Abstract
In this paper, the author focuses on court administration in a strict sense, which encompasses the technical, organizational and material conditions of court operations. The author argues that the best model in this respect, especially for new democracies, is the so-called autonomous model. This model is based on the idea that the competence of court management and administration (i.e. court business) should generally be assigned directly to the judiciary. This model may co-exist with various concurrent solutions concerning other important matters (e.g. accountability of judges, methods of judicial appointments).
Piotr Mikuli is Professor and the Head of the Chair in Comparative Constitutional Law, Jagiellonian University. This paper builds upon a research project financed by the National Science Centre, Poland, according to the decision DEC-2016/21/B/HS5/00445.
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Notes
- 1.
Mikuli (2017a), p. 1.
- 2.
- 3.
Generally speaking, in constitutional systems where judicial councils function, one may distinguish two models. The first one occurs in some Nordic states and is characterized by the fact that there is a specific organizational merger of the council as a collegial organ and a unit dealing with administrative matters of courts. In the second model, which occurs in some Southern European states (Spain, Italy, and also France), the judicial council does not possess any competencies in the scope of court administration, but it plays a crucial role in the process of judicial appointments and disciplinary proceedings of judges. However, in many countries, hybrid measures exist which are hard to qualify to one of these two models.
- 4.
B.C. Smith rightly argues that ‘[e]ven the establishment of a judicial council, designated to distance the appointment of judges and the management of the judiciary from the political process, will not guarantee judicial independence if the executive controls its membership’. In this context, he uses the examples of Malaysia and Kazakhstan. See Smith (2017), p. 56. However, it seems that these arguments may be more relevant at the beginning of the process of democratic transition. In Poland, for example, similar views were presented to justify the capture of the judicial council by the ruling party as well as to explain other measures taken towards the judiciary, while the facts are completely different. The overwhelming majority of Polish justices were appointed after 1989 and they are in their forties.
- 5.
However, it does not mean that the most desirable model for the council is one in which representatives of the legislative or the executive would have the same number of members as judges. This might create a wrong impression that greater involvement by such members strengthens the legitimacy of the judiciary. See Bałaban (2015), p. 45.
- 6.
On one hand, this allows for articulating a position on behalf of the whole community of judges; on the other hand, it is also important for other functions, including quasi-auditing functions, such as agreeing on positions on proposed reforms or the inclusion of political—by definition—powers (i.e. the executive and the legislature), in activities aimed at strengthening and safeguarding the independence of the third power.
- 7.
In these countries, the processes for recruiting judges and court administration are primarily the responsibility of the Ministry of Justice.
- 8.
Garoupa and Ginsburg (2008), p. 4 ff.
- 9.
- 10.
M. Bobek, D. Kosař refers to the case of Slovakia, where the council was dominated by prominent judges with a communist background. They juxtapose this with the situation in the Czech Republic, where the lack of a judicial council and a most powerful Minister of Justice contributed to the necessary reforms of the judicial system. In the same context, B.C. Smith mentions the cases of Romania and Indonesia, where, as he emphasizes, judicial councils have represented rather corporate interests of certain judges, so that their reform and control function may have been questioned. See Smith (2017), pp. 149–150.
- 11.
Bobek (2010), p. 251 ff.
- 12.
Mikuli (2017b), p. 183.
- 13.
- 14.
- 15.
As the former Polish Chief Justice, the late S. Dąbrowski, emphasizes, ‘The system works fairly well under conditions of a stable democracy and an absence of threats to the autonomy of judges. The defect of this system is that if there is a crisis of democracy, guarantees of the independence of the courts and the autonomy of judges may prove inadequate […]. It is pointed out in the literature that it is easy to imagine a situation in which the Justice Minister’s supervision over the courts comes dangerously close to indirect influence on the merits of the dispensation of justice. These rights vested in the Justice Minister do not arise out of the Constitution, and as competencies of the executive branch affecting the judicial branch, they represent a major departure from the constitutional principles’. Dąbrowski (2009), p. 411.
- 16.
This is only a proposal. One can find other systematizations in the literature. In this paper, I accept the scheme included in Fox et al. (2017), p. 187 ff.
- 17.
Confront, for instance, the systemic position of the Swedish National Court Administration (Domstolsverket). See ‘The Swedish Judicial System’, Regeringskansliet, June 2015, pp. 5, 21 (http://www.government.se/49ec0b/contentassets/9ebb0750780245aeb6d5c13c1ff5cf64/the-swedish-judicial-system.pdf).
- 18.
An example of this is Her Majesty’s Courts and Tribunal Service in England and Wales. It is financed by a part of the budget allocated to the Department of Justice. According to the framework document, the Lord Chancellor is obliged to make every effort to reach an agreement with the Lord Chief Justice on the financing of the Service. The framework agreement clearly states that neither the Lord Chancellor nor the Lord Chief Justice may interfere directly or indirectly with the day-to-day work of the Service. The Scottish Courts Service, however, is an office that is not included within the structure of the department, nor is it an agency subordinated to the Scottish executive. It is currently (since 2010) independent, although it remains within the structure of the state administration; therefore, it forms a part of the Scottish executive. In the latter case, the partnership model is subject to particular modification, moving towards independent, but extra-judicial, court administration.
- 19.
As an example of the latter, one may point to the Irish Court Service, which is a separate institution whose board is composed mainly of judicial members; however, it remains responsible before the Minister of Justice.
- 20.
In this case, this unit should depend on the judiciary’s power, subject to specific mechanisms. For instance, the head and members of the board of such institution might be appointed by bodies of judicial self-government or by a judicial council. The creation of a separate unit is preferable from an efficiency perspective in the case of lower courts, due to their dispersion.
- 21.
Fox et al. (2017), p. 195 ff. The United States offers an example of a country with an autonomous model. The administrative activity of courts is carried out and supervised by a separate office connected only to the judiciary. In federal courts, the Administrative Office of the U.S. Courts is such an entity. The office is headed by a director, who is responsible for the supervision of all administrative matters relating to the clerical staff of the federal courts. The director is appointed and dismissed by the Chief Justice after obtaining the opinion of the Judicial Conference of the United States. This is an annual meeting convened by the Chief Justice and attended by, among others, chief judges of all judicial circuits. The Conference is the body that oversees the activities of the Office and determines the policy relating to the administration of the federal courts. The task of the Conference in this respect is primarily to review and analyse the work of courts and prepare recommendations for them, aimed at harmonizing the procedures and effectiveness of proceedings. The Conference is also obliged to carry out studies on currently binding court procedures. The Administrative Office is responsible for the integrated court management and financial planning system.
- 22.
Fox et al. (2017), p. 199.
- 23.
See e.g. § 332 Section (f.4) of 28 U.S. Code circuit executive; § 332 Section (h.4) of 28 U.S. Code circuit executive and court staff within the United States Court of Appeal for The Federal Circuit; § 601 of 28 U.S. Code Director and Deputy Director of Administrative Office.
- 24.
Fox et al. (2017), p. 200.
- 25.
Fox et al. (2017), p. 198.
- 26.
This includes annual reports addressed to Congress by a Chief Justice on the proceedings of Judicial Council of United States (§ 331 of U.S. 28 Code); copies of annual report of the activities of the Administrative Office and state of business of court are submitted to Congress and Attorney General (§ 604 Section (4) of U.S. 28 Code).
- 27.
Fox et al. (2017), p. 98.
- 28.
Confront Kosař (2018).
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Mikuli, P. (2019). In Search of the Optimal Court Administration Model for New Democracies. In: Pinto de Albuquerque, P., Wojtyczek, K. (eds) Judicial Power in a Globalized World. Springer, Cham. https://doi.org/10.1007/978-3-030-20744-1_18
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