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. The courts can review executive action. According to the constitution, “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. Moreover, “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. The status of judges and guarantees of judicial 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 2017/18, Germany’s relative performance on judicial independence has declined in recent years, with Germany now ranked 25th out of 138 countries after ranking 17th in previous years. However, the rule of law index of the World Justice Report that includes judicial review ranked Germany 6th out of 113 countries.
Citations:
http://www3.weforum.org/docs/GCR2018/05FullReport/TheGlobalCompetitivenessReport2018.pdf
New Zealand
New Zealand does not have a Constitutional Court with the absolute right of 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. On the other hand, the courts may ask parliament to provide clarification of its decisions. The judicial system is hierarchical, with the possibility of appeal. 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. Still, legislative action is not justiciable in the High Court under the existing constitutional arrangements; parliament remains supreme in law. Yet, there are reform discussions which refer to the enhancement of judicial power to consider the constitutionality of legislation, and to invalidate it where necessary. An institution specific to the country is the Māori Land Court, which hears cases relating to Māori 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/māori-land-court (accessed October 20, 2015).
Pohlmann, Martin. 2017. he Development of Judicial Review LLM RESEARCH PAPER LAWS 529: CONSTITUTIONAL CHANGE AND GOVERNMENT LAW. Victoria: University of Wellington. https://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/6320/paper_access.pdf?sequence=2
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 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 has been 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 the fact that 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 70 cases per year (with a peak of more than 100 cases in 2011), 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.

Between 1937 and 2015, the courts declared 93 cases unconstitutional (Hogan et al, 2015).

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.
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 Vilmorus opinion surveys, public trust in the courts is low, but increasing modestly (27.7% in July 2016, increasing to 24.9% in September 2018 and 28.6% in December 2018). Public trust in the Constitutional Court is higher (46.5% in December 2018).
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
Legal education, jurisprudence, the regulation of judicial appointments, rational proceedings, professionalism, channels of appeal and court administration are all well established and working. Independence is guaranteed. Citizens in Luxembourg cannot file a constitutional complaint, as citizens can in Germany.
Citations:
Pereira, João N./Zenthöfer, Jochen (2017): Einführung in das luxemburgische Recht. C.H.Beck, pp. 1-4, 86-87.
USA
The United States was the originator of expansive 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. In the U.S., however, judicial decisions often depend 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.

After the death of conservative Justice Antonin Scalia in early 2016, the Republican-controlled Senate, in a sharp break from past practice, refused to act on Obama’s nomination of a replacement for more than a year. Since the 2016 election, President Trump has nominated, and the Senate confirmed two conservative Republican justices, Neil Gorsuch and Brett Kavanaugh. In the case of the latter, a full investigation of (decades-old) sexual assault accusations waged against Kavanaugh was not permitted. The Senate’s handling of these appointments 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 and various Republican states’ onerous voter registration requirements. During the Trump presidency, federal courts have blocked the Trump administration’s Muslim travel ban and forced major modifications to its harsh treatment of asylum seeker, among other interventions.
 
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.

Since 2015, the court system has had to deal with an increasing number of asylum-seekers. In principle, this is more a quantitative rather than a qualitative issue. However, within the government, the FPÖ’s strict policy in dealing with migrants and asylum-seekers indirectly places additional pressure on the courts.
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 alleviated the workload of the Supreme Court. This, however, had limited effect on lengthy court procedures. A functional review of courts found that some cases take up to 9.5 years. The study found serious problems in management and leadership, in institutional structures, and in procedures, processes, and infrastructure to support the efficient operation of the courts.

The government has various plans to resolve existing challenges. However, at present, judicial review is very problematic.

Judicial review of decisions by trial courts, administrative bodies or other authorities can be sought before 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. Functional review of the Court system of Cyprus, http://www.supremecourt.gov.cy/Judicial/SC.nsf/All/4FAD54FDA1155764C225825F003DC397?OpenDocument
Czechia
Czech courts operate independently of the executive branch of government. The most active control over executive actions is exercised by the Constitutional Court and the Supreme Administrative Court. In the period under study, no major controversial cases were decided by the Constitutional Court. The Supreme Administrative Court rejected several minor complaints regarding the Senate and municipal elections. Some included minor administrative mishaps others, for example, by Andrej Babiš’s ANO, questioned the number of invalid votes in the first round of 2018 Senate elections in one electoral district (Rokycany). The Court rejected the ANO complaint as well as the other six complaints and confirmed the validity of the elections.
Citations:
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 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. Notwithstanding, judges at all levels serve until retirement age and cannot be removed arbitrarily.

Judges are recruited through independent entrance examinations and 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 opaque character of regulations. In the period under review, prosecuting authorities followed the government’s line to primarily, if not exclusively, investigate accusations of corruption against members of previous governments. For example, in February 2018, prosecutors submitted documentation to parliament for launching criminal investigations for corruption against two former prime ministers and eight former ministers, all of whom had served before 2015 (i.e., before the rise of Syriza-ANEL). The evidence and legal basis of the accusations were too flimsy to allow for any investigation to actually take place. Also, the high courts did not toe the government line when they decided that major clauses of the latest pension law (passed in 2016) were unconstitutional. Furthermore, in the period under review, there was a tug-of-war between the government and justice system, rendering judicial review a sensitive and unpredictable process.
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. During 2013 – 2014, the Supreme Court was similarly criticized for overturning an “infiltration law” set up to implement policy regarding illegal immigration. Nevertheless, it is ranked as one of the top four 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.

Despite that, the current minister of justice, Ayelet Shaked, has presented several basic law amendments that undermine the judicial branch. Her recent attempts to advance a legal prescription, which allows the Knesset to override high court rulings, will weaken Israel’s judicial review system.
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).


Bob, Yonah Jeremy “Ayelet Shaked To ‘Post’: High Court More Conservative Than Four Years Ago,” 28/10/18, JPOST, https://www.jpost.com/Israel-News/Ayelet-Shaked-High-court-more-conservative-than-four-years-ago-570354

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

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. Previous governments have made some efforts to increase the efficiency of the judicial system. Digitalization of procedures has been promoted and the Gentiloni 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. The new government has yet to do anything substantial.

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, 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 2017, the court received 390 petitions, of which 207 were forwarded for consideration. The court initiated 35 cases, dealing with a wide range of issues, including calculation of pensions, use of official language, provision of education, remuneration of judges and the solidarity tax.
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_latvia, Last assessed: 05.01.2019

4. Constitutional Court (2018). Overview of the work of the Constitutional Court 2017. Available at: http://www.satv.tiesa.gov.lv/wp-content/uploads/2018/01/P%C4%81rskats-2017_final-LV-13.03.2018..pdf/. Last assessed 05.01.2019
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.”

The number of judges in 2017 stood at 1,771. This number has risen from the early 1990s (from around 1,000) to 2008 (1,712). Since 2008, the number of judges has remained relatively stable, reaching a peak in 2013 (1,816). Nevertheless, there remains a shortage of judges in relationship to the number of outstanding cases, which creates delays within the system.

In October 2018, Portugal appointed its second female attorney general, Lucília Gago, who replaced Joana Marques Vidal. The latter oversaw a very dynamic period for the Public Prosecution Service of Portugal, with a number of high profile cases (detailed in question D4.4 below). There was pressure from the PSD and CDS for her to be appointed to a second six-year term, which the constitution allows though previous practice has avoided. However, the prime minister (who proposes a name for the office) and the president (who appoints the prime minister’s nominee) chose not renew her term, arguing that non-renewable single terms reinforce the office’s independence from political power. For critics, however, the decision not to reappoint Joana Marques Vidal was due to political expediency.
Citations:
Pordata, “Magistrados judiciais: total e por sexo,” available online at: https://www.pordata.pt/Portugal/Magistrados+judiciais+total+e+por+sexo-1703
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 Ljubljana which has faced a dozen corruption charges, avoided conviction in 2018. The same applies to the former mayor of Maribor, Franc Kangler, who was indicted in 21 cases, but has been acquitted in 16 cases and is yet to be convicted in any of the cases.
South Korea
In general, courts in South Korea are highly professional, and judges are well trained. The South Korean judiciary is fairly independent, though not totally free from governmental pressure. For example, the unpredictability of prosecutors’ activities remains a problem. Unlike judges, prosecutors are not independent, and there have been cases in which they have used their power to harass political opponents, even though independent courts later found the accusations to be groundless.
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. That event also enhanced public awareness of the Constitutional Court’s independent role.
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.
7
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. The minister for justice has agreed that reforms are needed with regard to the role of the attorney general, who serves both as the country’s chief prosecutor and as a legal adviser to the government. These two roles should be decoupled, the minister has argued, with one individual serving as an independent prosecutor general, and a second taking 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.

Recent judiciary reforms have included the establishment of a commercial section, the reform of the Family Court, and the creation of a new section in the Appeals Court to help speed up case processing.

The 2018 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 (i.e., the public and firms) , more than 40% rated the independence of the courts and the judiciary as good or very good. However, this was a decline from 50% in 2017; respondents cited perceived interference and pressure from the government and politicians, as well as from economic and other interests as the primary reason for the decline. However, the percentage of respondents to cite interference with court decisions was relatively low, at 20%. In 2017, no judges were transferred except by decision of the Judiciary Council, and there were no dismissals. The number of serving judges has increased over the last four years, though the number of active lawyers seems to have fallen. Malta has the EU’s third-highest rate of judges who are participating in training activities focused on EU law or the law of another member state. However Malta does not as yet provide training for judges in the areas of IT, judgecraft, ethics, court management, or communication with the press. Measures to deal with court backlogs remain weak. In the World Economic Forum’s global score board for 2018 on the independence and impartiality of the judiciary, Malta achieved a 4.4 from 7 and retained 51st place. 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 should help to 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 (though in 2018 the judiciary received a substantial pay increase) 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.timesofmalta.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
The 2018 EU Justice Score board
Times of Malta 19/07/18 Judiciary gets hefty pay rise spread over coming three years
Malta Independent 20/01/19 Government will have no say in judicial appointments in upcoming reform - Owen Bonnici
Spain
The Spanish judicial system is independent and has the capacity to control whether the 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 of 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, the behavior of the judiciary with regard to the Catalan crisis and a number of decisions related to corruption scandals demonstrated that courts can indeed act as effective monitors of activities undertaken by public authorities. This included a ruling in May 2018 that found Prime Minister Mariano Rajoy guilty of benefiting from a vast kickbacks scheme (as a result, the socialist opposition filed a motion of no confidence in Rajoy, who was finally ousted).

According to the 2018 GRECO report, there is no doubt as to the high quality and dedication of the country’s judges and prosecutors. However, improvements leading to still greater judicial independence and efficiency were recommended. The 2018 EU Justice Scoreboard indicated that most respondents found the judicial system to be too slow. In May 2018, judges and prosecutors stopped work in an unprecedented strike to call for greater judicial independence and better working conditions. Moreover, some judges appear to have difficulties in reconciling their own ideological biases 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. Finally, the capacity of some powerful private interests (such as the banking system) to influence judicial decisions was the subject of extensive debate in October 2018, following a controversial ruling by the Supreme Court on taxation.
Citations:
EC(2018), “EU Justice Scoreboard”
https://ec.europa.eu/info/policies/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en

GRECO (2018), Fourth evaluation round, Spain: https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680779c4d
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 – 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.

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 more punitive 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. Judges have voiced concerns about the quality of the work of lawyers, and thus directly about professional practice and indirectly about legal education.

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 fully 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, De rechtspraak is terrein aan het verliezen, 6 October 2018

NRC-Handelsblad, Waarom rechters geen ‘bak bagger’ meer willen, 28 April 2018.

Binnenlands Bestuur, Burgemeesters eisen rol /crimefighter’ op, 12 January 2018 (binnenlandsbestuur.nl, accessed 28 October 2018)

Pieter Tops and Jan Tromp, 2016. De achterkant van Nederland.Leven onder de radar van de wet, Balans
6
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, remained around 40% in 2014 and 2015, and climbed to 43% in 2017. However, re-establishing trust in the judicial system will take time, as the reported rate of trust fell to 36% in 2018.

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). Two political parties, the Independence Party and the Progressive Party, maintained control over the Ministry of Justice for 81 out of the 90 years between 1927 and 2008 – dictating judicial appointments and sowing distrust. The deputy state prosecutor publicly refers to non-existent left-wing conspiracies.

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:
https://www.gallup.is/nidurstodur/thjodarpuls/traust-til-stofnana/. Accessed 20 December 2018.

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.
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. Thus, the behavior of Supreme Court justices is 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 early 2018, for example, the Supreme Court ruled that some information from documents related to the government’s secret funds had to be disclosed.
Citations:
Kyodo, Supreme Court orders partial disclosure of documents detailing Japanese government’s secret funds, The Japan Times, 19 January 2018, https://www.japantimes.co.jp/news/2018/01/19/national/crime-legal/supreme-court-orders-partial-disclosure-documents-detailing-japanese-governments-secret-funds/
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 were 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 from March 2016 to March 2018 sought sought to foster transparency and fight corruption in the judicial system. Among other things, the ministry launched a new database to be used for improving the training of justices and their allocation to the courts. While the length of court proceedings has been shortened, concerns over the independence of the judiciary persist. The EU Justice Scoreboard ranks Slovakia as the country with the worst perception of judicial independence. 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 the period under review, a number of decisions by the Constitutional Court have been criticized for an inconsistent interpretation of the law. The murder of Kuciak and Kušnírová has further reduced citizens’ low level of trust in their courts.
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.
5
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. 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, and the country continues to be subject to a Cooperation and Verification Mechanism by its partner countries from the European Union.

Following a number of constitutional changes in 2015, judges have become formally more independent from prosecutors and investigators. The reform of the Supreme Judicial Council, the body governing the judicial branch, has raised hopes that politicization will decrease. However, despite the formal changes, the politicization of the Supreme Judicial Council remains high.
Citations:
European Commission (2018): Report from the Commission to the European Parliament and the Council on Progress in Bulgaria under the Co-operation and Verification Mechanism. COM(2018) 850 final, Brussels (https://ec.europa.eu/info/files/progress-report-bulgaria-2018-com-2018-850_en).

Vassileva, R. (2018): Sweet Like Sugar, Bitter Like a Lemon: Bulgaria’s CVM Report. Verfassungsblog, November 16 (https://verfassungsblog.de/sweet-like-sugar-bitter-like-a-lemon-bulgarias-cvm-report/).
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. The number of courts were substantially reduced in 2014 and 2015. The long duration of judicial procedures and the high backlog of cases continue to be a major problem in Croatia’s judicial system. Subsequent ministries of justice have dealt with it in vain. Dražen Bošnjaković, HDZ’s incumbent minister, has also put it on the list of his main priorities, together with the digitalization of the judiciary. However, widespread skepticism regarding the Croatian judiciary’s independence continues to be the major issue at hand. Within the EU, Croatia has the lowest percentage of citizens and the second lowest percentage of business stakeholders who see their judicial system as being independent. The fact that in recent years a number of prominent individuals accused of crimes were acquitted has underscored the Croatian court’s lack of effectiveness and independence.

In Croatia, judges of ordinary courts are appointed by the National Judicial Council, an independent body consisting of 11 members – 7 judges, 2 university professors of law and two members of the parliament (one from the opposition). This composition has turned out to be debatable, because it is not certain whether this strategy can ensure the full independence of the judiciary branch in appointing judges. The problems with approach to appointing judges became clear in 2017, when a constitutional blockade of the National Judicial Council took place at one moment after the representatives of the government, and the opposition could not agree on the appointment of their respective members into this body. As a result, the work of the National Judicial Council was obstructed because reaching a majority required for decision-making became difficult. This is why legal experts suggest that citizens’ representatives be included in the Council instead of members of the parliament. These representatives, trained lawyers, would be proposed by the parliamentary Judiciary Committee.
Citations:
Dallara, C. (2014): Democracy and Judiciary Reforms in South-East Europe. Cham: Springer.
Mexico
The Supreme Court, having for years acted as a servant of the executive, has become substantially more independent since the transition to democracy in the 1990s. 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 in the process of reforming the justice system from a paper-based inquisitorial system to a U.S.-style adversarial system with oral trials. 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.

Overall, the courts do a poor job of enforcing compliance with the law, especially when confronted with powerful or wealthy individuals. Improving the rule of law is a crucial challenge for the new government in the context of an ongoing security crisis.
Citations:
EFE México (2018). Sistema penal acusatorio en México, avance histórico frenado por corrupción. https://www.efe.com/efe/usa/mexico/sistema-penal-acusatorio-en-mexico-avance-historico-frenado-por-corrupcion/50000100-3498116
4
Hungary
The independence of the Hungarian judiciary has drastically declined under the Orbán governments, and the impact of the fourth Orbán government will probably limit it even further. While the lower courts in most cases still take 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 have often been criticized for taking 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. The Alliance of Hungarian Judges (Magyar Bírói Egyesület) has repeatedly criticized President of National Judiciary Office (OBH) Tünde Handó who 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.

After the 2018 elections, the government launched a new round of judicial reforms. In June 2018, Prime Minister Orbán announced a long series of basic amendments to be made to the Fundamental Law, the Hungarian constitution, that have been prepared by a new constitutional committee. The first step was taken with the 7th constitutional amendment passed by parliament in June 2018. It has narrowed the sources of interpretation available to justices by making the reasoning of the proponents of a legal regulation a primary consideration in terms of interpretation, Moreover, it has paved the way for the creation of a separate administrative court system which is supposed to monitor state activity, but is under strong government control.
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 were changed. Incumbent members of the National Council lost their positions in March 2018, while the terms of the Supreme Court justices were reduced indirectly by lowering the retirement age from 70 to 65 years in April 2018. These legal changes, some of which were clearly unconstitutional, were accompanied by the dismissal of dozens of justices and a media campaign against the judiciary financed by public companies.

In response to the PiS government’s reform of the judiciary, the European Commission triggered an Article 7 procedure against Poland in December 2017. In October 2018, the European Court of Justice declared the retirement regulations for the Supreme Court to be invalid. While the Polish government initially stated that it would appeal the judgment, it eventually gave in and restored the old retirement rules in late November 2018. For the time being, at least, the Supreme Court has thus maintained its independence.

Concerns over judicial review trends in Poland also led the Irish High Court to stop the extradition of a Polish citizen to Poland, a decision that the European Court of Justice (ECJ) did not officially approve, but also did not reject. The ECJ issued a list of checks that the Irish court should make in assessing whether there were really systemic failures in the Polish judicial system. Eventually, the Irish court decided in November 2018 to surrender the suspect to Poland, as it did not have enough evidence that the accused would not be given a fair trial, and because there is still the option of appealing to the European Court of Human Rights if the suspect’s rights were seen as not being properly protected during the trial.
Citations:
Bachmann, K. (2019): Die Justizreform in Polen und die Bedeutung des Politischen im Justizwesen. Polen-Analysen Nr. 232, Darmstadt/ Bremen (http://www.laender-analysen.de/polen/pdf/PolenAnalysen232.pdf).

de La Baume, M., M. Duncan (2018): EU court damns Polish legal system, in: Politico, July 25 (https://www.politico.eu/article/ecj-damns-poland-legal-system-drug-dealer-fair-trial-artur-celmer/)

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 (http://verfassungsblog.de/farewell-to-the-separation-of-powerson-the-judicial-purge-and-the-capture-in-the-heart-of-europe).

Machińska, H. (2018): Die Justizreform in Polen, in: Polen-Analysen Nr. 223, Darmstadt/ Bremen (http://www.laender-analysen.de/polen/pdf/PolenAnalysen223.pdf).
Romania
The judicial reforms of the PSL/ALDE government have been aimed at increasing the governmental influence over the judiciary. While the Superior Council of the Magistracy has fiercely defended the independence of the judiciary, the Constitutional Court has often sided with the government. One major change has been the creation of a new prosecutorial section in charge of investigating offenses committed by justices and prosecutors which has been widely perceived as a disciplinary device. In July 2018, Minister of Justice Tudorel Toader eventually succeeded in bringing President Iohannis to dismiss Chief Prosecutor Laura Codruta Kövesi, the head of the National Anti-Corruption Directorate (DNA). In October 2018, Toader also initiated the dismissal of Prosecutor General Augustin Lazar, an outspoken critic of the government’s attacks on the judiciary’s independence and integrity. The governing coalition’s attempts to strengthen its control over the judiciary have not only provoked massive protests in Romania but have been criticized by many outside observers as well. The European Commission, under the cooperation and verification mechanism, has warned the government against undoing the progress made in judicial reform.
Citations:
European Commission (2018): Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism. COM(2018) 851 final, Brussels (https://ec.europa.eu/info/files/progress-report-romania-2018-com-2018-851_en).

Selejan Gutan, B. (2019): New Challenges against the Judiciary in Romania, in: Verfassungsblog, February 22 (https://verfassungsblog.de/new-challenges-against-the-judiciary-in-romania/).
3
Turkey
Several articles in the Turkish constitution ensure that the government and public administration act in accordance with legal provisions, and that citizens are protected from the state. Article 36 guarantees citizens the freedom to claim rights and Article 37 concedes the guarantee of lawful judgment. According to Article 125, administrative procedures and actions are subject to administrative review. In 2017, the Council of State, which consists of 15 departments and the country’s highest administrative court, reviewed 145,092 cases, while a further 206,185 cases remain pending. The average length of time spent on each case was estimated to be 407.3 days. Since 2015, no data about the number of cases before administrative courts has been available. The High Court of Appeals consists of 23 criminal and 23 civil departments. The criminal departments received 239,063 new criminal appeals. Of these cases, 277,058 were concluded and 342,806 remain pending. The civil departments received 247,384 new civil appeals. Of these cases, 351,530 were concluded and 322,941 remain pending. Despite the increasing number of criminal and administrative judges and prosecutors, independent observers state that judicial performance has been slowing down. The World Justice Project’s Rule of Law Index ranked Turkey 84 out of 113 countries, with a score of 0.44 for regulatory enforcement.

The Constitutional Court, as the Supreme Court, dealt with a total of 216 cases (annulments and objections) and concluded 176 cases in 2017. The court received 157 annulment cases, although only four out of 15 concluded cases were annulled. The court declined 115 objection cases, with 11 cases were annulled. The court concluded 770 cases related to the right to a fair trial and found a violation of at least one right in 880 cases. The reasoned decisions of the Supreme Court are publicized of late.

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 has 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.

According to Council of Higher Education data, there are 71 law schools in Turkey with 15,741 enrolled students in 2017. At the end of 2017, a total of 106,496 lawyers were registered. Pluralism in the appointment of judges was affected by the closure under the state of emergency of two important associations: the Association of Judges and Prosecutors, and the Judges Union. The largest association, the Association for Judicial Unity, has around 9,145 members and is perceived as being close to the government.
Citations:
European Commission, Turkey 2018 Report, Brussels, 17.4.2018, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20180417-turkey- report.pdf (accessed 1 November 2018).
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 2018)
World Justice Project, Rule of Law Index 2017-2018, https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2018-June -Online-Edition_0.pdf (accessed 1 November 2018)
WEF, The Global Competitiveness Report 2017–2018, 2017, http://www3.weforum.org/docs/GCR2017-2018/05FullReport/
TheGlobalCompetitivenessReport2017-2018, http://www3.weforum.org/docs/GCR2017-2018/05FullReport/TheGlobalCompetitivenessReport2017%E2%80%932018.pdf (accessed 1 November 2018)
Anayasa Mahkemesi Yıllık Rapor 2017, http://www.anayasa.gov.tr/icsayfalar/yayinlar/yillikraporlar/2017yillikrapor.pdf (accessed 1 November 2018)
TC Danıştay Başkanlığı 2017 Yılı İdari Faailyet Raporu, https://www.danistay.gov.tr/upload/28_02_2018_faaliyetraporu.pdf (accessed 1 November 2018)
TC Danıştay Başkanlığı 2017 Yılı Sonuçlanan ve 2018 Yılına Devreden Dosya Sayıları, https://www.danistay.gov.tr/upload/09_04_2018_devreden_guncel.pdf (accessed 1 November 2018)
TC Yargıtay Başkanlığı 2017Yılı Faaliyet Raporu, https://www.yargitay.gov.tr/documents/2017_faaliyet.pdf (accessed 1 November 2018)
HSK 2017 Yılı Faaliyet Raporu, http://www.hsk.gov.tr/Eklentiler/files/HSK%202017%20YILI%20FAAL%C4%B0YET%20RAPORU.pdf (accessed 1 November 2018)
YOK, https://istatistik.yok.gov.tr/ (accessed 1 November 2018)
Türkiye’de Avukat Sayıları, http://www.turkiyehukuk.org/turkiyedeki-avukat-sayisi-2017/ (accessed 1 November 2018)
 
Courts are biased for or against the incumbent government and lack effective control.
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