Capturing the Judiciary from Inside: The Story of Judicial Self-Governance in Slovakia

Abstract

The article discusses the development in the administration of the Slovak judiciary since the separation of Czechoslovakia and the impact of the empowerment of the judicial self-governance on the functioning of the judicial system. After independence, the administration of the judiciary initially rested in the hands of the executive. In 2002, Slovakia created its Judicial Council and transferred a considerable amount of powers on it, especially related to judicial careers. It was expected that this would de-politicize the judicial system. However, a high level of autonomy of the judiciary chiefly led to the empowerment of judicial elites. This reduced the democratic accountability of the judiciary, encapsulating it from society and enabling it to promote its own interests. Selection processes have often been used to fill judicial ranks with judges with close ties to the system. Accountability mechanisms such as promotions, disciplinary procedures or remuneration schemes were used to reward allies of those on the top of the hierarchy and to punish their critics. Still, adherence to EU-backed standards on the administration of the judiciary may have increased the legitimacy of the judiciary, while concentrating decision-making in one body enhanced transparency, which was furthered due to low public confidence resulting in unprecedented levels of information available about the Slovak judicial system. All in all, the Slovak example displays the dangers of establishing judicial self-governance in countries where an internal ethical culture and a strong sense of judicial duty are still lacking.

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

“…While the Judicial Council of the Slovak Republic arguably increased the institutional independence of the judiciary, it failed to secure the independence of individual judges. 231 In fact, Slovak judges faced more reprisals from their colleagues who captured the judicial council than from the Minister of Justice before the introduction of the judicial council. 232 Judicial councils in Spain and Turkey also failed to deliver judicial independence.…”

Judicial Self‐Governance Index: Towards better understanding of the role of judges in governing the judiciary

“…Judicial councils became one of the blueprints recommended by many international organizations (Piana, 2010). Their implementation was not uniformly successful though (Kosař, 2016; Spáč et al, 2018). In a paired comparison of four countries, we are interested to see if there are any differences in powers held by judges in the ministerial versus judicial council models in old and new, post‐communist EU member states.

(3) If there is a trend of judicial empowerment, is it associated with increasing regulation?

The third question reflects on a fairly new branch of scholarship pointing to processes of agencification (Lurie et al, 2019; Verhoest, 2013) and growing informal competences of JSG actors (Juwayeyi, 2017; Tsereteli, 2020).…”

“…As a result, the Slovak President, parliament and government often elected judges to the Slovak judicial council. This significantly shifts the balance of power envisaged by the Slovak Constitution (the parity system) as judges then become a majority on the judicial council (Spáč et al, 2018 ).…”

“…Some jurisdictions entrust JSG competences to bodies or actors who cannot easily be identified as a part of the judiciary, the executive or the legislature or as agencies (Lurie et al, 2019 ). A typical example would be general secretaries, registrars, and directors of judicial offices 18 (Spáč et al, 2018 ) or the German practice of temporary assignment of judges to the Ministry of Justice. In all these situations, we again use the rule of dependency and look at who can ( de jure ) issue instructions on how the body should act substantively.…”

“…Numerous negative experiences from CEE suggest that these promises have not been fulfilled and judicial councils have failed to keep up with high expectations (Bozhilova, 2007 ; Kosař, 2018 ; Parau, 2015 ; Parau, 2018 ; Popova, 2010 ). Not only have they not managed to secure judicial independence (Garoupa & Ginsburg, 2009 ; Popova, 2020 ), in some instances, judicial councils have had negative effects (Kosař, 2016 ; Popova, 2012 ), isolating the judiciary and helping to foster growing networks of informal practices, such as patronage, nepotism, and corruption (Spáč et al, 2018 ). Moreover, the recent wave of political backlashes against courts has shown that they are actually very susceptible to political capture (Sadurski, 2019 ).…”