Assaults on the Judiciary: How CEE Governments Are Trying to Restrict Judicial Independence, and Why It’s Not Working… For Now

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Christopher Lehmann

About Christopher Lehmann

Christopher Lehmann is the Executive Director of the CEELI Institute, an independent not-for-profit organization based in Prague dedicated to providing training and education for legal professionals from across Central and Eastern Europe, and beyond. Now in its second decade, CEELI has trained over 10,000 judges, prosecutors and lawyers from over 50 countries in subjects ranging from court efficiency, to anti-corruption investigations, to judicial ethics, to human rights.

Judges in central and eastern Europe are under attack.

The most frightening thing about this is that the judges are under attack from their own governments. The authoritarian, populist style governments arising across the region have repeatedly shown that they seek to curtail and control judicial independence, subjecting judges to direct governmental control and limiting their ability to act independently. As an independent branch of the state, the judiciary poses a potential obstacle to those bent on the consolidation of power. The assault on an independent judiciary is part of a larger trend, documented across the region, to stifle dissent, whether it comes from civil society, the media, opposing political factions, or judges acting as an independent check on government actions.

The one positive development in the face of these attacks is that, despite government attempts to camouflage their assaults on the judiciary, civil society in the region has noticed, and reacted forcefully. Surprisingly, the public has taken to the streets in cities like Bucharest and Warsaw to defend the role of independent judges in their societies.

Judges are an easy target for a government seeking to consolidate power and increase authoritarian tendencies. They do not have an obvious constituency ready to support them, and their independence can be restricted through arcane and complex legislative moves, not easily understood by the public.

The kinds of proposed legislative changes being advanced in the region are often hyper-technical, but they usually involve shifting supervision of the judiciary away from autonomous judicial bodies, such as a Council of Justice, back to a government body, usually the Ministry of Justice. This undermines the independence of the judiciary because judges lose control over such matters as court administration, performance evaluations, job assignments, promotions, and retirements. Taking control over the judiciary makes it much easier for the government to punish or sanction judges, either individually or as a group. This makes it difficult for judges to function independently, and without fear of reprisal for unpopular decisions or decisions that may go against government policies and objectives.

A Judiciary Left at the Mercy of Governments

To best understand how easy it is to undermine judicial independence, it is important to understand the function of two key institutions involved in the administration of justice—one judicial and the other governmental. The first is the Council of Judges; it is generally an independent body comprised predominantly of judges themselves, and charged with handling issues of judicial administration. Without oversimplifying, a strong Council of Justice is a positive indicator of an independent judiciary, especially in newly democratic or transitioning states. The other key body is the Ministry of Justice, which is part of the government, and which is responsible for justice sector issues, such as drafting legislation, developing policy, and perhaps even overseeing the prosecution function. Problems arise, and judicial independence is potentially threatened when the Ministry of Justice tries to assume powers from the Council of Justice. The result is a judiciary that may be left to the mercies of the government, which can control salaries, resources, appointments and assignments—and which can easily punish an ‘offending’ judge via the manipulation of such administration mechanisms.

In Romania, for example, the government’s justice minister has proposed a variety of controversial ‘reforms’ to the judicial system including some that directly increase the government’s ability to control the function of judges. The changes appear technical on the surface but have the effect of reducing the independence of the Council of Judges (in Romania, known as the Superior Magistrate’s Council), by shifting some powers over the administration of judicial affairs directly to the Ministry of Justice. For example, the Romanian ‘reforms’ would move control of a unit responsible for auditing and inspecting judges over to the ministry, meaning judges would no longer self-police their behaviour. When judges lose these kinds of powers, they end up looking—and functioning—more like civil servants than like an independent branch of the state. And offending civil servants can be easily disciplined.

In Poland, the government’s judicial ‘reforms’ are also fairly technical on their face. They include changes to the composition of the Judicial Council (known in Poland as the National Council on the Judiciary) so that parliament would effectively control the Council, through the selection of a majority of its members. Other proposals would shift control of the retirement process at the Supreme Court to the government, such that the government would effectively control membership of the highest court; a third proposal would transfer the control of the appointment of the heads of the lower courts to the Ministry of Justice approval. Still, other proposals would give the Ministry of Justice control over case assignments.

All of these changes sound technical in nature, but they are insidious. A judge who feels like he or she may at any moment be demoted, reassigned or fired by the government, is not an independent judge. That judge is subject to the government’s bidding. And another nail is hammered into the coffin containing the Rule of Law.

Popular Demonstrations

The amount of public outcry and civil unrest caused by these proposals is, therefore, both surprising and reassuring. This is in part due to the fact the proposals against the judiciary have often been part of broader campaigns to consolidate power and stifle civil society and dissent. For example, because the technical reforms proposed in Romania have also been coupled with more obvious efforts to gut successful anti-corruption agencies and officers, it has been easier for the public to understand the overall package as an assault on broad civic protections, such as government transparency and an independent judiciary.  Hence the protests in the streets, including daily protests that continue in Bucharest in front of the Victoria Palace, the seat of the government.

In an era of ‘fake news’ and manipulated media, it is encouraging to see that the public across the region seems to understand that technical changes to the laws matter and that a shift in the balance of power away from the judiciary directly undermines the rule of law.

When people take to the streets in Bucharest and Warsaw, it has primarily been not to protest the actions of judges, it is to protest on their behalf. The popular demonstrations seen across the region over the last six months are not, contrary to western media reports, by reactionary elements, and are very much in support of an independent judiciary. This is a point that sometimes gets lost and confused in the western media, which hypes the rise of populism in Eastern Europe. 

But public support is fickle, and judges will have to work hard to build and retain public trust.  They can best do this by living up to the public’s expectations that they act independently of outside influence, and apply the law in a fair and transparent manner.  They must avoid even the appearance of conflicts of interest. Judiciaries that fail to live up these high standards, and which are perceived as simply executing governmental directives risk losing public support. In that case, government moves to rein them in will become a fait accompli.  The challenge ahead lies as much with the judges themselves as with the public they serve.

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The views expressed in this opinion editorial are the author’s own and do not necessarily reflect Emerging Europe’s editorial policy.

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Romania is Haemorrhaging Doctors

Friendly female doctor hands holding patient hand sitting at the desk for encouragement, empathy, cheering and support while medical examination. Bad news lessening, compassion, trust and ethics concept

EU Triggers Article 7 Against Poland

CRACOW POLAND - JULY 23 2017: Another day in Cracow thousands of people protest against violation the constitutional law in Poland. Defense of the triad of division of power free election and independence of the highest court in Poland

e-Estonia: Believe the Hype

Banca Transilvania Concludes Moldovan Deal

banca transilvania

Visegrad Group Looks East

The Netherlands’ Objection to the Ukraine-EU Association Agreement could be Costly to Europe

Automotive and Transport Companies Dominate the CEE Region

Car bodies on the production line inside automobile factory

Lithuanian Grocery Giant Maxima Set For Polish Expansion

maxima

Young Georgians Make Their Mark at Emerging Europe-EBRD Event

maximilien lambertson at emergeing ebrd outlook on georgia

Romanian Economy Grows Fast in 2017

Brasov cityscape panoramic and aerial view over medieval architecture of Brasov town, in Transylvania Romania

Czech Election Result Could Delay Euro Adoption Until 2025

czech banknotes nominal value two and five thousand crowns on white background. 300 000 Kc is approximately 12 450 US dollars (USD) or 11 100 Euro (EUR)

Bulgaria Needs a Reform-Oriented Government to Take Full Advantage of its EU Membership

bulgaria emerging europe

Bulgarian Capital Pulls Above Its Weight

sofia

Bad Payers Still Causing Problems for Romanian Firms

Close up Romanian currency note, LEI or LEU, Romania

Poland & Ukraine Should Join Outsourcing Forces

outsourcing

Romania Cuts Income Tax, Introduces Solidarity Tax

CLUJ NAPOKA ROMANIA - OCT 2 2016: People on the central street of Cluj Napoka - the unofficial capital of Transylvania.

Outsourcing in Germany: Stop Talking at and Start Talking to

Mixed Results for Emerging Europe in New WEF Equality Report

wef

Warsaw Back on Top in Polish Banking

WARSAW, POLAND - MAY 07, 2016: Building Palace of Culture and Science among the modern buildings of the city

Georgia to Develop Rural Fibre-Optic Network

Young man working on his laptop connect to wireless internet in rural area. Internet connection allows people to work anywhere from laptop. Notebook and nature background. Wireless technology concept.

PiS Uses Media Control to Bring Poland to Heel

Jaroslaw kaczynski pis emerging europe

High Real Estate Prices at Home Force Czech Investors Abroad

Construction of the Petrin lookout tower in Prague Czech Republic

Bosnia and Herzegovina: Focussing on Stability and Business Climate

Sarajevo Bosnia and Herzegovina - August 23 2015. View of Miljacka River in Sarajevo city

Prospering Czechia Still Needs a Bigger Workforce

prague emerging europe

Poland Stays Cool on Euro Adoption

Euro cash and Zloty on one photo.

Partnership is the Key to CEE-Indian Business

Moldova Falls Victim to Politicising

moldova emerging europe

The Voice of European Business Must Be Heard Loud and Clear by Brexit Negotiators

Polish Convenience Store Sector Booms

Can Armenia Keep a Foot in Both Camps?

European union armenia russia emerging europe

Air Passenger Volumes Reach Record High in the Baltics

airbaltic

Emerging Europe to Record Positive Growth Across the Board in 2018

coins growth

CEE Lags in Business Connectivity

ANIS romanian ICT

Poles Still Keen on German Jobs

Brandenburg Gate in Berlin in Germany. The Brandenburg Gate is a triumphal arch a city gate in the center of Berlin. It is one of the most known sites in Berlin.

Despite Public Anxieties, Migration is Playing a Key Role in ECA Growth

Bratislava city aerial panoramic view. Bratislava is the capital of Slovakia.

Chinese Electric Car Maker Seeks Emerging Europe Base

zhi dou d2

CEE Governments Still Can’t Resist Tampering with Legislation

legislation

Azerbaijan Showcases ICT Potential

BAKU AZERBAIJAN - SEPTEMBER 25: People goes by the seafront of Baku on September 25 2016. Baku is a capital and largest city of Azerbaijan.

Romanian Opposition Unites Against ‘Crime Syndicate’ Government

European Commission Withholds 600 Million Euros from Ukraine

kyiv, kiev, ukraine

Czechs Hold Emerging Europe’s Most Powerful Passport

Romanian Cabinet Reshuffled as New Splits Emerge in Ruling Party

BUCHAREST ROMANIA - MAY 25 2014: The Victoria Palace. Victoria Square.

Macedonia — Stepping Out Of the Shadow Of the Balkans

Estonia Proposes Bill of Rights and Responsibilities for Robots

Robotic hand accessing on laptop the virtual world of information. Concept of artificial intelligence and replacement of humans by machines.

A Positive and Modern View of Entrepreneurship

The Global Outsourcing Industry — the Rise of the Phoenix

LGBT in CEE — A New Acceptance Is Being Born From Migration

Economic Confidence Rises Across Eurozone

Japanese PM Announces Western Balkans EU Initiative

TOKYO JAPAN - Apr 06 2016: Japanese Prime Minister Shinzo Abe during his meeting with President of Ukraine Petro Poroshenko in Tokyo

EU-CEE Is Still Growing at a Healthy Rate

Prague emerging europe

Valga and Valka – Where Estonia and Latvia Work Together

Valga valka emerging europe

‘Traditional Values’: A Potent Weapon Against LGBT Rights

gay rights putin

Examining How a Strong Swiss Franc Could Single-Handedly Topple Poland’s Economy

Do Your Homework First and Starting Business in Poland is Easier

Why Emerging Europe is the New Darling of Outsourcing

outsourcing Developing programming and coding technologies. Website design. Cyber space concept.

Emerging Europe Internet Speeds: Could Do Better

3d rendering internet speed meter close up

Romanian Car Maker Dacia Sees Sales Boom

Sables d Olonne France - May 07 2017 : Dacia Tour 2017 is a commercial operation organized by the car builder in order to present its cars throughout France - Close-up on cars

Poland Challenges the European Identity

Poland emerging europe

Hungary Seen as Riskiest Country in CEE

risk

Big Fish, Small Fish, Where to Fish? On the Eve of the Fourth Industrial Revolution

The EU’s Benign Neglect Of Eastern Europe

Continental Launch Largest Ever Lithuanian Greenfield Investment

kaunas lithuania

One in Five Poles Unaware of Source of Funds for 500 Plus Programme

Albania’s Economy Not Benefiting From Largest Oil Reserves in Region

Women, to Tractors!

Tug of war contest between boys and girls. Two groups of children of different sex pulling opposite ends of rope. Concept of gender equality among kids, team sports. Vector illustration for banner

Wizz Air in Huge Polish & Ukrainian Expansion

wizz air a320

ArcelorMittal Kryvyi Rih Gets EBRD Boost

Landscape with two mine head frames . Ukraine, Kryvyi Rih, Iron-ore mine Gvardeiskaya. An autumn sunny day with blue sky. Complex for Mining

CEE — Do We Need a Launch Pad For Our On-Site Tech Intelligence in the Silicon Valley

Still Potential for Growth in CEE as Economies Stabilise

Bulgarian PM Sets Out Priorities at EPP Group Debate

Prague Czech Republic - February 15 2016: The Prime Ministers of Bulgaria Boyko Borissov is speaking during a press conference after meeting of The Visegrad Group (V4) in Prague Czech Republic.

Armenia Opens New Free Economic Zone on Iranian Border

Bags headgear boxes made of traditional fabrics of Armenian patterns and colors lying on the stalls at the Yerevan market in Armenia

Ukraine’s Q2 Growth Climbs

kyiv ukraine emerging europe

IMF: Institutions Key to Sustainable Growth

IMF

Global Expansion in the Digital Age

Czech Real Estate Market Is Top CEE Performer

Prague skyscrapers in blue hour with purple sky. Modern building architecture after sunset. Office center in capital city. Czech republic lighting buildings.

The Long Tail of Global Expansion

Azerbaijan: The Rich Get Richer and the Poor Get Nothing

Baku

EU May Offer Georgia, Moldova and Ukraine Customs Union and Schengen Access

schengen

Emphasising the Incongruence Between the V4 Countries

Macron emerging europe

World Bank: Western Balkans Need to Speed Up Growth For Faster Convergence

world bank

Growth Increase Offers Glimmer of Hope for Moldova

chisinau

Let’s Stop Wasting Time Redefining our Place in Europe

What Went Wrong in Ukraine – And When?

Serbia, Belarus and Ukraine Ranked Lowly by Wharton Business School

Kyiv Ukraine - April 172017: The postal square in Kiev on Podol the Dnipro river. view of the square from the river panorama

The GREAT London Food Scene

Bakery in London

Outsourcing Sector Driving CEE Office & Graduate Demand

wroclaw office

Non-Financial Reporting No Longer a Secondary Consideration in CEE

Under Promise, Over Deliver: Prospects for the EU’s Eastern Partnership in 2018

Eastern partnership

Moody’s: CEE Creditworthiness Holding Up

Man's hand holding pen and checking spreadsheet

Investigations Into the Corrupt Ukrainian Fuel and Energy Sectors

Ukrainian money hryvnia. The national currency. Corruption in Ukraine

Business Standards Are High in SEE But Vary Widely

Aerial view of The Cathedral of the Assumption in Varna

Old Fashioned Skulduggery Overshadows the Elections in Moldova

Polish Shoppers in Hunt for Eggs

eggs in rack

How Will Trump’s Visit Affect Polish Politics?

Donald trump

HSBC Opens Warsaw China Desk

Czech Own Currency Insures Against Euro Losses

Euro Czech republic emerging europe

Bulgaria Keen on Euro Adoption

FRANKFURT GERMANY - MAY 16 2014: Euro Sign. European Central Bank (ECB) is the central bank for the euro and administers the monetary policy of the Eurozone in Frankfurt Germany.

Chickens Blamed for Romanian Budget Deficit

Two white chickens or hens inside a chicken coop or hen house seen through chicken wire.

Hungary and Israel: the Collision of Past and Present

Budapest synagoge

Poland: Is it Ready, and is it Time to Adopt the Euro?

Serbia’s New PM Is Cut From a Familiar Cloth

Serbian flag emerging europe

People Power Reminds the Government of the Rule of Law

A New Division Between Eastern And Western Europe?

Romanians Take to the Streets in New Mass Protest

Romanian Competition Council Approves OTP Purchase of Banca Romaneasca

BUDAPEST HUNGARY - JUNE 22 2014: People walk by OTP Bank in Budapest. OTP is the biggest commercial Hungarian bank with 1500 branches in 9 countries.

Measure, Strengthen, and Grow

dacia brand

CEE Is Key to China’s Belt and Road Initiative

Shanghai skyline Panoramic view of shanghai skyline and huangpu river Shanghai China

The Morawiecki Plan Promises a Brighter Future for Poland

Sarajevo Stock Exchange Connected to SEE Link

sarajevo stock exchange

International Women’s Day — Let’s Take Action And Then Celebrate

Moldovan Government Hails Business-Friendly Legal Reforms; NGOs Remain Cool

Chisinau, Republic of Moldova, Eastern Europe, 29th June 2017: view to the Parliament Building in Chisinau, Moldova

Bulgaria Takes on EU Presidency

Sofia, Bulgaria - September 12, 2017: Architectural complex in downtown of Sofia in which the Presidential Administration is located, Sofia, Bulgaria

CEE-Benefits and Disadvantages of Joining the Eurozone

forint zloty euro

Ukraine to Make New Privatisation Push

Mobilising Private Sector Investment in Belarus, Moldova & Ukraine

IFC

The End of Poland’s Shale Gas Eldorado

Are Czech-EU Relations at Breaking Point?

PRAGUE, CZECH REPUBLIC - 21 JUNE 2014: People on the streets of Prague, Czech Republic. Prague is one of the most visited city in Europe with over 5 million visitors every year.

IMF Concludes Latest Moldova Review, Releases New Money

Reflection of a Soviet building in Chisinau Republic of Moldova

How Did We Get Here?

Amazing Panorama to City of Plovdiv from nebet tepe hill, Bulgaria

Georgian PM Reshapes and Reshuffles Cabinet

Giorgi Kvirikashvili

Stuck in Neutral: Georgia’s Constitutional Reforms

Tbilisi Parliament Georgia

China and Central Europe: Don’t Believe the Hype

China

Effective Policies Have Strengthened the Georgian Economy

TBILISI GEORGIA Jul. 18 2017: Bridge of Peace is a bow-shaped pedestrian bridge a steel and glass construction over the Kura River in downtown Tbilisi capital of Georgia

Baltics Seek Lockstep With High Tech States

Euro money: Macro view of euro coin and bill. Suitable for financial, monetary, euro or European Union concepts and ideas

Europe at Odds over OPAL and Nord Stream 2

History as Destiny? Institutional Erosion in Ukraine and Poland

GSA Names Ukraine as UK’s Offshoring Destination of the Year

map of ukraine emerging europe

Estonia Leads Baltics in Cutting Sugar in Food and Drink

Romania’s PM Resigns

BUCHAREST ROMANIA - June 29 2017: Romanian Prime Minister Mihai Tudose during a swearing-in ceremony at Cotroceni palace in Bucharest capital of Romania June 29 2017.

Will a Two-speed European Union Side-line the Visegrad Four?

Polish Labour Market Deficits Are Impacting All

Construction site with crane and building. Construction site in western europe - in Poland.

Poland Is Set To Become a Large Economic Zone

Aerial view over the building materials processing factory. View from above.

Next Christmas in Belgrade? The EU’s Move into the Western Balkans

Belgrade, Serbia, July 22, 2017.Belgrade cityscape at sunset with national assembly, aerial view

The Azerbaijani Laundromat: Why It Matters

azerbaijani money laundering

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