Who Sits on the Bench?

In a few countries, there are currently ongoing debates and proposals about whether or not their respective highest judicial bodies interpreting the constitutionality of statutes or other public acts should be subject to explicit or more stringent conflict of interest rules and, in particular, abstentions and recusals. This paper will look at this issue comparatively by focusing on mainland European constitutional courts, by classifying the existing solutions, and by analysing how well these mechanisms function in practice. Overall, this will provide indications on whether or not more stringent conflict of interest rules for constitutional court judges are necessary and why this might be the case.

A common critique towards backsliding member states is the politicisation of judicial appointments. Politicised judicial appointments constitute a risk for the separation of power, since they may impact the judiciary‘s capacity to check executive power. However, political influences on judicial appointment is not only a mark of authoritarian governments, but can also be found in supranational courts like the CJEU. There are a number of ways in which CJEU judges are protected from political pressure, such as the single-voice approach, but broad discretion is given to Member States to nominate “their“ judges. Taking a perspective inspired by Bourdieu‘s theory of practice, I will consider how structural factors of decision-making at the Court can incentivise Judges to converge around shared legal concepts and values. This establishes a practice that encourages use of such concepts in the struggle among the judges, discouraging them from basing decisions on merely political considerations.

Judicial vetting, process also known as “judicial re-evaluation“ and “screening“ has been in theory so far analyzed prevalently as a controversial, but yet efficient means of obtaining transitional justice, especially in the context of the post-communist lustration laws. However, several other theoretical approaches have emerged, which assess the judicial vetting through the lens of 1) human rights abuses - 2) institutional capacity building - 3) signaling (regime change). This paper will focus on the judicial vetting as a means of institutional capacity building of the countries with the “systematic deficiency of the rule of law“ (Bogdandy). The case studies will be Serbia and Albania which both underwent significant judicial reforms in order to conform to the EU Accession Chapters and Copenhagen criteria. The aim of the paper is to critically assess the aims but also the effects of judicial vetting in the larger context of the adherence to the values of the European Union.

The purpose of the institution of immunity is to ensure that judges are free to exercise their powers and to guarantee their impartiality. The author will present various models of immunity protection for judges and consider whether it is possible to define the minimum requirements in this respect. The author will examine the extent to which judges should be protected from legal liability for acts related to their performance of their duties and whether immunity in criminal cases, concerning actions outside the courtroom may be seen as an essential element of the judge's status. The author believes that defining a universally accepted standard of judicial immunity is important from a theoretical and practical point of view for a proper understanding of the concept of judicial independence.