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As a general assumption, the presence of an independent, honest and competent judiciary in the so-called rule-of-law countries benefits both the protection of citizens’ rights and economic growth. This essay aims to give a definition of the judicial independence principle in the People’s Republic of China. To this end the author describes the general understanding of the principle within the Western legal tradition, stressing the importance of different guarantees embraced within given societies. Due consideration is given to judicial tenure and the appointment and salaries of judges.After an historical introduction this understanding is used as a yardstick to gauge the Chinese system. Not surprisingly, the Chinese judiciary cannot be yet considered independent, notwithstanding the undeniable progress made in the last decades. The subsequent explanation of the achievements of the Chinese judicial reforms are therefore instrumental in explaining that, in the Chinese context, it would be more appropriate to refer to judicial impartiality than to judicial independence. Without political reform, the Chinese judiciary will always be dependent on the legislative, in accordance with Chinese traditions and the country’s political structure. In conclusion, even if it is still not possible to use the term “judicial independence”, as understood in the West, judges’ professionalism appears to be a suitable tool for achieving a more reliable and impartial judiciary.
This study investigates the relationship between dimensions of judicial independence and judicial review in constitutional courts Central and Eastern Europe and the Former Soviet Union. In part a modified replication of prior works examining the issue, the study uses newly collected data from a panel of ten countries. It examines the relationship of judicial review with: (1) judicial independence (using both measures employed by the prior works, corrected versions of those measures, and measures original to this study); (2) political and social contextual factors; and (3) the receptiveness of post-communist countries to the importation of transplanted legal institutions. Improvements on the conceptualisation of judicial independence, inclusion of the dimensions of receptiveness, and a more appropriate panel of countries enable this study to present a more complete and accurate portrait of constitutional judicature in transition contexts. The results show that while corrections to prior measures of judicial independence improve the results at the margin, the entirely new measures of the concept represent a greater step forward. Several dimensions of judicial independence are positively related to judicial review, as are the measures of countries’ receptiveness to legal transplants. Other key factors positively related to judicial review in transition include legislative fragmentation at the time of each court decision, the scope of rights guarantees in a bill of rights, and popular trust in courts. Presidential power is negatively related to judicial review. The findings further indicate that aside from judicial independence, the prior works do present correct portrayals of most of the contextual influences they investigate.
In a recent judgment in the Efstathiou case, the Assize Court of Nicosia, Cyprus, acquitted ten Policemen charged with criminal offences related to alleged beating in 2005 of two Cypriot students. That verdict led to spontaneous reactions across the country, with people publicly protesting against and criticizing the judiciary. Among those that made scathing public comments were the Attorney-General of Cyprus and senior Cypriot lawyers. In its judgment, the court had suggested that media comments about the case unduly interfered with the fair trial of the case and amounted to contempt of court. On the whole, this case raises the issues of independence of the judiciary, trial by media and fair trial. There are two opposing views on the propriety or otherwise of the media coverage of the case as well as on whether, and if so, to what extent, the judiciary can be properly criticized. Essentially, this article seeks to consider the issues of judicial independence, trial by media and fair trial as well as the closely associated issue of contempt of court arising from the Efstathiou case and in relation to the common-law rooted Cypriot legal system. It argues that the right to fair trial is an inseparable part of a democratic society and that while the right to freedom of expression is a fundamental human right and undoubtedly the bulwark of a democratic society, it is not realizable without an independent judiciary which is equally indispensable in a democratic society. Hence, there is a great need to recognize the limits of the right to freedom of expression in order to sustain the independence of the judiciary and ensure the right to a fair trial.
). Finally, the post-2010 case law will be presented with special regard to legislation and legal certainty ( Section 4 ), and judicial independence ( Section 5 ). 2 The Democratic Rule of Law State under the Constitution
This paper discusses the different models of appointment applied for constitutional judges in Europe, taking into consideration also the appointment procedure of the two European regional courts. It offers an account and a comparative analysis of the three appointment models: the split, the collaborative and the parliamentary model, discussing their practical application and shortcomings. In particular, the paper deals with the question of how to avoid standstills in the different appointment procedures and with the publicity of these procedures. The author concludes with a proposal for the Hungarian Constitutional Court, arguing that the split model is the one that ensures better that the composition of the Court expresses a balance between the branches of government.
The study presents how the system of legal protection since the turn of the 1980sand 1990s, as a consequence of the changed international, political and economic circumstances, has been transformed in Hungary according to the requirements of a modern constitutional state. Giving information on the relevant historical-legal antecedents in Hungary, the then arising practical exigencies and different recently applied models in Western democracies, taken as starting points during the elaboration of the reform, the pros and cons of the latters,the study analyses the solutions introduced at the time of the change of the political-economicregime, their later developments, as well as the present-day system of legal protection in Hungary, making mentions of problems, too, which arise in some respects even nowadays. Taking all these into account, a comprehensive information is given in thestudy on the establishment of the Parliamentary Commissioners for Civic Rights and of the ConstitutionalCourt in Hungary, on the prosecutor's (procurator's) offices and courts of justice, focusingon the relating constitutional principles, their organisation, competences, guarantees of independenceand staff problems alike.
Abstract
Hate crimes poison societies by threatening individual rights, human dignity and equality. They effect private lives, or even victims’ life and limb. Due to their ripple effect, they terrify whole communities, reinforce tensions between social groups, ultimately jeopardising peaceful coexistence. No society is immune from the signs of hatred, but whether they get tamed or whether prejudices are deepened, depends on the social measures that are applied vis-à-vis the phenomenon. The state’s reaction creates norms and will informs society about the current acceptable standards. European expectations help forming these. Standards developed by the European Court of Human Rights include the obligations to ensure that hate against social groups as a motivation is considered an aggravating circumstance or leads to penalty enhancement. States must also ensure that national investigation authorities show special vigilance to explore and unmask the bias motives behind hate crimes. Such European expectations still leave a wide room of manoeuvre to respond to hate crimes efficiently and dissuasively. But irrespectively of the national codification method, for legal provisions to reach the desired outcome, certain social preconditions must be met. For hate crime laws or provisions to work, states must reach a certain level of maturity from the viewpoint of democracy, fundamental rights in general and the rule of law, where guaranteeing judicial independence is an absolute minimum.
. , ‘Telling Stories out of School. An Essay on Legal Narratives’ ( 1993 ) 35 Stanford Law Review 807 – 855 . Fleck , Z. , ‘Judicial Independence and Its Environment’ in
changes unconstitutional resulted in the Commission lodging an infringement procedure on the basis of Art. 258 TFEU. In Commission v Hungary , the CJEU carefully avoided a single mention of the judicial independence notion in the judgement. At this point
Judiciary and on the Ordinary Courts Organisation, raising grave concerns as regards judicial independence. 29 The dialogue conducted with Polish authorities within a period of two years proved to be
