Judicial reforms in eastern europe: Ensuring the right to a fair trial or an attack on the independence of the judiciary?

Abstract

The right to a fair trial is one of the essential elements of the rule of law – a fundamental value of the modern constitutional state. Among the systems of institutional, organisational, and substantive guarantees for ensuring this right, which stem from the European Court of Human Rights case law, there is ‘a fair and public hearing by an independent and impartial tribunal established by law’. This requirement is organically linked to the principle of the separation of powers, which is a central tenet of constitutionalism and provides for the functioning of the judiciary as a separate, independent branch of power. Therefore, any changes in the judicial systems of modern constitutional states, or, moreover, judicial reforms, should not only avoid contradicting these principles but, on the contrary, should be aimed at ensuring the right to a fair trial. However, the experience of such reforms in a number of Eastern European countries, despite the declaration of their perfectly legitimate and positive goals, raises questions about their true direction. As a result, not only does the institutional mechanism for the protection of human rights (which is the immediate goal of proclaiming the right to a fair trial) suffer, but also the constitutional systems of the countries concerned become unbalanced and unable to respond adequately to political challenges. This paper examines the essence of judicial reforms in a number of Eastern European countries (Serbia, Northern Macedonia, Poland, Hungary, Romania, Moldova, and Ukraine) and analyses them in terms of their impact on ensuring the right to a fair trial and the functioning of constitutional systems.