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By the Judges, For the Judges: The Study of Judicial Selection in Slovakia (Dissertation)
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In the last decades, we observe an increase in judicial self-governance all over the world. Encouraged by a variety of international documents, governments have given up on some powers regulating the judicial branch in favor of judges in an attempt to secure independence and better performing judiciary. Special emphasis has been placed on the issue of judicial careers, which according to these documents, should be administered by judges. Slovakia is one of the countries which went from a model of an administration dominated by the Ministry of Justice, to one in which bodies, where judges constitute a majority, make most of the decisions. Despite that, the Slovak judiciary meets expectations neither with regard to perceived independence, nor performance. This thesis looks at the process of selection of Slovak district court judges between 2012 and 2015 in the context of expectations of the truly independent judiciary when these powers are transferred into the hands of judges. To the theoretical discussion on judicial independence, the thesis introduces a step towards a unified theory of the concept, which aims to tie institutional design with outputs of the system through the substantive use of powers to change the composition of the judicial branch. Judicial independence is here defined as a consequence of the interplay between powerful actors’ capacity and willingness to influence courts in combination with resistance exercised by judicial actors. This definition acknowledges that threat to independence may not come only from external actors but includes internal threats as well. Internal threats are then a possibility when formal powers to influence courts belong to judiciary itself, and the judiciary has its own distinct interests to further. These are in a post-communist context related to bureaucratic and corporatist attitudes, which try to ensure the survival of existing practices and protection of the status quo. It is hypothesized that these attitudes are realized through preferring the selection of such candidates with higher social capital – knowing the ‘right’ people, and higher cultural capital – being educated and socialized with ‘right’ values. With regard to the methodological contribution, the thesis introduces Judiciary Autonomy Index, which measures allocation of formal powers concerned with professional careers of judges – hence, de jure institutional independence. This is in turn examined in the light of actual functioning of the process of selection of judges, understood as a funnel, where from eligible candidates only some are actively considered, of those only few are shortlisted, and of those only one is selected and eventually appointed. For this, the thesis uses a variety of statistical methods and finds that candidates with higher social and cultural capital are consistently preferred in the process as a whole, as well as in its particular stages.
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... Secondly, this is an incorrect implementation of the available positive provisions of the legislation. Thirdly, a good deal lies in the specifics of the judicial system and courts, which, unlike governments and parliaments, take decades to change their behaviour (Spac, 2017). ...
... Recognising the overall positivity of such recommendations, it should be mentioned that such a measure cannot solve all the problems of the selection and appointment of judges. Thus, S. Spac (2017) notes that the creation of such a Council in Slovakia meets present-day expectations neither regarding the alleged independence nor regarding the efficiency of its work. And of all post-communist countries where there is any Judicial Council, for example, in 2015, out of almost 150 countries, in terms of "independence of the judiciary," only Estonia entered the top 50 in the Global Competitiveness Report (Schwab & Sala-i-Martín, 2016). ...
This paper analyzes the development of legislation and identifies specific gaps and shortcomings in the selection and appointment of judges in the Republic of Kazakhstan, proposing improvements crucial for an independent judiciary and the implementation of the rule of law. It highlights that while Kazakhstan has attempted to borrow judicial selection mechanisms from other countries, these have not always proven effective due to unique national challenges. Specific issues identified include systemic errors in legislative reforms, lack of transparency, and susceptibility to political and internal judicial pressure. For instance, the composition and functioning of the Supreme Judicial Council (SJC) have not effectively ensured impartial and competent judicial appointments, leading to low public trust. In 2020, Kazakhstan ranked 63rd out of 128 countries on the Rule of Law Index, and the judicial system is perceived as highly corrupt. Kazakhstan’s transition from a Soviet-influenced system to a more democratic model faces unique challenges, including deeply ingrained cultural practices such as nepotism. By addressing these legislative and systemic issues, the proposed reforms aim to enhance judicial independence, improve the quality of the judiciary, and ultimately restore public confidence in the legal system. The expected impact includes more transparent and accountable judicial appointments, leading to a more robust and fair judicial system that upholds the rule of law and human rights.
Through the recruitment of judges — their selection and subsequent appointment – powerful actors control who enters the judicial ranks and under what circumstances. In this paper I address how are European judges recruited using examples from ten European countries, while paying special attention to the role of the judicial self-government in these processes. Indeed, there are differences between recruitment processes across Europe. In some countries, a central role in the judicial recruitment is played by judicial schools; elsewhere crucial powers belong to judicial councils and/or other bodies of judicial self-government; in the UK or Ireland some of these powers were vested in the hands of specialized bodies; whereas in other countries the process remains less formal with crucial powers resting in the hands of court presidents. Despite these differences, I choose to emphasize similarities recruitment processes share. They operate as funnels where the pool of candidates gradually decreases until only one (or few) remains and is eventually appointed. In order to assume judicial office one usually must (a) meet eligibility criteria, (b) get on selector's radar to be actively considered for the position, (c) get shortlisted for the position, (d) get selected, and (e) eventually appointed. Dividing the recruitment process into these stages, while paying attention to motivations of all involved actors, can help deepen our understanding of how judicial recruitment actually works and how formal and informal rules together shape the composition of judiciaries.
This article focuses on conceptual issues regarding the new methodology of the European Network of Councils for the Judiciary (ENCJ) for measuring judicial independence and accountability. First, we argue that the proposal mixes up several concepts - judicial independence, judicial accountability, transparency of the judiciary, and public trust in the judiciary - which should be treated separately. Second, the proposal relies too much on conceptions of independence developed by the judicial community. As a result, it treats judicial administration with higher levels of involvement of judges as inherently better without empirical evidence, and does not sufficiently distinguish between de iure and de facto judicial independence. Moreover, the ENCJ's indicators of judicial accountability are underinclusive as well as overinclusive and do not correspond to the traditional understanding of the concept. Finally, we argue that the ENCJ has to accept the possibility that (at least some types of) judicial councils (at least in some jurisdictions) might negatively affect (at least some facets of) judicial independence and judicial accountability. As a result, the ENCJ must adjust the relevant indicators accordingly.
In 2012, a comprehensive judiciary reform came to effect in Slovakia, which aimed (among other things) to increase the transparency of the judiciary. To this end, the law has mandated that all the court decisions must be published online, selection procedures for judges be open to public oversight, and judges have to annually declare their family ties within the judiciary as well as performance statistics. This study looks into the impact the transparency reform had on the current state of the Slovak judiciary. A consensus among key stakeholders was found that making judiciary more transparent was worthwhile. However, it is not too clear to what extent more public accountability improved the quality and integrity of the Slovak judiciary so far.
The authors of this report were asked “to conduct an initial mapping and make recommendations to address the problem of judicial transparency and accountability in Slovakia”. The emphasis of the report should be “the recommendations to the Government and the non-governmental sector to improve transparency and accountability in accordance with international standards and trends and with regard to Slovak government plans, and to decrease or eliminate sources of political influence upon the system”. From Conclusions The Slovak judiciary is in disarray and in turmoil. It is in disarray because there is hardly any country in the EU where public confidence in the judiciary is as low as in Slovakia. This in itself is a reason for concern, as a judiciary that has no public confidence loses its legitimacy. Additionally, the actions of the judiciary itself, especially the mass claim for wage discrimination, are not very helpful in restoring public confidence. The public generally does not have confidence in the impartiality of its judges, believes the judiciary is corrupt and complains about the lengthiness of legal procedures. Allegations concerning partial judges and judicial corruption are many, but only few can be corroborated with hard data. Strangely, not many investigations or in-depth (parliamentarian) inquiry has ever been conducted into these allegations. [...] The Slovak judiciary is also in turmoil. The clear impression of our visit to Slovakia in March 2011 and of all the documentation we studied before and after our visit is that the Slovak judiciary is as politicised as Slovak society is as a whole. There is a public debate going on about the independence of the judiciary between the president of the SNCJ on the one side and members of the Government on the other. The debate is conducted with a fierceness that in many other countries would be regarded as undignified for any representative of the judiciary. One may argue that the way the debate is conducted in itself is in conflict with internationally accepted standards. The appointment in 2006 of Mr Harabin as Minister of Justice under the previous government and – in 2009 – his election to the post of president of the Supreme Court (and therefore also president of the Slovak National Council of the Judiciary), have sparked a long-lasting conflict between the members of the judiciary. From the interviews we held during our visit to Slovakia, we have gotten the impression that within the judiciary roughly 10% of the judges support Mr Harabin, while another roughly 10% oppose him...
This volume contains a selection of essays drawn from a major scholarly project undertaken by the American Council of Learned Societies. The ACLS hosted symposia around the world in order to broaden and stimulate the field of comparative constitutionalism. That effort brought together scholars and political actors from many countries and every region of the world to discuss the experiences of constitutionalism. Twenty-five papers were selected to represent the range and depth of possibility for serious constitutional analysis. With the staggering changes in Eastern Europe and much of the rest of the world, constitutionalism has become one of the most important phenomena in the modern world. The essays in this book represent the very best work being done throughout the world on that important topic.
This study offers a theoretical framework for understanding how institutional instability affects judicial behavior under dictatorship and democracy. In stark contrast to conventional wisdom, the central findings of the book contradict some assumptions that only independent judges rule against the government of the day. Set in the context of Argentina, the study uses the tools of positive political theory to explore the conditions under which courts rule against the government. In addition to shedding light on the dynamics of court-executive relations in Argentina, the study provides general lessons about institutions, instability, and the rule of law. In the process, the study builds a set of connections among diverse bodies of scholarship, including US judicial politics, comparative institutional analysis, positive political theory, and Latin American politics.
This major study examines one of the most surprising developments in East Central European politics after the democratic transitions of 1989: the completely unexpected regeneration of the former communist parties. After the collapse of the communist regimes in 1989, these ruling communist parties seemed consigned to oblivion. However, confounding scholarly and popular expectations, all of these parties survived. Some have even returned to power. This in-depth, comparative study systematically analyzes the trajectories of four cases: the Czech Republic, Slovakia, Poland, and Hungary (with additional examination of other communist party successors). Relying on extensive, and unprecedented, primary research, this analysis employs a consistent analytical framework that combines the peculiarities of the post-socialist cases with broad theoretical concerns of institutional analysis, democratic transitions and consolidation, and party politics.
Judicial independence appears on most laundry lists of all bodies or institutions engaged with the rule of law. It is considered an unqualified public good. As a result, all major players engaged in legal reform and building a rule of law have diverted significant resources to this issue. For instance, the United Nations created the office of Special Rapporteur on the Independence of Judges and Lawyers in 1994. The World Bank has been investing heavily in judicial reforms in Latin America and Asia. In Europe, the Council of Europe has been pushing for judicial independence and judicial reform throughout the continent. Additionally, the European Union included judicial independence among its core requirements for the accession countries. Both organizations, the European Union and the Council of Europe, then jointly encouraged legal and judicial reforms in Central and Eastern Europe (CEE). A number of non-governmental organizations have likewise paid considerable attention to this issue.