Foreword

Since 7 November 2000 the European Union has its own Charter of human rights. Although this document lacks legal force, it is a banner professing the Union's allegiance to the fundamental values of the modern world, and a statement of its member States' common purpose. It may be seen as an affirmation of this commitment that in considering candidate States for membership an assessment is made of their progress in the area of human rights.

I do not hesitate to affirm that the independence of the judiciary is a cornerstone, not only of respect for human rights, but also of the rule of law. Yet in international instruments for the protection of human rights, the independence and impartiality of the judiciary have an inconspicuous place. They are almost hidden in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 14 of the International Covenant on Civil and Political Rights.

The actual importance of judicial independence is, however, of a different category from other - individual - rights. We are faced here with a fundamental principle of the organisation of a State, the basic "stuff that constitutions are made of". It is neither the legislative nor the executive branch that ultimately prevents a descent into totalitarianism. An independent judiciary sustains the rule of law without pursuing the aims of a particular political party, and does not hesitate to decide in favour of the weak.

Modern democracies cannot function without a minimum amount of co-operation from their citizens. They must be given the feeling of ''tua res agitur'' (''this is all about you'') with regard to the political entities in which they live, whether it be the commune or town, the province or the State. This requires a fundamental trust in the correct functioning of the institutions - with ''correct'' meaning according to the law.

There are very good reasons to apply an increased degree of scrutiny with regard to countries that have lived under communism for two generations. The role of the judiciary in those times is well known: "judgement by telephone" is the widely known expression for their "method of interpretation". When, following the fall of the Iron Curtain, the first seminars on fair trials were organised for lawyers from Central and Eastern Europe, some participants had no idea what an independent judiciary involved. I was asked, "How is the judge supposed to know which way to decide?"

In attempting to answer such fundamental questions, members of the Union have discovered that simply transferring technical knowledge or providing financial assistance for judicial infrastructure, while necessary, is not sufficient. Even more, they need, and properly ought, to clarify their common values and standards - to identify and articulate what judicial independence means for democratic States in 21st century Europe.

Considerable progress has been achieved over the last ten years. Yet, the process certainly is not completed, and beyond the candidate States, there are further challenges. Practising lawyers from the accession region have told me that there is still quite a way to go, in part because of the difficult economic circumstances that make reform on even basic matters such as ensuring decent salaries for judges so hard to sustain.

The present study, prepared by the Open Society Institute, is an excellent beginning, and a provocative challenge. The study has been undertaken with extraordinary care; very detailed questionnaires were prepared, competent national reporters were engaged and their work was also supervised by an international advisory board. It presents no doubt by far the most elaborate and accurate picture of the independence of the judiciary in the countries covered. Perhaps it will serve as an example for further studies of similar questions, not only in candidate States, but also in the present EU member States. By raising important questions, and setting forth fact-based findings, these reports may assist the strengthening of the independence of the judiciary and the rule of law in the whole Union. What more could one ask?

Stefan Trechsel
Professor of Criminal Law and Procedure at the University of Zurich,
former President of the European Commission of Human Rights