Final Report Summary - JANE (Judicial Accountability in New Europe)
When the communist regimes in the Central and Eastern Europe (CEE) collapsed in the late 1980s, each state in this region was faced with the task of reforming the system of court administration.
Most CEE countries, including Slovakia, initially returned to the “Ministry of Justice model” of court administration (“MoJ model”). However, the European Union and the Council of Europe encouraged governments in CEE countries to establish a new independent institution – a judicial council – and transfer the court administration to this institution. I refer to this model as the “EU/CoE Judicial Council model”. The EU/CoE Judicial Council model was endorsed as the only “right” solution that was supposed to enhance judicial independence and insulate the judiciary from political tumult.
Slovakia eventually buckled under the pressure and established the Judicial Council of the Slovak Republic (“JCSR”) in 2003.
This project does not take the “rosy picture” of the EU/CoE Judicial Council model of court administration for granted and asks whether it actually “delivered the goods” it promised. The core of this project is a paired comparison that is built on the “most similar cases” logic – it compares the Judicial Council model in Slovakia with the Ministry of Justice model in the Czech Republic. It offers a small-N longitudinal analysis of the use of mechanisms of judicial accountability in the Czech Republic and Slovakia from 1993 to 2010. It is based primarily on archival materials and interviews conducted primarily between 2012 and 2013
[2] The Overview of the Argument and Contribution to the Field (The Main Results Achieved)
The main argument that results from my case studies is that the Judicial Council of the Slovak Republic (JCSR), based on the EU/CoE Judicial Council model, enhanced judicial accountability, empowered court presidents and increased the frequency of accountability perversions. The three parts of this argument are closely intertwined. The analysis of the effects of the JCSR in Slovakia revealed a clear pattern: the introduction of the EU/CoE Judicial Council Model of court administration into a post-communist judiciary in the medium-term empowered court presidents who then used their newly accrued powers to punish their critics and reward their allies within the judiciary in order to preserve their privileges and influence. This, in turn, led to the rise of accountability perversions, the most dangerous of which is selective accountability. I refer to this theory as the “court-president-centered theory” (CPCT) of judicial councils.
Yet these two case studies offer more than assessment of the impact of a judicial council on judicial accountability. The Czech and Slovak case studies allow me to test and generate the hypotheses regarding the use of mechanisms of judicial accountability in both established and new democracies.
Moreover, it also challenges the standard view of the effects of judicial councils and raises several questions as to their suitability for countries that are in the process of transition to democracy.
The main theoretical contribution of my two longitudinal case studies is to identify actors who actually held Czech and Slovak judges to account and how they did it. The patterns of the use of mechanisms of judicial accountability after the fall of the communist rule are not, however, unique to the Czech Republic and Slovakia. In the final chapter of this project, I present evidence from secondary sources that similar patterns emerged in other transitional societies in the CEE and outside Europe. Many of these countries established a strong judicial council model, which allows other scholars to test my conclusions regarding the impact of this model. Some of them did not.
Nevertheless, both for those countries with a judicial council and those without, four general lessons can be drawn.The first is that the milder treatment of internal in contrast to external accountability is misleading as the internal pressure can be at least as dangerous as the external one. This means that we should keep a close eye on the powers within the judiciary and on court presidents in particular. Second, there has recently been too much emphasis on the independence of the judiciary, both in scholarly literature and in policy documents, whereas the independence of individual judges has been rather neglected. It is high time to swing the pendulum back. We should also accept that the independence of the judiciary and the independence of individual judges are two different things and that enhancing the former does not automatically improve the latter. The Slovak case study provides ample evidence that the autonomous model of the judiciary advocated by the European Union and the Council of Europe may lead to “the system of dependent judges within independent judiciary”.
Third, holding judges to account during the transitional period is highly peculiar. The specifics of judiciaries in transition, institutional legacies from the past such as strong powers of court presidents and Supreme Court justices, personal continuity within the judiciary, a temporary shortage of judges, overemphasis on judicial independence, increased incentives for corruption, and the limited transparency, each on its own, affect the functioning of mechanisms of judicial accountability in those countries. Ignoring any of these specific features may have long-lasting deleterious effects.
Finally, despite my preference for a definition that treats judicial accountability as a mechanism, it is crucial for every society to develop its own conception of judicial accountability-as-a-virtue. Here established democracies have an advantage as they have more developed conceptions of judicial virtues. In contrast, transitional societies lag behind in this respect, and as long as they do not find at least a basic consensus on judicial virtues and create their own “expectations context of accountability”, no reforms or transplants will do the job. One can transplant models of court administration or revise existing mechanisms of judicial accountability, but no one can transplant judicial virtues.
[3] The description of the work performed since the beginning of the project, The key part of the work performed under this project consisted of studying archival materials (regarding all disciplinary motions against Czech and Slovak judges since 1993 until 2010 as well as other mechanisms of judicial accountability) and conducting interviews with judges and other stakeholders in order to complement the quantitative data with qualitative analysis. This took place primarily between Fall 2012 and Spring 2013. In the meantime, I organized 3 workshops [2 in the Czech Republic (March and May 2013) and 1 in Slovakia (October 2012)] in order to gather further information. Subsequently, I
• processed the data,
• presented the data at the conferences in Europe (EUI, College of Europe, Toulouse, Riga) as well as overseas (NYU, John Marshall Law School, Indiana University Robert H. McKinney School of Law, University of Georgia Law School),
• presented the data at the summer school (international summer school “Courts and Judges: View from the Mountain”, August 2013)
• engaged in the public debates (Professional Ethics in Practice, Pro Bono Aliance, Brno, 25 March 2014)
• wrote blog posts and published reports for practitioners (at http://jinepravo.blogspot.cz(odnośnik otworzy się w nowym oknie))
• presented the results at the roundtables (European Commission - DG Justice, Brussels, 8 April 2014; and The Role of National Parliaments in Strengthening Judicial Capacity and Accountability, Parliamentary Assembly of the Council of Europe, Helsinki, 26-27 May 2014),
• co-authored a working paper (KOSA#, D.; BOBEK. M. Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe, College of Europe Research Paper in Law, no. 07/2013.),
• wrote law review articles [in particular KOSA#, D.: The Least Accountable Branch, 11 International Journal of Constitutional Law 234 (2013); KOSA#, D., BOBEK, M.: Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe. German Law Journal, 2014, forthcoming; and KOSA#, D., BOBEK, M.: Judicial Councils in Central and Eastern Europe: Good Intentions, but Questionable Results. In BOBEK, M. (ed), Central European Judges under the European Influence: The Transformative Power of the EU Revisited (forthcoming with Hart Publishing in 2015)];
• organized an international conference in Brno (http://jane.law.muni.cz/content/en/mezinarodni-konference/)(odnośnik otworzy się w nowym oknie); and
• incorporated them into the manuscript of the monograph (KOSA#, D.: Perils of Judicial Self-Government in Transitional Societies, Cambridge University Press, 2015 forthcoming).
[5] The final results and their potential impact and use The major academic result of the project is the monograph forthcoming in the Cambridge University Press. More substantively, my research provides guidance in the judicial reforms and rule of law initiatives in the CEE countries as well as in the new and potential Accession Countries to the European Union. It shows that the judicial council is not a panacea and it is important to think about the judicial design carefully. Among the EU institutions it is in particular DG Justice and DG Enlargement that should benefit from my study (especially given the recent developments in Montenegro, Croatia and Serbia). The national policy makers and judges in EU should also be able learn from the results in the Czech Republic and Slovakia. This applies not only to “new EU Member States”, but also to the “old EU Member States” (as several of them, including Germany and Austria, have been considering the judicial council model of court administration recently).
The address of the project public website is: http://jane.law.muni.cz/content/en/(odnośnik otworzy się w nowym oknie)
The contact is David.Kosar@law.muni.cz
Most CEE countries, including Slovakia, initially returned to the “Ministry of Justice model” of court administration (“MoJ model”). However, the European Union and the Council of Europe encouraged governments in CEE countries to establish a new independent institution – a judicial council – and transfer the court administration to this institution. I refer to this model as the “EU/CoE Judicial Council model”. The EU/CoE Judicial Council model was endorsed as the only “right” solution that was supposed to enhance judicial independence and insulate the judiciary from political tumult.
Slovakia eventually buckled under the pressure and established the Judicial Council of the Slovak Republic (“JCSR”) in 2003.
This project does not take the “rosy picture” of the EU/CoE Judicial Council model of court administration for granted and asks whether it actually “delivered the goods” it promised. The core of this project is a paired comparison that is built on the “most similar cases” logic – it compares the Judicial Council model in Slovakia with the Ministry of Justice model in the Czech Republic. It offers a small-N longitudinal analysis of the use of mechanisms of judicial accountability in the Czech Republic and Slovakia from 1993 to 2010. It is based primarily on archival materials and interviews conducted primarily between 2012 and 2013
[2] The Overview of the Argument and Contribution to the Field (The Main Results Achieved)
The main argument that results from my case studies is that the Judicial Council of the Slovak Republic (JCSR), based on the EU/CoE Judicial Council model, enhanced judicial accountability, empowered court presidents and increased the frequency of accountability perversions. The three parts of this argument are closely intertwined. The analysis of the effects of the JCSR in Slovakia revealed a clear pattern: the introduction of the EU/CoE Judicial Council Model of court administration into a post-communist judiciary in the medium-term empowered court presidents who then used their newly accrued powers to punish their critics and reward their allies within the judiciary in order to preserve their privileges and influence. This, in turn, led to the rise of accountability perversions, the most dangerous of which is selective accountability. I refer to this theory as the “court-president-centered theory” (CPCT) of judicial councils.
Yet these two case studies offer more than assessment of the impact of a judicial council on judicial accountability. The Czech and Slovak case studies allow me to test and generate the hypotheses regarding the use of mechanisms of judicial accountability in both established and new democracies.
Moreover, it also challenges the standard view of the effects of judicial councils and raises several questions as to their suitability for countries that are in the process of transition to democracy.
The main theoretical contribution of my two longitudinal case studies is to identify actors who actually held Czech and Slovak judges to account and how they did it. The patterns of the use of mechanisms of judicial accountability after the fall of the communist rule are not, however, unique to the Czech Republic and Slovakia. In the final chapter of this project, I present evidence from secondary sources that similar patterns emerged in other transitional societies in the CEE and outside Europe. Many of these countries established a strong judicial council model, which allows other scholars to test my conclusions regarding the impact of this model. Some of them did not.
Nevertheless, both for those countries with a judicial council and those without, four general lessons can be drawn.The first is that the milder treatment of internal in contrast to external accountability is misleading as the internal pressure can be at least as dangerous as the external one. This means that we should keep a close eye on the powers within the judiciary and on court presidents in particular. Second, there has recently been too much emphasis on the independence of the judiciary, both in scholarly literature and in policy documents, whereas the independence of individual judges has been rather neglected. It is high time to swing the pendulum back. We should also accept that the independence of the judiciary and the independence of individual judges are two different things and that enhancing the former does not automatically improve the latter. The Slovak case study provides ample evidence that the autonomous model of the judiciary advocated by the European Union and the Council of Europe may lead to “the system of dependent judges within independent judiciary”.
Third, holding judges to account during the transitional period is highly peculiar. The specifics of judiciaries in transition, institutional legacies from the past such as strong powers of court presidents and Supreme Court justices, personal continuity within the judiciary, a temporary shortage of judges, overemphasis on judicial independence, increased incentives for corruption, and the limited transparency, each on its own, affect the functioning of mechanisms of judicial accountability in those countries. Ignoring any of these specific features may have long-lasting deleterious effects.
Finally, despite my preference for a definition that treats judicial accountability as a mechanism, it is crucial for every society to develop its own conception of judicial accountability-as-a-virtue. Here established democracies have an advantage as they have more developed conceptions of judicial virtues. In contrast, transitional societies lag behind in this respect, and as long as they do not find at least a basic consensus on judicial virtues and create their own “expectations context of accountability”, no reforms or transplants will do the job. One can transplant models of court administration or revise existing mechanisms of judicial accountability, but no one can transplant judicial virtues.
[3] The description of the work performed since the beginning of the project, The key part of the work performed under this project consisted of studying archival materials (regarding all disciplinary motions against Czech and Slovak judges since 1993 until 2010 as well as other mechanisms of judicial accountability) and conducting interviews with judges and other stakeholders in order to complement the quantitative data with qualitative analysis. This took place primarily between Fall 2012 and Spring 2013. In the meantime, I organized 3 workshops [2 in the Czech Republic (March and May 2013) and 1 in Slovakia (October 2012)] in order to gather further information. Subsequently, I
• processed the data,
• presented the data at the conferences in Europe (EUI, College of Europe, Toulouse, Riga) as well as overseas (NYU, John Marshall Law School, Indiana University Robert H. McKinney School of Law, University of Georgia Law School),
• presented the data at the summer school (international summer school “Courts and Judges: View from the Mountain”, August 2013)
• engaged in the public debates (Professional Ethics in Practice, Pro Bono Aliance, Brno, 25 March 2014)
• wrote blog posts and published reports for practitioners (at http://jinepravo.blogspot.cz(odnośnik otworzy się w nowym oknie))
• presented the results at the roundtables (European Commission - DG Justice, Brussels, 8 April 2014; and The Role of National Parliaments in Strengthening Judicial Capacity and Accountability, Parliamentary Assembly of the Council of Europe, Helsinki, 26-27 May 2014),
• co-authored a working paper (KOSA#, D.; BOBEK. M. Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe, College of Europe Research Paper in Law, no. 07/2013.),
• wrote law review articles [in particular KOSA#, D.: The Least Accountable Branch, 11 International Journal of Constitutional Law 234 (2013); KOSA#, D., BOBEK, M.: Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe. German Law Journal, 2014, forthcoming; and KOSA#, D., BOBEK, M.: Judicial Councils in Central and Eastern Europe: Good Intentions, but Questionable Results. In BOBEK, M. (ed), Central European Judges under the European Influence: The Transformative Power of the EU Revisited (forthcoming with Hart Publishing in 2015)];
• organized an international conference in Brno (http://jane.law.muni.cz/content/en/mezinarodni-konference/)(odnośnik otworzy się w nowym oknie); and
• incorporated them into the manuscript of the monograph (KOSA#, D.: Perils of Judicial Self-Government in Transitional Societies, Cambridge University Press, 2015 forthcoming).
[5] The final results and their potential impact and use The major academic result of the project is the monograph forthcoming in the Cambridge University Press. More substantively, my research provides guidance in the judicial reforms and rule of law initiatives in the CEE countries as well as in the new and potential Accession Countries to the European Union. It shows that the judicial council is not a panacea and it is important to think about the judicial design carefully. Among the EU institutions it is in particular DG Justice and DG Enlargement that should benefit from my study (especially given the recent developments in Montenegro, Croatia and Serbia). The national policy makers and judges in EU should also be able learn from the results in the Czech Republic and Slovakia. This applies not only to “new EU Member States”, but also to the “old EU Member States” (as several of them, including Germany and Austria, have been considering the judicial council model of court administration recently).
The address of the project public website is: http://jane.law.muni.cz/content/en/(odnośnik otworzy się w nowym oknie)
The contact is David.Kosar@law.muni.cz