Judicial Independence in Europe

• Understanding to what extent judicial independence is adhered to in various jurisdictions requires a theoretical framework of what the principle entails. On a preliminary analysis, the principle can be said to require the following: judicial systems must be free, in fact and appearance, from any undue influence that might prevent judges from adjudicating legal disputes solely on the basis of their legal merits. • Analysis of the various institutional arrangements for the judiciary in Sweden, Italy and Germany will help to determine whether these countries adhere to the principle of judicial independence as outlined above. It will also help to get a clearer view of what the principle properly entails on a supranational level. • Appointments procedures are similar in the various jurisdictions as judicial candidates have to undergo a lengthy period of training and pass public examinations or application processes. In Germany and Sweden judicial appointments are ultimately decided by the executive with a limited role for independent councils for judicial appointments. In Italy the Consiglio Superiore della Magistratura (CSM), a judge led body, is responsible for the appointment process. • Constitutional law and ordinary legislation sanctions direct undue interference with the adjudicative function of judges. Thus, in all three countries, the tenure, remuneration and jurisdiction of the courts are guaranteed and only subject to specified restrictions. Criminal law also prohibits bribery, acts and threats of violence against judges. • In none of the three countries are judges immune from disciplinary, criminal and civil liability in the exercise of their judicial functions. Disciplinary measures are heard by courts in Germany and Italy but heard by the National Disciplinary Board, a public agency, in Sweden. However, appeals from the Board are heard by a court. Liability cannot generally be incurred for interpretation and application of the law, unless done in a grossly negligent or malicious manner. The State is always responsible for paying damages for judges held civilly liable with a limited possibility of recourse against the liable judges. • The relationship between the judiciary and politics varies in the various jurisdictions. In Sweden the judiciary has a general deferential attitude towards political actors. In Italy the judiciary and the Berlusconi government have had a very conflictual relationship. In Germany the judiciary, especially the Constitutional Court, contributes to the development of public policy. • In all three jurisdictions political and judicial roles are considered incompatible, so that judges cannot …