05 2018

Taking judicial independence seriously?

The foundation Judges for Judges (Rechters voor Rechters) was established in 1999 by Bert van Delden, former President of the District Court of The Hague, on the occasion of his stepping down from the office of chairman of the Dutch Association for the Judiciary (NVvR). He considered it a good idea for Dutch judges not only to focus on their own – generally comfortable – position, but to take up the cause of foreign colleagues in need.

Taking judicial independence seriously?

Illustration: Đorđe Matić (for CINS)

The objective of Judges for Judges, as laid down in its articles of association, is for Dutch judges to support fellow-judges abroad who have got into difficulties because of their work, or are liable to experience such difficulties. This includes judges whose independence may be at risk or who have been threatened or put under pressure in some other way.

Canaries in the coalmine

Do judges need a show of solidarity from other judges? 

Yes, I do think so, because judges find themselves in the line of fire in several countries, especially countries with autocratic leaders, the infamous illiberal democracies, and countries with strong populist movements.

I would like to draw your attention to two publications, which are especially interesting because of what they say regarding the position of the judiciary.

The first is last year’s report by Thorbjørn Jagland, the Secretary General of the Council of Europe, entitled: State of democracy, human rights and the rule of law. Populism – how strong are Europe’s checks and balances? :*1

Efficient, impartial and independent judiciaries are the cornerstone of any functioning system of democratic checks and balances. They are the means by which powerful interests are restrained, according to the laws of the land. They guarantee that all individuals, irrespective of their backgrounds, are treated equally before those laws.
Such judiciaries are an obstruction to populism. This is as a result of their refusal to bow to political whims, as well as their willingness to assert the rule of law against political agendas which would otherwise trample it.
It should therefore come as no surprise that undermining the judiciary is on page one of the populist playbook. Many politicians may find themselves frustrated by judicial decisions. Often, when this occurs, they blame the law in question and seek legislative reform. The populist response, on the other hand, is to blame the courts themselves.
Either the system is declared defunct or individual judges are portrayed as out-of-touch, self-serving and even corrupt. Such criticisms pave the way for political acts which circumvent the established legal order and for reforms which weaken judicial authority and enable greater political influence.

The second publication I would like to draw your attention to is How democracies die, by Steven Levitsky and Daniel Ziblatt:*2

To better understand how elected autocrats subtly undermine institutions, it’s helpful to imagine a soccer game. To consolidate power, would-be authoritarians must capture the referees, sideline at least some of the other side’s star players, and rewrite the rules of the game to lock in their advantage, in effect tilting the playing field against their opponents.
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 is a referee’s 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.

The writers then give examples of ‘capturing the referees’ from around the world: Peru, Argentina, Venezuela but also closer to home (for us): Hungary and Poland.

It is clear that judges often function as the canaries in the coalmine.

It is clear that judges often function as the canaries in the coalmine. If drastic measures are taken against judges in any particular society, these are early warning signs, and everyone, not just judges, should be alarmed.

Taking judicial independence seriously?

Our foundation has supported several judges in recent years in many different countries, such as Venezuela, Honduras, Turkey, Russia, Ukraine and Swaziland, one of the very few (if not only) absolute monarchies in the world.

Serbia: an example

Let me take you back a few years to another country, closer to home: Serbia.

In December 2009, no less than 837 judges were dismissed by a single governmental order. Judges for Judges has been monitoring the developments regarding this large-scale dismissal closely, with specific attention for the position of the dismissed colleagues. Dragana Boljević is chairperson of JAS, the Judges Association of Serbia, and figurehead (both then and now) in the fight for a truly independent judiciary, free of interference from the executive.

Hardly anybody knew about the plight of the Serbian judges.

We paid a number of working visits to Serbia during which we attended the – ramshackle – disciplinary legal proceedings against Boljević. Our foundation, together with European magistrates association Medel, also sought national and international attention for the situation of the dismissed Serbian judges (and prosecutors for that matter). Hardly anybody knew about the plight of the Serbian judges. This is very different from the situation now, with the situation in Poland being broadly reported on in the media.

Given Serbia’s European aspirations, it was – and clearly still is – in the interests of this country not to give EU institutions any reason to be too critical of the reforms to its judiciary. So this is essentially a classic ‘carrot-and-stick’ situation. Consequently, back then our foundation was in frequent contact with the European Commission, especially with the desk of the European Commissioner on Enlargement at that time, Štefan Füle. The discussions have been constantly influenced by the tension between, on the one hand, the political will to enlarge the EU, and on the other, the actual assessment of whether Serbia meets the EU-requirements with respect to the judiciary and fundamental rights (Chapter 23 of the acquis).

We were delighted when on 23 October 2012 the dismissal of judge Dragana Boljević and hundreds of other judges was reversed by the Serbian Constitutional Court. In a broadly motivated decision, identical in all cases, the Court considered that the manner in which the decision of the High Judicial Council (HJC) confirming the judges’ dismissal was taken had completely disregarded procedural rules and that the decision must therefore be annulled. It is important to note that the Serbian judiciary gave this signal itself and that it was not necessary to take the case to the Strasbourg Court to get the arbitrary dismissals reversed. However, simply reversing the dismissals does not create an independent judiciary.

The legal framework in Serbia is not yet compliant with European standards, which leaves scope for political influence in the recruitment and appointment of judges and prosecutors.

In every progress report since then, it has been stressed that judicial independence is not yet assured in practice. The legal framework in Serbia is not yet compliant with European standards, which leaves scope for political influence in the recruitment and appointment of judges and prosecutors. Public comments on investigations and ongoing cases, even at the highest political levels, continue to hamper judges’ independence.

Johannes Hahn, Commissioner on Enlargement, held a speech in February this year entitled: What the Western Balkans Strategy means for Serbia:*3

For Serbia these conditions are clear: The pace of its accession negotiations depends on Serbia’s ability to implement reforms, in particular in the rule of law area.
As President Juncker said: ‘The rule of law is the foundation on which our Union, which is a legal community, is founded. It is of such fundamental value that only states that comply with it can join.’
Let me be very clear: For the EU, rule of law reforms are not a paper exercise! They are not only about strategies, action plans or reports – no matter how important they are; and certainly not simply about adopting legislation.
In fact, rule of law reforms are about deep, far-reaching, transformational changes. Strengthening the independence, impartiality and efficiency of the judiciary; stepping up the fight against corruption and organised crime; creating an environment that fully guarantees freedom of expression and of the media. These are some of [the] key challenges that have a direct and tangible impact on citizens’ lives.
We are now at a critical juncture: Further progress can only be achieved if Serbia gives the utmost priority to tackling key weaknesses on the rule of law.

More concretely, we need to see legislation adopted; institutions set up and strengthened; and, in many areas, we need to see how these institutions work in practice and the results they produce. Serbia must ‘talk the talk and walk the walk’ – because the EU needs to be convinced that things change on the ground.

I mentioned the situation in Serbia for two reasons:

  1. to illustrate the effectiveness of the carrot-and-stick method for countries aspiring to join the EU; and
  2. as an example of how judges function as the canaries in the coalmine.

Other telling examples and what do they mean?

Now is not the time or place to go into the details of the following examples. They are intended only to give you a quick idea of other cases in which the judiciary has been or is under attack – a telltale sign that the rule of law is breaking down in the country concerned:

  • mass dismissals (e.g. Serbia, Turkey);
  • forced retirement by lowering the retirement age (e.g. Hungary, Poland);
  • changes in the composition of the High Judicial Council, with a majority of the votes now controlled by executive (e.g. Serbia, Turkey);
  • changes in the composition of the Supreme Court (court packing: Hungary, Poland).

The interesting question of course is: so what does this mean for Dutch judges?

Since the failed coup in Turkey and the breakdown of the rule of law in Poland, our foundation has actually been contacted by Dutch colleagues, asking what impact developments in Turkey and Poland could have on the cases in their own courtrooms. That was a first; a change of perspective, moving from seeing this not just as ‘their problem’, but as ‘our problem’ too.

We do not work in isolation, shut off from the rest of the world, especially not in cases with EU-aspects.

Alarming developments abroad lead to a certain uneasiness among Dutch judges. And rightly so; we do not work in isolation, shut off from the rest of the world, especially not in cases with EU-aspects.

The ‘Copenhagen dilemma’ (there are strict rule of law barriers before a country can enter the EU,*4 but once you’re in, you’re in) has now arisen in our own courtrooms.

Court of Justice of the European Union on mutual trust & judicial independence

Let us look at a couple of cases that have been decided on by the Court of Justice of the European Union (CJEU) or will be decided on in future. Obviously also the Celmer-case, the Polish European Arrest Warrant case in Ireland will pass in review. 

We all know that the European Arrest Warrant (EAW) mechanism is based on a high level of confidence between Member States. That’s an admirable presumption of course, but what should you do as judge/executing authority in EAW cases if you are afraid that surrender will lead to a breach of the fundamental rights of the individual concerned?

That question was at the heart of the CJEU joined cases Aranyosi and Caldararu of April 2016,*5 which were referred to the court by a German court. These cases concerned prison conditions in Hungary and Romania respectively. For the first time the Luxembourg Court ruled that in exceptional circumstances limitations can be placed on the EU principles of mutual recognition and mutual trust between Member States. 

The assessment that the judicial authority of the executing Member State must make of the fundamental rights protections offered by the issuing member state consists of a two-step approach.

The first step (see par. 89 of the judgment) is that the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention.

The second step (see par. 94/95) is that the executing judicial authority is then bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject to inhuman or degrading treatment. To that end, the national judge must as a matter of urgency seek all necessary supplementary information from the issuing state on the conditions in which it is envisaged that the individual concerned will be detained.

Based on this case law, quite a few EAWs have been postponed or brought to an end and requested persons have been discharged.

Now I would like to shortly turn to the case of the Trade Union of Portuguese Judges (ASJP), concerning the remuneration of Portuguese judges sitting in the Court of Auditors, which was referred to the Court of Justice and decided in February 2018.*6

You might ask why salary reductions for Portuguese judges are relevant to the handling of EAW cases and as a matter of fact to all judges in the EU.

The answer is that on 27 February 2018, in the ASJP case, the Court of Justice ruled that the principle of effective judicial protection is a general principle of EU law and that all Member States must ensure that their national courts or tribunals meet the requirements of effective judicial protection. 

In this case the European Court of Justice develops his interpretation of article 19, paragraph 1, second subparagraph TEU:*7

29. First of all, the Court of Justice points out that as regards the material scope of the second subparagraph of Article 19(1) TEU, that provision relates to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law, within the meaning of Article 51(1) of the Charter.

It is exactly this element in defining the scope of article 19 that Prof. Von Danwitz, president of the fourth chamber of the European Court of Justice, called ‘groundbreaking’:*8

Hence, the Court made it perfectly clear that the requirements of The Union law in terms of judicial independence are not limited to a more or less precisely defined situation in which Union law is, in concreto implemented, but stretches to all national jurisdiction which might in general, be confronted with questions relating to the application of Union law.

The Court also related this provision to the set of common values on which the European Union is founded, as stated in Article 2 TEU: 

32. Article 19 TEU, which gives concrete expression to the value of the rule of law stated in Article 2 TEU, entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals (...).
In order for that protection to be ensured, maintaining such a court or tribunal’s independence is essential.
The access to an ‘independent’ tribunal is one of the requirements linked to the fundamental right to an effective remedy. The independence of national courts is also essential to the proper working of the judicial cooperation system.
(...)
36. The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law (...).
37. It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection.
(...)
41.In order for that protection to be ensured, maintaining such a court or tribunal’s independence is essential, as confirmed by the second subparagraph of Article 47 of the Charter, which refers to the access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy.
42. The guarantee of independence, which is inherent in the task of adjudication (...), is required (...) also at the level of the Member States as regards national courts.
(...)
44. 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 (...).

More specifically in relation to this Portuguese case, the Court considered that:

45. Like the protection against removal from office of the members of the body concerned (...), the receipt by judges of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence.

Although the Court held that the specific salary-reduction measures at stake could not be considered to impair the independence of the members of the Portuguese Court of Auditors, this is an extremely important case underlining the significance of judicial independence for the proper working of the judicial cooperation system. 

Now let’s move on to Ireland and the A.C. case, regarding a Polish European Arrest warrant.*9 In this case the Irish High Court had to deal with an accusation warrant concerning a Polish national wanted in Poland on drug trafficking charges. After an in-depth analysis of the Polish judicial reforms and the Article 7 TEU procedure initiated against Poland by the European Commission, the High Court referred the case to the Court of Justice for a preliminary ruling.

In this Irish case the questions referred to the Luxembourg court essentially asked what test the national court in the receiving country should apply where that court believes that the common value of the rule of law as set out in Article 2 TEU has been breached and that there are risks regarding the right to a fair trial, in light of the fact that the recent and widely criticised judicial reforms in Poland have led to very serious concerns over the independence of the judiciary.

The Irish court referred the following questions for a preliminary ruling:*10

a. Notwithstanding the conclusions of the Court of Justice in Aranyosi and Caldararu, where a national court determines there is cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law, is it necessary for the executing judicial authority to make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial where his trial will take place within a system no longer operating within the rule of law?
b. If the test to be applied requires a specific assessment of the requested person’s real risk of a flagrant denial of justice and where the national court has concluded that there is a systemic breach of the rule of law, is the national court as executing judicial authority obliged to revert to the issuing judicial authority for any further necessary information that could enable the national court discount the existence of the risk to an unfair trial and if so, what guarantees as to fair trial would be required?

What is new in the Irish court’s A.C. case is that the CJEU has now been asked to broaden the fundamental rights test set out in the Aranyosi case into a wider rule of law test – based on the flagrant denial of a fair trial in the issuing country. And should that also be a two-step test, since applying the Aranyosi test would actually require the Irish national judge to ask the partner judge in Poland whether she or he is independent? In other words: can you still speak of mutual trust against the backdrop of the dismantling of the rule of law in Poland? Is it realistic to expect a national judge to surrender a suspect to a legal system where the independence of the judiciary is blatantly at stake? 

The District Court of Amsterdam has decided to adjourn all Polish European Arrest Warrant issued for the purpose of a criminal prosecution awaiting the CJEU decision in the Celmer case.

This Irish request for preliminary ruling was heavily criticised in Poland’s mainstream pro-government media.

Irish Justice Minister Charlie Flanagan joined judges across Europe in condemning personalised attacks in the Polish media directed at the Irish judge Ms Justice Aileen Donnelly, who is openly gay, in their coverage of her decision to refer an extradition matter to the Court of Justice. Mr Flanagan:*11

I strongly condemn the highly personalised criticism of a judge of the Irish High Court in relation to a recent decision to refer a matter in an ongoing case to the European Court of Justice.
The High Court is established and mandated by the Constitution of Ireland and our judges are expressly independent under the Constitution in the performance of their judicial functions. While freedom of expression is cherished in Ireland, so also is the independence of, and the respect due to, our judiciary.

Conclusion

As we can see, the political hot potato of the dismantling of the rule of law in certain Member states, which has been passed around for months, has now landed in the laps of the judges in Luxembourg.

The political hot potato of the dismantling of the rule of law in certain Member states has now landed in the laps of the judges in Luxembourg.

Judicial independence is not a given, not even within the EU. Why not? Why is interference by the executive branch of government such a common pitfall? Because, as Levitsky and Ziblatt put it, it always helps to have the referees on your side.

Back to Poland: Adam Bodnar, the Polish ombudsman, wrote a blog article on 4 April 2018 entitled: Europe can save Poland from darkness.*12 Its subtitle was: Ruling party is undermining the constitution, but Brussels has the tools to stop it 

In the blog article, he wrote:

As with every war, this one has its victims. The careers and professional dignity of individual judges are being sacrificed at the altar of political games. But that is the least of it.
Here in Poland, we are headed into a period of darkness when it comes to legal guarantees, the role of the constitution and the sanctity of EU treaties. Hope is slowly vanishing. We can only hope that – being deprived of institutional guarantees of independence – individual judges will be strong enough to safeguard their own independence in their judicial decision-making.

Let me conclude:

As I said, Bodnar gave his blog article the title: Europe can save Poland from darkness. It does not end with a question mark, but is framed as a statement. This afternoon, let us put an exclamation mark at the end to underline the urgency!

And in the meantime, let us show our support and solidarity to the Polish judges in every way possible. They certainly need it!

S. Levitsky & D. Ziblatt, How democracies die, London: Penguin/Viking 2018, p. 78

The conclusions of the Copenhagen European Council of June 1993 further defined the conditions for EU-membership. “Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.”

Judgment of the Court (Grand Chamber) of 5 April 2016, C-404/15 (Pál Aranyosi) and C-659/15 PPU (Robert Căldăraru), ECLI:EU:C:2016:198.

Judgment of the Court (Grand Chamber) of 27 February 2018, C-64/16, ECLI:EU:C:2018:117 (Associação Sindical dos Juízes Portugueses/Tribunal de Contas).

Article 19, paragraph 1, TEU reads as follows: The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed, Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”

Values and the rule of law. Foundations of the European Union – an inside perspective from the ECJ, lecture for King’s College Londen on 2 March 2018 by Prof. H.C. Thomas von Danwitz, President of the fourth chamber of the Court of Justice of the European Union, see p. 11, www.kcl.ac.uk/law/research/cen....

Case C-216/18 PPU.

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