Actors of Informal Judicial Institutions and Practices

Abstract

While informal institutions significantly affect the functioning of courts, they also change the powers, position, and influence of individual actors in judicial systems. This Article analyzes how the presence of informal judicial institutions and practices reshapes the influence and importance of roles individual actors play in the functioning of the judiciary. The aim of this Article is three-fold. First, it maps the actors of informal judicial institutions and practices. Second, it stresses the importance of looking at actors who are not formally involved in particular judicial processes and recognized as decision-makers but have the ability to influence the judiciary informally. Third, it shows why it is necessary to keep in mind that also collective bodies can take part in informal judicial institutions and practices.

A. Introduction

Scholars from all around the world have acknowledged the importance of distinguishing between formal and informal aspects of the functioning of political systems in general,¹ and judiciaries in particular.² To understand how a judicial branch is organized and how it, in reality, performs its tasks it is necessary to take one step further and look beyond the formal framework setting up the “rules of the game”. The following examples illustrate that necessity.

In 2019, the Palamara affair shook the Italian public. It was revealed that a former member of the Superior Council of the Judiciary (Consiglio Superiore della Magistratura, hereinafter CSM) and the National Association of Magistrates’ (Associazione Nazionale Magistrati, hereinafter “ANM”) President, Luca Palamara, used to have private meetings with politicians. Apparently, the purpose of these meetings was to discuss and reach an agreement about the appointment of court presidents and chief prosecutors.³ Further investigation also exposed links between him and other private-sector actors, allegedly affecting court decisions in some relevant cases.⁴

In Slovakia, the investigations following the murder of investigative journalist Ján Kuciak and his fiancée revealed networks of judges, court presidents, prosecutors, public authorities, organized crime groups, and oligarchs. The purpose of these networks was to influence the judicial decision-making process. Moreover, for some oligarchs, networks served as a source of income as they used their connections to offer desired decisions to other persons who were willing to pay for such a “service.”⁵

Obviously, informality does not always directly involve judicial corruption and appointments. As the dramatic rise in popularity of the Antonin Scalia Law School at George Mason University indicates, informal institutions and practices can also be present in extra-judicial activities, such as teaching at law schools. The Scalia Law School invested a lot of resources in developing good relations with the Justices of the United States Supreme Court. Some Justices became teachers at the Scalia Law School, and they were offered generous salaries and various non-monetary benefits. Of course, there is nothing informal about that. What can be considered informal and problematic, however, is the fact that some Justices closely affiliated with Scalia Law School used their Court’s staff for the administration of their extra-judicial activities.⁶

Informal judicial institutions and practices involve a great variety of actors, placed both within and outside a judiciary. As regards the actors operating within a judiciary, one would typically think of rank-and-file judges, court presidents, justices, and chief justices. Nevertheless, there are also “less visible” individuals who could influence judges or who could be informally targeted for that purpose. These include lawyers, law clerks, or court personnel.⁷ In each jurisdiction, and besides the individual actors, collective actors (or bodies) are essential. These could include—national, international, or supranational—courts, judicial councils, selection and promotion committees, disciplinary panels, judicial associations, and other bodies of various kinds composed of both judicial and non-judicial actors.

This Article targets actors of informal judicial institutions and practices. The overarching question the Article poses is: Who are the actors of such institutions and practices? In order to answer that question, one must focus on (a) individual and collective actors operating within judiciaries, and (b) informal institutions and practices in both judicial decision-making as well as judicial governance fields.

Based on contributions to this issue and the review of literature covering various European jurisdictions, this Article puts forth three arguments. First, when analyzing informal judicial institutions, it is not sufficient to look at actors who have any kind of formal powers or responsibilities. Rather, it is necessary to pay attention to actors who are not involved in formal processes but are able and willing to use informal means of influence. In other words, judicial governance and decision-making can be affected by actors whose influence and presence are unexpected if one focuses on formal rules and practices. Second, informal judicial institutions and practices do not influence the behavior and expectations of exclusively individual actors, but they can also involve collective bodies, typically those having specific powers in the judicial governance field. Third, if that is the case, the presence of informal judicial institutions and practices usually de facto bolsters the importance of these collective bodies, which makes it even more crucial to look at the composition of the collective judicial self-governing bodies and actors who could either formally or informally influence the composition and decisions of those bodies.

This Article is structured as follows: Section B contains the conceptualization of informal institutions and clarifies the article’s scope. Section C analyzes individual actors of informal judicial institutions and practices. Section D generalizes the findings from the previous section. Section E concludes and suggests avenues for further research on actors of informal judicial institutions and practices.

B. Informal Judicial Institutions, Practices, and the Scope of the Article

The judicial branch, just like any other branch of power or system of social interactions in general, is regulated by institutions. They create a “strategic context”⁸ in which the societal actors operate. Irrespective of whether we refer to that context as institutions, rules, practices, conventions, or habits, all these concepts have a common feature. The main rationale behind their existence is to express shared opportunities or constraints that permit, forbid, prescribe, or advise certain actions or outcomes for actors.⁹

This can occur in two forms. On the one hand, there are formal institutions. Formal institutions are mostly written, they set a general framework in which interactions between actors take place, define the powers and responsibilities of actors, state criteria for various actions and procedures, and so on. On the other, actors’ behavior can be regulated by informal institutions that can be understood as “socially shared rules, usually unwritten, that are created, communicated, and enforced [in contrast to the formal ones] outside of officially sanctioned channels.”¹⁰

This Article refers to both informal judicial institutions and informal judicial practices,¹¹ even though it is beyond its aim to draw a demarcation line between the two concepts. There are two reasons for a broader perspective and higher inclusiveness. First, informal institutions do not emerge suddenly.¹² In their very beginnings, informal institutions were rather “adaptive and creative responses” by actors to the constraints and opportunities of formal institutions.¹³ Only with repetition, diffusion, and internalization did they become institutions.¹⁴ In reality, however, it is challenging to observe a point at which a practice becomes an institution. Second, for a lot of the instances of informal judicial practices dealt with in this Article, it would be impossible to evaluate to what extent they are, for example, socially shared, or how the sanction mechanism—if any—works. Because of this impossibility, a narrower focus on informal judicial institutions could lead to situations where some important informal judicial practices, with the potential of becoming institutions and influential actors would be left out of the scope.

Before we move to the next section focusing on actors of informal judicial institutions and practices, three remarks should be made. First, in what follows, the Article maps the actors of informal judicial institutions and practices operating between judges—internal judicial institutions—and between judges and non-judges—mixed judicial institutions—¹⁵while taking into account both judicial decision-making and judicial governance fields.

Second, the scope of this Article is limited to judicial actors, in other words actors involved in judicial decision-making or governance, usually operating within judiciaries. Informal judicial institutions and practices can involve various non-judicial actors such as politicians, other social, economic, and state actors such as NGOs, economic interest groups,¹⁶ police,¹⁷ military,¹⁸ intelligence services,¹⁹ and organized crime.²⁰ These actors are generally outside the scope of this article. The only section to let them in is Section C.II.1, discussing informal judicial practices and institutions in selection and appointment procedures and, therefore, includes political actors.

Third, the aim of the Article is not to provide an exhaustive overview of all actors taking part in informal judicial institutions and practices. Rather, it looks at the actors who quite often employ informal means of action and such means can be observed in more jurisdictions. The next Section builds on the analysis and findings of the individual case studies in this issue and accompanies them with a review of the literature on individual European Jurisdictions.

C. Actors of Informal Judicial Institutions and Practices

This section focuses on actors of informal judicial institutions and practices. It begins with those institutions involving actors operating in their individual capacities, individual actors, namely court presidents, chief justices, and law clerks. Then, collective actors and bodies, namely collective judicial self-governance bodies, associations of judges, and informal platforms created mainly by court presidents, are discussed.

I. Individual Actors of Informal Judicial Institutions and Practices

1. Court Presidents and Chief Justices

Court presidents and chief justices, as well as other actors such as court managers or court directors, play an important role in almost all jurisdictions. In many Central and Eastern European countries they are seen as the most powerful actors.²¹ Their powers and influence come not only from formal responsibilities assigned to the office but typically also from unwritten rules and practices they develop or take part in. In other words, the powers of court presidents and chief justices are often informal, in the sense that the law does not explicitly regulate them.²² Court presidents can affect the functioning of a judiciary or a court in almost every possible way as they may have powers over the careers of judges—their selection, promotion or disciplining—financial matters concerning a court or a judge’s well-being, allocation of cases, panels’ composition, and the assignment of judges to a panel. Moreover, court presidents and chief justices are also active in relations beyond a particular court or jurisdiction. These include interactions with other branches, media, academia, the legal profession, or the general public.²³ This part of the Article contains instances of informal judicial institutions and practices that involve court presidents and/or chief justices.

The selection and appointment of judges usually involve a variety of actors, including court presidents and chief justices, selection committees, judicial councils, and political actors. Court presidents and chief justices in particular are in a position to use informal powers and influence the selection process. In Czechia and Slovenia, the court presidents informally “pre-approve” candidates before they take part in a formal selection procedure.²⁴ Besides “handpicking” the eventual candidates, the court presidents and chief justices can also influence the composition of the selection committees, make use of their personal relationship with the members of a body responsible for selecting judges, or lobby for particular candidates to be considered by, for example, political actors involved in the selection of judges.

Thus, court presidents are highly influential actors in this regard, and in some countries, such as Czechia,²⁵ Slovenia,²⁶ Slovakia,²⁷ Poland,²⁸ Hungary,²⁹ or Ukraine,³⁰ they can be considered the de facto key players. Beyond Europe, for example, the Japanese Supreme Court Chief Justice selects the candidates from the recommendations made by the Japan Federation of Bar Associations. Nevertheless, in reality, the Cabinet follows the Chief Justice’s recommendations.³¹ In India, the Supreme Court Chief Justice is involved in the appointment process as she is consulted by the President. Moreover, the Chief Justice’s informal powers and influence could play a role beyond the consultations as, in practice, the appointments are the result of the collegium of the most senior judges of the Supreme Court.³²

The allocation of cases to individual judges, or to particular panels and the decisions on panel/grand chambers’ composition represent the initial steps on a path leading to a court’s decision. Even though many countries have adopted strict criteria and detailed procedures or automated processes,³³ informal practices still exist in these areas. As regards case assignment at the apex courts, it is an informal practice in the United Kingdom that the Lord Chief Justice or the Master of the Rolls “reserves” the publicly or legally most important cases for himself. A similar practice can be observed in Hungary, where the Chief Justice of the Constitutional Court himself often decides salient cases.³⁴ In Israel, such cases are allocated to a Justice based on the seniority rule, which also plays an informal role in panel composition at the Israeli Supreme Court when important cases are decided. Chief Justices at the Czech apex courts, the Supreme and Supreme Administrative Courts, have much more discretion and the ability indirectly to influence a case as they are de facto free to decide on the grand chambers’ membership.³⁵ A rather high degree of flexibility in (re-)assignments of cases is evident also at lower courts where the court presidents play a dominant role in countries such as Czechia,³⁶ Slovakia,³⁷ Ireland,³⁸ Georgia,³⁹ Israel,⁴⁰ and Ukraine.⁴¹

As regards the education and training of judges, the court presidents or chief justices usually do not play much of a role, as judicial training is often organized by the central judicial authority, for example, judicial schools.⁴² Nonetheless, court presidents and chief justices can be involved as trainers,⁴³ or they can provide advice and their expertise on various legal problems as part of legal consultations, or provide training on the recent case law of their higher courts.⁴⁴ Indeed, the practice of providing consultations on legal problems relevant to a particular case is not limited to chief justices and court presidents. Obviously, communication can occur exclusively between rank-and-file judges at an individual court as well as among rank-and-file judges from different courts, including the ones situated higher in the judicial hierarchy.⁴⁵ These informal practices exist in Czechia,⁴⁶ Slovakia,⁴⁷ Romania,⁴⁸ or Israel.⁴⁹ However, due to their prestige and jurisprudential influence,⁵⁰ court presidents, and especially chief justices, are often involved in such kind of judicial training.

Recently, many courts have realized that active communication with the public is becoming desirable. On the one hand, the courts are in charge of explaining their decisions to the citizens in an accessible way. On the other hand, such efforts create a window of opportunity for judges to become visible, publicly known, and possibly more influential. Because the chief justices and court presidents are perceived as representing a court, a jurisdiction, or even a whole judiciary, it is quite common for them to be active in communicating with media and the general public through, for instance, giving interviews or holding press conferences.⁵¹ In some jurisdictions we can observe that individual judges and justices are seizing the opportunity to become the “faces” of the judiciary. The justices of the Ukrainian Constitutional Court and the Supreme Court,⁵² justices and chief justices at the Czech apex courts,⁵³ and the Chief Justice of the Constitutional Court of Italy⁵⁴ seem to be active in this regard. At this point it should be stressed that chief justices’ active media presence is not limited to a particular region or to national jurisdictions.⁵⁵ Rather, it is quite common for chief justices to represent the judiciary vis-à-vis the general public.⁵⁶

2. Law-Clerks

Law clerks are able to perform various roles and informally influence decisions in many ways. They can, for instance, serve as a filter of incoming petitions, prepare summaries of the cases, recommend how a particular case could or should be decided, or even write draft judgments.⁵⁷ Hungarian law clerks working at the Secretariat of the Constitutional Court are highly influential in deciding whether or not a case will reach a justice. It is estimated that approximately 40 percent of cases are rejected at this very initial stage.⁵⁸

The law clerks at the German Federal (Bundesverfassungsgericht) and Czech Constitutional Courts prepare summaries of cases and recommend how a case should be decided.⁵⁹ Probably the most influential and, at the same time, controversial task law clerks have is that of drafting judgments. This practice seems to be widespread, as it is observable in many European countries.⁶⁰ For instance, in Germany the law clerks are the most influential in drafting the judgments of small chambers consisting of three Justices.⁶¹ Under Németh’s leadership of the Hungarian Constitutional Court, law clerks drafting decisions had to sign them using their own initials.⁶² Law clerks with an informal influence on the decision-making process also work at courts in Switzerland⁶³ or the Netherlands.⁶⁴

II. Collective Actors of Informal Judicial Institutions and Practices

This section of the Article examines informal judicial institutions and practices involving collective actors. In this regard, the primary interest lies in collective actors of judicial self-governance, associations of judges, and informal platforms created—mostly—by the court presidents and chief justices.

1. Judicial Self-Governance Bodies

Judicial governance involves a variety of actors who are responsible for all aspects related to the functioning of a judiciary, such as budget and resources, selection of judges and judicial careers, and the allocation of cases, to name a few. Whilst judicial governance in terms of structure refers to all actors responsible for the administration of judiciaries, judicial self-governance focuses primarily on the role and powers of judicial self-governance bodies.⁶⁵ The group of judicial self-governing bodies typically includes judicial councils, but also court services, judicial selection and promotion committees, judicial associations and academies, and, last but not least, court presidents.⁶⁶ Selection and appointment procedures are the fields in which informal judicial institutions and practices involving judicial self-governing—collective—actors can mainly be found and seem to be widespread.

An actor responsible for the appointment of judges in Belgium is the Appointment and Selection Committee of the High Council of Justice (Hoge Raad voor de Justitie). Once the Committee has proposed a list of candidates, the King—de jure holding decision-making powers—may appoint the judges or refuse to do so. In reality, the King accepts the Committee’s proposals.⁶⁷ In Czechia, judges are formally proposed by the Minister of Justice and appointed by the President of the Republic. Nevertheless, the crucial actors in the procedure are the court presidents. Despite recently imposed constraints on their informal influence, they were able to retain this influence through an informal memorandum with the Minister of Justice.⁶⁸ As a result, the Minister needs court presidents’ informal agreement.⁶⁹ In Denmark, de facto decision-making power belongs to the Judicial Appointments Council (Dommerudnævnelsesrådet). The Council submits its proposals to the Minister of Justice, who subsequently forwards the nominations to the Queen. In reality, the Minister never disagrees, despite the fact that she is allowed to do so.⁷⁰

In Austria, the formal prerogatives for appointing judges lie within the executive power at both the federal and state levels. Formally, the executive, especially the Minister of Justice, and the Federal President as the actor having a final say, has wide discretion in the process as the proposals for appointments, made by staff committees and plenary conferences, are not binding. Usually, the Minister follows the proposals, and if she does not agree an informal practice forces her to provide a reasoned statement.⁷¹ In the Netherlands, formal nominations are made by the Council of the Judiciary (Raad voor Rechtspraak). The Minister of Justice countersigns royal decrees and is free to accept or decline proposals. She chooses the second option only exceptionally.⁷² Swedish and Irish judges are appointed in a similar way. Even though the proposals of judicial self-governing bodies are not binding on the Government, the executive follows them in almost all cases.⁷³

2. Associations of Judges

Judicial associations can play an important role despite their formally recognized status. On the one hand, they can perform many functions defined in their statutes. Typically, these include protecting and promoting judges’ professional interests, improving the effective administration of justice, maintaining independence, and strengthening the reputation of a judiciary.⁷⁴ Nevertheless, judicial associations can also make use of informal methods when intending to shape public policies in relevant areas,⁷⁵ mobilize judges⁷⁶—when there is a need to, for instance, protect judicial independence—or influence the functioning of bodies responsible for judicial self-governance or even the judicial decision-making process. The cases of Italy⁷⁷ and Romania⁷⁸ stress the informal role associations of judges can play within judiciaries.

Judicial governance, and especially judicial careers, are in Italy primarily governed by the CSM.⁷⁹ Judicial members of the CSM are usually, at the same time, members of the Association of Judges (ANM). The ANM is internally divided on political and ideological lines, forming four main informal groups of judges or cliques, so-called correnti.⁸⁰ As demonstrated by Benvenuti,⁸¹ individual factions have a significant influence on the internal functioning of the CSM as well as on the results of the exercise of the CSM’s formal responsibilities. For example, individual correnti draft lists of their candidates for the posts of judge members of the CSM. As a result, all main factions have their representatives.⁸² Once candidates are appointed, they continue to cooperate with their cliques when working on the CSM’s responsibilities, where correnti form informal council groups composed of the judge members the correnti originally nominated.⁸³ Furthermore, the decisions of the CSM are discussed and negotiated in advance during regular meetings of the representatives of the four council groups.⁸⁴

The logic of cooperation between individual factions and CSM council groups is also reflected in the CSM’s decisions affecting the careers of judges, especially judicial appointments and the evaluation of judges. For instance, judicial appointments can be perceived as being the result of informal agreements between individual groups. These agreements represent a deal stipulating how the vacancies are to be filled.⁸⁵ As far as the evaluation of judges is concerned, the CSM set out quite clear criteria and detailed procedures for assessments. Interestingly, however, almost every judge is evaluated positively.⁸⁶

Another example of judicial associations’ informal influence concerns Romania. There, the associations of judges played an essential role in defending the rule of law. In order to raise awareness of the rule of law situation in Romania as well as to provide exhaustive information on national legal developments, the associations of judges actively engaged in debates with international organizations and EU institutions. Through networking activities, they often succeeded in gaining support or turning others’ attention to Romania’s rule of law issues. Moreover, the associations—or a small group of their representatives—went beyond the networking and awareness-raising activities as they were also involved in drafting specific questions they considered crucial for Romania to be answered by the Court of Justice of the European Union. As argued by Doroga and Bercea,⁸⁷ the Romanian associations of judges were able to push the Romanian courts into a dialog with the Court of Justice of the European Union through the preliminary reference procedure.⁸⁸

Indeed, beyond the two mentioned cases, judicial associations can be considered significant actors of judicial politics in other European jurisdictions, too. For instance, it is argued that the judicial associations and their links to the political parties mirror themselves in the composition of the Spanish Judicial Council (Consejo General del Poder Judicial).⁸⁹ In other words, political parties can indirectly influence the Council’s membership through often politicized associations of judges.⁹⁰ Similarly, in Germany, the selection of judges in some States seems to be politicized to a certain extent, as the judicial associations, and their members taking part in selection committees as judicial members, form de facto coalitions with political parties and their representatives on the committees.⁹¹

3. Informal Platforms

It is pretty common for court presidents to establish informal platforms. In Czechia, regional court presidents formed the College of Presidents of Regional Courts.⁹² Using this platform, the regional court presidents meet regularly and discuss judiciary-related policies and challenges the regional courts face.⁹³ Their informal power is mirrored in the fact that they seem to be needed for carrying out reforms affecting the Czech judiciary.⁹⁴ The informal method of coordination was also adopted by three Czech Chief Justices—of the Supreme, Supreme Administrative, and Constitutional Courts—when they established the “Trinity of top court presidents.”⁹⁵ In Israel, and similarly in Czechia, judicial actors often create and use informal platforms as means of coordination. The court presidents and vice-presidents are most active in this regard.⁹⁶

D. Discussion

The last section mapped the actors of informal judicial institutions and practices by focusing on both individual actors and collective bodies. Here, the aim is to provide more general observations that can be made about the actors and their involvement in informal judicial institutions and practices.

First, it is evident from the examples of informal judicial institutions and practices in this issue that it is crucial to take informal institutions and practices into consideration. The same holds true for the analysis of actors of informal judicial institutions and practices. It would be short-sighted to think about the scope and limits of the influence of actors who are formally expected to perform and entrusted with performing certain duties and have particular powers related to judicial decision-making or governance. The cases of correnti and judicial oligarchs in Georgia⁹⁷ are highly illustrative in this regard. The Italian Judicial Council (CSM) is perceived as a strong judicial council equipped with extensive powers over the administration of the Italian judiciary and judicial careers.⁹⁸ These powers include the appointment of judges, promotion, disciplining, transfer, and the removal of judges.⁹⁹

However, a legally established actor (ANM) without a formal role in the judicial governance field was able to transplant its own structure and its dynamics into the internal structure of the actor formally recognized and co-responsible for judicial governance (the CSM). As a consequence, the networks of -ANM- members and within the correnti now directly affect the functioning and decisions of the CSM. In the case of the Georgian judiciary, we can also observe the existence of an alternative or parallel center of power.¹⁰⁰ Judicial oligarchs are de facto in a position to influence basically every sphere of the judiciary.

Second, even an individual actor or a collective effort of a small group of actors can make a difference if it decides informally to shape its own or others’ positions and powers within a judiciary. For instance, the Czech “Superjudges,” a rather small group of the most influential judges, operate within the formal framework and make use of opportunities available to them. However, their “success” depends on a proactive approach to internal judicial—they often provide informal consultations to colleagues from their own courts or usually lower courts on various legal problems—and extra-judicial activities, for example taking part in political expert bodies, publishing, lecturing, and taking part in networks in which they have a dominant position. Consequently, they have gained influence and informal powers beyond what is presupposed by the formal rules, practices, and institutions.¹⁰¹ As Katz and Stafford argue, “the actions of a series of micro-motivated judicial actors map to the judiciary’s overall macro-behavioral jurisprudential outputs.”¹⁰²

Third, it is essential to keep in mind that informal judicial institutions and practices do not operate only between individuals. As demonstrated above, collective judicial actors’ behavior can also be affected by the presence of such institutions and practices. From the judicial governance point of view, some such institutions and practices are favorable to the judicial actors because they give them de facto more powers. In other words, if there is an informal practice that, for example, political actors usually agree with suggestions of the judicial self-governance bodies, it is less important that the formal involvement of such bodies is reduced to providing consultations or recommendations.

Thus, the informal judicial institution or practice moves de facto decision-making powers to the judicial actors, assuming that such a practice or institution is followed by all relevant actors. In a similar vein, informal judicial institutions and practices involving collective self-governance bodies also show us the limits to evaluating and comparing how much formal power judges hold in this field in individual jurisdictions.¹⁰³ Unless the presence of informality in judicial governance is taken into account, we cannot draw a complete picture of the real power of judges in the administration of judiciaries.

Fourth, and closely related to the existence of informal judicial institutions and practices involving collective actors, it is even more crucial to examine the composition of collective bodies. In many jurisdictions, the chief justices and/or court presidents chair the judicial councils or other collective judicial self-governing bodies such as disciplinary panels or promotion committees, or they are at least members of those bodies.¹⁰⁴ Even if the chief justices and court presidents are excluded from being members of particular judicial self-governing bodies, the risk remains that they could use their influence on other members. Such influence can be realized through, for example, personal and professional ties or by using formal powers such as disciplining or rewarding particular judges in order to change behavior and decisions in a desired direction.

The cases of Georgia and Slovakia illustrate the importance of looking at the composition of collective bodies. Formally, the most powerful actor of judicial self-governance in Georgia is the judge-dominated High Council of Justice. It is equipped with extensive competences in judicial recruitment and appointments, promotions, and the disciplining of judges.¹⁰⁵ However, despite its strong formal position, the real power lies elsewhere. As Tsereteli has shown, the Georgian judiciary is de facto governed by a small group of the most powerful judicial actors consisting of former Council members and prosecutors.¹⁰⁶ According to Tsereteli, one of the prerequisites for their success is control over the Judicial Council.¹⁰⁷ Having a decisive informal influence on the Council allows the judicial oligarchs to take advantage of the Council’s formal powers. Appointment procedures and the promotion of judges are especially crucial here.¹⁰⁸ Before the Council’s de jure powers are employed, the appointments are informally agreed on in advance by the oligarchs, and only then formally processed and approved. This procedure of “talking first informally” applies also to other judiciary-related decisions.

In their article, Šipulová and Spáč¹⁰⁹ show what the risks are of accumulating the powers of the chief justice and head of the judicial self-governing body in the hands of one person. Until 2014, the Supreme Court Chief Justice chaired the Judicial Council. During the Harabín leadership of the Supreme Court the Council was packed with loyal judges.¹¹⁰ Apart from that packing, Harabín was willing to use his formal powers with the intention of creating a group of loyal judges by rewarding them and punishing those in opposition to him. For instance, he used to prevent them from participating in meetings of the Supreme Court or working groups organized by the Ministry of Justice. Moreover, he was very active in disciplinary proceedings against other judges.¹¹¹ The Georgian and Slovak examples show that, for some actors, it could be their priority either formally, as a chair, or informally, through personal and professional connections with the members, to lead and control the judicial self-governing bodies.

E. Conclusion

Informal judicial institutions and practices are an inherent feature of basically every judicial system. Because formal institutions usually do not cover every aspect of behavior or all possible situations, do not always deliver the result for which they were institutionalized, or do not exist, there are actors willing to develop informal practices and institutions.

Generally speaking, there is no single sphere of judicial activity that can be fully protected against informal attempts to influence formal processes and their outcomes. For example, some actors may have an interest in affecting judges’ careers at various points. They can target the nomination and appointment process in order to make sure that the “right people” are on the bench.¹¹² Similarly, it is also possible to use formal mechanisms of promotion and disciplining to reward or punish a judge for her performance.¹¹³ Also, the judicial decision-making process can be undermined in many informal ways. These could include, for instance, an expression of a desired result by judicial¹¹⁴ and non-judicial actors,¹¹⁵ ex parte communications,¹¹⁶ corruption,¹¹⁷ personal relationships and networks,¹¹⁸ clientelist and patronage webs,¹¹⁹ rhetorical and personal attacks, and, in more extreme cases, threats to personal safety and assassination attempts.¹²⁰

This Article has analyzed actors of informal judicial institutions and practices. Because the aim was not to provide an exhaustive overview of all actors using informal means of action, the Article focused on two groups of actors: Individual—court presidents and chief justices, law clerks—and collective ones—judicial self-governing bodies, judicial associations, and informal platforms. The court presidents and chief justices have a unique position within the judiciary, perform many functions, and are endowed with various responsibilities, often without formal regulations clarifying the boundaries of their actions. This holds true not only for the European court presidents but for the office of a court president or chief justice in general.¹²¹ The law clerks, even if they are not the most visible actors operating at courts, have, in some jurisdictions, quite broad powers and responsibilities in the judicial decision-making process.

Nevertheless, judicial politics is not only about individuals, as the abovementioned collective bodies represent essential actors within the judiciary. In this Article it was argued that, irrespective of their formal powers and involvement in judicial politics, these actors are able to shape the way a judiciary functions. The informal influence of judicial associations in some countries illustrates that point very well. However, informality is visible not only in how these collective actors operate. Informal judicial institutions and practices can also affect what position the collective bodies have despite formally prescribed roles. In the judicial governance field in particular, informal institutions and practices could make the judicial self-governing bodies even more powerful actors.

Such an observation leads us to make two additional remarks. First, in some jurisdictions, judges might have more influence in judicial governance than we thought. Second, as there are some powerful individuals in many jurisdictions—typically court presidents or chief justices—more attention should be paid to the composition and internal functioning of the collective bodies. The functioning of these bodies can be affected by powerful individuals either directly, for example through the position of chair, various formal and informal powers, leadership qualities, or authority, or indirectly—for example, via both formal and informal influence on the composition of the judicial self-governing bodies and decision-making processes.

Anyway, more research is needed in order to fully understand why judicial actors make use of informality. In other words, it is of the utmost importance to discover why individual judicial actors engage in informal networks, institutions, or practices, and what determinants affect their motivation to do so. The literature on informal judicial institutions, practices, and networks provides possible answers in this regard, such as a motivation to increase their own prestige,¹²² popularity, reputation, or public esteem,¹²³ visibility through a higher media presence,¹²⁴ or an intention to become a jurisprudential authority,¹²⁵ to name a few examples. Another promising avenue for future research can be seen in the informal influence of chief justices and court presidents on the functioning of judicial self-governing bodies, be they judicial councils, selection, promotion, or disciplinary committees. Here, two questions could be of interest. First, to what extent can judicial officials informally affect the composition of these collective bodies? Second, in situations in which the court presidents or chief justices are themselves members of collective bodies, it would be worth investigating whether their position within a judiciary somehow affects the decisional autonomy of other members of a body, or whether there are any behavioral patterns between them and other members that would reflect the chief justices’ and court presidents’ specific position.