On Poland and Beyond The Role of Judges in the Future of Judicial Independence in the Backsliding EU Member States

Mgr. Alena KOZLOVÁ, LL.M. BA.

Doctoral thesis

The Prospects of Enforcement of EU Values against Non-compliant Member States

Abstract:

As the European Union grapples with the challenges of upholding the rule of law, judges find themselves at the forefront of the fight for, but also against, judicial independence. As proactive actors resisting the attacks on judicial independence, but also potential facilitators of the entrenchment of autocratic governmental blueprints, they become increasingly influential in shifting the status quo of judicial independence in Europe. In its initial segment, this thesis explores the role played by judges in resisting attacks on judicial independence, namely how their undertakings can feed into the development of judicial independence standards related to intra- and inter-court transfers, judicial nomination procedures, premature termination of office, and the link to the right to freedom of expression. This analysis is primarily grounded upon a detailed case study of two judgments before the European Court of Justice and the European Court of Human Rights putting Judge Żurek at the forefront. Then, the thesis delves into the less explored, yet crucial, role of judges as potential facilitators of rule of law backsliding. Building upon the jurisprudence of the two Courts, it analyses how judges can strategically exploit the existing legal framework or make use of its limits to undermine judicial independence standards, particularly in relation to tactical use of the preliminary ruling procedure, instrumentalising the normative scope of the principle of mutual trust and nullifying the purpose of judicial review. In examining the juxtaposition of these conflicting roles, this thesis not only highlights how the mutual interplay of both courts can respond to real-time rule of law developments and reveal the limitations and challenges inherent in this interplay, but it paints a comprehensive picture of where the EU law framework can be exploited. It underscores the imperative for a consistent judicial practice in the context of the European Court of Justice and continued evolution of legal standards to strengthen the rule of law.

Abstract:

As the European Union grapples with the challenges of upholding the rule of law, judges find themselves at the forefront of the fight for, but also against, judicial independence. As proactive actors resisting the attacks on judicial independence, but also potential facilitators of the entrenchment of autocratic governmental blueprints, they become increasingly influential in shifting the status quo of judicial independence in Europe. In its initial segment, this thesis explores the role played by judges in resisting attacks on judicial independence, namely how their undertakings can feed into the development of judicial independence standards related to intra- and inter-court transfers, judicial nomination procedures, premature termination of office, and the link to the right to freedom of expression. This analysis is primarily grounded upon a detailed case study of two judgments before the European Court of Justice and the European Court of Human Rights putting Judge Żurek at the forefront. Then, the thesis delves into the less explored, yet crucial, role of judges as potential facilitators of rule of law backsliding. Building upon the jurisprudence of the two Courts, it analyses how judges can strategically exploit the existing legal framework or make use of its limits to undermine judicial independence standards, particularly in relation to tactical use of the preliminary ruling procedure, instrumentalising the normative scope of the principle of mutual trust and nullifying the purpose of judicial review. In examining the juxtaposition of these conflicting roles, this thesis not only highlights how the mutual interplay of both courts can respond to real-time rule of law developments and reveal the limitations and challenges inherent in this interplay, but it paints a comprehensive picture of where the EU law framework can be exploited. It underscores the imperative for a consistent judicial practice in the context of the European Court of Justice and continued evolution of legal standards to strengthen the rule of law.

Keywords

rule of law backsliding, judicial independence standards, tribunal established by law, irregular appointment, judicial activism, fake judges, ECtHR, CJEU

Language used: English

Date on which the thesis was submitted / produced: 10. 7. 2024

Thesis defence

• Supervisor: doc. JUDr. Václav Stehlík, LL.M., Ph.D., doc. JUDr. Václav Stehlík, LL.M., Ph.D.

Palacký University Olomouc

Faculty of Law

Doctoral programme / field:
International and European Law / International and European Law