Perceptions of Judicial Independence in European Countries

The perceptions of judicial independence of judges, lawyers, general public and companies are analysed across countries. The perceptions of these categories are strongly correlated. However, the mean scores differ: judges are much more positive about their independence than lawyers, and lawyers are much more positive than the general public and companies. As to the general public, highly educated citizens are generally more positive about the presence of independence than citizens with lower education levels. The difference increases with the degree of independence. Citizens with little education in very different countries have similar perceptions of judicial independence. The limited information that is available about court users suggests that persons with recent experience with the courts are less positive about independence than persons without experience. For companies the reverse is apparent. Among both the general public and companies, the perceptions diverge more with experience than without experience, likely as a result of winning or losing a case.

Independence and Trust

The Chapter examines the trust of the general public in the judiciary at the national and EU-level. The starting point is that the correlation between the independence of the judiciary as perceived by the general public and the trust in the judiciary by the same public is very strong: trust in the judiciary equals trust in the independence of the judiciary. Trust in the judiciary is generally higher than that in parliament and government. However, the trust in the judiciary is generally at the same level as that in the public administration. It is likely that the general public associates the public administration with desirable, fair and impartial implementation of public policies, and not so much with (divisive) policy formation. Thus, it is too simple to conclude that the judiciary performs better than the other powers of the state. High trust in the judiciary is fostered by the nature of the tasks. At the EU-level the differentiation of trust between the three branches of government is much smaller than at the national level. Trust in the European Court of Justice (the supreme court of the European Union) is higher than in the national judiciary at low levels of trust at the national level, and smaller at high levels of trust. Still, trust in the ECJ is higher in countries with a highly trusted judiciary than in countries with a less trusted judiciary.

Respect for Judicial Independence

This Chapter examines whether judges feel that their independence is respected. Three categories of actors are distinguished: the court users, the political system and the internal decision makers of the judiciary. Judges feel in the mean most respected by the internal leadership, to a lesser extent by the court users and least by the political system. In some countries judges do not feel respected by the political system at all. In the opinion of the judges, respect by the different actors has different features. Perceived respect shown by litigants has to do with absence of bribery and other forms of corruption, and inappropriate pressure. Respect by government and parliament is about the implementation of judgments by government and the case load of the judiciary. Case load depends on the resources that politicians make available. Respect by court management concerns absence of pressure on judges to adjudicate cases timely, case load and promotion of judges based on merit. Caseload is a recurring determinant of perceived respect for independence. This suggests that independence is highly affected by resource allocation.

Introduction

The central question that this book will try to answer is whether there is a lack of alignment and—in the extreme—a disconnect between the judiciary and society in countries of Europe (EU and UK). This central question is developed into six sub questions. The sub questions focus on perceptions of judicial independence by various actors, their respect for independence and the trust of the general public in the judiciary.

Perceptions of Lay Judges About Independence of the Judiciary

Lay judges are citizens with particular knowledge of and experience with the judiciary. The findings of a survey among the lay judges of ten judiciaries are examined in this chapter. It is found that the perceptions of lay judges of judicial independence, their own as well as that of the professional judges, are very similar to the perceptions of the professional judges. In addition, lay judges are most positive about their independence, when they participate in judicial panels together with professional judges and when they are taken seriously by the professional judges. For them, these conditions surpass sitting alone as a judge. Although selection effects may play a role, the results indicate that experience as a lay judge leads to a much higher appreciation of judicial independence than that of (highly educated) citizens in general. This in turn indicates that the views of the general public are too negative about judicial independence.

Judiciary in Democracy: Alignment and Disconnect

In this last Chapter, the consequences of differences in perceptions are examined. Two concepts are used: the lack of alignment and—more extreme—the disconnect between judiciary and society. Ranking countries by trust in the judiciary, in the lowest 20% there is a disconnect of judiciary and society, in the 20% around the median and in the highest 20% there is lack of alignment. Disconnect and lack of alignment seem to be self-perpetuating, as judges do not perceive the state of independence as problematic. Indications are that even a disconnect does not reduce the use of the civil courts, but that it leads citizens to avoid administrative law procedures. A disconnect weakens the position of the judiciary within the trias politica. This reinforces the complicated relationship between the judiciary and the other state powers. Where the other state powers see an increasing influence of the judiciary, the judiciary sees its own independence endangered. These perspectives clash. For the judiciary the way out is to focus on access to justice as an alternative perspective. By addressing the urgent legal needs of citizens, the judiciary has the potential to improve its alignment with society and its position within the trias politica.

Judicial Independence and Perceptions of Judicial Independence

The three key concepts of this study are: perceived judicial independence, respect for judicial independence and trust in the judiciary. To provide the basis for the empirical chapters that follow, theoretical considerations are explored. Due to the subjective nature of independence, perceptions matter. According to European case law, the appearance of independence needs to be taken into account when the independence of a court is evaluated. The perceptions held by parties, lawyers, media, general public and judges are not homogeneous, and depend on different sets of factors. In the literature, it is widely believed that the judiciary needs a positive perception of independence to gain the trust of society. This trust in turn bolsters the legitimacy of the judiciary. Trust and legitimacy are many-faceted concepts. In this study trust is used in the sense of diffuse institutional trust. Respect for independence is used as an expression of the legitimacy of the judiciary. These concepts apply to the national courts and to the courts at the EU/European level. To understand judicial independence in Europe, both levels need to be examined in conjunction.