De Jure and De Facto judicial autonomy: Understanding and Systematising Factors Contributing to Discrepancies

This paper seeks to examine and systematise the factors contributing to discrepancies between de jure and de facto judicial autonomy. 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 autonomy based on the law, such evaluations may not fully capture the actual state of judicial autonomy. 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 autonomy, 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 autonomy 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 autonomy 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 autonomy exist across a diverse spectrum of countries and pertain to various aspects of the setup of the judiciary. This paper will begin by theoretically discussing the relationship between de jure and de facto judicial autonomy. Subsequently, we will enumerate instances of noteworthy discrepancies and examine the specific reasons behind each case. Guiding questions will be posed to explore systemic triggers, identify domains or categories with higher or more visible discrepancies. In this regard, we will assess the influence of legal text wording on the application of the law, paying attention to how specific or vague the legal rules are and whether they foresee an effective enforcement mechanism. We will also scrutinise the role of legal culture in shaping these differences, and examine the involvement of international actors in either perpetuating or rectifying such gaps. Our objective for addressing these questions is to comprehend the factors contributing to the discrepancies between de jure and de facto judicial autonomy, systematise them and contemplate potential measures to strengthen both aspects.