Conference Agenda

The aim of this paper is to provide social-science evidence on the detrimental effects of rule of law backsliding on judicial independence and decision-making autonomy. Our hypothesis is that the constant and relentless pressure on the courts, while far from direct repression or intimidation, may also have an impact on judicial practice, even if it could not completely eliminate judicial autonomy.

We have carried out a statistical analysis over time of judicial practice in a selected area that may be an indicator of judicial independence and resistance to government influence: changes over time in the number of references to the Court of Justice of the European Union (CJEU) for preliminary rulings initiated by judges. We draw conclusions from the number of requests for preliminary rulings per year and their variation, taking into account several other factors, in particular the proportion of so-called politically sensitive cases among the referrals, the level of court to which the referrals were made (lower courts, higher courts or supreme courts), whether the referral has influenced the practice of other courts in the Member State concerned (in particular in terms of suspending their own similar case pending the CJEU's preliminary ruling), and the arguments put forward by the national court in relation to the issues on which the preliminary ruling is sought.

Our research examines the practice of the courts in three countries, Hungary, Poland and Romania, over the period 2008-2023 in relation to the above aspects. Each of these countries is a member state of the European Union in Central and Eastern Europe, and each has undergone judicial reform over the past 10-15 years, with varying degrees of intensity and direction. In the case of Poland, the reform has been more radical and faster, and in the case of Hungary, it has been more protracted, more complex and less radical in one step, but in both countries the reform has fundamentally weakened the independence of the judiciary. In the case of Romania, it was also a longer but more positive reform of the judiciary, mainly in the context of the Cooperation and Verification Mechanism, in preparation for accession to the Schengen area.

Previous research has already been carried out on a comparative analysis of the practice of Member States' courts in requesting preliminary rulings, but with a focus on Western European Member States. The literature publishing the results of these studies will also be used as a literature base for our research. We will also conduct interviews (with judges and court staff) in all three countries in order to confirm or refute the conclusions drawn from the results of our statistical analysis.

The relationships between citizens and judges are inherently as unique as they are complex. Far from domination, where judges would merely sanction citizens, these relationships primarily serve a societal function, where judges resolve everyday conflicts (Humbert, 2014). In doing so, frontline judges – i.e., those serving in police courts and peace courts, in Belgium – directly interact face-to-face with multiple citizens on a daily basis, which means that they can be conceptualized as "street-level bureaucrats" (Lipsky, 1980/2010).

While frontline judges have been at the center of many studies (e.g., Barral, 2014) – more rarely, with a street-level perspective (e.g., Biland & Steinmetz, 2017) – litigants have remained a blind spot in current academic knowledge so far. Yet, how citizens do (or do not) participate in their interactions with the judges adds to the complexity of their relationships. More specifically, some recent works have demonstrated that citizens' emotions can have a significant disruptive effect in certain administrative contexts (Dechezelles, 2018), especially with frontline bureaucrats (e.g., Eshuis et al., 2023).

How do citizens’ emotions interact with decision-making by frontline judges? To address this question, we draw upon existing research on street-level bureaucracy and on emotions in political science, psychology, sociology, and law to suggest that citizens’ emotional skills (Mikolajczak et al., 2014) and judges’ empathy to these emotions (Skowronska, 2021) play a crucial role in their interactions, which culminate in judges’ decisions: towards, against, or aways from citizens – in line with Tummers et al. (2015)’s conceptualization.

To address our research question, we focus on frontline judges in French-speaking Belgium. Following a “concurrent” research design (Creswell, 2009), we integrate direct observations of court proceedings and semi-structured interviews with both citizens and judges, all analyzed thematically (Paillé & Mucchielli, 2016). The interviews, in particular, involve the use of visual methods, including a visual grid based on Plutchik's Wheel of Emotions (1980), as well as the creation of drawings to access the social representations (Couronné, 2016) of administrative situations experienced by the interviewees.

The preliminary findings suggest that certain emotional competencies, as described by the Salovey and Mayer emotional intelligence model (1990), play a crucial role. In particular, the ability to perceive and evaluate emotions, as well as emotional management, appear to be of particular significance. Citizens who are able to deeply understand the emotional implications of a situation could better regulate their own emotions, and adopt appropriate reactions during their interactions, encouraging rapprochement from the judges. In this context, judges' empathy also appears to shape citizens' emotional competencies' impact on administrative decisions: the more judges are likely to feel empathy towards citizens, the more the latter's emotional competencies are likely to have a significant impact, and vice versa. To conclude, we draw the theoretical and practical implications of these results for the management of courts as well as for the procedure and judgements.

References :

Barral, O. (2014). L'émotion du juge. Les Cahiers de la Justice, 1, 73-77.

Biland, É., & Steinmetz, H. (2017). Are Judges Street-Level Bureaucrats? Evidence from French and Canadian Family Courts. Law & Social Inquiry, 42(2), 298–324. Couronné, J. (2016). Pour un usage sociologique du dessin : Réflexion méthodologique à partir d’une étude de cas. Agora débats/jeunesses, 74, pp. 25-38. Creswell, J. W. (2009). Research design: Qualitative, quantitative, and mixed methods approaches. Thousand Oaks, CA: Sage Publications.

Dechezelles, S. (2018). Chapitre 6. Composer avec les affects en enquête publique : Le travail émotionnel dans les conflits autour de projets éoliens terrestres en France. Dans : Loïc Blondiaux éd., La démocratie des émotions : Dispositifs participatifs et gouvernabilité des affects, pp. 167-192. Paris : Presses de Sciences Po.

Eshuis, J., de Boer, N., & Klijn, E. H. (2023). Street-level bureaucrats' emotional intelligence and its relation with their performance. Public Administration, 101(3), 804–821.

Humbert, S. (2014). Les citoyens juges de paix. Histoire de la justice, 24, 167-178. Lipsky, M. (1980/2010). Street Level Bureaucracy: Dilemmas of the Individual in Public Services. Russell Sage Foundation.

Mikolajczak, M., Quoidback, J., Kotsou, I., Nélis, D. (2014). Les compétences émotionnelles. Dunod.

Paillé, P., Mucchielli, A. (2016). L'analyse qualitative en sciences humaines et sociales. Armand Colin.

Plutchik, R., Kellerman, H. (1980). Emotion: Theory, research, and experience, Theories of emotion, vol. 1. New York: Academic.

Salovey, P., Mayer, J.D. (1990). Emotional Intelligence, Imagination, Cognition, and Personality, N° 9, pp. 185-211.

Skowronska, K. (2021). Économie de l’empathie dans un bureau d’immigration polonais : mise en jeu des sentiments, reconnaissance des liens familiaux et droit au séjour. Revue interdisciplinaire d'études juridiques, 86, pp. 167-192.

Tummers, L., Bekkers, V., Vink, E., Musheno, M., (2015). Coping During Public Service Delivery: A Conceptualization and Systematic Review of the Literature, JPART, n°25, pp. 1099-1126.

While in some countries judicial associations have long been objects of scholarly interest, theburgeoning debate over judicial independence in Europe and the growing interconnection between associations of different states have broadened the discussion beyond strictly domestic borders. The adoption of a specific opinion on judicial associations by the Consultative Council of European Judges

on November 6, 2020 (No. 23/2020) is further evidence of the increasing transnational attention to the topic. To draft such Opinion questionnaires were submitted to Council of Europe (CoE) Member States. By analyzing and classifying the replies of the CoE Member States, we first intend to offer a comprehensive assessment of the European experiences to highlight convergences and divergences. Secondly, we aim to juxtapose the representation of judicial associations as it emerges from the replies with the one debated in legal scholarship. Thirdly, we will try to understand the role of judicial associations in promoting and upholding judicial independence, with particular emphasis on the Italian Case.