Declaration of Riga
Confronting Threats to the Rule of Law
I. Preamble
1. The Rule of Law is essential for upholding the fundamental values of human dignity, freedom, democracy, equality and human rights (Article 2 of the TEU) on which the European Union is founded. Observing the Rule of Law requires all public powers to act
in accordance with these values, and within the constraints set out by law. The judiciary serves as a guarantor of respect for the rights of individuals through the application of law. The judiciary has to contribute to upholding the Rule of Law through high-quality decisions, timely justice and openness to society. This is why its impartiality and independence must be unequivocally defended.
2. The Rule of Law encompasses multiple elements, which show themselves across different areas of activity. This declaration addresses not only the threats to the Rule of Law but also the actions required to confront them from the perspective of Councils for
the Judiciary and alternative judicial governing bodies.
3. In recent years a combination of factors has created fundamental challenges to the Rule of Law. These factors include political developments, societal changes, a wholesale shift in the media landscape and the impact of digital advances. Each and every one of these phenomena present real threats to the Rule of Law and associated challenges to the judiciary. In order to set out how to meet these challenges we must first describe them.
II.
Challenges
4. The threats to the Rule of Law vary in nature, magnitude and effect. Some of them are clear, while others are more obscure and emerge through a combination of measures put in place over a period of time. The effects of such measures can range from a chilling effect within the judiciary to the erosion of society’s trust in judicial institutions.
5. Several challenges relate to the separation of powers and the system of checks and balances — the very core of democracy. In this framework, the judiciary must retain the power to review the legality of the actions of the executive and, where appropriate, the legislature. When this balance is disturbed, the judicial system cannot function properly. The right to a fair trial by an independent tribunal is undermined.
6. In some countries, relations with the other state powers have become increasingly problematic. The situation has deteriorated in various ENCJ Members and Observers. The undermining of the judiciary can include the failure to implement decisions which go
against the government, a lack of proper consultation with the judiciary on relevant draft legislation, and the implementation of reforms without the consent of the judiciary.Judges should accept legitimate critisim. However, it has occurred that state powers and
individual potititians have attacked publicly both individual judges and the judiciary as a body. Inevitably, such attacks will diminish or destroy society's confidence in the administration of justice in its entirety. Attacking judges for performing their judicial functions is a clear breach of the separation of powers.
7. A free media is a watchdog of democracy. It is one of the institutions that uphold the Rule of Law. Free media, under pressure in a growing nymver of countries, make an important contribution to the transparency and openness of the Judiciary. However, there is a growing tendency of politicians and others to influence media outlets and to use them as a vehicle to attack the decisions of the courts. This in turn puts pressure on the judiciary through misinformation, disinformation and the targeted exposure of judges. That pressure has lead to threats not only to the reputation of judges but also to their physical and psychological safety in the courtroom and outside. Increasingly dissatisfied people feel entitled to take their grievacnes against officials, including judges.
8. The media landscape deserves particular attention. The diminishing role of the traditional media and investigative journalism, coupled with the rise of social media and self-reporting, increases the risk of trial by media in cases which attract public attention.
Monitoring these developments requires considerable resources. Often, it can be extremely difficult to identify and counter narratives harmful to the judiciary. Such narratives will, of course, contribute to a growing loss of public confidence.
9. The allocation of inadequate resources to the judiciary also helps to undermine the Rule of Law. This can involve limiting the ability of the judiciary to participate meaningfully in the planning and allocation of the judicial budget. Even more directly, it can mean cutting judicial funding or stalling any increase of judicial and support staff salaries in spite of inflation while raising other public sector wages. It can further involve denying judges essential support staff. Lack of resources also leads to a seriously excessive workload. Inevitably, such actions degrade the status of serving judges and discourage others from choosing a judicial career.
10. Advances in digitalization have in many ways improved access to justice. These advances also make the work of judges more efficient and expeditious. This brings benefits to both citizens and the judiciary. However, these technological advances come with their own problems. As far as individual judges are concerned, the profiling of judges and the ability to identify judges who have taken decisions in sensitive cases, increases the risk of threats which may run to verbal or physical violence. Challenges concerning the judiciary as a whole include the safeguarding of data and the possibility that data retention systems could allow the executive to access the computers and data of judges or their staff, thereby infringing judicial independence.
III. Current framework
11. Each of these threats may disturb the delicate balance of power between judiciary, executive and legislature. Any of these challenges could both diminish the status of the judiciary, as well as overly exposing it inappropriately to the direct scrutiny and control of other state powers.
12. There should be proper legal and institutional safeguards in place at the European and national level ensuring effective protection of judicial independence. These safeguards should be in line with the standards set by the ENCJ. The standards of the ENCJ with regard to judicial transparency and accountability should also be met.
13. Even though there are systemic mechanisms on the EU level to counter these threats, their application can often be delayed. They are also tailored to address situations where the threat to the Rule of Law has reached an advanced stage. Therefore, as the first line of defence, these threats must be confronted by the judiciaries themselves. Councils for the Judiciary and other alternative governing bodies play a crucial role in this regard.
IV. Actions
14. Constant vigilance is necessary from the Councils for the Judiciary to identify promptly any threat to judicial independence and any development which might tend to undermine the Rule of Law.
15. Councils for the Judiciary must also show leadership and courage. They must act without delay, and employ all means available to them. These may include the issuing of legal opinions, speaking up on behalf of the judiciary, canvassing public support for judges, engaging with the other state powers and alerting EU institutions and judicial bodies to their difficulties.
16. Steps should be taken to establish and maintain effecient cooperation with the organizations of other legal professions. Civil society can be a strong and trustworthy ally for the judiciary in times of need. The trust of society in the judiciary, can be created
through transparency and accountability of the judiciary, widespread knowledge about the Rule of Law is also key. Councils should therefore invest in public outreach and education, especially of the young.
17. The judiciary's story must be told effectively. Citizens need to understand what judicial independence means for them individually and what benefits it brings to their country's economic growth and stability. To achieve this, the judiciary should establish strong relationships with media outlets and develop open communication channels to reach wider audiences.
18. The resilience of the judiciary must be built and maintained. When the Rule of Law is in danger, Councils for the Judiciary must openly share their position with the rest of the judiciary. Resilience can be built through active means. These include training the
judiciary, and instilling the understanding among the judicial corps that the Rule of Law entails many elements beyond the legality of laws. Judges must be informed that the prudent convention to stay silent does not apply when the Rule of Law is in danger. Judges must be encouraged to share with their peers any reservations or doubts about ongoing processes.
19. Finally, solidarity among the European judiciaries is an essential value. As articulated in the Declaration of Athens 2022, it is worth reiterating. Both preventative and reactive solidarity are necessary to protect the Rule of Law. Councils for the Judiciary, must support and actively speak out for any colleague in trouble. The ENCJ here plays a singular role. Even though the ENCJ cannot engage in political debates, it will support judges by raising awareness, publishing statements, dealing with the European institutions and where appropriate carrying out solidarity visits to Members and Observers alike.