Judicial Independence
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Juan A. Mayoral ◽  
Marlene Wind

Cliometrica ◽  
2021 ◽  
John Dove ◽  
William J. Byrd

2021 ◽  
Vol 30 (4) ◽  
Keith Cherry

Around the world, the current political conjuncture is one of profound challenges for constitutionalism and the rule of law. In the United States, the executive has willfully engaged in a prolonged attempt to weaponize the machinery of the state and radicalize public opinion in order to undermine a democratic election. In the European Union, the increasingly authoritarian relationship between the executive and the judiciary in Poland and Hungary is posing the most profound threat to European constitutionalism in decades. In Hong Kong, the Chinese state is actively seeking to undermine legislative and judicial independence in the face of unprecedented pro-democracy mobilizations. In India, Lebanon, Bolivia, and elsewhere mass mobilizations are challenging, and being suppressed in the name of, the rule of law. Here in Canada, the Wet’suwet’en and their supporters, as well as the Tsleil Waututh, Haudenosaunee, L’nu (Mi’kmaq), Inuit, and members of countless other Indigenous nations are contesting the very nature of the rule of law, as they assert Indigenous laws against the law enforcement of the colonial state. Around the world, the use of emergency powers in response to the COVID-19 pandemic is also raising profound constitutional concerns.

Mathieu Leloup

Time for the European Court of Human Rights to interpret Article 6 ECHR to encompasses a subjective right for domestic judges to their own independence – Overview of the existing case law on the principle of judicial independence – Such a right currently not present in case law – Judges are obliged to frame their complaints, while at their heart independence-related, in terms of other substantive Convention rights – Court cannot properly address one of the fundamental aspects of these cases – Lower protection for the domestic judges – Other international legal orders do include such a subjective right to a judge’s independence – Several arguments for the European Court of Human Rights to similarly acknowledge such a right under the Convention – Few difficulties in integrating such a right into the existing case law

Emre Turkut

Abstract How did the Council of Europe cope with its member states that engaged in rule of law backsliding? This article analyses the responses of the Venice Commission, the Council of Europe’s expert body on constitutional matters, to Turkey, Hungary, and Poland as their governments eliminated key checks and balances on their power, curtailed judicial independence, and undermined political pluralism and civil society. It finds that the Venice Commission managed to address a set of particularly vital issues that get to the heart to rule of law backsliding in these countries. Despite the breadth of the Venice Commission’s forthright involvement, these case studies display the limitations on the part of other Council of Europe bodies in forming a coordinated approach and response to rule of law backsliding.

2021 ◽  
pp. 001041402110243
Geoff Dancy ◽  
Oskar Timo Thoms

This article presents and tests an original theory that truth commissions (TCs) inspire democratic behaviors, but have little discernible impact on democratic institutions. Using quantitative analyses of countries undergoing transitions between 1970 and 2015, and accounting for endogeneity of TCs, we find that these temporary bodies are associated with greater democratic participation and state agent observance of physical integrity rights. However, they have no measurable effect on institutions like fair elections, rules regulating political association, liberal checks on the executive, or judicial independence. This contradicts a key argument in the transitional justice literature that TCs catalyze institutional reform through investigation and extensive recommendations. This article’s findings might encourage those who intend to use these bodies as a tool to promote citizen activism or police restraint. However, the findings might discourage those who hope TCs could jump-start judicial reforms or create a firewall against executive overreach.

Significance Chronic infighting is preventing the government from dealing with basic challenges and honouring its commitment to restore judicial independence. Personalities, inter-party turf wars and the renewed politicisation of justice are driving the disputes. Unless they abate, the Citu government is unlikely to last long. Impacts Introversion and disarray at the top of government are eroding Romania’s international standing as tensions rise in the Black Sea region. The coalition may struggle to agree a strategy for spending funds from the EU’s recovery fund. The former communist PSD, which left office in 2019, is likely to continue to regain popularity.

2021 ◽  
pp. 203228442110276
Tricia Harkin

The case law of the Court of Justice from 2016 to 2019 on the interpretation of ‘judicial authority’ in Article 6(1) FD-EAW essentially examines whether a public prosecutor can be an issuing judicial authority and if so, how Member States’ systems for issuing EAWs ensure effective judicial protection for the person concerned. For the Advocate General, applying the Court’s ‘rule of law’ jurisprudence, effective judicial protection when deprivation of liberty is involved can only be assured by a body with the highest level of judicial independence, being a court. The Court’s broader approach of including public prosecutors with sufficiency of independence from the executive and requiring their decisions to be amenable to review by a court, when applied in practice arguably falls short of the requisite standard of effective judicial protection. There is also a lack of clarity about access to the interpretative jurisdiction of the Court by public prosecutors acting as judicial authorities. Effective judicial protection and EU cooperation in criminal matters would now be better served by the designation in all Member States of a court as the issuing judicial authority for the FD-EAW. This is against the background of the uniquely coercive nature of the EAW in terms of deprivation of liberty; the differences in Member States’ institutional arrangements for public prosecutors and the post-Lisbon effective constitutionalisation of judicial protection of rights of individuals.

Significance After accentuated rule-of-law erosion during 2017-19, the new government encouraged hopes that such violations would become a thing of the past. However, last month, the government sacked the ombudsman, while the Constitutional Court declared void a judgement of the EU Court of Justice (CJEU) defending judicial independence. Impacts Recent developments erode hopes that last month’s positive CVM report will lead to Romania’s Schengen zone accession later this year. Failure to replace the ombudsman will not affect the coalition parties electorally, given the politicisation of rule-of-law issues. Subnational courts will be left confused whether to apply the Constitutional Court or the CJEU ruling to legal disciplinary cases.

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