The judiciary occupies a unique position in a democratic society. It is called upon to decide disputes that cannot or should not be left to the political branches (which includes the legislative and executive branches as well as the civil service, which is professional rather than political, but whose senior management is politically appointed) and private individuals. It upholds the law for all - and in doing so, it also safeguards the rights of individuals and minority groups of all types against the excesses of majoritarianism. This sometimes requires judges to confront the interests of the political branches or powerful individuals, but because judges are not democratically elected, they must derive their authority and legitimacy from different sources than do the political branches; one of judges' most important source of legitimacy and authority is their independence.

Meaningful independence (and public perception of that independence) is essential to the judiciary's legitimacy as a guarantor of right and freedoms. If the judiciary is not independence of the executive and the legislature, it can not properly restrain those branches. If courts are not seen as independent (and impartial), citizens will not turn to them to resolve their problems, but may seek recourse through political or extralegal means.

The legislature and the executive themselves have a direct interest in judicial independence; they often need the judiciary to resolve problems which do not have easy political solution - but the judiciary can do this only if all parties see it as a neutral arbiter, independent of the branches and parties which have turned to it in the first place. This holds particular truth with regard to the resolution of election disputes where judges' interference may be decisive and thus subject to high pressure.

The importance of judicial independence extends beyond the political; economists have noted the importance of an independent and impartial judiciary to a stable and prosperous economy. Individuals and institutions must be able to rely on predictable justice - free of the vagaries of political interference or economic influence by either party - in the adjudication of their claims. In societies struggling to reform their economies, judicial independence contributes to the confidence, security and predictability of economic transactions.

In the OSCE region, although significant progress has been made towards judicial independence, legal reforms are not completed. Constitutional and legislative guarantees are in place and accepted in many countries, but a culture of political subordination of judges to politicians and of law to politics is still prevalent. New laws does not prevent judges, most of which studied during the communist era, to apply old ones. This is also reflected in the appointment system of judges, the lack of enforcement of rulings and the still prominent role of prosecutors to the detriment of judges' independence.

Based on "Monitoring the EU Accession Process: Judicial Independence", Open Society Institute, EU Accession Monitoring Program, December 2001