Report

Teaser, summary, work performed and final results

Periodic Reporting for period 2 - JUDI-ARCH (The Rise of Judicial Self-Government: Changing the Architecture of Separation of Powers without an Architect)

Teaser

\"The aim of the project \"\"The Rise of Judicial Self-Government: Changing the Architecture of Separation of Powers without an Architect\"\" (hereinafter \"\"JUDI-ARCH\"\") is to understand the process of empowerment (and more recent disempowerment) of courts and judges and to analyse...

Summary

\"The aim of the project \"\"The Rise of Judicial Self-Government: Changing the Architecture of Separation of Powers without an Architect\"\" (hereinafter \"\"JUDI-ARCH\"\") is to understand the process of empowerment (and more recent disempowerment) of courts and judges and to analyse its impact on domestic and supranational judiciaries as well as on societies in general.

After WWII, many European states transferred decision-making powers regarding court administration and careers of judges from political bodies to special organs in which judges have a major say. Judicial councils and other bodies of judicial self-governance (JSG) spread particularly quickly during the accession of Central and Eastern European countries to the European Union, in the wake of guidelines and good practices issued by the Venice Commission, the European Network of Councils for the Judiciary, the Consultative Council of European Judges, and the European Commission.

However, while the unprecedented rise of the decision-making power of courts has stirred vibrant and comprehensive academic discussion, the rise (and fall) of JSG and its resulting effects remain under-researched, as the traditional descriptive and normative scholarship is not able to capture them.

JUDI-ARCH fills this gap and addresses the implications of this phenomenon for the “new” as well as “old” EU member states. The central research question of JUDI-ARCH is: how has the rise of JSG changed the concept of separation of powers? More specifically, the JUDI-ARCH project consists of three interrelated research aims. The first is to assess the impact of JSG on public confidence in and the independence, accountability, transparency and legitimacy of (European) domestic judiciaries and the two European supranational courts, both actual and the perceived impact. The second aim is to examine the impact the rulings of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) have had on domestic judicial design and, vice versa - how domestic judicial design has affected the selection of judges of the ECtHR and the CJEU. This is particularly relevant due to the increasing involvement of the CJEU in domestic judicial design. The third overarching aim is to analyse the impact of JSG on separation of powers.

We believe that the analysis of the rise and fall of JSG is crucial for understanding recent democratic backsliding in Central and Eastern Europe (especially, but not exclusively, in Hungary and Poland) as well as for promoting good governance in established democracies. In order to understand the role of judicial power and separation of powers more generally, we simply need to know how JSG operates and what effects it brings about in different contexts.

A major innovation in our approach is the integration of comparative legal perspectives with sociological and political science approaches. We conduct in-depth conceptual, qualitative and quantitative case studies on the impact of different models of JSG in both “new” and “old” EU Member States, including longitudinal quantitative analysis of the disciplining of judges, in-depth elite interviews and the changing scope of JSG (JSG index). Moreover, our approach to JSG is novel in another aspect – we study not only “traditional” policies and competences related to selection, disciplining, judicial careers, administration of and budgeting of courts; but also digital, ethical and informational self-governance.\"

Work performed

The JUDI-ARCH project consists of four work packages. WP1, which is now completed, helped us to acquire a novel conceptual understanding of the JSG and models implemented in 14 jurisdictions. The project team prepared a comprehensive questionnaire to guide national experts (Aida Torres Pérez, Anna Śledzińska-Simon, Antoine Vauchez, Başak Çalı and Betül Durmuş, Bianca Selejan-Gutan, Christoph Krenn, Elaine Mak, Fabian Wittreck, Matej Avbelj, Patrick O’Brien, Simone Benvenuti and Davide Paris, Stewart Cunningham [co-authored with Başak Çalı]) in producing case studies on selected jurisdiction. Apart from historical narratives and motives standing behind the introduction or refusal to introduce judicial councils, individual studies covered general expectations and impacts of respective models of JSG on the independence, accountability, legitimacy, transparency of, and public confidence in the judiciary. In order to create some common ground between the contributions of national experts and facilitate comparative reflections, we mapped definitions of these values based on the existing scholarship. For example, with regard to judicial independence, we encouraged experts to consider independence at the level of the judiciary and that of individual judges and make distinction between de jure and de facto independence.

WP 1 resulted in a special issue Judicial Self-Governance issued by German Law Journal (Volume 19, No. 7, 2018). The special issue covers 12 national jurisdictions (featuring both old and new EU member states) and 2 supranational courts. These jurisdictions were chosen in order to represent all existing models of judicial self-governance: a strong judicial council model (France, Italy, Romania, Slovakia), a moderate judicial council model (Spain, Netherlands, Poland, Slovenia), a Court service model (Ireland) and a Ministry of Justice model (Germany, Czech Republic). While not envisaged initially, Turkey was included given the unique constitutional and political challenges faced in this jurisdiction after the 2016 failed coup d’état. As previously stated, the special issue also analyses two European supranational courts, the ECtHR and the CJEU. Apart from the German Law Journal, team members published various articles reflecting the roles of supranational courts or various national JSG bodies in established impacted journals.

WP1 therefore created a novel conceptualization of JSG, which set the foundation for qualitative analysis of elites\' perceptions of JSG (WP2) and quantitative assessment of the impact of various models of JSG (WP3). Both WP2, which is to be soon concluded, and WP3 draw on the accumulated data and bibliography from WP1. WP1 allowed us to think critically about the nature and extent of participation of judges in deciding on court administration (which we understand as decisions on selection, removals, promotion, disciplinary measures, case management, and budgetary issues).

As a result, in WP3 we introduced the idea that instead of an institutional perception, the JSG should be understood as a complex set of competences shared by judges and other political actors. The set of these competences is reflected in de jure JSG index, which has been constructed by the JUDI-ARCH team under WP3. The index seeks to capture the amount of power held by judges in various constitutional set-ups and models of JSG. The index is currently being tested on selected jurisdictions. Following the completion of the index, WP3 will explore actual effects of transferring powers quantitatively, i.e. based on the data allowing us ascertain the actual extent of judicial participation in specific areas of decision-making in selected jurisdictions.

WP2 aims to explore the perceived effects of transferring powers and competences to judges, through in-depth qualitative interviews with elites. Exploring 6 European jurisdictions (representing the ministerial model in Germany and the Czech Republic, weak judicia

Final results

The JUDI-ARCH team pushed the boundaries of the existing scholarship in five ways. First, we conceptualized judicial self-governance broadly, to capture not only judicial councils, which scholars have predominantly focused on so far, but also other bodies (such as court presidents, judicial appointment commissions and disciplinary panels) with varied degrees of participation of judges that have received very limited scholarly attention. Such an approach allows a more holistic study of the role of judges.

Second, we decided to focus on not only on the de jure, but also on the de facto dimension of judicial self-governance. This means ascertaining not only whether judges have formally been empowered to govern themselves, for example, by being allocated the majority of seats in a governing body, but also whether they can actually influence the decision-making of that body. Such an approach allows the identification of gaps between the role assigned to judges on paper and the role performed by them in practice.

Third, we went beyond existing scholarship by openly addressing the role of personal relationships and informal networks, which affect the key mechanisms such as judicial appointments or promotion and dismissal of judges.

Fourth, while assessing the impact of JSG we went beyond JSG bodies and mapped dimensions of JSG in which judges do or do not have a say. We provided a non-exhaustive list of eight dimensions, including personal, administrative, financial, educational, information, ethical, digital and regulatory self-governance.

Fifth, our research outputs in WP1 (and also in WP2) are focused on JSG bodies. However, we gradually came to the realisation that such a focus is limited. The establishment of a JSG body is not necessarily indicative of high degree of participation of judges. Conversely, the failure to establish such bodies does not necessarily mean that judges have no role in decision-making. Therefore, we agreed to shift focus, in the quantitative part of our project (WP3), on the whole range of competences related to court administration (rather than on JSG bodies) and inquire which competences are held by judges and to what extent are such competences held by judges.

The research team is preparing to produce following results until the end of the project: the interviews conducted within the WP2 will be analysed in a forthcoming book on perceptions of judicial, political and legal elites of judicial self-governance. The book will cover several European jurisdictions representing ministerial, weak judicial council and strong judicial council models, both in old and new EU member states. The index of judicial self-governance prepared under WP3 will be presented in an article. The research team will introduce both the methodology standing behind its construction, testing, and analyse its usability in researching the impacts of various forms of JSG. Finally, the WP4 will lead to a piece introducing a completely novel understanding of effects of JSG on the principle of separation of powers.

Website & more info

More info: http://judicialstudiesinstitute.com/content/en/judi-arch/o-projektu/.