Shield or a Target? The Journey of Judicial Councils' Resilience

Following the fall of the Iron Curtain, several countries of the former Eastern Bloc faced the challenge of judicial transformation. The establishment of a judicial council, as an institutionalised form of judicial self-government, was commonly proposed, almost as a "cure for it all". More or less conditioning the successful accession to the European Union and the Council of Europe to the establishment of a judicial council, the concept was often presented as a somewhat uniform recipe how to ensure the protection of judiciary from arbitrary political interference. In response to the above, various European bodies (such as the Venice Commission, the European Network of Councils for the Judiciary, the Consultative Council of European Judges, etc.) proposed several recommendations on the institutionalisation and functioning of judicial councils, both as general and as specific recommendations for individual candidate countries. Despite the attempted reforms to strengthen the independence of judiciaries in Europe, judicial institutions have faced various forms of attacks in the last decade, judicial councils being no exception. Extensive attention was paid to the cases of Poland, Hungary, or Romania, conducting vast research on the reinforcement of independence of judicial institutions. Drawing from this empirical experience, several authors began to develop an idea that institutional safeguards of judicial independence may not be alone sufficient. Following the latter, recent academic work is paying rising attention to the stand-alone concept of resilience, opening a discussion about institutional safeguards that would make judicial councils more resilient to attacks from the outside (by political interferences) as well as from the within (by judicial oligarchs). However, looking back to the fundamentals, little attention has been paid to the questions of how the above recommendations of the European bodies have affected this resilience, despite the fact they have greatly influenced the institutional architecture of judicial councils as we know them today. The article is therefore structured as follows: the first part aims to create a comprehensive model of the principles governing the judicial council, as suggested by the European bodies in question. Drawing from the existing conceptualization of judicial independence and institutional resilience, the author critically confronts the principles within the model with the empirical knowledge achieved within the field of judicial self-governance and identifies the potential deficiencies that have ultimately undermined the resilience of judicial councils. In the following case study of countries which institutionalised judicial councils with regard to the EU enlargement policy, the author critically analyses how the implemented recommendations affected the level of resilience of judicial councils and compares it to the countries which decided to follow a different path of judicial self-government arrangement. Secondly, the case study aims to determine to what extent the targeted recommendations managed to consider the specific conditions of individual countries. Inevitably, the analysis seeks to bring more light into the question of who should be the driver of domestic judicial reforms and whether the national experts or the international actors should be given greater competence in this regard.