Judicial independence: all day, everyday? - Dr. Herman van Harten - EJTN
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Judicial independence: all day, everyday? Dr. Herman van Harten h.van.harten@rechtspraak.nl Judicial independence: all day, everyday?
Judicial independence: all day, everyday? 2
Purpose of my talk • To share and reflect on the notion of judicial independence • To explore judicial independence in everyday life: grey areas? • To engage & excite, perhaps provoke, and warm you up for the working group sessions Judicial independence: all day, everyday? 3
Judicial independence: all day, everyday? 4
Un état d’esprit – a judicial state of mind
“Even with statutory guarantees of judicial
independence, ruling in an independent
fashion is also a state of mind. It involves
know-how that must be taught, cultivated and
developed throughout an entire career.”
Recueil des obligations déontologiques des magistrats 2010, Conseil supérieur de la magistrature, point A.3
5
Poll question 1
Do you really feel “independent”?
a) Yes
b) No
c) It depends
Judicial independence: all day, everyday? 6
5 maart 2020
Why does judicial independence matter? Judicial independence: all day, everyday? 7
Why does judicial independence matter? • Trust. Key guideline for any democratic society • Citizens & companies, parties who rely on the rule of law, justice, and their (human) rights • Within our scope: bear the responsibility for the open society, set limits to power, effective judicial protection • Living instrument throughout judicial life Judicial independence: all day, everyday? 8
A cornerstone of the rule of law,
an essential European foundational value:
“While there is no hierarchy among Union values, respect for the
rule of law is essential for the protection of the other fundamental
values on which the Union is founded, such as freedom, democracy,
equality and respect for human rights. Respect for the rule of law
is intrinsically linked to respect for democracy and for
fundamental rights. There can be no democracy and respect for
fundamental rights without respect for the rule of law and vice
versa.”
EU Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the
Union budget (6),
Judicial independence: all day, everyday? 9
Article 2 and 19 TEU & Article 47 EU Charter Judicial independence: all day, everyday? 10
The close link between judicial independence
and the rule of law:
“[…] it should be recalled that, to ensure that [ courts or tribunals ] are in a position
to ensure the effective judicial protection thus required under the second
subparagraph of Article 19(1) TEU, maintaining their independence is essential,
as confirmed by the second paragraph of Article 47 of the Charter, which refers to
access to an ‘independent’ tribunal as one of the requirements linked to the
fundamental right to an effective remedy (judgment of 24 June
2019, Commission v Poland (Independance of the Supreme Court), C-619/18,
EU:C:2019:531, paragraph 57 and the case-law cited).
As the Court has repeatedly stated, that requirement that courts be independent,
which is inherent in the task of adjudication, forms part of the essence of the
right to effective judicial protection and the fundamental right to a fair trial,
which is of cardinal importance as a guarantee that all the rights which
individuals derive from EU law will be protected and that the values common to
the Member States set out in Article 2 TEU, in particular the value of the rule of
law, will be safeguarded (judgment of 5 November 2019, Commission v Poland
(Independence of the ordinary courts), C-192/18, EU:C:2019:924, paragraph 106 and
the case-law cited).”
CJEU, Judgment of 2 March 2021, Case C-824/18, ECLI:EU:C:2021:153, A.B. and Others (Nomination des juges
à la Cour suprême - Recours) , paragraph 115 and 116
Judicial independence: all day, everyday? 11Courts as canaries in the coal mine… Judicial independence: all day, everyday? 12
‘It always helps to have the referees on your
side.’
‘For would-be authoritarians, therefore, judicial and law enforcement
agencies pose both a challenge and an opportunity. If they remain
independent, they might expose and punish government
abuse. It’s a referee job, after all, to prevent cheating. But if these
agencies are controlled by loyalists, they could serve a would-be
dictator’s aims, shielding the government from investigation and
criminal prosecutions that could lead to its removal from power. (…)
With the courts packed and law enforcement authorities brought to
heel, governments can act with impunity. Capturing the referees
provides the government with more than a shield. It also offers
a powerful weapon, allowing the government to selectively enforce
the law, punishing opponents while protecting allies.
Steven Levitsky & Daniel Ziblatt, How democracies die, p. 78
Judicial independence: all day, everyday? 13Judicial independence depends on… • the state/constitutional guarantees, such as the protection against removal from office • the authority to decide issues of judicial nature by law • public funding (salary and facilities) • the protection against external interventions or inappropriate pressure • the freedom to exercise the judicial function wholly autonomously • the discretion of the legislator and the executive to leave room for the courts and accept their rulings Judicial independence: all day, everyday? 14
Matters of Principle. Codes on the independence and impartiality of the judiciary Soft law codes and guidelines, case law selections – amongst others: United Nations: -Basic principles on the independence of the judiciary -The Bangalore Principles of Judicial Conduct European codes / Factsheets: -ENCJ Working Group Judicial Ethics Report 2009-2010 Judicial Ethics: Principles, Values and Qualities -Magna Carta of Judges (Fundamental Principles) Consultative Council of European Judges (CCJE) -Communication from the Commission - Strengthening the rule of law within the Union A blueprint for action (2019) -Compilation of the Venice Commission Opinions and Reports Concerning Courts and Judges (2019) -ECHR, Factsheet - Independence of the justice system (2020) Judicial independence: all day, everyday? 15
Is judicial independence a matter of EU law?
“[…] it should be noted that, although the organisation of justice in the Member
States falls within the competence of those Member States, the fact remains
that, when exercising that competence, the Member States are required to
comply with their obligations deriving from EU law (judgments of 24 June
2019, Commission v Poland (Independance of the Supreme Court), C-619/18,
EU:C:2019:531, paragraph 52 and the case-law cited, and of 26 March 2020, Miasto
Łowicz and Prokurator Generalny, C-558/18 and C-563/18, EU:C:2020:234,
paragraph 36 and the case-law cited). That may be the case, in particular, as regards
national rules relating to the substantive conditions and procedural rules governing
the adoption of decisions appointing judges and, where applicable, rules relating to
the judicial review that applies in the context of such appointment procedures (see, to
that effect, judgment of 19 November 2019, A. K. and Others (Independence of the
Disciplinary Chamber of the Supreme Court), C-585/18, C-624/18 and C-625/18, ‘the
judgment in A. K. and Others’, EU:C:2019:982, paragraphs 134 to 139 and 145).”
CJEU, Judgment of 2 March 2021, Case C-824/18, ECLI:EU:C:2021:153, A.B. and Others (Nomination des juges
à la Cour suprême - Recours) , paragraph 68
16A vertical and horizontal dimension: Judicial independence: all day, everyday? 17
A precondition for the proper functioning of the
preliminary ruling procedure, which is “the
keystone of the European judicial system”
“With regard to Article 267 TFEU, it should be recalled that the keystone of the
judicial system established by the Treaties is the preliminary ruling procedure
provided for in that provision, which, by setting up a dialogue between one court and
another, specifically between the Court of Justice and the courts and tribunals of the
Member States, has the object of securing uniformity in the interpretation of EU
law, thereby serving to ensure its consistency, its full effect and its autonomy
as well as, ultimately, the particular nature of the law established by the
Treaties […].
According to the Court’s settled case-law, Article 267 TFEU gives in that regard
national courts the widest discretion in referring matters to the Court if they
consider that a case pending before them raises questions involving the
interpretation of provisions of EU law, or consideration of their validity, which
are necessary for the resolution of the case before them […].
CJEU, Judgment of 2 March 2021, Case C-824/18, ECLI:EU:C:2021:153, A.B. and Others (Nomination des juges
à la Cour suprême - Recours) , paragraph 90 and 91
18A precondition for the application of the principles of mutual trust and mutual recognition between national courts in the European legal area “[…] It is for each Member State, in order to ensure the full application of the principles of mutual trust and mutual recognition which underpin the operation of the mechanism of the European arrest warrant established by Framework Decision 2002/584, to ensure, subject to final review by the Court, that the independence of its judiciary is safeguarded by refraining from any measure capable of undermining that independence. […] the executing judicial authority must, in order to assess specifically and precisely whether in the particular circumstances of the case there are substantial grounds for believing that following that surrender that person will run a real risk of breach of his or her fundamental right to a fair trial, examine in particular to what extent the systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary are liable to have an impact at the level of that Member State’s courts with jurisdiction over the proceedings to which that person will be subject […] That examination therefore involves taking into consideration the impact of such deficiencies which may have arisen after the issue of the European arrest warrant concerned. CJEU, 17 December 2020, Joined Cases C-354/20 PPU and C-412/20 PPU, (Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission) ), paragraph 40 and 66 Judicial independence: all day, everyday? 19
Is judicial independence a hard law norm? “The guarantee of independence, which is inherent in the task of adjudication […], is required not only at EU level as regards the Judges of the Union and the Advocates-General of the Court of Justice, as provided for in the third subparagraph of Article 19(2) TEU, but also at the level of the Member States as regards national courts.” CJEU, Judgment of 27 February 2018, case C-64/16, ECLI:EU:C:2018:117 (Associação Sindical dos Juízes Portugueses), paragraph 42 Judicial independence: all day, everyday? 20
Is judicial independence a hard law norm?
“The concept of independence presupposes, in
particular, that the body concerned exercises its judicial
functions wholly autonomously, without being subject to
any hierarchical constraint or subordinated to any other
body and without taking orders or instructions from any
source whatsoever, and that it is thus protected against
external interventions or pressure liable to impair the
independent judgment of its members and to influence
their decisions”
CJEU, Judgment of 27 February 2018, case C-64/16, ECLI:EU:C:2018:117 (Associação Sindical
dos Juízes Portugueses), paragraph 44.
Judicial independence: all day, everyday? 21
5 maart 2020“Judicial independence is thus not only a defining feature of the judicial function, but is also an essential component of the rule of law, one of the key values on which the EU is founded. (…) Judicial independence is of pivotal importance, since it ensures that judges remain faithful to the law and only to the law. Judicial independence is the bedrock of our democracies, be it at national or European level. I would go as far as to say that judicial independence is part of both our common heritage and of our very identity as Europeans.” President Koen Lenaerts, The Court of Justice and national courts: a dialogue based on mutual trust and judicial independence, Warschau, 19 March 2018, conference of the Supreme Administrative Court of the Republic of Poland. Judicial independence: all day, everyday? 22
Internal and external aspects of judicial independence • Internally, judicial independence is intended to ensure a level playing field for the parties to proceedings and for their competing interests. Independence requires courts to be impartial. • Externally, judicial independence establishes the dividing line between the other branches of government and the courts: the absence of any hierarchical constraint or subordination to any other body that could give orders or instructions Judicial independence: all day, everyday? 23
Poll question 2
Is a judge 24/7, 365 days a year in function?
a) Yes
b) No
c) It depends
Judicial independence: all day, everyday? 24
5 maart 2020The internal and external dimension of judicial
independence in EU case law:
“According to the case-law of the Court, the concept of ‘independence’ has two
aspects. The first aspect, which is external, requires that the body concerned
exercise its functions wholly autonomously, without being subject to any
hierarchical constraint or subordinated to any other body and without taking
orders or instructions from any source whatsoever, being thus protected
against external interventions or pressure liable to impair the independent
judgment of its members and to influence their decisions (judgment of
27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16,
EU:C:2018:117, paragraph 44 and the case-law cited).
The second — internal — aspect of the concept of ‘independence’ is linked to
‘impartiality’ and seeks to ensure a level playing field for the parties to the
proceedings and their respective interests with regard to the subject matter of
those proceedings. That aspect requires objectivity and the absence of any
interest in the outcome of the proceedings apart from the strict application of
the rule of law (judgment of 16 February 2017, Margarit Panicello, C-503/15,
EU:C:2017:126, paragraph 38 and the case-law cited).
CJEU, Judgment of 21 January 2020, case C-274/14, ECLI:EU:C:17 (Banco de Santander),
paragraph 57 and 61.
Judicial independence: all day, everyday? 25
5 maart 2020Further developed in various “Rule of Law”- cases/judgments in 2019, 2020 and 2021… Most notably: • CJEU, 24 June 2019, Case C-619/18, ECLI:EU:C:2019:531 (Commission v Poland (Indépendance de la Cour suprême)) • CJEU, 19 November 2019, Joined Cases C-585/18, C-624/18 and C-625/18, (A.K., CP & DO, (Indépendance de la chambre disciplinaire de la Cour suprême) • CJEU, 21 January 2020, Case C-274/14, EU:C:2020:17 (Banco de Santander) • CJEU, 14 May 2020, Joined Cases C-924/19 PPU and C-925/19 PPU (Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság ) • CJEU, 9 July 2020, Case C-272/19 (Land Hessen) • CJEU, 16 July 2020, Case C-658/18, (Governo della Repubblica italiana (Statut des juges de paix italiens) • CJEU, 17 December 2020, Joined Cases C-354/20 PPU and C-412/20 PPU, (Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission) ) • CJEU, 2 March 2021, Case C-824/18, ECLI:EU:C:2021:153 (A.B. and Others (Nomination des juges à la Cour suprême - Recours) • …and various more to come. Judicial independence: all day, everyday? 26
Limits of judicial independence…? • What does judicial independence mean for your personal life? How does your judicial function impact your behaviour in (professional) contacts and relationships? • How do you cope with your workload? • What does “wholly autonomous” deciding mean in daily judicial practice? • Did you ever consider using recent European “Rule of Law”-jurisprudence? Judicial independence: all day, everyday? 27
Limits of judicial independence…? • What is the value of an independent judge without (relevant) cases to decide on? • What is the value of an independent judge with a huge backlog of cases to decide on? • Does the way you draft your judgments matter for your career? • How far does your judicial (online & offline) freedom of expression extend? • Don’t judges hugely benefit from strong countervailing power(s)? • Is the judiciary still ready and relevant for modern society? Judicial independence: all day, everyday? 28
Live in an ivory tower? Judicial independence: all day, everyday? 29
We share the need and responsibility to exercise our judicial functions independently, promoting the right to an effective remedy and to a fair trial on a day-to- day basis! Judicial independence: all day, everyday? 30
Advice from US Justice Breyer: just do your job Judicial independence: all day, everyday? 31
Many thanks for your attention
After the break we will proceed with the working
group session
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