A. Weber: The independence of the judiciary as a pillar of the rule of law

The rule of law ('Rechtsstaat', 'Etat de Droit', ‘Stato de diritto’, Estado de Derecho) is a constitutional principle common to the EU member states, incorporated in Art. 2 TEU and also in the member states of the Council of Europe. This first observation does not mean that there are no nuances and differences in the content of the notion according to the constitutional traditions of the countries.

As is well known, the doctrine distinguishes between a ‘formal’ and a ‘material’ notion. The former means –– as developed in the 19th century on the European continent –– the primacy and reservation of the law (‘Vorrang’ and ‘Vorbehalt des Gesetzes’), the separation of powers, the judicial protection against acts of public authorities and the primacy of the constitution( ‘Vorrang der Verfassung’; primauté de la constitution’); the material or substantial notion also includes the protection of fundamental rights and the pursuit of material justice.[01]

This understanding is partially completed by the English understanding of the "rule of law" as developed in England since the 13th century and especially under the influence of Dicey in the 19th century.

This concept ––apart from the sovereignty of parliament–– is based on three principles [02]

––The principle of legality, corresponding to the primacy of the law and the exclusion of arbitrariness.

––The protection of individual rights by the courts as a source of law and not based on a 'written constitution'.
The various concepts show an increasing convergence from a formal to a substantial interpretation of the concept, taking into account the constitutional developments in Britain since the incorporation of the "European Convention on Human Rights" in the "Human Rights Act" 1998.

These various aspects of interpretation are also reflected in communications from the EU Commission, such as in 2019: “Strengthening the rule of law within the Union: A blueprint for Action” [03]; the foreword to the “Rule of Law Report” ( 2020) listing legality, a transparent, democratic, pluralistic and accountable process for legislation, legal certainty, prohibition of arbitrary exercise of executive power, effective judicial protection by independent and impartial courts, effective control of fundamental rights, separation of powers and equality before the law.[04]

A similar enumeration can be found in the Venice Commission's "Report on the Rule of Law" in 2011; while admitting that a universally recognized definition is lacking, there is a common core of elements of the rule of law. [05]

With regard to our subject, the elements of the separation of powers, judicial protection by independent courts, legality, equality before the law and the protection of fundamental rights should be emphasized. In addition to these common features, one could add the right to a "legal" or "natural judge" and common principles of criminal procedure, such as the presumption of innocence, fair hearing, nullum crimen and nulla poena sine lege as counterparts of individual procedural rights.

2. THE INDEPENDENCE OF JUSTICE.

The independence of the judiciary as an institution and the independence of the organs or actors, i.e., of the judges in the courts.

The institutional aspect is based primarily on the separation of powers and the system of checks and balances, the result of a process of emancipation from the executive, i.e. from the power of the king, as is discernible in Britain since the famous 'prohibitions du Roy' case in 1609,when Sir Justice Coke declared that the King cannot pass judgement in his person, confirmed in the Bill of Rights 1689, or for example in France in the separation of judicial power from the executive during the French Revolution in the Constitution of 1791 ('pouvoir judiciaire'), the Charte Constitutionnelle of 1814 and the constitution of 1830 ('ordre judiciaire').

The institutional aspect is also reflected in the position and normative circumscription of justice in constitutional texts: constitutions generally only mention the principles of judicial organization, judicial independence and principles of the exercise of justice, also contained in the sections on fundamental rights.[06]

The normative position of Supreme or Constitutional Courts in the general context of justice is usually less important: Supreme Courts usually figure at the top of the pyramid of ordinary courts (Switzerland or the Netherlands as exceptions); but also constitutional courts are often integrated in the part on judicial organization (e.g. Germany or Poland), have an accentuated placement within the judicial system (e.g. Colombia or South Africa) or are expressly separated from the ordinary judiciary (e.g. Spain, Italy or France). Thus, the normative position is not decisive for the independence and importance of the highest courts, for example the Supreme Court of the United States, the German Bundesverfassungsgericht(Federal Constitutional Court) or more recently, the Constitutional Court of South Africa.[07]

Finally, the institutional aspect should be dealt with by an adequate financing of justice, based on objective and rational criteria, preferably with the cooperation of a High Council of Justice and a separate seat in the regular budget.

3. THE INDEPENDENCE OF THE JUDGE.

The independence of the magistrate comprises several aspects, such as the nomination process, objective elements such as the duration of the mandate and irremovability, the disciplinary regime, the right to a legal judge, and internal or subjective elements such as impartiality and objectivity and the exercise of freedom of expression as a subject of fundamental rights.

The nomination of magistrates concerns the legitimacy and quality of judges and can be a point of contention between the executive and the judiciary, as developments in Poland or Hungary in recent years show.

In particular, it is necessary to distinguish between the nomination of constitutional and ordinary judges, since the importance of constitutional courts in the political process is eminent and requires enhanced legitimacy of the magistrates.

One could distinguish between at least 4 models of nomination types for constitutional magistrates: the highest legitimation probably presents the election by the unicameral or bicameral parliament which is a frequent model; the participation of the parliament and the government (like Austria), the nomination by the parliament and a representation of the magistrates (like "El Consejo del Poder General" in Spain or the "Consiglio de la Magistratura" in Italy), by the parliament and the president (like in France). As the example in Poland and Hungary in recent years shows, no model guarantees full independence when the parliamentary majority dominates the nomination and manipulates the election process as in Poland in 2015: The parliament "Sejm" in November 2015 invalidated the election of five judges elected by the previous Sejm (three of them legally elected) and replaced them with five new candidates. This procedure has caused the initiation of the Art 7 par. 1 TEU procedure and has been clearly criticized by the Supreme Court in Poland, the Venice Commission and international organizations [08]; above all it has led to a ruling of the Strasbourg Court in May 2021 in the case XERO FLOR[09]; the ECtHR found a violation of the right to a court established in the sense of Art 6 par. 1 of the European Convention on Human Rights [10].

Also the nomination of ordinary judges reveals various models and facets and vacillates between a nomination by parliament; nomination or direct election by a "High Council of Judges"; a direct nomination by the executive is practised in some common law countries such as Great Britain, Canada or Australia; the Venice Commission underlines that this is justified by well–established and recognized judicial traditions and cultures [11].

An important element in systems with self–governance of judges and their participation in the nomination process is the composition and impact of institutions such as the High Council of Judges in various countries. Thus reforms in Hungary, Poland and Turkey illustrate the pressures exerted by executives to weaken their position. In Hungary, the National Council of the Judiciary as an independent body charged with overseeing the National Judicial Office (NJO) and having broad competences in the administration of justice, faced a series of legislative reforms limiting its role in terms of judicial appointments and effective control of the President of the National Office [12]. In Poland, a reform in 2018 changed the composition of the ‘National Council of the Judiciary’: its members are directly elected by the Sejm and therefore by the governmental parliamentary majority and no longer by the member judges. Contrary to the Polish Constitutional Court, the European Court of Justice (ECJ) in the context of the reform of the disciplinary chambers, considered that, in order for a council of the judiciary to contribute to a more objective appointment process, such a body must be sufficiently independent from the legislative and executive power and from the body on which it rules [13] and confirmed its opinion in a preliminary ruling in March 2021 [14] underlining the primacy of unitary law and the need for national courts to disapply the rules. Similarly, in Turkey, the constitutional reform of 2017 gave the president the right to appoint six out of thirteen members of the "High Council of Judges and Prosecutors", while the rest are appointed by the dominant majority of the ruling AKP party [15]. These judicial reforms clearly illustrate that the independence of self–governing institutions of justice must be strengthened, strictly observed within the framework of the EU and sanctioned in case of violations.

The irremovability of the judge is a prerequisite for judicial independence. Here, too, Poland plays a negative role: a law of 2017 provided for the reduction of the retirement age of Supreme Court judges from 70 to 65 years, unless the judge declares his wish to continue his functions by confirming his state of health and subject to the authorisation of the President of the Republic. The ECJ, in its judgement of June 2016, underlined that independence and impartiality are subject to rules especially with regard to the composition of the body, the appointment, the duration of the mandate and the grounds for disqualification, recusal and dismissal of members and declared.

"The principle of irremovability requires in particular terms that judges may remain in the exercise of their functions until they have reached the age of compulsory retirement or until the end of their term of office... Although it is not absolute, this principle may only be subject to exceptions when and if there are legitimate and compelling reasons to justify it and provided that the principle of proportionality is respected. Thus, it is generally accepted that judges may be dismissed if they do not meet the conditions of aptitude to continue to exercise their functions for reasons of incapacity or serious misconduct, observing the procedures established for this purpose".[16]

The judge must be protected against external as well as internal pressures and should enjoy functional immunity, as the Venice Commission postulates, admitting the exception of an intentional offence[17]; but certainly also for professional incapacity or serious misconduct as the Court of Justice points out in the above––mentioned judgement. Constitutional texts very rarely mention disciplinary sanctions but sometimes indicate the prohibition of interference in the judge's function or of transfer to another post against his will, or they are satisfied very simply as in Anglo–Saxon countries, with the precept that judges "shall hold office during good behaviour".

But the independence of the judge also has institutional conditions against disciplinary sanctions, as demonstrated by the dispute between Poland and the European Commission over the introduction of a Disciplinary Chamber and a Chamber of Extraordinary Control and Public Affairs at the Supreme Court. The former can lift the immunity of judges when criminal proceedings are instituted against them (a power previously reserved to courts of first instance) and the Chamber of Extraordinary Control was given the exclusive power to decide on matters relating to judicial independence. The new competences were criticised by national institutions (such as the Ombudsman or the Supreme Court) as well as the Venice Commission[18]. Furthermore, the European Court of Justice (ECJ), in its ruling in November 2020, considered that the Supreme Court should rule on doubtful independence; it confirmed in three judgments that the Disciplinary Chamber does not form an independent court [19]. In an infringement procedure initiated by the Commission, the ECJ in its judgment of 15 July 2021, has profoundly reasoned that the disciplinary chamber in the entire context of the government's judicial reforms infringes the guarantees of effective judicial protection laid down in Art 19 para1 TEU and Art 47 of the European Charter of Rights[20]. The Court declares that:

"...a body does not constitute an independent and impartial tribunal ...when the objective conditions ...and its characteristics and the manner in which its members have been appointed may give rise to legitimate doubts in the minds of the judiciary as to the impermeability of the body in question to external elements, in particular to direct or indirect influences from the legislative and executive powers, as to its neutrality with regard to the interests of the litigation".[21]

Finally, the fundamental ruling of the ECJ on 21 December 2021 should be highlighted as it challenges the independence of the judiciary in Romania and the primacy of EU law, including constitutional norms.[22]

Concerning the anti–corruption reform in Romania, the composition of the chambers and the obligation of the ordinary courts to respect the jurisprudence of the Constitutional Court, the Luxembourg Court clearly states:

"Union law is opposed to the application of a case law of the Constitutional Court leading to the annulment of judgments rendered by irregularly composed court formations, to the extent that it is combined with national provisions on prescription, creates a systemic risk of impunity for acts constituting serious offences which are prejudicial to the interests of the Member States, combined with national provisions on prescription, creates a systemic risk of impunity for acts constituting serious offences against the Union's financial interests or corruption".[23]

"The law of the Union is not opposed to the fact that the decisions of the Constitutional Court are binding on the courts of common law, provided that the independence of that court, particularly with regard to legislative and executive powers, is guaranteed.”[24]

Among the internal or subjective aspects, the judge's impartiality and neutrality are closely linked to independence against external pressures and influences; they are manifested in the versions of Art 6 ECHR and Art 8 ICHR: "fair and public hearing before an independent and impartial tribunal". Impartiality, although being a subjective criterion, is reinforced by the other elements of a fair trial such as equality of arms, fair trial, fair and public hearing as developed in the jurisprudence of the human rights courts [25]. Although the above–mentioned executive influences in Poland, especially disciplinary sanctions against magistrates, are likely to massively weaken the impartiality and neutrality of judges, in the Rule of Law Report 2021 the European Commission also notes steps of reforms in some member states in relation to disciplinary regimes, such as in France, Ireland, Slovenia, Czechia, or Malta, and efforts to strengthen the ethical rules of integrity of judges in Belgium, Austria, Lithuania, Latvia or Italy [26].

Finally, there is a second aspect to underline: the freedom of expression and association of judges. As the Venice Commission in its "Report on the Freedom of expression of judges" in 2015 pointed out, there are no rules in the constitutions of the members of the Council of Europe concerning the freedom of expression of judges [27], with the exception of Albania. Concerning the freedom of association, some constitutions restrict political activity, among others in Hungary, Poland, Romania or Slovakia. Of course, there are often legislative norms concerning restrictions of freedom of expression and association, e.g. in Germany in the 'Richtergesetz', (law on judges) which establishes a principle of temperance in relation to manifestations outside their magisterial profession. As the Bundesverfassungsgericht (Federal Constitutional Court) has found, a judge may participate in political activities to a degree that is compatible with public confidence in the impartial and neutral administration of his or her office[28]. Apart from this there are ethical codes for the activity of judges in some countries.

In the case law of the Strasbourg Court it is well established that the freedom of expression in Art 10 ECHR includes judges, and it should be examined whether the interference is justified by a "pressing social need" and is "proportionate to the legitimate aim pursued", i.e. the office of the judge, the content of the statement and the manner and severity of the sanctions should be considered.[29] As the case of Kudeshkina v. Russia illustrates, the forced dismissal of a judge of first instance in Moscow as a result of an interview criticising the constant pressure on judges does not justify a similar sanction as the judge had raised a matter of general interest[30].

4. SUMMARY.

The independence of the judiciary is an indispensable element of the rule of law in a formal or institutional sense as well as in a substantial sense. Even if a universal definition is missing essential elements of the rule of law can be discerned as a common denominator of constitutional texts and practices as well as a foundation for the Rule of law as a European constitutional principle. The independence of the judiciary in the Reports on the Rule of Law of the European Commission has a primordial rank but is complemented by other factors like anticorruption policies, media pluralism and media freedom and institutional issues of checks and balances; even if these aspects may not lie at the core of the rule of law concept they undeniably have a strong impact on the performance of the rule of law and judicial independence; limitations on freedom and pluralism of media may exert a direct influence on the perception of judicial independence in the public.

The independence of the judiciary reveals an institutional aspect and a status–related aspect of the judge comprising external and internal factors. Nomination of judges includes institutional aspects as well. A strong parliamentary legitimation for constitutional judges is preferable but can be outweighed by minority participation of opposition parties or participation and cooperation of High Council of Judges in the nomination procedures .The protection of these representative bodies of self–governance against arbitrary reforms of composition is of particular relevance as the above–mentioned examples illustrate. Strong bulwarks must be safeguarded against wilful reduction of the duration of the length of office and a disciplinary regime tending to abuse disciplinary powers against unloyal judges unless there are grounds of incapacity or serious faults , judged by independent disciplinary chambers including the right to appeal. The freedom of expression of the judge must be upheld as long as it does not interfere with the obligations of a case before him and any sanction must be justified by a general public interest and be strictly proportionate to the aim pursued.

And finally, not to forget: the dignity of the judge in his own personality as actor of the judicial branch should be observed: "honeste vivere".

Resumen: El presente trabajo aborda la independencia del poder judicial como elemento indispensable del Estado de derecho. Para ello, se examina tanto la independencia de la propia institución, como la de sus actores, reflexionando en torno al nombramiento de los jueces, su inamovilidad, su régimen disciplinario y ciertos aspectos internos que afectan, entre otros puntos, a su libertad de expresión y de asociación.

Palabras claves: Estado de Derecho; Poder judicial; independencia; nombramientos.

Abstract: This paper addresses the independence of the judiciary as an indispensable element of the rule of law. To this end, it examines both the independence of the institution itself and that of its actors, reflecting on the appointment of judges, their irremovability, their disciplinary regime, and certain internal aspects that affect among other points, their freedom of expression and association.

[*] English version of the Spanish Lecture at the Colloquy “Democracia y Estado de Derecho” held on 28/9/2021 in Zaragoza.

[02] A.V. DICEY, Introduction to the Study of the Constitution ,1885;(reprint 1959).

[04] Rule of Law Report 2020, The Rule of law situation in the EU; Communication of the EU;Comm,30/9/2020,580 final.

[05] European Commission for Democracy through Law, Venice Commission, 25/26/3/2011;Study No 512(2009) CDL-AD (2011) 003 rev.

[07] See more WEBER ,in Babeck;w./WEBER,A.; Writing Constitutions ; Vol I. Chapt 11 (forthcoming in 2022).

[10] See ECJ, 7/5/2021 ; Xero Flor w Polsce sp.zoo.o v. v .Poland; esp para 174,184ss.

[12] CommissionReport on the Rule of Law in 2020 ;30/9/ 2020 ;SWD(2020) 316 final,p.3.

[22] ECJ 21/12/2021; C-357-Eurobox Promotion et al,; C-379/19-DNA Servicio Teritorial Oradea.

[24] C-547/-Asociatia19 Forumul Judecatorilor din Romania et al;Communique de Presse No 230/21 ,21/12/2021.

THE INDEPENDENCE OF THE JUDICIARY AS A PILLAR OF THE RULE OF LAW[*]

LA INDEPENDENCIA DEL PODER JUDICIAL COMO PILAR DEL ESTADO DE DERECHO

Albrecht Weber

Professor emeritus of Law. University of Osnabrück

SUMARIO

1. Introduction.

2. The independence of Justice.

3. The independence of the judge.

4. Summary.

1. 1. INTRODUCTION.

2. THE INDEPENDENCE OF JUSTICE.

3. THE INDEPENDENCE OF THE JUDGE.

4. SUMMARY.