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Corruption or compliance? Informal relationships within the justice system can lead to both

Legal expert David Kosař is the last of the three MU researchers who were awarded an ERC Consolidator grant at the end of 2020 to be interviewed. Read on to find out more about the objectives of his research.

David Kosař established a new Judicial Studies Institute at the MU Faculty of Law where the research topics include judicial self-government, the operation of the justice systems in various European countries and the potential of online justice.

David Kosař is an experienced judicial studies researcher. Six years ago, he received the ERC Starting Grant from the European Research Council to study the impact of the rise of judicial self-government on the separation of powers. He was then successful in establishing a new Judicial Studies Institute at the MU Faculty of Law where the research topics include judicial self-government, the operation of the justice systems in various European countries and the potential of online justice.

The new project supported by the ERC Consolidator grant is called INFINITY and combines legal theory, sociology and political science. The main objective of INFINITY is to identify the most important informal judicial institutions, assess their impact on the justice system in the country, whether positive or negative, analyse the influence that the EU and the Council of Europe have on these structures, and launch a new direction in the research of justice, which to date has mostly consisted of the interpretation of formal rules.

Does the new ERC grant build on the previous one?
The new ERC project is different but there is an intellectual link. If we did not study judicial self-government so minutely, we would not realise the importance of informal relationships and we would not start asking the questions that we will focus on under the new grant.

Can you summarise both the previous and the upcoming project?
My team has been studying the formal rules and institutions within judicial self-government. We examined how established they are within each country and what impact they have on the independence and transparency of courts and the public trust in the court decisions. However, this research opened our eyes to the major role played by informal institutions and relationships and inspired a new research direction, which we are now able to pursue thanks to the second ERC grant.

What is the effect of these informal relationships?
In terms of formality, the Eastern and Western European justice systems are often fairly similar. The formal rules for the selection of judges and other key processes are completely or nearly identical. The difference between these systems lies in the informal relationships and rules, institutions, customs, expectations and gender stereotypes. In each country, the key decision-makers who influence the justice system, as well as the overall functioning of society, have been shaped by different experiences and different national past. Informal relationships can lead to corruption, as we are currently witnessing in connection with the arrests of judges in Slovakia, to nepotism in the selection of judges or to political attempts to influence sensitive cases. However, informal institutions may also lead to mutual respect between representatives of different branches of power, exchange of information about the judicial system or the formation of best practice and customs surrounding an ambiguous piece of legislation.

Your previous grant research focused on the justice systems in 14 EU countries and two European court institutions. Did you notice any significant differences in their informal judiciary structures?
We will study informal institutions under the current grant, which officially does not start until September 2021, so we cannot be sure. However, the snippets of information we have gathered so far appear to show that informal institutions can have both a positive and a negative impact. The negative effects include corruption and nepotism, where positions within the system are filled based on personal relationships rather than merit. In a positive sense, informal institutions can fill gaps in the legislation: everyone knows that certain things are off-limits and the whole community respects that. In the UK, for example, they have no formal rules in many situations, but things still run smoothly. Thanks to the watchful eye of the public, the Bar Council and one’s peers, chief judges do not assign their friends to simple or interesting cases while overloading other judges or only assigning them to a specific type of case. The French supreme judiciary council is formally presided over by the French president, but since he also represents the executive branch, it has become customary for him to refrain from attending the council’s meetings, although the formal rules allow that.

There must be many such informal rules in every country and it might be difficult to uncover them, especially those that are harmful. How do you plan to obtain data for your research?
This is, of course, the risk that we take with this project. On the other hand, if it was easy, someone else would have done it a long time ago. We use in-depth interviews as our main research method. To obtain what we need from these interviews, we need to have a good understanding of the system and the trust of our respondents, which we have already earned in previous projects. Moreover, we try to reduce the risk of inaccurate information by interviewing politicians and journalists as well as judges. Journalists who follow the justice system are often highly knowledgeable about its weaknesses and scandals and are more willing to talk about them. We would also like to include retired judges who might be more open to discussing informal relationships. We will also take advantage of empirical research focused on corruption and the trust of the public in the justice system.

Do you have any idea what the situation is in the Czech Republic?
From the media coverage, we know a little about the attempts to establish informal relationships between judges and politicians. These came to light in the heavily publicised meetings between the head of the Presidential Office and the Constitutional Court and Supreme Administrative Court judges. We also know that the board of presidents of Regional Courts is a major player who is often able to assert its interests. And we are interested in the membership of judges in various non-profits and sports associations and the relationships that are established there.

Do you have the same objectives for each country or are there any country-specific ones?
The project consists of several pillars that are relatively independent of each other. We would like to focus on the role of gender institutions, informal institutions within the justice systems and informal relationships between judges and politicians. Since each pillar has a different focus, they each require different countries that can serve as case studies. For example, the gender pillar not only requires a comparison of countries with different legal systems but also countries with few women in the judiciary as opposed to countries with sufficient numbers of women at all levels, including the top positions.

This is the second time you were awarded an ERC grant, which is a great success.
It took us a long time to find a workable topic that would be sufficiently new and different from the last one. To win such a prestigious grant, you need a really strong and original idea and you must be able to quickly outline a research proposal based on the topic. We were successful on both counts, but I was still rather sceptical when we were submitting our grant request. Personally, I think it is rather a disadvantage to have already been awarded an ERC grant because the committee is careful to prevent people from latching on to a source of EU funding without sufficient added value. You must be able to prove that your new project is something major that will move your field and your research forward. I think it helped that our project is interdisciplinary and involves political scientists and sociologists as well as legal experts. I also found the various practice interviews at the Rector’s Office and the Technology Agency of the Czech Republic extremely useful and my colleagues from the MU Faculty of Arts and Faculty of Social Studies gave me helpful advice. I must say that when I was told that we had won another ERC grant, it was a wonderful pre-Christmas surprise.