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42 Fordham Int'l L.J. 481 (2018-2019)
Independence without Accountability: The Harmful Consequences of EU Policy Toward Central and Eastern European Entrants

handle is hein.journals/frdint42 and id is 498 raw text is: ARTICLE INDEPENDENCE WITHOUT ACCOUNTABILITY: THE HARMFUL CONSEQUENCES OF EU POLICY TOWARD CENTRAL AND EASTERN EUROPEAN ENTRANTS James E. Moliterno, * Lucia Berdisovci, ** Peter Curo§, *** & Jcin Maztr ABSTRACT In the name of judicial independence, a concept whose name is nearly magical in its capacity to draw reflexive devotion, the European Union (the Union) and Council of Europe' have used their bargaining power to impose nearly uniform structural systems on the most recent entrants with little regard for their own individual legal cultures and social conditions. This strategy ignores the reality that nations with the most successful systems of judicial independence, including those of old Europe, reached their own judicial * In 2006, I wrote a paper called The Administrative Judiciary's Independence Myth, 41 Wake Forest L. Rev. 1191 (2006), in which I argued that administrative law judges (ALJs) are not independent in the usual, structural sense. I noted that ALJs have some attributes in common with civil law judges, whose job is to apply rather than make law, as common law judges do. Since 2006, I have had the opportunity to work on various ethics issues with developing judiciaries in Kosovo, Indonesia, Ukraine, and Slovakia. Naturally, I have learned more about civil law judging than I could ever have learned by reading about it. These experiences have caused me to revisit issues of judicial independence and impartiality in the context of European court systems and those that are developing using a mixture of continental European, UK, and US models. Thanks to Luke Graham for excellent research and editorial assistance. ** Slovak Academy of Sciences, Institute of State and Law, Bratislava Slovakia and University of Trnava Faculty of Law, Trnava Slovakia University of Pavol Jozef Saffirik Faculty of Law, Kogice Slovakia. **** Comenius University in Bratislava Faculty of Law, Bratislava Slovakia. 1. In this Article we discuss the policies of the Council of Europe, which should not be confused with the European Council or the Council of the European Union, which are two of the seven core institutions of the European Union. The Council of Europe is an international organization aiming to uphold human rights, democracy, and rule of law in Europe. It is distinct from the European Union and has more member states than the European Union, although its organizational scope and competences are far narrower than those of the Union.

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