Purging the Judiciary After a Transition: Between a Rock and a
Hard Place

J 2024

Purging the Judiciary After a Transition: Between a Rock and a Hard Place

ŠIPULOVÁ, Katarína a David KOSAŘ

Základní údaje

Originální název

Purging the Judiciary After a Transition: Between a Rock and a Hard Place

Autoři

ŠIPULOVÁ, Katarína a David KOSAŘ

Vydání

Hague Journal on the Rule of Law, 2024, 1876-4045

Další údaje

Jazyk

angličtina

Typ výsledku

Článek v odborném periodiku

Obor

50501 Law

Stát vydavatele

Nizozemské království

Utajení

není předmětem státního či obchodního tajemství

Odkazy

Open access článku

Impakt faktor

Impact factor: 2.200 v roce 2022

Organizační jednotka

Právnická fakulta

DOI

http://dx.doi.org/10.1007/s40803-024-00201-y

Klíčová slova anglicky

lustration; judges; courts; judicial purges; transition; Czech Republic

Štítky

Justin

Příznaky

Mezinárodní význam, Recenzováno

Změněno: 17. 10. 2024 16:15, Mgr. Petra Georgala

Anotace

V originále

Udges play a key role in the implementation of transitional justice mechanisms. Yet, less attention has been paid so far to the question of how to address their collaboration with non-democratic regimes. In theory, judges can be subjected to virtually all transitional justice mechanisms ranging from criminal prosecution and lustration to truth-seeking, or even amnesties. However, we show in a case study of Czechia that these mechanisms are not well equipped to address the complicity of judges in past crimes for three reasons: (1) judges usually play different roles in past crimes from political elites, (2) the principles of the separation of powers and judicial independence preclude the easy replacement of judges, and (3) pragmatic exigencies, such as the shortage of lawyers who are not tainted by cooperation with the previous regime, further complicate the renewal of the bench. Nevertheless, we argue that the lack of recognition of the role judges have played in non-democratic regimes is dangerous, as it may negatively affect public confidence in the judiciary and taint its legitimacy. Examples from Hungary, Poland and Romania, moreover, show that populist leaders are tempted to abuse the transitional justice rhetoric use the failure to deal with the past of judges as a justification for their court-curbing practices. Post-transition purges are therefore stuck between a rock (interfering in judicial independence and practical exigencies) and a hard place (mental dependence of the judiciary on the previous regime, low public trust in courts). When the democratic opposition defeats the populist leader, such as in Poland in 2023, it unfortunately faces the same dilemma. Thus, the Czech way of dealing with the past within the judiciary in transition from communism to democracy (transition 1.0) provides important insights also for today’s undoing of populist judicial reforms and transition from authoritarian populism to democracy (transition 2.0).

Návaznosti

101002660, interní kód MU

Název: Informal Judicial Institutions: Invisible Determinants of Democratic Decay (Akronym: INFINITY)

Investor: Evropská unie, Informal Judicial Institutions: Invisible Determinants of Democratic Decay, ERC (Excellent Science)

Přiložené soubory

s40803-024-00201-y.pdf

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Citovat

ŠIPULOVÁ, Katarína a David KOSAŘ. Purging the Judiciary After a Transition: Between a Rock and a Hard Place. Hague Journal on the Rule of Law. 2024. ISSN 1876-4045. Dostupné z: https://dx.doi.org/10.1007/s40803-024-00201-y.

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   author = {Šipulová, Katarína and Kosař, David},
   doi = {http://dx.doi.org/10.1007/s40803-024-00201-y},
   keywords = {lustration; judges; courts; judicial purges; transition; Czech Republic},
   language = {eng},
   issn = {1876-4045},
   journal = {Hague Journal on the Rule of Law},
   title = {Purging the Judiciary After a Transition: Between a Rock and a Hard Place},
   url = {https://link.springer.com/article/10.1007/s40803-024-00201-y},
   year = {2024}
}

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AU  - Šipulová, Katarína - Kosař, David
PY  - 2024
TI  - Purging the Judiciary After a Transition: Between a Rock and a Hard Place
JF  - Hague Journal on the Rule of Law
SN  - 18764045
KW  - lustration
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KW  - judicial purges
KW  - transition
KW  - Czech Republic
UR  - https://link.springer.com/article/10.1007/s40803-024-00201-y
N2  - Udges play a key role in the implementation of transitional justice mechanisms. Yet, less attention has been paid so far to the question of how to address their collaboration with non-democratic regimes. In theory, judges can be subjected to virtually all transitional justice mechanisms ranging from criminal prosecution and lustration to truth-seeking, or even amnesties. However, we show in a case study of Czechia that these mechanisms are not well equipped to address the complicity of judges in past crimes for three reasons: (1) judges usually play different roles in past crimes from political elites, (2) the principles of the separation of powers and judicial independence preclude the easy replacement of judges, and (3) pragmatic exigencies, such as the shortage of lawyers who are not tainted by cooperation with the previous regime, further complicate the renewal of the bench. Nevertheless, we argue that the lack of recognition of the role judges have played in non-democratic regimes is dangerous, as it may negatively affect public confidence in the judiciary and taint its legitimacy. Examples from Hungary, Poland and Romania, moreover, show that populist leaders are tempted to abuse the transitional justice rhetoric use the failure to deal with the past of judges as a justification for their court-curbing practices. Post-transition purges are therefore stuck between a rock (interfering in judicial independence and practical exigencies) and a hard place (mental dependence of the judiciary on the previous regime, low public trust in courts). When the democratic opposition defeats the populist leader, such as in Poland in 2023, it unfortunately faces the same dilemma. Thus, the Czech way of dealing with the past within the judiciary in transition from communism to democracy (transition 1.0) provides important insights also for today’s undoing of populist judicial reforms and transition from authoritarian populism to democracy (transition 2.0).
ER  -

ŠIPULOVÁ, Katarína a David KOSAŘ. Purging the Judiciary After a Transition: Between a Rock and a Hard Place. \textit{Hague Journal on the Rule of Law}. 2024. ISSN~1876-4045. Dostupné z: https://dx.doi.org/10.1007/s40803-024-00201-y.

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