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Europeanization and Judicial Supremacy in Central and Eastern Europe

Cristina Parau
University of Oxford
Cristina Parau
University of Oxford
Open Panel

Abstract

East Europeans have, formally if not yet in spirit, joined the global trend toward the ''judicialization of politics'', whereby the judiciary is empowered over democratically elected officials. Original data from more than 60 elite interviews reveal the cause to be a complex nexus of domestic and external factors. The Communist legacy, with its tradition of judicial subordination was opposed by a professional community subscribing to a paradigm of judicial supremacy (or super-ordination) promoted by the Council of Europe and the European Commission. The Executive withstood maximal judicial empowerment; Parliament, however, though ceding more power, offered no resistance -- a major causal factor in itself. It was the European Commission and its domestic allies inside its Delegation who finally tipped the balance of power to judicial supremacy by bringing accession conditionality expressly to bear on the government. But judicial supremacy is an unnecessary step beyond judicial independence. It undermines the constitutional principles of separation of powers, checks and balances, and popular sovereignty. The effect could be to delegitimise or at least stultify and vitiate the new and fragile democracies in CEE that have yet to become popularly owned.