Fully independent and impartial justice systems are crucial to ensure that justice works to the benefit of citizens. When the political parties in power try to influence the selection of judges for political purposes, especially at the highest level, they put the effective protection of the rights of citizens in danger. Therefore, it is very concerning that according to Liberties’ 2024 Rule of Law Report in many Member States the selection of the highest officials of the justice system continues to be very politicised.
A very clear sign of rule of law backsliding is the ruling parties’ attempt to manipulate the composition of the courts in their country, including the constitutional court and the supreme court(s). This is how it all started in Hungary.
Judiciary serving the interests of the Government: the cautionary example of Hungary
One of the very first measures taken by the Orbán-government after its entry into office in 2010 was to undermine the independence and autonomy of the judicial organs, among others, by influencing their membership. Due to the changes in the process of election of constitutional court judges and the increase of the number of seats at the court, the members selected by the ruling parties became the majority at the Constitutional Court by Spring 2023. The Fidesz Government has also relentlessly tried to fill up the judiciary with politically loyal judges by terminating the mandate of Chief Justice Baka before its expiry, by forcing hundreds of judges, including justices of the Supreme Court, into early retirement, by reorganizing the system of administration of the judiciary and granting wide discretion to the President of the new National Office of the Judiciary in the selection and promotion of ordinary judges and the appointment of court leaders, by authorizing members of the politically captured Constitutional Court to continue their career as ordinary judges, and by electing the current Chief Justice, Mr. Varga, in a highly politicised process despite the objection of the National Judicial Council.
The reduced independence of the justice system had a negative impact not only on the judicial oversight of the political branches but also on the protection of the rights of citizens. For example, in 2021 the Hungarian government called for a referendum targeting the LGBTQ+ community. Even though the referendum questions were manifestly unlawful and served pure propaganda purposes, due to the concerted efforts of the Supreme Court and the Constitutional Court, the political will of the Government prevailed at the expense of the rights of sexual minorities.
Continued politicization of the judicial selection process in the Member States
Court packing has become such a serious problem in recent years in Hungary and Poland that it prompted the EU bodies to use the heavy weaponry of their rule of law arsenal, including infringement procedures and the freezing of EU fund, to remedy, or at least mitigate, the systemic violation of judicial independence. However, the politicisation of the judicial selection process, especially regarding the highest courts, is a long-standing and widespread defect of the justice system in many Member States. In previous years the Commission detected worrying issues, most notably, in Austria, Bulgaria, Cyprus, Greece, Ireland, Latvia, Malta, Slovakia, and Spain.
Liberties’ Rule of Law Report 2024 shows that in several Member States, challenges remain regarding the selection of officials occupying the highest positions in the justice system. In France, the recent trial of the sitting Minister of Justice raised concerns again about the impartiality and independence of the Court of Justice of the Republic, tasked with adjudicating criminal cases brought against members of the government, on the ground that it is composed largely of members of Parliament. In Greece, the highest officials of the justice system, including the President and Vice-President of the Council of State, the Supreme Court and the Court of Audit, are still selected exclusively by the political branches. In Germany, decisions on the promotion of judges – in particular the selection of court presidents and judges in the federal courts – are still made by members of the state or federal government in cooperation with parliamentary bodies, not by the judiciary itself. In Bulgaria, two seats at the Constitutional Court remained vacant due to power struggles between the governing parties.
Some Member States also failed to guarantee the autonomy of judicial councils, which often play a key role in the administration of the justice system and the selection of judges. In Bulgaria, experts call for the selection of new members of the Supreme Judicial Council and the Supreme Prosecutorial Council in a transparent process free from procedural irregularities. In Slovakia, the non-judicial members of the Judicial Council were replaced by the new government immediately after the elections with no justification, which again raised doubts about the political branches’ influence on the membership.
A glimmer of hope: positive signs in the Member States
Nevertheless, it is a positive development that some Member States have taken steps to depoliticise the judicial selection process, including the membership of their respective judicial council. In Croatia, the membership of the Constitutional Court underwent a significant change, but this transformation occurred in a relatively transparent process: the President of the Republic proposed seven candidates for the vacant positions based on the recommendation of his advisory panel composed of a diverse set of institutions, and five nominees were confirmed by the Senate. In Sweden, legislative measures were put in place to eliminate the government’s influence on the composition of the Board of Justice, responsible for the nomination of judges, although the entry into force of the changes has been delayed. These examples show that if there is political will, it is possible to a strike a balance between guaranteeing the democratic legitimacy of the judiciary and refraining from exercising political influence on the selection of judges.
Resources
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