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Strengthening Judicial Independence in the New Constitutional Democracies of Central and Eastern Europe

Written by  Hon. John M. Walker, Jr. and Daniel J.T. Schuker

Last summer, chief justices and leading jurists of Central and Eastern Europe convened in Prague for a three-day Conference of Chief Justices—the first regional gathering of its kind. The participants, representing the judiciaries of fifteen countries in the area,  discussed the particular challenges they face in building effective judiciaries consistent with the rule of law.

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Rule of law development is an issue of paramount importance in these countries. Many continue to struggle not only to combat corruption within their legal systems, but also to overcome the legacy of Soviet dominance and Communist rule. The array of challenges is as diverse as it is formidable. Judges in the region seek to (1) maintain institutional independence in legal and political cultures that frequently fail to respect it; (2) successfully manage relations with the executive and legislative branches; (3) fight corruption and achieve transparency within the judiciary; (4) address severe delays and backlogs in the courts’ caseloads; (5) strike the appropriate balance between individual (decisional) judicial independence and accountability; and (6) redefine and sharpen judicial roles and responsibilities within their respective systems. Sound judicial administration is fundamental to strengthening the legal framework, protecting human rights, and fostering economic development.

At this inaugural Conference of Chief Justices of Central and Eastern Europe, the participants affirmed their intent to hold a regular annual or biennial conference. At these gatherings, the chief justices can meet privately to share difficulties and concerns while exchanging ideas for improving judicial administration in the face of significant obstacles. The participants also received words of encouragement and inspiration from the Chief Justice of the United States, John G. Roberts, Jr., who participated for two days in this first conference. Future conferences will rotate among the countries of the region. In 2012, the conference will take place in Albania.

This Essay considers avenues for further progress in judicial administration throughout Central and Eastern Europe. In one sense, the challenges to the judiciaries of formerly Communist Europe echo those faced two centuries ago in the United States by Chief Justice John Marshall, who strove to establish the American judiciary as an independent, effective, and respected branch of government. In another sense, the challenges resemble those addressed by America’s leading judges during the first half of the twentieth century as they elaborated administrative systems within the judiciary to guide the functioning of the federal courts. Those parallels, of course, are imperfect. A correct appreciation of the progress made requires sensitivity to the array of unique cultural issues stemming from these European countries’ own historical experiences.

Part II of this Essay considers various conceptions of the rule of law and their application to Central and Eastern Europe’s new constitutional democracies. It also assesses some of the region’s contemporary prospects and challenges. Part III describes the American experiences not only in establishing a strong Supreme Court, but also in developing an effective system for administering the federal judiciary. Last, the Essay takes stock of the prospective tasks facing the chief justices of Central and Eastern Europe. The 2011 conference initiated a clear-eyed assessment of the distance traveled and prospects for the region’s future development. This Essay underscores the value of continued dialogue and regular gatherings of the region’s judicial leaders.

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