De Jure and De Facto judicial independence: Understanding and Systematising the Discrepancies between Design and Implementation

This paper seeks to examine the various aspects of discrepancies between de jure and de facto judicial independence. While international standards, as outlined by the Venice Commission and emphasised in documents like the European Commission Rule of Law reports, generally assess the judicial independence based on the law, such evaluations may not fully capture the actual state of judicial independence. Previous studies by Voigt and Hayo (2007) and Melton and Ginsburg (2014) acknowledged these distinctions and explored the correlation between de jure and de facto judicial independence, primarily focusing on measurement through various indicators, aimed at capturing also de facto situation. However, their inquiries centered on whether formal legal changes could enhance de facto judicial independence rather than delving into the reasons for the disparities. Addressing this research gap, our paper relies upon data collected within the context of a three years interdisciplinary research project on judicial independence under authoritarian attack. Our analysis concentrates on de jure rules governing the normative and institutional aspects of judiciaries in 42 Member States of the Council of Europe. We developed two questionnaires which helped us gather the data on judicial appointments, judges' rights and obligations, and court management in the ordinary and apex courts in the period from 2000 to 2022, encompassing any legal amendments during this period. While our primary focus was on legal rules in these areas, we also asked our experts involved in the data collection to elaborate on the practical interpretation and application of these rules. Upon analysing the data in conjunction with the experts’ comments concerning the practical dimension, it became evident that differences between de jure and de facto judicial independence exist across a diverse spectrum of countries and pertain to various aspects of the setup of the judiciary.