Independence of the Judiciary: 10 Years Freedom Barometer | fnst.org

Independence of the Judiciary: 10 Years Freedom Barometer

The Achilles Heel of the Rule of Law
Analysis09.11.2020Dušan Gamser
Freedom Barometer - Independence of the Judiciary
Independence of the Judiciary Freedom Barometer

The weak point of the rule of law is that almost everywhere the judiciary is dependent on extra-legal influences, be it from the executive or legislative branch of government, or various interest groups – political, religious, business, or criminal – or just outright corruption. Breaking the law, or more often, the selective application thereof by judges or prosecutors leads to a climate of legal uncertainty, impunity by the political, economic, religious, criminal or other elites, creates an uneven playing field for competition by political parties in the election process or by commercial companies in the market, and even creates different levels of legal protection that ordinary people enjoy in daily life, all to the detriment of freedom – political, economic, and individual.

Most of the countries monitored by the Freedom Barometer launched some kind of judicial reform during the past decade. But, the results were almost everywhere meagre, or in some cases (e.g., Serbia) these attempts at reforms (most notably those at the beginning of the decade) even worsened the situation and discouraged future would-be reformers, or gave them an excuse to continue business as usual. Some countries initially advanced rapidly in reforming the judiciary in order to achieve strategic foreign policy goals (such as Croatia prior to its entry into the EU in 2013), but after that they regressed, with their judiciaries again showing signs of heavy dependence on vested political or economic interests.

Freedom Barometer - Changes in the Independence of the Judiciary Score by Country
Changes in the Independence of the Judiciary Score by CountryFreedom Barometer

ONCE IN THE EU – BACK TO THE OLD WAYS OF JUDICIAL DEPENDENCY?

Very few countries showed considerable improvement in this field during the past decade, with perhaps Georgia and Kyrgyzstan being the only good examples. The biggest challenges were faced in Hungary and Turkey, with the rise of populist leaders for whom one of their first tasks was to limit judicial autonomy and put it under the stricter control of the executive branch of government. In Poland, similar attempts faced strong opposition by civil society, thus the damage done there so far has been smaller. In Armenia and North Macedonia, it remains to be seen whether the political changes made during the second half of the decade will bring more judicial independence and efficiency, and thus a better situation regarding the rule of law.

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