Judicial Reforms and Challenges in Central and Eastern Europe

The article analyzes the judicial reforms that have taken place in Central and Eastern European countries. Research will focus on the steps that have been taken to conform to the spirit of Article 2 of the TEU and take necessary measures to implement reforms required for EU accession. The core of the study focuses on the much-misunderstood concept of judicial independence which is increasingly becomes a much-debated concept in countries such as Hungary and Poland. A comparative legal method is used throughout the article to illustrate and help the reader to better understand the nuances of the problem in Central and Eastern European countries.


Cheesman and Badó
International Journal for Court Administration DOI: 10.36745/ijca.532theoretical commitment to upholding the rule of law, the EU has very few tools to effectively implement it.The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations (Art.7 TEU). 7e principle of judicial independence's authority has been reduced and undermined by limiting it to Article 47 of the Charter.
The EU Charter of Fundamental Rights might serve as another basis of EU action.
Pursuant to Article 47 of the Charter, "everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.Everyone shall have the possibility of being advised, defended, and represented."However, Article 51 of the Charter limits the scope of these provisions by stating that the provisions of the Charter are addressed to the institutions, bodies, offices, and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.They shall therefore respect the rights, observe the principles, and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.Furthermore, the Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.
Consequently, the Charter is not very likely to prove an effective tool to promote the independence of domestic courts in Member States.However, since 2010, the Commission has been publishing an annual report on the implementation of the Charter and has had the ability to initiate infringement procedures but these are usually not based exclusively on the Charter. 8Another important European initiative on judicial independence, including the organizational independence of the judiciary, is the action plan 9 proposed by the Council of Europe by the Committee of Ministers of the CoE in 2017, which included recommendations and the monitoring of Member States.The action plan aims to depoliticize the courts but continues to respect the specificities of the Member States.It does not require the establishment of Judicial Councils everywhere; it does, however articulate the need to avoid the election of members of the Councils or other judicial bodies.Overall, there are many different views and ideas in the EU about what the independence of the judiciary 7 Based on the unsatisfactory experiences related to the application of Art. 7 TEU as a nuclear option, on 11 March 2014 the Commission presented a new initiative for addressing systemic threats to rule of law in Member States that was supposed to be complementary to infringement procedures and Art.7 procedure.Activities on monitoring 'rule of law' in Member States and taking proportionate and effective action if needed.

8
For example, when -as mentioned above -the Commission contested the early retirement of around 274 judges and public prosecutors in Hungary caused by a sudden reduction of the mandatory retirement age for this profession from 70 to 62, the Court of Justice of the European Union upheld the Commission's assessment that this mandatory retirement is incompatible with EU equal treatment law (the Directive prohibiting discrimination on the basis of age and Article 21 of the Charter) -and not on considerations related to the independence of the judiciary.9 Council of Europe Action Plan on strengthening judicial independence and impartiality (CM (2016) to the peculiarities of the legal and political culture these solutions do not lead to the violation of the fair trial principle in practice.However, political and legal culture is also a vague concept, so, based on this it would be very difficult to make an informed decision concerning the violation of judicial independence.

II CENTRAL ADMINISTRATION OF COURTS
Concerning the courts of the post-socialist countries of Central and Eastern Europe, after the collapse of the Soviet bloc, almost everywhere, the challenge was in adapting the institutional structures and principles governing the judiciary -which were rooted in Western democracies after the Second World War -to a legal system defined for decades by a dictatorial framework.
Since the 1990 regime change, East Central European post-socialist countries have been struggling with the issue of how to meet the judicial independence requirement with a view to accession to the European Union.Judicial reforms were seen as key to the accession process to the EU as judicial independence represents a key aspect of maintaining the rule of law.The emphasis on this requirement in the pre-accession process stems from the understanding that judicial independence is a fundamental precursor to a society being deemed democratic.and the fragility of the politico-legal culture provide fertile ground to orientate towards the creation of an opportunist judiciary loyal to the government or, even better, the court management if the political climate expresses an interest in reforming the management.Regarding enforcement attitudes, the dictatorial state apparatus that lasted for almost half a century left an indelible mark in these countries.
In the post-socialist countries, which underwent regime change the rule of law reforms were guided by the impetus of the fact that judicial independence could be realized despite decades of party statehood, which was characterized by communist governments being involved in the substantive issues of the administration of justice.In the initial euphoric state following the regime change the political elite of democratizing societies placed more emphasis on being 'democratic' rather than on the question of the accountability of judges.Moreover, accountability seemed to be more of an obstacle to the realization of judicial independence.However, in post-socialist countries, similarly to Western European countries, regime change parties experimented with varied solutions to achieve the above goals.Previously, the government had been responsible for the external administration of the courts, as well as the degree of external pressure which could be applied on the judiciary.It was up to the politicians to decide when and to what extent they allowed more judicial self-government.
Western European (ministerial, self-government and mixed) administrative models can also be found in the assessed post-socialist legal systems.The aim is to briefly present these varied solutions.Although important empirical studies have been conducted on the effectiveness of the administrative models introduced in postsocialist countries, describing them here would exhaust the scope of this study. 13 achieve these necessary judicial reforms, judicial councils were deemed to be one mechanism by which to ensure that there was judicial independence.However, as will be demonstrated, the judicial councils have, in some parts, further contributed to compromising the judicial integrity and independence of the judiciary. 14e EU touted councils as being, "powerful judicial councils as institutions for judicial self-administration and guardians of judicial independence." 15 This is in part due to the 'disconnect problem'. 18Part of this problem is that up until very recently the EU has not actively monitored the implementation and adherence to Rule of Law provisions.
In Hungary, 7 years after the change of regime, a judicial council with a judicial majority council was established in the framework of the 1997 comprehensive justice reform, which resulted in the council taking over almost all the powers of the government concerning the administration of justice. 19The influence of the Ministry of Justice on the day-to-day operation of the courts has been only informal.
In Supreme Court, the Curia.The Council's task in the field of central administration is effectively to control the activities of the NOJ. 21The service courts in Hungary have the right to adjudicate disciplinary cases.Since 2010, several international organizations have criticized the state of the Rule of Law in Hungary, including the judiciary, but, interestingly, tensions have also started to rise within the judiciary.This has intensified the criticisms calling for a gradual reduction in the independence of the judiciary.
For a long time, the elected judges of the NJC seemed to tolerate, in silence, the inability to control the Parliament-appointed head of the NOJ without any power.
However, in 2012 the Venice Commission issued an opinion22 on the legal reforms of the judiciary in Hungary.They were particularly critical of the methods by which the president of the NJO can be elected and removed.The report recognized that the Hungarian Government had indeed taken on board their previous comments.They were particularly pleased that the President of the NJO was more accountable and that the NJC's role had been elevated more so that it could have more oversight.
However, there was still concern that the powers of the President of the NJO were too extensive and that the Hungarian Government should take measures to further ensure the independence of the judiciary. 23spite these recommendations things started to come to a head in 2018 when it was declared by the European Association of Judges and the European Commission that the Hungarian judiciary was facing a constitutional crisis. 24This was characterized by a changing of the roles of the NJC and the NOJ.The 2018 period saw several developments concerning the judiciary which did not go unnoticed.This was apparent from the Sargentini report 25 which recommended that Article 7 proceedings be initiated against Hungary as the steps being taken posed a serious and systemic threat to the values of the European Union. 26e conflicts between the National Office for the Judiciary (Országos Bírósági Hivatal Elnőke) and the National Judicial Council (Országos Bírói Tanács) centred on the way judicial appointments were occurring.The NJC, as the most senior self-governing Cheesman and Badó International Journal for Court Administration DOI: 10.36745/ijca.532 body, started to investigate how the president of the NOJ was appointing judges and discovered several violations, indicating an attempt to overhaul the top tier of the judiciary.Attacks were mounted in the media against individual judges, who criticized the president of the NOJ.Some of the judges won defamation lawsuits.The NOJ appointed the court presidents, who could then put pressure on 'rogue judges' by using administrative measures, such as controlling the awarding of bonuses, exclusion from training opportunities, or enforcing harsher working conditions. 27en the European Parliament triggered the Article 7 procedure against Hungary, 28 they cited the lack of 'independence of the judiciary and of other institutions and the rights of judges,' as being one factor amongst many which needed to be addressed by Hungary as a matter of urgency. 29When the Commission proposed to suspend 65% of its commitments to Hungary, the justification was given that the concerns have not been adequately addressed and that the violations constituted systematic breaches affecting the core of the application of the rule of law within the meaning of Article 2 of the TEU.Hungary is also in need of the 13.2 billion euros that has been blocked because of what the EU commission has deemed as a gradual undermining of fundamental 27 Once it was realised that there remained a core of judges who were very resilient to governmental pressure as certain judges kept speaking out, and that they considered judicial independence to be something that ought to be taken very seriously, this led to the realization amongst politicians that it was necessary to shift strategy.This shift meant that the focus was no longer on domestication through court presidents but by shifting tactic and attacking the top tier of the judges in the Kuria.The first instance of this shift in tactic can be see with the appointment of Andras Varga Zs.His appointment was made possible through a series of legal amendments.He used to be a prosecutor then a judge of the constitutional court (which is not part of the ordinary judicial system in Hungary) no judicial courtroom experience which would enable him to meet the requirements for judicial appointment.The NJC said that he is not sufficiently independent due to the way in which he was appointment.These criticisms fell on deaf ears.The NJC has been hamstrung in its ability to make effective changes as they are not a legal entity and do not have their own budget.The only tool they have available to them is to "signal" problems such as dismissing a judge, but this "signal" is ultimately decided upon by the Government.
28 However, for Hungary to be able to unlock the funding they must comply with a whole new component to the recovery and resilience plan which was adopted on 12 December 2022.The new component contains 111 new milestones 27 of which have been dubbed the 'super milestones'.These 'super milestones' refer to the conditionality measures which Hungary needs to take into consideration under the rule of law mechanism.The milestones also refer to the ongoing battle concerning the judicial independence questions.The multiannual financial framework for 2021-2027, established that the enabling conditions would include a budgetary conditionality.In order for the budgetary conditions to be triggered the European Commission must be convinced that the [in]actions of Hungary have demonstrated sufficiently that infringements affect, 'in a sufficiently direct way,' the management of the budget or the financial interests of the Union.The fact that Hungarian government has now pushed through a vote on a new law to address the shortcomings so as to unlock EU funding is a step in the right direction but it is not necessarily enough.The EU Commission will also need to judge the impact that the new law will have to ensure that the milestones as specified will be 'fully and correctly' implemented by Hungarian for the first payment to be made.rights. 30The recent proposal of a draft bill31 on reforming the judiciary is the result of just over a year and half of negotiations between Budapest and Brussels. 32In January 2023, the Hungarian government started the public consultation period of the draft law. 33The new law will enter into force on the 1st of July 2023.It is hoped that this will free up the European funds that the Hungarian government needs. 34Under the new law the NJC have been granted more extensive powers vis a vis the power of the President of the National Office of the Judiciary. 35One significant amendment is that the new law will create a separate budget for the NJC as well as installing safeguards which would protect both the Constitutional Court and the Kuria from political influence. 36e Hungarian government was indeed under pressure to comply with completion of the milestones as the Annex to the European Commission's proposal clearly states that, "[t]he implementation of the reform shall be completed by Q1 2023 and before the first payment request under the recovery and resilience plan."37Civil Society was invited to engage with the Ministry over the recommendations made to the draft law.
It was highlighted at this stage that there needed to be a broadening of the powers of the NJC.It was further argued that development was needed to ensure the NJC's independence, impartiality, integrity, and probity, in line with the milestones.However, the Government stated that this would require the installation of a completely new Cheesman and Badó International Journal for Court Administration DOI: 10.36745/ijca.532system which was not necessary and that it would also greatly reduce the powers of the Parliament. 38e Hungarian Government is hopeful that before the new law enters into force on the 1st of July 2023, there will be time to fulfil the practical steps that are required of them by the European Commission. 39As with the other countries, a review of the measures taken by Hungary will be a cautionary tale, illustrating how the European Commission will now respond.
Comparing the situation of Hungary to Romania, immediately after the fall of the 39 In the coming weeks the EU Commission will send a delegation to overview as well as audit the use of EU funds.The delegation will be checking whether the EU conditions have been met which are the following: • strengthening the role and powers of the National Judicial Council (Országos Bírói Tanács-OBT), which holds independent judicial oversight powers over the judiciary; • the independence of Curia judges -formerly the Supreme Court -to protect them from political interference.
• the possibility for the authorities to challenge final judgments in the Constitutional Court to be abolished, and • obstacles to be removed for Hungarian judges referring cases to the ECJ if they consider that Hungarian and EU law are not in line -the EU Court of Justice having previously ruled that the existence of such obstacles was a violation of EU law.
To counter this, the process of judicial reform between 2017 and 2019, which intensified the conflicts between the government and the judiciary, can also be seen as such.The Acts of Parliament on the appointment of prosecutors and the prosecution of judges have also been brought before them by the ECJ, resulting in judges finding certain elements of the reform to be incompatible with EU law and the independence of the judiciary. 41The central administration of the Romanian judiciary is the subject of more extensive and detailed debates than those described above, which, as in the countries of the region, continue to reflect a state of searching for a way forward. 42 a result of these tensions Romania, since its accession in 2007 was placed under the special mechanism of the Cooperation and Verification Mechanism (CVM). 43The implementation of the CVM was the joint recognition that for both Romania and the EU, measures needed to be taken to ensure that the reform process would, in fact, meet the benchmarks.In 2017 the EU Commission carried out an assessment of the progress made by Romania and concluded that significant inroads had been made. 44 2022 it was concluded by the EU Commission, that it would cease monitoring the Cheesman and Badó International Journal for Court Administration DOI: 10.36745/ijca.532country as enough progress had been made on judicial reform as well as the fight against corruption.45 However, they would still be monitored through the annual rule of law reports in terms of their continued commitment to upholding the progress made in the reforms.The CVM cannot be used to withhold funding but is rather a method by which to influence member state's anti-corruption policies.46 Even though progress has been slow in the context of Romania, the Commission determined that enough has been done to close the CVM and deemed that any other measures that should be taken could be covered by the Recovery and Resilience Plan (RRP).47 In order for Romania to unlock the next round of financial packages it must implement laws which "reform the judiciary, status of the magistrates, the organization of the judiciary and the Superior Council of Magistracy."48 Romania must evidence by the end of 2026 that they have taken steps to enact a plan to reform the judiciary as well as amend the criminal code and the criminal procedural code so as to bring into line laws on integrity and ethics of the government.49 The question can be raised as to why it appears that the EU Commission has been more receptive to the progress being made in Romania (albeit slow and at times very piecemeal) compared to Hungary and Poland.The answer may lie in the political openness of the ruling parties to make the changes necessary to protect the rule of law and to align themselves with the principles of Article 2 of the TEU.
Poland also took some time to form the Judicial Council following the regime change.
Although there were initiatives to set up a body, the creation of a body that took over a significant part of the government's powers in the administration of the courts was  because it considered that Poland had failed to fulfil its obligations under EU law by establishing a disciplinary system in 2017.In the Commission's view, several elements of the disciplinary reform infringe EU law.Once the concept of a disciplinary offence had been broadened, this could, in their view, increase the number of cases in which court judgments can be brought under political control.Following the court ruling, the Polish Constitutional Court even handed down a judgment declaring the supremacy of Polish law over EU law. 53In 2018, a disciplinary chamber for judges was set up within the Supreme Court, in response to which the European Commission launched infringement proceedings against Poland.The chamber is composed entirely of judges selected by the National Council of the Judiciary, whose members are appointed by the Sejm.An important milestone in the dispute between Poland and the EU was the 12-2 decision of the Constitutional Court, which ruled that the CJEU's interference in the Polish judicial system violated the rules guaranteeing the primacy of the Constitution and Poland was clearly an attempt to undermine the independence of the judiciary. 58The CJEU has since held that, "The Court further clarified in AB and others that all the principles of the rule of law are to be safeguarded when the whole system of judicial appointments is changed, including proper judicial review of the crucial reformed irremovability requirements." 59Those judges who choose to make a stand against the encroachment into their independence frequently find themselves as isolated figures in a flawed system.
The case law of the ECtHR is quite clear, "a Court open to absolute interference by the sovereign in direct contradiction with the letter and the spirit of the law in a context where such interventions are not reviewable, is not a 'tribunal established by law' in the sense of Xero Flor." 60 Building on the decision in Xero Flor w Polsce sp.z. o. o., the case of Grzeda v Poland 61 concerned the use of legislative reform to remove a member of the National Council of Judges.The court stated that, "In order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it had to be compatible with the rule of law which required, inter alia, that any interference must in principle be based on an instrument of general application.Section 6 of the 2017 Amending Act could not be regarded as such an instrument since it was directed at a specific group of fifteen clearly identifiable persons -judicial members of the NJC elected under the previous regulation, including the applicant -and its primary purpose was to remove them from their seats on that body.The Court had already held that laws which were directed against specific persons were contrary to the rule of law." 62 The judgment also further reiterated the importance of having independently elected members to the NJC, adding that even though Article 6 of the ECHR does not prevent Member States from reforming their judicial systems or institutions, any such measures should not undermine the independence of the judiciary.
The ECtHR further commented in their judgment that this particular case was not an isolated event but rather a part of a broader pattern of the Polish Government reforming the judiciary by a series of measures which started in 2015 with the election of judges to the Constitutional Court, subsequently followed by the remodelling of the NCJ, and the power of the Minister of Justice being expanded to control the courts.It was considering this that the events which unfolded in the case of Grzeda led in part to the case being determined.The ECtHR held that even judges should have recourse from being treated arbitrarily and that he had no possibility of effective remedy against Cheesman and Badó International Journal for Court Administration DOI: 10.36745/ijca.532 Court administration in Czechia is the only one of the countries analyzed based on the dominant role of the Ministry of Justice.The "executive model" has survived only in this post-socialist country in Central and Eastern Europe, with the element of judicial self-government largely missing.Judicial councils have an exclusively consultative role, but do not participate in decision-making. 70The judicial administration of the 8 regional and 86 district courts is carried out by the Ministry of Justice directly or indirectly through the presidents of these courts.The 2 Supreme Courts (the Supreme Court and the Supreme Administrative Court) are administered exclusively through the presidents of the courts.The presidents of the courts are nominated by the Ministry of Justice and appointed by the President of the Republic.
Each year, the President of the relevant Court is responsible for determining the court's work plan for the following year, for setting out the composition of the judicial bodies and the mechanisms for allocating cases. 71Functions related to human resources and financial management are divided between the Ministry of Justice and the presidents of the courts.The presidents direct the professional training of the trainees and determine the number of lay judges.The presidents of the regional courts detail the state budget available for the operation and management of the respective regional and related district courts.As a result, the presidents of the district courts do not participate in the preparation and planning of the budget, their task is to ensure the functioning of the given court, considering organizational, personal, economic, financial and educational aspects. 72Each court employs a person known as a court director who deals with court administration.Court directors are appointed by the presidents of the courts based on a competitive examination.They do not have a law degree, usually economists fill this position.Their employment is regulated by the Labor Code, and they can fill their positions without any time limit.In disciplinary cases, the councils in the higher courts act in the first instance, in the second instance the disciplinary council of the Supreme Court acts.Disciplinary proceedings may be initiated by the president of the court concerned or by the Minister of Justice.The request may be submitted within a period of 60 days from the knowledge of the act giving rise to the disciplinary proceedings, but no later than 2 years from the date of the act.Judges are appointed by the President of the Republic based on a multi-stage appointment procedure.Given that most new judges are essentially appointed to the court of first instance, the initial step in the appointment procedure is taken by the president of the court in which the vacancy occurs.The President of the Court shall propose to the Ministry of Justice the appropriate candidates.Thereafter, the Minister of Justice is entitled to accept or reject the proposal received concerning the candidates. 73Given that the President of the Republic may exercise the power to appoint a judge with the consent of the Government, the list of candidates shall be forwarded to the Government.If the Government agrees with the candidates on the list, the President of the Republic shall appoint the candidate(s). 74heesman and Badó International Journal for Court Administration DOI: 10.36745/ijca.532 It is characteristic of each of the emerging states of the former Yugoslavia that, following their independence, they reformed their judicial systems in order to join the EU and set up judicial councils everywhere. 75The foundations of Croatia's judicial system, including the Judicial Council, were established in 1993.The last significant changes were made with the new court law, which came into force on 1 January 2019. 76e administration of the Croatian courts can be classified as a mixed administration system, while the powers related to the selection and disciplinary responsibility of judges were transferred to the Judicial Council with one exception, 77 88 The Council has the right to elect and withdraw the judges once their appointments have been finalized.89 As in Slovenia, efforts to establish mutual control between the branches of power were apparent.In addition to the Ministry and the Council, the legislature has been given significant powers to appoint judges and select members of the Council.It is the latter that was a critical element of the judiciary in the EU accession process as the legislature elected almost two-thirds of the members of the Council.In this way, Parliament had an indirect influence not only on the election of judges for a probationary period, but also on the appointment of all judges.
European integration efforts have prompted the Serbian government to change the situation, and it has initiated a constitutional amendment. 90The draft ended tragic consequences during the Stalinist period. 105(The later and milder phase of the dictatorship in some countries was not always associated with an unfailing prevalence of judicial independence either, although direct political pressure could not be detected in a considerable part of legal disputes. 106) In light of this saddening historical period, it is understandable that the chances of conflicts between political parties become more pronounced and noticeable than usual in post-socialist societies.Such fears are predominant in a narrow social stratum, since the system of East Central European political traditions, a weakened democratic legacy, and frail or malfunctioning autonomies result in an indifference towards institutional changes concerning judicial independence as well.
Despite the shared history in the Soviet bloc and the identical features of the subsequent regime change, the diversity of institutional solutions is what characterizes East Central European countries today.Apart from diversity, the most paramount identical feature may constitute the fact that, despite regularly occurring reforms, the relationship between independence and accountability 107 reveals inconsistencies and confusion in the judicial system. 108One may conclude from the reforms that the settlement of the relationship between independence and accountability is omnipresent in disputes relating to the distribution of powers. 109Constant reference to independence is often paired with lack of preparation, seclusion, increasing corporate elements, and lack of transparency in courts.Councils for the judiciary that were The Slovak solution is characterized not only by a balance in the composition of the Council, but also by a division of responsibilities between the Council and the Ministry of Justice.As for the Czechia ministerial administration, it provides an example that even in a post-socialist country, the Austrian/German model may become palatable for the EU if this solution is acceptable to the domestic political elite.
finally incorporated into the Polish constitution in 1997, along with Hungary.Since 1997, the National Council of the Judiciary has had 25 members: 15 judges elected by their peers, a representative of the President of Poland, the Minister of Justice, six members of parliament, the President of the Supreme Court of Poland, the President of the Supreme Administrative Court of Poland.50The Polish solution belongs to the so-called mixed system.In addition to the Council, the Ministry of Justice has retained significant powers in administrative matters, from the issue of the courts' Serbia is the only legal system among those analyzed that is merely seeking to join the EU.The European Commission's Strategy for the Western Balkans predicts this could happen in 2025 at the earliest, but in the meantime, several reforms are needed, including in the judiciary.Following the secession of Serbia and Montenegro and the simultaneous declaration of independence of Serbia, a national strategy for the transformation of the judiciary was adopted in 2006, leading to the adoption of the law laying the foundations for post-socialist Serbian administration of justice by 2010.The High Judicial Council was established, playing an important role in the selection, disciplinary matters, and dismissal of judges.A mixed system has been decided upon, as the administration of justice is jointly carried out by the Council and the Ministry of Justice.(Section 70).The latter oversees the administrative work of the courts, collects statistical and other data, maintains facilities, decides on budgetary matters, and oversees the financial activities of the High Judicial Council beyond the courts.The High Judicial Council (HJC) has an eleven-member body: the President of the Supreme Court, the Minister of Justice, and the Chair of the competent committee of the Parliament, with eight elected members.Such members are elected by Parliament: six judges (from the Autonomous Province of Vojvodina) and two prestigious lawyers with at least 15 years of work experience.
established following Western examples show significant differences in certain legal systems regarding both their composition and competences.In Hungary, a Council composed exclusively of judges controls a president elected by the legislature, who heads the Judicial Office.In Romania, Poland and Slovenia, the Council of a majority of judge members has taken over the administration of justice; the latter also provides an example of the importance of the legislature in the process of appointing judges.The same has been evidenced in the case of Serbia, which has so far seceded from the former Yugoslavia and has not yet joined the EU.Here, the legislature not only elected most of the members of the Council, but also played a decisive role in the appointment of judges.Until recently, a new constitutional amendment, proposed by the Venice Commission to facilitate the EU accession process, has given considerable support to the organizational independence of the judiciary.
36 final) https://rm.coe.int/1680700285[accessed 15 may 2023].Cheesman and Badó International Journal for Court Administration DOI: 10.36745/ijca.532entails.The analysis and examination of the different solutions used in the various EU Member States must also consider the specificities of each country's domestic political institutions.For Central and Eastern European countries, it is often difficult to understand the criticisms from EU institutions or human rights organizations that call into question the behavior of a court.This is most noticeable when discussing the administration of justice and, more specifically, the selection and disciplinary accountability of judges, for which stable Western European democracies have demonstrated various solutions and mechanisms.For decades, individual legal systems in Europe have been experimenting with ways and means of ensuring the separation of powers, mutual control, and a balance of independence and accountability in the judiciary.Although most countries are seeing a clear trend of former ministerial powers being transferred to judicial councils designed to establish judicial self-government, the competences and composition of these councils vary considerably.In addition, there are European countries (Austria and Germany) which, not following the indicated trend, still carry out the external administration of the courts under governmental oversight.
10What becomes evident is that even judicial systems with a long history of legal traditions may employ institutional solutions that might arouse doubts concerning the independence and impartiality of judges.Despite this fact it is quite possible that due Additionally, it is becoming increasingly important to garner support for the 'European mandate' to have effective implementation mechanisms in place at Member State level. 11To this end, certain legal systems pushed through several reforms leading to multiple restructurings of Cheesman and Badó International Journal for Court Administration DOI: 10.36745/ijca.532the judicial organization. 12One could witness the expansion of the application of the judicial self-administration bodies in accordance with Western European trends.Since the accession of East Central European post-socialist countries to the EU proved to be successful, a new development occurred.The EU disposes of rather limited means to exert influence over the judicial administration systems of its Member States; thus, considerable leeway is given to post-socialist countries where the democratic traditions This was part of Cheesman and Badó addition to the Minister of Justice, the Council also included the Prosecutor 20The National Office for the Judiciary (NOJ) is responsible for practically all matters related to the selection of judges and court leaders and supervises the administrative activities of all courts except the Hungarian 16 Ibid.17 Ibid.18 L. Pech, "The EU as a global rule of law promoter: the consistency and effectiveness challenges," 14(1) Asia Europe Journal (2016), pp.7-24, at 7-8. 19 Act LXVII. of 1997 on the Organization and Administration of Courts.20 By the end of the 2010s, there had been a change of staff at the head of the Office due to increasing conflicts between the Judicial Council and the Head of the Office.Cheesman and Badó International Journal for Court Administration DOI: 10.36745/ijca.532 Ceausescu regime, in 1991 the Judicial Council was established with a historical predecessor.(In1909,well before the French Judicial Council was first recorded in the literature, a judicial council was established to assist the Minister in the promotion of judges and to have competencies in the disciplinary matters of judges.)TheCouncil,established in 1991, had weak powers compared to the Minister of Justice; therefore, one of the key issues in the European accession process until 2007, was the extent to which the government was able to relinquish control of the judiciary, thus increasing the Council's powers.This occurred in parallel with what institutional guarantees the 38 Hungarian Helsinki Committee, 'Joint assessment of the government's judicial package aimed at unblocking EU funds,' (21 February 2023) available at https://helsinki.hu/en/joint-assessment-of-the-governments-judicial-package-aimed-at-unblocking-eufunds/ [accessed 12 May 2023]; Unfortunately it would appear that the Government has not heeded all the recommendations of civil society.When analyzing the requirements of the milestones the Hungarian Government has either in part or not all responded to the requirements.If we look at the milestones which have not been implemented, for example milestone 213.a) (iv) and milestone 213.b), 213.d) they all concern the strengthening as well as safeguarding of the independence of the NJC through independent selection criteria, the right of the NJC to have access to documents, information that relate to the administration of courts and finally it is recommended that the NJC members cannot be re-elected except for the next term of office and that court members as well as vicepresidents shall not be involved in the deliberation or voting concerning administrative matters.When reading the proposal the picture emerges that the Hungarian Government has paid lip service and tweaked the offending legislation just enough to hopefully unlock the purse strings of the European Commission; Amnesty International Hungary, Eötvös Károly Institute and Hungarian Helsinki Committee, 'Compliance of the Hungarian Government's Draft Proposal on the Amendment of Certain Laws on Justice related to the Hungarian Recovery and Resilience Plan with the milestones to be achieved by31March 2023 under Annex to the European Commissions's Proposal,' (21 February 2023) https://helsinki.hu/en/wpcontent/uploads/sites/2/2023/02/compliance_judicialc_ milestones_20230221.pdfi8 [accessed 17 May 2023].
Under pressure from the EU, a comprehensive reform took place in 2003.Following lengthy political debates, together with other constitutional and legal rules related to European accession, an extremely broad, judicial-majority body of 19 members representing the wider judiciary has emerged.In addition to the 14 judge members, elected by the general meetings of the magistrates, there were 2 renowned lawyers elected by the Senate, the Minister of Justice, the President of the High Court of the Court of Cassation and the Attorney General.The Council has been given full power over virtually all matters affecting the careers of judges.Judges and prosecutors are appointed by the President of the Republic on a proposal from the Council.The reform fundamentally changed the status of the judiciary.The government lost nearly all control of this branch of power.Although the Minister of Justice has become a member of the council, he cannot, for example, take part in the adjudication of disciplinary matters.The Council has been given full power, not only in matters concerning judges but also those regarding prosecutors.This significant change was associated with typical "side effects".The full independence required by the European Commission has resulted in a lack of external control and strengthened the corporate nature of the system.
The Hungarian Helsinki Committee, Amnesty International and the Eötvös Károly Intézet published an open letter to Commissioner Reynders (the European Commissioner for Justice); B. Márton, 'Most akkor mi van az uniós pénzekkel?',(15 May 2023) Telex https://telex.hu/kulfold/2023/05/15/europai-unio-europai-bizottsaghelyreallitasi-alap-jogallamisag-rrf-mffaccessed 17 May 2023].Cheesman and Badó Cheesman and BadóInternational Journal for Court Administration DOI: 10.36745/ijca.532governmentandthejudiciary,and later the EU institutions, unfolded far beyond the particular problem in the late 2010s.51Theproblem of accountability and independence of the judiciary in Poland has come to the forefront of political battles with the aim of changing the composition of the Judicial Council at the initiative of the government.The argument was to strengthen accountability, which was sought to be achieved by changing the interpretative practice for the selection of Council members.Until then, the judge members of the judicial majority panel had been elected by the municipal judicial panel.The government took the view that the way of election is also constitutional if these members are elected by the legislature, thus strengthening parliamentary control.The Polish opposition considered this step, together with other measures taken in the field of justice, to be a serious violation of judicial independence.A draft law in 2017 aimed at reforming the National Council of the Judiciary.The 15 judges nominated by the self-governments would, instead, be elected by the Sejm.However, the law was vetoed by President Andrzej Duda.52TheEuropean Commission subsequently initiated a unique measure against Poland by triggering Article 7 of the Treaty of the European Union.It was proposed that Poland's voting rights should be suspended due to certain elements of the judicial reform.The Polish president responded by immediately signing the previously vetoed law.Voicing the violation of Polish sovereignty, the government has already raised the idea of "Polexit" following a European Court of Justice ruling on the disciplinary liability of Polish judges.The European Commission took the matter to the CJEU in October 2019 budget to the appointment of heads of court.Although a number of conflicts of competence have arisen as a result of the Council's work, the really serious debate between the 45 B. Neagu, ' Commission lifts CVM monitoring on Romania', (23 November 2022) Euractiv https://www.euractiv.com/section/politics/news/commission-lifts-(14March 2023) https://www.robert-schuman.eu/en/doc/questions-d-europe/qe-660-en.pdf [accessed 31 May 2023].49 E. Maurice, 'Rule of law: the uncertain gamble on conditionality.'Fondation Robert Schuman The Research and Studies Centre on Europe, European Issue no 660 Policy Paper (14 March 2023) https://www.robert-schuman.eu/en/doc/questions-d-europe/qe-660-en.pdf [accessed 31 May 2023].50 The council was established in Articles 186 and 187 of the Constitution of Poland.
It was argued by the ECtHR that the appointment of Mr. Zaradkiewicz was in clear violation of the 'established by law' test and that the reform of the judiciary in 53 "The second subparagraph of Article 4(3) TEU in conjunction with Article 279 TFEU-in so far as the Court of Justice imposes,ultra vires, obligations on the Republic of Poland in the context of interim measures related to the justice system and jurisdiction of Polish Courts, as well as the mode of proceedings before Polish courts -is incompatible with Article 2, Article 7, Article 8(1) and Article 90 (1) in conjunction with Article 4(1) of the Constitution of the Republic of Poland, and, accordingly, is not covered by the principles of primacy and direct effect referred to in Article 90(1)-90(3) of the Constitution.(P 7/20/14 VII 2021).Cheesman and Badó the executive retained powers in other administrative matters of the courts.The State Judicial Council (SJC) is an independent and autonomous body within the meaning of Article 121 of the Constitution, which guarantees the independence and autonomy of the judiciary of the Republic of Croatia.78Itdecidesindependently on the appointment, promotion, transfer, dismissal of judges and court presidents (except the President of the Supreme Court), disciplinary proceedings and the further training of judges and members of the judiciary.79Itconsists of eleven members, seven of whom are judges, two professors of law and two Members of Parliament, elected for a four-year term subject to re-election on a single occasion.The presidents of the courts may not be members of the SJC.The president of the SJC is elected by the members from among their ranks.80Alladministrative matters which do not fall within the competence of the Council are the responsibility of the Ministry of Justice, which it carries out in cooperation with the President of the courts.In this context, the Minister of Justice has the right to terminate, repeal or annul any unlawful administrative provision (Section 71).The Minister adopts the Rules of Court, which set out the organization and administration of the courts and determines the number of judges presiding in each court.The Minister keeps a register of judges, s/he can ask for any information, s/ he may also ask the sentencing judge for an explanation of certain lawsuits.Cheesman and Badó International Journal for Court Administration DOI: 10.36745/ijca.5322. Other powers related to judicial human resources policy. 863. The role of the Council in disciplinary matters.The Council shall set up a disciplinary committee, initiate disciplinary proceedings and ensure that disciplinary action is taken.The fourth group includes the competences that allow the implementation of the previous ones. 87It shall, in consultation with the Minister for Justice, adopt the criteria for the selection of judges and the evaluation of judges already appointed.It shall create a code of ethics and integrity.The Minister of Justice shall consult the Council on the necessary number of judges and organizational issues.