¹ The Consultative Council of European Judges (Conseil consultatif de juges européens, hereinafter also “CCJE”) and the European Network for the Councils of the Judiciary (hereinafter also “ENCJ”) have been particularly active in this area.Google Scholar

² The number of the Venice Commission's Opinions concerning judicial self-governance is so high that I cannot enumerate them here. For a broader understanding of the role of the Venice Commission in this area, see De Visser, Maartje, A Critical Assessment of the Role of the Venice Commission in Processes of Domestic Constitutional Reform. 63(4) American Journal of Comparative Law 963–1008 (2015); and Volpe, Valentina, Drafting Counter-majoritarian Democracy. The Venice Commission's Constitutional Assistance, 76(4) Heidelberg Journal of International Law 811-843 (2016).Google Scholar

³ For rare exceptions of scholars who engaged with this topic much earlier, see Renoux, Thierry S., Les Conseils superieurs de la magistrature en Europe (1999); Guarnieri, Carlo & Pederzoli, Patrizia, The Power of Judges: A Comparative Study of Courts and Democracy (2002); and Voermans, Wim & Albers, Pim, Councils for the Judiciary in EU Countries, European Commission for the Efficiency of Justice, CEPEJ (2003).Google Scholar

⁴ See e.g. Davis, Christian, Polish MPs pass judicial bills amid accusations of threat to democracy, The Guardian (Dec 8, 2017), https://www.theguardian.com/world/2017/dec/08/polish-mps-pass-supreme-court-bill-criticised-as-grave-threat; Kingsley, Patrick, After Viktor Orban's Victory, Hungary's Judges Start to Tumble, The New York Times (May 1,2018), https://www.nytimes.com/2018/05/01/world/europe/hungary-viktor-orban-judges.html;; Shotter, James & Huber, Evon, Poland's top court steps up its challenge to judges being ‘purged', Financial Times (Aug 2, 2018), https://www.ft.com/content/7965ad18-9658-11e8-b67b-b8205561c3fe; and Novak, Benjamin & Kingsley, Patrick, Hungary Creates New Court System, Cementing Leader's Control of Judiciary, The New York Times (Dec 12, 2018), https://www.nytimes.com/2018/12/12/world/europe/hungary-courts.html.Google Scholar

⁵ See e.g. the projects of the Organization for the Security and Cooperation in Europe (https://jobs.osce.org/vacancies/expert-judicial-self-governance-vnodic00667), the European Committee on Legal Co-operation(https://www.coe.int/en/web/cdcj/co-operation-projects/judicial-self-governance-training-azerbaijan); and the International Commission of Jurists (https://www.icj.org/new-icj-report-analyses-the-transition-to-judicial-self-governance-in-serbia/). See also projects of the CCJE and ENCJ.Google Scholar

⁶ See Çalı, Başak & Cunningham, Stewart, Judicial Self Government and the sui generis case of the European Court of Human Rights, in this issue; and Krenn, Christoph, Governing the European Court of Justice: Self-governance as a Model for Success, in this issue.Google Scholar

⁷ See Śledzińska-Simon, Anna, The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition, in this issue.Google Scholar

⁸ ECJ, 27 February 2018, Case C-64/16 Associação Sindical dos Juízes Portugueses. For further details see Bonelli, Matteo & Claes, Monica, Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses, 14(3) European Constitutional Law Review 622–643 (2018).Google Scholar

⁹ Case C-216/18 PPU, Reference for a preliminary ruling from the High Court (Ireland) made on 27 March 2018 — Minister for Justice and Equality v LM. For an in-depth discussion of this judgment, see a symposium on VefBlog at https://verfassungsblog.de/category/focus/after-celmer-focus/.Google Scholar

¹⁰ Interim Order of the Vice-President of the ECJ in Case C-619/18 R Commission v Poland, 19 October 2018.Google Scholar

¹¹ See Kosař, David & Lixinski, Lucas, Domestic Judicial Design by International Human Rights Courts, 109(4) American Journal of International Law 713–760 (2015).Google Scholar

¹² Denisov v Ukraine, Eur. Ct. H. R. (Judgment of 25 September 2018, app. no. 76639/11) (concerning the president of the influential Kyiv Administrative Court of Appeal).Google Scholar

¹³ Nunes de Carvalho, Ramos e Sá v Portugal, Eur. Ct. H. R. (Judgment of 6 November 2018, apps. nos. 55391/13, 57728/13 and 74041/13) (concerning the disciplining of a judge of the first instance court, the composition of the Portuguese High Council of the Judiciary, and the powers of the President of the Supreme Court of Portugal).Google Scholar

¹⁴ See Commission, Venice, Romania. Preliminary Opinion on Draft Amendments to Law no. 303/2004 on the Statute of Judges and Prosecutors, Law no. 304/2004 on Judicial Organization, and Law no. 317/2004 on the Superior Council for Magistracy, CDL-PI(2018)007 of 13 July 2018; and Selejan-Guţan, Bianca, Romania: Perils of a “Perfect Euro-Model” of Judicial Council, in this issue.Google Scholar

¹⁵ Çalı, Başak & Durmuş, Betül, Judicial Self-Government as Experimental Constitutional Politics: The Case of Turkey, in this issue.Google Scholar

¹⁶ See Kingsley, , supra note 4.Google Scholar

¹⁷ See Novak, & Kingsley, , supra note 4.Google Scholar

¹⁸ See O'Regan, Michael, Judicial appointments Bill passes in Dáil and now goes to Seanad, The Irish Times (May 31, 2018), https://www.irishtimes.com/news/politics/oireachtas/judicial-appointments-bill-passes-in-d%C3%A1il-and-now-goes-to-seanad-1.3515540?mode=amp.Google Scholar

¹⁹ Steinbeis, Maximilian, Festa della Repubblica, Verfassungsblog, (Jun 2, 2018), https://verfassungsblog.de/festa-della-repubblica/.Google Scholar

²⁰ See Śledzińska-Simon, , supra note 7; Çalı & Durmuş, supra note 15; and Kosař, David & Śipulová, Katarína, The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law, 10 Hague Journal on The Rule of Law 83 (2018).Google Scholar

²¹ Note that, on reflection, I simply prefer the term governance to government as the former is better for studying judiciaries beyond the state and signifies a change in the meaning of judicial self-government, referring to new processes of governing the judiciary, changed conditions of ordered rule, and new methods by which society is governed. Due to the limited space, I cannot engage with this conceptual debate here. Importantly, I did not impose this view on the contributors to this special issue (some of them use judicial self-governance, while others prefer judicial self-government or even use both terms). Please keep this in mind when reading this special issue.Google Scholar

²² See Part C for further details.Google Scholar

²³ I am aware that judicial self-governance at these courts raises different issues and often differs significantly from the judicial self-governance of ordinary courts. But these differences can also be abused, see the creation of the new parallel system of specialized administrative courts in Hungary (analyzed by Novak & Kingsley, supra note 4).Google Scholar

²⁴ Even though, as you will see below, especially the Mediterranean jurisdictions consider prosecutors on par with judges and often involve both groups in joint judicial self-governance bodies.Google Scholar

²⁵ See Part C.Google Scholar

²⁶ See e.g. judicial councils in the Netherlands and the de iure also in Slovakia.Google Scholar

²⁷ See e.g. judicial councils in Spain and France, and the Judicial Appointments Advisory Board in Ireland.Google Scholar

²⁸ See e.g. judicial councils in Italy, France, and Romania.Google Scholar

²⁹ See e.g. judicial councils in Italy and Turkey.Google Scholar

³⁰ See e.g. judicial councils in Poland and Spain.Google Scholar

³¹ This was the case in the Judicial Council of the Slovak Republic between 2003 and 2014 (see Spáč, Samuel, Śipulová, Katarína & Urbániková, Marína, Capturing the Judiciary from Inside: The Story of Judicial Self-Governance in Slovakia, in this issue). See also Ireland, where court presidents are the only representatives of the judiciary on the Judicial Appointments Advisory Board (see O'Brien, Patrick, Never let a Crisis go to Waste: Politics, Personality and Judicial Self-Government in Ireland, in this issue).Google Scholar

³² See para. 2 of Resolution CM/Res(2010)26 on the establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights (2010).Google Scholar

³³ Actually, several contributions to this special issue show that domestic understanding of judicial self-governance can be much narrower.Google Scholar

³⁴ I did not impose this view on the contributors to this special issue nor do I want to do so on the readers.Google Scholar

³⁵ Vauchez, Antoine, The Strange Non-Death of Statism: Tracing The Ever Protracted Rise of Self-Government in France, In this issue; Garapon, Antoine & Epineuse, Harold, Judicial Independence in France, in Judicial Independence in Transition 273, 285-286 (Anja Seibert-Fohr ed., 2012).Google Scholar

³⁶ See Benvenuti, Simone & Paris, Davide, Judicial Self-Government in Italy: Merits, Limits and the Reality of an Export Model, in this issue.Google Scholar

³⁷ See Mak, Elaine, Judicial Self-Government in the Netherlands: Demarcating Autonomy, in this issue. However, note that the Netherlands cannot be easily squeezed into the judicial council model – it introduced the Council for the Judiciary, but powers concerning appointing, promoting and disciplining judges do not lie with the Council for the Judiciary, but sometimes with the government, sometimes with the judiciary authorities, and sometimes they are shared.Google Scholar

³⁸ de Carvalho, Ramos Nunes e Sá v Portugal, supra note 13; and especially concurring opinion of Judge Pinto de Albuquerque therein.Google Scholar

³⁹ See Pérez, Aida Torres, Judicial self-government and judicial independence: the political capture of the General Council of the Judiciary in Spain, in this issue.Google Scholar

⁴⁰ Çalı & Durmuş, supra note 15.Google Scholar

⁴¹ See Selejan-Guţan, , supra note 14; Avbelj, Matej, Contextual Analysis of Judicial Governance in Slovenia, in this issue; Śledzińska-Simon, supra note 7; and Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

⁴² For explanation why Czechia is a “black sheep”, see Blisa, Adam, Tereza Papoušková & Marína Urbániková, Judicial Self-Government in Czechia: Europe's Black Sheep?, in this issue.Google Scholar

⁴³ O'Brien, , supra note 31.Google Scholar

⁴⁴ See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

⁴⁵ See Wittreck, Fabian, German Judicial Self-Government: Institutions and constraints of self-government in Germany, in this issue.Google Scholar

⁴⁶ See Krenn, , supra note 6.Google Scholar

⁴⁷ See Çalı & Cunningham supra note 6.Google Scholar

⁴⁸ The vast number of these guidelines and policies cannot be addressed here. See the individual contributions to this special issue. See also note 2.Google Scholar

⁴⁹ The literature on judicial independence is so numerous that it cannot be addressed here. For recent contributions to this literature that devoted significant attention to judicial self-governance, see in particular Popova, Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine (2012); and Seibert-Fohr, Anja (ed.), Judicial Independence in Transition (2012).Google Scholar

⁵⁰ See e.g. Daniela Piana, Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice (2010); Maria Popova, Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine (2012); Coman, Ramona, Quo Vadis Judicial Reforms? The Quest for Judicial Independence in Central and Eastern Europe, 66 Europe-Asia Studies 892 (2014).Google Scholar

⁵¹ For an overview of this literature, see Spáč, Samuel, Recruiting European judges in the age of judicial self-government, in this issue.Google Scholar

⁵² See e.g. Garoupa, Nuno & Ginsburg, Tom, Guarding the Guardians: Judicial Councils and Judicial Independence, 57 Am. J. of Comp, Law 103 (2009); Garoupa, Nuno & Ginsburg, Tom, The Comparative Law and Economics of Judicial Councils, 27 Berkeley Journal of International Law 53 (2009); Bobek, Michal & Kosař, David, Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe, 15(7) German L.J. 1257-1292 (2014); Pozas-Loyo, Andrea & Ríos-Figueroa, Julio, The Politics of Amendment Processes: Supreme Court Influence in the Design of Judicial Councils, 89(7) Texas Law Review 1807-1833 (2011); Ingram, Matthew C., Crafting Courts in New Democracies: Ideology and Judicial Council Reforms in Three Mexican States, 44(4) Comparative Politics 439-358 (2012); Parau, Cristina E., Explaining judiciary governance in Central and Eastern Europe: external incentives, transnational elites and Parliament inaction, 67 Europe-Asia Studies 409 (2015); Kosař, David, Perils of Judicial Self-Government in Transitional Societies (2016); Preshova, Denis, Ivan Damjanovski & Zoran Nechev, The Effectiveness of the ‘European Model’ of Judicial Independence in the Western Balkans: Judicial Councils as a Solution or a New Cause of Concern for Judicial Reforms, 2017(1) CLEER Papers (2017); and Ortiz, Pablo José Castillo, Councils of the Judiciary and Judges’ Perceptions of Respect to Their Independence in Europe, 9(2) Hague Journal on The Rule of Law 315-336 (2017); Solomon, Peter H., Transparency in the Work of Judicial Councils: The Experience of (East) European Countries, 45 Review of Central and East European Law (2018). See also note 3.Google Scholar

⁵³ For an overview of this literature, see Blisa, Adam & Kosař, David, Court Presidents: The Missing Piece in the Puzzle of Judicial Governance, in this issue.Google Scholar

⁵⁴ Sauvé, Jean-Marc, Selecting the European Union's Judges: The Practice of the Article 255 Panel, in Selecting Europe's Judges 78 (Michal Bobek ed., 2015). Even though from the conceptual point of view it is an example of judicial government rather than judicial self-government, since no CJEU judge sits on the Art. 255 TFEU Panel.Google Scholar

⁵⁵ Alemanno, Alberto, How Transparent is Transparent Enough? Balancing Access to Information versus Privacy in European Judicial Selections, in Selecting Europe's Judges 204 (Michal Bobek ed., 2015).Google Scholar

⁵⁶ Dumbrovský, Tomas, Petkova, Bilyana & Van der Sluis, Marijn, Judicial appointments: the article 255 TFEU advisory panel and selection procedures in the Member States, 51 Common Market Law Review 455 (2014).Google Scholar

⁵⁷ van der Woude, Marc, Towards a European Council of the Judiciary: Some Reflections on the Administration of the EU Courts, in Democracy and Rule of Law in the European Union. Essays in Honour of Japp W. de Zwaan 63 (Flora A.N.J. Goudappel & Ernst M. H. Hirsch Ballin eds., 2016).Google Scholar

⁵⁸ See Çalı & Cunningha, supra note 6; and Bobek, Michal (ed.), Selecting Europe's Judges: A Critical Review of the Appointment Procedures to the European Courts (2015).Google Scholar

⁵⁹ See Tsereteli, Nino & Smekal, Hubert, The Judicial Self-Government at the International Level: A New Research Agenda, in this issue.Google Scholar

⁶⁰ For an overview of the literature, see ibid. Google Scholar

⁶¹ For a rare exception, see Dunoff, Jeffrey L. & Pollack, Mark A., International Judicial Practices: Opening the ‘Black Box’ of International Courts, Michigan Journal of International Law (forthcoming).Google Scholar

⁶² See Part D of this article.Google Scholar

⁶³ See Part E of this article. For exceptions, see Kosař, , supra note 52; Ortiz, Castillo, supra note 52; and Solomon, supra note 52.Google Scholar

⁶⁴ See Çalı & Durmuş, supra note 15; and Ruys, Tom & Turkut, Emre, Turkey's Post-Coup ‘Purification Process': Collective Dismissals of Public Servants under the European Convention on Human Rights, 18(3) Human Rights Law Review 539–565 (2018).Google Scholar

⁶⁵ See the deleterious impact of these mechanisms in Poland (Śledzińska-Simon, supra note 7) and Hungary (Uladzislau Belavusau, On Age Discrimination and Beating Dead Dogs: Commission v. Hungary, 50(4) Common Market Law Review 1145–1160 (2013); Gyulavári, Tomás & Hős, Nikolett, Retirement of Hungarian Judges, Age Discrimination and Judicial Independence: A Tale of Two Courts, 42(3) Industrial Law Journal 289-297 (2013); Halmai, Gábor, The early retirement age of the Hungarian judges, in EU Law Stories: Contextual and Critical Historiesof European Jurisprudence 471-488 (Fernanda Nicola & Bill Davies eds., 2017).Google Scholar

⁶⁶ For instance, after the rise of Viktor Orbán in Hungary, the Hungarian Constitutional Court was early on stripped of its power to exercise constitutional review over budgetary and tax issues. See Hailbronner, Michaela, How Can a Democratic Constitution Survive an Autocratic Majority? A Report on the Presentations on the Judiciary, Verfassungsblog (Dec. 8, 2018), https://verfassungsblog.de/how-can-a-democratic-constitution-survive-an-autocratic-majority-a-report-on-the-presentations-on-the-judiciary/.Google Scholar

⁶⁷ See supra notes 8-10.Google Scholar

⁶⁸ In order to avoid lengthy conceptual debate, I am using the term “transnational courts” so as to cover both the ECtHR (which is an international court) and the CJEU (which is often treated as a supranational court sui generis).Google Scholar

⁶⁹ It is obvious that the governance of the entire judiciary raises different issues than governance of a single court (and vice versa). See Çalı & Cunningham supra note 6; Krenn, supra note 6; Tsereteli & Smekal, supra note 52. See also Part C of this article.Google Scholar

⁷⁰ On reflection, it would have been great to include in this special issue an article on judicial self-governance of domestic constitutional courts, which might be closer to judicial self-governance of the ECtHR and the CJEU than judicial self-governance of the general judiciary. However, it is for other researchers to fill this gap.Google Scholar

⁷¹ See supra note 20.Google Scholar

⁷² Ewald, William, The Jurisprudential Approach to Comparative Law: A Field Guide to “Rats”, 46 Am. J OF Comp. L. 701 (1998).Google Scholar

⁷³ Vauchez, , supra note 35.Google Scholar

⁷⁴ See Benvenuti, & Paris, supra note 36.Google Scholar

⁷⁵ Çalı & Durmuş, supra note 15.Google Scholar

⁷⁶ See Selejan-Guţan, , supra note 14.Google Scholar

⁷⁷ See Spáč, Śipulová & Urbániková, , supra note 31.Google Scholar

⁷⁸ See Pérez, Torres, supra note 39.Google Scholar

⁷⁹ See Mak, supra note 37. However, note that the Netherlands cannot be easily squeezed into the judicial council model – it introduced the Council for the Judiciary, but powers concerning appointing, promoting and disciplining judges do not lie with the Council for the Judiciary, but sometimes with the government, sometimes with the judiciary authorities, and sometimes they are shared.Google Scholar

⁸⁰ See Śledzińska-Simon, , supra note 7.Google Scholar

⁸¹ O'Brien, , supra note 31.Google Scholar

⁸² See Avbelj, , supra note 41.Google Scholar

⁸³ See Wittreck, , supra note 45.Google Scholar

⁸⁴ See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

⁸⁵ See Çalı & Cunningham supra note 6.Google Scholar

⁸⁶ See Krenn, , supra note 6.Google Scholar

⁸⁷ See Blisa, & Kosař, , supra note 53.Google Scholar

⁸⁸ Spáč, supra note 51.Google Scholar

⁸⁹ See Urbániková, Marína & Śipulová, Katarína, Failed Expectations: Does the Establishment of Judicial Councils Enhance Confidence in Courts?, in this issue.Google Scholar

⁹⁰ See Tsereteli, & Smekal, , supra note 52.Google Scholar

⁹¹ Dothan, Shai, The Motivations of Individual Judges and How They Act as a Group, in this issue.Google Scholar

⁹² See the analysis of the functioning of the Court Service in Ireland (in O'Brien, supra note 31).Google Scholar

⁹³ See the Judicial Appointments Advisory Board in Ireland (in O'Brien, supra note 31), or Präsidialräte and Richterwahlausschüsse in Germany (in Wittreck, supra note 45). However, note that selection of the CJEU's and ECtHR's judgesGoogle Scholar

⁹⁴ See Blisa, & Kosař, , supra note 53.Google Scholar

⁹⁵ See Mak, , supra note 37.Google Scholar

⁹⁶ See Avbelj, , supra note 41.Google Scholar

⁹⁷ See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

⁹⁸ See Wittreck, , supra note 45.Google Scholar

⁹⁹ I should acknowledge that I myself contributed to this simplification. See Bobek, & Kosař, , supra note 52.Google Scholar

¹⁰⁰ See the situation in Ireland analyzed in O'Brien, supra note 31.Google Scholar

¹⁰¹ See Mak, , supra note 37.Google Scholar

¹⁰² See e.g. the situation in Slovakia dealt with in Spáč, Śipulová & Urbániková, supra note 31.Google Scholar

¹⁰³ See e.g. the situation in Czechia analyzed in Blisa, Papoušková & Urbániková, supra note 42.Google Scholar

¹⁰⁴ There is of course relevant literature in local languages (see e.g. Piana, Daniela & Vauchez, Antoine, Il Consiglio superiore della magistratura 142 et seq. (2012); Láštic, Erik & Spáč, Samuel (eds.), Nedotkuntel'ní? Politika sudcovských kariér na Slovensku v rokoch 1993 – 2015 (2018); Wittreck, Fabian, Die Verwaltung der Dritten Gewalt (2006); and Faissner, Lea C., Die Gerichtsverwaltung der ordentlichen Gerichtsbarkeit in Frankreich und Deutschland 251 et seq. (2018), but it is to a large extent not accessible to English speaking readers.Google Scholar

¹⁰⁵ See Kosař & Śipulová, supra note 20; and Novak, Benjamin, Two Hungarian law school professors discuss Hungary's deteriorating political and legal culture, The Budapest Beacon (Apr. 6, 2018), https://budapestbeacon.com/two-hungarian-law-school-professors-discuss-hungarys-deteriorating-political-and-legal-culture/?_sf_s=fleck.Google Scholar

¹⁰⁶ See Śledzińska-Simon, , supra note 7.Google Scholar

¹⁰⁷ The recent reports that in Hungary and Poland “disloyal” judges are increasingly threatened with disciplinary sanctions confirm it. See Hailbronner, supra note 66.Google Scholar

¹⁰⁸ See also supra notes 21-23.Google Scholar

¹⁰⁹ Çlı & Durmuş, supra note 15.Google Scholar

¹¹⁰ Avbelj, supra note 41.Google Scholar

¹¹¹ See Wittreck, , supra note 45.Google Scholar

¹¹² See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

¹¹³ I am grateful to Markus Vašek for this insight.Google Scholar

¹¹⁴ See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

¹¹⁵ Blisa, & Kosař, , supra note 53.Google Scholar

¹¹⁶ But see Krenn, Christoph, The European Court of Justice's Financial Accountability. How the European Parliament Incites and Monitors Judicial Reform through the Budgetary Process, 13 European Const. Law R., 253 (2017) (who argues that the European Parliament checks for CJEU's mismanagement and gives political guidance on broader issues of CJEU's administration through the EU's budgetary process).Google Scholar

¹¹⁷ See Krenn, , supra note 6.Google Scholar

¹¹⁸ On the regulatory self-governance of the CJEU, see Part C.II below.Google Scholar

¹¹⁹ Alemanno, , supra note 55.Google Scholar

¹²⁰ Dumbrovský, Petkova & Sluis, Van der, supra note 56.Google Scholar

¹²¹ See Çalı & Cunningham supra note 6.Google Scholar

¹²² See Blisa, & Kosař, , supra note 53.Google Scholar

¹²³ See e.g. judicial councils in Italy, Romania, and de facto also in Slovakia.Google Scholar

¹²⁴ See e.g. judicial councils in the Netherlands (however, the judicial member who is the president of the Dutch judicial council has a casting vote) and de iure also in Slovakia.Google Scholar

¹²⁵ See e.g. judicial councils in Spain and France, and the Judicial Appointments Advisory Board in Ireland.Google Scholar

¹²⁶ See Vauchez, , supra note 35; Benvenuti & Paris, supra note 36; Selejan-Guţan, , supra note 14; and Çalı & Durmuş, supra note 15.Google Scholar

¹²⁷ See Śledzińska-Simon, , supra note 7; Pérez, Torres, supra note 39; and Çalı & Durmuş, supra note 15.Google Scholar

¹²⁸ See Mak, , supra note 37.Google Scholar

¹²⁹ See Vauchez, , supra note 35; Benvenuti & Paris, supra note 36. Judicial associations are also strong in Slovakia and Spain (Spáč, Śipulová & Urbániková, supra note 31; and Pérez, Torres, supra note 39).Google Scholar

¹³⁰ See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

¹³¹ This is the case of Italy. Until the 2008, the head of state chaired also the French judicial council.Google Scholar

¹³² See Iancu, Bogdan, Perils of Sloganised Constitutional Concepts, Notably that of ‘Judicial Independence', 13(3) European Const. Law R. 582, 593 (2017) (explaining that Romanian judicial council's “three ex officio members (Minister of Justice, President of the High Court of Cassation and Justice, Prosecutor General of the General Prosecutor's Office attached to the High Court of Cassation and Justice) have no right to vote in the two sections, which serve as first instance disciplinary courts for judges and prosecutors, respectively.”).Google Scholar

¹³³ This is currently the situation at the Dutch judicial council.Google Scholar

¹³⁴ This was the case of Slovakia until the 2014 reform.Google Scholar

¹³⁵ The Chief Justice chairs, among others, judicial councils in France and Spain.Google Scholar

¹³⁶ See Spáč, Śipulová & Urbániková, , supra note 31.Google Scholar

¹³⁷ See de Carvalho, Ramos Nunes e Sá v Portugal, supra note 13; and especially concurring opinion of Judge Pinto de Albuquerque therein.Google Scholar

¹³⁸ See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

¹³⁹ This is the case of judicial councils in Italy and Romania.Google Scholar

¹⁴⁰ The best example is the Turkish judicial council during its hierarchical judicial self-governance period (1961-2010) and the Romanian judicial council between 1991 and 2003. For further details see Çalı, & Durmuş, , supra note 15; and Selejan-Guţan, supra note 14.Google Scholar

¹⁴¹ This was the case of the Slovak judicial council until 2014.Google Scholar

¹⁴² See also Garoupa, & Ginsburg, , supra note 52; and Guarnieri, Carlo, Judicial Independence in Europe: Threat or Resource for Democracy?, 49(3) Representation – Journal of Representative Democracy 347, 348 (2013).Google Scholar

¹⁴³ See e.g. judicial councils in Poland, Romania and Slovakia.Google Scholar

¹⁴⁴ This is the case of the Netherlands.Google Scholar

¹⁴⁵ See the ongoing symposium on constitutional resilience at Verfassungsblog (Christoph Grabenwarter, Constitutional Resilience, Verfassungsblog (Dec 6, 2018), https://verfassungsblog.de/constitutional-resilience/).Google Scholar

¹⁴⁶ See also Wittreck, , supra note 45 (arguing that “The mechanisms of self-government merely shift the dangers for individual judicial independence by shifting power.”).Google Scholar

¹⁴⁷ See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

¹⁴⁸ Śledzińska-Simon, supra note 7.Google Scholar

¹⁴⁹ See Guarnieri, supra note 142; and Benvenuti & Paris, supra note 36 (on correnti in Italy); and Vauchez, supra note 35 (on judicial associations in France).Google Scholar

¹⁵⁰ See Wittreck, , supra note 45.Google Scholar

¹⁵¹ See note 105.Google Scholar

¹⁵² Pérez, Torres, supra note 39.Google Scholar

¹⁵³ Çalı & Durmuş, supra note 15.Google Scholar

¹⁵⁴ Ukraine, Denisov v, supra note 12.Google Scholar

¹⁵⁵ See Selejan-Guţan, , supra note 14.Google Scholar

¹⁵⁶ See van Aaken, Anne, Feld, Lars P. & Voigt, Stefan, Do Independent Prosecutors Deter Political Corruption? An Empirical Evaluation Across 78 Countries, 12(1) American Law and Economics Review, 204–244 (2010); and Voigt, Stefan & Wulf, Alexander J., What makes prosecutors independent? Analysing the institutional determinants of prosecutorial independence, Journal of Institutional Economics, 1–22 (2017).Google Scholar

¹⁵⁷ See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

¹⁵⁸ See Śledzińska-Simon, , supra note 7.Google Scholar

¹⁵⁹ See Kosař, , supra note 52. Note that Hungarian judges often refer to the period between 1990 and 1996, when the court administration was the responsibility of the Ministry of Justice as to the “golden era” (https://budapestbeacon.com/two-hungarian-law-school-professors-discuss-hungarys-deteriorating-political-and-legal-culture/?_sf_s=fleck)Google Scholar

¹⁶⁰ See supra note 105.Google Scholar

¹⁶¹ See Avbelj, , supra note 41.Google Scholar

¹⁶² See Vauchez, , supra note 35; Benvenuti & Paris, supra note 36; and Pérez, Torres, supra note 39).Google Scholar

¹⁶³ See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

¹⁶⁴ See Dothan, , supra note 91.Google Scholar

¹⁶⁵ See Spáč, , supra note 51.Google Scholar

¹⁶⁶ See Dressel, Björn, Sanchez-Urribarri, Raul & Stroh, Alexander, The Informal Dimension of Judicial Politics: A Relational Perspective, 13 Annual Review of Law and Social Science 413 (2017); and the special issue on ‘Courts and Informal Networks’ in Volume 39(5) International Political Science Review (2018).Google Scholar

¹⁶⁷ I leave aside the abstract conceptual disputes regarding term governance. Governance, much like government, is notoriously difficult to define as it has at least four meanings in the literature: a structure, a process, a mechanism and a strategy (see Levi-Faur, David, From “Big Government” to “Big Governance”?, in The Oxford Handbook of Governance 3-18 (David Levi-Faur, 2012)).Google Scholar

¹⁶⁸ See e.g. Dallara, Cristina & Piana, Daniela, Networking the Rule of Law: How Change Agents Reshape Judicial Governance in the EU 87–110 (2016).Google Scholar

¹⁶⁹ See Wittreck, , supra note 45.Google Scholar

¹⁷⁰ See Blisa, , Papoušková, & Urbániková, , supra note 42.Google Scholar

¹⁷¹ See Krenn, , supra note 6.Google Scholar

¹⁷² Financial pressure can be easily abused, for instance against a critical court president and “her” court.Google Scholar

¹⁷³ See Krenn, , supra note 6; and Çalı & Cunningham supra note 6.Google Scholar

¹⁷⁴ Code of Conduct [2007] OJ C223/1.Google Scholar

¹⁷⁵ Code of Conduct for Members and former Members of the Court of Justice of the European Union [2016] OJ C483/1. For more details see Krenn, supra note 6.Google Scholar

¹⁷⁶ European Court of Human Rights, Resolution on Judicial Ethics, 23 June 2008, http://www.echr.coe.int/Documents/Resolution_Judicial_Ethics_ENG.pdf. For more details see Çalı, & Cunningham, , supra note 6.Google Scholar

¹⁷⁷ See Vauchez, , supra note 35.Google Scholar

¹⁷⁸ See Blisa, , Papoušková & Urbániková, supra note 42.Google Scholar

¹⁷⁹ Note that, for instance, in Slovakia such information is available through the website https://otvorenesudy.sk/.Google Scholar

¹⁸⁰ See Spáč, , Śipulová & Urbániková, supra note 31.Google Scholar

¹⁸¹ I am grateful for this suggestion to Hubert Smekal and Nino Tsereteli.Google Scholar

¹⁸² See Krenn, , supra note 6; and Çalı & Cunningham, supra note 6.Google Scholar

¹⁸³ See Çalı & Cunningham, supra note 6.Google Scholar

¹⁸⁴ Note that the situation in the European Union is different from the Council of Europe in many aspects, as the European Commission and especially the European Parliament do play a role in shaping the CJEU, albeit by different means and less visibly than the domestic political branches. See Krenn, , supra note 6; and Krenn, supra note 116.Google Scholar

¹⁸⁵ Ibid. Google Scholar

¹⁸⁶ One can also think of other dimensions such as media self-governance that would, among other things, include hiring spokespersons, handling social media, and having its own channels of medialization (such as TV channels, radio channels or own journals).Google Scholar

¹⁸⁷ It merely reflects the contributions to this special issue. One can also think of other dimensions such as media self-governance that would, among other things, include hiring spokespersons, handling social media, and having its own channels of medialization (such as TV channels, radio channels or own journals).Google Scholar

¹⁸⁸ We have tried to develop such categorization and index regarding court presidents; See Blisa, & Kosař, , supra note 53.Google Scholar

¹⁸⁹ Interestingly, the sociology of professions has not rigorously studied judicial self-governance so far.Google Scholar

¹⁹⁰ See Bourdieu, Pierre, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 814 (1987); and Dezalay, Yves & Madsen, Mikael Rask, The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive Sociology of Law, 8 Annual Review of Law and Social Science 433 (2012).Google Scholar

¹⁹¹ See more below.Google Scholar

¹⁹² Piana, Daniela, The Power Knocks at the Courts’ Back Door – Two Waves of Postcommunist Judicial Reforms, 42 Comparative Political Studies 816 (2009); or Piana, supra note 50, at 162-165.Google Scholar

¹⁹³ See Dallara, & Piana, , supra note 168.Google Scholar

¹⁹⁴ See Parau, Cristina E., The Dormancy of Parliaments: The Invisible Cause of Judiciary Empowerment in Central and Eastern Europe, 49 Representation – Journal of Representative Democracy 267 (2013).Google Scholar

¹⁹⁵ Or more precisely, these external incentives are of a short-term nature. Once the CEE country joins the EU, the incentives for CEE countries to keep judicial self-governing bodies meeting the EU standards are much weaker.Google Scholar

¹⁹⁶ This article cannot do justice to historical trajectories in all 14 jurisdictions. For a brief analysis see Table 1 in Urbániková & Śipulová, supra note 89.Google Scholar

¹⁹⁷ The Dutch judicial council is a rare example (ibid.). Google Scholar

¹⁹⁸ This is the case of the Spanish and Portuguese judicial councils.Google Scholar

¹⁹⁹ This is the case of the Italian judicial council and virtually all judicial councils in the post-communist countries in Central and Eastern Europe.Google Scholar

²⁰⁰ Çalı & Durmuş, supra note 15.Google Scholar

²⁰¹ See Benvenuti, & Paris, supra note 36; and Vauchez, supra note 35. See also Benvenuti, Simone, The Politics of Judicial Accountability in Italy: Shifting the Balance, 14(2) European Const. Law R., 369–393 (2018)Google Scholar

²⁰² See Çalı & Cunningham, supra note 6; Bobek, supra note 58; and de S-O-I'E Lasser, Mitchel, Judicial Appointments, Judicial Independence and the European High Courts, in The Transformation or Reconstitution of Europe: The Critical Legal Studies Perspective on the Role of the Courts in the European Union 121-150 (Tamara Perišin & Siniša Rodin eds., 2018).Google Scholar

²⁰³ See Wittreck, , supra note 45; and Blisa, Papoušková & Urbániková, , supra note 42.Google Scholar

²⁰⁴ See supra Part C.I.Google Scholar

²⁰⁵ See Wittreck, , supra note 45.Google Scholar

²⁰⁶ The German judiciary has been afraid that with unknown political parties coming to power their independence might be in danger, and that might be the reason why some judges regard the concept of judicial self-government as tempting.Google Scholar

²⁰⁷ Hailbronner, supra note 66.Google Scholar

²⁰⁸ Ibid. Google Scholar

²⁰⁹ Holmøyvik, Eirik & Sanders, Anne, A Stress Test for Europe's Judiciaries, Verfassungsblog (Aug. 23, 2017), https://verfassungsblog.de/a-stress-test-for-europes-judiciaries/.Google Scholar

²¹⁰ See Çalı & Durmuş, supra note 15.Google Scholar

²¹¹ See Kosař & Śipulová, supra note 20; and literature in supra notes 4, 65 and 105.Google Scholar

²¹² See Śledzińska-Simon, , supra note 7.Google Scholar

²¹³ See Vauchez, , supra note 35.Google Scholar

²¹⁴ O'Brien, , supra note 31. However, this might change, if the Irisih Parliament adopts the Judicial council Bill.Google Scholar

²¹⁵ See Kosař & Śipulová, supra note 20; and literature in supra notes 4, 65 and 105.Google Scholar

²¹⁶ See Śledzińska-Simon, , supra note 7.Google Scholar

²¹⁷ See Çalı & Durmuş, supra note 15.Google Scholar

²¹⁸ See Vauchez, , supra note 35.Google Scholar

²¹⁹ See Kosař, & Lixinski, , supra note 11.Google Scholar

²²⁰ See Madsen, Mikael Rask, Cebulak, Pola & Weibuch, Micha, Backlash Against International Courts: Explaining the Forms and Patterns of Resistance to International Courts, 14(2) International Journal of Law in Context 197 (2018).Google Scholar

²²¹ See Śledzińska-Simon, , supra note 7; Çalı & Durmuş, supra note 15; and Kosař & Śipulová, supra note 20.Google Scholar

²²² See Śledzińska-Simon, , supra note 7; Çalı & Durmuş, supra note 15; and Kosař & Śipulová, supra note 20.Google Scholar

²²³ Śledzińska-Simon, , supra note 7.Google Scholar

²²⁴ See Kosař, , supra note 52 (comparing the impact of judicial council in Slovakia on judicial accountability with the functioning of the Czech ministry of justice model of court administration).Google Scholar

²²⁵ Çalı & Durmuş, supra note 15.Google Scholar

²²⁶ See Śipulová & Urbániková, supra note 89.Google Scholar

²²⁷ Ibid. Google Scholar

²²⁸ Ibid. Google Scholar

²²⁹ Selejan-Guţan, , supra note 14.Google Scholar

²³⁰ Avbelj, supra note 41.Google Scholar

²³¹ Spáč, Śipulová & Urbániková, , supra note 31.Google Scholar

²³² Ibid. See also Kosař, supra note 52Google Scholar

²³³ Pérez, Torres, supra note 39.Google Scholar

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²³⁵ Çalı & Durmuş, supra note 15.Google Scholar

²³⁶ Vauchez, supra note 35.Google Scholar

²³⁷ Benvenuti & Paris, supra note 36.Google Scholar

²³⁸ Śledzińska-Simon, , supra note 7.Google Scholar

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²⁴⁰ Ibid. Google Scholar

²⁴¹ Ibid. Google Scholar

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²⁴⁴ See e.g. Stillman, Peter G., The Concept of Legitimacy, 7(1) Polity 32–56 (1974); Suchman, Mark C., Managing Legitimacy: Strategic and Institutional Approaches, 20(3) The Academy of Management Review 571-610 (1995); and Hurd, Ian, Legitimacy and Authority in International Politics, 53(2) International Organization 379-408 (1999).Google Scholar

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²⁴⁷ See Spáč, Samuel and Kosař, David, Conceptualization(s) of Judicial Independence and Judicial Accountability by the European Network of Councils for the Judiciary: Two Steps Forward, One Step Back, 9(3) International Journal of Court Administration (2018 forthcoming); and other contributions to this special issue that discusses the ENCJ's method of assessment of judicial independence and accountability. See also Kosař, , supra note 52; and Benvenuti, supra note 201.Google Scholar

²⁴⁸ Benvenuti & Paris, supra note 36.Google Scholar

²⁴⁹ O'Brien, , supra note 31. However, this might change, if the Irisih Parliament adopts the Judicial council Bill.Google Scholar

²⁵⁰ See Spáč, Śipulová & Urbániková, , supra note 31.Google Scholar

²⁵¹ In detail, Krenn, supra note 116.Google Scholar

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²⁵³ But note that according to Çalı & Cunningham, individual ECtHR's judges can be held accountable by way of naming and shaming tactics undertaken by external actors, for example, NGOs, commentators on Strasbourg jurisprudence, domestic supreme courts, parliaments and the executive. See Çalı & Cunningham supra note 6.Google Scholar

²⁵⁴ See Dunoff, Jeffrey L. & Pollack, Mark A., The Judicial Trilemma, 111(2) American Journal of International Law 713–760 (2017).Google Scholar

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²⁶⁰ In developing this definition I build heavily on Jenny De Fine Licht, Naurin, Daniel, Esaiasson, Peter & Gilljam, Mikael, When Does Transparency Generate Legitimacy? Experimenting on a Context-Bound Relationship, 27(1) Governance: An International Journal of Policy, Administration, and Institutions 111-134 (2014); and Michener, Greg & Bersch, Katherine, Identifying Transparency, 18 Information Polity 233-242 (2013).Google Scholar

²⁶¹ See Dunoff, Jeffrey L. & Pollack, Mark A., The Judicial Trilemma, 111(2) American Journal of International Law 713–760 (2017).Google Scholar

²⁶² See Çalı & Cunningham supra note 47.Google Scholar

²⁶³ But note that the Dutch judicial council, despite its nominal name, is actually very close to the Irish Court Service model. See supra note 79.Google Scholar

²⁶⁴ O'Brien, , supra note 31.Google Scholar

²⁶⁵ Mak, supra note 37.Google Scholar

²⁶⁶ For instance, some judges did not feel represented by the Council, objected to the temporary appointment procedure for new court presidents, and claimed that the assessment of judicial performance had come to emphasize output too much. For further details see ibid. Google Scholar

²⁶⁷ On how impotant the distinction between these two levels is see also John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. Cal. L. Rev. 353 (1999).Google Scholar

²⁶⁸ See e.g. Ortiz, Castillo, supra note 52 (suggesting that there is only moderate perception of disrespect of judicial independence in Slovakia and Slovenia and that there is low perception of disrespect of judicial independence in Poland).Google Scholar

²⁶⁹ See Selejan-Guţan, , supra note 14.Google Scholar

²⁷⁰ But note that analysis of the determinants of judicial performance based on data provided by the European Commission for the Efficiency of Justice (CEPEJ) conducted by Voigt and El Bialy suggested that judicial councils were consistently correlated with a worse, rather than a better performance. See Voigt, Stefan & El-Bialy, Nora, Identifying the determinants of aggregate judicial performance: taxpayers’ money well spent?, 41(2) European Journal of Law and Economics 283–319 (2016).Google Scholar

²⁷¹ See the literature in supra notes 50 and 52.Google Scholar

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²⁷³ This is the case of Italy, Romania and partly also France. See Benvenuti, & Paris, supra note 36; Selejan-Guţan, , supra note 14; and Vauchez, supra note 35.Google Scholar

²⁷⁴ This is in line with empirical findings that conclude that cultural traits are of fundamental importance for judicial independence and the quality of formal institutions more generally. See Gutmann, & Voigt, , supra note 272.Google Scholar

²⁷⁵ See Spanish judicial council (analyzed in Torres Pérez, supra note 39).Google Scholar

²⁷⁶ See Slovak judicial council (analyzed in Spáč, Śipulová & Urbániková, supra note 31).Google Scholar

²⁷⁷ See the Hungarian judicial council (analyzed in note 105).Google Scholar

²⁷⁸ See especially the Dutch judicial council (analyzed in Mak, supra note 37) and the Irish Court Service (analyzed in O'Brien, supra note 31).Google Scholar