Aktualne kierunki rozwoju władzy sądowniczej. Marsz Tysiąca Tóg rok później

Dear Ladies and Gentlemen,

the Council of Europe (CoE)’s legal and advisory ­instruments provide broad and detailed guidance on judicial independence and serve as a basis for member States’ laws and policies. The standards comprise formal legal obligations such as the European Convention on Human Rights, soft-law instruments such as the pivotal Recommendation of the Committee of Ministers (CM/Rec (2010)12) on judges: independence, efficiency and responsibilities, and political commitments, such as those set out in the Council of Europe Plan of Action on Strengthening judicial independence and impartiality.

Judicial independence is a rather abstract notion. It is a constitutional principle and human right at the same time. Without soft-law instruments and, of course, decisions provided by the Strasbourg Court and the European Court of Justice, it would have been impossible to reconstruct a “European minimum common denominator” on this very sensible subject. Soft-law instruments, in short, put some flesh on the bones of judicial independence. The subject of my speech will be judicial independence at institutional and individual level as reflected in the soft-law instruments of the CoE and particularly the Consultative Council of European Judges (CCJE), in the light of the rule of law backsliding in several CoE member States.

Judicial independence must be guaranteed at both institutional and individual levels, and it must be implemented in practice. As stressed by the CCJE in its Opinion no. 1 (2001) on Standards concerning the independence of the ­judiciary and the irremovability of judges: “What is critical is not the perfection of principles and, still less, the harmonisation of institutions; it is the putting into full effect of principles ­already developed. To live those principles is the challenge at hand”.

Speaking of institutional (or organisational) independence, several criteria need to be taken into account:

•    the institutional independence must be set out at constitutional level;

•    the institutional independence must be provided for through existence of bodies of judicial self-government, such as Councils for the Judiciary or equivalent bodies. Their introduction has been recommended by the Committee of Ministers of the Council of Europe⁵², by the CCJE⁵³ and by the Venice Commission⁵⁴. Over recent years, many European legal systems have introduced ­Councils for the Judiciary⁵⁵;

•    the judiciary must be provided with sufficient funds to carry out its functions and it should be for the judiciary itself to decide how these funds are used;

•    management of courts and their budgets must not be, directly or indirectly, run by the executive or legislative power. Court presidents must act as managers of independent courts and not as managers under the influence of the outside powers;

•    professional organisations of judges must be able to effectively defend their interests and those of their members.

I want to make a few observations on the protection of judiciary at constitutional level. The position of the judiciary depends on the normative level of the legal norms, which provide for the courts and their jurisdiction, and for the terms of the office and tenure of the judges; any change in such provisions would require a constitutional amendment. The main aspects that are usually found to be protected at constitutional level are: life tenure of the judge or until a fixed retirement; his or her irremovability; salaries and pensions; provisions for disciplinary proceedings; provisions for ­appointment and removal procedures; and security of tenure. National regulations vary greatly in this respect, the weakest form of guarantee of judicial independence being simply to affirm in the constitution that judicial independence will be respected. In this case, legislation may easily be passed in order to curtail judicial independence. Additional principles of judicial independence should be laid down at constitutional level, such as: a rule against ad hoc tribunals; a lawful judge principle, which requires that judges be selected to hear cases by a predetermined internal plan prior to the commencement of the case; post-decisional independence of a judgment and its respect by the other branches of the government; life tenure of a judge or until a fixed retirement and his or her irremovability; a legal basis should be made for the setting up of the Council for the Judiciary or equivalent body, for the definition of its functions and of the sectors from which members may be drawn and for the establishment of criteria for membership and selection methods.