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Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self-Governance in Europe

Published online by Cambridge University Press:  06 March 2019

David Kosař

Abstract

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A few years ago, judicial councils composed primarily of judges were viewed as a panacea for virtually all problems of court administration in Europe. The burgeoning literature on judicial councils has shown that this is not necessarily the case. This article builds on this literature, but it argues that judicial self-governance is much broader phenomenon than judicial councils and may also take different forms. Therefore, it is high time to look beyond judicial councils and to view judicial self-governance as a much more complex network of actors and bodies with different levels of participation of judges. To that end this article conceptualizes judicial self-governance and identifies crucial actors within the judiciary who may engage in judicial governance (such as judicial councils, judicial appointment commissions, promotion committees, court presidents and disciplinary panels). Subsequently, it shows that both the forms, rationales, and effects of judicial self-governance have varied across Europe. Finally, this article argues that it is necessary to take into account the liquid nature of judicial self-governance and its responsiveness to political, social, and cultural changes. Moreover, the rise of judicial self-governance is not necessarily a panacea, as it may lead to political contestation and the creation of new channels of politicization of the judiciary.

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Articles
Information
German Law Journal , Volume 19 , Issue 7: Special issue — Judicial Self-Government in Europe , 01 December 2018 , pp. 1567 - 1612
Copyright
Copyright © 2018 by German Law Journal GbR 

References

1 The Consultative Council of European Judges (Conseil consultatif de juges européens, hereinafter also “CCJE”) and the European Network for the Councils of the Judiciary (hereinafter also “ENCJ”) have been particularly active in this area.Google Scholar

2 The number of the Venice Commission's Opinions concerning judicial self-governance is so high that I cannot enumerate them here. For a broader understanding of the role of the Venice Commission in this area, see De Visser, Maartje, A Critical Assessment of the Role of the Venice Commission in Processes of Domestic Constitutional Reform. 63(4) American Journal of Comparative Law 963–1008 (2015); and Volpe, Valentina, Drafting Counter-majoritarian Democracy. The Venice Commission's Constitutional Assistance, 76(4) Heidelberg Journal of International Law 811-843 (2016).Google Scholar

3 For rare exceptions of scholars who engaged with this topic much earlier, see Renoux, Thierry S., Les Conseils superieurs de la magistrature en Europe (1999); Guarnieri, Carlo & Pederzoli, Patrizia, The Power of Judges: A Comparative Study of Courts and Democracy (2002); and Voermans, Wim & Albers, Pim, Councils for the Judiciary in EU Countries, European Commission for the Efficiency of Justice, CEPEJ (2003).Google Scholar

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10 Interim Order of the Vice-President of the ECJ in Case C-619/18 R Commission v Poland, 19 October 2018.Google Scholar

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18 See O'Regan, Michael, Judicial appointments Bill passes in Dáil and now goes to Seanad, The Irish Times (May 31, 2018), https://www.irishtimes.com/news/politics/oireachtas/judicial-appointments-bill-passes-in-d%C3%A1il-and-now-goes-to-seanad-1.3515540?mode=amp.Google Scholar

19 Steinbeis, Maximilian, Festa della Repubblica, Verfassungsblog, (Jun 2, 2018), https://verfassungsblog.de/festa-della-repubblica/.Google Scholar

20 See Śledzińska-Simon, , supra note 7; Çalı & Durmuş, supra note 15; and Kosař, David & Śipulová, Katarína, The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law, 10 Hague Journal on The Rule of Law 83 (2018).Google Scholar

21 Note that, on reflection, I simply prefer the term governance to government as the former is better for studying judiciaries beyond the state and signifies a change in the meaning of judicial self-government, referring to new processes of governing the judiciary, changed conditions of ordered rule, and new methods by which society is governed. Due to the limited space, I cannot engage with this conceptual debate here. Importantly, I did not impose this view on the contributors to this special issue (some of them use judicial self-governance, while others prefer judicial self-government or even use both terms). Please keep this in mind when reading this special issue.Google Scholar

22 See Part C for further details.Google Scholar

23 I am aware that judicial self-governance at these courts raises different issues and often differs significantly from the judicial self-governance of ordinary courts. But these differences can also be abused, see the creation of the new parallel system of specialized administrative courts in Hungary (analyzed by Novak & Kingsley, supra note 4).Google Scholar

24 Even though, as you will see below, especially the Mediterranean jurisdictions consider prosecutors on par with judges and often involve both groups in joint judicial self-governance bodies.Google Scholar

25 See Part C.Google Scholar

26 See e.g. judicial councils in the Netherlands and the de iure also in Slovakia.Google Scholar

27 See e.g. judicial councils in Spain and France, and the Judicial Appointments Advisory Board in Ireland.Google Scholar

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29 See e.g. judicial councils in Italy and Turkey.Google Scholar

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31 This was the case in the Judicial Council of the Slovak Republic between 2003 and 2014 (see Spáč, Samuel, Śipulová, Katarína & Urbániková, Marína, Capturing the Judiciary from Inside: The Story of Judicial Self-Governance in Slovakia, in this issue). See also Ireland, where court presidents are the only representatives of the judiciary on the Judicial Appointments Advisory Board (see O'Brien, Patrick, Never let a Crisis go to Waste: Politics, Personality and Judicial Self-Government in Ireland, in this issue).Google Scholar

32 See para. 2 of Resolution CM/Res(2010)26 on the establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights (2010).Google Scholar

33 Actually, several contributions to this special issue show that domestic understanding of judicial self-governance can be much narrower.Google Scholar

34 I did not impose this view on the contributors to this special issue nor do I want to do so on the readers.Google Scholar

35 Vauchez, Antoine, The Strange Non-Death of Statism: Tracing The Ever Protracted Rise of Self-Government in France, In this issue; Garapon, Antoine & Epineuse, Harold, Judicial Independence in France, in Judicial Independence in Transition 273, 285-286 (Anja Seibert-Fohr ed., 2012).Google Scholar

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37 See Mak, Elaine, Judicial Self-Government in the Netherlands: Demarcating Autonomy, in this issue. However, note that the Netherlands cannot be easily squeezed into the judicial council model – it introduced the Council for the Judiciary, but powers concerning appointing, promoting and disciplining judges do not lie with the Council for the Judiciary, but sometimes with the government, sometimes with the judiciary authorities, and sometimes they are shared.Google Scholar

38 de Carvalho, Ramos Nunes e Sá v Portugal, supra note 13; and especially concurring opinion of Judge Pinto de Albuquerque therein.Google Scholar

39 See Pérez, Aida Torres, Judicial self-government and judicial independence: the political capture of the General Council of the Judiciary in Spain, in this issue.Google Scholar

40 Çalı & Durmuş, supra note 15.Google Scholar

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42 For explanation why Czechia is a “black sheep”, see Blisa, Adam, Tereza Papoušková & Marína Urbániková, Judicial Self-Government in Czechia: Europe's Black Sheep?, in this issue.Google Scholar

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44 See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

45 See Wittreck, Fabian, German Judicial Self-Government: Institutions and constraints of self-government in Germany, in this issue.Google Scholar

46 See Krenn, , supra note 6.Google Scholar

47 See Çalı & Cunningham supra note 6.Google Scholar

48 The vast number of these guidelines and policies cannot be addressed here. See the individual contributions to this special issue. See also note 2.Google Scholar

49 The literature on judicial independence is so numerous that it cannot be addressed here. For recent contributions to this literature that devoted significant attention to judicial self-governance, see in particular Popova, Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine (2012); and Seibert-Fohr, Anja (ed.), Judicial Independence in Transition (2012).Google Scholar

50 See e.g. Daniela Piana, Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice (2010); Maria Popova, Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine (2012); Coman, Ramona, Quo Vadis Judicial Reforms? The Quest for Judicial Independence in Central and Eastern Europe, 66 Europe-Asia Studies 892 (2014).Google Scholar

51 For an overview of this literature, see Spáč, Samuel, Recruiting European judges in the age of judicial self-government, in this issue.Google Scholar

52 See e.g. Garoupa, Nuno & Ginsburg, Tom, Guarding the Guardians: Judicial Councils and Judicial Independence, 57 Am. J. of Comp, Law 103 (2009); Garoupa, Nuno & Ginsburg, Tom, The Comparative Law and Economics of Judicial Councils, 27 Berkeley Journal of International Law 53 (2009); Bobek, Michal & Kosař, David, Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe, 15(7) German L.J. 1257-1292 (2014); Pozas-Loyo, Andrea & Ríos-Figueroa, Julio, The Politics of Amendment Processes: Supreme Court Influence in the Design of Judicial Councils, 89(7) Texas Law Review 1807-1833 (2011); Ingram, Matthew C., Crafting Courts in New Democracies: Ideology and Judicial Council Reforms in Three Mexican States, 44(4) Comparative Politics 439-358 (2012); Parau, Cristina E., Explaining judiciary governance in Central and Eastern Europe: external incentives, transnational elites and Parliament inaction, 67 Europe-Asia Studies 409 (2015); Kosař, David, Perils of Judicial Self-Government in Transitional Societies (2016); Preshova, Denis, Ivan Damjanovski & Zoran Nechev, The Effectiveness of the ‘European Model’ of Judicial Independence in the Western Balkans: Judicial Councils as a Solution or a New Cause of Concern for Judicial Reforms, 2017(1) CLEER Papers (2017); and Ortiz, Pablo José Castillo, Councils of the Judiciary and Judges’ Perceptions of Respect to Their Independence in Europe, 9(2) Hague Journal on The Rule of Law 315-336 (2017); Solomon, Peter H., Transparency in the Work of Judicial Councils: The Experience of (East) European Countries, 45 Review of Central and East European Law (2018). See also note 3.Google Scholar

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54 Sauvé, Jean-Marc, Selecting the European Union's Judges: The Practice of the Article 255 Panel, in Selecting Europe's Judges 78 (Michal Bobek ed., 2015). Even though from the conceptual point of view it is an example of judicial government rather than judicial self-government, since no CJEU judge sits on the Art. 255 TFEU Panel.Google Scholar

55 Alemanno, Alberto, How Transparent is Transparent Enough? Balancing Access to Information versus Privacy in European Judicial Selections, in Selecting Europe's Judges 204 (Michal Bobek ed., 2015).Google Scholar

56 Dumbrovský, Tomas, Petkova, Bilyana & Van der Sluis, Marijn, Judicial appointments: the article 255 TFEU advisory panel and selection procedures in the Member States, 51 Common Market Law Review 455 (2014).Google Scholar

57 van der Woude, Marc, Towards a European Council of the Judiciary: Some Reflections on the Administration of the EU Courts, in Democracy and Rule of Law in the European Union. Essays in Honour of Japp W. de Zwaan 63 (Flora A.N.J. Goudappel & Ernst M. H. Hirsch Ballin eds., 2016).Google Scholar

58 See Çalı & Cunningha, supra note 6; and Bobek, Michal (ed.), Selecting Europe's Judges: A Critical Review of the Appointment Procedures to the European Courts (2015).Google Scholar

59 See Tsereteli, Nino & Smekal, Hubert, The Judicial Self-Government at the International Level: A New Research Agenda, in this issue.Google Scholar

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61 For a rare exception, see Dunoff, Jeffrey L. & Pollack, Mark A., International Judicial Practices: Opening the ‘Black Box’ of International Courts, Michigan Journal of International Law (forthcoming).Google Scholar

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64 See Çalı & Durmuş, supra note 15; and Ruys, Tom & Turkut, Emre, Turkey's Post-Coup ‘Purification Process': Collective Dismissals of Public Servants under the European Convention on Human Rights, 18(3) Human Rights Law Review 539–565 (2018).Google Scholar

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66 For instance, after the rise of Viktor Orbán in Hungary, the Hungarian Constitutional Court was early on stripped of its power to exercise constitutional review over budgetary and tax issues. See Hailbronner, Michaela, How Can a Democratic Constitution Survive an Autocratic Majority? A Report on the Presentations on the Judiciary, Verfassungsblog (Dec. 8, 2018), https://verfassungsblog.de/how-can-a-democratic-constitution-survive-an-autocratic-majority-a-report-on-the-presentations-on-the-judiciary/.Google Scholar

67 See supra notes 8-10.Google Scholar

68 In order to avoid lengthy conceptual debate, I am using the term “transnational courts” so as to cover both the ECtHR (which is an international court) and the CJEU (which is often treated as a supranational court sui generis).Google Scholar

69 It is obvious that the governance of the entire judiciary raises different issues than governance of a single court (and vice versa). See Çalı & Cunningham supra note 6; Krenn, supra note 6; Tsereteli & Smekal, supra note 52. See also Part C of this article.Google Scholar

70 On reflection, it would have been great to include in this special issue an article on judicial self-governance of domestic constitutional courts, which might be closer to judicial self-governance of the ECtHR and the CJEU than judicial self-governance of the general judiciary. However, it is for other researchers to fill this gap.Google Scholar

71 See supra note 20.Google Scholar

72 Ewald, William, The Jurisprudential Approach to Comparative Law: A Field Guide to “Rats”, 46 Am. J OF Comp. L. 701 (1998).Google Scholar

73 Vauchez, , supra note 35.Google Scholar

74 See Benvenuti, & Paris, supra note 36.Google Scholar

75 Çalı & Durmuş, supra note 15.Google Scholar

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77 See Spáč, Śipulová & Urbániková, , supra note 31.Google Scholar

78 See Pérez, Torres, supra note 39.Google Scholar

79 See Mak, supra note 37. However, note that the Netherlands cannot be easily squeezed into the judicial council model – it introduced the Council for the Judiciary, but powers concerning appointing, promoting and disciplining judges do not lie with the Council for the Judiciary, but sometimes with the government, sometimes with the judiciary authorities, and sometimes they are shared.Google Scholar

80 See Śledzińska-Simon, , supra note 7.Google Scholar

81 O'Brien, , supra note 31.Google Scholar

82 See Avbelj, , supra note 41.Google Scholar

83 See Wittreck, , supra note 45.Google Scholar

84 See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

85 See Çalı & Cunningham supra note 6.Google Scholar

86 See Krenn, , supra note 6.Google Scholar

87 See Blisa, & Kosař, , supra note 53.Google Scholar

88 Spáč, supra note 51.Google Scholar

89 See Urbániková, Marína & Śipulová, Katarína, Failed Expectations: Does the Establishment of Judicial Councils Enhance Confidence in Courts?, in this issue.Google Scholar

90 See Tsereteli, & Smekal, , supra note 52.Google Scholar

91 Dothan, Shai, The Motivations of Individual Judges and How They Act as a Group, in this issue.Google Scholar

92 See the analysis of the functioning of the Court Service in Ireland (in O'Brien, supra note 31).Google Scholar

93 See the Judicial Appointments Advisory Board in Ireland (in O'Brien, supra note 31), or Präsidialräte and Richterwahlausschüsse in Germany (in Wittreck, supra note 45). However, note that selection of the CJEU's and ECtHR's judgesGoogle Scholar

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96 See Avbelj, , supra note 41.Google Scholar

97 See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

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99 I should acknowledge that I myself contributed to this simplification. See Bobek, & Kosař, , supra note 52.Google Scholar

100 See the situation in Ireland analyzed in O'Brien, supra note 31.Google Scholar

101 See Mak, , supra note 37.Google Scholar

102 See e.g. the situation in Slovakia dealt with in Spáč, Śipulová & Urbániková, supra note 31.Google Scholar

103 See e.g. the situation in Czechia analyzed in Blisa, Papoušková & Urbániková, supra note 42.Google Scholar

104 There is of course relevant literature in local languages (see e.g. Piana, Daniela & Vauchez, Antoine, Il Consiglio superiore della magistratura 142 et seq. (2012); Láštic, Erik & Spáč, Samuel (eds.), Nedotkuntel'ní? Politika sudcovských kariér na Slovensku v rokoch 1993 – 2015 (2018); Wittreck, Fabian, Die Verwaltung der Dritten Gewalt (2006); and Faissner, Lea C., Die Gerichtsverwaltung der ordentlichen Gerichtsbarkeit in Frankreich und Deutschland 251 et seq. (2018), but it is to a large extent not accessible to English speaking readers.Google Scholar

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106 See Śledzińska-Simon, , supra note 7.Google Scholar

107 The recent reports that in Hungary and Poland “disloyal” judges are increasingly threatened with disciplinary sanctions confirm it. See Hailbronner, supra note 66.Google Scholar

108 See also supra notes 21-23.Google Scholar

109 Çlı & Durmuş, supra note 15.Google Scholar

110 Avbelj, supra note 41.Google Scholar

111 See Wittreck, , supra note 45.Google Scholar

112 See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

113 I am grateful to Markus Vašek for this insight.Google Scholar

114 See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

115 Blisa, & Kosař, , supra note 53.Google Scholar

116 But see Krenn, Christoph, The European Court of Justice's Financial Accountability. How the European Parliament Incites and Monitors Judicial Reform through the Budgetary Process, 13 European Const. Law R., 253 (2017) (who argues that the European Parliament checks for CJEU's mismanagement and gives political guidance on broader issues of CJEU's administration through the EU's budgetary process).Google Scholar

117 See Krenn, , supra note 6.Google Scholar

118 On the regulatory self-governance of the CJEU, see Part C.II below.Google Scholar

119 Alemanno, , supra note 55.Google Scholar

120 Dumbrovský, Petkova & Sluis, Van der, supra note 56.Google Scholar

121 See Çalı & Cunningham supra note 6.Google Scholar

122 See Blisa, & Kosař, , supra note 53.Google Scholar

123 See e.g. judicial councils in Italy, Romania, and de facto also in Slovakia.Google Scholar

124 See e.g. judicial councils in the Netherlands (however, the judicial member who is the president of the Dutch judicial council has a casting vote) and de iure also in Slovakia.Google Scholar

125 See e.g. judicial councils in Spain and France, and the Judicial Appointments Advisory Board in Ireland.Google Scholar

126 See Vauchez, , supra note 35; Benvenuti & Paris, supra note 36; Selejan-Guţan, , supra note 14; and Çalı & Durmuş, supra note 15.Google Scholar

127 See Śledzińska-Simon, , supra note 7; Pérez, Torres, supra note 39; and Çalı & Durmuş, supra note 15.Google Scholar

128 See Mak, , supra note 37.Google Scholar

129 See Vauchez, , supra note 35; Benvenuti & Paris, supra note 36. Judicial associations are also strong in Slovakia and Spain (Spáč, Śipulová & Urbániková, supra note 31; and Pérez, Torres, supra note 39).Google Scholar

130 See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

131 This is the case of Italy. Until the 2008, the head of state chaired also the French judicial council.Google Scholar

132 See Iancu, Bogdan, Perils of Sloganised Constitutional Concepts, Notably that of ‘Judicial Independence', 13(3) European Const. Law R. 582, 593 (2017) (explaining that Romanian judicial council's “three ex officio members (Minister of Justice, President of the High Court of Cassation and Justice, Prosecutor General of the General Prosecutor's Office attached to the High Court of Cassation and Justice) have no right to vote in the two sections, which serve as first instance disciplinary courts for judges and prosecutors, respectively.”).Google Scholar

133 This is currently the situation at the Dutch judicial council.Google Scholar

134 This was the case of Slovakia until the 2014 reform.Google Scholar

135 The Chief Justice chairs, among others, judicial councils in France and Spain.Google Scholar

136 See Spáč, Śipulová & Urbániková, , supra note 31.Google Scholar

137 See de Carvalho, Ramos Nunes e Sá v Portugal, supra note 13; and especially concurring opinion of Judge Pinto de Albuquerque therein.Google Scholar

138 See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

139 This is the case of judicial councils in Italy and Romania.Google Scholar

140 The best example is the Turkish judicial council during its hierarchical judicial self-governance period (1961-2010) and the Romanian judicial council between 1991 and 2003. For further details see Çalı, & Durmuş, , supra note 15; and Selejan-Guţan, supra note 14.Google Scholar

141 This was the case of the Slovak judicial council until 2014.Google Scholar

142 See also Garoupa, & Ginsburg, , supra note 52; and Guarnieri, Carlo, Judicial Independence in Europe: Threat or Resource for Democracy?, 49(3) Representation – Journal of Representative Democracy 347, 348 (2013).Google Scholar

143 See e.g. judicial councils in Poland, Romania and Slovakia.Google Scholar

144 This is the case of the Netherlands.Google Scholar

145 See the ongoing symposium on constitutional resilience at Verfassungsblog (Christoph Grabenwarter, Constitutional Resilience, Verfassungsblog (Dec 6, 2018), https://verfassungsblog.de/constitutional-resilience/).Google Scholar

146 See also Wittreck, , supra note 45 (arguing that “The mechanisms of self-government merely shift the dangers for individual judicial independence by shifting power.”).Google Scholar

147 See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

148 Śledzińska-Simon, supra note 7.Google Scholar

149 See Guarnieri, supra note 142; and Benvenuti & Paris, supra note 36 (on correnti in Italy); and Vauchez, supra note 35 (on judicial associations in France).Google Scholar

150 See Wittreck, , supra note 45.Google Scholar

151 See note 105.Google Scholar

152 Pérez, Torres, supra note 39.Google Scholar

153 Çalı & Durmuş, supra note 15.Google Scholar

154 Ukraine, Denisov v, supra note 12.Google Scholar

155 See Selejan-Guţan, , supra note 14.Google Scholar

156 See van Aaken, Anne, Feld, Lars P. & Voigt, Stefan, Do Independent Prosecutors Deter Political Corruption? An Empirical Evaluation Across 78 Countries, 12(1) American Law and Economics Review, 204–244 (2010); and Voigt, Stefan & Wulf, Alexander J., What makes prosecutors independent? Analysing the institutional determinants of prosecutorial independence, Journal of Institutional Economics, 1–22 (2017).Google Scholar

157 See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

158 See Śledzińska-Simon, , supra note 7.Google Scholar

159 See Kosař, , supra note 52. Note that Hungarian judges often refer to the period between 1990 and 1996, when the court administration was the responsibility of the Ministry of Justice as to the “golden era” (https://budapestbeacon.com/two-hungarian-law-school-professors-discuss-hungarys-deteriorating-political-and-legal-culture/?_sf_s=fleck)Google Scholar

160 See supra note 105.Google Scholar

161 See Avbelj, , supra note 41.Google Scholar

162 See Vauchez, , supra note 35; Benvenuti & Paris, supra note 36; and Pérez, Torres, supra note 39).Google Scholar

163 See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

164 See Dothan, , supra note 91.Google Scholar

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166 See Dressel, Björn, Sanchez-Urribarri, Raul & Stroh, Alexander, The Informal Dimension of Judicial Politics: A Relational Perspective, 13 Annual Review of Law and Social Science 413 (2017); and the special issue on ‘Courts and Informal Networks’ in Volume 39(5) International Political Science Review (2018).Google Scholar

167 I leave aside the abstract conceptual disputes regarding term governance. Governance, much like government, is notoriously difficult to define as it has at least four meanings in the literature: a structure, a process, a mechanism and a strategy (see Levi-Faur, David, From “Big Government” to “Big Governance”?, in The Oxford Handbook of Governance 3-18 (David Levi-Faur, 2012)).Google Scholar

168 See e.g. Dallara, Cristina & Piana, Daniela, Networking the Rule of Law: How Change Agents Reshape Judicial Governance in the EU 87–110 (2016).Google Scholar

169 See Wittreck, , supra note 45.Google Scholar

170 See Blisa, , Papoušková, & Urbániková, , supra note 42.Google Scholar

171 See Krenn, , supra note 6.Google Scholar

172 Financial pressure can be easily abused, for instance against a critical court president and “her” court.Google Scholar

173 See Krenn, , supra note 6; and Çalı & Cunningham supra note 6.Google Scholar

174 Code of Conduct [2007] OJ C223/1.Google Scholar

175 Code of Conduct for Members and former Members of the Court of Justice of the European Union [2016] OJ C483/1. For more details see Krenn, supra note 6.Google Scholar

176 European Court of Human Rights, Resolution on Judicial Ethics, 23 June 2008, http://www.echr.coe.int/Documents/Resolution_Judicial_Ethics_ENG.pdf. For more details see Çalı, & Cunningham, , supra note 6.Google Scholar

177 See Vauchez, , supra note 35.Google Scholar

178 See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

179 Note that, for instance, in Slovakia such information is available through the website https://otvorenesudy.sk/.Google Scholar

180 See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

181 I am grateful for this suggestion to Hubert Smekal and Nino Tsereteli.Google Scholar

182 See Krenn, , supra note 6; and Çalı & Cunningham, supra note 6.Google Scholar

183 See Çalı & Cunningham, supra note 6.Google Scholar

184 Note that the situation in the European Union is different from the Council of Europe in many aspects, as the European Commission and especially the European Parliament do play a role in shaping the CJEU, albeit by different means and less visibly than the domestic political branches. See Krenn, , supra note 6; and Krenn, supra note 116.Google Scholar

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186 One can also think of other dimensions such as media self-governance that would, among other things, include hiring spokespersons, handling social media, and having its own channels of medialization (such as TV channels, radio channels or own journals).Google Scholar

187 It merely reflects the contributions to this special issue. One can also think of other dimensions such as media self-governance that would, among other things, include hiring spokespersons, handling social media, and having its own channels of medialization (such as TV channels, radio channels or own journals).Google Scholar

188 We have tried to develop such categorization and index regarding court presidents; See Blisa, & Kosař, , supra note 53.Google Scholar

189 Interestingly, the sociology of professions has not rigorously studied judicial self-governance so far.Google Scholar

190 See Bourdieu, Pierre, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 814 (1987); and Dezalay, Yves & Madsen, Mikael Rask, The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive Sociology of Law, 8 Annual Review of Law and Social Science 433 (2012).Google Scholar

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192 Piana, Daniela, The Power Knocks at the Courts’ Back Door – Two Waves of Postcommunist Judicial Reforms, 42 Comparative Political Studies 816 (2009); or Piana, supra note 50, at 162-165.Google Scholar

193 See Dallara, & Piana, , supra note 168.Google Scholar

194 See Parau, Cristina E., The Dormancy of Parliaments: The Invisible Cause of Judiciary Empowerment in Central and Eastern Europe, 49 Representation – Journal of Representative Democracy 267 (2013).Google Scholar

195 Or more precisely, these external incentives are of a short-term nature. Once the CEE country joins the EU, the incentives for CEE countries to keep judicial self-governing bodies meeting the EU standards are much weaker.Google Scholar

196 This article cannot do justice to historical trajectories in all 14 jurisdictions. For a brief analysis see Table 1 in Urbániková & Śipulová, supra note 89.Google Scholar

197 The Dutch judicial council is a rare example (ibid.). Google Scholar

198 This is the case of the Spanish and Portuguese judicial councils.Google Scholar

199 This is the case of the Italian judicial council and virtually all judicial councils in the post-communist countries in Central and Eastern Europe.Google Scholar

200 Çalı & Durmuş, supra note 15.Google Scholar

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202 See Çalı & Cunningham, supra note 6; Bobek, supra note 58; and de S-O-I'E Lasser, Mitchel, Judicial Appointments, Judicial Independence and the European High Courts, in The Transformation or Reconstitution of Europe: The Critical Legal Studies Perspective on the Role of the Courts in the European Union 121-150 (Tamara Perišin & Siniša Rodin eds., 2018).Google Scholar

203 See Wittreck, , supra note 45; and Blisa, Papoušková & Urbániková, , supra note 42.Google Scholar

204 See supra Part C.I.Google Scholar

205 See Wittreck, , supra note 45.Google Scholar

206 The German judiciary has been afraid that with unknown political parties coming to power their independence might be in danger, and that might be the reason why some judges regard the concept of judicial self-government as tempting.Google Scholar

207 Hailbronner, supra note 66.Google Scholar

208 Ibid. Google Scholar

209 Holmøyvik, Eirik & Sanders, Anne, A Stress Test for Europe's Judiciaries, Verfassungsblog (Aug. 23, 2017), https://verfassungsblog.de/a-stress-test-for-europes-judiciaries/.Google Scholar

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211 See Kosař & Śipulová, supra note 20; and literature in supra notes 4, 65 and 105.Google Scholar

212 See Śledzińska-Simon, , supra note 7.Google Scholar

213 See Vauchez, , supra note 35.Google Scholar

214 O'Brien, , supra note 31. However, this might change, if the Irisih Parliament adopts the Judicial council Bill.Google Scholar

215 See Kosař & Śipulová, supra note 20; and literature in supra notes 4, 65 and 105.Google Scholar

216 See Śledzińska-Simon, , supra note 7.Google Scholar

217 See Çalı & Durmuş, supra note 15.Google Scholar

218 See Vauchez, , supra note 35.Google Scholar

219 See Kosař, & Lixinski, , supra note 11.Google Scholar

220 See Madsen, Mikael Rask, Cebulak, Pola & Weibuch, Micha, Backlash Against International Courts: Explaining the Forms and Patterns of Resistance to International Courts, 14(2) International Journal of Law in Context 197 (2018).Google Scholar

221 See Śledzińska-Simon, , supra note 7; Çalı & Durmuş, supra note 15; and Kosař & Śipulová, supra note 20.Google Scholar

222 See Śledzińska-Simon, , supra note 7; Çalı & Durmuş, supra note 15; and Kosař & Śipulová, supra note 20.Google Scholar

223 Śledzińska-Simon, , supra note 7.Google Scholar

224 See Kosař, , supra note 52 (comparing the impact of judicial council in Slovakia on judicial accountability with the functioning of the Czech ministry of justice model of court administration).Google Scholar

225 Çalı & Durmuş, supra note 15.Google Scholar

226 See Śipulová & Urbániková, supra note 89.Google Scholar

227 Ibid. Google Scholar

228 Ibid. Google Scholar

229 Selejan-Guţan, , supra note 14.Google Scholar

230 Avbelj, supra note 41.Google Scholar

231 Spáč, Śipulová & Urbániková, , supra note 31.Google Scholar

232 Ibid. See also Kosař, supra note 52Google Scholar

233 Pérez, Torres, supra note 39.Google Scholar

234 See e.g. Ortiz, Castillo, supra note 52, at 317 and 327-328.Google Scholar

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236 Vauchez, supra note 35.Google Scholar

237 Benvenuti & Paris, supra note 36.Google Scholar

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239 See Wittreck, , supra note 45.Google Scholar

240 Ibid. Google Scholar

241 Ibid. Google Scholar

242 See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

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244 See e.g. Stillman, Peter G., The Concept of Legitimacy, 7(1) Polity 32–56 (1974); Suchman, Mark C., Managing Legitimacy: Strategic and Institutional Approaches, 20(3) The Academy of Management Review 571-610 (1995); and Hurd, Ian, Legitimacy and Authority in International Politics, 53(2) International Organization 379-408 (1999).Google Scholar

245 See e.g. Gibson, James L., Caldiera, Gregory A. & Baird, Vanessa A., On the Legitimacy of National High Courts, 92(2) The American Political Science Review 343–358 (1998); Richards, Sidney W., Survey article: the legitimacy of Supreme Courts in the context of globalization, 4(3) Utrecht Law Review 104-127 (2008); Shany, Yuval, Assessing the Effectiveness of International Courts: A goal-based approach, 106(2) American Journal of International Law 225-270 (2012); Çalı, Başak, Anne Koch & Nicola Bruch, The Legitimacy of Human Rights Courts, A Grounded Interpretivist Analysis of the European Court of Human Rights, 35(4) Human Rights Quarterly 955-984 (2013).Google Scholar

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248 Benvenuti & Paris, supra note 36.Google Scholar

249 O'Brien, , supra note 31. However, this might change, if the Irisih Parliament adopts the Judicial council Bill.Google Scholar

250 See Spáč, Śipulová & Urbániková, , supra note 31.Google Scholar

251 In detail, Krenn, supra note 116.Google Scholar

252 See Çalı & Cunningham supra note 6.Google Scholar

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254 See Dunoff, Jeffrey L. & Pollack, Mark A., The Judicial Trilemma, 111(2) American Journal of International Law 713–760 (2017).Google Scholar

255 See also Solomon, , supra note 52.Google Scholar

256 See Pérez, Torres, supra note 39.Google Scholar

257 O'Brien, , supra note 31.Google Scholar

258 See Spáč, Śipulová & Urbániková, , supra note 31.Google Scholar

259 See Wittreck, , supra note 45.Google Scholar

260 In developing this definition I build heavily on Jenny De Fine Licht, Naurin, Daniel, Esaiasson, Peter & Gilljam, Mikael, When Does Transparency Generate Legitimacy? Experimenting on a Context-Bound Relationship, 27(1) Governance: An International Journal of Policy, Administration, and Institutions 111-134 (2014); and Michener, Greg & Bersch, Katherine, Identifying Transparency, 18 Information Polity 233-242 (2013).Google Scholar

261 See Dunoff, Jeffrey L. & Pollack, Mark A., The Judicial Trilemma, 111(2) American Journal of International Law 713–760 (2017).Google Scholar

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263 But note that the Dutch judicial council, despite its nominal name, is actually very close to the Irish Court Service model. See supra note 79.Google Scholar

264 O'Brien, , supra note 31.Google Scholar

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266 For instance, some judges did not feel represented by the Council, objected to the temporary appointment procedure for new court presidents, and claimed that the assessment of judicial performance had come to emphasize output too much. For further details see ibid. Google Scholar

267 On how impotant the distinction between these two levels is see also John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. Cal. L. Rev. 353 (1999).Google Scholar

268 See e.g. Ortiz, Castillo, supra note 52 (suggesting that there is only moderate perception of disrespect of judicial independence in Slovakia and Slovenia and that there is low perception of disrespect of judicial independence in Poland).Google Scholar

269 See Selejan-Guţan, , supra note 14.Google Scholar

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273 This is the case of Italy, Romania and partly also France. See Benvenuti, & Paris, supra note 36; Selejan-Guţan, , supra note 14; and Vauchez, supra note 35.Google Scholar

274 This is in line with empirical findings that conclude that cultural traits are of fundamental importance for judicial independence and the quality of formal institutions more generally. See Gutmann, & Voigt, , supra note 272.Google Scholar

275 See Spanish judicial council (analyzed in Torres Pérez, supra note 39).Google Scholar

276 See Slovak judicial council (analyzed in Spáč, Śipulová & Urbániková, supra note 31).Google Scholar

277 See the Hungarian judicial council (analyzed in note 105).Google Scholar

278 See especially the Dutch judicial council (analyzed in Mak, supra note 37) and the Irish Court Service (analyzed in O'Brien, supra note 31).Google Scholar