Strengthening the Judiciary in Europe. Judicial Councils, balances between branches of power and social trust

Abstract

All branches of power have a common interest: to serve society. The separation of powers, a basic pillar of the rule of law, and the independence of the Judiciary are essential to democracy. However, judicial independence should not discourage or prevent the Judiciary from being open to continuous dialogue and the basic principle of separation of powers does not require branches of power to work in complete isolation. In democratic states, there must be a proper understanding of the respective roles and responsibilities of each of the branches of government and of the need for them to work together. This "interrelation" is based on mutual trust. And this is where the existence of an independent Judiciary plays an important role. So, it is because one of the distinguishing features of the social and democratic rule of law built in Europe since 1945 is the strengthening of the Judiciary. In this design, the role of judges acquired a decisive importance because they became the custodians of the rights and the guarantees of the legality of the Public Administration. At the same time, to place them in the best conditions to carry out these tasks, the Constitutions were concerned with ensuring their independence from other organs of the State. To this end, the Judicial Councils were created, with a mixed composition - judges and jurists appointed by the high authorities of the State - and without any subordination to the Legislative and Executive Powers. These councils, which are independent in nature, are intended to safeguard the independence of the Judiciary and individual judges and thus promote the efficient functioning of the judicial system. And they must maintain and demand relations of mutual respect with other branches of government. In a democratic state, the three branches of government function as a system of checks and balances that each holds each accountable in the interest of society. However, it is very important to develop strategies to build relationships of the Judiciary with the legislative and executive branches. To achieve an adequate balance between the three branches of government, each branch must exercise appropriate moderation in its relations with the other branches. The judiciary is accountable to the society it serves. Therefore, the Judiciary must always have the best interests of society as its main concern. And in this sense it must be aware of the social and economic reality that society experiences at all times. In addition, the Judiciary must be aware that there are limits to judicial intervention in relation to the political decisions to be made by the legislative and executive branches. Therefore, all courts of the Judiciary must be careful not to stray outside their own sphere of action. In its relations with the other two branches of government, the Judiciary must seek to avoid being perceived as protecting only its own interests. On the contrary, the Judiciary must show understanding and responsibility for the needs of society. For all these reasons, the existence of a continuous dialogue between the powers, achieved through the development of channels of communication with the representatives of all the other powers, is very appropriate. To this goal, all parties must be adequately prepared with timely and objective information. The fundamental aim of communication is to understand the other branches of government and to make them understand the Judiciary as a means of instilling confidence more broadly. However, there are certain risks to judicial independence, due to other types of interference. Specifically, we refer to certain legislative changes affecting the judicial system; parliamentary committees of inquiry, ombudsmen and other similar figures; judicial inspectors; and the budgetary financing of the Judicial Branch. Finally, it is also very necessary to reflect on the relationship between the Judiciary, public attitudes, social trust and the institutional authority of the courts in a democracy. The development of democracy in European States implies that citizens must be adequately informed about the organization of public powers and the conditions under which judges issue sentences. Furthermore, it is equally important that citizens are aware of the functioning of judicial institutions. The role played by the media in this area is of outmost importance. To reflect on all these aspects, we present this essay that is the result of participation in the international conference "European Law and Cultural Diversity" held in Wroclaw (Poland) between November 22 and 24, 2023 (EDELNET), as well as in the European research project: “Strengthening capacities of the High Judicial Council and the State Prosecutorial Council” (Code: EuropeAid/ 136-095/IH/ACT/RS). This paper is also part of the research work of the SEJ-372 Group "Democracy, Pluralism and Citizenship" of the Junta de Andalucía (Spain).