RULE OF LAW

There is a strong tradition of independent judicial review of executive decisions. This has stemmed from the evolution of the administrative law which has spawned an administrative courts process, by which complainants may seek a review of executive action.

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 if judges are appointed by the government. 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 the Supreme Court.

All government bodies are obliged to comply with the Basic Law. The structural principles of Germany’s constitutional jurisdiction can be described by the term “specialized” (cf. Kneip 2008). Specialized courts review state actions, for example. According to the Global Competitiveness Report 2009 – 2010, Germany’s judicial branch acts independently of influence by government members, citizens or companies (achieving a report score of 6.4 out of 7) (The Global Competitiveness report 2009 – 2010: 350). This remarkably high score is an expression of the significance of the judicial branch in Germany. Judicial independence on all levels is secured by the Basic Law. In addition to the Federal Constitutional Court, there are five supreme federal courts in Germany: the Federal Court of Justice as the highest court for civil and criminal jurisdiction, the Federal Administrative Court, the Federal Finance Court, the Federal Labor Court, and the Federal Social Court. This division of tasks guarantees highly specialized independent courts with manageable workloads, and thus fulfills the requirement of a differentiated organization. Professionalism is generally secured by well-established procedures for legal education, although the system’s scholastic backwardness and reluctance to agree upon Europe-wide education standards is sometimes subject to criticism (Zeit 2009). Germany’s Federal Constitutional Court (FCC), which is not subject to supervision by any ministry, has extensive powers (Kneip 2008: 646). The FCC ensures that all state institutions obey the Basic Law and act particularly to apply the fundamental rights. The court acts only when an appeal has been made, but can declare a law unconstitutional and has exercised this right several times. In case of conflicting opinions, the decision made by the FCC is final; all other governmental and legislative institutions are bound to comply with its verdict. The FCC’s most important procedures are as follows: If a measure, administrative body action, court verdict or law is believed to infringe a fundamental right, anyone can lodge a constitutional complaint. In addition, courts, the federal government, a state government or one-third of the members of the Bundestag can file a complaint if they consider a statute to be unconstitutional. Furthermore, the Federal Constitutional Court adjudicates in cases of constitutional dispute regarding mutual constitutional rights, the duties of constitutional bodies, or between the federal government and the federal states. In such cases, only the federal president, the Bundestag, the Bundesrat or the federal government can appeal.
The work of the FCC thus has tremendous political implications. For example, the court instructed the parliament to ensure that the Bundestag and the Bundesrat had sufficient participation rights in European lawmaking and treaty amendment procedures. In another ruling, the FCC decided that provisions concerning the standard social benefits did not comply with constitutional requirements. The justices unanimously criticized the method of calculating the subsistence minimum benefit payment as insufficiently precise. Hence, the FCC ordered a revision of the so–called Hartz IV legislation by the end of 2010.
In 2008 and 2009, a total of 12,886 new cases were brought forward (for annotated figures, see website of the Federal Constitutional Court). Two of these were concerned with complaints regarding electoral proceedings, eight dealt with constitutional disputes between federal bodies, two involved review of statutes after application by a constitutional body, 80 reviewed statutes following judicial referral, 241 were temporary injunctions and 12,553 were constitutional complaints. In the judicial year 2009, a total of 128 constitutional complaints were lodged against sovereign acts of federal, federal state or European Union authorities. While these figures indicate that most of the cases heard were appeals against judicial decisions or legal provisions, it is also obvious that the supreme institution of the judicial branch controls whether government and administration act in conformity with the law.
If there are problems with the courts monitoring the rule of law these are related to resources and the duration of processes. The courts are overloaded, which leads among other problems to lengthy proceedings. In 2008, 43% of proceedings in front of the administrative courts were concluded within six months and 65% within 12 months. However, the differentiation of proceedings, allowing for urgent decisions, guarantees that these problems do not affect the power of the FCC to effectively oversee public administrative and legislative compliance with the Basic Law.

New Zealand does not have a constitutional court with concrete or abstract judicial review. Following from this, parliamentary decisions cannot be declared unconstitutional. However, courts can ask the House of Representatives to clarify clauses. There is an extended and professional hierarchical judicial system with the possibility of appeals. Since 2003 the highest court is 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. A specific aspect is the system of Maori land courts, which hear 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.

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, among other things, central aspects of the criminal law and the administration of justice.
Norwegian courts do not attach the same weight to judicial precedents as do members of 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. Directly below the Supreme Court is the High Court. The majority of criminal matters are settled summarily in the so-called 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 the internal organization are regarded as high.

The Swedish system of judicial review functions well. In contrast to, for example, Germany or the United States, judicial review in Sweden is not so elaborate and central to the legislative process. Nevertheless, under the Swedish constitution, courts are allowed to ignore legislation, which they find to be inconsistent with the constitution. In addition, Sweden has a system of judicial preview where the Council on Legislation (“lagrådet”) is to be consulted on all legislation that potentially or actually relates to constitutional matters. The institution’s review (or preview) goes beyond that assignment and nowadays includes an overall assessment of the quality of the proposed legislations. The government and the parliament have the right to ignore the Council’s advice.

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, however. 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.

Judicial review of administrative action is well established in the U.S. system, either through the general court system or special administrative courts. All decisions are subject to review by the U.S. Supreme Court. Court decisions are accepted as authoritative, including critical decisions such as the highly controversial decision of the Supreme Court that handed George W. Bush the victory in the 2000 presidential election. Decisions that are reached on statutory grounds can be reversed by amending the relevant statutes; decisions that are reached on constitutional grounds can be reversed only by amendment to the Constitution, almost never a feasible option. The statutes establishing programs and agencies generally specify some standards for judicial review – calling for greater or lesser deference to the agency, and on the other hand, requiring greater or lesser justification for the agency decisions. The standards often require elaborate showings of fact, resulting in lengthy, data-intensive decision processes. Because of their considerable policy-making authority, the process of appointing and confirming federal judges is politically highly contentious, and deep ideological division among the Supreme Court judges creates controversial decisions such as the recent decision on the role of corporations and unions in campaign finance, a decision that President Obama criticized sharply in his State of the Union Address. But such divisions do not seem to hamper the general acceptance of Supreme Court decisions, even in such cases as Bush vs. Gore, which was accepted with equanimity among the population at large.

There are few examples in Canada where the courts do not ensure that governments act in conformity with the law.

Clearly, the predominance of the rule of law is weakened by the lack of a constitutional court in Finland. The need for one has been discussed from time to time, but plans have always been blocked by leftist parties. The parliament’s Constitutional Law Committee has in fact acquired a position that resembles that of a constitutional court in other countries. The implication of this is that parliament is controlled by an inner-parliament, and this makes the Constitutional Law Committee arrangement a poor compensation for a regular constitutional court. Also, although courts are independent in Finland, they do not decide on the constitutionality and the conformity with law of acts of government and administration. Instead, the supreme supervisor of legality in Finland is the Office of the Chancellor of Justice. Together with the parliamentary ombudsman, this office supervises authorities’ compliance with the law and the legality of the official acts of the government, its members and of the president of the republic. The chancellor is also charged with supervising the legal behavior of courts, authorities and civil servants.

The French judicial system is characterized by a dual structure: Civil and penal courts act under the control of the Supreme Court of Appeals (Cour de Cassation); administrative courts are headed by the Council of State (Conseil d’Etat).
Historically, civil and penal courts have acted in the shadow of the executive and their autonomy has always been a matter of concern and conflicts. On the opposite, administrative courts, in spite of being born out of the advisory councils of the ancien régime, have been able to secure little by little full independence. Since 1958, a quasi-constitutional court, the Constitutional Council (Conseil Constitutionnel), has been added to the edifice. Over the last years, this Council has seen its role extended and has gained more autonomy and impact. The last constitutional reform further increased its powers. Formerly, the Council was only entitled to check legislation immediately after its adoption at the request of the opposition, but had no possibility to examine the constitutionality of past laws. This changed with a 2008 revision: Since March 1, 2010, any citizen can raise the 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. Several dozens of requests have immediately been introduced, in particular with relation to the issue of police custody.

The courts – district courts as well as the Supreme Court – operate with some notable exceptions free of pressure from either the government or powerful groups and individuals. The jurisdiction of the Supreme Court to rule on whether the government and administration have acted in conformity with the law is beyond question. Even so, opinion polls in recent years have shown that only about 30% of the public expresses confidence in the judicial system. Judges are appointed by the minister of justice and human rights (previously, the minister of justice and ecclesiastical affairs). All vacancies are advertised, and the hiring procedure is transparent. However, there have been cases in which the minister’s selections of Supreme Court or district court judges have caused controversy. In at least two recent cases, the minister of justice was accused – and in one case was subsequently reprimanded in court – for favoring candidates who were close relatives of former Prime Minister Davíð Oddsson (1991 – 2004), one in the Supreme Court (Oddsson’s nephew) and one in the District Court of North East Iceland (Oddsson’s son). Virtually all of the country’s 52 judges were appointed by justice ministers from the two parties that governed Iceland in coalition from 1995 to 2007. From 1927 to the present, with the exception of six years, the minister of justice came from one of those two parties, which now find themselves together in opposition for the first time.
More broadly, the separation of powers in Iceland can be considered as somewhat weak. The executive branch, led by cabinet ministers, drafts most of the legislation passed by the government majority in the parliament. In that sense, the parliament is weak. The above-cited example of the recruitment procedure for judges is a further example of the strength of the executive power in Iceland, coming at the expense of the judicial and legislative branches. In 2009, Iceland applied for membership in the European Union. In late 2009, the EU offered a reaction to some of the information provided about the state administration and the political system. One of the remarks offered by the EU concerned the recruitment procedures for judges.

The independence of the judiciary is jealously defended. Indeed, a somewhat dysfunctional example of the strictness with which this independence is guaranteed by the constitution arose in 2010, when the government attempted to impose a pay cut on the judiciary in line with all public service workers. Article 36 of the constitution enables the parliament (Oireachtas) to regulate “the remuneration, age of retirement and pensions” of the judiciary. However, to preserve judicial independence from influence by government, Article 35.5 states that “the remuneration of a judge shall not be reduced during his continuance in office.” This second provision was invoked to block any reduction in judicial pay, even though such a reduction would have been part of a national policy on public sector pay, and in no way represented a targeting or victimization of any individual judge or group of judges for their views or behavior. For the same reason, in the spring of 2009, the government did not apply a newly introduced public-sector pension levy to judges. Judges have been invited to submit to pay reductions voluntarily.
There has been some tendency recently to pass minimum-sentencing legislation for certain crimes. While this is viewed in some quarters as a possible encroachment on judicial independence, in reality this legislation appears to have had little impact.

The Austrian constitution guarantees that any executive action can be reviewed and annulled by the Administrative Court or Constitutional Court.
The process of appointing judges follows the principle of self-recruitment (with the exception of the Constitutional Court), in which judges nominate judges. The process of self-recruitment is sometimes criticized because it might create a self-appointed class of mandarins above parliament and government. But opinion generally favors this system as the best possible means of guaranteeing judicial independence.
The only instance of direct dependence on the government is the case of public prosecutors who are by training judges but also tasked with executing the law in the government’s name and thus bound to the instructions of the government. In some recent cases it became evident that the government was passively or even actively preventing the prosecution of members of the political elite, such as the Prime Minister of Carinthia, Gerhard Dörfler (BZÖ).

The courts’ independence has been consolidated since the return to democracy in 1990, but military courts still often participate in court cases involving military personnel and terrorists.

The existence of an administrative jurisdiction and the Constitutional Court guarantees an independent review of executive and administrative acts. The Administrative Court and the Administrative Court of Appeals are very busy. The annual report covering the period from September 2007 to September 2008 includes 945 judgments at the Administrative Court and 377 judgments at Administrative Court of Appeals, indicating that judicial review is actively pursued in Luxembourg.

Judicial review for civil and criminal law in the Netherlands involves a closed system of appeals with the Supreme Court as the final authority. The Dutch Supreme Court, however, unlike the U.S. 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, it is mandated with 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. Recently, 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 re-open tried cases in which questionable convictions have been delivered). Appointments to the Supreme Court are for life (judges generally retire at 70). Appointments are in fact judicial co-optations, determined by seniority and (partly) peer reputation. Formally, however, the Second Chamber of Parliament selects the candidate from a shortlist presented by the Supreme Court. In selecting a candidate, parliament is said to never deviate from the number one candidate. Except for the re-opening of cases with questionable convictions, there is rarely any publicity regarding the Supreme Court’s work.

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 cabinet and appointed for life (excepting the ombudsman, who is serves six years only) by parliament. 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, which has to do with the fact that several members have double appointments.

The independence and performance of the courts differ among the tiers of the court system. The Constitutional Tribunal, the Supreme Court and the State Tribunal (which decides on violations of the constitution by top officials) generally work well and largely fulfill their functions of monitoring the executive. The Tusk government further strengthened the separation of powers by abolishing the provision that the minister of justice also acts as public prosecutor general. Unlike the preceding PiS government, the Tusk government also largely respected the independence of the judiciary. However, the lower courts continue to underperform. They are subject to inefficient and time-consuming procedures, prone to corruption, and thus suffer a poor reputation.

The South Korean judiciary is highly professionalized and fairly independent, though not totally free from governmental pressure. In particular, state prosecutors are from time to time ordered to launch investigations (especially into tax matters) aimed at intimidating political foes or other actors not toeing the line. The Constitutional Court has underlined its independence through a number of remarkable cases in which courts have ruled against the government. For example, a court acquitted the blogger “Minerva” (see Media Freedom), who was accused by the government of damaging the nation’s credibility and destabilizing the currency market. In another case, the makers of MBC’s PD Diary television program, which led to the protests against U.S. beef imports, were found not guilty of defamation. Courts have also thrown out many (but not all) of the cases against protesters accused of organizing illegal protests. However, there have also been cases that call the independence of the courts into question. For example, Korean Supreme Court Justice Shin Young-chul used his position to influence the decisions of subordinate courts during the trials against protesters who had demonstrated against the import of U.S. beef in 2008. Justice Shin was referred to the court’s ethics commission, but did not step down.
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. However, in cases having to do with ministerial and government decrees, and with regard to the decisions of lower courts, the Supreme Court has also demanded the ability to rule on acts’ constitutionality. This has several times contributed to legal battles between the Constitutional and Supreme courts.
Nevertheless, the Constitutional Court has become a very effective guardian of the constitution since its establishment in 1989.

In February 2010, by a 5-4 vote, South Korea’s Constitutional Court upheld the constitutionality of the death penalty. Still, the court cannot be considered to hold an exclusively conservative judicial ideology or values, but rather aims to decide cases based on the merits. This was demonstrated in the court’s ruling of May 27, 2010, in which it stated that “human embryos left over from fertility treatment are not life forms and can be used for research or destroyed.” Strongly criticized by many Christian churches and denominations, this ruling saved South Korea’s thriving stem-cell research sector.

In the United Kingdom, there is no written constitution, no constitutional court, and therefore no judicial review comparable to that in the United States or in most continental European countries. Courts therefore have no power to declare legislation adopted by Parliament to be unconstitutional. However, courts have in recent years become more assertive in scrutinizing executive action to prevent public authorities from acting beyond their powers. Four grounds for judicial review can be distinguished in the United Kingdom: illegality (if public authorities take action for which they have no statutory authority), procedural impropriety (if statutory procedures have not been followed), irrationality, and non-proportionality (the latter derived from EU legal doctrine).
The exercise of judicial review by courts has seen considerable change over the last decades, and it is likely that this trend will continue. But it is more rooted in a specific legal culture that considers executive power to be largely insulated from legal action. Nevertheless, the United Kingdom has a sophisticated and well-developed legal system, which is highly regarded internationally and is based on the regulated appointment of judges.

Public inquiries are occasionally undertaken when there is concern about government action, an example being the wide-ranging inquiry into the Iraq war that remained in progress at the close of the review period. However, governments are typically reluctant to grant such inquiries, and often procrastinate.

The Constitutional Court (called the cour d’arbitrage or arbitragehof until 2007) is responsible for reviewing the validity of laws adopted by the executive. The Council of State (conseil d’état or raad van state) is the highest legal body that reviews the validity of administrative acts.
These courts operate independently from the government and have the power to condemn or reverse executive decisions. For instance, in March 2010 the Council of State invalidated the decision of the Flemish government to ban all visible religious symbols at school, and forced the federal administration to allow a teacher suspected of “sympathy with terrorism” to teach Dutch to prisoners. The same month, the Court declared a controversial €250 million tax by the federal government against electricity producers to be legal.
The Council of State is split in two chambers, one Dutch-speaking and one French-speaking. These distinct chambers are separately responsible for judging administrative acts made by regions (federate entities), which often makes it difficult for the council to act independently of the government when the case involves language policy or the balance of powers between different government levels.
The nomination procedures of high magistrates, however, are conducted in a way that political influence or political patronage is marginalized. What remains a concern is the effective independence of magistrates once they are in office, in the context of tight judicial budgets and linguistic struggles within the state apparatus.

The Czech courts have generally operated independently of the executive. The most active control on executive actions is the Constitutional Court, which has triggered annoyance with its judgments across much of the political spectrum. Its decisions often come only after close votes and some have been surprising. It has been accused both of political bias and of setting itself up as a third chamber of parliament with a power of veto. In the period under review, the court’s most controversial decisions included its rejection of early elections in September 2009 and its judgment on the Lisbon Treaty in November 2008, in which it rejected President Klaus’s view that signing the treaty would be in conflict with the Czech constitution. Major questions over the objectivity and independence of the judiciary were raised by the fate of long-standing accusations of corruption against Jiří Čunek, the Christian Democrat deputy prime minister in the Topolánek government from April 2008 to January 2009. He was accused of accepting a bribe in February 2007, but continued in office while the prosecutor was changed to one who was willing to drop the charges. Although nothing was proven, there was evidence of possible direct political links, and dropping the charges was very helpful for the government in maintaining its narrow parliamentary majority. The issue remained under media scrutiny into 2010, as various courts considered whether it had been acceptable to change prosecutors. The implication is of a legal system that is partially politicized, with judges making decisions on the basis of political opinions and in the interests of political allies. Other cases show evidence that judges tempted by personal gain have offered a shield to corruption. All of this is under some control from other parts of the legal system, however.

Hungarian courts act independently from government. This applies particularly to the Constitutional Court, which has broad jurisdictional range, and traditionally has enjoyed high esteem within and outside Hungary. In the last years, however, a number of controversial judgments, most notably the Court’s decision to allow the anti-reform referendum in March 2008, have shaken its professional reputation. The Office of the Prosecutor General has also been criticized for favoring Fidesz because of its selective treatment of corruption issues. The lower courts suffer from long, slow and relatively expensive proceedings.

The Italian constitution provides for a strong and independent system of judicial controls. At the highest level, the Constitutional Court ensures the conformity of laws with the national constitution. It has often rejected laws promoted by the current and past governments. Access to the Constitutional Court is reserved to 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.” Ordinary courts are independent from the government, and are able to effectively review and sanction government actions. The recruitment and careers of judges are overseen by the Superior Council of the Judiciary (Consiglio Superiore della Magistratura), a representative body elected by the members of the judiciary without significant influence by the government. However, the action of the judiciary is undermined by the fact that courts are often overloaded, and judicial procedures are lengthy and cumbersome as a result. The role of the judiciary has been also weakened by the climate of extreme conflict with the Berlusconi government, leading to reciprocal accusations of politically biased prosecutions, and creating obstacles to the functioning of the justice system.

Courts are considered to be independent of government, administrative or legislative interference in their day-to-day business. The organization of the judicial system and the appointment of judges falls under the supervision of the Supreme Court, so the appointment and the behavior of Supreme Court justices is of ultimate importance. While a lack of transparency has been lamented, the Supreme Court has an incentive not to commit any major offence, because this would endanger its independence. Still, this implies that it leans somewhat toward the government´s position so as to avoid igniting any scrutiny of its strong role.

In line with this reasoning, the Supreme Court engages only in concrete judicial review of specific cases, not in general review of laws or regulations. Some scholars say that the constitution could allow room for a general judicial review process.

A major recent reform was been the introduction of lay judges (saiban-in). This system was actually implemented during the reporting period, and the first cases handled by both professional and lay judges were widely reported in the media in 2009.

The judiciary is independent and is fairly active in seeking to ensure that government actions conform to the law, albeit unevenly so. The most relevant body in this respect is the Court of Auditors (Tribunal de Contas). This is a constitutionally prescribed body, and is defined as a court in the Portuguese legal system. It audits public funds, public revenue and expenditure, and public assets, with the aim of ensuring that “the administration of those resources complies with the legal order.” The Court of Auditors has become increasingly active in auditing and controlling public accounts. Assessment by other bodies is perhaps less effective, largely due to the slow nature of the legal system. The highest body in the Portuguese judicial system is the Supreme Court, constituted by four civil chambers, two criminal chambers, and one labor chamber. There is also a disputed claims chamber, which tries appeals against Higher Judicial Council decisions. The Supreme Court decides appeals on matters of law and not on the facts of a case, and has a staff of 60 justices (conselheiros). There are also district courts, appeals courts, and specialized courts, as well as a nine-member Constitutional Court that reviews the constitutionality of legislation. In total, there are more than 500 courts in Portugal and 3,000 judges. Even so, there are shortages of judges in comparison to the number of cases outstanding, and delays in reaching judicial decisions continue to be a problem.
In late 2009, there were some indications that the government was seeking to influence the judicial system. It must be noted that the judges are nominated by the political parties in a ratio based on the parties’ electoral strength, and those nominated by the PS have mainly voted in favor of the prime minister and the government’s policies, while others have voted against the government.

The Spanish judicial system is independent and has the capacity to make governmental and administrative activity take place according to the law. The administrative jurisdiction (jurisdicción contencioso-administrativa) regulated by the constitution and Law 29/1998) allows specialized courts to review actions taken by the government and administration, effectively ensuring legal compliance.
The administrative jurisdiction is made up of a complex network, including local courts (in the 52 provinces), regional courts (the administrative chamber of the highest courts of justice in the 17 autonomous communities), and national courts (the administrative chamber of the National High Court for special cases, and the administrative chamber of the Supreme Court, which is the last level of appeal). In addition, the Constitutional Court may review governmental legislation (i.e., decrees) and is the last resort in appeals to ensure that the government and administration respect citizens’ fundamental rights.
Nevertheless, courts have arguably shown some bias vis-à-vis the incumbent government. Because of the confrontational style of Spanish policy-making and the fact that judges may be independent but are not ideologically neutral, the judiciary’s mandate to serve as a legal check on government actions can at some points be deemed politically obstructive. That is to say, conservative judges who side with the opposition PP party may be eager to frustrate the actions of a socialist government. For its part, the government has reacted against this judicialization of politics with a growing politicization of justice.

Mexico’s Supreme Court is a serious and respected body. It has had to resolve complex issues such as abortion rights and homosexual marriage, and has done so in ways that have been widely regarded as legitimate. It plays an important and complex role in resolving jurisdictional disputes involving federal, state and local governments. If asked to judge the nation’s judicial system solely on the basis of the Supreme Court, a very high mark would be warranted. However, lower courts do not generally perform to such a high standard, and are sometimes capable of being corrupted. In a number of subnational states, one has the impression that the judicial process is often controlled by the executive.

Greek courts can review actions taken and norms adopted by the government. Administrative courts, which are entrusted with reviewing executive acts, are differentiated and stratified into first- and second-instance courts, spread throughout the country. A third-instance court, the Council of the State, serves as an appellate court. Judges are trained not only in the law faculties of universities located in Athens, Thessaloniki and Komotini, but also in a post-graduate, specially designated school for judges based in Thessaloniki. Proceedings are rational, and there is considerable professionalism in the judiciary and court administration.
What is lacking, however, is a larger pool of resources (administrative staff, judges, infrastructure) and better management to cope with the large number of cases under review. As a consequence of understaffing, lack of funds and insufficient infrastructure, reaching a decision on an appeal made by a citizen against a government body may take years. The situation is grave in the larger urban centers (Athens, Piraeus and Thessaloniki) where more than half of the population lives and where many cases have been accumulated. For example, in Athens it takes approximately five years between the filing of an appeal related to a simple taxation issue and the issuing of a decision by a first-instance administrative court.
Another problem is the sporadic delay in government conformation to the court’s decision. Citizens and businesses find themselves sometimes at a loss, having won a legal battle in court but discovering that civil servants and their politically appointed supervisors (general secretaries of ministries and ministers) simply delay compliance or even refuse altogether to comply with the court’s decision.

Under the Fico government, government interference with the courts’ independence increased. In particular Minister of Justice Minister Štefan Harabin, who became Supreme Court Chair in 2009, exerted strong pressure on the judiciary. This ranged from public comments on the performance of particular courts and justices, attempts to directly influence individual court decisions, to the initiation of disciplinary proceedings against and the suspension of inconvenient justices. While most justices have withstood Harabin’s interventions, the latter have infringed upon the functioning of the judiciary by creating a climate of suspicion and intimidation. Especially at the lower courts, the control function of the courts is further limited by a lack of training and inefficient organization.

Article 125 of the 1982 constitution states that all acts and actions of the administration are subject to judicial review. However, acts of the president of the republic and the decisions of the Supreme Military Council are excluded from judicial review. Some presidential actions clearly belong to the field of administration, such as the appointment of university rectors, or the chairperson and members of the Supreme Council for Higher Education. The absence of judicial review over these actions is controversial, and also seems inconsistent with the fundamental principle of parliamentarism. On the other hand, the acts of the Supreme Military Council are clearly administrative in nature and affect the individual rights of the military personnel concerned. According to Article 159 of the constitution, decisions by the Supreme Council of Judges and Public Prosecutors are not subject to judicial review. Parliamentary resolutions, including declarations of martial law or war, or decisions to send Turkish troops to foreign countries, or permitting the positioning of foreign troops on Turkish territory under Article 92 of the constitution, are not subject to judicial review. Finally, under Article 148 of the constitution, law-amending ordinances (decree-laws) passed during periods of martial law or during a state of emergency cannot be reviewed by the Constitutional Court. Since 2007, the total number of annual applications for annulment of laws has dropped from 115 to 94, yet the number of annulment decisions rose from 25 to 39 in 2009.
The composition of the Supreme Council of Judges and Prosecutors, of which the minister of justice and the ministry’s undersecretary are members, stands as the major obstacle to the independence of the courts (Article 2 of Law No. 2461 on Supreme Council of Judges and Prosecutors). The question of the independence of courts has also recently been stated by the head of the Court of Cassation (the higher court of appeal). Therefore, the courts can not entirely ensure the conformity of executive actions with the law. It was observed that some prosecutors and judges were appointed by the Supreme Council to other court districts while they were prosecuting or reviewing important cases. The appointment procedure of higher court judges, including those of the Constitutional Court, has also been a matter of some dispute, as the president of the republic wields significant influence.
In 2008, the Constitutional Court rescinded a constitutional amendment made by the parliament with the required majority and in line with the constitutional procedures. The amendment had opened the way for headscarf-wearing female students to attend universities; however, the court asserted that it violated the principle of secularism, thus venturing into consideration of content despite a competency limited to formal control in the area of constitutional reform. In a similar vein, the State Council annulled the abovementioned Higher Education Council regulation on university access exams based not on formal reasons, which its oversight power is theoretically restricted to, but on the basis of whether the principle of equality was followed or not. In this sense, it appropriated for itself the competences of the Constitutional Court. In April 2010, the chief prosecutor of Istanbul province interfered with the arrest and detainment of 25 high-ranking military officers, citing the effects of such detentions on Turkey’s national security. Thus, juridical review in Turkey appears to be out of balance, a situation that results in periodical shock waves for the separation of powers.