Politics of Judicial Independence in Transitional Setting: Bargaining in the Shadow of the Law between the Czech Ministry of Justice and Court Presidents

When the communist regimes in Central Eastern Europe (hereinafter “CEE”) collapsed in the late 1980s, each state in this region was faced with the tasks of restoring judicial independence and reforming the system of the administration of justice. Most countries in the CEE initially returned to the pre-communist model of court administration, in which the executive plays the central role. So did the Czech Republic too. However, this model was subject to the increasing criticism from judges as well as from various international and supranational bodies. The European Commission teamed up with the Council of Europe and eventually came up with the new template, the “EU/CoE Judicial Council Model”. The central feature of this model was a new institution – a judicial council that should be granted most “personal competences” regarding a career in the judiciary. The EU/CoE Judicial Council Model was then endorsed as the only “right” solution that should eradicate the vices of the post-communist judiciaries. As a result of this joint pressure, most countries in CEE adopted the EU/CoE Judicial Council Model. Not the Czech Republic. It became the “outlier case” in the CEE region, the only post-communist country in the process of transition to democracy without a judicial council. Hence, it is particularly interesting to discern how judicial independence and judicial accountability are ensured there. This paper shows that the Czech Ministry of Justice model has underwent significant development and, in doing so, it focuses on the most important phenomenon since the Velvet Revolution – the rise of court presidents to power. It argues that the court presidents step by step eroded the Minister’s sphere of influence and managed to enlarge their own powers. As a result they became the most powerful players in the Czech judiciary with broad powers vis-à-vis individual judges. This development in turn calls for new safeguards of internal independence against the abuse of power by court president. This paper proceeds as follows. First, it introduces the key players in the Czech judicial politics after the Velvet Revolution. Then it shows how court presidents managed to gradually emancipate from the Minister of Justice and shows how this resulted in a fragile balance between the Minister of Justice and court presidents. Subsequently, it suggests that the introduction of the judicial council in the Czech Republic is capable to tip the balance to one of the key players – the Minister of Justice or court presidents – and that explains why it has not been established so far. Finally, it discusses broader repercussions of the Czech case study: that the court presidents are invisible masters of the CEE judiciaries, that internal independence of judges vis-à-vis court presidents must be enhanced, and that it is necessary to shift the attention from the independence of the judiciary to the independence of individual judges.