Judicial Councils and Other Solutions
This way of reasoning led the Commission to pay special attention to the historical European models of organisation of the judiciary. The identification of these models could offer an overview of the guidelines that steer the implementation of the principle of separation of powers and its consequences on the status of judges and relative offices.
As we have seen, from its inception, the Venice Commission recognised the existence of at least two different organisational models in Europe. In principle, both could serve the aim of guaranteeing autonomous and independent judicial bodies.The first example is the judicial self-management (or self-government) model, which was apparently patterned on the constitutions of some Western European states (Italy, France and Spain). In this model (the so-called Mediterranean model), most of the decisions on the careers of the judicial personnel are taken by a council. Members of the council are elected by the judges themselves. This was the preferred solution suggested by European authorities at the moment of accession of the ex-communist states to the Council of Europe and to the European Union. It seems that such a solution draws inspiration from the principle of self-government of the judiciary. According to this idea, members of the Council (elected by fellow judges) would take care of the interests of the judiciary in the same way that elective local authorities of the local government take care of the interests of the territorial communities. Recently, this approach was strongly criticised by scholars from Central and Eastern Europe. Consequently, the choice for this model was the will of the representatives of the judges themselves rather than the decisions of the responsible political authorities.[201] Therefore, the approach of the legislators and of the supranational monitoring bodies would have facilitated corporatist and seniority practices of the newly created judicial councils.
This phenomenon could be explained by the ready submission of the states to the approach illustrated above. The decision to keep in office old judges of the communist regimes, with no lustrations or preventive vetting, led to dangerous consequences. This recent criticism of the authors referred to in the lines above is ill-founded. On the one hand, the choices of the legislators were the result of the political bodies of the concerned states that implied an evaluation of the orientations of the concerned judicial categories in conjunction with other purposes and interests. The judges did not take part in the political decisions. On the other hand, the guidelines of the supranational monitoring bodies were preceded or approved ex post by the competent authorities of the supranational institutions concerned.The spreading of corporatist and seniority deviations in some countries can be explained by a poor understanding of the philosophy of the model. At the centre of the solution are not the interests of the judicial categories, but the state's interests aimed at avoiding interference from the political legislative and executive bodies in the functioning of the judiciary. Therefore, the interests dealt with by the members of the judicial councils should not be the corporatist interests of the judges. The comparison with the local self-government is ill-founded, as the councils were not established to take care of specific personal or corpora- tivist interests of the category of judges. Moreover, the presence in the councils of a minority of members elected by the parliamentary assemblies is an obstacle to possible corporat- ist deviations. In fact, the mandate of these members is the checking and ensuring of the correct management of the interests entrusted to the care of the judicial councils themselves. Undoubtedly, the concrete implementation of this design might have encountered practical hurdles and difficulties in some countries. However, practical inconveniences do not justify the repudiation of the whole model.
On the contrary, they require the reformation of the details of the implementing legislation that is incoherent with the model.The guidelines that prevailed in the process of accession of new members to the European Union refused the alternative model of organisation of the judicial personnel. This model implied the assignment of the power of administration of the judiciary to the executive branch of the state. The intervention of the executive is counterbalanced by the recognition of special personal rights granted to individual judges, or by consultative interventions of the judicial ordinary bodies in the relevant decision-making procedures. Judges may uphold their specific rights or the observance of the relevant procedural rules by way of appeal before the appropriate judicial bodies. Thus, the independence of the judiciary is assured - according to the principle of the rule of law - by means of specific personal guarantees of the judges or by specific articulations of the procedural formation of the relevant decisions. In this way, the constitutional legislators avoid the concentration of a great deal of power in a body, separate from all other state organs, whose membership is made up, at least partially, by magistrates who are personally interested in the matter.
After the dissolution of the Warsaw Pact and of the Yugoslav and Soviet Federal Unions, former communist countries adopted a mixed or intermediate model of judicial organisation. Those countries provided for a coexistence of deliberative powers of the political state authorities and of the entrusting of specific technical functions to judicial councils or committees.[202] This solution was preferred, as it avoided a complete judicial self-government by the ex-communist judicial personnel. The political authorities were supposed to be in a better position than a body ofelected magistrates to check the persisting old-fashioned corporatist attitudes of the judges of the past communist regimes who were still in office.
Specific arrangements were introduced on the basis of two justifications: on the one hand, these arrangements were aimed at avoiding a general lustration of the incumbent judges and, on the other hand, the arrangements were accompanied by the political intention to modernise the organisation of the judiciary according to the Western principles of constitutionalism in an ongoing slow process of reform. Even the Explanatory Memorandum to the European Charter on the Statute for Judges conceded that ‘some countries would find it difficult to accept an independent body replacing the political body responsible for appointments’ of judges.[203] The Venice Commission elaborated this point by underlining that the appointment of judges by the parliament is ‘a method for constituting the judiciary which is highly democratic but... the balance might be tilted much too far towards the legislative power’. Therefore, as happens in the case of appointments made by the executive, some guarantees should be introduced to avoid the prevailment of political interference. ‘It would be desirable,’ the Commission said, ‘that an expert body like an independent judicial council could give an opinion on the suitability or qualification of candidates for the office of judge.’[204]The intervention of the elected parliamentary assemblies in the procedure for the appointment of judges could be justified by the peculiarities of the transition process from the old communist regimes to democratic and liberal systems of government.[205] The Venice Commission agreed that the question of the substitution of new judicial personnel for old was at stake. As reported in the previous pages, the Commission recognised that there are examples of interventions of political authorities in the judicial field: in some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. The documents do not mention, for instance, the example of the UK, notwithstanding that it has provided interesting and peculiar evidence of this kind of organisational arrangement.
A plausible reason for this is that older and established democracies such as the UK may adopt this kind of arrangement with success, ‘because the executive is restrained by legal culture and traditions, which have grown over a long time’. In contrast, states where new democracies have been recently established missed ‘a chance to develop these traditions, which can prevent abuse’.[206]When distinguishing between older and new democracies in Europe, the Venice Commission adopts a more flexible approach than other international institutions. Thus, an important place is reserved for legal traditions and a constitutional culture, which are essentially identified as the traditions and culture of Western Europe. On the one hand, the contribution of the historical heritage of former communist states is considered irrelevant or insufficient to guarantee the independence and separateness of the judiciary. On the other hand, the choices of some older European democracies are appreciated, notwithstanding the decisive role played by the executive in the procedures for the appointment of judges. There is a positive evaluation of the organisation of the judiciary in these older democracies, even if they do not formally comply with the model in principle preferred by the Commission (ie the establishment of a self-governing body for the judiciary). Therefore, the position of the Venice Commission has to be distinguished from the conclusions drawn, for instance, by the Committee of Ministers of the Council of Europe in its Recommendation R (94) 12 and by the Consultative Council of European Judges in its Opinion Nos 1 and 10.
This approach provides a significant answer to our initial question about the cradle of the European constitutional heritage, which is mainly indicated as residing in Western constitutionalism. Important historical signs of the presence of the rule of law doctrine in other European countries, especially in Central and Eastern Europe, are considered insufficient for the consolidation of a significant contribution to the European constitutional heritage.
Central and Eastern European constitutional experiences lack continuity of compliance with principles of constitutionalism, principles that have not been accurately implemented in their legal systems. It is true that in the past, the judicial organisation and the recruitment of judges were left in the hands of the executive also in Mediterranean countries, such as France, Italy and Spain. Therefore, the independence of the judiciary was imperilled, as a clear implementation of the principles of constitutionalism was missing. However, the objection can be easily rejected by underlining the readiness in the adoption of democratic and liberal constitutions that characterised the transformation of these legal systems following World War II and the fall of the dictatorships.Many international documents state that the fundamental principles of the professional status of the judges have to be set out in internal provisions at the highest level in the hierarchy of norms, and at least at the legislative level in the implementing rules. The Venice Commission agrees with this approach.[207] During the adoption of the new constitutions, most of the former communist countries opted for constitutional provisions establishing a judicial council, considering this institution as a basic guarantee of the independence of the judiciary. By doing so, these states refused their past tradition, where judges used to depend on the executive power. Prima facie, this model complied with the principle of separation of powers. It implied the creation of an independent authority that is separate from the other branches of the state. The membership of this body must comprise a large representative body, whose members are elected from the judges themselves. This body is entrusted by constitutional provisions with decisive functions in view of the adoption of acts concerning election, promotion, transfer and disciplinary decisions over fellow judges. This design is in line with the majority of the documents adopted by expert bodies of the international institutions in the field of organisation of the judiciary. The choice is not exclusively the fruit of the corporatist purposes of the judges; it also draws inspiration from the example of more recent and modern liberal and democratic constitutions. Evidence of this double origin of the Commission’s orientation is given by the guidelines of the Reports adopted by the Commission on the subject.[208] These Reports present frequent quotations of international documents and of the basic principles of the Western constitutions. The use of these guidelines in the monitoring process of constitutional transitions in Central and Eastern Europe is justified by the general acceptance of the ‘Mediterranean model’ of judicial self-government. In contrast, it should be clear to the readers that the alternative model - entrusting the executive with functions otherwise attributed to judicial self-governing bodies - is consented to only in older democracies, its persistence possibly being explained by the fear of corporatist and seniority practices. In any case, while, in the older states, an appropriate legal culture and tradition have stabilised over a long time, this element is missing in new democracies. These developments have slowly induced a progressive evolution of what was seen as a sort of law derived from a complex of de facto binding norms.[209]
A relevant exception is the case of the Czech Republic, which has not been submitted to the Venice Commission. The Republic refused the adoption of the judicial council model, preferring instead the Central European model of the administration of the judiciary by the executive. This system has seen constant clashes between the legislature, the administration and the judiciary. In recent times, the Czech Republic has slowly became accustomed to the idea of the participation of judges in the exercise of relevant powers in the judicial field, especially with regard to the adoption of disciplinary measures.[210]
Notwithstanding the general preference accorded to the judicial council model, experts are conscious that it entails a clear danger of influence from corporatist prejudices and opinions. Two corrective elements are normally introduced in the configuration of the model, and the Venice Commission has underlined their importance in the elaboration of its position. First, to avoid the danger of corporatism, membership of the judicial governing institution ‘should not necessarily be entirely in the hands of judges’.[211] The presence of members who are not part of the judiciary has to be provided for to ensure the presence of representatives of other state powers or of the academic or professional sectors of society.[212] These members have to be elected by the parliament. This arrangement does not aim to open the doors to the implementation of political guidelines of the parliamentary majority; on the contrary, its purpose is to check the coherence of the activity of the judicial Council with the general interests, so to avoid the prevalence of corporatist factors. Therefore, the basis is set up for a balanced functioning of the judicial self-governing body and for an appropriate exercise of its tasks. Direct participation of the members of the executive in the exercise of the relevant functions should be excluded, with the exception of the possible involvement of the Head of the State. An active role for the Minister of Justice is not advisable.[213]
The correct interpretation of the self-administration of the judiciary requires that ‘all decisions concerning the appointment and professional careers of judges should be based on merit, applying objective criteria within the framework of the law’.[214] As political choices are excluded, the competent body must stick to the relevant objective legislative provisions. The appointed judges shall satisfy general legislative requirements.[215] In an Opinion of 2010, the Commission explicitly quotes Recommendation R (94) 12 of the Committee of Ministers of the Council of Europe, according to which ‘there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned’.[216]
III.