held to formal public accountability through ethics, rules and observable standards, with recent instances of judicial resignations highlighting this accountability. A post-crisis referendum was necessary to enable the government to decrease judicial remuneration in line with other public salary decreases. The process of appointing all justices has recently been transformed to ensure the independence of the judiciary.
There is horizontal accountability and effective relationships between the executive branch and other state institutions, which can hold the government accountable, particularly by demanding information and addressing inappropriate behavior. The late 2023 Judicial Appointments Bill addressed the high-level separation of powers and the horizontal relationship between the government and the judiciary. The Supreme Court tested the constitutionality of this bill following a presidential referral, consulting the Council of State under Article 26 of the 1937 constitution.
This process exemplified the horizontal powers of accountability and legitimacy, ensuring an independent judiciary that ensures the government, administration and legislature act in accordance with the constitution and laws while respecting and defending fundamental rights. Judicial review of government action is common but expensive, making it inaccessible to many due to costs. The court’s rulings have been significant, causing the government to delay, reverse, and amend decisions. The government generally complies with important court decisions, even if it disagrees with them. However, there are specific examples of non-compliance, particularly in environmental and social policies. Courts reviewed the achievement of climate targets in 2019, finding delays in response to a case taken by Friends of the Irish Environment (Murphy 2023). No known cases have been taken between 2022 and 2024. The EU has criticized Ireland for the penal and uncertain costs associated with environmental litigation, making it the most expensive country for such litigation in the EU, and for the related aggressive targeting and threats to cut the funding of critical environmental NGOs.
The national judiciary, including specialized courts, has the legal autonomy to independently interpret and review existing laws, legislation and policies, and the capacity to exercise independent judicial review. Contemporary practices and proposals aim to limit housing and environmental planning decisions’ exposure to judicial review (ICCL 2022). Legal education in Ireland is not yet inclusive and accessible to all segments of society, showing clear class bias in judicial pipelines, though recent progress has been made in gender balance. Judges are held to formal public accountability through ethics, rules and observable standards, with recent instances of judicial resignations highlighting this accountability. A post-crisis referendum was necessary to enable the government to decrease judicial remuneration in line with other public salary decreases. The process of appointing all justices has recently been transformed to ensure the independence of the judiciary.
There is horizontal accountability and effective relationships between the executive branch and other state institutions, which can hold the government accountable, particularly by demanding information and addressing inappropriate behavior. The late 2023 Judicial Appointments Bill addressed the high-level separation of powers and the horizontal relationship between the government and the judiciary. The Supreme Court tested the constitutionality of this bill following a presidential referral, consulting the Council of State under Article 26 of the 1937 constitution.
This process exemplified the horizontal powers of accountability and legitimacy, ensuring an independent judiciary that ensures the government, administration and legislature act in accordance with the constitution and laws while respecting and defending fundamental rights. Judicial review of government action is common but expensive, making it inaccessible to many due to costs. The court’s rulings have been significant, causing the government to delay, reverse, and amend decisions. The government generally complies with important court decisions, even if it disagrees with them. However, there are specific examples of non-compliance, particularly in environmental and social policies. Courts reviewed the achievement of climate targets in 2019, finding delays in response to a case taken by Friends of the Irish Environment (Murphy 2023). No known cases have been taken between 2022 and 2024. The EU has criticized Ireland for the penal and uncertain costs associated with environmental litigation, making it the most expensive country for such litigation in the EU, and for the related aggressive targeting and threats to cut the funding of critical environmental NGOs.
Citations:
Hickey, T. 2021. “Judges and the Political Organs of the State.” In Policy Analysis in Ireland, eds. J. Hogan and M. P. Murphy, 213-228. Bristol: Policy Press.
EuroPAM. 2023. “Ireland Public Accountability Index.” https://europam.eu/?module=country-profile&country=Ireland
Civil Liberties Union for Europe. 2022. “Liberties Rule of Law Report 2022 Ireland.” https://www.iccl.ie/wp-content/uploads/2022/02/IRELAND_Rule-of-Law-Report_2022.pdf
Murphy, M. P. 2023. Creating an Eco Social Welfare Future. Bristol: Policy Press.
Hickey, T. 2021. “Judges and the Political Organs of the State.” In Policy Analysis in Ireland, eds. J. Hogan and M. P. Murphy, 213-228. Bristol: Policy Press.
EuroPAM. 2023. “Ireland Public Accountability Index.” https://europam.eu/?module=country-profile&country=Ireland
Civil Liberties Union for Europe. 2022. “Liberties Rule of Law Report 2022 Ireland.” https://www.iccl.ie/wp-content/uploads/2022/02/IRELAND_Rule-of-Law-Report_2022.pdf
Murphy, M. P. 2023. Creating an Eco Social Welfare Future. Bristol: Policy Press.
Israel
Judicial oversight is conducted by the Supreme Court, which oversees government decisions, appointments, rules, regulations, ministerial decisions and legislation. The Supreme Court is not codified but is based on norms and previous rulings. Therefore, the court has broad discretion and autonomy on the subject (Lurie 2023). In the past year, the current government has tried to significantly limit judicial oversight, transferring more power to the executive. This attempt has so far failed due to mass public protests.
Anyone can petition the Supreme Court without having to prove direct damage or personal impact from the decision being challenged. However, the court does not hear all petitions and only a proportion of petitions are accepted.
The judges are appointed by a committee composed of three Supreme Court judges, two representatives of the Law Bar Association, two ministers and two members of the Knesset. This composition limits political interference. To appoint a Supreme Court judge, a majority of seven committee members is required. This ensures consensus and the representation of various interests. However, in the past year, the minister of justice has sought to reform the committee, aiming to politicize it and align the majority of members with the executive. Although the minister failed to reform the committee, he continues to aspire to do so in the future, as evidenced by his refusal over several months to appoint new judges to the committee (an activity under his responsibility).
The Supreme Court, despite its broad discretion, is often reluctant to interfere in politically salient issues and matters of legislation. It prefers to return such cases to the executive or the Knesset, asking them to legislate on the issue. In recent years, the executive has frequently chosen not to decide on various salient issues, forcing the court to intervene, only to later accuse it of interference (Galnoor 2014).
The government complies with the court’s decisions. However, during the judicial overhaul, government ministers threatened not to follow the Supreme Court’s ruling if it overruled the judicial reform. In the end, however, the government followed the court’s decision.
Anyone can petition the Supreme Court without having to prove direct damage or personal impact from the decision being challenged. However, the court does not hear all petitions and only a proportion of petitions are accepted.
The judges are appointed by a committee composed of three Supreme Court judges, two representatives of the Law Bar Association, two ministers and two members of the Knesset. This composition limits political interference. To appoint a Supreme Court judge, a majority of seven committee members is required. This ensures consensus and the representation of various interests. However, in the past year, the minister of justice has sought to reform the committee, aiming to politicize it and align the majority of members with the executive. Although the minister failed to reform the committee, he continues to aspire to do so in the future, as evidenced by his refusal over several months to appoint new judges to the committee (an activity under his responsibility).
The Supreme Court, despite its broad discretion, is often reluctant to interfere in politically salient issues and matters of legislation. It prefers to return such cases to the executive or the Knesset, asking them to legislate on the issue. In recent years, the executive has frequently chosen not to decide on various salient issues, forcing the court to intervene, only to later accuse it of interference (Galnoor 2014).
The government complies with the court’s decisions. However, during the judicial overhaul, government ministers threatened not to follow the Supreme Court’s ruling if it overruled the judicial reform. In the end, however, the government followed the court’s decision.
Citations:
Galnoor, I. 2014. “The Judicialization of the Public Sphere in Israel.” Israel Law Review 37 (2–3): 500–542. https://doi.org/10.1017/S002122370001253X
Lurie, G. 2023. “The Invisible Safeguards of Judicial Independence in the Israeli Judiciary.” German Law Journal 24 (8): 1449–1468. https://doi.org/10.1017/glj.2023.73
Galnoor, I. 2014. “The Judicialization of the Public Sphere in Israel.” Israel Law Review 37 (2–3): 500–542. https://doi.org/10.1017/S002122370001253X
Lurie, G. 2023. “The Invisible Safeguards of Judicial Independence in the Israeli Judiciary.” German Law Journal 24 (8): 1449–1468. https://doi.org/10.1017/glj.2023.73
New Zealand
The judiciary, including the Supreme Court, High Court, and specialized courts such as the Employment Court, the Environment Court and the Māori Land Court, has the authority to interpret laws. Judges have the autonomy to analyze statutes, common law principles and constitutional provisions to make decisions based on their interpretation of the law. Individuals and organizations have the right to access courts to challenge the legality of government actions or laws (Geddis 2015).
The Supreme Court has the authority to declare acts of Parliament inconsistent with the New Zealand Bill of Rights Act 1990 or other fundamental constitutional principles. However, it is essential to note that – as in other Commonwealth countries that follow the Westminster system of government – Parliament is sovereign and holds supreme legislative power. This means that the Supreme Court does not have the authority to invalidate legislation. Even if the Court declares a law inconsistent with the Bill of Rights Act, the law remains valid and enforceable unless Parliament decides to amend or repeal it. Parliament can choose whether or not to respond to a declaration of inconsistency made by the Supreme Court (Roycroft 2021).
Despite the principle of parliamentary sovereignty, governments typically comply with important Supreme Court decisions. A recent example is the Supreme Court’s ruling that disenfranchizing prisoners was inconsistent with the Bill of Rights. This decision prompted the Labour administration under Jacinda Ardern to restore prisoners’ voting rights ahead of the 2020 election (Davison 2019).
Ultimately, whether to follow up on Supreme Court decisions is a political choice. In late 2022, the Court ruled that the minimum voting age of 18 violates the age discrimination clause in the Bill of Rights. However, lowering the voting age to 16 would require 75% of legislators to vote in favor of the measure, which is very unlikely to happen (Rawhiti-Connell 2022).
The judiciary operates independently of political influence and is not subject to interference in its decision-making process. Supreme Court judges are appointed through a process that involves several steps: After interviews and assessments conducted by the Judicial Appointments Unit within the Ministry of Justice, a selection committee recommends one or more candidates to the attorney general. The attorney general then makes a recommendation to the governor-general for the formal appointment of the judge (Miller 2015: 31).
The Supreme Court has the authority to declare acts of Parliament inconsistent with the New Zealand Bill of Rights Act 1990 or other fundamental constitutional principles. However, it is essential to note that – as in other Commonwealth countries that follow the Westminster system of government – Parliament is sovereign and holds supreme legislative power. This means that the Supreme Court does not have the authority to invalidate legislation. Even if the Court declares a law inconsistent with the Bill of Rights Act, the law remains valid and enforceable unless Parliament decides to amend or repeal it. Parliament can choose whether or not to respond to a declaration of inconsistency made by the Supreme Court (Roycroft 2021).
Despite the principle of parliamentary sovereignty, governments typically comply with important Supreme Court decisions. A recent example is the Supreme Court’s ruling that disenfranchizing prisoners was inconsistent with the Bill of Rights. This decision prompted the Labour administration under Jacinda Ardern to restore prisoners’ voting rights ahead of the 2020 election (Davison 2019).
Ultimately, whether to follow up on Supreme Court decisions is a political choice. In late 2022, the Court ruled that the minimum voting age of 18 violates the age discrimination clause in the Bill of Rights. However, lowering the voting age to 16 would require 75% of legislators to vote in favor of the measure, which is very unlikely to happen (Rawhiti-Connell 2022).
The judiciary operates independently of political influence and is not subject to interference in its decision-making process. Supreme Court judges are appointed through a process that involves several steps: After interviews and assessments conducted by the Judicial Appointments Unit within the Ministry of Justice, a selection committee recommends one or more candidates to the attorney general. The attorney general then makes a recommendation to the governor-general for the formal appointment of the judge (Miller 2015: 31).
Citations:
Davison, I. 2019. “Prisoners serving sentences of less than three years to vote at 2020 election.” New Zealand Herald, 23 November. https://www.nzherald.co.nz/nz/prisoners-serving-sentences-of-less-than-three-years-to-vote-at-2020-election/RH7MO7XFMQ36AGV4AN7O5KA7YE/
Geddis, A. 2015. “The Judiciary.” In J. Hayward, ed. Government and Politics in Aotearoa New Zealand. 6th ed. Oxford University Press.
Miller, R. 2015. Democracy in New Zealand. Auckland: Auckland University Press.
Rawhiti-Connell, A. 2022. “The Supreme Court’s Judgment on the Voting Age and What Comes Next.” The Spinoff, November 22. https://thespinoff.co.nz/politics/22-11-2022/the-supreme-courts-judgment-on-the-voting-age-and-what-comes-next
Roycroft, P. 2021. “Parliament.” In Government and Politics in Aotearoa New Zealand. 7th edition, J. Hayward, et al. Oxford University Press.
Davison, I. 2019. “Prisoners serving sentences of less than three years to vote at 2020 election.” New Zealand Herald, 23 November. https://www.nzherald.co.nz/nz/prisoners-serving-sentences-of-less-than-three-years-to-vote-at-2020-election/RH7MO7XFMQ36AGV4AN7O5KA7YE/
Geddis, A. 2015. “The Judiciary.” In J. Hayward, ed. Government and Politics in Aotearoa New Zealand. 6th ed. Oxford University Press.
Miller, R. 2015. Democracy in New Zealand. Auckland: Auckland University Press.
Rawhiti-Connell, A. 2022. “The Supreme Court’s Judgment on the Voting Age and What Comes Next.” The Spinoff, November 22. https://thespinoff.co.nz/politics/22-11-2022/the-supreme-courts-judgment-on-the-voting-age-and-what-comes-next
Roycroft, P. 2021. “Parliament.” In Government and Politics in Aotearoa New Zealand. 7th edition, J. Hayward, et al. Oxford University Press.
Slovenia
Slovenia’s judiciary is characterized by a constitutionally guaranteed separation of powers among the legislative, executive, and judicial branches, ensuring the application of the principle of checks and balances. Independent courts and the Constitutional Court conduct judicial reviews of legislation and administrative actions. Political actors in Slovenia have generally respected the rule of law as a core value. In practice, however, there are several issues regarding respect for the courts and their decisions.
The Slovenian Democratic Party (SDS) and its leader, Janez Janša, faced significant challenges in this regard, especially during their governance from 2020 to 2022. For instance, in 2021, the SDS-led government avoided nominating the delegated prosecutors to the European Public Prosecutor’s Office and delayed making payments to the Slovenian Press Agency, despite court rulings. Janša, a three-time prime minister, has been a longtime critic of the Slovenian judiciary and has undermined public trust in the courts with various statements. V-Dem data indicates that the rule of law deteriorated in 2020 and 2021 but improved in 2022.
Following the 2022 parliamentary elections, the ruling coalition led by the Freedom Movement declared its intention to respect judicial independence. In 2022, serious discussions about judicial appointments began, aiming to strengthen the judiciary’s independence from politics. The proposed change suggests that judges should be appointed by the president of the republic rather than the National Assembly. However, organizations of judges and some legal experts have criticized the proposed reform and other planned changes.
The Constitutional Court’s decisions have been especially difficult for various governments to implement. Both the government and the National Assembly have long been criticized for failing to enforce several of its rulings. In January 2024, judges and prosecutors went on strike to protest the government’s failure to raise their salaries to align with those of the other two branches of government, as demanded by the Constitutional Court. The judiciary has had major problems with backlogs, although this has improved in recent years. The 2022 edition of the EU Justice Scoreboard also showed that the public trusts the Slovenian judiciary. For years, those working in the judiciary have complained about inadequate infrastructure and poor working conditions.
The Slovenian Democratic Party (SDS) and its leader, Janez Janša, faced significant challenges in this regard, especially during their governance from 2020 to 2022. For instance, in 2021, the SDS-led government avoided nominating the delegated prosecutors to the European Public Prosecutor’s Office and delayed making payments to the Slovenian Press Agency, despite court rulings. Janša, a three-time prime minister, has been a longtime critic of the Slovenian judiciary and has undermined public trust in the courts with various statements. V-Dem data indicates that the rule of law deteriorated in 2020 and 2021 but improved in 2022.
Following the 2022 parliamentary elections, the ruling coalition led by the Freedom Movement declared its intention to respect judicial independence. In 2022, serious discussions about judicial appointments began, aiming to strengthen the judiciary’s independence from politics. The proposed change suggests that judges should be appointed by the president of the republic rather than the National Assembly. However, organizations of judges and some legal experts have criticized the proposed reform and other planned changes.
The Constitutional Court’s decisions have been especially difficult for various governments to implement. Both the government and the National Assembly have long been criticized for failing to enforce several of its rulings. In January 2024, judges and prosecutors went on strike to protest the government’s failure to raise their salaries to align with those of the other two branches of government, as demanded by the Constitutional Court. The judiciary has had major problems with backlogs, although this has improved in recent years. The 2022 edition of the EU Justice Scoreboard also showed that the public trusts the Slovenian judiciary. For years, those working in the judiciary have complained about inadequate infrastructure and poor working conditions.
Citations:
Freedom House. 2023. “Slovenia.” https://freedomhouse.org/country/slovenia
Varieties of Democracy. 2024. “Democracy Report.” https://v-dem.net/
Krašovec, A. and Lajh, D. 2021. “Slovenia: Tilting the Balance?” In G. Verheugen, K. Vodička, and M. Brusis, eds., Demokratie im postkommunistischen EU-Raum, 161-174. Wiesbaden: Springer.
The Slovenia Times. 2024. “Judges and Prosecutors Stage Protest Over Pay.” https://sloveniatimes.com/40119/judges-and-prosecutors-stage-protest-over-pay
Freedom House. 2023. “Slovenia.” https://freedomhouse.org/country/slovenia
Varieties of Democracy. 2024. “Democracy Report.” https://v-dem.net/
Krašovec, A. and Lajh, D. 2021. “Slovenia: Tilting the Balance?” In G. Verheugen, K. Vodička, and M. Brusis, eds., Demokratie im postkommunistischen EU-Raum, 161-174. Wiesbaden: Springer.
The Slovenia Times. 2024. “Judges and Prosecutors Stage Protest Over Pay.” https://sloveniatimes.com/40119/judges-and-prosecutors-stage-protest-over-pay
Spain
The Spanish judiciary is independent and capable of ensuring that the government and administration act according to the law. Specialized courts review actions and norms adopted by the executive, effectively ensuring legal compliance. Courts serve as effective and independent monitors of public authorities’ activities, and the government complies with court decisions even if it disagrees with them. Any natural or legal person with a legitimate interest can bring a legal protection action (amparo) before the Constitutional Court against governmental, administrative, parliamentary, or judicial decisions. In 2023, 6,243 appeals for protection were lodged with the Constitutional Court, primarily against judicial decisions, but most were dismissed for lack of legal grounding. During the review period, there were no examples of noncompliance.
Article 159 of the Spanish constitution outlines the composition of the Constitutional Court, comprising twelve members appointed by the King. Four are nominated by Congress with a three-fifths majority, another four by the Senate with the same majority, two are appointed by the government, and two by the General Council of the Judiciary, also requiring a three-fifths majority. These enhanced majorities are intended to ensure consensus in appointing independent judges. However, political practice often results in partisan appointments among major parties. The division between conservatives and progressives within the Constitutional Court has been significant during the review period.
The politically fragmented parliament failed to muster the three-fifths majority necessary to appoint new members to the General Council of the Judiciary – an autonomous body of judges and other jurists that governs the judiciary and aims to guarantee judges’ independence. The incumbent council has operated on an interim basis since 2018. The lack of renewal is affecting the Supreme Court’s functioning and the entire justice system, raising concerns about caseload and the duration of proceedings.
The 2023 EU Justice Scoreboard indicates that some judges struggle to reconcile their ideological biases with the requirement of effective independence, potentially hindering the judiciary’s mandate to serve as a legal and politically neutral check on government actions (European Commission 2023). Public opinion increasingly perceives courts and judges as lacking independence due to perceived interference or pressure from economic interests and, more prominently, from government and opposition politicians.
Within the RRP, the government has continued efforts to increase the justice system’s efficiency. Measures taken to enhance the quality of justice include legal aid and digitalization related to data management and interoperability of applications within the justice system. An example is Royal Decree Law 6/2023 of December 19.
Article 159 of the Spanish constitution outlines the composition of the Constitutional Court, comprising twelve members appointed by the King. Four are nominated by Congress with a three-fifths majority, another four by the Senate with the same majority, two are appointed by the government, and two by the General Council of the Judiciary, also requiring a three-fifths majority. These enhanced majorities are intended to ensure consensus in appointing independent judges. However, political practice often results in partisan appointments among major parties. The division between conservatives and progressives within the Constitutional Court has been significant during the review period.
The politically fragmented parliament failed to muster the three-fifths majority necessary to appoint new members to the General Council of the Judiciary – an autonomous body of judges and other jurists that governs the judiciary and aims to guarantee judges’ independence. The incumbent council has operated on an interim basis since 2018. The lack of renewal is affecting the Supreme Court’s functioning and the entire justice system, raising concerns about caseload and the duration of proceedings.
The 2023 EU Justice Scoreboard indicates that some judges struggle to reconcile their ideological biases with the requirement of effective independence, potentially hindering the judiciary’s mandate to serve as a legal and politically neutral check on government actions (European Commission 2023). Public opinion increasingly perceives courts and judges as lacking independence due to perceived interference or pressure from economic interests and, more prominently, from government and opposition politicians.
Within the RRP, the government has continued efforts to increase the justice system’s efficiency. Measures taken to enhance the quality of justice include legal aid and digitalization related to data management and interoperability of applications within the justice system. An example is Royal Decree Law 6/2023 of December 19.
Citations:
European Commission. 2023. “EU Justice Scoreboard.” https://commission.europa.eu/system/files/2023-06/Justice%20Scoreboard%202023_0.pdf
European Commission. 2023. “EU Justice Scoreboard.” https://commission.europa.eu/system/files/2023-06/Justice%20Scoreboard%202023_0.pdf
7
Italy
The Italian government and administration operate within a robust legal framework that establishes the rule of law. This framework is upheld by a multilayered system of oversight, including the Constitutional Court and a network of local, regional, and national courts. The government’s meticulous adherence to legal principles ensures highly predictable and impartial actions. This commitment to the rule of law is further validated by the V-Dem project’s expert assessment (2023), which assigns Italy a high score on the Rule of Law Index, measuring transparency, independence, predictability, impartiality, and equality of law enforcement, as well as the adherence of government officials to the law.
Italian courts play a pivotal role in the country’s political landscape, exercising significant influence over various aspects of democratic governance. The judicial system enjoys robust autonomy from the executive branch, ensuring independence from political interference. Judges’ and prosecutors’ recruitment, appointment, and career progression are managed by the Superior Council of the Judiciary (CSM), a representative body elected by the judiciary and partially by parliament, safeguarding impartiality and preventing undue influence from the executive.
While these institutional arrangements protect the overall independence of the judiciary as a collective entity, concerns persist regarding the internal independence and impartiality of individual magistrates. This is because the professional advancement of each magistrate is controlled by the CSM, which is internally divided into factions representing competing political ideologies (Dallara and Pederzoli 2022).
The 2023 EU Justice Scoreboard highlights these concerns, revealing a relatively low perception of judicial independence among citizens and businesses. Combined with recent scandals within the CSM, these issues prompted the Draghi government to undertake a comprehensive reform of the CSM, including changes to its composition, election procedures, and rules governing factions within the body (Law 71/2022).
As part of a broader legal system reform within the National Recovery and Resilience Plan (PNRR) sponsored by the Draghi government, legislative decrees 149 and 150 (2022) aim to address a long-standing issue within the Italian justice system – the protracted nature of civil and criminal proceedings, particularly in civil and commercial disputes. This persistent issue has significantly hampered the effectiveness of judicial action and oversight, as highlighted in the 2022 Committee for the Evaluation of the Efficiency of Justice (CEPEJ) report.
The newly formed Meloni government has embarked on a new judicial reform initiative that could significantly impact the careers of judges and magistrates, though this reform is still under discussion.
At the apex of the Italian judicial system, the Constitutional Court ensures that laws conform to the Constitution. Its unique appointment process involves three independent sources – the Head of State, the parliament (with special majority requirements), and the highest judiciary ranks (via election) – effectively safeguarding the Court’s political autonomy and elevating its stature. Comprising eminent legal scholars, experienced judges, and distinguished lawyers, the Constitutional Court has consistently rendered rulings that challenge and sometimes overturn legislation championed by the government and approved by the legislature. However, when the rulings of the Constitutional Court require new legislative norms, their full implementation may be delayed by government and parliamentary inaction.
Italian courts play a pivotal role in the country’s political landscape, exercising significant influence over various aspects of democratic governance. The judicial system enjoys robust autonomy from the executive branch, ensuring independence from political interference. Judges’ and prosecutors’ recruitment, appointment, and career progression are managed by the Superior Council of the Judiciary (CSM), a representative body elected by the judiciary and partially by parliament, safeguarding impartiality and preventing undue influence from the executive.
While these institutional arrangements protect the overall independence of the judiciary as a collective entity, concerns persist regarding the internal independence and impartiality of individual magistrates. This is because the professional advancement of each magistrate is controlled by the CSM, which is internally divided into factions representing competing political ideologies (Dallara and Pederzoli 2022).
The 2023 EU Justice Scoreboard highlights these concerns, revealing a relatively low perception of judicial independence among citizens and businesses. Combined with recent scandals within the CSM, these issues prompted the Draghi government to undertake a comprehensive reform of the CSM, including changes to its composition, election procedures, and rules governing factions within the body (Law 71/2022).
As part of a broader legal system reform within the National Recovery and Resilience Plan (PNRR) sponsored by the Draghi government, legislative decrees 149 and 150 (2022) aim to address a long-standing issue within the Italian justice system – the protracted nature of civil and criminal proceedings, particularly in civil and commercial disputes. This persistent issue has significantly hampered the effectiveness of judicial action and oversight, as highlighted in the 2022 Committee for the Evaluation of the Efficiency of Justice (CEPEJ) report.
The newly formed Meloni government has embarked on a new judicial reform initiative that could significantly impact the careers of judges and magistrates, though this reform is still under discussion.
At the apex of the Italian judicial system, the Constitutional Court ensures that laws conform to the Constitution. Its unique appointment process involves three independent sources – the Head of State, the parliament (with special majority requirements), and the highest judiciary ranks (via election) – effectively safeguarding the Court’s political autonomy and elevating its stature. Comprising eminent legal scholars, experienced judges, and distinguished lawyers, the Constitutional Court has consistently rendered rulings that challenge and sometimes overturn legislation championed by the government and approved by the legislature. However, when the rulings of the Constitutional Court require new legislative norms, their full implementation may be delayed by government and parliamentary inaction.
Citations:
V-Dem: https://v-dem.net/documents/29/V-dem_democracyreport2023_lowres.pdf
2023 EU Justice Scoreboard: https://commission.europa.eu/document/download/db44e228-db4e-43f5-99ce-17ca3f2f2933_en?filename=Justice%20Scoreboard%202023_0.pdf
CEPEJ Evaluation Report 2022 (2020 data): https://rm.coe.int/cepej-fiche-pays-2020-22-e-web/1680a86276
Dallara, C., and Pederzoli, P. 2022. “Corruzione, trasparenza e Rule of Law.” In G. Baldini and A. Pritoni, eds., Il sistema politico italiano. Milano: Mondadori.
V-Dem: https://v-dem.net/documents/29/V-dem_democracyreport2023_lowres.pdf
2023 EU Justice Scoreboard: https://commission.europa.eu/document/download/db44e228-db4e-43f5-99ce-17ca3f2f2933_en?filename=Justice%20Scoreboard%202023_0.pdf
CEPEJ Evaluation Report 2022 (2020 data): https://rm.coe.int/cepej-fiche-pays-2020-22-e-web/1680a86276
Dallara, C., and Pederzoli, P. 2022. “Corruzione, trasparenza e Rule of Law.” In G. Baldini and A. Pritoni, eds., Il sistema politico italiano. Milano: Mondadori.
Switzerland
The Swiss judicial system is guided by professional norms without political interference. The judicial system is based on professional training, though a mixture of lay and professionally trained judges serve at the local level in many cantons. Decisions by these judges are subject to review by higher professional courts. The character of the Swiss judicial system varies substantially between cantons. This is due to Swiss federalism, which gives cantons great leeway in cantonal lawmaking and hence also in cantonal administration of justice. This also includes variations in the rules and examinations with regard to lawyers’ admission to the bar.
Formally, legal education is inclusive and accessible to all segments of society. However, due to the strong social selectivity of the Swiss education system – in particular direct access to universities (Becker and Schoch 2028) – lawyers and judges de facto come disproportionately often from academic families.
The Swiss Federal Supreme Court is the highest judicial authority in Switzerland. It adjudicates, in the last instance, appeals of rulings made by the high cantonal courts of appeal, the Federal Criminal Court, the Federal Administrative Court and the Federal Patent Court. The areas of law thus covered are civil law, criminal law and administrative law. Violations of federal law, international law, intercantonal law or constitutional rights can be addressed. The Federal Supreme Court’s jurisprudence ensures the uniform application of federal law throughout the country. The other courts and the administrative authorities comply with the Federal Supreme Court’s case law and adopt its principles.
The Federal Administrative Court rules on the legality of rulings issued by the federal administration. The court also adjudicates appeals against certain decisions of the cantonal governments, for example, in the area of health insurance. However, constitutional review is not fully developed: “Acts of the Federal Assembly or the Federal Council may not be challenged in the Federal Supreme Court” (Art 189.4, Federal Constitution). The Federal Supreme Court has no powers to annul federal laws “if they are unconstitutional, and it can’t even refuse to apply them” (Flick Witzig et al. 2022: 217). However, there are some options to mitigate these constraints, and therefore in international comparison Flick Witzig et al. (2002: 226) suggest that “Swiss constitutional review appears to be de facto of medium strength.”
The judges of the Federal Supreme Court are elected for a period of six years in a joint session of both chambers of parliament, with approval requiring a majority of those voting. A parliamentary commission prepares the elections by screening the candidates. Unwritten rules stipulate a nearly proportional representation of the political parties then in parliament. By tradition, judges voluntarily pay part of their salary to the political party to which they are affiliated. This is considered a tax on their salary, which they would not have without the support of their party (Vatter/Ackermann 2014).
In 2017, a committee of the Council of Europe criticized this arrangement and recommended that “the system should be backed up by safeguards to ensure the quality and objectivity of the recruitment of federal judges. Once judges have been elected it is important to sever the ties with the political powers by doing away with the practice whereby judges pay part of their salary to their party” (GRECO 2017:4). Another unwritten rule demands representation of the various linguistic regions. There is no special majority requirement.
In international comparison, the independence of the Swiss judicial system has been ranked at only 106th place among 124 countries surveyed. However, taking into account the de facto independence found in empirical studies, Switzerland has been ranked at 17th place among 108 countries (Flick Witzig 2022: 222, 226).
In 2021, a popular initiative aiming to have federal judges selected by lottery rather than through election in parliament was rejected in a popular vote. Also in 2021, parliament started to discuss the legitimacy of the contributions federal judges are required to make to the parties that nominated them, and in March 2022 it rejected a ban on mandate taxes and party donations from members of the federal courts.
Switzerland is regularly called to order by supranational bodies for a lack of respect for the terms of international treaties, or for breaching fundamental rights. Examples include the United Nation’s concern “that persons with disabilities deemed ‘permanently incapable of discernment’ are excluded from exercising their right to vote” (see section D1) (UN/CRPD 2022), and a 2023 ECHR ruling against the rejection of refugees’ requests for family reunification.
Formally, legal education is inclusive and accessible to all segments of society. However, due to the strong social selectivity of the Swiss education system – in particular direct access to universities (Becker and Schoch 2028) – lawyers and judges de facto come disproportionately often from academic families.
The Swiss Federal Supreme Court is the highest judicial authority in Switzerland. It adjudicates, in the last instance, appeals of rulings made by the high cantonal courts of appeal, the Federal Criminal Court, the Federal Administrative Court and the Federal Patent Court. The areas of law thus covered are civil law, criminal law and administrative law. Violations of federal law, international law, intercantonal law or constitutional rights can be addressed. The Federal Supreme Court’s jurisprudence ensures the uniform application of federal law throughout the country. The other courts and the administrative authorities comply with the Federal Supreme Court’s case law and adopt its principles.
The Federal Administrative Court rules on the legality of rulings issued by the federal administration. The court also adjudicates appeals against certain decisions of the cantonal governments, for example, in the area of health insurance. However, constitutional review is not fully developed: “Acts of the Federal Assembly or the Federal Council may not be challenged in the Federal Supreme Court” (Art 189.4, Federal Constitution). The Federal Supreme Court has no powers to annul federal laws “if they are unconstitutional, and it can’t even refuse to apply them” (Flick Witzig et al. 2022: 217). However, there are some options to mitigate these constraints, and therefore in international comparison Flick Witzig et al. (2002: 226) suggest that “Swiss constitutional review appears to be de facto of medium strength.”
The judges of the Federal Supreme Court are elected for a period of six years in a joint session of both chambers of parliament, with approval requiring a majority of those voting. A parliamentary commission prepares the elections by screening the candidates. Unwritten rules stipulate a nearly proportional representation of the political parties then in parliament. By tradition, judges voluntarily pay part of their salary to the political party to which they are affiliated. This is considered a tax on their salary, which they would not have without the support of their party (Vatter/Ackermann 2014).
In 2017, a committee of the Council of Europe criticized this arrangement and recommended that “the system should be backed up by safeguards to ensure the quality and objectivity of the recruitment of federal judges. Once judges have been elected it is important to sever the ties with the political powers by doing away with the practice whereby judges pay part of their salary to their party” (GRECO 2017:4). Another unwritten rule demands representation of the various linguistic regions. There is no special majority requirement.
In international comparison, the independence of the Swiss judicial system has been ranked at only 106th place among 124 countries surveyed. However, taking into account the de facto independence found in empirical studies, Switzerland has been ranked at 17th place among 108 countries (Flick Witzig 2022: 222, 226).
In 2021, a popular initiative aiming to have federal judges selected by lottery rather than through election in parliament was rejected in a popular vote. Also in 2021, parliament started to discuss the legitimacy of the contributions federal judges are required to make to the parties that nominated them, and in March 2022 it rejected a ban on mandate taxes and party donations from members of the federal courts.
Switzerland is regularly called to order by supranational bodies for a lack of respect for the terms of international treaties, or for breaching fundamental rights. Examples include the United Nation’s concern “that persons with disabilities deemed ‘permanently incapable of discernment’ are excluded from exercising their right to vote” (see section D1) (UN/CRPD 2022), and a 2023 ECHR ruling against the rejection of refugees’ requests for family reunification.
Citations:
Becker, Rolf, and Jürg Schoch. 2018. Soziale Selektivität. Empfehlungen des Schweizerischen Wissenschaftsrates SWR. Expertenbericht von Rolf Becker und Jürg Schoch im Auftrag des SWR (Politische Analyse 3/2018). Bern: SWR.
Flick Witzig, Martina, Christine Rothmayr Allison, and Frédéric Varone. 2023. “Judicial System.” In The Oxford Handbook of Swiss Politics, eds. Patrick Emmenegger, Flavia Fossati, Silja Häusermann, Yannis Papadopoulos, Pascal Sciarini, and Adrian Vatter. Oxford: Oxford University Press, 214–232. https://doi.org/10.1093/oxfordhb/9780192871787.013.11 (1/4/2024)
Group of States against Corruption (GRECO/Council of Europe). 2017. Fourth Evaluation Report. Corruption Prevention in Respect of Members of Parliament, Judges and Prosecutors. Strasbourg: GRECO, https://www.coe.int/en/web/greco/evaluations/switzerland
Adrian Vatter and Maya Ackermann. 2014. “Richterwahlen in der Schweiz: Eine empirische Analyse der Wahlen an das Bundesgericht von 1848 bis 2013.” Zeitschrift für Schweizerisches Recht 133: 517-537.
UN/CRPD 2022: file:///Users/cmavrot/Dropbox/Mac/Downloads/CRPD%20Concluding%20observations%20on%20the%20initial%20report%20of%20Switzerland.pdf
Becker, Rolf, and Jürg Schoch. 2018. Soziale Selektivität. Empfehlungen des Schweizerischen Wissenschaftsrates SWR. Expertenbericht von Rolf Becker und Jürg Schoch im Auftrag des SWR (Politische Analyse 3/2018). Bern: SWR.
Flick Witzig, Martina, Christine Rothmayr Allison, and Frédéric Varone. 2023. “Judicial System.” In The Oxford Handbook of Swiss Politics, eds. Patrick Emmenegger, Flavia Fossati, Silja Häusermann, Yannis Papadopoulos, Pascal Sciarini, and Adrian Vatter. Oxford: Oxford University Press, 214–232. https://doi.org/10.1093/oxfordhb/9780192871787.013.11 (1/4/2024)
Group of States against Corruption (GRECO/Council of Europe). 2017. Fourth Evaluation Report. Corruption Prevention in Respect of Members of Parliament, Judges and Prosecutors. Strasbourg: GRECO, https://www.coe.int/en/web/greco/evaluations/switzerland
Adrian Vatter and Maya Ackermann. 2014. “Richterwahlen in der Schweiz: Eine empirische Analyse der Wahlen an das Bundesgericht von 1848 bis 2013.” Zeitschrift für Schweizerisches Recht 133: 517-537.
UN/CRPD 2022: file:///Users/cmavrot/Dropbox/Mac/Downloads/CRPD%20Concluding%20observations%20on%20the%20initial%20report%20of%20Switzerland.pdf
Netherlands
The judiciary is trusted by nearly 80% of the Dutch population, the highest such figure for any state power in the country. The judiciary also performs well in completing a large proportion of the 1.5 million court cases per year on time. Yet the Council for the Judiciary, the judiciary’s highest administrative body, warns that the system is under severe pressure due to understaffing, and thus courtroom capacity. One journalistic commentator even speaks of a crisis of the rule of law, because judges and prosecutors are fed up with failing judicial policies and workload and were recently even close to going on strike.
Regardless of such practical matters, the Dutch judiciary has to make do without a constitutional court with the power to render constitutional review of laws. In 2023, the new political party New Social Contract made the establishment of such a national constitutional court one of its major reform proposals in the area of “better governance.” This is in line with criticisms offered by leading legal scholars. In spite of de facto co-production of laws, the European Union is not mentioned in the constitution. In political debate, “Brussels” is still seen at most as a treaty partner. Whereas the Supreme Court is part of the judiciary and is supposedly independent of politics, it serves both as an advisor to the government on all legislative affairs and is the highest court of appeal in matters of administrative law. Its members, nominated by legal experts, are most frequently proposed by the Council of Ministers and appointed for life by the States General. They are often not legally trained scholars, but instead former politicians with a reputation as elderly statesmen.
This may explain why the Supreme Court sides with government most of the time, as shown in instances such as appeals of the tax authorities’ decisions in the childcare benefits scandal. Regarding the childcare benefits affair, the Administrative Court’s highest judge recently apologized that the courts had stuck to a strict law enforcement “groove” far too long, attributing this to a “political climate” pressing for “zero tolerance” for fraud. The Supreme Court was also charged with making rulings that were too “executive friendly” when dealing with information from refugees and foreigners.
The relationship between the judiciary and the executive has been under tension since the former’s rulings on climate goals, and more recently on fundamental social rights like housing and subsistence security. It is therefore significant that the cabinet did not implementing a motion, supported by major mainstream parties including the VVD and CDA, on making litigation by interest groups against the state more difficult. This is critical at a time when the Dutch state, partly due to shortages of trained personnel and finances, will not or cannot comply with its own laws in an increasing number of areas. Other civil society organizations such as employment agencies and municipal services also claim they are forced to break the law on grounds of financial and/or personnel incapacities.
Regardless of such practical matters, the Dutch judiciary has to make do without a constitutional court with the power to render constitutional review of laws. In 2023, the new political party New Social Contract made the establishment of such a national constitutional court one of its major reform proposals in the area of “better governance.” This is in line with criticisms offered by leading legal scholars. In spite of de facto co-production of laws, the European Union is not mentioned in the constitution. In political debate, “Brussels” is still seen at most as a treaty partner. Whereas the Supreme Court is part of the judiciary and is supposedly independent of politics, it serves both as an advisor to the government on all legislative affairs and is the highest court of appeal in matters of administrative law. Its members, nominated by legal experts, are most frequently proposed by the Council of Ministers and appointed for life by the States General. They are often not legally trained scholars, but instead former politicians with a reputation as elderly statesmen.
This may explain why the Supreme Court sides with government most of the time, as shown in instances such as appeals of the tax authorities’ decisions in the childcare benefits scandal. Regarding the childcare benefits affair, the Administrative Court’s highest judge recently apologized that the courts had stuck to a strict law enforcement “groove” far too long, attributing this to a “political climate” pressing for “zero tolerance” for fraud. The Supreme Court was also charged with making rulings that were too “executive friendly” when dealing with information from refugees and foreigners.
The relationship between the judiciary and the executive has been under tension since the former’s rulings on climate goals, and more recently on fundamental social rights like housing and subsistence security. It is therefore significant that the cabinet did not implementing a motion, supported by major mainstream parties including the VVD and CDA, on making litigation by interest groups against the state more difficult. This is critical at a time when the Dutch state, partly due to shortages of trained personnel and finances, will not or cannot comply with its own laws in an increasing number of areas. Other civil society organizations such as employment agencies and municipal services also claim they are forced to break the law on grounds of financial and/or personnel incapacities.
Citations:
NRC, Wafa Al Ali. 2023. “Interview Henk Naves: De rechtspraak staat onder druk door gebrek aan menskracht. ‘Het strafrecht heeft meer zittingscapaciteit nodig.’“ January 16.
NRC-H, Folkert Jensma. 2023. “Nooit was een staking van rechters en officieren zó dichtbij.” NRC-H May 19.
NRC. 2022. “De grondwet is het draaiboek voor burger en staat dat niemand echt kent. Of goed leest.” April 20.
NRC-H, Wafa Al Ali. 2023. “Kabinet wil stap belangenorganisaties naar rechter niet bemoeilijken.” NRC-H April 17.
Folkert Jensma. 2022. “Aan een niet-functionerende overheid kan ook een bestuursrechter weinig doen.” NRC-H November 3.
NRC-H, Martin Kuiper, Christiaan Pelgrim. 2022. “Een op de zeven uitzendbureaus overtreedt doelbewust de wet, denkt de Arbeidsinspectie.” November 17.
NRC-H, Camil Driessen. 2023. “Strafrecht Door niets openbaar te maken over klachten tegen de reclassering, schendt deze organisatie de eigen regels.” February 6.
NRC. 2023. “Ombudsmannen Van Zutphen en Kalverboer: gemeenten schenden mensenrechten bij huisuitzettingen.” Pelgrim January 24.
NRC, Wafa Al Ali. 2023. “Interview Henk Naves: De rechtspraak staat onder druk door gebrek aan menskracht. ‘Het strafrecht heeft meer zittingscapaciteit nodig.’“ January 16.
NRC-H, Folkert Jensma. 2023. “Nooit was een staking van rechters en officieren zó dichtbij.” NRC-H May 19.
NRC. 2022. “De grondwet is het draaiboek voor burger en staat dat niemand echt kent. Of goed leest.” April 20.
NRC-H, Wafa Al Ali. 2023. “Kabinet wil stap belangenorganisaties naar rechter niet bemoeilijken.” NRC-H April 17.
Folkert Jensma. 2022. “Aan een niet-functionerende overheid kan ook een bestuursrechter weinig doen.” NRC-H November 3.
NRC-H, Martin Kuiper, Christiaan Pelgrim. 2022. “Een op de zeven uitzendbureaus overtreedt doelbewust de wet, denkt de Arbeidsinspectie.” November 17.
NRC-H, Camil Driessen. 2023. “Strafrecht Door niets openbaar te maken over klachten tegen de reclassering, schendt deze organisatie de eigen regels.” February 6.
NRC. 2023. “Ombudsmannen Van Zutphen en Kalverboer: gemeenten schenden mensenrechten bij huisuitzettingen.” Pelgrim January 24.
USA
The United States has two legal systems: federal law and state law. In both, judges exercise strong judicial review, with the authority to issue sweeping judgments that can strike down legislation and constrain executive action (Whittington 2007).
Federal judges interpret the U.S. Constitution and review federal statutes in relation to it. They also interpret federal statutes passed by Congress and evaluate the actions of various actors, including the executive branch, to ensure their compatibility with these laws. The U.S. Constitution is brief and vague on many of its core principles, granting the court significant discretion in its interpretation and application (Levinson 2011). For example, the Supreme Court must ultimately determine what punishments are impermissibly “cruel and unusual” or what constitutes individual “liberty.”
The Supreme Court is the highest court in the land, and its judgments are supreme over all lower levels of the federal court system and the state court systems (Amar 2012). However, the vast majority of litigation in the United States takes place in the state court systems (Zackin 2013). These judges interpret and apply their state’s constitution as well as relevant state law. When federal and state law conflict, if the power is properly one accorded to the federal government in the U.S. Constitution, then federal law is supreme. However, if the federal government has wrongly become involved in an area of law that properly belongs to the state governments, according to the U.S. Constitution, the Supreme Court might rule in favor of the state government. In this respect, the federal courts play a very important role in policing the boundaries of national and subnational authority (Riker 1964).
The Supreme Court is a very powerful institution and has been a venue for major policy shifts throughout U.S. history (Hall 2017). There are a couple of reasons for this. First, as the final interpreter of the U.S. Constitution, the Court serves as a potent and almost unchallengeable authority on the law. If citizens disagree with a Supreme Court decision based on the justices’ interpretation of the Constitution, they have limited recourse, each demanding significant effort. They might amend the Constitution, though no newly proposed amendment has been successful in more than half a century, or they might seek to change the composition of the Court, a challenge given that justices serve for life.
Another reason for the Court’s influence is its ability to regulate the boundaries of federalism, shaping the relationship between state and national authority. In this respect, the Supreme Court can act as a powerful nationalizing force for federal policy (Dahl 1957). If the Supreme Court declares an issue to be a fundamental individual liberty protected by the Ninth and Fourteenth Amendments, it can overturn any state laws that seek to minimize that right.
For instance, while marriage regulation has traditionally been considered a state government competence, the Court has ruled that marriage is a fundamental liberty that cannot be infringed upon based on the race or gender of the partners. Additionally, the Court has determined that protected sexual intimacy is a fundamental right of marriage that state governments cannot limit either.
The process for appointing judges at the federal and state levels has been subject to criticism (Tushnet 2022). At the federal level, judges are appointed by the president – subject to confirmation by the Senate – and serve for life with good behavior. At the state level, the systems differ. In nearly all states, judges undergo some form of election (Kritzer 2019). In some states, judges are directly elected, sometimes standing on a partisan label. In other states, judges are appointed but then subjected to a confirmatory public election where voters can choose to remove them from office (Canes-Wrone et al. 2014).
In both systems, courts are regarded in political and even partisan terms (Nicholson and Hansford 2014). Neither appointment nor election seems to mitigate this fact. Federal judges are appointed based on a legal philosophy that aligns with the policy aims of the incumbent president. Democrats tend to favor judges with an expansive interpretation of the Constitution’s vague elements. Republicans tend to prefer those who interpret the Constitution more narrowly or strictly.
Subjecting judges to elections, as many states do, is also politicizing. Many state judges must campaign for election or reelection, which requires them to raise funds, produce leaflets, and run advertisements like other candidates. This is an unusual aspect of the U.S. political system. It might be seen as more “democratic,” but at the same time, critics argue it undermines judges’ role to remain above politics. Ironically, many state constitutions established judicial elections because their framers wanted to promote the independence of the judiciary. They were concerned that if state judges were appointed similarly to federal judges, they could not be truly independent of the executive or legislative branches. By giving them their own separate electoral mandate, judges in state courts do have greater “independence” from these two branches, if not from politics itself (Baum 2018).
Federal judges interpret the U.S. Constitution and review federal statutes in relation to it. They also interpret federal statutes passed by Congress and evaluate the actions of various actors, including the executive branch, to ensure their compatibility with these laws. The U.S. Constitution is brief and vague on many of its core principles, granting the court significant discretion in its interpretation and application (Levinson 2011). For example, the Supreme Court must ultimately determine what punishments are impermissibly “cruel and unusual” or what constitutes individual “liberty.”
The Supreme Court is the highest court in the land, and its judgments are supreme over all lower levels of the federal court system and the state court systems (Amar 2012). However, the vast majority of litigation in the United States takes place in the state court systems (Zackin 2013). These judges interpret and apply their state’s constitution as well as relevant state law. When federal and state law conflict, if the power is properly one accorded to the federal government in the U.S. Constitution, then federal law is supreme. However, if the federal government has wrongly become involved in an area of law that properly belongs to the state governments, according to the U.S. Constitution, the Supreme Court might rule in favor of the state government. In this respect, the federal courts play a very important role in policing the boundaries of national and subnational authority (Riker 1964).
The Supreme Court is a very powerful institution and has been a venue for major policy shifts throughout U.S. history (Hall 2017). There are a couple of reasons for this. First, as the final interpreter of the U.S. Constitution, the Court serves as a potent and almost unchallengeable authority on the law. If citizens disagree with a Supreme Court decision based on the justices’ interpretation of the Constitution, they have limited recourse, each demanding significant effort. They might amend the Constitution, though no newly proposed amendment has been successful in more than half a century, or they might seek to change the composition of the Court, a challenge given that justices serve for life.
Another reason for the Court’s influence is its ability to regulate the boundaries of federalism, shaping the relationship between state and national authority. In this respect, the Supreme Court can act as a powerful nationalizing force for federal policy (Dahl 1957). If the Supreme Court declares an issue to be a fundamental individual liberty protected by the Ninth and Fourteenth Amendments, it can overturn any state laws that seek to minimize that right.
For instance, while marriage regulation has traditionally been considered a state government competence, the Court has ruled that marriage is a fundamental liberty that cannot be infringed upon based on the race or gender of the partners. Additionally, the Court has determined that protected sexual intimacy is a fundamental right of marriage that state governments cannot limit either.
The process for appointing judges at the federal and state levels has been subject to criticism (Tushnet 2022). At the federal level, judges are appointed by the president – subject to confirmation by the Senate – and serve for life with good behavior. At the state level, the systems differ. In nearly all states, judges undergo some form of election (Kritzer 2019). In some states, judges are directly elected, sometimes standing on a partisan label. In other states, judges are appointed but then subjected to a confirmatory public election where voters can choose to remove them from office (Canes-Wrone et al. 2014).
In both systems, courts are regarded in political and even partisan terms (Nicholson and Hansford 2014). Neither appointment nor election seems to mitigate this fact. Federal judges are appointed based on a legal philosophy that aligns with the policy aims of the incumbent president. Democrats tend to favor judges with an expansive interpretation of the Constitution’s vague elements. Republicans tend to prefer those who interpret the Constitution more narrowly or strictly.
Subjecting judges to elections, as many states do, is also politicizing. Many state judges must campaign for election or reelection, which requires them to raise funds, produce leaflets, and run advertisements like other candidates. This is an unusual aspect of the U.S. political system. It might be seen as more “democratic,” but at the same time, critics argue it undermines judges’ role to remain above politics. Ironically, many state constitutions established judicial elections because their framers wanted to promote the independence of the judiciary. They were concerned that if state judges were appointed similarly to federal judges, they could not be truly independent of the executive or legislative branches. By giving them their own separate electoral mandate, judges in state courts do have greater “independence” from these two branches, if not from politics itself (Baum 2018).
Citations:
Baum, Lawrence. 2018. “Supreme Court Elections: How Much They Have Changed, Why They Changed, and What Difference It Makes.” Law and Social Inquiry.
Herbert Kritzer. 2019. Justices on the Ballot: Continuity and Change in State Supreme Court Elections. Cambridge: Cambridge University Press.
Brandice Canes-Wrone, Tom Clark, and Jason Kelly. 2014. “Judicial Selection and Death Penalty Decisions.” American Political Science Review.
Stephen Nicholson and Thomas Hansford. 2014. “Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions.” American Journal of Political Science.
Mark Tushnet. 2022. Taking Back the Constitution: Activist Judges and the Next Age of American Law. New Haven: Yale University Press.
Matthew Hall. 2017. The Nature of Supreme Court Power. Cambridge: Cambridge University Press.
Robert Dahl. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Journal of Public Law.
Keith Whittington. 2007. Political Foundations of Judicial Supremacy: The President, the Supreme Court, and Constitutional Leadership in US History. Princeton: Princeton University Press.
Akhil Amar. 2012. America’s Unwritten Constitution. Cambridge: Harvard University Press.
Baum, Lawrence. 2018. “Supreme Court Elections: How Much They Have Changed, Why They Changed, and What Difference It Makes.” Law and Social Inquiry.
Herbert Kritzer. 2019. Justices on the Ballot: Continuity and Change in State Supreme Court Elections. Cambridge: Cambridge University Press.
Brandice Canes-Wrone, Tom Clark, and Jason Kelly. 2014. “Judicial Selection and Death Penalty Decisions.” American Political Science Review.
Stephen Nicholson and Thomas Hansford. 2014. “Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions.” American Journal of Political Science.
Mark Tushnet. 2022. Taking Back the Constitution: Activist Judges and the Next Age of American Law. New Haven: Yale University Press.
Matthew Hall. 2017. The Nature of Supreme Court Power. Cambridge: Cambridge University Press.
Robert Dahl. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Journal of Public Law.
Keith Whittington. 2007. Political Foundations of Judicial Supremacy: The President, the Supreme Court, and Constitutional Leadership in US History. Princeton: Princeton University Press.
Akhil Amar. 2012. America’s Unwritten Constitution. Cambridge: Harvard University Press.
6
Japan
The constitution guarantees the independence of the Japanese judicial system from the government. Judges are bound only by the constitution and the laws, and cannot be subject to any disciplinary action by the executive power. Justices of the Supreme Court can be arbitrarily appointed by the cabinet, but it is a tradition that the prime minister respects the chief justice’s recommendation for his or her successor. The appointments of Supreme Court justices are subject to review by a popular vote in the House of Representative elections, but this is effectively meaningless as voters are not presented with a choice. The judges of the inferior courts are appointed by the cabinet from a list of persons proposed by the Supreme Court.
According to the constitution, only the Supreme Court may determine the constitutionality of laws, orders, regulations or official acts. In reality, the Supreme Court reviews only specific cases and has frequently dismissed suits concerning the constitutionality of laws because they lacked the case or controversy requirement. It has also refused to decide on the constitutionality of governmental decisions regarding highly political questions. Instead of the Supreme Court, it is the Cabinet Legislation Bureau that issues interpretations of the constitution on daily matters, which decreases the transparency of this process. Since a 2013 appointment to the Cabinet Legislation Bureau the government has sought to ensure that it offers interpretations that are in line with the government view (Yamamoto 2017).
Japanese courts tend to be lenient toward the government, although there is also a growing number of examples in which they challenge the government’s position. The government generally complies with judicial rulings, though it may take some time, for instance, regarding the change of constituency borders to eliminate disparities in parliamentary election votes. Civil society groups and activists have become increasingly adept at using the judicial system and case law to amend laws and regulations (Sala 2023).
According to the constitution, only the Supreme Court may determine the constitutionality of laws, orders, regulations or official acts. In reality, the Supreme Court reviews only specific cases and has frequently dismissed suits concerning the constitutionality of laws because they lacked the case or controversy requirement. It has also refused to decide on the constitutionality of governmental decisions regarding highly political questions. Instead of the Supreme Court, it is the Cabinet Legislation Bureau that issues interpretations of the constitution on daily matters, which decreases the transparency of this process. Since a 2013 appointment to the Cabinet Legislation Bureau the government has sought to ensure that it offers interpretations that are in line with the government view (Yamamoto 2017).
Japanese courts tend to be lenient toward the government, although there is also a growing number of examples in which they challenge the government’s position. The government generally complies with judicial rulings, though it may take some time, for instance, regarding the change of constituency borders to eliminate disparities in parliamentary election votes. Civil society groups and activists have become increasingly adept at using the judicial system and case law to amend laws and regulations (Sala 2023).
Citations:
Matsui, Shigenori. 2011. “Why is the Japanese Supreme Court so Conservative?” Washington University Law Review 88 (6): 1375-1423.
Sala, Adrienne. 2023. “Exploring Litigation, Court Rulings, and Legal Mobilization in Response to Death and Suicide from Overwork: Implications for Labor Law Reform Policy Making in Japan.” Law and Social Inquiry. https://www.cambridge.org/core/journals/law-and-social-inquiry/article/exploring-litigation-court-rulings-and-legal-mobilization-in-response-to-death-and-suicide-from-overwork-implications-for-labor-law-reform-policymaking-in-japan/A791E3247603AF648E54FBA4C1147344
Yamamoto, Hajime. 2017. “Interpretation of the Pacifist Article of the Constitution by the Bureau of Cabinet Legislation: A New Source of Constitutional Law?” Washington International Law Journal 26 (1): 99-124.
Matsui, Shigenori. 2011. “Why is the Japanese Supreme Court so Conservative?” Washington University Law Review 88 (6): 1375-1423.
Sala, Adrienne. 2023. “Exploring Litigation, Court Rulings, and Legal Mobilization in Response to Death and Suicide from Overwork: Implications for Labor Law Reform Policy Making in Japan.” Law and Social Inquiry. https://www.cambridge.org/core/journals/law-and-social-inquiry/article/exploring-litigation-court-rulings-and-legal-mobilization-in-response-to-death-and-suicide-from-overwork-implications-for-labor-law-reform-policymaking-in-japan/A791E3247603AF648E54FBA4C1147344
Yamamoto, Hajime. 2017. “Interpretation of the Pacifist Article of the Constitution by the Bureau of Cabinet Legislation: A New Source of Constitutional Law?” Washington International Law Journal 26 (1): 99-124.
The judiciary fails to ensure effective legal compliance in some crucial cases.
5
Hungary
The state of the rule of law and judiciary policy in Hungary is highly contested, and has been subject to strong criticism from international organizations, NGOs and policy experts. As in other countries with authoritarian tendencies, the Orbán government believes that the law is subordinate to government policies, which it claims reflect the “national interest,” a term exclusively defined by the government majority.
Due to the Orbán government’s voluntarist approach toward lawmaking, legal certainty has been undermined by chaotic and rapidly changing legislation. The hasty legislative process has regularly violated the Act on Legislation, which mandates a process of social consultation if the government presents a draft law. Since the 2015 “refugee crisis,” the government has increasingly relied on special decree powers. On 20 March 2020, the government’s two-thirds supermajority in parliament adopted the so-called Coronavirus Defense Act, also known as the Authorization or Enabling Act, which came into force the next day. The act gave the government the right to suspend or override any law. In mid-June 2020, the state of emergency, which stirred massive criticism both domestically and internationally, was lifted but then transformed into a “medical emergency.” In November 2020, parliament declared a new state of emergency, which was later extended several times, most recently justified with reference to the war in Ukraine. During the first lockdown, proceedings at ordinary courts were officially suspended due to fears of spreading the virus, preventing ordinary people from initiating cases that could reach the Constitutional Court. Under these circumstances, only one-quarter of the members of parliament were able to call on the Constitutional Court, which would have required the far right and the left to act together. The Constitutional Court has refused many requests for constitutional reviews, and did not challenge the Orbán government’s power grab during the COVID-19 pandemic. In October 2020, the government consolidated its control over the Kúria (previously the Supreme Court), as the Fidesz supermajority in parliament elected Zsolt András Varga, a member of the Constitutional Court without any experience as an ordinary judge, as its new president. This elicited broad and angry reactions among judges and their professional organizations, and the National Judicial Council issued a negative opinion on the issue. The 2011 constitution (Basic Law) left the rules for selecting members of the Constitutional Court untouched. Justices are still elected by parliament with a two-thirds majority. As Fidesz regained a two-thirds majority in the 2018 parliamentary elections and defended it in 2022, it has since had complete control over the appointment of Constitutional Court justices. In 2023, parliament elected four new members to the Constitutional Court, all of whom are close to Fidesz.
The Hungarian judiciary performs well in terms of the length of proceedings and has a high level of digitalization. However, its independence has drastically declined under the Orbán government (European Commission 2021). While the lower courts, in most cases, still make independent decisions, the Constitutional Court, the Kúria and the National Office of the Judiciary (OBH) have increasingly come under government control and have often been criticized for making biased decisions. Likewise, Péter Polt, the chief public prosecutor and a former Fidesz politician, has persistently refrained from investigating the corrupt practices of prominent Fidesz oligarchs. As a result of the declining independence and quality of the Hungarian judiciary, trust in the Hungarian legal system among the general public has dropped over time. More court proceedings have ended at the European Court of Human Rights (ECHR) in Strasbourg. Hungary is among the countries generating the most cases at that body, and the Hungarian state often loses these lawsuits. Judiciary reforms have also been among the main prerequisites for Hungary to access a portion of its EU funds locked under the rule-of-law conditionality mechanism adopted by the European Commission (2023).
Due to the Orbán government’s voluntarist approach toward lawmaking, legal certainty has been undermined by chaotic and rapidly changing legislation. The hasty legislative process has regularly violated the Act on Legislation, which mandates a process of social consultation if the government presents a draft law. Since the 2015 “refugee crisis,” the government has increasingly relied on special decree powers. On 20 March 2020, the government’s two-thirds supermajority in parliament adopted the so-called Coronavirus Defense Act, also known as the Authorization or Enabling Act, which came into force the next day. The act gave the government the right to suspend or override any law. In mid-June 2020, the state of emergency, which stirred massive criticism both domestically and internationally, was lifted but then transformed into a “medical emergency.” In November 2020, parliament declared a new state of emergency, which was later extended several times, most recently justified with reference to the war in Ukraine. During the first lockdown, proceedings at ordinary courts were officially suspended due to fears of spreading the virus, preventing ordinary people from initiating cases that could reach the Constitutional Court. Under these circumstances, only one-quarter of the members of parliament were able to call on the Constitutional Court, which would have required the far right and the left to act together. The Constitutional Court has refused many requests for constitutional reviews, and did not challenge the Orbán government’s power grab during the COVID-19 pandemic. In October 2020, the government consolidated its control over the Kúria (previously the Supreme Court), as the Fidesz supermajority in parliament elected Zsolt András Varga, a member of the Constitutional Court without any experience as an ordinary judge, as its new president. This elicited broad and angry reactions among judges and their professional organizations, and the National Judicial Council issued a negative opinion on the issue. The 2011 constitution (Basic Law) left the rules for selecting members of the Constitutional Court untouched. Justices are still elected by parliament with a two-thirds majority. As Fidesz regained a two-thirds majority in the 2018 parliamentary elections and defended it in 2022, it has since had complete control over the appointment of Constitutional Court justices. In 2023, parliament elected four new members to the Constitutional Court, all of whom are close to Fidesz.
The Hungarian judiciary performs well in terms of the length of proceedings and has a high level of digitalization. However, its independence has drastically declined under the Orbán government (European Commission 2021). While the lower courts, in most cases, still make independent decisions, the Constitutional Court, the Kúria and the National Office of the Judiciary (OBH) have increasingly come under government control and have often been criticized for making biased decisions. Likewise, Péter Polt, the chief public prosecutor and a former Fidesz politician, has persistently refrained from investigating the corrupt practices of prominent Fidesz oligarchs. As a result of the declining independence and quality of the Hungarian judiciary, trust in the Hungarian legal system among the general public has dropped over time. More court proceedings have ended at the European Court of Human Rights (ECHR) in Strasbourg. Hungary is among the countries generating the most cases at that body, and the Hungarian state often loses these lawsuits. Judiciary reforms have also been among the main prerequisites for Hungary to access a portion of its EU funds locked under the rule-of-law conditionality mechanism adopted by the European Commission (2023).
Citations:
European Commission. 2023. “Commission considers that Hungary’s judicial reform addressed deficiencies in judicial independence, but maintains measures on budget conditionality” December 13. https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6465
European Commission. 2023. “Commission considers that Hungary’s judicial reform addressed deficiencies in judicial independence, but maintains measures on budget conditionality” December 13. https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6465
Slovakia
The Slovak Republic has a low score on the World Bank Rule of Law indicator, with 0.6 in 2022, down from 0.7 in 2021 (Kaufmann, Kraay, and Mastruzzi, 2010). This decline reflects various challenges within the national judiciary.
The Slovak judiciary, including specialized courts, is formally autonomous and responsible for interpreting and reviewing laws. However, recent rulings, such as those by the Bratislava IV court regarding suspensions by Interior Minister Šutaj Eštók, show inconsistent decision-making, suggesting a selective commitment to independent judicial review (Drozdíková, 2023).
Corruption within the judiciary undermines its effectiveness. High-profile arrests, such as those of the former vice-president of the Supreme Court and ex-special chief prosecutor Dušan Kovačik, highlight ongoing corruption and clientelism. Public trust is low, with 88% of citizens perceiving corruption in the courts and less than 30% believing in their independence. The judicial selection process also appears to be influenced by social connections rather than merit (Spáč, 2022).
Appointment processes for the Supreme Court and Constitutional Court aim to ensure independence. For the Constitutional Court, 13 judges serve 12-year terms, selected by the president from a list approved by the National Council. However, media reports suggest that political parties may influence these appointments, especially if the president lacks independence (Remišová, 2018; Orosz, 2016). Similarly, the Supreme Court’s Chief Justices often face political interference despite the judicial council model (Kosář and Spáč, 2021).
The Judicial Council oversees the judiciary’s administration and has 18 members, half elected by judges and the rest appointed by the president, parliament, and government. Concerns about the independence of the council’s members persist, as their status can be precarious.
Challenging government actions in court is possible, with the Constitutional and Supreme Administrative Court handling such cases. The Public Procurement Office can also challenge decisions made by public bodies. However, case lengths are often excessive (Kullová 2023).
Rare but notable instances of noncompliance with court decisions include the Interior Minister’s refusal to revoke controversial orders.
The Slovak judiciary, including specialized courts, is formally autonomous and responsible for interpreting and reviewing laws. However, recent rulings, such as those by the Bratislava IV court regarding suspensions by Interior Minister Šutaj Eštók, show inconsistent decision-making, suggesting a selective commitment to independent judicial review (Drozdíková, 2023).
Corruption within the judiciary undermines its effectiveness. High-profile arrests, such as those of the former vice-president of the Supreme Court and ex-special chief prosecutor Dušan Kovačik, highlight ongoing corruption and clientelism. Public trust is low, with 88% of citizens perceiving corruption in the courts and less than 30% believing in their independence. The judicial selection process also appears to be influenced by social connections rather than merit (Spáč, 2022).
Appointment processes for the Supreme Court and Constitutional Court aim to ensure independence. For the Constitutional Court, 13 judges serve 12-year terms, selected by the president from a list approved by the National Council. However, media reports suggest that political parties may influence these appointments, especially if the president lacks independence (Remišová, 2018; Orosz, 2016). Similarly, the Supreme Court’s Chief Justices often face political interference despite the judicial council model (Kosář and Spáč, 2021).
The Judicial Council oversees the judiciary’s administration and has 18 members, half elected by judges and the rest appointed by the president, parliament, and government. Concerns about the independence of the council’s members persist, as their status can be precarious.
Challenging government actions in court is possible, with the Constitutional and Supreme Administrative Court handling such cases. The Public Procurement Office can also challenge decisions made by public bodies. However, case lengths are often excessive (Kullová 2023).
Rare but notable instances of noncompliance with court decisions include the Interior Minister’s refusal to revoke controversial orders.
Citations:
Kaufmann, D., Kraay, A., and Mastruzzi, M. 2010. “The Worldwide Governance Indicators: Methodology and Analytical Issues.” World Bank Policy Research Working Paper No. 5430. Washington: World Bank.
Spáč, S. 2022. “The Illusion of Merit-Based Judicial Selection in Post-Communist Judiciary: Evidence from Slovakia.” Problems of Post-Communism 69 (6): 528-538.
Transparency International Slovakia. 2023. “Súdy.” https://transparency.sk/sk/temy/sudy/
Kosář, D., and Spáč, S. 2021. “Post‑communist Chief Justices in Slovakia: From Transmission Belts to Semi‑autonomous Actors?” Hague Journal on the Rule of Law 13: 107–142.
Remišová, V. 2018. “Smer môže ovládnuť Ústavný súd na dvanásť rokov.” Aktuality.sk September 18. https://www.aktuality.sk/clanok/624423/nazor-veroniky-remisovej
Orosz, L. 2016. “O aktuálnych problémoch pri ustanovovaní sudcov ústavných súdov (príčiny a dôsledky).” In Metamorfózy práva ve střední Evropě V. Překrásný nový svět nebo ostrov?, eds. XXX. Plzeň: Aleš Čeněk, 69‒81.
Kullová, Z. 2023. “Advokát Fridrich: Firmy prežívajú absurdné časy. Ich žaloby proti štátu majú šancu uspieť.” Trend 50-51/2023. https://www.trend.sk/biznis/advokat-fridrich-firmy-prezivaju-absurdne-casy-ich-zaloby-proti-statu-maju-sancu-uspiet
Zákon 343/2015 o verejnom obstarávaní. 2015. https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2015/343/
Kaufmann, D., Kraay, A., and Mastruzzi, M. 2010. “The Worldwide Governance Indicators: Methodology and Analytical Issues.” World Bank Policy Research Working Paper No. 5430. Washington: World Bank.
Spáč, S. 2022. “The Illusion of Merit-Based Judicial Selection in Post-Communist Judiciary: Evidence from Slovakia.” Problems of Post-Communism 69 (6): 528-538.
Transparency International Slovakia. 2023. “Súdy.” https://transparency.sk/sk/temy/sudy/
Kosář, D., and Spáč, S. 2021. “Post‑communist Chief Justices in Slovakia: From Transmission Belts to Semi‑autonomous Actors?” Hague Journal on the Rule of Law 13: 107–142.
Remišová, V. 2018. “Smer môže ovládnuť Ústavný súd na dvanásť rokov.” Aktuality.sk September 18. https://www.aktuality.sk/clanok/624423/nazor-veroniky-remisovej
Orosz, L. 2016. “O aktuálnych problémoch pri ustanovovaní sudcov ústavných súdov (príčiny a dôsledky).” In Metamorfózy práva ve střední Evropě V. Překrásný nový svět nebo ostrov?, eds. XXX. Plzeň: Aleš Čeněk, 69‒81.
Kullová, Z. 2023. “Advokát Fridrich: Firmy prežívajú absurdné časy. Ich žaloby proti štátu majú šancu uspieť.” Trend 50-51/2023. https://www.trend.sk/biznis/advokat-fridrich-firmy-prezivaju-absurdne-casy-ich-zaloby-proti-statu-maju-sancu-uspiet
Zákon 343/2015 o verejnom obstarávaní. 2015. https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2015/343/
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Poland
Since 2015, Poland has faced a rule of law crisis marked by significant institutional changes, sparking domestic and international concerns. Critics argue that these changes, particularly the legal reforms impacting the judiciary, undermine judicial independence – a cornerstone of the rule of law. The government’s actions, including the restructuring of the Constitutional Tribunal (Trybunał Konstytucyjny, TK) and the National Council of the Judiciary (Krajowa Rada Sądownictwa, KRS), as well as the appointment of judges deemed illegitimate, have been criticized for eroding checks and balances.
In November 2022, the Supreme Administrative Court (NSA) ruled that the Constitutional Tribunal could no longer adjudicate lawfully due to improperly appointed judges. By 2023, the Tribunal faced a deadlock due to interparty conflict within the United Right. The new KRS, chosen by politicians, continued to appoint judges despite Polish and European court rulings deeming it to be illegitimate. The European Court acknowledged legal challenges to government decisions, such as those involving Judge Igor Tuleya and Lech Wałęsa (Ptak 2023).
The European Union has expressed concern over Poland’s rule-of-law situation, initiating infringement proceedings and applying sanctions under Article 7. The EU withheld COVID-19 recovery funds, demanding compliance with judicial independence and green transformation milestones.
Beginning on October 27, 2021, Poland began accruing fines of €1,000,000 daily, which was later reduced to €500,000 on April 21, 2023, following minor legal adjustments. In June 2023, the Court of Justice of the European Union ordered the suspension of the new disciplinary chamber for judges, finding it lacked independence and impartiality. This ruling ended the imposition of fines, which had accumulated to a sum of €556 million (PLN 2.5 billion) (Zalan 2023).
On December 21, 2023, the Court of Justice also declared that the Chamber of Extraordinary Control and Public Affairs of the Supreme Court was neither independent nor impartial.
In mid-December 2023, new Justice Minister Adam Bodnar (ombudsman for human rights from 2015 to 2021) pledged to reverse all rule-of-law violations. His first action was to bar judges appointed by the constitutionally challenged KRS from adjudicating, signaling compliance with EU rulings.
In November 2022, the Supreme Administrative Court (NSA) ruled that the Constitutional Tribunal could no longer adjudicate lawfully due to improperly appointed judges. By 2023, the Tribunal faced a deadlock due to interparty conflict within the United Right. The new KRS, chosen by politicians, continued to appoint judges despite Polish and European court rulings deeming it to be illegitimate. The European Court acknowledged legal challenges to government decisions, such as those involving Judge Igor Tuleya and Lech Wałęsa (Ptak 2023).
The European Union has expressed concern over Poland’s rule-of-law situation, initiating infringement proceedings and applying sanctions under Article 7. The EU withheld COVID-19 recovery funds, demanding compliance with judicial independence and green transformation milestones.
Beginning on October 27, 2021, Poland began accruing fines of €1,000,000 daily, which was later reduced to €500,000 on April 21, 2023, following minor legal adjustments. In June 2023, the Court of Justice of the European Union ordered the suspension of the new disciplinary chamber for judges, finding it lacked independence and impartiality. This ruling ended the imposition of fines, which had accumulated to a sum of €556 million (PLN 2.5 billion) (Zalan 2023).
On December 21, 2023, the Court of Justice also declared that the Chamber of Extraordinary Control and Public Affairs of the Supreme Court was neither independent nor impartial.
In mid-December 2023, new Justice Minister Adam Bodnar (ombudsman for human rights from 2015 to 2021) pledged to reverse all rule-of-law violations. His first action was to bar judges appointed by the constitutionally challenged KRS from adjudicating, signaling compliance with EU rulings.
Citations:
Ptak, A. 2023. “Serious concerns persist” over rule of law in Poland, says EU.” https://notesfrompoland.com/2023/07/05/serious-concerns-persist-over-rule-of-law-in-poland-says-eu.
Zalan, E. 2023. “Top EU Court Rules Poland’s Court Reforms ‘Infringe Law’.” June 5. https://euobserver.com/rule-of-law/157105
Pech, Laurent. 2022. “Covering up and Rewarding the Destruction of the Rule of Law One Milestone at a Time.” https://verfassungsblog.de/covering-up-and-rewarding-the-destruction-ofthe-rule-of-law-one-milestone-at-a-time/
Sadurski, Wojciech. 2019. Poland’s Constitutional Breakdown. Oxford: Oxford University Press.
Sołtys, Agnieszka. 2023. “The Court of Justice of the European Union in the Case Law of the Polish Constitutional Court: The Current Breakdown in View of Polish Constitutional Jurisprudence Pre-2016.” Hague Journal on the Rule of Law 15: 19–49.
Ptak, A. 2023. “Serious concerns persist” over rule of law in Poland, says EU.” https://notesfrompoland.com/2023/07/05/serious-concerns-persist-over-rule-of-law-in-poland-says-eu.
Zalan, E. 2023. “Top EU Court Rules Poland’s Court Reforms ‘Infringe Law’.” June 5. https://euobserver.com/rule-of-law/157105
Pech, Laurent. 2022. “Covering up and Rewarding the Destruction of the Rule of Law One Milestone at a Time.” https://verfassungsblog.de/covering-up-and-rewarding-the-destruction-ofthe-rule-of-law-one-milestone-at-a-time/
Sadurski, Wojciech. 2019. Poland’s Constitutional Breakdown. Oxford: Oxford University Press.
Sołtys, Agnieszka. 2023. “The Court of Justice of the European Union in the Case Law of the Polish Constitutional Court: The Current Breakdown in View of Polish Constitutional Jurisprudence Pre-2016.” Hague Journal on the Rule of Law 15: 19–49.
The judiciary fails to ensure effective legal control.
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