Judicial Autonomy Under Pressure: A Critical Analysis of Internal Independence in Administrative Courts

It is self-evident that judicial independence is one of the main characteristics of the Austrian procedural law, being laid down in Art. 87 of the Austrian Federal Constitutional Act. This chapter discusses the Austrian court system with an emphasis on the independence criterion and the three Highest Courts in Austria. Art. 6 European Convention on Human Rights (ECHR) inter alia provides for the impartiality of a tribunal deciding on civil rights and obligations. The current version of the Austrian Federal Constitutional Act provides for three different and equal highest courts: the Constitutional Court, the Administrative Court and the Supreme Court. The Austrian Supreme Court is responsible for safeguarding legal uniformity, legal certainty and the development of the law in criminal and civil matters. Decisions of the three highest courts are final and binding and are not subject to review by any other Austrian court. Keywords: Administrative Court; Austrian Supreme Court; Constitutional Court; European Convention on Human Rights (ECHR); judicial independence

Tortured Reality: How Media Framing of Waterboarding Affects Judicial Independence

Scholars have identified a number of societal features that contribute to the support of human rights. Controlling for the most prominent of these factors, we examine the degree to which judicial independence (JI) exerts an autonomous positive effect on human rights. We use a cross-sectional design, drawing on data for the 27 European Union members and its four prospective members, in conjunction with ordinary least squares (OLS) regression. We find that multiple indices of JI based on expert judgment, which include institutional but predominantly behavioral measures, reveal JI producing the most powerful positive effect in the support of human rights among the variables included in the analysis. Multiple measures of JI based on public surveys of the trustworthiness of a society's judicial institutions exert a positive, but not statistically significant, effect on support of human rights. Indeed, these latter effects are eclipsed by the relative equality of a society's national executive and legislature and its GDP/capita. Surprisingly, judicial review exerts no statistically significant effect on human rights protection, counter to the conventional wisdom that has driven so many constitutional designers in the post-World War II era. Our findings suggest that, while an independent judiciary holds the greatest potential for protecting human rights, constitutional drafters should focus less on institutional elements related to judicial independence and judicial review. Rather, those crafting constitutions intended to protect human rights should look to dispersing government power by enhancing electoral competitiveness and fostering judicial independence.

In 1991, Colombia established a Constitutional Court with expansive powers to protect rights. The power to nominate members of the Court was placed in the hands of the President along with the Supreme Court and Administrative Court. In 2008, fourteen Colombian NGOs formed the Elección Visible, a coalition designed to ensure greater accountability in Constitutional Court nominations by the two higher courts and by the President. In this study I explore the roots of the resulting clash between the Elección Visible and the nominating courts. In my study I concentrated on the nomination process that took place at the Supreme and Administrative Courts, since President Uribe flatly ignored the NGOs demands for more accountability in the nomination process and kept his nomination picks concealed until the very last minute. I show that the conflict between nominating Courts and the NGOs arose when NGO demands for accountability through a more transparent nomination process were resisted by the nominating courts in the name of judicial independence. Moreover, I show that Administrative and Supreme Court's Justices decide whom to nominate according to subjective, political, ideological and personal criteria. In particular, I argue that the Administrative Court relies on a traditional liberal/conservative dichotomy in making its Constitutional Courts nominations, while the judgments of the Supreme Court rely heavily on assessments of loyalty towards the Supreme Court once the candidate is appointed to the Constitutional Court. The cost of admitting these “hidden" nomination criteria publicly in a legal system such as the Colombian—still highly formalistic and based on a model of Judge who adjudicates based only on “the law"—is far too high. Therefore, Justices had strong incentives to conceal the “real" nomination criteria from the efforts by Elección Visible to ensure greater transparency.

Judicial independence is one of the cornerstones of modern constitutionalism. Without an independent judiciary, effective oversight of government action would be impossible, and the protection of fundamental rights and freedoms would likely remain illusory. Importantly, in contemporary Europe, judicial independence can no longer be viewed as solely a matter of domestic law. On the contrary, it is one of the pillars of the transnational European legal order, which is constituted by the standards developed by the Council of Europe and European Union law. These two systems influence each other, as evidenced by numerous references in the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) to one another. These references also concern the interpretation of the notion of judicial independence. This article aims to examine the significance of judicial independence under one of the founding documents of the European legal order, that is the European Convention on Human Rights (ECHR, Convention). The analysis focuses on how the ECtHR interprets the concept of ‘judicial independence’, and the role this safeguard plays within the Convention’s broader normative structure. The central thesis advanced here is that the significance of judicial independence cannot be reduced solely to Article 6 of the ECHR. In fact, it serves a dual function. On the one hand, it forms part of the individual’s right to a court. On the other hand, it serves as a value influencing the interpretation of all provisions of the Convention. The article is divided into two main sections. The first part explores the substance of judicial independence as developed in the ECtHR’s case law. The second addresses the functions of this principle within the framework of the Convention. This section first briefly considers judicial independence as part of a subjective right under Article 6 ECHR, and then examines its broader impact on the interpretation of other Convention rights. The article concludes with a summary of the key findings.

Despite theoretical experimentation, although one cannot speak of a separate post-socialist legal family,1 it is without a doubt that CEE, post-socialist countries – and more precisely, the countries aspiring for EU membership – have had to cope with similar problems since the 1990s. Among the difficulties concerning the transition from dictatorship to democracy,2 a political – or rather, professional – discourse that mostly occurs in constitutional courts and is aimed at the true nature and the method of ensuring judicial independence has been and is now given more emphasis in Western countries as well. Independence from party politics or governmental authority plays an increasingly important role in CEE countries since the collusion of the single-party state and courts frequently had tragic consequences during the Stalinist period3 (the later and milder phase of the dictatorship in some countries was not always associated with an unfailing prevalence of judicial independence either, although direct political pressure could not be detected in a considerable part of legal disputes.4 ) In light of this saddening historical period, it is understandable that the chances of party political aspects that appear are more resounding than usual in post-socialist societies. Such fears are predominant in a narrow social stratum since the system of CEE political traditions, a weakened democratic legacy and frail or malfunctioning autonomies result in indifference towards institutional changes concerning the judicial independence as well. In this study, the most important constitutional foundations of the judicial systems of post-socialist CEE countries are presented. The judicial system of the assessed legal systems is presented by defining the constitutional bases and the rules laid down in the most important laws through the presentation of the literature on the institution. Having clarified the structural issues and the constitutional status of the courts – the central forms of administration – an assessment is conducted as to how well-known aspects of judicial independence and accountability play a role in the administration of justice of a given legal system. At the heart of the analysis is the much-misunderstood concept of judicial independence. Within this, the organisational independence of the judiciary, which determines the relationship of courts with other branches of power, on the one hand, determines the actual margin of appreciation of judges, and on the other hand, it may shed light on the reforms of CEE judicial systems on their way to democracy following dictatorship and the single-party system. The above may also reveal how these systems tried to meet the requirements of European accession and how they responded to societal needs. Although the system of the organisation of the judiciary in post-socialist countries has also undergone changes, mainly due to constitutional amendments aimed to enforce the principle of access to justice, no analysis of the changes is conducted here due to a lack of space. Although we can talk about a broader and narrower meaning of the concept of justice, in this chapter, the situation of CEE legal systems based on the narrower concept is also presented for reasons of length. Thus, we specifically deal with courts, which are the central actors in the application of the law. We also dispense with the presentation of constitutional courts’ activities, to which this volume devotes a separate chapter. At the beginning of this chapter, we conduct an analysis of how the Court of Justice of the European Union and the Council of Europe, which connects the wider Europe, interpret the concept at its heart: judicial independence. Afterwards, we discuss the constitutional fundations and the central administration of courts. As a conclusion, we outline possible ways of development in post-socialist judicial systems.

The enforcement of fair and transparent justice requires a firm guarantee of the principles of fair trial and open justice within the judicial system. These two principles are fundamental to the protection of human rights and serve as essential mechanisms to ensure the accountability of judges as executors of judicial power. This study aims to analyze the implementation of fair trial and open justice principles in judicial oversight practices through the instruments of legal memorandum and public examination (eksaminasi). This research employs a normative method with a statutory and document-based approach. The findings indicate that although not formally regulated as part of Indonesia’s judicial oversight system, legal memoranda and examinations play a significant role in enabling public participation and control over judicial independence and integrity. Strengthening these instruments can serve as an effective strategy to realize an accountable, transparent judiciary that upholds procedural justice.

Judicial independence did not only become more visible in the recent case law of the Court of justice but has also been analysed as a systemic parameter of the Union. This article discusses a sample of three cases, Associação Sindical dos Juízes Portugueses, Achmea, and L.M., to assess the notion of judicial independence as applying regarding the national judges in the judicial system of the Union. Judicial independence, as a notion of EU law, is primarily a constitutional requirement presumably deferent to Member States’ standards and pursuing the proper functioning of the Union’s judicial system, namely its effectiveness. However, the recent case law testifies the emergence of a common EU standard of judicial independence, which does not only apply as a minimum standard throughout the Union but also affects the national legal orders. Ultimately, the analyses of the paper point out a curious harmony regarding judicial independence between the principles of effectiveness of Union law and of effective judicial protection under that law without clarifying their articulation. Judicial Independence, Effective Judicial Protection, Rule of law, Structural Requirement, effectiveness, common standard, Judicial System of the Union, Constitutionalization of the EU.

The article is devoted to the study of the standards of judicial independence and impartiality as key components of the rule of law in the context of Ukraine’s European integration. The authors focus their scholarly analysis on the mechanisms for ensuring judicial independence, the practical challenges faced by the Ukrainian judicial system, and the international legal standards that must be implemented in the national legal framework. The authors emphasize that judicial independence is not only a formal requirement enshrined in the Constitution of Ukraine but also an institutional guarantee for the functioning of a democratic legal order. However, despite the significant progress achieved through judicial reform, numerous violations of the principle of separation of powers persist in practice. These include attempts by legislative and executive bodies to exert pressure on the judiciary, interfere with the adjudication of specific cases, and manipulate judicial appointment and dismissal procedures. The article systematizes the main guarantees of judicial independence: constitutional, institutional, procedural, financial, and others. The authors begin by analyzing international standards of judicial independence and impartiality. In particular, they review the provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Bangalore Principles of Judicial Conduct, among others. Additionally, the authors refer to documents issued by the UN Human Rights Committee, the Committee of Ministers of the Council of Europe, and the Consultative Council of European Judges. Special attention is given to the report of the Venice Commission and to the case law of the European Court of Human Rights. Based on the analysis, the authors outline the core elements of judicial independence, including appointment and dismissal procedures, terms of office, safeguards against pressure, accountability, and the appearance of independence. The article also discusses the objective and subjective approaches to judicial impartiality developed by the European Court of Human Rights. The authors conclude that compliance with the standards of judicial independence and impartiality is crucial for the success of Ukraine’s European integration. At the same time, the article identifies key challenges facing the judiciary in securing its independence. The authors stress that further judicial reform must be based on clear, objective, and transparent procedures for appointing and evaluating judges, strengthening safeguards against interference in judicial activities, and enhancing the legal culture within society.

The deployment of artificial intelligence in legal practice and judicial systems raises a range of ethical and practical challenges that go beyond questions of technical performance. These challenges affect the core values of the legal profession and the judiciary, including confidentiality, professional independence, accountability, procedural fairness, and public trust in the administration of justice. While AI systems are often presented as neutral technological tools designed to enhance efficiency, their integration into legal decision-making processes has a significant influence on professional responsibilities and institutional safeguards. This paper addresses certain risks associated with the use of AI in legal practice and the judiciary, with particular attention to their normative implications. Further, it also analyses the deployment of such systems in Europe based on the provisions of the legally binding AI Act (Regulation (EU) 2024/1689), and the Council of Europe Framework AI Convention (Council of Europe Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law, no. 225, 2024) while taking account of OECD AI Principles.

Judicial independence is a norm presumed to have been settled upon at the founding of the United States. Yet the authority accorded to judges has been a hauntingly provocative topic since the country's inception. Article III of the U.S. Constitution institutionalized the federal judiciary and gave its judges two forms of protection: they can neither be fired nor have their salaries cut. In theory, such insulation from the two other branches of government leaves judges free from political constraints that could undermine their willingness to render impartial judgments based on the merits of each case. But which cases do judges get to decide? And what remedies do they have the power to order? How are they funded, and how many are needed to make meaningful the notion that the judiciary is one of three branches of government? The Constitution left to the other branches the decisions about the number of federal judges and levels of courts. Furthermore, the Constitution makes no mention of budgets, and its provisions relating to jurisdiction are ambiguous. Thus, concerns are raised perennially that judicial independence - as well as the court system that it has helped to spawn - is either overvalued or at risk. One burden of this essay is to contrast the thinness of the constitutional protections with innovations of the twentieth century that have demonstrated a thick political commitment to the deployment of judges in service of national norm enforcement. Given that attention is easily drawn to examples of conflicts among the branches of the federal government, narratives about judicial authority often overlook the cooperative effort that has produced the contemporary federal judicial system. My second purpose is to reflect on how some of the twentieth-century innovations that can be understood to have been sensible adjustments aimed at equipping the administrative state with judicial resources have, nevertheless, undermined practices supportive of judicial independence. The federal system ought not to be considered in the singular. Over the last several decades, Congress has invented new kinds of federal judges (non-Article III judges) lacking life tenure; their dockets are often filled with the neediest of litigants, some of whom challenge governmental action. Yet these lower echelon jurists wielding federal adjudicatory power outside the parameters of Article III are vulnerable to incursions from all quarters. Congress has also created new modes and venues for adjudication that shift decisions from public to private processes in both courts and agencies. Revisions of rules within courts, coupled with the outsourcing of cases to administrative agencies and requirements that litigants use private dispute resolution systems, make public access difficult or impossible. Discussions of judicial independence have not paid much attention to the role played by the public dimension of adjudication that (to borrow from Jeremy Bentham) is the soul of justice that puts judges who preside at trial themselves on trial. In short, the constitutional provisions for judicial independence set forth at the founding of the United States have proved to be sparse and ambiguous. They are capacious enough to support enormous growth as well as to tolerate radical reconfigurations of adjudication.

Purpose The purpose of this paper is to consider and evaluate judicial independence in China, through reviewing the value in its presence, assessing its current state in China and evaluating what the future holds for it. Design/methodology/approach The paper reviews the benefits of judicial independence in its support of the rule of law. Following this, an evaluation of the current independence of the judiciary in China is presented. The reforms of the judiciary in the Fourth Plenary Session and the outlook for judicial independence in China are assessed. Findings The paper finds that judicial independence in China cannot be said to exist, being vulnerable to influence from a variety of sources. There is, however, progress observed, and this is expected to continue. Originality/value This paper’s consideration of judicial independence in China and its outlook are framed with discussions of the relationships between judicial independence and the rule of law, and the Chinese state and the rule of law. The paper should thus contribute to discussion of the development trajectory of China in this important facet.

[only abstract and summary in English; full article and abstract in Lithuanian] The very first law under which Lithuanian administrative courts were established was adopted in 1999. However, the predecessors of the Administrative Court (the Commission of Legal Ministerial Advisors, Complaints and Remanding Commission of the Seimas, State Council) were created in the third decade of the 20th century. Notwithstanding this, these authorities could not match the judicial review of public administrators’ activity. Consequently, the first draft laws on the Administrative Court were drafted in the fourth decade. There were over ten of such drafts but only two remained. The goal of the article is to reveal the content and the background of draft laws on the Administrative Court developed in 1932 and 1940, which were found in the Wroblewski Library Manuscript Division. Summary The predecessors of the administrative court were created in the third decade of the 20th century in Lithuania. Notwithstanding, these authorities could not match the judicial review of public administrators’ activity. It is noteworthy that sometimes the Senior Tribunal performed the functions of the administrative court and reviewed the legality of administrative acts. However, some laws did not provide the possibility to challenge administrative acts in the courts. That was the main reason to create Law on the Administrative Court of the Republic of Lithuania. There were a number of attempts to establish judicial review in Lithuania in various laws: in Constitutions, State Council Statute, Law on the Judicial System. Around 10 draft laws on the Administrative Court were prepared by the State Council and the Seimas Commission. However, these attempts were unsuccessful. The first draft law on the Administrative Court was drafted in 1932 by the State Council. The main proposals of this document were: first, the Administrative Court is an Administrative Division of the Supreme Court of Lithuania; second, the Administrative Court disposes general jurisdiction of judicial review of individual or regulatory administrative acts due to the violation of subjective rights of natural or legal person; third, the Administrative Court is the only judicial instance and before bringing an action into court, a plaintiff must go through all lower review processes. The draft law created in 1940 by the Seimas Commission was almost the same but more detailed in the provisions of administrative process, what is more, the Administrative Court was proposed to be a separate judicial body. The main initiators of the Law on the Administrative Court were two lawyers: member of the State Council, judge of the Senior Tribunal, ad hoc judge of the Permanent Court of International Justice, constitutional and administrative law scholar M. Romeris and Memel Territory Governor, Meyer of Kaunas, member of the Seimas and last Prime Minister A. Merkys.

This research discusses problems on judicial independence in relation to the effort the criminal law enforcement. There are two basic problem in this study, first, how judicial independence in the context of criminal law enforcement is, what the influential factors behind it are and what implication causes are. Second, how the effort made for the reformation of judicial independence toward independence and responsible criminal judicial systems.The approach used for this reseaach is socio legal studies and systems appoarch with philosophical appoach as a complement. Data were collected by interview and distributing questioners, data collected were analyzed using discriptive analytical methods. The law of the degree of judicial independence was caused by miscellanies internal and external factors. Internal factors aimed are factors in the body of system which directly interrelated with judicial system. Whereas external factors are factors which lie out side judicial system. Key words: judicial independence, law enforcement, restructurisation, revitalization of judicial and reform to regulation

This study examines the challenges and progress of human rights and legal reforms in Indonesia, focusing on the country’s evolving legal framework and its alignment with international human rights standards. Using a qualitative research methodology and a literature review approach, the study analyzes various legal reforms initiated since the fall of the authoritarian regime in 1998. It highlights key developments in areas such as freedom of speech, minority rights, and judicial independence, while also addressing ongoing challenges related to law enforcement, corruption, and discrimination against marginalized groups. The research draws upon academic sources, governmental reports, and international human rights organizations to assess the effectiveness of Indonesia’s legal reforms and their impact on protecting human rights. Findings indicate that although significant progress has been made, particularly in legal transparency and democratic governance, Indonesia still faces substantial hurdles in fully realizing its human rights commitments. Issues such as impunity for past human rights violations, restrictions on freedom of expression, and the lack of comprehensive legal protection for vulnerable populations persist. The study concludes that while Indonesia has made commendable strides in legal reforms, further efforts are required to ensure consistent and equitable enforcement of human rights laws across all sectors of society. Recommendations include strengthening legal institutions, enhancing public awareness of human rights, and aligning national laws more closely with international treaties.