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.
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 ensures that all state institutions obey the constitution. The court acts only when an appeal is made, but holds the right to declare laws unconstitutional and has exercised this power a number of times. In case of conflicting opinions, the decisions made by the Federal Constitutional Court 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 Federal Constitutional Court in particular, enjoy a high reputation for independence both domestically and internationally. In the World Economic Forum’s Global Competitiveness Report 2019, Germany’s relative performance on judicial independence has declined in recent years, with Germany now ranked 31th out of 138 countries after ranking 25th in 2018 and 17th in the previous years. However, the World Justice Report’s Rule of Law Index 2019, which includes judicial review as one topic, assigned Germany sixth place out of 128 countries.
Citations:
https://www.weforum.org/reports

http://www3.weforum.org/docs/GCR2018/05FullReport/TheGlobalCompetitivenessReport2019.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 government, which is very common among Commonwealth countries, 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.
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. However, the radical-right EKRE, which entered the government in 2019, has attacked the courts (promising that “heads will roll”) for, among other things, recognizing same-sex marriages.
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 Sipilä government was 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 were 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 overseeing executive norms and decisions. The process of challenging decisions is rather simple. 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. The Constitutional Council has gradually become a full-fleshed court, the role of which was dramatically increased through the constitutional reform of March 2008. Since that time, any citizen has been able to 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 can be passed to the Constitutional Council if legally sound. The Council’s case load has increased from around 25 cases to about 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 that can be exerted by the Council before the promulgation of a law, provided that three authorities (the president of the republic and the presidents of the two assemblies) or 60 parliamentarians (typically from the opposition) make 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. Between 2016 and 2018, these levels showed some modest increase, but an October 2019 Vilmorus survey indicated renewed decrease to about 20%. This was associated with a major corruption probe in which numerous judges were alleged to have taken bribes during criminal proceedings. Public trust in the Constitutional Court is higher (34% in October 2019).
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.

Frictions between the judiciary and parliament emerged in the summer of 2019. Attorney General Martine Solovieff and the Chairman of the Supreme Court, Jean-Claude Wiwinius, objected to two parliamentary questions submitted on the subject of the judiciary. As a result, they wrote in August to the speaker of the Chamber of Deputies, expressing their displeasure over the large number parliamentary inquiries regarding the issue of police registry data protection, particularly with regard to applications for a criminal-record certificate (i.e., casier judiciare). Noting parliament’s right to act as a check on federal powers, Solovieff and Wiwinius emphasized the judiciary’s independence, asserting that such inquiries could involve a violation of the separation of powers.

The president of parliament, on the other hand, stated that the judiciary was not entitled to interfere in parliament’s affairs, an action that would violate the separation of powers.
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 the 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 intervened in various ways by blocking the Trump administration’s Muslim travel ban and forcing major modifications to the administration’s harsh treatment of asylum-seekers.

As of late 2019, the Trump administration has not yet defied final rulings by the judicial branch. It remains to be seen whether it will comply with such orders in the multiple cases currently at various stages of appeal.
 
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.

The FPÖ, which controlled the Ministry of the Interior and therefore the police, was criticized for using politically appointed personnel (e.g., ministerial staff) to control autonomous parts of the bureaucracy. A police raid (obviously orchestrated by the ministry) of the semi-autonomous government agency (the BVT) responsible for monitoring political extremism and potential terrorism was seen as an attempt by the FPÖ to widen the party’s control over non-FPÖ-controlled agencies. One aspect of this activity (sharply criticized by the media and opposition parties) was the FPÖ policy of appointing members of the far-right “Burschenschaften” (dueling fraternities) to key positions in the security apparatus.
Citations:
Hans-Henning Scharsach: “Stille Macht-Ergreifung. Hofer, Strache und die Burschenschaften.” Wiern 2017 (Kremayr & Scheriau)
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. In the second half of 2019, a dispute between the Supreme Court and the Constitutional Tribunal emerged over the issue of judicial supremacy. As the judicial institution in charge of reviewing potential infringements of fundamental rights, the Supreme Court argued that this mandate gave it the power to review sentences rendered by the Constitutional Tribunal. The dispute had not been resolved by the end of the period under review.

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 so 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

https://www.latercera.com/nacional/noticia/corte-suprema-tribunal-constitucional-disputa/853582/
Cyprus
The addition of the Administrative Court in 2016 had limited effect on lengthy court procedures that plague the administration of justice. A functional review of the courts found that cases take up to 9.5 years.

There are proposals and plans for resolving serious problems such as sluggish decision-making, a lack of material infrastructure and rules of procedure that negatively affect the efficiency of the courts. However, at present, judicial review remains highly problematic. In addition, the judiciary’s integrity was subject to question in late 2018 when claims of nepotism and links between justices’ families and leading law firms emerged. These developments prompted a GRECO extraordinary mission to Cyprus, though no relevant report has thus far been made public..

Decisions by trial courts, administrative bodies and other authorities are reviewed by the Administrative Court and (appellate) Supreme Court. Appeals are decided by panels of three or five judges, with 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
2. If only our judges were capable of showing humility, Cyprus Mail, 20 January 2019, https://cyprus-mail.com/old/2019/01/20/our-view-if-only-our-judges-were-capable-of-showing-humility/
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. The Constitutional Court decision that attracted the most public attention during the period under review was the October 2019 invalidation of a controversial law taxing restitution payments to the churches; this had been initiated by the Communist Party (KSČM) as one of its preconditions for its support of the ANO-Social Democrat minority government. The appointment of Marie Benešová as justice minister in May 2019 has raised some concerns about the independence of the judiciary. She has clashed repeatedly with the Prosecutor General, and her proposal to set new term limits for prosecutors has been perceived by the majority of the judiciary and most experts as an attempt at political interference with the courts.
Citations:
Pospíšil, I. (2020): Activist Constitutional Court as Utility Tool for Correcting Politics: Structure, Composition and Case law, in: A. Lorenz, H. Formánková (eds), Czech Democracy in Crisis. Cham: Palgrave Macmillan, 133-155.
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 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 in primarily, if not exclusively, investigating 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. More broadly, the period under review saw a tug-of-war between the government and the justice system, rendering judicial review a sensitive and unpredictable process. This pattern was continued into the second half of 2019, when courts again overturned several clauses of the recently passed pension legislation, dubbing them unconstitutional.
Israel
The Supreme Court is generally viewed as a highly influential institution. It has repeatedly intervened in the political domain to review the legality of political agreements, decisions and allocations. Since a large part of the Supreme Court’s judicial review in recent years is over the activities of a rightist coalition and parliament, it is often criticized for being biased toward the political left. In recent years, public trust in the judicial system has sharply declined.

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, Amir Ohana, and the former minister of justice, Ayelet Shaked, have proposed substantial reforms of the judicial branch and especially the Supreme Court. These reforms are intended to weaken its powers of oversight over the political 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).

Plesner, Yohanan. “The Knesset and the Court: Is This Israel’s Override Election?,” The Israel Democracy Institute, 16.9.2019: en.idi.org.il/articles/28629

Svorai, Moran, “Judicial independence as the 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 government actions, and order correctives if necessary. The main problem is 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 introduced new measures designed to speed civil proceedings, particularly those related to economic activities. A 2017 report issued by the minister of justice suggested that these measures have had some success. The first Conte government promised to increase judicial efficiency, but did nothing substantial in this area before its fall.

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, represents another preemptive 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 2018, the court received 363 petitions, of which 182 were forwarded for consideration. The court initiated 23 cases, dealing with a wide range of issues, including maternity leave, the remuneration of medical practitioners, the issuing of industrial security certificates and the ban on people who had been active in the Communist party after 1991 from running as candidates in Saeima elections.
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: 25.10.2019

4. Constitutional Court (2019). Overview of the work of the Constitutional Court 2018. Available at: http://www.satv.tiesa.gov.lv/wp-content/uploads/2019/01/Satversmes-tiesas-gada-gramata-2018-A4_small_file_size_L.pdf, Last assessed 25.10.2019
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 2018 stood at 1,743, a slight decrease vis-à-vis 2017 (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.

During the period under review, the Assembly of the Republic approved measures to broaden public access to the courts.

Judges’ and magistrates’ associations called for strikes over pay and working conditions during the period under review. This resulted in increases for judges’ pay, approved in May 2019.
Citations:
Jornal de Negócios (2019), “Deputados aprovam estatuto que permite aos juízes terem salário acima do primeiro-ministro,” available online at: https://www.jornaldenegocios.pt/economia/politica/detalhe/deputados-aprovam-estatuto-que-permite-aos-juizes-terem-salario-acima-do-primeiro-ministro

Pordata, “Magistrados judiciais: total e por sexo,” available online at: https://www.pordata.pt/Portugal/Magistrados+judiciais+total+e+por+sexo-1703

https://observador.pt/2018/…/associacao-sindical-dos-juizes-estima-90-de-adesao-a-gr..

https://www.portugal.gov.pt/pt/gc21/comunicacao/noticia?i=aprovado-novo…
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. The Cerar government 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.
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. 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 an effective guardian of the constitution, although it has been comparably weak on anti-discrimination issues and the defense of political liberties on issues relating to the security threat posed by North Korea.
Citations:
JoongAng Ilbo. “Selective justice.” October 10, 2019 http://koreajoongangdaily.joins.com/news/article/article.aspx?aid=3068919
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
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. Malta has a strong tradition of judicial review, and the courts have traditionally served as a restraint on the government and its administration. A recent court ruling found that the justice minister’s orders to clear items memorializing a slain journalist away from a war memorial was in breach of the freedom of expression. Individuals who feel that their human rights have been breached also have recourse to the European Court of Human Rights (ECHR). Fully 90% of the human-rights cases that have been taken up by the ECHR Court have produced rulings that Malta has violated the complainant’s human rights; however, a number of these have dealt with property leases and old tenancy laws.

The role of the Office of the Attorney General, which has been controversial since the position’s inception in the 1964 constitution, underwent a reform in 2019. Previously, the attorney general was both the state’s chief prosecutor and an adviser to the government. Following the reforms, the attorney general will retain responsibility for prosecutions and criminal matters, but a new state advocate will be responsible for all government advisory and legal representation functions in the field of constitutional civil and administrative law. The opposition did not vote in favor of this act in parliament, objecting to a number of articles including the process of selecting the state advocate. A new state advocate has been appointed under the new legislation after being unanimously recommended by the appointments commission following a public call. The process by 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 2019 Justice Scoreboard noted that while more cases were being dealt with and the time needed to resolve cases had fallen, the percentage of resolved cases and pending cases remained stable. The report emphasized the lack of internet-based tools for legal-rights education, information on eligibility for legal aid, and information for children. The number of female judges in the court of first instance have increased substantially, but the numbers still remain low for the court of second instance. In a survey, 56% of the public and 62% of firms rated the independence of the courts and the judiciary as good or very good, an improvement relative to 2018. Reasons cited for the lack of independence included pressure from the government, politicians and economic groups. Nonetheless, this is more of a perception than a confirmed statistic. 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 five years. Malta has the EU’s fourth-highest rate of judges 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. An internal debate is taking place on this latter issue. Measures to deal with court backlogs remain weak. The World Economic Forum’s global score board for 2019 states that “the judiciary is fairly independent and efficient and provides strong protection of property rights.” On the issue of the independence and impartiality of the judiciary, Malta here achieved a score of 50.4%. 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. Online information on published judgments is available, and enough information is now provided to monitor the stages of a proceeding. Delays and deferments may still lengthen the process, but have diminished in recent years. In 2018, parliament passed a bill to establish a first hall of the civil court in Gozo.
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 2019 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
The Malta Independent 10/03/2019 Function of the Judiciary is only to Rubber stamp abuse by the powerful
The Shift 31/01/20 Justice minister’s orders to clear protest memorial a breach of freedom of expression
Times of Malta 06/12/19 Malta’s first state advocate name
2019 Index of Economic Freedom
Recent developments in the Judicial field
https://rm.coe.int/recent-developments-in-the-judicial-field-in-malta-january-2017-to-jun/16808cc3b5
Times of Malta 06/12/19 Malta’s first state advocate named
Aquilina Kevin The State Advocate Bill No 83 of 2019 OLJ Online Law Journal http://lawjournal.ghsl.org/viewer/263/download.pdf
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 the trial of 12 Catalan independence leaders between February and October 2019. For Spanish justice, this process has been one of the most significant cases since the start of constitutional democracy in 1978, with regards to the nature of the facts judged, and national and international repercussions.

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 greater efficiency were recommended. The 2019 EU Justice Scoreboard indicated that most respondents found the judicial system to be too slow. 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. The 2019 EU Justice Scoreboard also shows that challenges regarding the perception of judicial independence are growing in Spain. Finally, the capacity of some powerful private interests (such as the banking system) to influence judicial decisions was the subject of extensive debate, following a controversial ruling in October 2018 by the Supreme Court on taxation.
Citations:
EC(2019), “EU Justice Scoreboard”
https://ec.europa.eu/info/publications/2019-eu-justice-scoreboard-factsheets_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.

In 2018, the intensity of judicial review of executive actions reached an all-time high. This attracted international attention when a Dutch appeals court upheld a landmark climate-change ruling, instructing the Rutte government to raise its greenhouse-gas reduction goal of 17% to at least 25%. However, the judiciary itself also came under increasing scrutiny, both with regard to its internal functioning and the degree to which it was truly independent of politics.

Several glaring miscarriages of justice have raised public doubts as to the quality of justice in the Netherlands. This has led to renewed opportunities to reopen previously tried cases in which questionable convictions have been delivered. In 2017, a deputy minister of legal affairs openly admitted that he reduced the provision of state-supported legal assistance to ordinary citizens in order to achieve more punitive court sentences. And in the drugs- and crime-ridden province of Brabant, police, mayors and fiscal authorities sometimes “harass” suspects rather than initiating legal procedures, which they perceive as a time-consuming nuisance. Judges have voiced concerns as to the quality of the work performed by lawyers, and thus directly about professional practices and indirectly about the legal-education system. The reputation of the public prosecution service (Openbaar Ministerie, OM) too has come under public scrutiny. It has been criticized for striking mega-deals (such as fines) with corporations and banks, which are presumably deemed more efficient than conducting full-fledged trials of legally sanctionable financial or managerial misconduct. Evidence has shown that OM staffers lacking the proper professional accreditation have rendered decisions on thousands of criminal cases with insufficient evidence. The prosecution service’s degree of independence from the government has also come under public and journalistic scrutiny, and integrity problems within the organization itself have almost paralyzed its functioning. The legal trial for hate speech by Dutch parliamentarian Geert Wilders may fail due to alleged political interference in the judicial procedure.

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. Some observers defend this structure, arguing that only an entity with detailed and intimate knowledge of the practical difficulties associated with policy implementation and legal enforcement can offer sound advice to the government in this area.
Citations:
Andeweg, R.B. and G.A. Irwin (2014), Governance and Politics of the Netherlands. Houdmills, Basingstoke: Palgrave Macmillan (pages 203-2011).

The Guardian, 9 October 2018. Dutch appeals court upholds landmark climate-change ruling.

NRC Next, 22 February 2019. OM wil strenger zijn met schikkingen (NRC.nl, accessed 4 November 2019)

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

RTL Nieuws, 30 July 2019. OM wil af van hoofdofficieren met geheime relatie en onderzoekt mogelijk strafbare feiten (rtlnieuw.nl, accessed 4 November 2019)

NR Handelsblad, 12 March 2019. Hoe de kritiek op onterechte straffen werd weggepoetst. (NRC.nl, accessed 4 November 2019)
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. Having then fallen to 36% in 2018, the rate peaked in 2019 when Gallup reported it to be 47%.

Many observers consider the courts biased, as almost all judges attended the same law school and few have attended universities abroad. 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.

In 2017, a sitting Supreme Court justice sued a former justice for libel in a case that awaits a verdict by the Supreme Court. Then, in 2019, the former justice sued another sitting justice over a private land dispute. Disputes among 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 16 October 2019.

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 and administrative 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 its 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.
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 occupied senior judicial positions between 1998 and 2014. Lucia Žitňanská, the minister of justice from March 2016 to March 2018, 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 have persisted. They have been more than confirmed by the revelations about the entanglement of many justices in the corruption network of Marian Kocner, the man behind the murder of Kuciak and Kušnírová. In 2019, the Judicial Council twice failed to select the president of the Supreme Court. The next election round is scheduled for January 2020.

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 the former president, Kiska, and parliament over the appointment of new justices, and the politicization of appointments. Moreover, a controversial decision in January 2019 – in which the Constitutional Court, for the first time in Slovak history, declared a constitutional law unconstitutional – has raised concerns about the role of the court.

According to the 2019 EU Justice Scoreboard, 64% of Slovaks do not trust the courts. Public confidence in the independence of courts and judges is – tied with Hungary – the worst in Europe. Over 50% of respondents stated that interference from government and politicians was the main reason for the lack of judicial independence (only Hungary polled higher).
Citations:
Domin, M. (2019): A Part of the Constitution Is Unconstitutional, the Slovak Constitutional Court has Ruled, in: Verfassungsblog, February 8 (https://verfassungsblog.de/a-part-of-the-constitution-is-unconstitutional-the-slovak-constitutional-court-has-ruled/).

European Commission (2019): EU justice scoreboard 2019. Luxembourg (https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2019_en.pdf).

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 (CVM) by its partner countries from the European Union. In the fall of 2019, the European Commission announced that it planned to terminate Bulgaria’s coverage by the CVM, but as of the time of writing, it remained unclear whether this decision was based on the progress made to date or the conclusion that the mechanism had proven ineffective.

Since 2015, judges have become formally more independent from prosecutors and investigators in the Supreme Judicial Council. However, despite the formal changes, the Supreme Judicial Council remains politicized, and its decisions continue to suffer from a significant lack of transparency and accountability. In 2019, the Council was strongly criticized for its highly nontransparent and noncompetitive procedure for electing a new prosecutor general, leading to citizen protests.
Citations:
European Commission (2019): Report from the Commission to the European Parliament and the Council on Progress in Bulgaria under the Co-operation and Verification Mechanism. COM(2019)498 final, Brussels (https://ec.europa.eu/info/files/progress-report-bulgaria-2019com-2019-498_en).

Vassileva, R. (2019): CVM Here, CVM There: The European Commission in Bulgaria’s Legal Wonderland. Verfassungsblog, June 16 (https://verfassungsblog.de/cvm-here-cvm-there-the-european-commission-in-bulgarias-legal-wonderland/).
Croatia
Croatia has the highest number of judges per 100,000 people in the EU-28 and spends almost 0.45% of GDP, the fifth highest share in the European Union, on the judiciary. At the same time, the independence, quality and efficiency of the judiciary have been limited. The level of trust in the Croatian judicial system remains the worst of any EU member state, both among ordinary citizens and businesses.

The fact that in recent years a number of prominent individuals accused of crimes were acquitted has underscored the Croatian judiciary’s lack of effectiveness and independence. The main impediment to the perceived lack of courts’ independence is to be found in interference by government and politicians, which is closely followed by interference from economic or other specific interests. The State’s Attorney Office is also often perceived as lacking skilled personnel with integrity, and under constant pressure from powerful political players to either start or stall processes against their adversaries.

In Croatia, judges of ordinary courts are appointed by the National Judicial Council, an independent body consisting of 11 members – 7 judges, two 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.

The long duration of judicial procedures and the large backlog of cases continue to be a major problem in Croatia’s judicial system. Successive ministers of justice have failed to deal with the backlog. Dražen Bošnjaković, HDZ’s incumbent minister, has also prioritized it, together with digitalization of the judiciary.
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.

The government of López Obrador has initiated a judicial sector reform, with more than 50 new laws. This includes the creation of a unit in the Sectretariá de Gobernación to promote the reform of criminal law.

Overall, the courts do a poor job of enforcing compliance with the law, especially when confronted with powerful or wealthy individuals. Concern is growing that the government will undermine judicial independence. In general, mistrust in the judicial system is widespread, 68% of Mexicans think judges are corrupt and 45% do not trust them.
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
Mexico Evalua 2019: Diagnostico inaugural, https://www.mexicoevalua.org/diagnostico-inaugural/
4
Hungary
The independence of the Hungarian judiciary has drastically declined under the Orbán governments. 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 main player in the judicial system is Péter Polt, the Chief Public Prosecutor, a former Fidesz politician, who has persistently refrained from investigating the corrupt practices of prominent Fidesz oligarchs. He was appointed for an initial nine years, before being reappointed for a further nine years in late 2019. 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. Following uproar at home and abroad, in 2019, the Orbán government shelved its plan to establish a new branch of the judiciary, the so-called administrative courts, which would have been entirely under governmental 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 limited the independence of the Supreme Court and ordinary courts, and were pushed through despite massive domestic and international protests. 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 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. The struggle between the Polish government and the European Union over judicial reform has continued in the period under review. On the one hand, the government created a controversial disciplinary chamber for the Supreme Court, which has stubbornly resisted government control, and sought to limit the possibilities for escalating cases of Polish justice to the European Court of Justice (ECJ). On the other hand, the ECJ, in a decision in November 2019, questioned the independence of the disciplinary chamber and encouraged the Supreme Court to rule against it.
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).

Court of Justice of the European Union (2019): Advocate General Tanchev: the newly created Disciplinary Chamber of the Polish Supreme Court does not satisfy the requirements of judicial independence established by EU law, Press Release No 83/19, June 27, Luxembourg.

Helsinki Foundation for Human Rights (2019): Disciplinary proceedings against judges and prosecutors. Warsaw (https://www.hfhr.pl/wp-content/uploads/2019/02/HFHR_Disciplinary-proceedings-against-judges-and-prosecutors.pdf.).
Romania
Weakened independence of the judiciary continues to threaten Romania’s capacity for judicial review, with the executive often influencing judicial matters. In the period under review, government influence on the management process of key judicial institutions, including the Superior Council of Magistracy (SCM) and the Prosecutor’s Office, continued to raise concerns about the judiciary’s independence and authority. The government’s role in appointments of prosecutors was of particular concern during 2019. In August 2018, when the term for the management team at the SCM expired, the government did not launch a public and competitive process but instead filled the position of chief inspector through an emergency government ordinance on an ad interim basis. The ad interim appointment remained until May 2019, when the same chief inspector was formally appointed to the role. The establishment of ad interim management compromised the ability of the SCM to provide effective checks and balances to defend the independence of judicial institutions. These concerns were exacerbated by the government’s amendments to justice laws which made it possible for decisions on key issues to be determined by only a few members of the SCM. Additionally, statements issued by the SCM are often signed by only some of its members, pointing to fractures within the institution.

The Minister of Justice continued to control the functioning of the judiciary at the highest level, which is evidenced by Justice Minister Toader’s efforts to remove the prosecutor general in 2018-2019, despite objections by the SCM and the European Commission. In late 2018, the minister indicated his intention to remove Prosecutor General Augustin Lazar. The request was denied by President Iohannis in January 2019. In April 2019, Toader moved forward with establishing an appointment process to fill the vacancy following the anticipated expiration of the prosecutor general’s term in May 2019. The minister rejected all candidates, including the candidacy of the incumbent prosecutor general, Augustin Lazar. In the midst of this process, Justice Minister Toader resigned from his position on April 19, 2019, after failing to put forward the government’s controversial emergency ordinance amending the criminal code. The incoming justice minister then canceled the appointment process to “avoid deterioration of the situation and give space to improve the procedure.” With no candidates and no appointment process, the deputy prosecutor general at the time, Bogdan Licu, was selected by the Prosecutor’s Section of the SCM as interim prosecutor general. The position continues to be filled on an interim basis, following a broader pattern of interim management at the highest levels of the Romanian judiciary.

Government interference and uncertainty in top prosecutorial positions have raised criticisms within Romania and abroad. Partially in response to the country’s deteriorating capacity to maintain an independent judiciary free from the influence of government or powerful individuals, the European Commission’s Cooperation and Verification Mechanism (CVM) added eight additional recommendations to their 2018 progress report for Romania. In 2019, the Commission continued to point to backtracking on rule of law-related issues, highlighting the dismissal of the prosecutor general as a point of concern. The Commission cites the pattern of disciplinary proceedings against magistrates, document leaking, and the government’s prolongation of management positions as threatening judicial review in the country.

At its investiture, the Orban government announced that the appointment of prosecutors general was its top priority, and promised to make the process transparent and meritocratic. Orban noted that most top prosecutors are ad interim. The selection process for appointing prosecutors is scheduled to end by late January 2020.
Citations:
European Commission (2019): Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism. COM(2019) 499 final, Brussels (https://ec.europa.eu/info/files/progress-report-romania-2019-com-2019-393_en).
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.

The European Commission’s 2019 report observes that judicial staff are still being dismissed or forcibly transferred, and that this risks engendering widespread self-censorship among judges and prosecutors. This may weaken the judiciary as a whole, its independence and the separation of powers. No measures were taken to restore legal guarantees to ensure the independence of the judiciary from the executive or to strengthen the independence of the Council of Judges and Prosecutors. No changes were made to the institution of criminal judges of peace, which risks becoming a parallel system. The recommendations from earlier reports therefore remain valid. There is no human resources strategy in place for the judiciary, which struggles to effectively perform its tasks in the wake of a substantial reduction in experienced personnel. The recruitment of a large number of inexperienced judges and prosecutors using fast-track procedures without adequate pre-service and in-service training has failed to remedy these concerns.

In 2018, the Council of State – which consists of 15 departments, two plenary sessions (one for administrative law divisions and one for the tax law chambers) and the country’s highest administrative court – reviewed 135,368 cases, while a further 165,079 cases remain pending for 2019. The average length of time spent on each case was estimated to be 565 days. Compared to 2017, this long duration was due to problems in integrating new members and a lack of sufficient senior judges. As of November 2019, the cumulative number of administrative cases – transferred from 2018 and new cases arrived in 2019 – reached 514,292, of which 266,129 are still pending. Over the same period, a total of 443,791 administrative cases were reviewed. The Council of State’s 2018 report admits to major weaknesses in administrative jurisdiction, including a lack of qualified legal personnel, lengthy trials, the unpredictability of trial periods and excessive workload.

The Constitutional Court, as the Supreme Court, dealt with a total of 204 cases (annulments and objections) and concluded 119 cases in 2018. The court received 87 annulment cases, of which six were approved, 41 were rejected and one was united. The court rejected 54 out of 77 objections, annulled 11 and united six. The total number of individual fair trial appeals reached 38,186 in 2018, of which 35,395 were concluded. The cumulative number of pending applications is 39,285.

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 undersecretary of the National Intelligence Service (MİT) is subject to the approval of the president. Acts within the president’s area of competence, decisions of the Supreme Military Council (excluding acts relating to promotion or retirement), and decisions of the Council of Judges and Public Prosecutors (except for dismissals of public officials) are open to judicial review.

The Justice Academy of Turkey was re-established by presidential decree, after it had previously been closed under the state of emergency.
Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

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)

European judicial systems Efficiency and quality of justice CEPEJ STUDIES No. 26, 2018 edition (2016 data), https://rm.coe.int/rapport-avec-couv-18-09-2018-en/16808def9c (accessed 1 November 2019)

TC Anayasa Mahkemesi Yıllık Rapor 2018, https://www.anayasa.gov.tr/tr/yayinlar/yillik-raporlar/ (accessed 1 November 2019)

TC Danıştay Başkanlığı 2018 Yılı İdari Faailyet Raporu, https://www.danistay.gov.tr/upload/2018-Yilii-Idare-Faaliyet-Raporu.pdf (accessed 1 November 2019)

TC Danıştay Başkanlığı 2018 Yılı Sonuçlanan ve 2019 Yılına Devreden Dosya Sayıları, https://www.danistay.gov.tr/upload/istatistikler-2016-2017-2018/2018/2018-1.pdf (accessed 1 November 2019)

TC Yargıtay Başkanlığı 2018 Yılı Faaliyet Raporu, https://www.yargitay.gov.tr/documents/ek1-1557233459.pdf (accessed 1 November 2019)

Yargıtay Ceza ve Hukuk Daireleri İle Cumhuriyet Başsavcılığının 2018 Yılına Ait İş Durumunu Gösterir Çizelge, https://www.yargitay.gov.tr/documents/2018.pdf (accessed 1 November 2019)

HSK 2018 Yılı Faaliyet Raporu, http://www.hsk.gov.tr/Eklentiler/Dosyalar/2018-FAALiYET%20RAPORU.pdf (accessed 1 November 2019)

03.09.2019 Tarihi İtibariyle Hakim ve Savcılara İlişkin İstatistiki Bilgiler, https://www.hsk.gov.tr/Eklentiler/Dosyalar/a062014e-6b7b-4ff7-bc47-4ba6a4478b6b. pdf (accessed 1 November 2019)

YOK, Number of Students & Teachiıng Staff By Educatıonal Institutions, 2018 – 2019 https://istatistik.yok.gov.tr/ (accessed 1 November 2019)
3
---
---
 
Courts are biased for or against the incumbent government and lack effective control.
2
---
---
1
---
---
Back to Top