Author-meets-the-critic: Perceptions of Judicial Self-Governance in Europe

Abstract

Many European countries have transferred powers concerning judicial careers and court administration to judicial councils. These independent bodies were intended to depoliticise the judiciary, maintain a balance between judicial independence and accountability, and ideally increase the efficiency of the judicial branch. Supranational organisations, judges, policymakers, lawyers and political scientists argue vehemently whether judicial councils delivered the goods they promised. However, the empirical data does not support this claims. The experience with judicial councils is, at best, mixed. In some countries, judicial councils magnified cronyism, corruption, or patronage (Slovakia, Georgia). In others, judicial councils were relatively easily captured by political branches and packed by judges loyal to the government, serving as the transmission belt, or staffed by political nominees (Poland). It also seems that judicial councils in Western democracies did not bring more expertise, better flexibility, nor did they managed to increase transparency and public trust in decision-making. The aim of this panel is twofold. First, based on the discussion of the book project on European Perceptions of Judicial Governance, it presents a unique first-hand experience of judges, politicians and lawyers engaged in judicial governance, with institutional models of judicial governance present in Czechia, France, Germany, Italy, Poland and Slovakia. It focuses on major rationales behind the given institutional models, as well as actors’ personal experience with their functioning. These experience is compared with data on judicial independence and institutional setups present in countries of Latin America and Southern Africa, which are also slowly leaning closer to models of self-governance, particularly in the area of judicial selections. Second, the panel argues that part of the failure related to expectations vested in judicial councils rests in unsuccessful change of actors’ professional role-conception. Panellists explore how actors understand the position of judicial governance in the system of separation of powers. They argue that any change in institutional model needs to be supported by a change in the professional role conception of primary actors, as well as in the understanding of the overall function of judicial councils. As authors argue, European countries failed to achieve a unified understanding of what role judicial councils ought to play and what their relationship to each of the three branches of power should be.

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