Judicial Independence

The people demand legally correct, transparent, persuasive, and consistent decisions from any court, and this burden is even heavier in the case of constitutional courts. Therefore, we should be able to determine quantitative indicators to evaluate a constitutional court. However, our judgment should not be based on our feelings or personal preferences but on measurable aspects that can also capture the complex nature of judicial decisions. In this research, I propose a methodology that would answer whether a constitutional court is exercising justifiable judicial deference or is, in fact, no longer functioning as a constitutional court. I will test this method by examining some of the decisions of the Hungarian Constitutional Court and thus partly answer the question of whether the Hungarian Constitutional Court has fulfilled its constitutional function in recent years or not.

In recent years, governments associated with populist politics have undertaken bold and systematic court-curbing projects. This paper advances three interrelated claims about these events: 1) the success of court-curbing projects depends on discursive framing—that is, the way in which judicial power is problematised and how attacks on judicial power are rationalised - 2) populist discourse supplies a powerful frame for court-curbing policies - and 3) court-curbing frames succeed to the extent that they resonate with pre-existing beliefs and values relating to courts and judges. In short, the rhetorical affordances of populism help to explain the apparent connection between populist governments and attacks on judicial power and judicial independence.

Constitutional Courts must rely on political and social actors to implement their decisions. In order to ease this acceptance, judges can soften the acceptance of decisions, foster public support and avoid conflicts with political branches. The institutional environment might influence on the Court‘s ability to reach this goal. However, it is not clear how could a Court find tools to employ such strategies in its own institutional design. Even seminal comparative efforts, such Garoupa and Ginsburg‘s comparative theory of judicial reputation, still don‘t provide guidance on how to reach this high status in each specific society. In order to address this shortcoming, it is necessary to employ an empirical in-depth look in the institutional design of several countries. This paper offers a methodological proposal for researches that aim to compare how well-equipped different constitutional courts are to reach this goal and hence to survive politically.

Recent judgments of the I-ACtHR have addressed the issue of the ratification of judges from the perspective of the principle of judicial independence (JI) (Cuya Lavy et al. vs. Peru, 2021 - Moya Solís vs. Peru, 2021). In what sense is the ratification process “materially punitive“, as the Inter-American Court says? Is it a type of judicial disciplinary process or does it have a different nature and scope? Can a country maintain ratification processes in accordance with Am. Conv. H.R.? And how to guarantee that it does not violate JI? The presentation will review the evolution of inter-American case-law on JI, as well as that of the Peruvian Constitutional Court, contrasting them and appreciating points of opposition and complementarity. It will also introduce comparative elements with ECtHR decisions on judicial disciplinary control and JI (for example, Baka vs. Hungary, 2016 - Kovesi vs. Romania, 2020 - Ramos Nunez de Carvalho e Sá vs. Portugal, 2018 - Kudeshkina vs. Russia, 2009).

In response to the illiberal shifts taking place in different EU member states, the CJEU and the ECtHR have developed an abundant case-law in which they establish specific requirements on the independence of the judiciary as a component of the rule of law. While the usual suspects of illiberal shifts are concerned, one may wonder what the impact of this case-law on other EU member states may be. In this paper, it will be argued that, while the European courts‘ recent case-law has emerged in a context of crisis, it should further be scrutinised in the context of all member states, thus consolidating the foundations of a European common legal space where the rule of law is respected. In this context, this paper will use France and Spain as case studies. Indeed, one may wonder whether the procedures and/or practices relating to the composition of the French and Spanish constitutional courts indeed comply with European standards.