Conclusions

When asked for new Opinions in the future, the Venice Commission should learn from the crisis of its preferred model of self-administration by an independent judiciary. In light of the past experiences, the position of the Commission could be revised and rethought.

Faced with a choice between the judicial council model and the executive centred model, a constitutional decision must be made. The elaboration of the traditional sources and materials of European constitutionalism in the process of supranational monitoring has concurred with the enrichment of international constitutional law in the matter. However, the adoption of one or another model has to be supplemented by choices that fall in the competence of the ordinary legislator. Objective criteria have to be identified and applied by the bodies entrusted with the administration of the judiciary. The fight against the corporat- ist and seniority tendencies of judicial personnel depends on the legislative decisions that are at the base of the measures affecting the careers of the judges.^[270]

The elaboration of general guidelines for the above measures is relevant for the prin­cipal models that the Venice Commission has taken into consideration. The adoption of the necessary legislative provisions affects the careers of the judges whatever the model of judicial administration is adopted. The work of the Commission should draw inspiration from the experiences of diverse countries and from the mutual exchange of information and suggestions. Moreover, in these hypotheses, the Venice Commission can play an important role in the identification of criteria and standards that can ensure the status, independence and potential efficiency of the judiciaries of the states that seek its advice and support.

The purpose of the Commission’s contribution should be the avoidance of situations that require a general lustration of judges as in Albania, or the modification of the terms of retirement of judges as in Hungary. These exceptional measures are not easily accepted by the Commission. The Commission shared the legal reasoning underpinning the declara­tion of the unconstitutionality of the early retirement of judges adopted by the Hungarian Constitutional Court and by the European Court of Justice. The Commission suggested that the Albanian authorities should introduce procedural and substantive guarantees in the general vetting of judges. Legislative interventions in these cases result in various meas­ures, for instance, the request for a declaration of the patrimonial and financial situation of the judges whose adoption the Commission accepted.^[271] The extensive spread of judicial corruption justified exceptional measures, even though the Commission maintained seri­ous doubts about the measures, in light of the right to privacy. Conversely, such measures are frequently adopted in the case of holders of political and public offices.

Reducing the presence of judges on the judicial council is a frequently proposed arrange­ment. The Venice Commission prefers in any case arrangements that imply the presence of a majority of judges on the council. However, in some states, judicial members are in the minority on the councils.^[272] This situation can be dangerous and favours political interference in the life and functioning of the judiciary. If the purpose is the elimination of corporat- ist and seniority tendencies, a different legislative solution may be pursued. Moreover, at the level of institutional and organisational arrangements, the search for a strengthening of parliamentary control or the introduction of individual complaints by the persons affected by judicial miscarriages could be envisaged. Finally, the Georgian model of a Parliamentary Commission could be exceptionally accepted. However, it should generally be avoided, as it interferes with the treatment of individual cases. Perhaps it would be advisable to provide for a more flexible, fair and less intrusive machinery of parliamentary supervision of judicial activity. This supervision would have to deal with the systematic aspects of the phenomenon and not with individual judgments.