About judicial indipendence and reform in EU.

 

                                        What is judicial independence ?

In a modern democracy, judicial independence is a critical component of the rule of law as well as the defense of property rights and individual liberties. The function of the court is critical in assessing the country’s rule of law. Judicial independence is the capacity of courts and judges to fulfill their roles without interference or control by other actors. Meaning that judges are free to render independent judgments based only on evidence and law and are not susceptible to coercion or interference. Judicial independence is founded on the judges’ authority; judges or courts are strong to the degree that they have legal jurisdiction to consider public-interest conflicts. Courts and judges’ jurisdiction alone is insufficient; they must also have discretion over those areas of jurisdiction in order to make meaningful decisions, and this discretion may be limited by their judicial or administrative superiors. 

What are the factors that undermine judicial independence?

There are many factors that undermine judicial independence that arises from the country itself. Firstly, we must consider the country’s political regime. The second aspect to take into account is the country’s institutional fragmentation itself and the number of funds allocated to the courts. Third, the court’s public opinion plays an important role in the court’s impartiality and fairness. 

 Other factors depend on the judiciary mechanism itself. For instance, the lack of security of tenure, good wages, well-funded courts, and control over core areas of administration, to say the least, are unquestionably weakening elements of the judicial system. These factors are important because they put a value on judges that make them impartial and fair. The more they feel recognized and consequently paid, the more likely their verdicts are to be impartial and fair. One more element that reinforces judicial independence is transparency in the judicial selection and recruiting process. In order to prevent unfair judicial empowerment, judges should become such, only thanks to meritocracy.

 

What undermines Russian judicial independence?

What is clear is that judicial empowerment in Russia is obviously centralized and limited to very specific conditions. Indeed, the selection and recruitment process of Russian judges lacks transparency and coherence.  Trochev  analyzes the last 10 years of Russian reforms to improve transparency and suggests that in the face of enormous sociopolitical instability, Russia’s political elites form a robust, autonomous judicial branch to implement post-communist constitutions. Another crucial element in undermining Russian judicial independence is the fact that although the law guarantees judges tenure until retirement age, with the main reason being the only ground for dismissal, chairs of courts find justifications and have enough power over the regional judicial qualification commission to remove judges they don’t like, especially those who don’t meet the standards outlined in the way the judicial bureaucracy operates. 

This paradigm is a result of Russia’s hybrid government, which seems to be democratic while restricting political competition and tightly controlling civil society to the point of being wholly authoritarian. Scholars like Salomon reveals that judges in the USSR had very little discretion and were frequently punished by being transferred to less attractive positions or being removed from their roles as judges for egregious nonconformist behavior. This complicated situation can be compared to other countries in western Europe, but also with countries such as Bulgaria and Romania which share the same problem of imbedded corruption in their society.

For the vast bulk of Soviet history, judges relied heavily on local party leaders. They were reappointed every five years, their compensation was doubled, and they were regularly examined and supervised. To make the system more transparent and fairer Russian government put in place a judicial reform to provide the institutional base for judicial independence. This transformation took 18 years, during which time judges had security tenure because they were now appointed for life until retirement age and could only be removed for valid reasons or if other judges decided they were not qualified to continue serving as judges.

 Despite the apparent changes, the reality is that even while court-related norms were being implemented and formalized, authorities or other influential parties could still have an impact on how the courts operated, and judges had strong incentives to yield to various forms of outside pressure. Salomon‘s work leaves us without a doubt in deducing that even though it is less common than it is in the public eye, some judges in Russian courts do take and even demand money, especially in business situations, to speed up proceedings. All of the authors reach the same conclusion: the acts that diminish judges’ legal protection derive from the chairman of the Court’s excessive power and a set of long-term expectations surrounding judicial behavior. Russian courts and judges are a point of conflict between a set of formal institutions and informal acts that undermine the efficacy of those institutions. Even after judicial reform, judges’ rulings could not be considered independent since the behaviors that predominantly undermine judges’ legal protection remanates from the Court’s chairman’s overwhelming influence. As a result, while there is formal judicial independence, judges are subject to the ordinary restrictions of court bureaucracy while being protected from outside pressure.

 

 CLAUDIA PELELLA