Dear colleagues, dear readers,

 

The rule of law as an organisational model is a basis for a democratic state and any international organisation. It provides the necessary framework for modern law, including constitutions and treaties, and is one of the key elements of the Council of Europe’s mandate. At its core, the rule of law ensures that all public power is exercised in accordance with laws, human rights and democratic values, while the possible abuse of power within the democratic society should be prevented by independent courts.

An independent and impartial judiciary is one of the cornerstones of the rule of law. However, the practical ways in which this is given effect are often treated with suspicion. For example, judges are given immunity from prosecution for any acts they carry out in performance of their judicial function. They also benefit from the security of tenure until the statutory age of retirement. These principles have led some people to suggest that judges are somehow ‘above the law’; there have been populist comments referring to judges as the “enemies of the people” and mentioning that the “judiciary should be given back to the people”.

Judges are not above the law. They are subject to the law in the same way as any other individual. Judges are subject to evaluation procedures of their performance. Disciplinary and criminal proceedings may be initiated in order to establish whether it would be appropriate to remove judges from office in circumstances where they have been found to have committed a disciplinary or criminal offence.

Judicial independence does, however, mean that judges must be free to exercise their judicial powers without interference from litigants, the State, the media or powerful individuals or entities, such as large companies or political parties. This is an important principle because judges often decide matters between the litigant and the state and between litigants and powerful entities. Individuals involved in any kind of case before the courts, criminal or civil, need to be sure that the judge dealing with their case cannot be influenced by an outside party or by the judge’s own personal interests, such as subjective considerations linked to his or her personal advancement and promotion. This requirement that judges be free from any improper influence also underpins the duty placed on them to declare personal interests in any case before it starts, to ensure that there is neither any bias nor partiality, nor any appearance of such. A practical example of the importance of judicial independence is where a high profile matter, which has generated a great deal of media interest, comes before the court. Such matters range from the criminal trial of a person accused of a shocking murder, the divorce of celebrities, and challenges to the legality of government policy, for example, the adequacy of government planning policy or the deportation of persons because of their criminality. It is reasonable to believe that the judge hearing such case will often be under intense scrutiny, with decisions open to intense debate. It is right that this is so. But it is important that decisions in the courts are made in accordance with the law and are not influenced by such external factors.

It is clear from the Report on judicial independence and impartiality in the Council of Europe member States (2019 edition) prepared by the Bureau of the CCJE that the problems regarding the independence of judges as a whole are very serious and worrisome in several member states of the Council of Europe countries, not only east but also west of Vienna. As a general observation, there is no strong commitment and no sincere political will to strengthen the rule of law; in some countries, it is even the opposite. Infringements of judicial independence are related to appointment and security of tenure of judges; functioning of Councils for the Judiciary and the administration of courts; impartiality of judges, codes of ethics and professional conduct and disciplinary measures; economic basis for smooth functioning of the judicial system; public discussion and criticism of judges. In this connection the CCJE Bureau reiterated its statement that “what is critical is not the perfection of principles and, still less, the harmonisation of institutions; it is the putting into full effect of principles already developed”.

In the light of the importance of the rule of law for a well-functioning free democratic society, developments in several countries – especially the idea to establish real and effective control over the judiciary, exercised by the current political majority in the legislative and executive branch of power – seem to remarkably stray away from the modern understanding of a democratic state that adheres to the principles of the rule of law. In this respect, the relationship of the judiciary with other state powers from the perspective of the rule of law should be clearly reiterated. Calls by the executive for the judiciary to be subject to “democratic accountability”, or claims that it lacks “legitimacy”, are often disguised attempts to justify appointments based on political considerations aiming to serve the will of the current political majority.

The law is to be applied by the judiciary exercising its power “independently of either the executive or legislative power and individual judges base their decisions solely on facts and law of individual cases”. As the Venice Commission has stated before, judges have a “duty of ingratitude” towards the authority that selected or appointed them.

Human rights standards, such as equality before the law, presumption of innocence and the right to a fair hearing are relevant to judges at all stages of their work. Judges need to be well qualified and personally independent and impartial. They can earn functional legitimacy by performing their duties according to the highest standard of professional conduct which requires a high degree of integrity and dedication to the cause of judicial profession. It is not the task of judges to decide cases in the way the current political majority would like them to decide. A functioning judicial system serving the rule of law can never depend on what the majority—however democratically legitimate it may be—wants or desires. A judge's decision can, and sometimes must, be unpopular. This is a necessary element of a functioning judiciary that serves the rule of law. As Advocate General of the Court of Justice of the European Union Poiares Maduro observed in the famous Kadi I case: “The responsibility of the Courts is to guarantee that what may be politically expedient at a particular moment also complies with the rule of law without which, in the long run, no democratic society can truly prosper”.

While recent rule of law index scores show that more countries declined than improved in overall rule of law performance, it is particularly important that judges can exercise freedom of expression and association in order to address threats to the independence of the judiciary and to promote and protect universally recognized human rights and fundamental freedoms and the rule of law. Judges are not an island isolated from the rest of the world – their isolation is, in this regard, a myth and may even have detrimental effect. Associations of judges, national as well as international, can contribute, by breaking this myth, to strengthening the rule of law, while, at the same time, a clear definition of the scope of their action is necessary in order to maintain a judge’s appearance of impartiality. This is why the CCJE decided to prepare its next opinion on this important subject in 2020.

Nina Betetto
President of the CCJE (from 1st January 2020)