Experts from the Judicial Studies Institute at the Faculty of Law are working on the ERC’s INFINITY project. In March of this year, they also published a special issue of the German Law Journal mapping informal institutions in the judicial systems of 13 European countries.
“In the previous project, we studied mainly the formal side of courts’ functioning. That is, what the constitution and statutes say and how they regulate judicial administration, the selection and promotion of judges and disciplinary proceedings involving judges. Over time, however, we found that this did not give us a complete picture of how judiciaries work in practice,” says David Kosař, the principal investigator for the project, who received a prestigious ERC grant for this research.
His colleague, Katarína Šipulová, adds that they realized the importance of informality when analysing the selection of judges. “You can, of course, look at the legal regulation of this process, but it often paints only a partial picture. When we talked to actors involved in the selection of judges, we found that the success of the candidates often depends, for example, on which law school the person went to. In many countries, the social status of the candidate or family ties also play an important role.”
The judiciary as a target for autocrats
As part of the INFINITY project, researchers are studying the general courts, focusing on the highest judicial authorities – supreme courts and supreme administrative courts, as well as constitutional courts. “There are two main reasons for this. When autocratic leaders come to power in a country, they follow a similar playbook. One of their first acts is to try to take control of, or at least paralyse, the highest courts, which are often responsible for reviewing laws and election results, or dealing with important criminal cases and cases involving public procurement,” Kosař says, adding that the apex courts are also the most scrutinized, for example, by the media, which report on what happens in and around them and on individual members of these institutions.
The media, which write about specific court cases and particular judges, are also an important source of information for research. Most important, however, are interviews with judges, journalists who cover the judiciary, people from NGOs and those who work at the Ministry of Justice. “We are specifically studying ten EU countries, but we are also looking at the situation in Israel, Ukraine and Georgia. We had experts in each country who gave us an insight into the functioning of the judiciary in that country and also identified areas where we could look for informal networks and unwritten rules in the system,” adds Šipulová.
The research team has already completed most of the planned interviews, but as this is a five-year project there are always new challenges, such as elections that have a significant impact on one of the countries being studied (as happened in Slovakia last year) or gaps in the data that need to be filled by further interviews.
And because the informal institutions that influence the functioning of judiciaries in EU countries have not yet been studied in depth, David Kosař’s team is constantly discovering new insights, questions and challenges. “I have to admit that I was really taken aback by the sheer number of barriers to entering the judiciary in some countries – how complicated the path to becoming a judge is, and how the much applauded ‘open justice’ is really accessible to only a narrow range of people,” Šipulová notes.
The barriers are different in each of the countries surveyed, but they exist everywhere. In Spain, for example, a candidate who wants to become a judge has to study intensively for the judicial examination every day for between three and five years, without any financial compensation. Only people from the upper classes can afford such expenditure, and this in turn affects the way in which certain types of court cases are decided, or how courts and judges are perceived by different strata of society. Slovakia, on the other hand, has long had a kind of “it stays in the family” (rodinkárstvo) informal system, where people with relatives serving as judges have a statistically greater chance of getting judgeships themselves. “The key selection criteria are of course typically laid down by law, but even in the Czech Republic we know of a number of unwritten rules that influence the outcome of selection. For instance, candidates might be at an advantage by reason of the university they studied at, the internships they did during their studies, the court they completed their training at, and the members of judiciary they met or cooperated with, and so on,” says Šipulová.
Czech “superjudges”
These informal aspects create an environment in which the best people do not always make it into the judiciary. In the worst-case scenario they can even make the courts more susceptible to strong political influence or control. International comparison is essential – the uncovering and understanding of informal practices may reveal that laws that work in one country will not work in another, precisely because of unwritten rules and informal ties within the judiciary.
Informal practices naturally do influence the judiciary in a given country and may, for example, lead to the promotion of the views of only a small group of people who have a great deal of such influence. Researchers have also come across the phenomenon of so-called “superjudges” in the Czech Republic.
“These are judges who have a much greater influence on the legal system than their colleagues, even though according to formal rules they should not. ‘Superjudges’ gain a great deal of power. They not only interpret the law as a part of the decision-making at the apex courts, but they also help to write the laws based on which they later decide cases, and potentially also participate in judicial training courses on applying the very same laws. It is a sort of ‘one man show’. There are several risks associated with this. The first is that the person in question brings his or her own biases into the whole process and presents them as objectively true, and the second is that there is often little or no room left for a plurality of opinions or critical reflection, which creates an environment that is resistant to new ideas,” Šipulová explains.
The researchers do not want to pass judgement on the superjudges. Whether a positive or negative phenomenon, their emergence depends, among other things, on the size of the country – smaller states in particular may often not have enough experts in all areas of law. The researchers, however, want to warn us about the risks and show how to address this challenge. For example, the legislature should set up teams to draft important pieces of legislation which are led by people from outside the judiciary. Education is also very important, they say, and should make future members of the judiciary aware of the limits of their work and have them internalize the ethical rules for exercizing their profession.
“Of course, it is not just about university education, but about the values of society as a whole, the political culture and, very importantly, public confidence in the judiciary. This in turn is influenced by the media, but also by the courts themselves, which are beginning to be more proactive and open in this area. They organize various events for children and adults, some of them even have Instagram accounts, and they try to explain law and justice to the public so that they can rely on public support if someone threatens the independence of the judiciary or even basic constitutional rights,” Kosař concludes.