Introduction: The Separation of Powers and Its Implementation

The principles and standards regarding the judiciary’s organisation are part of national constitutional law. The history of constitutionalism has taught us that these principles concern a fundamental power of the state.

From a general and abstract point of view, the internationalisation of this chapter of constitutional law could be studied both with regard to the organisation of the judicial bodies of the international or supranational institutions and/or looking at the organisation of national judges within the framework of the national legal system. Both these points of view confirm the growing international relevance of the developments dealt with in this chapter, as they are strictly connected with the evolution of the safeguarding of human rights, the rule of law and democracy. The chapter explores the activity of the Venice Commission in the field of organisation of the judiciary. The focus is on the Commission’s experience in the elaboration of international principles and standards regarding judicial organisation. Special attention is paid to the promotion of the adherence of the national legal systems to the so-called European constitutional heritage. The Commission’s experience follows the path of the implementation of judicial independence in the frame of the Council of Europe and of the European Union insofar as it regards not only the national organisation of the judiciary, but also the relations between the states’ judges and European judges.¹

The intervention of the Venice Commission was frequently required in the transition to the adoption of new liberal-democratic constitutions by Central and Eastern European states.

¹ A Seibert-Fohr, ‘Judicial Independence in European Union Accessions: The Emergence of a European Basic Principle’ (2009) 52 German Yearbook of International Law 405.

The first option was to reform the organisation of the judiciary, while keeping the old judicial personnel in office. The second option was to substitute new judges for the old ones, while reforming the judiciary. The first solution implied a constitutional reform aimed at ensur­ing as quickly as possible the prerogatives of independence and autonomy of the incumbent judges of the past regime. According to this solution, the old judicial personnel would have been kept in office without promoting the necessary processes of vetting and renewal of the judges. This option risked strengthening seniority and corporatist tendencies. However, if the second solution was preferred, there was a risk of the initial concentration of relevant administrative powers in the hands of the political bodies of the new democracies. The appointment of new judges could also be affected by political preferences. According to the Commission, ‘choosing the appropriate system for judicial appointments is one of the primary challenges faced by the newly established democracies, where often concerns to the independence and political impartiality of the judiciary persist’.^[183]

Therefore, the choice of entrusting the parliament with the power to appoint the ordi­nary (non-constitutional) judges could be justified if it was restricted to the start of the transition to constitutional democracy. In principle, ‘political involvement in the appoint­ment procedure may endanger the neutrality of the judiciary’.^[184] The ideal solution should be rapid compliance with the principle of the separation of powers.^[185]

The solutions finally adopted were not always satisfactory.

As we have seen, the construction of the European constitutional heritage implies a historical approach. We have to look at the legal experiences of European countries to ascertain their common attitudes.^[186] If our inquiry focuses on the safeguarding of rights and the rule of law, the starting point should be the Magna Carta. This is considered to be the cradle of the rule of law that implied an independent role of the judges in the formation of the common law. On this basis, it is necessary to focus initially on the principle of separa­tion of powers and its effect on the organisation of the judiciary. Within this picture, a crucial role is played by Article 16 of the Declaration des Droits de l’Homme et du Citoyen of 1789 and by the liberal constitutions of the nineteenth century. Article 16 proclaims the extremely general principle that a society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.

It follows that we can certainly derive useful suggestions from the old constitutions of the nineteenth century. However, these constitutions were adopted in the frame of monar­chical regimes. Therefore, any reference to these experiences has to be integrated - from an operational point of view - with the analysis of the constitutions adopted in twenti­eth century. Consideration also has to be paid to the new solutions adopted in order to comply with the principle of the separation of powers, for instance in the North European countries.^[188] Moreover, an important role was played in the development of the European constitutional heritage by many international documents of the past century, especially in the field of the human rights, from the Charter of the United Nations of 26 June 1945 and the United Nations Covenant on Human Rights to the European Convention on Human Rights.^[189] Their importance derives from the fact that they are the result of a common effort to summarise the main constitutional values and ideals that are shared by all the concerned countries. It is evident that when we mention the United Nations' documents, we widen our scope by including states that are not in Europe. From this perspective, we cannot forget the documents of the American Revolution and their historical evolution, the analysis of which is an essential part of the modern doctrines of constitutionalism. There are also impor­tant European documents, for instance the Council of Europe Recommendation CM/REC (2010) 12, adopted on 17 November 2010, the European Charter on the Statute for Judges of 8-10 July 1998 and the Consultative Council of European Judges (CCJE)'s Magna Carta of Judges of 17 November 2010.

Within this picture, important developments emerged in the process of accession of new Member States to the European Union.

It is generally accepted that any reference to international political documents has to be carefully appreciated in the light of the intermediation of the legal constitutional culture.¹¹ In the judicial field, such international documents are usually extremely succinct. From the old historical acts and declarations to the resolutions of the European authorities, these documents are limited to the mere enunciation of the principles of separation of powers and of the independence ofjudges.^{[192] [193] Historical acts and declarations only assume relevance through their cultural processing. Important results of this process were reached at the European level in the contributions elaborated in the frame of the Council of Europe by its governing bodies and by the CCJE. All these materials give evidence of the meaning of the documents identifying the ideological basis of a given institutional choice and its political background.}

Hungary and Poland have been at the centre of the discussion due to their recent judicial reforms. These interventions are considered to lack conformity with the European yard­sticks. At the moment of accession of these states to the European Union many ‘had believed that consolidated democracy was irreversible'^[194] in those countries. On the contrary, their leaders forgot the initial engagements and adopted different political guidelines to safeguard their national sovereignty. Thus, the question arises whether these states will be allowed to claim their specific constitutional identity on the basis of some of their historical documents that are not frequently mentioned in the main texts of the doctrine of the constitutionalism. This question was addressed in chapter three.

Accordingly, both Hungary and Poland were at the periphery of the experience of European constitutionalism. In any case, in the judicial field, the Polish Constitution of 3 May 1791 offered an interesting suggestion. Article VIII of the Constitution states: ‘as judicial power is incompatible with the legislative, nor can be administered by the King, therefore tribunals and magistratures ought to be established and elected’. However, addi­tional rules for the implementation of these principles were not identified or were missing. It follows that the contribution of the Polish tradition appears to be not very conspicuous on the matter.

The same can be said with regard to the Hungarian Bulla Aurea of the thirteenth century, which reserved the exercise of the judicial power to the king and his palatini comites in cases concerning indifferently all people, with the exception of ecclesiastical matters. However, the members of the Hungarian nobility were not required to have a legal education, they had only to swear to accomplish the judicial tasks correctly before starting their mandate. Furthermore, the Hungarian historical tradition regarding the status of members of the judiciary was always very weak. Only in the nineteenth century did some interesting devel­opments emerge. In fact, the organisation of the Hungarian judiciary (the Gerichteverfassung in Ungarn, in the words of Ludwig Gumplowicz^[195]) was affected by the constitutional devel­opments of the Austro-Hungarian Empire. These developments gradually pointed in the direction of parliamentary government. Article 1 of the Law of 27 October 1862 provided for the guarantee of the' lawful judge ‘pre-established by the relevant legislation, which fell in the competence of the Council of the Empire as far as the fundamental traits of the organ­isation of the judicial authorities were concerned (§ 11, l of the Law of 21 December 1867). The Emperor retained a central position in the organisation of the judiciary. For instance, the Fundamental Law of the State of 21 December 1867 entrusted to him the appoint­ment for life of the president and the vice-president of the Tribunal of the Empire and of its 12 effective and four substitute members nominated in equal number by the Chamber of the Deputies and the Chamber of the Nobles. Moreover, on the basis of Article 5 of the Fundamental Law of the State of 21 December 1867, No 144, the judges were appointed ‘definitely and for life' by the Emperor or in his name. However, some guarantees were intro­duced. The dismissal of judges from office was only allowed in the cases provided for by the legislation and on the basis of a judicial decision. In addition, they could be transferred from one office to another only with their consent. Recently, Hungarian authorities have referred to these nineteenth-century historical roots in conflicts with the European authorities. Specifically, the Hungarian authorities used the historical argument to claim that legislative provisions allowing the so-called Curia (the national highest judicial authority) to issue decisions aimed at ensuring the uniformity of minor judges' judgments was based on tradi­tional roots. The Venice Commission reacted by lamenting the violation of the individual independence of the affected magistrates in the exercise of their functions.^[196]

The Venice Commission took into consideration the historical developments of the forms of government of the states concerned when it evaluated the appropriateness of organisa­tional models for the judiciary. The Commission has recognised the existence of ‘a variety of different systems for judicial appointments'.^[197] In older democracies, the Commission conceded, ‘systems may work well in practice and allow for an independent judiciary':^[198] even if the executive sometimes has a decisive influence on judicial appointments, historically ‘these powers are restrained by legal culture and traditions, which have grown over a long time'.^[199] However, in other countries, a shift in the direction of establishment of an independ­ent judiciary according to past solutions may not be sufficient if there is no demonstration of a satisfying compliance with the principles of European constitutional heritage. In these cases, any historical continuity is missing. Therefore, in the new democracies that ‘did not have a chance to develop these traditions, which can prevent abuse... explicit constitutional and legal provisions are needed as a safeguard to prevent political abuse in the appointment of judges’.^[200] The executive-centred solutions have to be excluded.

II.