Rule of Law

   

To what extent do independent courts control whether government and administration act in conformity with the law?

EUOECD
 
Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
10
Australia
There has been no significant change during the period under review. While the scope for judicial review of government actions is very much affected by legislation allowing for or denying such review, it is nonetheless the case that government and administrative decisions are frequently reviewed by courts. There is a strong tradition of independent judicial review of executive decisions. This tradition stems to a significant extent from the evolution of administrative law, which has spawned an administrative courts process through which complainants may seek a review of executive action. The executive branch generally has very little power to remove judges, which further contributes to the independence of the judiciary. Furthermore, there are many instances in which courts have ruled against the executive. The executive has in the past generally accepted the decisions of the courts or appealed to a higher court, rather than attempting to circumvent the decision.
Denmark
There is judicial review in Denmark. Section 63 of the Danish constitution makes it clear that the courts can review executive action: “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, as explained in detail below. Section 64 of the constitution stipulates: “In the performance of their duties the 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.”

Administrative decisions can normally be appealed to higher administrative bodies first, and after exhaustion of these possibilities, to the courts. The legal system has three levels with the possibility of appealing lower level judgments to high courts and eventually to the Supreme Court.
Citations:
Henrik Zahle, Dansk forfatningsret 2: Regering, forvaltning og dom. Copenhagen: Christian Ejlers’ Forlag, 2004.
Estonia
The structure of the Estonian court system is one of the simplest in Europe. The system is composed of one level of county courts (4) and administrative courts (2), a higher second level of circuit courts (2) 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. The Supreme Court is composed of several chambers, including an administrative law chamber. Administrative courts hear administrative matters. There are two administrative courts in Estonia, made up of 27 judges (about 10% of all judges employed in Estonia’s court system). Most judges in Estonia are graduates of the law school in Tartu University; however, there are also BA and MA law programs in two public universities in Tallinn. In total, the national government recognizes 11 study programs in law.

Judges are appointed by the national parliament or by the president of the republic for a lifetime, and they cannot hold any other elected or nominated position. Status, social guarantees, and guarantees of judges’ independence are established by law.

Together with the Chancellor of Justice, courts effectively supervise the authorities’ compliance with the law, and the legality of the executive and legislative powers’ official acts.
Germany
Germany’s judiciary works independently and effectively protects individuals against encroachments by the executive and legislature. The judiciary inarguably has a strong position in reviewing the legality of administrative acts. The Federal Constitutional Court (FCC) ensures that all institutions of the state obey the constitution. The court acts only when an appeal is made, but the court holds the right to declare laws unconstitutional and has exercised this power several times. In case of conflicting opinions, the decisions made by the FCC are final; all other governmental and legislative institutions are bound to comply with its verdicts (Basic Law, Art. 93).

Under the terms of the Basic Law (Art. 95 sec. 1), there are five supreme federal courts in Germany, including the Federal Constitutional Court (Bundesverfassungsgericht), Federal Court of Justice (the highest court for civil and criminal affairs, Bundesgerichtshof), Federal Administrative Court (Bundesverwaltungsgericht), Federal Finance Court (Bundesfinanzhof), Federal Labor Court (Bundesarbeitsgericht) and Federal Social Court (Bundessozialgericht). This division of tasks guarantees highly specialized independent courts with manageable workloads.

Germany’s courts, in general, and the FCC, in particular, enjoy a high reputation for independence both domestically and internationally. In the World Economic Forum’s Global Competitiveness Report 2016 – 2017, Germany’s relative performance on judicial independence has declined in recent years, with Germany now ranked 24th out of 138 countries after ranking 17th in the previous year. However, the rule of law index of the World Justice Report that includes judicial review ranked Germany 8 out of 113 countries.
Citations:
https://www.weforum.org/reports/the-global-competitiveness-report-2017-2018

https://worldjusticeproject.org/sites/default/files/documents/ROLIndex_2016_Germany_eng%20%282%29.pdf
New Zealand
New Zealand does not have a Constitutional Court with concrete or abstract judicial review. While it is the role of the judiciary to interpret the laws and challenge the authority of the executive where it exceeds its parliamentary powers, the judiciary cannot declare parliamentary decisions unconstitutional. This is because under the Westminster system of which many Commonwealth countries are a part, parliament is sovereign. The courts may, however, ask the House of Representatives to clarify clauses. There is an extended and professional hierarchical judicial system with the possibility of appeals. Since 2003, New Zealand’s highest court has been the Supreme Court, taking the place of the Judicial Committee of the Privy Council in London that had in the past heard appeals from New Zealand. An institution specific to the country is the Maori Land Court, which hears cases relating to Maori land (about 5% of the total area of the country). Equally important is a strong culture of respect for the legal system.
Citations:
http://www.justice.govt.nz/courts/maori-land-court (accessed October 20, 2015).
Norway
Norway’s court system provides for the review of actions by the executive. The legal system is grounded in the principles of the so-called Scandinavian civil-law system. There is no general codification of private or public law, as in civil-law countries. Rather, there are comprehensive statutes codifying central aspects of the criminal law and the administration of justice, among other things.

Norwegian courts do not attach the same weight to judicial precedents as does the judiciary in common-law countries. Court procedure is relatively informal and simple, and there is a strong lay influence in the judicial assessment of criminal cases.

At the top of the judicial hierarchy is the Supreme Court, which is followed by the High Court. The majority of criminal matters are settled summarily in the district courts (Forhoersrett). 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 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.
Sweden
The Swedish system of judicial review works well and efficiently. Courts are allowed to question legislation that they find to be inconsistent with the constitution. In addition, Sweden has a system of judicial preview where the Council on Legislation (“lagrådet”) is consulted on all legislation that potentially, or actually, relates to constitutional matters. The institution’s review (or preview) goes beyond that assignment and includes an overall assessment of the quality of the proposed legislation. The government and the parliament have the right to ignore the council’s advice, however.

At the same time, critics have increasingly questioned this model of judicial review over the past few years. They argue it is part of a more general trend toward the judicialization of politics, where courts and lawyers acquire an inappropriate level of influence over political decisions. However, these criticisms are not particular to Sweden; they are observable in most European countries.
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 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.
9
Canada
The scope of judicial review was greatly expanded with the enactment of the Canadian Charter of Rights and Freedoms in 1982, which constitutionally entrenched individual rights and freedoms. Today, the courts in Canada pursue their reasoning free from the influence of governments, powerful groups or individuals.
Finland
The predominance of the rule of law has been somewhat weakened by the lack of a Constitutional Court in Finland. The need for such a court has been discussed at times, but left-wing parties in particular have historically blocked proposals for the creation of such a court. Instead, the parliament’s Constitutional Law Committee has assumed the position taken in other countries by a constitutional court. The implication of this is that parliament is controlled by a kind of inner-parliament, an arrangement that constitutes a less than convincing compensation for a regular constitutional court. In addition, although courts are independent in Finland, they do not decide on the constitutionality or the conformity with law of acts of government or the public administration. Instead, the supreme supervisor of legality in Finland is the Office of the Chancellor of Justice. Together with the Parliamentary Ombudsman, this office monitors authorities’ compliance with the law and the legality of the official acts of the government, its members, and the President of the Republic. The Chancellor is also charged with supervising the legal behavior of courts, authorities and civil servants.

The present Sipilä government was recently criticized for not taking the concerns of the Chancellor of Justice into full account when preparing bills. In consequence, several bills put forth by the Sipilä government have been subject to heavy review by the Constitutional Law Committee.
Citations:
“Hallituksen painostus jyräsi oikeuskanslerin pyrkimykset korjata ongelmallisia lakiesityksiä – oikeustieteen professorit tyrmistyivät”; http://www.hs.fi/politiikka/art-2000005011266.html
France
Executive decisions are reviewed by courts that are charged with checking its norms and decisions. If a decision is to be challenged, the process is not difficult. Administrative courts are organized on three levels (administrative tribunals, courts of appeal and the Council of State, or Conseil d’Etat). The courts’ independence is fully recognized, despite that, for instance, the Council of State also serves as legal adviser to the government for most administrative decrees and all government bills.

This independence has been strengthened by the Constitutional Council, as far such independence has been considered a general constitutional principle, despite the lack of a precise reference in the constitution itself. In addition, administrative courts can provide financial compensation and make public bodies financially accountable for errors or mistakes. Gradually, the Constitutional Council has become a full-fleshed court, the role of which was dramatically increased through the constitutional reform of March 2008. Since then, any citizen can raise an issue of unconstitutionality before any lower court. The request is examined by the Supreme Court of Appeals or the Council of State and might be passed to the Constitutional Council. The council’s case load has increased from around 25 cases to more than 100 cases per year, allowing for a thorough review of past legislation. This “a posteriori control” complements the “a priori” control of constitutionality, which might be exerted by the council before the promulgation of the law, provided that 60 parliamentarians introduce such a request.
Ireland
A wide range of public decisions made by administrative bodies and the decisions of the lower courts are subject to judicial review by higher courts. When undertaking a review, the court is generally concerned with the lawfulness of the decision-making process and the fairness of the decision. High Court decisions may be appealed to the Court of Appeal.
In October 2013, a referendum proposing the creation of a new Court of Appeal was passed. The new court, which was established in October 2014, will hear cases appealing decisions of the High Court.

The cost of initiating a judicial review can be considerable. This acts as a deterrent and reduces the effectiveness of the provisions for judicial review.
The courts act independently and are free from political pressures.
Israel
The Supreme Court is generally viewed as a highly influential institution. It has repeatedly intervened in the political domain to review the legality of political agreements, decisions and allocations. Since a large part of the Supreme Court’s judicial review in recent years is over the activities of a rightist coalition and parliament, it is often criticized for being biased toward the political left. In the 2013 – 2014 period, the Supreme Court was similarly criticized for overturning an “infiltration law” set up to implement policy regarding illegal immigration. Nevertheless, it was ranked as one of the top four most-trustworthy governmental institutions in a 2016 survey conducted by the Israeli Democracy Institute.

The independence of the judiciary system is established in the basic law on the judiciary (1984), various individual laws, the ethical guidelines for judges (2007), numerous Supreme Court rulings and in the Israeli legal tradition more broadly. These instruct governing judicial activity by requiring judgments to be made without prejudice, ensuring that judges receive full immunity, generally banning judges from serving in supplementary public or private positions, and more. Judges are regarded as public trustees, with an independent and impartial judicial authority considered as a critical part of the democratic order.

During the period under review, Minister of Justice Ayelet Shaked and Minister of Education Naftali Bennett announced the introduction of a bill that would limit the Supreme Court’s authority to strike down laws. The proposed basic law would include an override provision that would allow a Knesset majority to vote to bypass Supreme Court rulings.
Citations:
Azulai, Moran and Ephraim, Omri, “Overruling the infiltration law: The Knesset goes into battle,” Ynet 23.9.2014: http://ynet.co.il.d4p.net/articles/0,7340,L-4574094,00.html (Hebrew).

Herman, Tamar, “Israeli Democracy index 2016,” The Israel Democracy Institute. (Hebrew) https://www.idi.org.il/media/7799/democracy-index-2016.pdf

Hovel, Revital, “Right-wing Israeli Ministers Introduce Plan Targeting High Court’s Powers,” Haaretz, 15.9.2017, https://www.haaretz.com/israel-news/.premium-1.812425.

Kremnitzer, Mordechai, “Judicial Responsibility at its Best,” IDI website 31.5.2012 (Hebrew).

Svorai, Moran, “Judicial independence as a main feature in judicial ethics” (2010), (Hebrew) http://www.mishpat.ac.il/files/650/3168/3185/3186.pdf
Lithuania
Lithuania’s court system is divided into courts of general jurisdiction and courts of special jurisdiction. A differentiated system of independent courts allows monitoring of the legality of government and public administrative activities. 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 lower general-jurisdiction court judgments, decisions, rulings and orders. Disputes that arise in the sphere of public administration are considered within the system of administrative courts. These disputes can include the legality of measures passed and activities performed by administrative bodies, such as ministries, departments, inspections, services and commissions. The system of administrative courts consists of five regional administrative courts and the supreme administrative court.

The overall efficiency of the Lithuanian court system, in terms of disposition time and clearance rate, was assessed by the EU Justice Scoreboard as good. This indicates that the system is capable of dealing with the current volume of incoming cases. Lithuania is one of the leading countries in the European Union in terms of the length of proceedings: around 100 days is needed to resolve litigious civil and commercial cases in first instance courts. The consolidation of district and regional administrative courts will distribute cases more evenly. However, the number of cases dealing with the legality of administrative acts and judgments delivered by the administrative courts is increasing. The clearance rate of administrative cases and their disposition time increased between 2013 and 2014.

According to opinion surveys (i.e., Vilmorus surveys), public trust in the courts is low, but increasing modestly (27.7% in July 2016, increasing to 31% in May 2017 – the highest level since 1998). Public trust in the Constitutional Court is higher, according to Baltic Survey, at 65% in November 2016.
Citations:
The EU Justice Scoreboard, see http://ec.europa.eu/justice/effective-justice/scoreboard/index_en.htm
For opinion surveys see http://www.vilmorus.lt/en
Luxembourg
The existence of administrative jurisdictions and the Constitutional Court, guarantee an independent review of executive and administrative acts. The Administrative Court and the Administrative Court of Appeals are legal bodies with heavy case loads; annual reports cite about 1,100 judgments by the Administrative Court in 2016, as well as 277 judgments between 2015 and 2016 by the Administrative Court of Appeals. These judgments and appeals indicate that judicial review is actively pursued in Luxembourg.
Citations:
“Gerichtsorganisation der Mitgliedstaaten – Luxemburg.” Portail e-Justice européen, 4 Feb. 2015, e-justice.europa.eu/content_judicial_systems_in_member_states-16-lu-de.do. Accessed 21 Feb. 2017.

Rapport d’activité des juridictions administratives. La Justice Grand-Duché de Luxembourg, 2016. www.justice.public.lu/fr/publications/rapport-activites-administratives/Rapports-juridictions-administratives-2016.pdf. Accessed 21 Dec. 2017.
USA
The United States was the originator of expansive, efficacious judicial review of legislative and executive decisions in democratic government. The Supreme Court’s authority to overrule legislative or executive decisions at the state or federal level is virtually never questioned, although the Court does appear to avoid offending large majorities of the citizenry or officeholders too often or too severely. At least in the United States, however, judicial review does not simply ensure that legislative and executive decisions comply with “law,” in some neutral or consistent sense. The direction of judicial decisions depends heavily on the ideological tendency of the courts at the given time. The U.S. federal courts have robust authority and independence but lack structures or practices to ensure moderation or stability in constitutional doctrine.

In recent years, the Supreme Court has been sharply divided, with a 5 to 4 or larger conservative majority on most issues, while still providing narrow majorities for liberal decisions on some issues. Either way, the Court’s decisions clearly go far beyond any well-established legal principles, and in effect impose the constitutional views or policy preferences of the court majority. A series of decisions on campaign finance, culminating in the notorious 2010 Citizens United decision, has rendered campaign-finance regulation almost without substantive effect. The Court’s 2015 decision requiring states to permit same-sex marriage set aside more than 200 years of U.S. public policy. The death of conservative Justice Antonin Scalia in early 2016 left the court with a 4 to 4 liberal-conservative split, hindering its ability to rule on a considerable number of issues. In a sharp break from past practice, the Republican-controlled Senate refused to act on Obama’s nomination of a replacement for more than a year. After the 2016 election, President Trump nominated and the Senate confirmed a conservative Republican justice. The Senate’s handling of the appointment is an indicator of the partisan and ideological character of the federal judiciary in this era.

Judicial review remains vigorous. In 2015 and 2016, the federal courts struck down several expansive uses of executive power by the Obama administration as well as potentially discriminatory voter registration requirements in a number of states. During 2017, federal courts have blocked the Trump administration’s constitutionally dubious travel ban affecting visitors from certain Muslim countries as well as Trumps executive decision to end the DACA program.
 
Independent courts usually manage to control whether the government and administration act in conformity with the law.
8
Austria
Austrian laws can be reviewed by the Constitutional Court on the basis of their conformity with the constitution’s basic principles. According to EU norms, European law is considered to be superior to Austrian law. This limits the sovereignty of Austrian law.

Within the Austrian legal system, all government or administrative decisions must be based on a specific law, and laws in turn must be based on the constitution. This is seen as a guarantee for the predictability of the administration. The three high courts (Constitutional Court, Administrative Court, Supreme Court) are seen as efficient watchdogs of this legality. Regional administrative courts have recently been established in each of the nine federal states (Bundesländer), which has strengthened the judicial review system.

The country’s administrative courts effectively monitor the activities of the Austrian administration. Civil rights are guaranteed by Austrian civil courts. Access to Austrian civil courts requires the payment of comparatively high fees, creating some bias toward the wealthier portions of the population. Notwithstanding the generally high standards of the Austrian judicial system, litigation proceedings take a rather long time (an average of 135 days for the first instance) with many cases ultimately being settled through compromises between the parties rather than by judicial ruling. Expert opinions play a very substantial role in civil litigations, broadening the perceived income bias, since such opinions can be very costly to obtain. The rationality and professionalism of proceedings very much depend on the judges in charge, as many judges, especially in first-instance courts, lack the necessary training to meet the standards expected of a modern judicial system, which might include basic knowledge of psychological conditions and illnesses.
Belgium
The Constitutional Court (until 2007 called the Cour d’Arbitrage/Arbitragehof) is responsible for overseeing the validity of laws adopted by the executive branch. The Council of State (Conseil d’État/Raad van Staat) has supreme jurisdiction over the validity of administrative acts. These courts operate independently of the government, and often question or overturn executive-branch decisions at the federal, subnational and local levels. The most recent sources of contention have been the anti-terror measures passed by the government, along with measures restricting foreigners’ rights. As in many countries, policymakers seeking to extend the police’s powers of investigation have skirted the thin line between respecting and infringing upon fundamental civil rights. Consequently, government proposals in these areas have regularly been struck down or modified by these two courts.

The Council of State is split into two linguistic chambers, with one being Dutch-speaking and the other French-speaking. These chambers are each responsible for reviewing the administrative acts of the regions and communities that fall under their respective linguistic auspices. This poses challenges with regard to government independence, especially when a case involves language policy or the balance of powers between different government levels.
Citations:
http://www.lexadin.nl/wlg/courts/nofr/eur/lxctbel.htm

http://www.business-anti-corruption.com/country-profiles/belgium
Chile
Chile’s judiciary is independent and performs its oversight functions appropriately. Mechanisms for judicial review of legislative and executive acts are in place. The 2005 reforms enhanced the Constitutional Tribunal’s autonomy and jurisdiction concerning the constitutionality of laws and administrative acts. Arguably, the Tribunal is one of the most powerful such tribunals in the world, able to block and strike down government decrees and protect citizens’ rights against powerful private entities. In November 2016, Law No. 20,968 was enacted which modified the competences of the military justice defined by Law No. 20,477. Henceforth, no civilian – perpetrator or victim – will be prosecuted by military courts. The new law also introduced the crime of torture into the criminal code.

During the current evaluation period, Chilean courts demonstrated their independence through their handling of the corruption scandals revealed over the past few years, which have included political parties and a large number of the country’s politicians. Nevertheless, the sentences imposed thus far have tended to be rather light.
Citations:
https://prensa.presidencia.cl/comunicado.aspx?id=56160

https://www.bcn.cl/leyfacil/recurso/delito-de-tortura
Cyprus
The operation of the Administrative Court in 2016 marked a positive step in the administration of justice; it is expected to alleviate the workload of the supreme court and fight long delays in decision-making, with, however, limited effect on lengthy court procedures. Indeed, the acknowledged efficiency of judicial review has been suffering from procedural delays. In a 2014 survey, 90% of justice system respondents (primarily lawyers and judges) stated that delays were a severe problem.

Citizens can seek protection of their rights through judicial review of administrative decisions by well-organized and professional courts. Decisions by trial courts, administrative bodies or other authorities can be reviewed by the administrative and (appellate) supreme court. Appeals are decided by panels of three or five judges, with highly important cases requiring a full quorum (13 judges).
Citations:
1. Brussels asks Cyprus to address inefficiencies in public sector, Cyprus Mail, 23 May, 2017, http://cyprusbusinessmail.com/?p=45508
2. Judicial system ‘unacceptable’, court buildings ‘a disgrace’ top judge says, Cyprus Mail, 26.10.2017, http://cyprus-mail.com/2017/10/26/judicial-system-unacceptable-court-buildings-disgrace-top-judge-says/
Czech Rep.
Czech courts operate independently of the executive branch of government. The most active control on executive actions is the Constitutional Court, a body that has triggered much controversy with its judgments across the political spectrum. During the period under review, the Constitutional Court deliberated on 30 cases, of which 15 were proposed by a group of senators. In its most important decision in 2017, the court upheld an amendment of the law on conflict of interest, against a constitutional complaint by President Zeman. In other high-profile decisions, the court declared the treatment of refugees in the detention facility in Bela unconstitutional and nullified provisions in the adoption law that discriminate against individuals living in same-sex registered partnership. Debates on the reform of the judiciary, as initiated by Minister of Justice Robert Pelikan in 2016, have largely focused on the training of candidates for judges. The justice minister announced his intention to change the rules on the selection of judges, so as to prevent candidates without trial experience from entering regional courts.

Pospíšil, I. (2018): Ein aktivistisches Verfassungsgericht als Korrektiv der Politik: Struktur, Besetzung und Rechtsprechung, in: A. Lorenz, H. Formánková (Hrsg.), Das politische System Tschechiens. Wiesbaden: Springer VS, 131-152.
Greece
Courts are independent of the government and the legislature. Members of the judiciary are promoted through the internal hierarchy of the judiciary. There is an exception, namely the appointment of the presidents and vice-presidents of the highest civil law and criminal law court (Areios Pagos) and administrative law court (Symvoulio tis Epikrateias), for which a different process is followed. The heads of such courts are selected by the cabinet (the Council of Ministers) from a list supplied by the highest courts themselves. In the past, such higher judges were clearly supporters of the government of the day. Successive governments, including the incumbent radical left/far-right coalition government of Syriza-ANEL, have not resisted the temptation to handpick their favored candidates for the president posts of the highest courts.

Judges are recruited through independent entrance examinations and are then trained in a post-graduate level educational institution. The court system is self-managed. In a formal sense, courts in Greece are able to monitor whether government and administration act in conformity with the law.

Whether courts do so efficiently is another matter, because they cannot ensure legal compliance. They act with delays and pass contradictory judgments, owing to the plethora of laws and the opaque character of regulations. One example of a law-infested policy sector is town planning, where courts have not managed to control the government and administration in a sustained manner. However, in the period under review, the courts showed remarkable independence from the incumbent government. For example, in October 2016, the supreme administrative court (Symvoulio tis Epikrateias) annulled the Syriza-ANEL government’s effort to grant a government minister, rather than the appropriate independent regulatory authority, the power to award nationwide TV licenses. In the period under review, the same court proclaimed the Ministry of Finance’s inspection and re-appraisal of household and business tax declarations, which had been filed more than five years ago, unconstitutional. In October 2017, the court also declared unconstitutional the government’s requirement that a large number of public officials, from higher-ranking judges to low-ranking firefighters, fill out and submit a new, very long and demanding personal asset declaration, including all kinds of property and bank accounts of officials and their family members. In short, courts’ independence from government has increased.
Italy
Courts play an important and decisive role in Italy’s political system. The judicial system is strongly autonomous from the government. Recruitment, nomination to different offices and careers of judges and prosecutors remain out of the control of the executive. The Superior Council of the Judiciary (Consiglio Superiore della Magistratura), a representative body elected by the members of the judiciary (and partially by the parliament), governs the system without significant influence by the government. Ordinary and administrative courts, which have heavy caseloads, are able to effectively review and sanction government actions. The main problem is rather the length of judicial procedures, which sometimes reduces the effectiveness of judicial control. The Gentiloni government has continued the policies of the previous government to increase the efficiency of the judicial system. Digitalization of procedures has been promoted and the government has introduced new measures to resolve civil proceedings faster as a way to affect proceedings related to economic activities. The 2017 report of the Minister of Justice suggests that these measures have had some success.

At the highest level the Constitutional Court ensures the conformity of laws with the national constitution. It has often rejected laws promoted by current and past governments. Access to the Constitutional Court is reserved for courts and regional authorities. Citizens can raise appeals on individual complaints only within the context of a judicial proceeding, and these appeals must be assessed by a judge as “not manifestly unfounded and irrelevant.” The head of state, who has the power to block laws approved by the parliament that are seen to conflict with the constitution, adds another pre-emptive control.
Citations:
https://www.giustizia.it/giustizia/it/mg_2_15_7.page
Latvia
Judicial oversight is provided by the administrative court and the Constitutional Court. The administrative court, created in 2004, reviews cases brought by individuals. The court is considered to be impartial; it pursues its own reasoning free from inappropriate influences.

However, the court system suffers from a considerable case overload, leading to substantial delays in proceedings. According to the court administration statistical overviews, at the time of writing in 2017, 51% of administrative cases in a first instance court conclude within 6 months, although 36% require up to a year. In the appellate courts, the situation is worse, as 46% of cases require 6 to 12 months, 20% 12 to 18 months and 13% even longer. Administrative court backlogs are being addressed by limiting access to the court system through increases in court fees and security deposits. A Ministry of Justice working group has been convened to propose other systemic improvements. Institutional reforms are underway in the administrative court, which would remove an administrative layer to improve efficiency.

The Constitutional Court reviews the constitutionality of laws and occasionally that of government or local government regulations. In 2016, the court received 479 petitions, of which 302 were forwarded for consideration. The court initiated 31 cases. The court dealt with a wide range of issues, including calculation of pensions, questions surrounding insolvency and personal data protection.
Citations:
1. Judicial Information System Database, Available at: http://tis.ta.gov.lv/tisreal?FORM=TIS_STaT_O

2. The Constitutional Court Case Database, Available at: http://www.satv.tiesa.gov.lv/?lang=1&mid=19

3. Valts Kalniņšš (2011), Assessment of National Integrity System, p.99, Published by DELNA, Available at: http://www.transparency.org/whatwedo/pub/national_integrity_system_assessment_la tvia, Last assessed: 21.05.2013.

4. Constitutional Court (2017). Overview of the work of the Constitutional Court 2016. Available at: http://www.satv.tiesa.gov.lv/blog/2017/02/20/parskats-par-satversmes-tiesas-darbu-2016-gada/. Last assessed 22.11.2017.
Portugal
The judicial system is independent and works actively to ensure that the government conforms to the law.


The highest body in the Portuguese judicial system is the Supreme Court, which is made up of four civil chambers, two criminal chambers and one labor chamber. There is also a disputed-claims chamber, which tries appeals filed against the decisions issued by the Higher Judicial Council. The Supreme Court judges appeals on the basis of matters of law rather than on the facts of a case, and has a staff of 60 justices (conselheiros). There are also district courts, appeal courts and specialized courts, as well as a nine-member Constitutional Court that reviews the constitutionality of legislation. In addition, there is a Court of Auditors (Tribunal de Contas), which is also a constitutionally prescribed body and is defined as a court under the Portuguese legal system. This entity audits public funds, public revenues and expenditures, and public assets, all with the aim of ensuring that “the administration of those resources complies with the legal order.” In total, there are more than 500 courts in Portugal and 3,000 judges. Nevertheless, there is a shortage of judges in relationship to the number of outstanding cases, which creates delays within the system.
Citations:
Lei da Organização do Sistema Judiciário – Lei # 62/2013 of 26 August.
Slovenia
While politicians try to influence court decisions and often publicly comment on the performance of particular courts and justices, Slovenian courts act largely independently. Independence is facilitated by the fact that judges enjoy tenure. The Cerar government has preserved the independence of the Prosecutor’s Office and strengthened the independence of the judiciary by expanding its funding. The Constitutional Court has repeatedly demonstrated its independence by annulling controversial decisions by the governing coalition, for instance on the candidacy rights of former Prime Minister Janša and the referendum on same-sex marriages. However, the lower courts have sometimes been criticized for letting influential people off the hook. In a spectacular case, Zoran Janković, the incumbent mayor of Zagreb which has faced a dozen of corruption charges, avoided conviction in 2017.
South Korea
The South Korean judiciary is highly professionalized and fairly independent, though not totally free from governmental pressure. Under South Korea’s version of centralized constitutional review, the Constitutional Court is the only body with the power to declare a legal norm unconstitutional. The Supreme Court, on the other hand, is responsible for reviewing ministerial and government decrees. However, in the past, there have been cases with little connection to ministerial or government decree in which the Supreme Court has also demanded the ability to rule on acts’ constitutionality, hence interfering with the Constitutional Court’s authority. This has contributed to legal battles between the Constitutional and Supreme courts on several occasions. On the whole, the Constitutional Court has become a very effective guardian of the constitution since its establishment in 1989. In March 2017, the Constitutional Court unanimously upheld the impeachment of President Park amid massive public protests, demonstrating its independence from government influence.
UK
The United Kingdom has no written constitution and no constitutional court, although the supreme court fulfills this function. Consequently, the United Kingdom has no judicial review comparable to that in the United States or many other European countries. While courts have no power to declare parliamentary legislation unconstitutional, they scrutinize executive action to prevent public authorities from acting beyond their powers. A prominent example was the ruling of the High Court of Justice in November 2016 that the British government must not declare the United Kingdom’s separation from the European Union without a parliamentary hearing. The United Kingdom has a sophisticated and well-developed legal system, which is highly regarded internationally and based on the regulated appointment of judges.

Additional judicial oversight is still provided by the European Court of Human Rights, to which UK citizens have recourse. However, as a consequence of several recent high-profile ECHR decisions overturning decisions made by the UK government, some political figures called for the United Kingdom’s withdrawal from the court’s jurisdiction even before the referendum. The role and powers of the ECHR in the British legal system in a post-EU United Kingdom remain unclear.

In recent years, courts have strengthened their position in the political system. In cases of public concern over government action, public inquiries have often been held. However, implementation of any resulting recommendations is ultimately up to government, as the public lacks legal power. Judge-led inquiries tend to be seen by the public as having the highest degree of legitimacy, whereas investigations by members of the bureaucracy are prone to be regarded more cynically. Many such inquiries tend to be ad hoc and some drag on for so long that there is limited public awareness of the subject by the time their final reports are published. The extensive delay in publishing the Chilcot inquiry into the Iraq war, finally made public only in July 2016 several years after it was supposed to be completed, was widely criticized by the government, media and citizen groups.
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Iceland
Iceland’s courts are not generally subject to pressure by either the government or powerful groups and individuals. The jurisdiction of the Supreme Court to rule on whether the government and administration have conformed to the law is beyond question. According to opinion polls, confidence in the judicial system ranged between 50% and 60% before 2008. After falling to about 30% in 2011, it recovered to 39% in 2013 and remained at around 40% in 2014 and 2015 and is currently at 43% (2017). Recovering trust in the judicial system seems to be taking time.

Many observers consider the courts biased, as almost all judges attended the same law school and few have attended universities abroad. Of the six Supreme Court justices who ruled that the constitutional assembly election of 2010 was null and void, five were appointed by ministers of justice belonging to the same party (Independence Party).

In 2017, a sitting Supreme Court justice sued a former justice for libel. Another sitting justice speculated in a newspaper interview that the former justice may also have broken the law by seeking, while on the bench, to interfere in a case handled by another justice. Disputes between justices do not inspire confidence and trust, least of all when they trade accusations of illegal behavior.
Citations:
http://www.gallup.is/nidurstodur/traust-til-stofnana/

Gunnlaugsson, Jón Steinar, “Með lognið í fangið – um afglöp Hæstaréttar eftir hrun“ (With the Stream – On the Blunders of the Supreme Court After the Crash), BP útgáfa, Reykjavík, 2017.
Malta
Malta has a strong tradition of judicial review, and the courts have traditionally exercised restraint on the government and its administration. In a 2017 case, Judge Wenzu Mintoff ruled against the ruling Labor party in a case involving the ombudsman. Judicial review is exercised through Article 469A of the Code of Organization and Civil Procedure and consists of a constitutional right to petition the courts to inquire into the validity of any administrative act or declare such act null, invalid or without effect. Recourse to judicial review is through the regular courts (i.e., the court of civil jurisdiction) assigned two or three judges or to the Administrative Review Tribunal and must be based on the following: that the act emanates from a public authority that is not authorized to perform it; or that a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or that the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or as a catch-all clause, when the administrative act is otherwise contrary to law.

There have been calls to reform certain aspects of the process. Changes have been recommended with regard to the role of the attorney general who is the chief prosecutor but also acts as a legal adviser to the government. These two roles would be decoupled and instead an individual would serve as an independent prosecutor general and a second individual would take on the role of the attorney general, acting as the government’s advocate. The process through which court experts are chosen should also be revised to be more transparent.

Both the 2013 and 2015 EU Justice Scoreboard ranked Malta’s judicial system the least efficient in the EU with regard to the duration of cases. The 2017 Justice Scoreboard noted that more cases were being dealt with, the time needed to resolve cases had fallen drastically, the percentage of resolved cases had increased and the number of pending cases had fallen. Of those surveyed, 50% rated the independence of the courts and the judiciary as good or very good, an improvement over 2016. In 2017, no judges were transferred except for by the judiciary council and there were no dismissals. In the World Economic Forum’s global ranking for 2017 on the independence and impartiality of the judiciary, Malta was ranked in 51st place among 137 states, falling from 44th place in 2016. The appointment of more judges, improved planning processes and increased use of ICT have had a visible effect on the judicial process. Increased scrutiny of the bench by the Commission for the Administration of Justice has helped increase public confidence in the courts. The number of judges as a percentage of the population remains low, indicating difficulty in finding suitable candidates to take up the post; this may be linked to inadequate salaries and or the responsibilities that judges bear. Online information on published judgments are available, but there is no online information on the preliminary stages of a case. Delays and deferments may count against the process, but have fallen in number in recent years.
Citations:
http://ec.europa.eu/justice/effecti ve-justice/files/justice_scoreboard _communication_en.pdf
http://www.t imesofmalta.com/articles/view/20130 506/local/european-commission-says- malta-judicial-reform-must-be-made- a-priority.468460
Malta with the worst record in European Union justice score board Independent 23.03.2015
http://www.timesofmalta.com/articles/view/20160411/local/european-commission-justice-scoreboard-results-welcomed.608529
The 2016 EU Justice Score board
Malthttp://www.maltatoday.com.mt/news/national/76165/maltese_perceive_judicial_independence_to_be_fairly_good#.WesFh1uCyM8a’s Justice System Times of Malta 18/04/16
Spain
The judicial system is independent and has the capacity to control whether the Spanish government and administration act according to the law. Specialized courts can review actions taken and norms adopted by the executive, effectively ensuring legal compliance. The administrative jurisdiction is made up of a complex network, including local, regional and national courts. In addition, the Constitutional Court may review governmental legislation (i.e., decree laws) and is the last resort in appeals to ensure that the government and administration respect citizens’ rights. During the period under review, a number of criminal cases related to separate scandals demonstrated that courts can indeed act as effective monitors of activities undertaken by public authorities (see “Corruption Prevention”).

Today, two important factors undermine the efficacy of judicial review in Spain. The first is the lack of adequate resources within the court system. The high number of convictions imposed by the European Court of Human Rights for violating the right to a fair trial point to systematic problems in the Spanish justice system that must be addressed by public authorities. The Executive Opinion Survey published by the World Economic Forum and similar opinion polls show that most Spanish respondents find the judicial system to be too slow. The second problem is the difficulty some judges appear to experience in reconciling their own ideological biases (mostly conservative, given their generally upper-middle-class social origins) with a condition of effective independence; this may hinder the judiciary’s mandate to serve as a legal and politically neutral check on government actions. The situation in Catalonia may have put the independence of the judiciary to the test. Several judges at various levels have been implicated and the Constitutional Court has endorsed their decisions.
Citations:
April 2017, European Commission: “2017 EU Justice Scoreboard”
http://ec.europa.eu/ju stice/effective-justice/scoreboard/ index_en.htm
Netherlands
Judicial review for civil and criminal law in the Netherlands involves a closed system of appeals with the Supreme Court as the final authority. Unlike the U.S. and German Supreme Court, the Dutch Supreme Court is barred from judging parliamentary laws in terms of their conformity with the constitution. A further constraint is that the Supreme Court must practice cassation justice – that is, its mandate extends only to ensuring the procedural quality of lower-court practices. Should it find the conduct of a case (as carried out by the defense and/or prosecution, but not the judge him/herself) wanting, it can only order the lower court to conduct a retrial. It ignores the substance of lower courts’ verdicts, since this would violate their judges’ independence.

Public doubts over the quality of justice in the Netherlands have been raised as a result of several glaring miscarriages of justice. This has led to renewed opportunities to reopen tried cases in which questionable convictions have been delivered. In 2017, new concerns emerged. A deputy minister of legal affairs openly admitted that he cut back state-supported legal assistance to ordinary citizens to achieve higher court sentences. And in the drugs- and crime-ridden province of Brabant, police, mayors and fiscal authorities directly “harass” suspects rather than pursue legal procedures, which they perceive as a time-consuming nuisance.

Whereas the Supreme Court is part of the judiciary and highly independent of politics, administrative appeals and review are allocated to three high councils of state (Hoge Colleges van Staat), which are subsumed under the executive, and thus not independent of politics: the Council of State (serves as an advisor to the government on all legislative affairs and is the highest court of appeal in matters of administrative law); the General Audit Chamber (reviews legality of government spending and its policy effectiveness and efficiency); and the ombudsman for research into the conduct of administration regarding individual citizens in particular. Members are nominated by the Council of Ministers and appointed for life (excepting the ombudsman, who serves only six years) by the States General. Appointments are never politically contentious. In international comparison, the Council of State holds a rather unique position. It advises government in its legislative capacity, and it also acts as an administrative judge of last appeal involving the same laws. This situation is only partly remedied by a division of labor between an advisory chamber and a judiciary chamber.
Citations:
Andeweg, R.B. and G.A. Irwin (2014), Governance and Politics of the Netherlands. Houdmills, Basingstoke: Palgrave Macmillan (pages 203-2011).

NRC-Handelsblad, “Een Hoge Raad die alles wegwuift is vrij nutteloos,” 22 October 2016

NRC-Handelsblad, “Teeven wilde strengere straffen via ‘afknijpen’ van rechtsbijstand,” 19 May 2017

NRC-Handelsblad, “Crisis in Brabant dreigt strafrechter in te halen,” 27 May 2017

Pieter Tops and Jan Tromp, 2016. De achterkant van Nederland.Leven onder de radar van de wet, Balans
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Bulgaria
Courts in Bulgaria are formally independent from other branches of power and have large competencies to review the actions and normative acts of the executive. In practice, however, court reasoning and decisions are sometimes influenced by outside factors, including informal political pressure and more importantly the influence of private sector groups and individuals through corruption and nepotism. The performance of the Bulgarian judicial system is considered to be relatively poor, both within the country and by the European Commission, which has regularly reported on this matter under the Cooperation and Verification Mechanism for Bulgaria.

Since December 2015, some important constitutional changes have been made that affect the structure and activity of the Supreme Judicial Council, which heads the judicial branch. The changes involve the creation of two separate panels – one overseeing judges, the other overseeing prosecutors. The Supreme Judicial Council which stepped into office in September 2017 is widely considered to be an improvement over the previous council, especially with respect to the members of the judges’ panel. It is expected that this will make courts more independent from outside influence.
Citations:
European Commission (2017): Report from the Commission to the European Parliament and the Council on Progress in Bulgaria under the Co-operation and Verification Mechanism. COM(2017) 750 final, Brussels (https://ec.europa.eu/info/sites/info/files/comm-2017-750_en_0.pdf).
Japan
Courts are formally independent of governmental, administrative or legislative interference in their day-to-day business. The organization of the judicial system and the appointment of judges are responsibilities of the Supreme Court, so the appointment and the behavior of Supreme Court justices are of significant importance. Some critics have lamented a lack of transparency in Supreme Court actions; moreover, the court has an incentive to avoid conflicts with the government, as these might endanger its independence in the long term. This implies that it tends to lean somewhat toward government positions so as to avoid unwanted political attention. Perhaps supporting this reasoning, the Supreme Court engages only in judicial review of specific cases, and does not perform a general review of laws or regulations. Some scholars say that a general judicial-review process could be justified by the constitution.

The conventional view is that courts tend to treat government decisions quite leniently, although recent evidence is more mixed. In 2017, the Supreme Court ruled that the use of GPS signals to locate a suspect or his belongings requires a warrant; the case, on which lower courts were divided, had involved police in Osaka doing so without a warrant. On the other hand, in 2016 the Supreme Court let a lower court ruling stand according to which Muslims can be surveilled because of their religion.
Citations:
Law Library of Congress (USA), Japan: Supreme Court Rules GPS-Based Investigation Requires Warrant, Global Legal Monitor, 21 March 2017, http://www.loc.gov/law/foreign-news/article/japan-supreme-court-rules-gps-based-investigation-requires-warrant/

Matt Payton, Japan’s top court has approved blanket surveillance of the country’s Muslims, The Independent, 29 June 2016, http://www.independent.co.uk/news/world/asia/muslims-japan-government-surveillance-top-court-green-lit-islamaphobia-a7109761.html
Romania
Romania’s judiciary has become more professional and independent over time, as shown by the various indictments and convictions of prominent politicians and businessmen and the increasing assertiveness of the Supreme Council of Magistrates (CSM). The integrity of Romania’s judiciary was tested in the period of review when the government coalition tried to push through controversial amendments to the Criminal Code as well as a broader judicial reform package threatening the independence of the courts. The CSM has strongly criticized the reforms. In September 2017, 4,000 (out of a total of about 7,000) judges signed a letter asking the government to withdraw its reform package.
Citations:
European Commission (2017): Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism. COM(2017) 751 final, Brussels (https://ec.europa.eu/info/files/progress-report-romania-2017-com-2017-751_en).
Slovakia
The Slovakian court system has for long suffered from low-quality decisions, a high backlog of cases, rampant corruption and repeated government intervention. Positive changes brought about from within the judiciary after the disempowerment of Stefan Harabín, a controversial figure who had held major positions in the Slovak judiciary for some time. Lucia Žitňanská, the minister of justice in the third Fico government, has sought to foster transparency and fight corruption in the judicial system. Among other things, the ministry has started to create a new database to be used for improving the training of justices and their allocation to the courts. The Constitutional Court has generally operated independently of the executive branch of government. However, its performance has suffered from a high backlog of cases, aggravated by a long-standing stalemate between President Kiska and parliament over the appointment of new justices. In its most important decision in the period under review, the court ruled that the amnesties granted by then-prime minister Mečiar in 1998 were not in line with his duty of restraint. This ruling has enabled the criminal prosecution of Mečiar for the kidnapping of Mr. Kováč, Jr., the son of the former president.
Citations:
Ľalík, T. (2017): Tracing constitutional changes in Slovakia between 2008-2016, in: Hungarian Journal of Legal Studies 58(2): 117-138.
 
Courts are independent, but often fail to ensure legal compliance.
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Croatia
Croatia has among Europe’s highest per capita number of judges and court personnel. The independence and quality of the judiciary were a major issue in the negotiations over EU accession. Reforms targeting improved judicial independence introduced in early 2013 changed the process by which justices of the highest regular courts (Supreme Court, High Commercial Court, High Misdemeanor Court and High Administrative Courts) were appointed. Justices are now selected by a formally independent council (the State Judicial Council, or SJC) that consists of their judicial peers (nominated and elected in a process in which judges of all courts participate), two legal experts from academia (elected by their peers) and two members of the Sabor (elected by a parliamentary majority). The Milanović government carried out a reform of the judiciary in 2014 and 2015 that succeeded in substantially reducing the number of courts and in overhauling misdemeanor law. Every county now has a single municipal court, misdemeanor court and municipal State Attorney’s Office. Attempts at a further reform of the judiciary by Ante Šprlje, the MOST-nominated minister of justice in the first Plenković government, were abandoned after his dismissal and the change in the governing coalition in May 2017. During the period of review, a number of prominent individuals accused of crimes were acquitted, which underscores the Croatian court’s lack of effectiveness and independence.
Mexico
The Supreme Court, having for years acted as a servant of the executive, has become substantially more independent since the transition to democracy. Court decisions are less independent at the lower level, particularly at the state and local level. At the local level, corruption and lack of training for court officials are other shortcomings. These problems are of particular concern because the vast majority of crimes fall under the purview of local authorities. There is widespread impunity and effective prosecution is the exception, rather than the rule.

Mexico is currently in the process of a major reform of the justice system. Specifically, it is seeking to transition from a paper-based inquisitorial system to a U.S.-style adversarial system with oral trials. In 2016, the legal reform took a major step forward. However, implementation of the new system will most likely take a generation since it involves the retraining of law enforcement and officers of the court. So far, law enforcement has often relied on forced confessions, rather than physical evidence, to ensure the conviction of suspects. To make the new system work, the investigative and evidence-gathering capacity of the police will have to be significantly strengthened. Whether this is feasible in the context of an ongoing security crisis remains to be seen. Progress throughout 2017 has been limited, and implementation is significantly behind schedule.

Overall, the courts do a poor job of enforcing compliance with the law, especially when confronted with powerful individuals. The most prominent recent example is the inability of law enforcement to arrest several former governors wanted for corruption and money laundering.
Citations:
Angel, A. (11 July 2017) “Seis carencias que tiene el nuevo sistema penal acusatorio, según expertos” Blogpost available at http://www.animalpolitico.com/2017/07/clave-nuevo-sistema-penal/.
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Hungary
The independence of the Hungarian judiciary has drastically declined under the Orbán governments. While the lower courts still make in most cases independent decisions, the Constitutional Court, the Kúria (Curia, previously the Supreme Court) and the National Office of the Judiciary (OBH) have increasingly come under government control and haven often been criticized for making biased decisions. The same goes for Péter Polt, the Chief Public Prosecutor and a former Fidesz politician, who has persistently refrained from investigating the corrupt practices of prominent Fidesz oligarchs. As the Alliance of Hungarian Judges (Magyar Bírói Egyesület) has repeatedly criticized, OBH President Tünde Handó has no formal power to promote judges to a higher position, but has in fact used her position to influence decisions. As a result of the declining independence and quality of the Hungarian judiciary, more and more court proceedings have ended up at the European Court of Human Rights (ECHR) in Strasbourg. Hungary is among the countries generating the most cases, and the Hungarian state often loses these lawsuits.
Poland
Polish courts are relatively well-financed and adequately staffed, but have increasingly come under government influence. In 2017, the takeover of the Constitutional Tribunal in the PiS government’s first year in office was followed by a series of reforms that aimed at limiting the independence of the courts. These reforms sparked massive international protests and were only slightly watered down after President Duda vetoed two out of four laws. The laws have given the minister of justice far-reaching powers to appoint and dismiss court presidents and justices, and have given the Sejm the right to select the 15 members of the National Council of the Judiciary by a simple majority. In addition, the composition of both the National Council of the Judiciary and the Supreme Court will soon change. Incumbent members of the National Council will lose their positions in March 2018, while the terms of the Supreme Court justices have been reduced indirectly by lowering the retirement age from 70 to 65 years. These legal changes, some of which are clearly unconstitutional, were accompanied by the dismissal of dozens of justices and a media campaign against the judiciary financed by public companies.
Citations:
Koncewicz, T. T. (2017): Farewell to the Separation of Powers – On the Judicial Purge and the Capture in the Heart of Europe, Verfassungsblog, July 19, 2017 (http://verfassungsblog.de/farewell-to-the-separation-of-powerson-the-judicial-purge-and-the-capture-in-the-heart-of-europe):

Machińska, H., R. Vetter (2017): Die PiS und der demokratische Rechtsstaat. Polen-Analysen Nr. 204, Bremen (http://www.laender-analysen.de/polen/pdf/PolenAnalysen204.pdf).
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Turkey
The constitution (Article 9) emphasizes judicial impartiality and independence. Moreover, the constitution (Article 125) states that all government administrative decisions and actions are subject to judicial review. Developments during the review period demonstrated that the Constitutional Court plays a vital role in safeguarding judicial review in Turkey.

According to the amended constitution (Article 105), a parliamentary investigation can be opened against the president if an absolute majority in the parliament votes that the president likely committed a crime. Criminal investigations against the general chief of staff and other army commanders can be initiated with the prime minister’s approval. Moreover, the trial of the under-secretary of the National Intelligence Service (MİT) is subject to the approval of the president. Acts within the president’s area of competence, decisions of the Supreme Military Council (excluding acts relating to promotion or retirement) and decisions of the Council of Judges and Public Prosecutors (except for dismissals of public officials) are open to judicial review.

The Turkish judiciary is currently under severe pressure, given the substantial increase in cases. The effectiveness of the judiciary in the aftermath of the attempted coup was further compromised by the dismissal of 4,000 judges, prosecutors and judicial staff. In order to fill the large number of vacancies in the judiciary, the government launched 4,000 judges and 2,000 prosecutor cadres in mid-2017. However, independent observers state that judicial performance has been slowing down. In January 2017, the Court of Cassation had 804,344 appeal files to be reviewed, while the Council of State had 32,298 first instance court files and 219,977 appeal files. Since 2015, no data about the number of files before administrative courts has been available.

Judicial independence and impartiality has been undermined by the contradictory and unclear court indictments concerning several prisoners. The Cumhuriyet trial started on 11 September 2017, 300 days after executives and journalists of the Cumhuriyet daily newspaper were detained. The judiciary should be fair and neutral in politically oriented cases. However, since 2007, politicization of the judiciary has been increasing. Criminal investigations are not conducted effectively. Prosecutors’ indictments do not provide concrete, reliable and objective documentation. Delays and postponements in trials are unreasonably widespread. Finally, courts are known to unfairly discriminate.
Citations:
European Commission, Turkey 2016 Report, Brussels, 9.11.2016, http://ec.europa.eu/enlargement/pdf/key_documents/2016/20161109_report_turkey.pd f (accessed 1 November 2016).
European Commission for Democracy Through Law (Venice Commission) Turkey Opinion on the Amendments to the Constitution Adopted By the Grand National Assembly on 21 January 2017 and to Be Submitted to A National Referendum on 16 April 2017, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-ad(2017)00 5-e (1 November 2017)
World Justice Project, Rule of Law Index 2016, https://worldjusticeproject.org/sites/default/files/documents/RoLI_Final-Digital _0.pdf (accessed 1 November 2017)
WEF, The Global Competitiveness Report 2017–2018, 2017, http://www3.weforum.org/docs/GCR2017-2018/05FullReport/TheGlobalCompetitivenessReport2017%E2%80%932018.pdf (accessed 1 November 2017)
T.C. Yargıtay Başkanlığı 2016 Yılı Faaliyet Raporu, February 2017, https://www.yargitay.gov.tr/sayfa/faaliyet-raporu/documents/2016_faaliyet.pdf (accessed 1 November 2017)
T.C. Danıştay Başkanlığı, 2016 Yılı İdari Faaliyet Raporu, http://www.danistay.gov.tr/upload/17_03_2017_123330.pdf (accessed 1 November 2017)
“Askeri Yargıtay ve AYİM kaldırıldı,” Milliyet, 29 April 2017, http://www.milliyet.com.tr/askeri-yargitay-ve-ayim-kaldirildi-gundem-2441186/ (accessed 1 November 2017)
HSYK 5000 hakim ve savcı sınavını incelemeye aldı, 8 November 2015, http://zete.com/hsyk-5000-hakim-ve-savci-sinavini-incelemeye-aldi/ (accessed 10 November 2015)
“CHP’den 1. yılında OHAL raporu: 50 bin tutuklu, 111 bin ihraç,” Cumhuriyet, 20 July 2017, http://www.cumhuriyet.com.tr/haber/turkiye/785737/CHP_den_1._yilinda_OHAL_raporu__50_bin_tutuklu__111_bin_ihrac.html (accessed 1 November 2017)
“2 bin hakim adayı ve 4 bin hakim kadrosu ihdas edildi,” 25 August 2017, https://www.memurlar.net/haber/690129/2-bin-hakim-adayi-ve-4-bin-hakim-kadrosu-ihdas-edildi.html (accessed 1 November 2017)
“Journalists Outside Initiative Calls for Solidarity for Next Hearing in Cumhuriyet Trial,” 28 August 2017, https://bianet.org/english/media/189444-journalists-outside-initiative-calls-for-solidarity-for-next-hearing-in-cumhuriyet-trial (accessed 1 November 2017)
 
Courts are biased for or against the incumbent government and lack effective control.
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