Supervision over Courts and Judges

Introduction

An independent judiciary is a precondition for every analysis concerning the judicial adjudication of effectiveness, let alone professionalism. If courts are not impartial and judges are not independent, then the court’s judgments will not create legal certainty and the fundament elements of the rule of law will not be stable. Though the role of judicial independence is stressed in many acts of international law, including Article 6 of the European Convention on Human Rights¹ and Article 47 of the Charter of Fundamental Rights of the EU,² for many legislators compliance with basic standards seems to be difficult.³ In the era of populism, courts may be forced to serve as partners in cooperation with politicians, as the latter attempt to create an alternative world. In such circumstances, judicial independence depends not on structural guarantees, but solely on the internal attitude of each judge.

A significant instrument which has a lot in common with judicial independence and trust in the courts is supervision over the judiciary. Understood broadly, this term denotes the scope of legal measures which can make the courts’ adjudication more effective, in the sense of ensuring better protection of individual rights. It is an indispensable element in any analysis concerning the internal organisation, management and administration of the courts. Though supervision may be used for negative purposes, as a tool for the courts’ subordination, it has great positive potential for a more professional organisation of the judiciary.⁴ The aim of this book is to present the conditions under which ←7 | 8→the positive role of supervision can be performed, and to shed light on what conditions have to be fulfilled in order to achieve the goal of creating an impartial and professional judiciary system. When analysing the positive significance of supervision, it will be beneficial to know how supervision can help judges in adjudication, and in which way this process can be organised more quickly and effectively.

The effectiveness of judicial review is essential for the protection of the rights of the individual and the functioning of the state authorities in both the social and the economic realms.⁵ From an extrajudicial viewpoint, its significance is reflected in the influence on the judiciary, which will not only be effective in its procedural activity but also in the level of trust and social prestige.

Another justification for this study is the increasingly important role of the judiciary in modern democratic societies. The direct expression of this is the gradual rise in the number of cases filed with the courts.⁶ This increase is consistent with the growing expectations of citizens with regard to courts and judges, both in terms of the need to improve the efficiency and speed of the court proceedings, and to strengthen the assurance of objectivity in resolving disputes.

The basic research areas tackled in this publication concern such issues as: a detailed definition of supervision over courts and judges; the differences between various components of this supervision, mainly administrative and judicial; the scope of the supervision and the entities which are responsible for exercising it; the measures of supervision which are present in selected legal orders; the ←8 | 9→adoption of new technologies into the internal court organisation; and the trust placed in the courts. The analysis seeks to specify the boundary beyond which supervisory powers should not be exercised.⁷ It is also necessary to analyse what areas of court action should be free from supervision. Hence, there are also other questions addressed in this study, such as: How does the regulation of supervision affect the judge’s status and personal position? What is the relationship between the legal regulation of supervision and the financial independence of the courts? How does the legal regulation of supervision affect the level of trust which the courts have in a society?

It is understandable that the courts, which are organs of personal and material resources, must have their own administration. Nevertheless, administrative supervision should not enter the judicial area. Thus, it is justified to raise the question of the possibility of separating the judicial sphere from the administrative activities of the courts. Where is the boundary between them, if it is possible to designate it at all? In what areas of the courts’ activity is administrative supervision indispensable, and when does this supervision begin to have an inappropriate influence on the decision-making role of the courts? What might the consequences be, in the event of non-compliance, or if supervision does not cover all areas of the courts’ actions?

The analysis will be of an interdisciplinary, normative, and sociological nature, and will be presented from various points of view, including numerous insights into international and national legal systems with varied legal histories and cultures, such as Austria, Denmark, Germany, Poland, Slovakia, and Sweden. In the presented legal orders, there are various entities responsible for supervision over courts and judges. The measures of supervision are different. The level of trust placed in the courts varies between 40 % in Poland and Slovakia, to more than 80 % in the Scandinavian countries.⁸ A closer look at the legal systems in other countries facilitates a better understanding of the domestic structures and enables the identification of common solutions for different legal orders. Presenting the different forms of administrative supervision that operate in different legislative systems will allow the advantages and disadvantages of native legal solutions to be highlighted. In this respect, special consideration will be ←9 | 10→given to the law in action. The study compares analogous situations that have arisen before the courts of the countries in question.