Judicial Independence Research Articles

Commission v. Poland (Régime disciplinaire des juges);Comment on the judgment of the CJEU of 15/07/2021 (Grand Chamber), case C-791/19

The author presents the situation of legal relations that took place in the period 2015-2023 between Poland and the European Union (EU). The reform of the justice system organized by the ruling party was appealed by the European Commission to the Court of Justice of the EU. The CJEU analyzed and assessed the following fundamental legal issues: failure to fulfill obligations by a Member State, the rule of law, the system of disciplinary liability of judges, judicial independence, effective legal protection in areas covered by EU law, recognition of the content of judicial decisions as disciplinary offenses, compliance with reasonable deadlines, respect for the rights of judges to defense in disciplinary proceedings, the right and obligation of national courts to refer requests to the CJEU for a preliminary ruling. It ruled that the Republic of Poland (RP) had failed to fulfill its obligations towards the European Union (EU). This study concerns case law. The situation created during this period resulted in a significant weakening of the protection of the value of the rule of law within the meaning of the extensive case law of the CJEU presented in this article. According to this body, the Republic of Poland has failed to fulfill the obligations set out in the EU treaties.

NOTE: The Development of Modern Criminal Justice Processes and Institutions in Ethiopia (1907-1974): An Overview

This note briefly discusses the institutional and process developments in Ethiopia’s modern criminal justice. There is a close relationship between political administration and justice administration considering the issue of judicial independence in a historical context. The year 1907 is taken as a starting point in the development of criminal norms and institutions because the Ministry of Justice was established and Afe Negus Nesibu was appointed Minster of Justice. The institutional and normative developments in this period were merely reactive to problems. Twelve judges were appointed to help the Minster of Justice who was entrusted to see all the cases by himself. Procedural rules were introduced as schedules in order to manage the inflow of cases. The enactment of the 1930 Penal Code helped judges determine sentences rather than sending convicts to the governor for sentencing. Regulation of appeal and preliminary processes such as providing a copy of judgement were introduced. The second phase in Ethiopia’s modern criminal justice system started from 1941 onward because this year is a landmark for the establishment of modern legislation and modern criminal justice institutions. The police were established as an investigation institution that executes orders given by the court. Prison was established signaling imprisonment as a mode of punishment. The prosecution institution was established under the Ministry of Justice. Thereafter, several substantive and procedural rules have been adopted governing the initiation of cases, summons, evidence, judgement and appeal. The last institution established during this period was the judicial organ.

Judicial Independence and the Collegium System in India

Judicial Independence and the Collegium System in India

Corporate carbon reduction and tax avoidance: International evidence

Using data on firms’ carbon emissions in 28 countries, we document that a firm’s initiation of carbon reduction activities relates to lower tax payments. This result endorses a perception of legitimacy theory suggesting that companies can gain legitimacy with tax authorities by adopting carbon reduction strategies. Our study also shows that the positive relationship between lower tax payments and a firm’s carbon reduction leads to higher Return on Assets (ROA), particularly for firms with lower operating performance. Moreover, our study documents that firms that engage in carbon reduction activities can mitigate their tax burden in countries that impose a carbon tax, have higher media freedom, judicial independence, and robust legal systems. These various institutions within a country can influence the relationship between a company’s carbon emission reductions, lower tax payments, and its overall performance. Our findings are robust even when using alternative measures of carbon emissions, control variables for corporate social responsibility, and the entropy-balance or propensity score matching sample.

Cui bono? Judicial decision-making in the era of AI: A qualitative study on the expectations of judges in Germany

Despite substantial artificial intelligence (AI) research in various domains, limited attention has been given to its impact on the judiciary, and studies directly involving judges are rare. We address this gap by using 20 in-depth interviews to investigate German judges’ perspectives on AI. The exploratory study examines (1) the integration of AI in court proceedings by 2040, (2) the impact of increased use of AI on the role and independence of judges, and (3) whether AI decisions should supersede human judgments if they were superior to them. The findings reveal an expected trend toward further court digitalization and various AI use scenarios. Notably, opinions differ on the influence of AI on judicial independence and the precedence of machine decisions over human judgments. Overall, the judges surveyed hold diverse perspectives without a clear trend emerging, although a tendency toward a positive and less critical evaluation of AI in the judiciary is discernible.

Authoritarian legality with Chinese characteristics

ABSTRACT In recent years, the concept of authoritarianism has risen to prominence in the community of legal scholars studying non-democratic regimes. China’s legality is also described as authoritarian. However, what does it mean to label China as having a system of authoritarian law? The concept of authoritarianism, and by extension, authoritarian legality, is yet underexamined. This article discusses how China, as a single-party state, differs from other authoritarian regimes in developing its own brand of authoritarian legality that I describe as legal gradationalism. China's authoritarian legality is characterized by a rejection of judicial independence and the mixing of law and quasi-law instruments. Drawing from Shucheng Wang's Law as an Instrument, I propose that a gradationalist approach to Chinese legality allows us to more fully understand the behaviour of Chinese courts and the intriguing dynamics between the Supreme People's Court (SPC) and the local courts.

“Culture and practice eat documents for lunch:” Norms and procedures in the 2020 election cases

AbstractThe US Supreme Court has been rightfully criticized for its role in contributing to the anti‐democratic processes in the United States. However, the focus on the apex court overlooks the potential for the judiciary as a whole to support democratic institutions. In the aftermath of the 2020 US presidential election, a series of lawsuits contesting the results were filed in federal courts, overseen by judges appointed by presidents from both major parties. Despite the prevailing perception of courts as politically influenced, every one of these cases ruled against the former President Trump's claims. This research delves into the influence of judicial norms and legal profession culture, intertwined with specific procedural doctrines such as Article III standing and justiciability. The study contends that these procedural rules, deeply ingrained within the culture of the legal profession in the United States, served as a crucial mechanism upholding judicial independence. The analysis draws from the texts of the 2020 election‐related court decisions and interviews with 17 legal experts, primarily consisting of federal and state Supreme Court judges.

Enforcement and public opinion: the perceived legitimacy of rule of law sanctions

ABSTRACT The EU has powerful enforcement mechanisms to curb democratic backsliding and support the rule of law in its member states. While (the threat of) enforcement is necessary, sanctions might be difficult to accept as legitimate when they hurt a citizen's country. We study the perceived legitimacy of EU enforcement actions. We develop hypotheses about the influence of national identity, party support, procedural fairness, descriptive norm prevalence, and the likely effects of the sanctions on the future of cooperation. These hypotheses are tested with a survey experiment administered to a nationally-representative sample in Poland. The focus is on the substantial financial sanctions imposed by the EU concerning judicial independence. The results show that exclusive national identity, the perceived importance of the rule of law, support for European integration and party support are strongly associated with perceived legitimacy. Providing information about the prevalence of public support for judicial independence in the country increases significantly the perceived legitimacy of enforcement actions. We find no evidence for effects of arguments about Polexit, future deterrence effects of the sanctions or their procedural (un)fairness. EU sanctions might not lead to further backlash among the domestic public, but they are unlikely to generate public pressure for reforms.

Judicial independence and growth investors' decisions

Using Chinese A-share listed companies from 2011 to 2016, we consider the establishment of China's National Circuit Courts as a quasi-natural experiment and empirically investigate the impact of judicial independence on the decisions of growth investors using the difference-in-difference (DID) method. Our findings suggest that judicial independence significantly facilitates growth investors' investment in local firms. This effect mainly stems from the reduction of business risks and the promotion of corporate innovation. Heterogeneity analysis reveals that judicial independence has a stronger promoting effect on growth investors' investment in firms in high-tech, high-growth, and poor initial legal environment.

When Rural Resilience Came to the City: Libanios on Villagers Moving through Fourth-Century Antioch

In the fourth century AD, the relation between the city of Antioch and its hinterland underwent significant change. In response both to environmental transformation and the consequences of human intervention, resilient rural communities in the Amuq plain north-east of the city took on new political, economic, and religious significance. From a distinctively urban perspective, the sophist Libanios criticized and deplored this development, most famously in his oration 47 from around the year 390 with regard to the emerging political and judicial independence of larger villages in the Antiochene. The same phenomenon was addressed roughly 50 years later by the Christian author Theodoret of Kyrrhos, who, however, appreciated the new rural self-confidence as a religious revival spearheaded by holy men. But just as the late antique realities of villagers and city-dwellers rarely met, neither physically nor intellectually or culturally, also the contrasting perspectives represented by Libanios and Theodoret remained largely disconnected. In one instance, however, Libanios related an account of hinterland representatives that moved through Antioch’s urban space, confronted the city with a specifically Antiochene type of rural resilience, and challenged, according to Libanios, much of what Antioch stood for. As such, this episode highlights the importance of mobility in city-hinterland relations and, pointedly, its significance for the study of rural resilience in late antiquity.

Protecting the rights of judges: the judgments of the European Court of Human Rights in Juszczyszyn v Poland and Tuleya v. Poland

This article examines two rulings of the European Court of Human Rights on the rights of independent Polish judges in Juszczyszyn v. Poland and Tuleya v. Poland, focusing on two key aspects. First, it addresses the Court’s finding that the Polish authorities aimed to undermine judicial independence and deter the applicants from questioning the Government’s controversial judicial reforms. Secondly, it explores the potential evolution of the case law of the European Court of Human Rights regarding recognising the subjective right of judges under Article 6 of the European Convention on Human Rights to have their independence protected and respected by the State. The article also discusses problems concerning implementation of the two judgments.

Legalism and the European Union’s rule of law crisis

AbstractThe past decade has seen the rise of the semi-authoritarian regimes within the European Union. EU law scholars are rightfully concerned that, in the absence of a meaningful response, this leads to an existential crisis for the Union, as these regimes threaten respect for the Union’s foundational values. The Union did respond to what it has framed as a rule of law crisis by means of a constitutional transformation, asserting Union power to protect judicial independence within the Member States even in areas previously thought beyond the reach of Union law. This paper contends that the Union’s response to the authoritarian threat is flawed for its legalist faith in law and courts. In institutional terms, it was the Court of Justice of the European Union, rather than the Union’s political branches, that took the lead in this transformation. In substantive terms, the Union has transformed its constitutional framework to protect the organisational infrastructure of the judiciary, but it failed to do the same in response to various other strategies in the authoritarian playbook. By framing the authoritarian threat as, above all else, a threat to the judiciary, the Union’s response contributes to the reification of political debate at Union level and risks the alienation of the European polity.

The Case for Judicial Councils as Fourth-Branch Institutions

Judicial councils – separation of powers – fourth-branch institutions – judicial independence – four ideal types of judicial councils – a judge-controlled, politician-controlled, inter-branch and fourth-branch judicial council – danger of politicisation and corporativism of the judiciary

Power and Law in The Context of Separation of Powers: A Qualitative Study of The Relationship Between The Executive and The Judiciary

This study aims to delve deeper into the relationship between the executive and the judiciary in the context of separation of powers. Through a qualitative study approach, this study will analyze the dynamics of power and the role of law in influencing the interaction between the two branches of government. The research will involve in-depth interviews with legal practitioners, judges, executive officers, and other relevant stakeholders to gather in-depth qualitative data. Data analysis will be carried out by taking into account theoretical perspectives and concepts related to separation of powers, political power, judicial independence, and the role of law in the government system. The results of this study conclude that a better understanding of the dynamics of power and law in the relationship between the executive and the judiciary provides valuable insights for policymakers and law enforcers in strengthening the separation of powers and improving equitable governance systems.

Political uncertainty and litigation efficiency: Evidence from China

AbstractIn this article, we investigate the influence of local official turnover on litigation efficiency using manually collected data from listed companies in China from 1995 to 2013. Our findings indicate that official turnover leads to a decrease in litigation efficiency, with a 16.3% increase in the duration of litigation cases. This effect is more pronounced when newly appointed officials are working in different locations. It is more significant when the involved enterprise is a private entity, suggesting that political cycles contribute to the selective enforcement of private enterprises. Further analysis reveals that the adverse impact of official turnover on litigation efficiency is short‐lived. The conclusions contribute to the existing literature on official turnover and litigation efficiency and hold potential implications for judicial independence reforms.

Recent Limitations to the Theory of Acts of Sovereignty and What They Mean for Judicial Independence in Egypt

Abstract The theory of acts of sovereignty is a serious limitation on the scope of judicial review. This paper examines the recent applications of the theory by the Egyptian State Council and the Supreme Constitutional Court which aim to widen the scope of judicial review by limiting the applications of the theory of acts of sovereignty. The two cases studied were decided amid political tensions. These cases cannot be understood separately from the political environment in which they were decided and the status of guarantees made for the impartiality of judges within this context. This paper argues that although both cases are important steps forward, they fail to establish a lasting limitation on the theory.

Judicial Independence in Somalia

This study is to present a comprehensive understanding of the state of judicial independence in Somalia. It specifically focuses on examining the constitutional provisions and legal framework that govern the independence and immunity of judges in Somalia. Additionally, it aims to evaluate international standards of judicial independence, analyze the composition and functions of the Judicial Service Commission (JSC) in terms of the appointment, promotion, and removal procedures of judicial officers in Somalia. Furthermore, the study aims to identify the challenges encountered by the judiciary and propose policy and legal reforms based on the research findings, with the ultimate goal of enhancing the independence of the judiciary in Somalia. In this study, using qualitative research, the researchers analysed constitutional provisions, legal frameworks, and a range of published and unpublished materials such as books, journal articles, research papers, reports, internet sources, newspapers, legal systems, and the constitutions of Somalia. The study concludes that while Somalia has made efforts to ensure the independence of its judiciary, there are still significant challenges that need to be addressed, particularly in relation to the appointment, promotion, and removal of judicial officers. To strengthen the judiciary and safeguard its independence and integrity, it is recommended to establish a Judicial Service Commission. This commission would oversee the appointment, promotion, and removal procedures, ensuring they are based on merit and transparency. Additionally, the study suggests that legislative solutions should be considered to review and provide clarity in the legal framework. This would help define the roles, responsibilities, and powers of the judiciary more precisely, contributing to a more robust and independent judiciary in Somalia.

Judicial Independence: A Continued Political Interference in Recent Judicial Proceedings in Uganda

Chapter eight of Uganda's constitution highlights the judiciary's crucial role as the protector of the constitution, with the authority to exercise judicial powers bestowed upon them by the people. The judiciary is essential to upholding the constitutionality of laws, acts of parliament and customs and identifying and addressing inconsistencies. Article 128 Clause 1 of Uganda’s 1995 Constitution emphasizes the importance of maintaining the judiciary’s independence, ensuring it remains a bastion of integrity and fairness. However, recent cases shed light on the consequences of political interference, which is becoming an increasingly worrisome issue in Uganda. Thus, the research focuses on some sources of political interference in Uganda's judicial proceedings and its persistence, including an opaque and politicized process of appointments, pressure applied to judges by the executive branch and powerful interests, and disrespect for court orders by the executive and legislature. The consequences of such interference in the democratic justice system are discussed, and they have led to a decline in the independence of the judiciary, covering the breakdown of public trust in the judiciary, unfair legal judgements, and weakened constitutional principles. The findings highlight Uganda's urgent need for action and an independent judiciary. This study applies doctrinal legal research methodology to discuss the continued political interference in the recent judicial proceedings in Uganda since 2006. The study recommends constitutional reforms to curb the overgrowing political interference in courts’ judicial independence and preserve constitutionalism principles by examining this theme.

Chilling effect: Turning the poison into an antidote for fundamental rights in Europe

In the famous case of Baka v. Hungary, Judge Sicilianos proposed that the European Court of Human Rights should recognize a subjective right for judges to have their individual independence safeguarded and respected by the State. Such a reading of Article 6 of the Convention would enable national judges to claim a violation of that provision each time their individual independence is interfered with. It would also allow the Court to address one of the critical blind spots in the Convention system. However, the Court left the proposal dormant until recently. It is now put before the parties in three pending cases. This article argues that the Court should seize the opportunity to enhance the protection of judicial independence, but not by employing the proposed subjective right approach. Instead, it should rely on the better alternative: the chilling effect. Such an approach would enable the Court to fill the gaps in the Convention while remaining faithful to the text and avoiding the impression that judicial independence is a privilege of judges.

Challenges in creating humane and equitable policing: A focus on the Global South

AbstractResearch SummaryPolice brutality is a widespread phenomenon around the world. Particularly gruesome human rights abuses in the course of policing take place in Latin America, the world's most violent region outside war zones. Democratic institutions such as competitive elections, checks and balances, and judicial independence are insufficient to prevent police from abusing their power. What factors explain that police engage in abusive behaviors, including illegal arrest, the fabrication of evidence, the use of torture to extract confessions, and the excessive use of force causing injury or death? How can societies restrain these abusive behaviors and subject police to the rule of law? Police behavior is shaped by a combination of institutional, societal, political, organizational, and individual factors. Inquisitorial criminal justice institutions, inherited from the colonial past, have persisted in Latin America until very recently. This meant that democracies in the region were born with weak due process protections that have enabled state authorities and police to abuse their coercive powers as they investigate and prosecute crimes. Police brutality is further the product of security policies. High crime rates and the presence of highly organized criminal groups have pushed many Latin American governments to adopt militarized security interventions ‐including deploying the armed forces to control crime and militarizing police forces. Populist demands for harsh policies, moreover, generate incentives for politicians to adopt security strategies that violate human rights and which, in the long run, increase violence in society. The most affected groups are the poor, people of color, and those living in impoverished minoritized communities.Policy ImplicationsIt is essential to strengthen due process protections and judicial oversight over police to reduce torture and other forms of police brutality. Police demilitarization and, under some conditions, community‐oriented policing approaches can sharply reduce the use of excessive force causing injury or death. Body‐worn cameras (BWC), moreover, can effectively be used to reduce police abusive behavior —and violence against police officers — even in high violence situations and where toxic police‐community relations prevail. One limitation of this technology is that it gives too much leeway to frontline officers to turn their cameras on. Poor supervision can further undermine police compliance with camera protocols. These problems can be overcome by assigning cameras to supervisors and using more advanced technologies that allow turning cameras on from the main station. Monetary incentives that reward police officers “to kill less” is another effective policy intervention to reduce police violence causing injury or death.