(Bloomberg Opinion) -- Since the fall of Communism, Eastern European countries have made a lot of progress catching up with their wealthier neighbors. But not in one crucial area: building trusted, independent judiciaries. One reason is that the European Union may have pushed post-Communist countries in the wrong direction.
Popular trust in the national judiciaries has barely increased in the EU’s post-Communist countries since 2005. In Croatia, Latvia and Slovenia, it’s even dropped. Estonia is the only Eastern European country where trust in the judiciary is higher than the EU average, and the gap in trust between Europe’s east and west has remained almost constant. Outside the EU — both in candidate countries such as Serbia and Montenegro and in those without this status, such as Albania, Ukraine or Russia — the situation is similar: Trust in legal systems is chronically low.
That’s a problem holding back economic development, and with it the further convergence in living standards between Europe’s east and west. The World Economic Forum’s Global Competitiveness Index includes businesses’ perceptions of judicial independence as one of the parameters. There are 43 European countries in the index, and out of the bottom 20 by that measure, 17 are post-Communist countries. Obviously, low scores for courts that aren’t seen as impartial are pulling their general competitiveness down.
It’s also a political problem. In post-Communist societies, fairness is a key value, even more so than in countries that have no experience with forceful redistributive government. So when there’s little trust in the justice systems, and when people give the courts low marks for independence, as they do in most of Eastern Europe, that creates the threat that they’ll vote for parties that promise to make fairness and justice a priority — and then push through judiciary reforms that mainly succeed in putting judges under more political control, as has happened in Hungary and Poland. These moves irritate the EU, but they have little effect on the judgments of businesses and ordinary people.
The European Commission monitors the judiciaries of the 28 EU member states on a multitude of technical parameters, and so does the Council of Europe. But nothing in that sea of data can explain the relative lack of trust in the courts and the dismal perceptions of their independence in Eastern Europe. The post-Communist countries, on average, have more judges per capita — and pays them better — than Western European ones. For example, in Croatia, the country with the lowest trust in the judiciary in the EU, a judge in the highest court makes 4.1 times the national average, while in Finland, the country with the highest trust, the multiple is 3.2. And it’s not that the post-Communist countries are laggards when it comes to court efficiency: An average civil or commercial case is resolved in 159 days in Hungary and in 176 days in Denmark.
The technical parameters aren’t the problem. But there may be a problem with the design of the Eastern European judicial systems, which was imposed by the EU as part of the accession process. As Cristina Parau, a researcher at Oxford University, wrote in a paper published in 2015, the EU persuaded the post-Communist countries to adopt variations a particular mechanism for judicial appointments centered around a Judicial Council. That’s a body built on the Italian model, under which judges themselves select those who join their ranks. The influence of politicians is minimized. Only the Czech Republic, where judges are appointed by the president, has managed to avoid adopting this system.
But “judicial autonomy is a double-edged sword,” Parau wrote, because it removes any democratic constraints on judges without really removing political influence. Parau argued that the new mechanism empowered a transnational legal community, linked to the Eastern European countries’ political elites; that would explain why parties declaring themselves anti-elite are so keen to reform their countries’ judiciaries.
There’s a growing literature about the ambiguous effects of the Judicial Council template. In a recent paper, three researchers from the Masaryk University in the Czech Republic described the system’s failure in Slovakia.
“The empowerment of the judiciary took place in a system where the legacies and legal culture of the Communist regime have easily survived,” the scholars wrote. “On the one hand, it is true that a greater level of judicial self-government helped to insulate the judiciary from direct political pressure. On the other hand, it allowed for an unexpected capture of the judiciary ‘from inside’ through rewarding the allies of those in power and punishing their critics.”
Ukraine, which also has tried the European system, has had particularly glaring problems with it, as a thoroughly corrupt judicial community has promoted judges known to have served specific political interests. The country has struggled to get rid of judges who have let tainted oligarchs avoid prosecution and who have ruled against protesters during the country’s two popular revolutions. Now, under its new president, Volodymyr Zelenskiy, the country is trying to relaunch the judicial appointment system again, relying on experts from outside the country.
It has proven impossible to graft judicial autonomy onto legal communities corrupted by their political subjugation under Communism and the early post-Communist oligarchs. Even in Italy, which has served as a model for the reforms recommended by the EU, it doesn’t work too well; the judiciary there enjoys the lowest level of trust of any Western European country.
The legal systems in Eastern Europe need to move in a different direction — toward more accountability and transparency on the part of judges. That doesn’t necessarily mean more direct political control, although a limited degree of it could be useful. So, perhaps, could the formal vetting of at least the top judges by international peers and the EU’s own highly professional and respected courts.
Unless the EU stops thinking about the Eastern European judiciaries as something to be unconditionally protected from change, further institution-building in post-Communist countries will be hampered. Monitoring technical parameters is all well and good, but it’s more important to focus on trust and independence. More thought and effort should go into making sure Eastern Europe gets qualified, impartial judges through transparent procedures than into defending the sacred cow of judicial autonomy.
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Leonid Bershidsky is Bloomberg Opinion's Europe columnist. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.
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