Crises and Difficulties of the Mediterranean Model

A summary of the doctrines and practices explored in this chapter provides an idea of the Venice Commission’s contribution to the elaboration of the international constitutional law of the judiciary.

The constitutional reform by Hungary in 2011 and the following cardinal acts aimed at its implementation offer an example of a transition from a model of judicial independence based on the wide competences of a strong National Council of Judges to a different model of administration of the judiciary. The traditional functions of the executives of the pre­communist systems of government are no longer attributed to a judicial council, but to a new body. The President of the National Judicial Office is entrusted with the adminis­tration of the judiciary. The independence of this new authority from the executive and parliament should be ensured by the compliance with the principle of separation of powers. The reform was introduced to facilitate a great deal of turnover in the personnel of the judiciary by adopting new modalities for its enrolment and for the substitution of the old judges whose time for retirement was modified by the reduction of their upper age limit.

The poor flexibility of the relevant acts that have to be adopted and revised with a two- thirds majority of the parliament (cardinal acts) was criticised by the Venice Commission. The difficulty in making possible but necessary amendments to the reform was empha­sised. The novelty of this new constitutional arrangement of judicial independence was underlined by the Commission, and the body expressed ‘serious doubts about the reform model chosen, which concentrates... very large competence in the hands of one individ­ual person'^[247] - the President of the newly established National Judicial Office. Therefore, amendments were necessary and urgent. In the same Opinion, the wideness of the range of functions of the National Judicial Office was also criticised. The exercise of many func­tions by a single person raised concern even if most of the relevant functions do not relate to adoption of judgments in individual actual cases. The accountability of the President of the National Judicial Office, which was presented as one of the main purposes of the new legislation, appeared ‘clearly insufficient’.^[248] The National Judicial Council, which was presented as the principal supervisory body, only had the power to adopt persuasive recom­mendations, was dependent on the initiative of the President of the National Judicial Office and was not apparently able to counterbalance the influence of the competence of the parlia­ment to appoint the President. In fact, the functions of the Council appeared very limited and negligible. The reform claimed to offer ‘guarantees that the appointment of judges' is based on objective criteria and especially on the merit of the concerned judges. However, the President of the National Judicial Office had significant powers of interference, as the regulation of said powers did ‘not contain sufficient safeguards in order to exclude that improper considerations play a role’^[249] Analogous remarks were extended to the disciplinary proceedings.^[250] Moreover, the Commission criticised the legislative provisions concern­ing the internal independence of judges in the light of the standardisation (uniformity) procedure falling in the competence of the central and superior judicial body.

The Hungarian authorities took note of the Venice Commission’s remarks. They adopted new provisions and attributed to the National Judicial Council the power of expressing a preliminary opinion on persons nominated as a candidate for the presidencies of the National Judicial Office and of the Curia. Important powers were transferred to the Council from the President of the Office, whose accountability was strengthened. Nonetheless, according to the Commission, the capacity of the National Judicial Council to control the activities of the President is very poor, notwithstanding the limitation of his interference in judicial appointments. Moreover, the Commission is still of the opinion that the internal independence of the judges is not sufficiently safeguarded in the frame of the controversial standardisation procedure. Therefore, the supervision of the judges by chairs and division heads of courts and tribunals should be abolished.^[252]

The sudden reduction of the upper age limit for the retirement of the judges, whose unconstitutionality was declared by the Hungarian Constitutional Court,^[253] had been producing unacceptable effects even after the adoption of the amendments of the reforms. The legislator had not yet adopted provisions reinstating the dismissed judges, whose right to regain their previous positions without going through a reappointment procedure was recognised. The question was submitted by the European Commission to the European Court of Justice, which stated that the compulsory retirement of judges at the age of 62 did not fulfil the obligation under the European normative for equal treatment in employment and occupation.^[254] The decision was useful to the persons concerned, but did not address the question of the personal guarantees of the judges, which was dealt with by a successive judgment of the Court concerning Poland.

In January 2017, Poland started a comprehensive reform of the judiciary to increase its efficiency, enhance the accountability of the judges and combat corporatism in the name of strengthening their professionalism. Inter alia, the direct parliamentary election of the members of the National Council of the Judiciary and the reform of the Supreme Court were proposed, while new powers of the Minister of Justice concerning appointment and dismissal of judges were introduced. Moreover, the early retirement of judges was envisaged by the lowering of their retirement age. The purpose of this overall design was ‘to make the courts politically dependent’.^[255] Consequently, an Opinion of the Venice Commission was requested. According to its conclusions, there were severe risks of interference from the legislative and executive powers in the administration of justice.^[256] Notwithstanding this admonishment, the Polish authorities adopted new legislation on the Supreme Court, which provided for the early retirement of judges at 65 years of age and allowed the President of the Republic to extend the mandate of the retired Supreme Court judges after having requested the advice of the newly created Disciplinary Chamber of the Supreme Court. The Polish authorities officially stated that this advice was provided to ensuring compliance with the rules ensuring the independence of the judges.

The European Court of Justice has dealt with three cases concerning Polish judges who lamented the violation of their retirement rights and contested the independence of the Chamber of the Polish Supreme Court, whose advice should have been a guarantee of the respect of their status. In a judgment of 19 November 2017, the judges of the Grand Chamber of the European Court recognised that the modalities of the formation of the Disciplinary Chamber of the Polish Supreme Court do not guarantee its independence.

VII.