‘Independence must be earned’
The independence of the Judiciary as a whole and that of individual judges lie at the heart of the rule of law. Without it, the judicial system cannot fulfil its functions. But independence does not stand alone. It must be recognised that independence is directly linked to accountability. A Judiciary that claims independence, but which refuses to be answerable to society will not enjoy the trust of society and will not achieve the independence for which it strives.
According to the ENCJ ‘independence must be earned’; it is, by no means, automatic. The judicial system achieves legitimacy and the respect of its citizens by excellent performance, resulting in impartial and well-reasoned decisions. Whilst mistakes will always occur and draw criticism, an independent and accountable Judiciary is open to justified criticism and learns from its mistakes. This mechanism provides a powerful link between independence and accountability.
Two years ago, the ENCJ started an ambitious project focusing on the development of indicators for the independence and accountability of EU judicial systems, EU judiciaries, and Councils for the Judiciary. The second objective was to present an ENCJ vision on the independence and accountability of the judiciary. The subsequent report Independence and Accountability of the Judiciary was adopted by the General Assembly in Rome in 2014.
In the 2014 ENCJ report Independence and Accountability of the Judiciary in total 13 indicators were identified that are particularly important to measure independence and accountability of a Judiciary and a State’s judicial system. With regard to objective independence, a distinction was made between the Judiciary as a whole and the individual judge.
The indicators of the objective independence of the Judiciary are: 1) Legal basis of independence; 2) Organisational autonomy of the Judiciary; 3) Funding of the Judiciary; 4) Management of the court system.
The indicators of the objective independence of the individual judge fall into the following categories: 1) Human resource decisions about judges; 2) Irremovability of judges; 3) Procedures that are in place in the event of a threat to individual judicial independence; 4) Internal independence of the Judiciary.
The indicators of the subjective independence of the Judiciary and the individual judge fall into the following categories: 1) Independence as perceived by citizens in general; 2) Trust in Judiciary - relative to trust in other state powers by citizens in general; 3) Judicial corruption as perceived by citizens in general; 4) Independence as perceived by court users at all levels; 5) Independence as perceived by judges themselves.
At the General Assembly in Rome in 2014 it was noted that in the aforementioned report judges had not been asked how they perceive their own independence. Since this omission lead to a blank spot in the indicators about subjective independence, it was decided to undertake a survey among European judges. 22 judicial organizations were willing and able to organise the survey. In total 5.878 judges participated.
During the 2015 General Assembly in The Hague the results of this survey, compiled in the draft report Independence and Accountability of the Judiciary and of the Prosecution, will be presented to all participating countries. In general it can be concluded that although there are differences among countries, the vast majority of judges have not been under inappropriate pressure to take a decision in a case in a specific way in the last two years.