Rule of Law


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

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
There is strong judicial oversight of executive decisions. Judicial oversight occurs through a well-developed system of administrative courts and through the High Court. That said, the scope for judicial review of government actions is very much affected by legislation allowing for or denying such review. Nonetheless, 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.
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.
Henrik Zahle, Dansk forfatningsret 2: Regering, forvaltning og dom. Copenhagen: Christian Ejlers’ Forlag, 2004.
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’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).

Since the beginning of the pandemic, the judiciary has proved effective in keeping the executive from overstepping its powers and encroaching on individual fundamental rights and political liberties. All courts were able to carry out their duties without constraint, even during the most severe lockdowns.

Beginning with various lower courts at the state level and extending to the Federal Constitutional Court, the courts have frequently reviewed various details of the lockdowns and have set certain limits through their jurisprudence. The case law of the Federal Constitutional Court was particularly important in this regard, because it occasionally overturned government decisions, especially with regard to the restrictions placed on the right to assemble. At the end of the first waves of the pandemic, state courts sometimes obliged state governments to lift various lockdown measures earlier than had been planned by the executive.

Both domestically and internationally, Germany’s courts in general, and the Federal Constitutional Court in particular, are highly regarded for their independence. The World Justice Project’s Rule of Law Index 2021 ranked Germany third among 139 countries on civil justice and sixth with regard to criminal justice (World Justice Project 2021).
World Justice Project (2021): Rule of Law Index 2021, Report.
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:āori-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.
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. 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.
Generally, the Swedish judiciary system is more fragmented than systems in the Anglo-Saxon tradition, and there is no constitutional court (Larsson and Bäck 2008). Sweden has a system of judicial preview in which 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 council has a purely advisory (nonbinding) role, however, which means that the parliament may ignore its findings.

Notably, until 2011, the judiciary and the government administration were regulated by the same chapter in the Swedish constitution. Judicial review is mainly carried out by the government and public agencies, with the Swedish courts traditionally serving as tools of political executive power rather than as a means of balancing power (Ahlbäck Öberg and Wockelberg 2016). In the Swedish system, agreements are typically reached by political parties and other actors, rendering judicial intervention less important than in the United States, for example, where the courts are quite commonly used as adjudicators.
Ahlbäck Öberg, Shirin and Helena Wockelberg. 2016. “The Public Sector and the Courts” In Jon Pierre (ed.) “The Oxford Handbook of Swedish Politics.” Oxford University Press. 130-146.

Larsson, Torbjörn and Henry Bäck. 2008. “Governing and Governance in Sweden.” Malmö: Studentlitteratur.
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.
The Swiss Federal Supreme Court is the highest judicial authority in Switzerland. It adjudicates, in last instance, appeals of rulings of the high cantonal courts of appeal, the Federal Criminal Court, the Federal Administrative Court and the Federal Patent Court. The concerned areas of law are civil law, criminal law and administrative law. Violations of federal law, international law, inter-cantonal law or constitutional rights can be invoked. The Federal Supreme Court’s jurisprudence ensures the uniform application of federal law throughout the country. The other courts and the administrative authorities comply with the Federal Supreme Court’s case law and adopt its principles. The Federal Administrative Court rules on the legality of rulings issued by the federal administration. The court also adjudicates on appeals against certain decisions of the cantonal governments, for example, in the area of health insurance.
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, both federal and provincial, pursue their reasoning free from the influence of governments, powerful groups or individuals. The Supreme Court of Canada (SCC) is the country’s final court of appeal. The structure and proceedings of the SCC are grounded in the Supreme Court Act, last amended in 2019.
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.

Early in the COVID-19 pandemic, parliamentary oversight came under pressure in Finland. As outlined in an OECD report, the operations of the legislature were threatened by health and safety concerns, and the government asked the legislature to accommodate swift policy action, either through faster budget procedures or by improvising new ones (OECD 2020).

The government cabinet, jointly with the president of the republic, declared that Finland was in a double emergency: a health emergency and an economic emergency. The emergency declaration itself was not reviewed by parliament, but when the cabinet issued a decree to use specific powers under the Emergency Powers Act (EPA) the decree was subject to scrutiny (Scheinin 2020). However, as outlined in Finnish legislation, the Constitutional Law Committee (CLC) of the parliament carefully assessed whether the special legislation and government decrees were compatible with the constitution.

Most of the measures to contain the spread of the virus in Finland took the form of recommendations (e.g., regulations concerning the right of assembly, and contact restrictions) (Tiirinki et al. 2020). However, at times, there were problems in communicating these recommendations. For example, the government may have exceeded its mandate when it ordered elderly citizens to remain indoors. When this oversight was discovered, the government argued that it had issued a recommendation, not an order. As public trust in authorities is high, Finnish people tend to take recommendations quite literally.
“Hallituksen painostus jyräsi oikeuskanslerin pyrkimykset korjata ongelmallisia lakiesityksiä – oikeustieteen professorit tyrmistyivät”;

Kimmel, Kaisa-Maria and Ballardini, Rosa Maria, 2020. Restrictions in the Name of Health During
COVID-19 in Finland. Harvard Law Blog. Accessed 11.1. 2021. d19/
OECD, 2020. Policy Responses to Corona. Accessed, 28.12 2020.
Scheinin, Martin, 2020: The COVID-19 Emergency in Finland: Best Practice and Problems, VerfBlog,
2020/4/16. Accessed 18.12. 2020.
and-p roblems/, DOI: 10.17176/20200416-092101-0.
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 is 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 75 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 one of 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.
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 decision-making processes and the fairness of any 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, hears 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 independent of and are free from political pressures.
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. The consolidation of district and regional administrative courts will distribute cases more evenly.

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. In December 2021, the public trust level stood at 22% (with 31% expressing distrust). Public trust in the Constitutional Court is higher (47% in May 2021). The OECD has noted that confidence in the judiciary over the last decade was the highest level among OECD members.
The EU Justice Scoreboard, see
For opinion surveys see
OECD, Government at a Glance 2001, Lithuania Factsheet, 2021,
Luxembourg’s judiciary is largely independent of government influence. Judges are appointed by the Grand Duke and enjoy the security of lifetime tenure. In 2020, the Chamber of Deputies debated a constitutional amendment strengthening the independence of judiciary. A Council of Justice was subsequently created with the responsibility of nominating candidates for all judicial posts and establishing ethical standards for judges.

Courts are overloaded, understaffed and slow, taking far too long to settle cases brought before them. The government has begun to address this problem by hiring more judges. Since the creation of independent administrative courts and the Constitutional Court nearly 20 years ago, the number of pending cases has considerably increased. The European Court of Human Rights in Strasbourg frequently criticizes Luxembourg for its lengthy legal procedures.

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, for instance. Many citizens in Luxembourg are annoyed that they cannot understand the laws and procedures in court. Many people are not familiar with the standard French used in court. The bad acoustics in Luxembourg City’s courtrooms present another problem. Visitors and journalists regularly fail to understand what is being said in the hall because microphones are not used. The international press has also covered this embarrassing state of affairs.

Since early 2021, the Ministry of Justice has been pursuing an efficiency program aimed at making country’s judicial system faster and more effective. The law of 15 July brought a major reform by implementing the New Code of Civil Procedure with the goal of boosting and simplifying the procedural rules in civil and commercial matters. These long-awaited adjustments are intended to relieve congestion in the district courts, increase the efficiency of court proceedings and enhance the country’s business attractiveness.

The coronavirus pandemic has given a boost to the five-year “paperless justice” project that has been under way since 2018, and which is aimed at integrating digital tools into the justice system, as has been done in France and Belgium. Courts, in cooperation with the Bar Association, have improved digital exchanges and communications. However, the implementation of this project is currently behind schedule.

In January 2022, the minister of justice presented Draft Law 7945 transposing the EU Directive 2019/1937) on the protection of persons who report breaches of law (whistleblowers). The draft law establishes an office for whistleblowing notifications, principally to inform potential whistleblowers of the relevant procedures, and to guide them through the process.
“Rule of Law Report. Luxembourg: 2021.” European Commission (2021). Accessed 14 january 2022.

“Coronavirus pandemic in the EU –Fundamental Rights Implications: Luxembourg.” European Union Agency for Fundamental Rights & University of Luxembourg (4 May 2022).

Trausch, Gilbert (2008): “Die historische Entwicklung des Großherzogtums – ein Essay,” in: Wolfgang H. Lorig/Mario Hirsch (eds.): Das politische System Luxemburgs: Eine Einführung, Wiesbaden, pp. 13–30.

Zenthöfer, Jochen: “Ein Prozess wie im Stummfilm,” Frankfurter Allgemeine Zeitung, 11 April 2017. -luxemburg-14966362.html. Accessed 22 Oct. 2018.
Sam Tanson a présenté le projet de loi relatif à la protection des personnes qui signalent des violations du droit de l’Union européenne “. Le Gouvernement luxembourgeois (12 January 2022). ier/12-tanson-projet-loi-ue.html. Accessed 14 January 2022.

“Projet de Loi 7945.” n-projet-loi-ue/Projet-loi-nr7945.pdf. Accessed 14 January 2022.

“The Law of 15 July 2021 reinforcing the efficiency of the administration of civil and commercial justice – a substantial amendment to the New Civil Procedure Code.” he-administration-of-civil-and-commercial-justice-a-substantial-amendment-to-the -new-civil-procedure-code/. Accessed 14 January 2022.
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.

In late September 2020, after the passing of Justice Ruth Bader Ginsburg, President Trump nominated Amy Coney Barrett to the Supreme Court. Her confirmation the following month durably tilted the Supreme Court to the right. In late January 2022, Joe Biden announced he planned to nominate a yet unnamed black woman to the Supreme Court, but the presence of 50 Republicans in the Senate appeared as a potential obstacle for her confirmation.

In April 2021, Biden issued an Executive Order forming the Presidential Commission on the Supreme Court, presenting major reform proposals for the Supreme Court. In its final report, the Commission identifies considerable bipartisan support for implementing an 18-year term-limit for the justices. But there was no agreement on whether Congress should expand the court beyond its current nine seats, a proposal that was support by the progressive wing of the Democratic party.
Independent courts usually manage to control whether the government and administration act in conformity with the 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 very high fees, creating some bias toward the wealthier portions of the population.

In particular, the Constitutional Court’s power, status and role are advanced by international standards. All Austrian laws and executive actions can be reviewed by the Constitutional Court on the basis of their conformity with the constitution’s basic principles. On several recent occasions (e.g., the repeat of the presidential election in 2016), the court has proven resistant to overriding political gridlock. On other occasions, the court has not hesitated to repeal major pieces of government legislation (e.g., the ban on face veils in schools in 2020). In most years, the court ranks as the most trusted institution in Austrian politics.
Eberhard, Harald, The Austrian Constitutional Court after 100 Years: Remodelling the Model?, Zeitschrift für öffentliches Recht, Juni 2021, Heft 2, 395-411.
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.
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. Also, during the COVID-19 pandemic and the month-long state of catastrophe, independent courts and the Comptroller General’s Office exercised their right to monitor administration acts in conformity with the law, although with reduced operational capacity due to the public health restrictions.

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 handed down by the Constitutional Tribunal. The dispute had not been resolved by the end of the period under review.

In the recent past, 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.
Carey, “El funcionamiento de los tribunales nacionales a raíz del COVID-19”, 21 March 2020,, last accessed: 13 January 2022.

García Mejía, Mauricio, “Justicia y COVID-19: 3 formas de impartir justicia durante una pandemia”, 2020,, last accessed: 13 January 2022.

La Tercera, “Suprema versus TC: Los rounds que han marcado la disputa jurisdiccional entre ambos tribunales”, 10 October 2019, Suprema versus TC: Los rounds que han marcado la disputa jurisdiccional entre ambos tribunales,, last accessed: 13 January 2022.
Czech courts operate independently of the executive branch of government. The ordinary courts and the Constitutional Court alike have continued their work even during the states of emergency and have been quite active during the COVID-19 pandemic. They have annulled several government measures and have forced the government to act in a less erratic manner (Vikarská 2021). Unlike the Supreme Administrative Court and the lower courts, the Constitutional Court initially exercised self-restraint. In a controversial decision in April 2020, supported by only eight out of 15 judges, it declared the government’s declaration of a state of emergency constitutional and limited the scope for the judicial review of the emergency measures. Over time, the court has changed course and has re-widened its mandate. In February 2021, it repealed crucial provisions of the electoral law regarding the allocation of seats and the threshold for coalitions (Antoš/ Horák 2021). The surprising ruling forced the political parties to agree on new rules for the parliamentary elections in October 2021. Four of the 15 judges did not join the majority decision.

The appointment of Marie Benešová as justice minister in May 2019 raised some concerns about the independence of the judiciary. 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. She continued to clash repeatedly with the Prosecutor General Pavel Zeman, who resigned on 14 May 2021 after more than a decade in office, citing undue pressure from the justice minister. Zeman’s last major case was the 2014 explosion of the ammunition depot in Vrbetice, for which – as revealed in 2021 – the Russian secret service GRU was responsible. In July 2021, the government appointed Zeman’s deputy, Igor Striz, prosecutor general. The opposition criticized the choice as Striz was a military prosecutor during the communist era.
Antoš, M., F. Horák (2021): Better Late than Never: The Czech Constitutional Court Found the Electoral System Disproportionate 9 Months before Election, in: VerfBlog, February 20 (, DOI: 10.17176/20210221-033756-0).

Vikarská, Z. (2021): Czech and Balances – One Year Later, in: VerfBlog, March 30 (, DOI: 10.17176/20210330-195055-0).
Courts are independent of the government and the legislature. Members of the judiciary are promoted through the internal hierarchy of the judiciary. An exception to this is the appointment of the most senior judges and prosecutors. The body of judges and a higher organ of the parliament are consulted on the appointment of the most senior judges and prosecutors, although eventually the government decides. Successive governments have not resisted the temptation to handpick their favored candidates for the president posts of the highest courts. Nevertheless, according to the Greek constitution, 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. However, there is a dire need to restructure the courts, which are spread all over the country, meaning that resources are thinly distributed. Moreover, to this day, there is no code of conduct for judges. 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. Periodically, there is a tug-of-war between the government and the justice system, rendering judicial review a sensitive and unpredictable process. For instance, it is not uncommon for courts to overturn clauses of pension legislation, judging them to be unconstitutional and thus upsetting the government’s drive to contain public pension costs.

Overall, in 2020–2021, the capacity of courts to control whether the government and administration acted in conformity with the law was strengthened. The appointment of senior judges and prosecutors was less biased than in previous periods. There was also some progress made in making courts more efficient, as a new law on the management of the clerical staff of courts was passed in 2021, while there were some improvements in the electronic coding of cases in criminal proceedings and the electronic filing of cases in administrative courts.
Articles 87-91 of the Greek constitution provide for the independence of judges and articles 93-100 for the independent organization of courts.

Information on the extent and quality of judicial review is available at the European Commission’s latest (2021) report on Rule of Law in Greece,
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. The Israeli Supreme Court has struck down only 18 laws since 1992, a relatively low number compared to other countries. 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. Nevertheless, the Supreme Court has maintained its position as one of the three governing institutions with the highest level of trust (after the IDF and the president of Israel)

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.
Azulai, Moran and Ephraim, Omri, “Overruling the infiltration law: The Knesset goes into battle,” Ynet 23.9.2014:,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,

Herman, Tamar, “Israeli Democracy index 2016,” The Israel Democracy Institute. (Hebrew)

Hovel, Revital, “Right-wing Israeli Ministers Introduce Plan Targeting High Court’s Powers,” Haaretz, 15/9/2017,

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:

Svorai, Moran, “Judicial independence as the main feature in judicial ethics” (2010) (Hebrew),
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 and prevents 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 (Council of Europe report 2020). Successive governments have made some efforts to increase the efficiency and speed of the judicial system. The Draghi government has devoted special attention to these aspects. Digitalization of procedures has been promoted.

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.
Council of Europe CEPEJ evaluation report 2020: (accessed 31 December 2021)
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.

The court system suffers from a case overload, leading to delays in proceedings. According to the court administration’s statistical overviews, 88.19% of cases in 2020 concluded within 12 months’ time (18.7% take between six and 12 months), while 11.81% took longer than that.

The Constitutional Court reviews the constitutionality of laws and occasionally that of government or local government regulations. In 2019, the court received 728 petitions, 258 of which were forwarded for consideration. The court initiated 70 cases, dealing with a wide range of issues, including human dignity, non-discrimination, the right to social security, and the right of minorities to use their mother tongue in early education.
1. Court Statistics (2020) Available at:¤tViewMedia=1&visMode=0&Server=, Last accessed: 10.01.2022

2. Constitutional Court (2020). Overview of the work of the Constitutional Court 2020. Available at:, Last accessed 10.01.2022.
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 2020 stood at 1,731, 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. The European Commission’s 2021 Rule of Law Report on Portugal finds that there are still concerns with regard to human resources in the judicial system. It also notes that while the system has become more efficient, shortcomings remain in the administrative and tax courts.
European Commission (2021), “2021 Rule of Law Report: Country Chapter on the rule of law situation in Portugal,” available online at:

Pordata, “Magistrados judiciais: total e por sexo,” available online at:
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. In a demonstration of judicial independence, the Seoul Administrative Court in December 2020 ruled against the government after Prosecutor General Yoon challenged his suspension by the minister of justice.

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.

With COVID-19 restrictions heading into a third year, the number of complaints and lawsuits brought against the government for violation of individual or collective rights is growing. Businesses forced to close have mostly petitioned the president. Civic groups and churches have filed court cases regarding the legality of government bans on political rallies. Courts have largely ruled in favor of the government and upheld the bans. However, in some instances, courts have overturned government decisions and allowed rallies to proceed. In October 2021, the Seoul Administrative court noted that a complete ban on outdoor rallies in Seoul was excessive, and pointed to the double standard of allowing in-person church services and other personal events (e.g., weddings). Such rulings suggest that courts are carefully considering the justifiable limitations of constitutional rights.
JoongAng Ilbo. “Selective justice.” October 10, 2019
Lee, Hae-a. “(Lead) Coffee Shops, Bars, Internet Cafes Join Protest against Virus Restrictions.” Yonhap News Agency, January 6, 2021.
Oh, Sun-min. “Court Allows Small-Scale Holiday Rallies amid Covid-19 Concerns.” Yonhap News Agency, October 1, 2021.
Song, Jung-a. “South Korea’s Megachurches Take on Government in Coronavirus Battle.” Financial Times, September 18, 2020.
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 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.

During the first nationwide state of alarm, citizens had access to legal recourse, in the sense that they could challenge violations of their fundamental rights and urgent cases could be heard in court. Spanish courts have been quick to react to appeals against measures adopted by the executive, and courts upheld appeals against restrictions placed on fundamental rights, for example by allowing demonstrations to take place. Regional high courts across the country overturned restrictions implemented by autonomous communities and local administrations on the basis that only the central government could restrict fundamental rights (e.g., freedom of movement) under the constitutional authority of a state of alarm.

The politically fragmented parliament remained unsuccessful in mustering the three-fifths majority necessary to appoint new members to the General Council of the Judiciary – an autonomous body composed of judges and other jurists, which aims to guarantee the independence of the judges. The incumbent council continued to operate on an interim basis at the end of 2021, raising concerns about the legitimacy of its judicial appointments and other decisions.

The 2021 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 2021 EU Justice Scoreboard also shows that Spain’s public increasingly perceives courts and judges as lacking independence. The main reasons given by members of the general public for this relate to perceived interference or pressure by the government and politicians.

However, there were also some improvements in this area.

In March 2021, a new statute for lawyers was approved that protects their independence. The statute provides that chambers of lawyers shall be democratic, autonomous and transparent. Under the new statute, chambers are obliged to publicize their services online. It also sets provisions relating to the right to training and the promotion of gender equality in the legal profession.
In March 2021 the parliament adopted a new law which reinforces provisions on data protection, setting the frequency of payment in certain autonomous communities that have not taken over powers in the management of the justice system, and establishing the creation of the National Council for Free Legal Aid.

The government has also continued in its efforts to increase the efficiency of the justice system. In October 2021, the government approved the preliminary Draft Law on Digital Efficiency of the Public Justice Service, which will enhance legal provisions relating to data management, and allow for interoperability of applications within the justice system.

Finally, the judges had an active role in 2020 – 2021 in reviewing the measures adopted by national and regional governments to manage the pandemic.
EC(2021), “EU Justice Scoreboard”

EC (2021) The rule of law situation in the European Union, COM/2021/700 final -
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.

After the Supreme Court decision declared the first Johnson government’s attempt to prorogue Parliament in 2019 illegal, the new government questioned the existing balance of judicial and parliamentary powers, which in their view had become distorted over the previous decade. Attorney General Suella Braverman argued that to restore the supremacy of Parliament, courts should no longer be able to question primary legislation enacted by Parliament or interfere in parliamentary proceedings. The proposed Judicial Review and Courts Bill has met much criticism, however, with a cross-party group of members of parliament and peers, but also Conservative MP David Davis saying it could endanger government accountability and should therefore be dropped.
The Administrative Court, which was established in 2016, contributed to somewhat speeding up the administration of justice, but failed to meet critical challenges. A Supreme Court 2021 study showed that backlogs (cases older than two years) counted for 58% of the total cases in trial courts; in appeal courts the rate was 63% for civil law and 44% for administrative law.

Studies, proposals, plans and actions recently have taken attempted to shorten delays in proceedings. Meanwhile, an upgrading of material infrastructure has started, e-justice is making its first steps, a school for judges was established by law in 2020 and new rules of procedure are awaiting a parliamentary vote. However, the major issue is a long-awaited vote in parliament on critical reforms.

A survey of lawyers identifies problems in the judicial system and questions the judiciary’s integrity. Since late 2018, claims of nepotism, and links between justices’ families and leading law firms have been raised. However, in its compliance report, published in November 2020, GRECO concludes that all of its 2016 recommendations for the judiciary were satisfactorily implemented.

Without a vote on and the implementation of reforms, timely judicial review remains highly problematic. Public authorities feel free to violate the law, since justice is applied belatedly.
2. GRECO – Cyprus - Fourth Evaluation Report Corruption prevention in respect of members of
parliament, judges and prosecutors November 2020
3. Most lawyers doubt impartiality of judges, Cyprus Mail, 16 December 2021,
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. The EU barometer has noted important improvements with respect to judicial independence in Malta through reforms enacted by the government between 1920 and 1921. 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, the vast majority of these have dealt with pre-1979 legislation.

The role of the Office of the Attorney General, which unlike in other several EU member states has never been a political office, underwent reform in 2019. 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. A new state advocate has been appointed under the new legislation after being unanimously recommended by the appointments commission following a public call. These reforms are in line with the recommendations of the Venice Commission. The European Commission 2021 Rule of Law report on Malta, however, stated that “the removal of the attorney general can be carried out by the president of Malta following a resolution adopted by a two-thirds majority in parliament. Similar changes have been introduced for the State Advocate In its October 2020 Opinion, the Venice Commission recommended that an expert body should decide on the grounds for removal, or that an appeal to the Constitutional Court should be possible against a decision of a parliamentary committee, before the plenary of parliament takes the final decision on the removal.”

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 2021 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 remains high. The report emphasized the lack of internet-based tools for legal-rights education, and information for children. Information for the eligibility of legal aid has been made more transparent by a new IT system. In a survey, nearly 70% of the public and 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 colored by smallness. There is general agreement among international bodies that the judiciary is fairly independent and efficient and provides strong protection of property rights. 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 and judges must enforce more discipline.
Citations: ve-justice/files/justice_scoreboard _communication_en.pdf 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
The 2016 EU Justice Score board
Malt’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
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
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 limitation of the right to assembly and protest, and the right to free movement during the COVID-19 epidemic. However, the lower courts have sometimes been criticized for letting influential people off the hook.
In January 2020, parliament passed a law amending the Classified Information Act, which restricts access rights for deputy ombudsmen. They can no longer fulfill their obligations without restrictions. At the same time, the Union for Civil Liberties reports that prosecutors and courts frequently withhold information contrary to the provisions of the Access to Public Information Act.
ENNHRI, The rule of law in the European Union Reports from National Human Rights Institutions, p. 203

Ottavio Marzocchi 2021: The situation of Democracy, the Rule of Law andFundamental Rights in Slovenia. Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 690.410 date.pdf

Civil Liberties Union for Europe 2021: EU 2020: Demanding on Democracy. Country & Trend Reports on Democratic
Records by Civil Liberties Organisations Across the European Union.
Iceland’s courts are not generally subject to pressure from either the government or powerful groups and individuals. The jurisdiction of the Supreme Court to rule on whether the government and public administration have conformed to the law is beyond question. According to opinion polls, public 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%. It remained near that level in 2021 at 46%.

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, have maintained control over the Ministry of Justice for 85 out of the 94 years between 1927 and 2021.

In 2017, a sitting Supreme Court justice sued a former justice for libel in a case that awaits a verdict by the Supreme Court. The plaintiff, then chief justice, lost his case at the Supreme Court in 2021. Then, in 2019, the former justice sued another sitting justice over a private land dispute, a case that is still pending. Disputes among justices do not inspire confidence and trust, least of all when they trade accusations of illegal behavior.
Gallup (2022), Traust til stofnana (Trust in Institutions), Accessed 3 February 2022.

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.
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 the court is careful to come in direct conflict with the government so as to avoid unwanted political attention. Perhaps because of this, the Supreme Court engages only in judicial review of specific cases, and does not perform a general review of laws or regulations.

The conventional view is that courts tend to treat government decisions quite leniently. This is not to suggest that the future Japanese government might curtail the freedom of the courts if they decide in a way that disagrees with the government. Indeed, some of the recent cases suggest that the court is taking positions that are not in agreement with the government. The evidence is thus more mixed.
The Slovak court system has for long suffered from low-quality decisions, a high backlog of cases, rampant corruption and repeated government intervention. As it has turned out in the proceedings, high-profile judges and prosecutors have been involved in the criminal network of Marian Kočner, the man who is accused of standing behind the murder of Kuciak and Kušnírová. As a result, the lack of Slovak citizens in the judicial system has been low.

Judicial reform has been a major issue in the 2020 election battle and has featured prominently in the government manifesto of the new center-right government. Already at the end of 2020, the government adopted a comprehensive judicial reform prepared by Minister of Justice Mária Kolíková (Za ľudí – For the People) (European Commission 2020, 2021). The reform has included a reform of the Judicial Council, the establishment of a new, Supreme Administrative Court, property checks of justices, an age cap for justices, changes in the appointment of Constitutional Court justices as well as changes in the territorial layout of district and regional appeal courts. However, the implementation of these reforms has faced resistance not only by the “old guard,” that is, those justices and prosecutors most affected by such reforms. The originally planned reduction in the number of district courts, which aimed at weakening long-established ties between justices, politicians, oligarchs and organized crimes, has been blocked by Sme-Rodina. Maroš Žilinka, the new prosecutor general appointed in December 2020, has taken a number of dubious decisions. In particular, he has shielded the well-connected former director of the Slovak Intelligence Service and four other high-profile individuals against corruption charges (Ovádek 2021).

During the COVID-19 pandemic, the courts have remained operational. The Constitutional Court found the government’s declaration of a state of crisis in October 2020 constitutional, but has declared individual government measures unconstitutional
European Commission (2020): 2020 Rule of Law Report. Country Chapter on the rule of law situation in Slovakia. SWD(2020) 324 final, Brussels (

European Commission (2021): 2021 Rule of Law Report. Country Chapter on the rule of law situation in Slovakia. SWD(2021) 727 final, Brussels (

Ovádek, M. (2021): General Prosecutor, the Supreme Leader of the Slovak Republic? in: VerfBlog, September 2 (
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 one is barred from judging parliamentary laws in terms of their conformity to the constitution. This is supposed to be a task for parliament itself, especially the Senate as a chamber of deliberation and reflection. Partially making up for this lack of a constitutional conformity review is the fact that parliament is supposed to check that new legislation conforms with EU and other international law to which the country is signatory. However, this task is often neglected or, given the political mood over the last decade, deliberately disparaged; this has helped prompt strong criticism of the quality of parliamentary legislative work.

Offering further testimony to the fact the Dutch governmental system is not about the separation of powers, but rather about mutual checks and balances between the three branches of government, is the fact that the intensity of judicial review of executive actions has peaked since 2015. This attracted international attention when a Dutch appeals court upheld a landmark climate change ruling, confirmed in a Supreme Court verdict in 2019, instructing the Rutte government to raise its greenhouse-gas reduction goal of 17% to at least 25%. Meanwhile in 2019, another such Supreme Court ruling ordered the government to tighten its nitrogen emission rules, leading to an immediate cessation in the issuance of many new licenses for farming, road construction and housing construction activities. Even the private sector has not escaped the larger scope of judicial review: In May 2021, Shell was legally obliged to halve its CO2 emission in the next nine years. The ensuing deep policy paralysis still awaits a political settlement even after the new coalition agreement of December 2021. These events have initiated a new debate on the proper relations between politics/policy and the judiciary/legal system; some believe that legal activism (or even dikastocracy) is infringing the primacy of politics and its sovereignty. This offers further evidence of the practice of checks and balances; the judiciary itself came under increasing political and civil society scrutiny, both with regard to the degree to which it is truly independent of politics and in its internal functioning.

In 2017, a deputy minister of legal affairs openly admitted that he had reduced the provision of state-supported legal assistance (fees for pro deo social lawyers) to ordinary citizens in order to achieve more punitive court sentences. Only the new coalition agreement of December 2021 turned this decision around, by providing more state resources to social lawyers. And in the context of anti-drugs and crime-control policy, police, mayors and fiscal authorities often “harass” suspects rather than initiating legal procedures, which are perceived as a time-consuming nuisance with zero practical impact. 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 striking mega-deals (such as fines) with corporations and banks, which in light of a neoliberal efficiency analysis are presumably deemed more efficient than conducting full-fledged trials responding to 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 hampered its proper functioning.

Whereas the Supreme Court is part of the judiciary and is supposedly “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 have not to date been 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 (uitvoering) and law enforcement (handhaving) can offer sound advice to the government. The ruling on climate goals and nitrogen emissions appear to support this evaluation. However, the child benefits scandal and other cases involving illegal data collection and sharing about citizen behavior demonstrate that the judiciary often, due to executive organizations’ (like the tax authorities, or the Integration and Naturalization Service (IND)) willful or practically incomplete disclosure of information, lacks detailed information about implementation practices. Regarding the childcare benefits affair, the Administrative Court’s highest judge recently apologized that the courts had stuck to a strict law enforcement “groove” far too long, attributing this state of affairs to a “political climate” of pressing for “zero tolerance” and “strict, stricter, strictest.” In addition, fragmented legislation – for example, citizens had to appeal consecutive and interdependent tax decisions one by one – hampered judges’ ability to gain a clear overall view of the situation, the judge added. The Supreme Court was also charged with making rulings that were too “executive friendly” when dealing with information from refugees and foreigners, for politically inspired reasons. However, new EU directives have been able to offer more leverage to lower court judges.
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 (, accessed 4 November 2019)

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

Pieter Tops and Jan Tromp, 2016. De achterkant van Nederland.Leven onder de radar van de wet, Balans

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NRC-H, Jensma, 2 October 2021. Het is tijd om aan rechten als objectieve wetenschap te gaan twijfelen.

Volkskrant,, Weijer and Hotse Smit, 26 May 2021. Historische uitspraak in klimaatzaak: Shell moet CO2-uitstoot drastisch verminderen.
Courts are independent, but often fail to ensure legal compliance.
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.

Since 2015, judges have become formally more independent from prosecutors and investigators in the Supreme Judicial Council, although the prosecutor general has had informal leverage to influence Council decisions through different standing committees and Council members from the investigation.

However, despite the formal independence of various committees within the Council, its work remains politicized and its decisions are influenced by the political establishment. The office of the prosecutor general also lacks transparency and accountability. The Council was heavily criticized in 2019 for the highly opaque and non-competitive manner in which it went about appointing a new prosecutor general, which met with public protest.

Despite the fact that judges who decide in favor of the government are promoted more quickly than judges who act independently, the latter continue to act with integrity in observation of the law and legal procedures. However, the judiciary’s ability to act as a check on the executive has been compromised in many ways.
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 (

Vassileva, R. (2019): CVM Here, CVM There: The European Commission in Bulgaria’s Legal Wonderland. Verfassungsblog, June 16 (
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.
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.

Judicial reform is a key element of President López Obrador’s agenda. However, the opposition usually criticizes all efforts as a strategy to undermine judicial independence. Critics from the opposition claim that judicial independence has been undermined, since the power of the chief justice, Arturo Zaldívar, has been increased considerably, and Zaldívar is seen as an ally of President López Obrador.
EFE México (2018). Sistema penal acusatorio en México, avance histórico frenado por corrupción.
Mexico Evalua 2019: Diagnostico inaugural,
The Hungarian judiciary performs well in terms of the length of proceedings and has a high level of digitalization. However, its independence has drastically declined under the Orbán governments (European Commission 2021). 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. Likewise, Péter Polt, the Chief Public Prosecutor, a former Fidesz politician, has persistently refrained from investigating the corrupt practices of prominent Fidesz oligarchs. As a result of the declining independence and quality of the Hungarian judiciary, trust in the Hungarian legal system among the general public has dropped over time. 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.

During the first lockdown, proceedings at ordinary courts were suspended, officially due to fears of spreading the virus. This also meant that ordinary people were no longer able to initiate cases that could get to the Constitutional Court. Under these circumstances, except for some Fidesz-controlled bodies, only one-quarter of members of parliament were able to call on the Constitutional Court, which would have required the far-right and the left to act together. The Constitutional Court has refused many requests for constitutional reviews and has not dared to challenge the Orbán government’s power-grab during the COVID-19 pandemic. In October 2020, the government consolidated its control over the Kúria, as the Fidesz supermajority in parliament elected Zsolt András Varga (a member of the Constitutional Court, who does not have any experience working as an ordinary judge) as its new president, despite the wide and angry reactions this elicited among judges and their professional organizations, and despite the fact that the National Judicial Council has issued a negative opinion.
European Commission (2021): 2021 Rule of Law Report. Country Chapter on the rule of law situation in Hungary. SWD(2021) 714 final, Brussels (
Polish courts are relatively well-financed and adequately staffed, but have increasingly come under government influence under the PiS government (Baczyńska 2021). The takeover of the Constitutional Tribunal in the PiS government’s first year in office has been followed by a series of reforms that have limited the independence of the National Council of the Judiciary, the Supreme Court and ordinary courts, and have been pushed through despite massive domestic and international protests. The laws have given the minister of justice, as well as the general prosecutor, far-reaching powers to appoint and dismiss court presidents and justices. Filled with government-friendly judges, the Constitutional Tribunal did not question the weak justification and limited specification of the government’s emergency measures during the COVID-19 pandemic, which did not meet constitutional requirements (Jaraczewski 2020). Meanwhile, the Supreme Court was quick to declare the 2020 presidential elections valid, despite almost 6,000 complaints regarding difficulties in voter registration, on-time ballot deliveries and voting abroad. The struggle between the Polish government and the European Union over judicial reform has continued. Poland has been urged to abolish the newly created Disciplinary Chamber of the Supreme Court as well as the January 2020 “muzzle law,” which allowed judges who sent preliminary references to the Court of Justice of the European Union to be punished. In autumn 2021, the Court of Justice of the European Union sued the Polish government, arguing that Poland should pay a fine of €1 million per day because it had not dissolved the Disciplinary Chamber yet.
Baczyńska, B. (2021): Zwischen Verfassung und Präsidentenwillen. Der Umbau des Justizsystems in Polen, in: Polen-Analysen Nr. 283, 2-8 (

Jaraczewski, J. (2020): An Emergency By Any Other Name? Measures Against the COVID-19 Pandemic in Poland, in: Verfassungsblog, April 24 (
Both domestic and international (European) courts have weighed in on Romanian legislative processes through 2020 and 2021, in addition to regular activities by the Romanian Constitutional Court to review legislation and ensure compliance with existing legal frameworks. In 2017–19, the governing majority amended the laws on the status of judges and prosecutors, judicial organization, and the self-governing body of the judiciary (Superior Council of Magistracy). This reform created, among other things, the special prosecutorial Section for the Investigation of Offenses in the Judiciary (SIIJ).

The European Union monitors judicial reforms and anti-corruption policies in Romania under the Cooperation and Verification Mechanism (CVM) in order to check whether Romania complies with commitments agreed in its EU Accession Treaty from 2004. Driven by the interest in ending the CVM, several governments have sought to support an independent judiciary and to respect judicial review procedures.

The European Commission has set several objectives that need to be met for the CVM to be closed. These include dismantling the SIIJ, disciplinary, civil and criminal liability regimes for judges and prosecutors, and increasing accountability over the appointment and dismissal of judicial inspection management and senior prosecutors.

The dismantling of the SIIJ is of particular concern, as it has been observed to impede the independence of the judiciary by placing undue pressure on prosecutors, which can intervene with high-level corruption cases. While the justice minister drafted a proposal to disband SIIJ in 2020, parliament later rejected the draft initiative introduced by a group of members of parliament to dismantle the section. In early 2021, the government drafted a new law to abolish the SIIJ, which was shared with the Superior Council of Magistrates (SCM) for its opinion. The SCM issued a negative opinion, arguing it needs additional guarantees to protect magistrates from potentially abusive corruption investigations. However, the government did not follow on the SCM’s opinion and adopted the draft law on 18 February 2021 through normal process. During the Chamber of Deputies reviews in March, provisions were added that were meant to “protect magistrates against abusive corruption investigations,” proposing that a request for approval should first pass through the SCM. This additional step brought criticism from civil society and the judiciary, and from the SCM, saying that it equated to new a form of immunity and could limit the accountability of magistrates. The draft law was sent to the Venice Commission for review and the SIIJ remains in effect at the end of 2021. The abolishment of the SIIJ in order to increase the protection of prosecutorial and judicial independence would be a positive advancement in ensuring independent and thorough judicial review in Romania.

In May 2021, the Court of Justice of the European Union (CJEU) ruled that the CVM objectives have direct effect, and are binding on government and courts. These rulings were opposed by the Romanian Constitutional Court (RCC) in June 2021. The RCC claimed that EU law does not have primacy over the Romanian constitution. Thus, domestic courts would not be entitled to disregard laws they considered to be in violation of EU law or to check whether laws declared as constitutional would conform to EU law. According to the RCC, courts would not have to respect and apply CVM obligations, and the SIIJ would conform to Romania’s constitutional rule of law provisions. Reacting to this decision, in December 2021, the CJEU reaffirmed the primacy of EU law over national law, including national constitutional law.
European Commission (2021): Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism. COM(2021) 370 final, Brussels (

Selejan-Gutan, Bianca: Who’s Afraid of the „Big Bad Court”?, VerfBlog, 2022/1/10,, DOI: 10.17176/20220110-195203-0.
Bianca Selejan-Gutan

Tănăsescu, Elena-Simina; Selejan-Gutan, Bianca: A Tale of Primacy: The ECJ Ruling on Judicial Independence in Romania, VerfBlog, 2021/6/02,, DOI: 10.17176/20210602-123929-0.

European Commission: 2021 Rule of Law Report. Country Chapter on the rule of law situation in Romania, Brussels 20 July 2021 SWD(2021) 724 final
Several articles in the Turkish constitution ensure that the government and public administration act in accordance with legal provisions and those citizens are protected from the state. Article 36 guarantees citizens the freedom to claim rights and Article 37 concedes the guarantee of lawful judgment.

However, judicial review has been seriously undermined in line with tightening authoritarianism in recent years. Most notably, the local courts sometimes do not implement the rulings of the Constitutional Court or the European Court of Human Rights, which are legally binding. This tends to occur following pressure placed by political authorities on the judiciary, as in the trials of the prominent political figures such as former CHP vice-chair Enis Berberoğlu and former HDP co-chair Selahattin Demirtaş.

Judicial staffers are still being dismissed or forcibly transferred. This risks engendering widespread self-censorship among judges and prosecutors. This may weaken the judiciary as a whole, while further undermining its independence and the separation of powers. No measures have been 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 have been made to the institution of criminal judges of peace, which risks becoming a parallel system.

There is no human resources strategy in place for the judiciary, which struggles to perform its tasks effectively in the wake of a substantial reduction of 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.

The Judicial Reform Strategy’s effort to improve the quality and the number of staffers has not so far created the intended result. The backlog persists. Large-scale dismissals, including over 3,968 judges and public prosecutors, for being Gülenists has increased the backlog of cases. As of June 2021, a total of 43,372 cases were still pending at the Constitutional Court, while 133,428 cases were pending in front of the Council of State. The Constitutional Court had finalized 257,108 cases out of 295,038 individual applications since September 2012. The number of judges and prosecutors totaled 21,979 in 2020.
European Commission. “Turkey Report 2021. Commission Staff Working Document.” October 19, 2021.
Courts are biased for or against the incumbent government and lack effective control.
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