‘INDEPENDENCE’*
by Martin Kuijer1
Despite the fact that the (theoretical) importance of judicial independence has been recognised for
many years, the concept has not received a great deal of attention in practice. Shetreet wrote:
“For many generations, the independence of the judiciary has been viewed as a significant
principle of the Rule of Law in a democratic-libertarian society. Nevertheless, only in recent
years this topic begun to be studied adequately.” 2
Only recently, roughly from 1980 onwards, has judicial independence received appropriate
attention on the international level. This was to a great extent prompted by some influential
NGO’s, like the International Commission of Jurists (ICJ). In 1978 the ICJ set up a Centre for the
Independence of Judges and Lawyers (CIJL) in Geneva. The CIJL was an active participant in the
discussions resulting in the so-called Milan Principles adopted by the United Nations General
Assembly in 1985.3 Subsequently, initiatives were also taken on the regional level. In 1994 the
Committee of Ministers of the Council of Europe adopted Recommendation R (94) 12 on the
Independence, Efficiency and the Role of Judges4 and in 1998 the European Charter on the Statute
for Judges was adopted within the framework of the Council of Europe.5 More recently, one can
discern a great deal of attention for judicial independence in light of the accession of candidate
*
This material was provided by the National Institute of Justice with the author’s approval. It is
included in the current data base in the frames of the project ‘Promoting Efficiency of Bulgarian
Judiciary in the Area of Human Rights Protection’, accomplished by BLHR Foundation from
November 2005 to August 2006.
1
Prof. Dr. Martin Kuijer is Professor in human rights law at the Free University of Amsterdam.
The author is head of the human rights department of the Dutch Ministry of Justice and is
responsible for the representation of the Netherlands before the European Court of Human
Rights. This article is a chapter of his doctoral thesis “The Blindfold of Lady Justice - Judicial
Independence and Impartiality in Light of the Requirements of Article 6 ECHR”, Wolf Legal
Publishers 2004.
S. Shetreet & J. Deschênes (eds.), Judicial Independence – the Contemporary Debate,
Dordrecht: Martinus Nijhoff, 1985, p. XV.
2
3
The Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders (Milan,
26 August to 6 September 1985) adopted the Basic Principles on the Independence of the
Judiciary by consensus. These Principles were then ‘endorsed’ by the UN General Assembly
(A/RES/40/32, 29 November 1985) and later ‘welcomed’ inviting governments ‘to respect them
and to take them into account within the framework of their national legislation and practice’
(A/RES/40/146, 13 December 1985).
4
Recommendation No. R (94) 12, adopted by the Committee of Ministers on 13 October 1994 at
the 518th meeting of the Ministers’ Deputies, to be found in: Council of Europe, Yearbook of the
European Convention on Human Rights, Vol. 37 (1994), p. 453.
5
Council of Europe, European Charter on the Statute for Judges, Strasbourg, 8-10 July 1998
(DAJ/DOC (98) 23).
1
member states from Eastern Europe to the European Union.6 Furthermore, various international
associations of judges have addressed the issue of judicial independence.7 These international
developments prompted a renewed interest for the topic on a national level. Prior to these
developments, the discussion on judicial independence had almost exclusively focused on the
theoretical conceptual framework. This conceptual framework will be discussed in the first
paragraph.
Paragraph 1
Theoretical introduction to the concept of judicial independence
The requirement of judicial independence stems from various, closely intertwined, constitutional
concepts. Judicial independence can be seen as an integral part of the wider concept of the Rule of
Law. Various legal backgrounds acknowledge the existence of such a concept. However, even
though the Anglo-American Rule of Law, the German Rechtsstaat and the French ‘prééminence
du droit’ comprise similar sets of principles, they are not exactly identical. As Walker states:
“A concept of the utmost importance but having no defined, not readily definable, content. It
implies the subordination of all authorities, legislative, executive, judicial, and other to
certain principles which would generally be accepted as characteristics of law, such as the
ideas of the fundamental principles of justice, moral principles, fairness and due process. It
implies respect for the supreme value and dignity of the individual.
In any legal system it implies limitations on legislative power, safeguards against
abuse of executive power, adequate and equal opportunities of access to legal advice and
assistance and protection, proper protection of individual and group rights and liberties, and
equality before the law. In supranational and international communities, it implies
recognition of the different traditions, aspirations and claims of different communities, and
the development of means to harmonise claims, resolve conflicts and disputes and eliminate
violence. It means more than that the government maintains and enforces law and order, but
that the government is, itself, subject to rules of law and cannot itself disregard the law or
remake it to suit itself.” 8
Despite conceptual problems to precisely define the scope of what is meant by the reference to the
Rule of Law, it is generally accepted that the concept consists of several (once again: closely
intertwined) components: separation of powers (trias politica), the principle that all acts of the
public authorities be founded in and subject to the law, respect for fundamental rights and
6
See, for example, the final report of the PHARE Horizontal Programme on Justice and Home
Affairs ‘Reinforcement of the Rule of Law’ – a study of over 600 pages on the question whether
candidate countries Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland,
Romania, the Slovak Republic and Slovenia fulfil the requirements concerning an independent
judiciary (European Commission, Reinforcement of the Rule of Law, Nijmegen: Wolf Legal
Productions, 2002).
7
The “Judges’ Charter in Europe”, adopted on 20 March 1993 in Wiesbaden by the European
Association of Judges and the “Universal Charter of the Judge”, unanimously adopted in
November 1999 in Taipei by the International Association of Judges.
8
D.M. Walker, The Oxford Companion to Law, Oxford, 1980, p. 1093.
2
freedoms and judicial independence. Sometimes an effective democratic system is added as a fifth
element.
Judicial independence is therefore often seen as a direct consequence of the doctrine of separation
of powers. The Inter-American Commission on Human Rights stated:
“The effective observance of [judicial] guarantees is based on the independence of the
judiciary, which derives from the classic separation of the three branches of government.
This is the logical consequence of the very concept of human rights. In effect, to protect the
rights of individuals against possible arbitrary actions of the state, it is essential that one of
the branches have the independence that permits it to judge both the actions of the executive
branch and the constitutionality of the laws enacted and even the judgments handed down by
its own members. Therefore, the Commission considers that the independence of the
judiciary is an essential requisite for the practical observance of human rights in general.” 9
Also the United Nations Human Rights Committee has endorsed the doctrine of the separation of
powers. For example, it expressed concern in its Concluding Comments on Romania over the
‘interference of the executive’ in judicial matters, and recommended “a clear demarcation
between the competence of the executive and judicial bodies”.10
The fundamental principle of the separation of powers was already formulated by
Aristotle in his Politika and took a more final form as a doctrine by Montesquieu in his De l'esprit
des lois of 1748.11 The basic powers of the public authorities (legislative, executive and judicial)
should not be concentrated in the hands of one single institution, but should be allocated to
distinct organs. The organ of one function is prohibited from developing state activity in a section
belonging to the jurisdiction of another function. To ensure that these organs will exercise their
powers within their limits, the idea of separation of powers is combined with a system of ‘checks
and balances’. The various powers interact so that a careful equilibrium is maintained.12 This is
also true for the judiciary. The judge should base his decision on the law. In other words, the
judge is bound by the law. But in view of past experiences it would seem undesirable that the
judge becomes a mere bouche de la loi who applies any legislative product regardless of whether
or not it fulfils certain quality standards. For example, certain quality standards of a procedural
character (a judge can only be bound by laws that have been developed in accordance with
democratic principles) or certain quality standards of a more substantive character (a judge is not
9
IACHR Seventh Report on the Situation of Human Rights in Cuba (1983), p. 51. Cited with
approval in Case 10.006 (Peru), mentioned in IACHR Annual Report 1994 (OEA/Ser.L/V/II.85
(1995)), pp. 92-93.
10
UN doc. CCPR/C/79/Add. 111 (1999), §10.
11
Montesquieu, Oeuvres complètes, II, Texte présenté et annoté par Roger Caillois, Éditions
Gallimard, 1951, p. 396.
12
C.A.J.M. Kortmann, Constitutioneel recht, Deventer, 2001, p. 286.
3
bound by domestic law that is in breach with international ius cogens).13 This should not be
understood that every individual judge should be a 'constitutional island' capable of declaring a
certain legislative product void. But there should be a body within the judiciary (a Constitutional
Court or a Supreme Court) that can declare certain Acts of Parliament void or, at least, nonapplicable in particular situations. This could lead to a deadlock between the various public
powers, but that is the inevitable result of a system of 'checks and balances'. On the other hand, the
judiciary should not become a ‘state within the state’.14
Some have based the need for an independent judiciary on the same principles underlying the
concept of the Rule of Law, but have chosen a slightly different angle. They argue that the need
for judicial independence is based on the idea that all subjects of law are guided by their own
subjective self-interest when formulating, applying and interpreting the law.15 A logical
consequence will be that conflicts will arise. Assuming that a peaceful settlement of disputes is
preferable for the stability of any society, dispute settlement should be exercised by a neutral body
which is acceptable and trustworthy to all parties. Since public authorities can also be involved in
disputes, it is unavoidable to entrust judicial tasks to a body that is part of the state but
independent vis-à-vis the other state authorities.
All these (slightly distinctive) ‘roots’ of judicial independence explain why judicial independence
is foremost seen vis-à-vis the executive and legislative powers (the strict definition of judicial
independence). Nowadays, however, judicial independence will be more and more interpreted as
requiring that the judge can base his or her decision on his own free conscience without being
subjected to any authority, including other organs of the state, litigants and other pressure or
interest groups (the broad definition of judicial independence). This raises the relational aspect of
13
The participants of a multilateral meeting within the framework of the Council of Europe
recognised that the primacy of international law over domestic law is a necessity (see the
Conclusions of the multilateral meeting ‘The judge and international law’, held in Bucharest on
28-30 November 1995, to be found in: Council of Europe, Independence, impartiality and
competence of judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5)).
Koller makes a more direct link with the Rule of Law: “[…] acceptance of the primacy of
international law over internal laws is one of the cardinal elements in the introduction of the Rule
of Law” (A. Koller, “The Legal Heritage of the Council of Europe”, in: Human Rights Law
Journal 1990, p. 210).
Cf. the Radbruch Formula, which justifies the imposition of supra-statutory law over positivist
but unjust law, and Article 7 §2 ECHR (“This article [in §1 prohibiting ex post facto
prosecutions] shall not prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognised by civilised nations”). See on the Radbruch doctrine in the case-law of the European
Court of Human Rights: R. Miller, “Rejecting Radbruch: The European Court of Human Rights
and the Crimes of the Eastern German Leadership”, in: Leiden Journal of International Law, not
yet published.
14
P.P.T. Bovend’Eert, “Modernisering van de rechterlijke organisatie: integraal management als
staatsrechtelijk probleem”, in: A.K. Koekkoek (ed.), Organisatie van de rechtspraak, Deventer,
1999, pp. 6-7.
15
See M.C. Burkens, H.R.B.M. Kummeling, B.P. Vermeulen, R.J.G.M. Widdershoven, Beginselen
van de democratische rechtsstaat, Deventer, 2001, p. 23.
4
judicial independence: independence vis-à-vis which authority? How has this rather elusive
concept been defined in the literature?
Judicial independence is often analysed by way of distinguishing different components:
 Functional independence
Functional independence focuses on the manner in which judges should exercise their judicial
functions. It means that judges administer justice only according to the laws and their conscience
without being subject to orders or following instructions or suggestions of other state bodies or
hierarchically superior courts.16 On the basis of this definition a few comments need to be made.
Firstly, functional independence includes in my opinion what is called by some
commentators constitutional independence. Constitutional independence focuses on the inclusion
in domestic law of the doctrine of separation of powers. It emphasises independence of the
judiciary vis-à-vis the other state bodies. Any intervention by another public power in the
administration of justice, including the forming of the judge's opinion and the passing of the
judgment, is prohibited. This constitutional independence stems in my opinion directly from the
above-mentioned definition: the judge should in the exercise of his judicial functions not be
"subject to orders [...] of other state bodies".
Secondly, functional independence includes in my opinion what is called by some
commentators factual independence. According to these commentators factual independence will
be infringed in case a situation arises in which the judge does no longer feel free to follow his own
considerations. Factual independence does not necessarily refer to pressure originating from
public powers, but can also refer to pressure originating from other external sources (for example,
public opinion, politics, pressure or interest groups). The above-mentioned definition refers to the
fact that judges in the exercise of their judicial functions should base their decisions solely on
laws (including provisions in international human rights treaties) and their own conscience. This
requirement is violated in case the judge is no longer free to follow his conscience because of
factual outside pressures. In practice this factual independence will often be considered in the light
of the impartiality requirement, but this does not mean that this kind of factual dependency should
not be qualified as an issue within the context of judicial independence.17 Judicial independence is
threatened in case these outside pressures on a judge are systematic. Admittedly, in case outside
pressures are systematic one could argue that there is a lack of legal guarantees. This line of
reasoning would then imply that the executive and legislative branches failed in their positive duty
to protect the judiciary. The other public powers acted in breach with the positive obligation to
enact and enforce effective legislation. In that line of reasoning factual independence is indirectly
16
Council of Europe, Judicial Organisation in Europe, Strasbourg: Council of Europe Publishing,
2000, p. 162. Cf. the report of the Nederlandse Vereniging voor Rechtspraak in Trema Special
1979-2, p. 2.
17
See to the contrary: L.F.M. Verhey, "De onafhankelijkheid van de rechter naar Nederlands
recht", in: De onafhankelijkheid van de rechter - Preadvies voor de Vereniging voor de
vergelijkende studie van het recht van België en Nederland, Deventer: Tjeenk Willink, 2001, p.
22 and F.A.M. Stroink, "De betekenis van de Straatsburgse jurisprudentie inzake
onafhankelijkheid en onpartijdigheid voor het Nederlandse recht", in: NJCM-Bulletin 1999, p. 9.
5
protected via the strict interpretation of functional independence, without being a distinctive
component. The result however is the same: factual independence is included. That is also the
conclusion of delegates of the various High Councils of Judges during a meeting in 1997: “[The
judge] is only subjected to the law which he applies and interprets. That means that no pressure
from the State, from politics or other forces must influence judicial decisions”.18
Factual pressures on a judge can also originate from within the judiciary (which in this
particular context can include members of the public prosecution19), for example hierarchical
relations, ambitions concerning judicial career, the pursuit of efficiency, the existence of internal
guidelines. So, in my opinion, factual independence comprises what is called by some
commentators as internal independence. This internal independence is controversial in
literature.20 However, the fact that this element of judicial independence may be underdeveloped
in doctrine and case-law, does not mean that systematic practices within the judiciary can never
have a negative impact on the free decision-making power of a judge.
 Personal independence
Personal independence does not focus on the exercise of judicial functions, but on the official
status of the judicial officer. Personal independence of judges can be secured by way of provisions
concerning appointment, promotion, incompatibilities, duration of term of office, irremovability,
transferrals, the exercise of disciplinary powers, payment, et cetera.
Some authors also refer to institutional independence. I have avoided the use of this notion since it
18
Conclusions and recommendations of the conference ‘Guarantees of the independence of the
judiciary’, meeting in Warsaw and Slok from 23 to 26 June 1997, to be found in: Council of
Europe, Independence, impartiality and competence of judges – Achievements of the Council of
Europe (doc. no. MJU-22 (99) 5).
19
See, for example, P.B. Cliteur, “De onafhankelijkheid van de rechterlijke macht: acht vormen”,
in: J.P. Loof (ed.), Onafhankelijkheid en onpartijdigheid, Leiden: NJCM-Boekerij, 1999, p. 15.
20
Proponents of internal independence include: F.J.F.M. Duynstee, "Rechterlijke
onafhankelijkheid", in: Rechtspleging - Opstellen rond het thema rechterlijke organisatie,
Deventer, 1974, p. 43 et seq.; J. ter Heide, De onafhankelijkheid van de rechterlijke macht. Een
functioneel-analytische beschouwing, Amsterdam/Brussel: Agon Elsevier, 1970; P. Ingelse,
"Wie verdeelt de strafzaken? Wie koopt de nietjes?", in: NJB 1996, p. 99; H. Franken,
Onafhankelijk en verantwoordelijk, Deventer, 1997, pp. 14-15; F.A.M. Stroink, "De betekenis
van de Straatsburgse jurisprudentie inzake onafhankelijkheid en onpartijdigheid voor het
Nederlandse recht", in: NJCM-Bulletin 1999, p. 8. Inclined towards internal independence: S.
Royer, "De professionele habitus van de rechter", in: NJB 1996, p. 1577; P.P.T. Bovend'Eert,
"De rechterlijke organisatie: een nieuwe buitendienst van het Ministerie van Justitie?", in: NJB
1996, p. 675. See also: P. Nicolai, Het nieuwe bestuursprocesrecht - Preadvies VAR, Alphen aan
de Rijn, 1994, p. 141.
Against the acceptance of internal independence: J.H.P. Donner, "Hollen of stilstaan, Functie en
functioneren van de rechterlijke macht", in: Justitiële Verkenningen 1995-2, p. 41; M.S.E.
Wulffraat-Van Dijk, Feitenonderzoek door de bestuursrechter, Zwolle, 1995, pp. 367-368;
Th.G.M. Simons, De rechterlijke organisatie in Nederland, Deventer, 1996, p. 39. Inclined
against the acceptance of internal independence: S.K. Martens, "Mogelijkheden en grenzen van
rechterlijke samenwerking, een verkenning", in: De mogelijkheden en grenzen van rechterlijke
samenwerking, Prinsengrachtreeks 1997/4, p. 17 and C.A.J.M. Kortmann, Constitutioneel recht,
Deventer, 2001, p. 251.
6
is not always clear what is exactly meant. Sometimes it refers to constitutional independence, in
the sense that a constitutional framework of judicial organisation is required which also lays down
the demarcation of competences between the judiciary and other public powers. Sometimes it
refers to internal independence, i.e. the institutional structure within the judiciary and courts.
A remaining question is whether judicial independence only relates to the judiciary as a body, or
whether it also relates to a judicial tribunal and an individual judge. Questions relating to personal
independence strongly suggest that judicial independence can only relate to the judiciary as a
body. The answer is not so obvious if one looks at functional independence. I have argued that
factual (including internal) independence falls within the scope of the concept ‘judicial
independence’. In case of internal independence it seems difficult to argue that judicial
independence only relates to the judiciary as such, when one is dealing with pressures of one part
of the judiciary on another. This however is not decisive. What is decisive is the systematic nature
of the problem.21
Problems of factual (and internal) independence have a systematic character because the other
public powers failed in their positive duty to protect the judiciary. The other public powers acted
in breach with the positive obligation to enact effective legislation. So, while indirectly accepting
factual (including internal) independence, one has to conclude that judicial independence relates
to the judiciary as such.22 As a consequence, judgments concerning judicial independence will
always have a more abstract nature (see also *** Chapter 1 ***).
Having briefly described the conceptual delimitation of ‘judicial independence’, attention now
shifts to the question how this conceptual notion has been interpreted in practice by international
human rights bodies (*** paragraph 2 ***) and in particular by the European Court of Human
Rights (*** paragraphs 3, 4 and 5 ***). On occasion a reference will be made to other relevant
documents (mentioned in the beginning of this Chapter).
21
M.E. Villiger, Handbuch der Europäischen Menschenrechtskonvention (EMRK), Zürich, 1993, p.
243: "Die Unabhängigkeit sichert prinzipiell den Ausschluss äusserer Beeinflussung. Die
Unbefangenheit verhindert hingegen die Parteinahme in den konkreten Umständen des
Einzelfalles". Sometimes this is also called the institutional character of judicial independence; see,
for example, P. van Dijk, “De ‘objectieve’ onpartijdigheid van de rechter”, in: NJB 1997, p. 1215
and P.B. Cliteur, “De onafhankelijkheid van de rechterlijke macht: acht vormen”, in: J.P. Loof
(ed.), Onafhankelijkheid en onpartijdigheid, Leiden: NJCM-Boekerij, 1999, p. 9.
22
Compare the statement made by the Presidents and members of the Associations of Judges of
twenty countries of central and eastern Europe: “Any reform of a judicial institution which
respects the rule of law must implicate as much the independence of courts, as the independence
of each judge”. See the Conclusions of the meeting “The guarantees of the independence of
judges – evaluation of judicial reform”, Budapest, 13-15 May 1998; to be found in: Council of
Europe, Independence, impartiality and competence of judges – Achievements of the Council of
Europe (doc. no. MJU-22 (99) 5). However, I think this is a matter of semantics. In my opinion,
judicial reform organises the judiciary as such. The impact of such a judicial reform will have to
be that judicial independence of every court and every judge is safeguarded. Therefore, the result
is the same.
7
Paragraph 2
Judicial independence in the case-law of international human rights
bodies
Before turning to the interpretation given to the notion judicial independence by the European
Court of Human Rights, it seems useful to make just a few general remarks concerning the
interpretation of judicial independence by other international human rights bodies (such as the
United Nations Human Rights Committee and the Inter-American Commission on Human
Rights). More specific comments, as a means of comparison and analysis, will be made in the
various sub-sections of *** paragraph 3 ***.
The United Nations Human Rights Committee has given a general outline of the notion ‘judicial
independence’, as mentioned in Article 14 of the International Covenant on Civil and Political
Rights, in its General Comment No. 13:
“[…] States parties should specify the relevant constitutional and legislative texts which
provide for the establishment of the courts and ensure that they are independent, impartial
and competent, in particular with regard to the manner in which judges are appointed, the
qualifications for appointment, and the duration of their terms of office; the conditions
governing promotion, transfer and cessation of their functions and the actual independence
of the judiciary from the executive branch and the legislative.” 23
A proper definition of judicial independence is lacking. Instead the Human Rights Committee
listed relevant criteria in order to determine whether a judicial body can be considered
independent. General Comment No. 13 primarily focuses on personal independence. Only the last
criterion can be seen as a (rather vague) reference to functional independence. However, it seems
as if functional independence does not comprise factual and internal independence. The Human
Rights Committee seems to adopt a strict interpretation of judicial independence (i.e.
independence vis-à-vis other public powers).
The Inter-American human rights regime guarantees judicial independence in Article 8 of its
Convention. In a report on the judiciary entitled ‘Measures necessary for rendering the autonomy,
independence and integrity of the members of the Judicial Branch more effective’, the
Commission listed the criteria which member states have to implement in order to satisfy the
requirements of judicial independence:
“(a) guaranteeing the judiciary freedom from interference by the executive and legislative
branches;
(b) providing the judiciary with the necessary political support for performing its functions;
23
Adopted on 12 April 1984 (21st session), to be found via www.unhchr.ch/tbs/doc.nsf.
8
(c) giving judges security of tenure
(d) preserving the rule of law […]” 24
This list of criteria is probably even more ambiguous than that of the Human Rights Committee.
Once again, a proper definition of the notion ‘judicial independence’ is lacking. Here the list of
criteria focuses much more on functional independence. Only the third criterion refers to personal
independence. No reference is made to factual or internal independence. The Inter-American
system seems to adopt a strict interpretation of judicial independence (i.e. independence vis-à-vis
other public powers).
The African human rights system protects judicial independence in Article 26 of the African
Charter, but so far the Commission has not yet given an elaborate description of what it considers
relevant criteria in this regard.
Paragraph 3
The concept of judicial ‘independence’ as a Council of Europe
standard
The Rule of Law is firmly embedded in the Council of Europe (see also *** Chapter 4 §1 ***).
Article 3 of its Statute adopted it as a principal condition for membership. The preamble of the
European Convention on Human Rights also refers to the Rule of Law, linking it with an effective
political democracy and fundamental rights and freedoms. Over the years the Council of Europe
has made an impressive contribution.25 This was done by adopting a whole series of legal
instruments.26 Of special importance in this regard was the adoption of Recommendation R (94)
12 on the Independence, Efficiency and the Role of Judges27 and in 1998 the European Charter on
the Statute for Judges.28
Recommendation R (94) 12 of the Committee of Ministers is a political document. On the basis of
24
IACHR Annual Report 1992-1993, p. 207 (OEA/Ser.L/V/II.83 (1993)).
25
Introductory report “The role and independence of the judiciary and the administration of justice
in the perspective of the Rule of Law” to the conference “Rule of Law”, 23-24 June 1997,
Noordwijk, the Netherlands, p. 7.
26
See Council of Europe, “Independence, impartiality and competence of judges – Achievements
of the Council of Europe” (document number: MJU-22 (99) 5). See also: A. Koller, “The legal
heritage of the Council of Europe”, in: Human Rights Law Journal 1990, p. 208-210.
27
Recommendation No. R (94) 12, adopted by the Committee of Ministers on 13 October 1994 at
the 518th meeting of the Ministers’ Deputies, to be found in: Council of Europe, Yearbook of the
European Convention on Human Rights, Vol. 37 (1994), p. 453.
28
Council of Europe, European Charter on the Statute for Judges, Strasbourg, 8-10 July 1998
(DAJ/DOC (98) 23).
9
Article 15b of the Statute of the Council of Europe, the Committee of Ministers can issue
recommendations to the member states of the organisation concerning matters that touch upon the
goals of the Council of Europe. Recommendation R (94) 12 focuses on judicial independence and
indicates that the Committee accepts a broad interpretation of Article 6 ECHR. The
Recommendation deals with a wide variety of elements of judicial independence:
the general safeguard that the authority of the courts is maintained, for example by way of
prohibiting that the administration can invalidate judicial decisions retroactively;
various safeguards with regard to the professional career of judges, including the selection
and appointment of judges, guaranteed tenure, remuneration, disciplinary measures, et
cetera;
the decision-making process which should be free from improper pressures “from any
quarter or for any reason”;
the distribution of cases and the prohibition of withdrawing a case from a particular judge
without valid reasons;
proper working conditions
freedom of association for judges.
Recommendation R (94) 12 is not a legally binding document. Neither does it give an authentic
interpretation of judicial independence, as laid down in Article 6 ECHR. However, one should not
underestimate the political significance of such recommendations.29 Apparently there exists a
communis opinio among the member states of the Council of Europe on the importance of judicial
independence and the desirability to broadly interpret the notion. It can serve as an important tool
for the Court when interpreting Article 6 ECHR.30
The European Charter on the Statute for Judges is not an official document by an organ of the
Council of Europe and does not – according to its Preamble – have a formal status. It is the quasiofficial result of a multilateral meeting on the statute for judges in Europe, organised by the
Council of Europe. In 1997, the idea was developed to give the work of the Council of Europe in
the field of judicial organisation better ‘visibility’. The need to draft a European Charter on the
Statute for Judges was discussed in July 1997 during a first multilateral meeting with participants
from thirteen Western, Central and Eastern European countries and representatives of the
European Association of Judges. On the basis of the conclusions of this meeting, the Directorate
of Legal Affairs entrusted three experts with the task of drafting a charter. This draft charter was
29
See also M.F.J.M. de Werd, “De wetgever en artikel 6 EVRM”, in: J.P. Loof (ed.),
Onafhankelijkheid en onpartijdigheid, Leiden: NJCM-Boekerij, 1999, p. 33.
30
In various dissenting and concurring opinions a reference is made to Recommendations (for
example, Judge Martens in ECHR, 17 December 1996, Saunders – United Kingdom (Reports
1996, p. 2044) and Judge Ress in ECHR, 10 April 2003, Sigurdsson – Iceland (appl. no.
39731/98)), which indicates that judges use recommendations when interpreting the ECHR.
However, explicit references to Recommendations in the Court’s reasoning itself are made less
frequent (see, for example, ECHR, 30 September 2003, Koua Poirrez – France (appl. no.
40892/98), §39). In my opinion, the Court could play an important role in ‘upgrading’ the
significance of Recommendations by making more explicit references.
10
discussed in Strasbourg during a second meeting in 1998. After having been improved by a certain
number of amendments, it was unanimously adopted. The charter extensively deals with various
aspects of primarily personal independence:
selection, recruitment and initial training;
appointment and irremovability;
career development;
liability;
remuneration and social welfare;
termination of office.
The Charter also lays down certain general requirements, such as the duty of the state to ensure
adequate facilities to judges, the institution of an independent authority competent to intervene in
every decision affecting the judge’s career and the freedom of association for judges.
Having briefly discussed other relevant documents within the framework of the Council of
Europe, this Chapter will now focus on the case-law of the Strasbourg Court (and Commission)
concerning the interpretation of judicial independence as laid down in Article 6 ECHR.
The Court has not given a clear abstract definition of the notion ‘judicial independence’. Instead it
has indicated several factors to be of importance in determining the independence of a judge or
judicial tribunal. The most elaborate enumeration of criteria can be found in a decision taken by
the Commission:
"In determining whether a body can be considered to be an independent tribunal, i.e. in
particular independent of the executive and of the parties to the case, regard must be had to
the manner of appointment of its members and the duration of their term of office, the
existence of regulations governing their removal or guarantees for their irremovability, laws
prohibiting their being given instructions by the executive in their adjudicatory role, the
existence of legal guarantees against outside pressures, the question whether the body
presents an appearance of independence and the attendance of members of the judiciary in
the proceedings." 31
Admittedly, these criteria are much more specific compared to those of the Inter-American
system. But it is regrettable that the Court has never taken the opportunity to clarify its standpoint
in a more dogmatic approach. A few introductory remarks can be made at this point.
The interpretation of the notion ‘judicial independence’ given by the Court seems less broad than
that of the Committee of Ministers in Recommendation R (94) 12. The political document drafted
31
EComHR, 13 October 1992, Holm - Sweden (to be found in Series A-279-A), §54. Earlier, yet less
complete, the Court enumerated similar criteria in ECHR, 28 June 1984, Campbell and Fell United Kingdom (Series A-80), §78. See also the references to other judgments there mentioned. On
a single occasion the Commission mentioned "type of procedure followed" as being a relevant
criterion as regards independence (EComHR, 9 July 1986, Langborger – Sweden (to be found in
Series A-155)). This criterion has however never returned in subsequent decisions.
11
by the Committee, for example, explicitly addresses the issue of internal independence, which
cannot be found in the above-mentioned list of criteria.
Another element missing in the list of criteria enumerated by the Court is the issue of
incompatibilities. Although there should not exist an insurmountable barrier between judges and
society, it is generally accepted that secondary activities may undermine the authority,
independence and impartiality of the judge. The existence of legal provisions concerning
incompatibilities with the judicial office is therefore seen as a guarantee safeguarding judicial
independence.32 The European Charter on the Statute for Judges deals with this issue in Principles
4.2 and 4.3:
“4.2 Judges freely carry out activities outside their judicial mandate including those
which are the embodiment of their rights as citizens. This freedom may not be limited
except in so far as such outside activities are incompatible with confidence in, or the
impartiality or the independence of a judge, or his or her required availability to deal
attentively and within a reasonable period with the matters put before him or her. The
exercise of an outside activity, other than literary or artistic, giving rise to remuneration,
must be the object of a prior authorization on conditions laid down by the statute.
4.3 Judges must refrain from any behaviour, action or expression of a kind effectively to
affect confidence in their impartiality and their independence.”
The International Bar Association Code of minimum standards of judicial independence (New
Delhi, 1982) can also provide some guidance in this respect. The IBA standards indicate that a
judge may not in principle, during his term of office, serve in executive functions, such as
ministers of the government, members of the legislature or members of municipal councils. It
further indicates that a judge may not practice law during his term of office. And lastly, it states
that a judge should “refrain” from business activities (see Principles 36, 39 and 40). 33
32
See, for example, Article 159 of the Belgian Constitution (incompatibility with any other
function financed by the government), Article 89 of the Greek Constitution (any profession or
any other salaried service is incompatible with the judge’s office; some exceptions are made for
academic functions), Article 35 of the Irish Constitution (no member of Parliament nor any other
salaried service), Article 216 of the Portuguese Constitution (incompatibility with other public or
private functions other than academic; for some other functions judges need prior approval of the
High Council of the Judiciary), Article 133 of the Slovenian Constitution (the office of a judge is
incompatible with office in any other state body or any organ of any political body; according to
the Law on Judicial Service a judge may not perform the work of a lawyer, notary or any
commercial or other profit-making activity), et cetera. For a detailed analysis of
incompatibilities, see the Communication by Jean-Pierre Attheont, presented at the seminar
organised by the Council of Europe on the statute for judges (Bucarest, 19-21 March 1997) and
the Communication by Pierre Cornu presented at a seminar organised by the Council of Europe
on the statute for judges (Chisinau, 18-19 September 1997).
33
See in almost identical wording Principles 2.29 and 2.30 of the Universal Declaration on the
Independence of Justice (Montréal, 1983; to be found in S. Shetreet & J. Deschênes (eds.),
Judicial independence: the contemporary debate, Dordrecht / Boston / Lancaster: Martinus
Nijhoff, 1985, p. 447).
12
Summarising, members of the judiciary should refrain from carrying out any professional or paid
activity. Exceptions are made for educational, cultural, sporting, recreational, charitable, research,
scientific, literary or artistic activities.34 In the Court’s case-law, however, potential problems
regarding a cumulation of functions is dealt with under the impartiality test.
There can be no doubt that ‘judicial independence’ in the sense of Article 6 ECHR comprises both
functional and personal independence. Van Dijk and Van Hoof35 conclude that the various
characteristics of the notion of independence seem to fall into three categories. First, the tribunal
must function independently of the executive, base its decisions on its own free opinion about
facts and legal grounds (i.e. functional independence, including factual independence). Secondly,
there must be guarantees to enable the court to function independently (this includes aspects of
personal independence, but could also in my opinion include aspects of factual independence).
And thirdly, even a semblance of dependence must be avoided. The latter requirement is not so
much a distinct component of judicial independence.
The review by the Strasbourg Court with regard to all of these criteria exceeds being purely
formalistic. The mere existence of a legal obligation addressed to the judiciary to administer
justice in an independent manner is not sufficient. The Commission pronounced in Eccles,
McPhillips, McShane - Ireland:
"[...] in assessing this issue regard must be had not only to the legal provisions [...] but also
how these provisions are interpreted and how they actually operate in practice." 36
The fact that the mere existence of legal guarantees is insufficient is not surprising. The phrase
“how they actually work in practice” is however for the benefit of the applicant. It will be much
more difficult, however in my opinion not impossible, for the defending state to invoke this phrase
when arguing that the Court should not take certain “appearances” into account.
The following sub-sections will deal with the above-mentioned criteria in a more elaborate
manner.
3.1
Appointment of members of the judiciary
34
See also Principle 1.13 and 1.14 of the so-called Bangalore Draft – a draft code of judicial
conduct drawn up by a group of experts and adopted in February 2001 by the UN Human Rights
Committee in Bangalore, India (to be found in: CCJE-GT (2002) 7, p. 76).
35
P. van Dijk & G.J.H. van Hoof (eds.), Theory and practice of the European Convention on
Human Rights, The Hague / London / Boston: Kluwer Law International, 1998, p. 452.
36
EComHR, 9 December 1988, Eccles, McPhillips, McShane – Ireland (appl. no. 12839/87; D&R 59,
p. 212). See also ECHR, 28 June 1984, Campbell and Fell - United Kingdom (Series A-80), §77.
13
The procedure for judicial appointment varies from country to country. Whatever method of
appointment a legal system adopts, it should be organised in such a manner that judicial
independence is safeguarded. The process of appointment can be a potential weakness.37 Who
appoints members of the judiciary and how are they appointed? For a judge’s independence to be
challenged successfully by reference to his ‘manner of appointment’ an applicant would have to
show that the practice of appointment “as a whole is unsatisfactory” or that there has been an
arbitrary appointment in concreto influenced “by improper motives”.38
3.1.1
Appointment by the executive
Appointment of judges by (an organ of) the executive is not ipso facto in breach with the
Convention.39 That seems logical for a variety of reasons. First of all, appointment of judges by
the executive is quite common within the Council of Europe.40 Secondly, some commentators
argue that appointment of judges is an administrative (not a judicial) task that naturally falls to the
executive branch. Therefore, appointment by the executive would even be the most obvious
method of appointment.41 And thirdly, some commentators argue that appointment by the
executive strengthens the democratic legitimacy of the judge, since the administration in a
parliamentary democracy will consist of elected politicians who are accountable for their
37
H.U. Walder, “Gedanken zur Verteidigung der richterlichen Unabhängigkeit im Lichte der
EMRK”, in: O.J. Ballon & J.J. Hagen, Verfahrensgarantien im nationalen und internationalen
Prozeßrecht – Festschrift Franz Matscher, Wien: Manzsche Verlag, 1993, p. 518: “Die
Ernennung der Gerichtsmitglieder erfolgt bekanntlich unter gewissen Erwartungen seitens der
dafür zuständigen Personen […] die Ausübung des Amtes ist immer mit Erwartungen verbunden.
Beeinträchtigt das Bestreben, solche Erwartungen zu erfüllen, die richterliche Unabhängigkeit?”.
An amusing anecdote illustrating these ‘expectations’ can be found in US practice. When former
President Eisenhower was asked whether he had made any mistakes during his term of office, he
answered “Yes two, and they are both sitting on the Supreme Court” (see P.P.T. Bovend’Eert,
Benoeming en ontslag van rechters, Nijmegen, 2000). See also: M. de Werd, De benoeming van
rechters (thesis Rijksuniversiteit Limburg), Arnhem: Gouda Quint, 1994.
38
EComHR, 12 October 1978, Zand – Austria (appl. no. 7360/76; D&R 15, p. 70 at 81).
39
See, for example, ECHR, 16 July 1971, Ringeisen – Austria (Series A-13), §95; ECHR, 28 June
1984, Campbell and Fell - United Kingdom (Series A-80), §79 and ECHR, 22 October 1984,
Sramek - Austria (Series A-84), §38. In the Commission's case-law precedents include inter alia:
EComHR, 1 March 1979, Sutter - Switzerland (appl. no. 8209/78; D&R 16, p. 166); EComHR, 11
October 1991, Hazar, Hazar & Acik – Turkey (appl. nos. 16311/90, 16312/90 & 16313/90;
Yearbook of the ECHR 34 (1991), p. 122) and EComHR, 19 January 1995, Ciraklar – Turkey (appl.
no. 19601/92; D&R 80, p. 46).
40
ECHR, 29 April 1988, Belilos - Switzerland (Series A-132), §66: “Its single member is
appointed by the municipality, but that is not sufficient to cast doubt on the independence and
impartiality of the person concerned, especially as in many Contracting States it is the executive
which appoints judges”.
41
See A.W. Heringa, “Onafhankelijk en onpartijdig gerecht dat bij de wet is ingesteld”, in: A.W.
Heringa a.o. (eds.), EVRM Rechtspraak en Commentaar, Den Haag: Koninklijke Vermande,
1998, nr. 3.6.5., p. 3.
14
policies.42 In my opinion, the third argument is not convincing in relation to appointment by
parliament or election by the citizenry, but is primarily of relevance in case appointment of judges
is assigned to an independent body which is not directly accountable to parliament (*** see more
elaborately Chapter 9 ***). Neither is the argument concerning democratic legitimacy of judicial
appointments by the executive convincing in case judicial appointments have to be formally
confirmed by a hereditary (not democratically chosen) monarch. In the Netherlands, for example,
judicial appointments are made by the Crown by Royal Decree (Article 117 §1 Constitution). The
King and the Minister(s) share the power of judicial appointment. In practice, the Minister will
always countersign a judicial appointment. Therefore, the Minister can be held politically
accountable before parliament. The fact remains, however, that a candidate will simply not be
appointed to office in case the monarch refuses to sign the letter of appointment. This is not a
theoretical problem. In the Wille case, the Liechtenstein Prince refused to confirm a judicial
appointment of a candidate who was officially proposed by parliament.43 Even though the
Convention does not explicitly prohibit judicial appointment by the executive, it seems contrary to
the spirit of the Convention if a national system allows the mere possibility of a hereditary
monarch refusing a democratically supported candidate for judicial office.
While judicial appointments by the executive are ipso facto not in breach with the Convention, it
does seem that the Court demands additional safeguards in case the executive appoints members
of the judiciary. In practice, the Court attaches particular importance to some of the other criteria
that will be described below, such as the duration of the term of office, the irremovability and the
fact that the judge is not subject to any instructions in his judicial role. Besides those criteria, there
are three more specific elements:

The involvement of a third party in the appointment procedure
In the Lithgow case, the applicant complained that judicial independence was threatened
by the close link between the executive and the (arbitration) tribunal, in particular by the
fact that the Minister had appointed two members of the tribunal. The Court attached
particular importance to the fact that “the appointments could not be made without prior
consultation” of a third party.44 The involvement of a third party can also be more
indirect. In the Kleuver case, the applicant complained that judicial independence was
breached because of the participation in the Norwegian Supreme Court of Justice
Pedersen as a temporary judge appointed by the Ministry of Justice. The Court examined
the particular circumstances of the case: “[…] on each occasion the Supreme Court had
approached the judge to enquire about his availability”. Only after the original
42
K. Wagner, “De onafhankelijkheid van de rechter naar Europees recht”, in: De onafhankelijkheid
van de rechter - Preadvies voor de Vereniging voor de vergelijkende studie van het recht van
België en Nederland, Deventer: Tjeenk Willink, 2001, p. 13.
43
ECHR, 28 October 1999, Wille – Liechtenstein (appl. no. 28396/95). See also: M. Kuijer & P.
Mendelts, “Een vorstelijk dispuut”, in: NJCM-Bulletin 2000, pp. 1226-1227. The case will be
described in greater detail in *** §3.2 of this Chapter ***.
44
ECHR, 8 July 1986, Lithgow a.o. - United Kingdom (Series A-102), §202.
15
involvement of the Supreme Court itself, the judge was appointed by decision of the King
sitting in Government Cabinet.45
A third party can be involved in the appointment procedure in various ways. Sometimes
judicial appointments are the joint responsibility of the executive and another body
(usually parliament). Such a mixed system is used in the United States for the
appointment of judges for the Supreme Court: hearings in a parliamentary assembly
followed by appointment by the President. Many European countries have systems in
which the executive can only appoint judges after prior consultation of an independent
body, responsible for the selection of candidates.46 Recommendation R (94) 12 is a clear
political statement in favour of such a system. Principle I, section 2 sub c reads:
"[…] The authority taking the decision on the selection and career of judges should be
independent of the government and the administration. In order to safeguard its
independence, rules should ensure that, for instance, its members are selected by the
judiciary and that the authority decides itself on its procedural rules.
[…] where the constitutional or legal provisions and traditions allow judges to be
appointed by the government, there should be guarantees to ensure that the procedures
to appoint judges are transparent and independent in practice […] These guarantees
could be, for example, one or more of the following:
i. a special independent and competent body to give the government advice which it
follows in practice […]"
Also the European Charter on the Statute for Judges states that selection and recruitment
must be done by an independent body or panel. Other countries prefer selection through
competitive examinations (see also *** footnote 55 infra ***).
On the basis of the Lithgow judgment, Recommendation R (94) 12 and the European
Charter on the Statute for Judges, one can conclude that involvement of an independent
body in the appointment procedure is desirable in case the executive makes judicial
appointments.47

Objective selection criteria
45
ECHR, 30 April 2002, Kleuver – Norway (appl. no. 45837/99). Complaint declared
inadmissible.
46
For example, Belgium (the Hoge Raad voor Justitie), Hungary (in county courts there are
commissions known as ‘judges’ councils’ which are elected by the judges and whose role it is to
give a preliminary opinion on a candidate’s professional suitability), Moldova (the Judicial
Service Commission), the Netherlands (the Raad voor de Rechtspraak) and Poland (the National
Council of the Judiciary).
47
Council of Europe, The Role of the Judicial Service Commission, Strasbourg: Council of Europe
Publishing, 1995.
16
In some countries selection of judicial candidates is not based on clear, transparent and
objective methods.48 This can enhance abuse. The European Court in its Lithgow
judgment therefore stated that “criteria for the selection of members of the tribunal” were
relevant within the framework of Article 6 ECHR.
The importance of objective selection criteria is however not exclusive for judicial
appointments by the executive. It should also be a relevant factor in other appointment
methods. Many political (non-legally binding) documents have expressed the necessity of
objective selection criteria. These criteria include formal requirements (such as
nationality and minimum age), judicial skills and human skills.
(a)
Recommendation R (94) 12
Recommendation R (94) 12 stresses the need for objective selection criteria in a more
general manner (Principle I, section 2 sub c):
"All decisions concerning the professional career of judges should be based on
objective criteria, and the selection and career of judges should be based on merit,
having regard to qualifications, integrity, ability and efficiency."
The Recommendation further requires the transparency of those objective selection
criteria. It does so only with regard to appointment by the executive. However, the
requirement of transparency should also be applicable with regard to other methods of
appointment.
(b)
European Charter on the Statute for Judges
A similar provision is included in the European Charter in sections 2.1 and 2.2. In doing
so it mentions criteria related to legal knowledge (i.e. qualifications and professional
experience), judicial skills (i.e. independent thinking and the ability to show impartiality)
and human skills (i.e. the candidate’s capacity to respect human dignity and put the law
into practice). Contrary to Recommendation R (94) 12, the Charter also explicitly requires
that selection must not be based on discriminatory criteria relating to gender, ethnic or
social origin, philosophical or political opinions or religious convictions. Lastly, the
Charter also explicitly states that previous activities by a candidate for judicial office can
be taken into account. Principle 3.2 states: “The statute establishes the circumstances in
which a candidate’s previous activities, or those engaged in by his or her close
relations, may, by reason of the legitimate and objective doubts to which they give rise
as to the impartiality and independence of the candidate concerned, constitute an
impediment to his or her appointment to a court”.
(c)
48
Other documents
See, for example, the Recommendation with regard to Bulgaria in the European Commission’s
PHARE Programme ‘Reinforcement of the Rule of Law’ (Nijmegen: Wolf Legal Productions,
2002, p. 17).
17
In June 1997 the Delegates of the various High Councils of Judges or of bodies
representing judges such as judges’ councils or professional associations stated: “In
addition to formal conditions such as nationality, minimum age and qualifications,
candidates for judicial office should present qualities related to the specific
requirements of the judicial profession, notably a sense of due application of the law
and impeccable personal conduct”.49
At the same time there was a multilateral conference on ‘Rule of Law in a democratic
society’, organised within the framework of the Dutch Presidency of the European
Union in close co-operation with the Council of Europe. The delegates agreed that
selection must be based on “objective criteria laid down by law and made
independently of the administrative authorities in the country”, having regard to
“qualifications, integrity, ability and efficiency”.50
In 1998, the need for human skills was emphasised once again at the third multilateral
meeting ‘The competence, independence and impartiality in the recruitment and
training of judges and public prosecutors’ of the Lisbon Network, which brings
together key figures responsible for recruitment and training of judges in the Member
States and Candidate States of the Council of Europe: “Th[e] objective is the exercise
of judicial functions by women and men endowed with those technical and human
qualities which allow individuals to be confident that their cases will be tried without
any prejudice, but with proper respect for their rights and dignity”.51
The requirement that these objective selection criteria need to be non-discriminatory is
primarily emphasised in non-European documents. The Syracuse Principles52, the
International Bar Association Code of minimum standards of judicial independence53 and
49
Conclusions and recommendations of the conference ‘Guarantees of the independence of the
judiciary’, meeting in Warsaw and Slok from 23 to 26 June 1997, sub 9; to be found in: Council
of Europe, Independence, impartiality and competence of judges – Achievements of the Council
of Europe (doc. no. MJU-22 (99) 5).
50
Conclusions conference ‘Rule of Law in a democratic society’, held in Noordwijk, 23 and 24
June 1997, to be found in: Council of Europe, Independence, impartiality and competence of
judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5).
51
Conclusions meeting ‘The competence, independence and impartiality in the recruitment and
training of judges and public prosecutors’, held in Warsaw, 17 and 18 December 1998, to be
found in: Council of Europe, Independence, impartiality and competence of judges –
Achievements of the Council of Europe (doc. no. MJU-22 (99) 5).
52
Article 5 of the Syracuse Draft Principles on the Independence of the Judiciary, Syracuse, 25-29
May 1981, drafted by a committee of experts organised by the International Association of Penal
Law and the International Commission of Jurists.
53
International Bar Association Code of minimum standards of judicial independence, adopted in
the Plenary Session of the 19th IBA Biennial Conference held on 22 October 1982 in New Delhi,
Standard 26 (“Selection of judges shall be based on merit”), Commentary.
18
the Montreal Declaration54, all demand fair representation on the bench of the various
social classes, ethnic groups, geographical regions and ideological inclinations, so as to
ensure equality of access to judicial office, and a broad spectrum of community attitudes
and feelings among the persons holding judicial office.55
One can conclude that – even though this requirement has not been elaborately developed
in the Court’s case-law – there is a consensus within Europe that judicial appointments
need to be based on objective, transparent and non-discriminatory selection criteria,
which can relate to formal requirements (nationality, minimum age, qualifications,
professional experience, et cetera), judicial skills and human skills. A practice of
primarily appointing members of the specific political parties who happen to be in power
is difficult to reconcile with these European developments.56
Also within the framework of the United Nations the need for objective selection criteria
has been underlined. In the Basic Principles on the Independence of the Judiciary57,
section 10 states:
“Persons selected for judicial office shall be individuals of integrity and ability with
appropriate training or qualifications in law. Any method of judicial selection shall
safeguard against judicial appointments for improper motives. In the selection of
judges, there shall be no discrimination against a person on the grounds of race, colour,
sex, religion, political or other opinion, national or social origin, property, birth or
status, except that a requirement, that a candidate for judicial office must be a national
of the country concerned, shall not be considered discriminatory.”
54
The Universal Declaration on the Independence of Justice, unanimously adopted at the final
plenary session of the First World Conference on the Independence of Justice held at Montreal
on 10 June 1983, considerations 2.11 – 2.13.
55
See also B.J. Odoki, “Terms and Conditions of Services of Judges: A Safeguard to the
Independence of the Judiciary”, in: The Independence of the Judiciary and the Legal Profession
in English-Speaking Africa, CIJL 1987, pp. 132-133. Odoki adopts a similar – yet slightly
distinctive – approach. He states that political considerations will play a part when appointing
judges. These considerations are not necessarily problematic if they are based on the need to
have a judiciary which reflects the national diversity, particularly with respect to ethnic factors.
There is no reason to ignore such factors as long as all candidates are subject to the same
requirements concerning proper qualifications and suitability for office.
56
According to some commentators this practice is in place in Ireland; see A.K. Koekkoek,
“Ierland”, in: L. Prakke & C.A.J.M. Kortmann (eds.), Het staatsrecht van de landen van de
Europese Unie, Deventer: Kluwer, 1998, p. 391.
57
The Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders (Milan,
26 August to 6 September 1985) adopted the Basic Principles on the Independence of the
Judiciary by consensus. These Principles were then ‘endorsed’ by the UN General Assembly
(A/RES/40/32, 29 November 1985) and later ‘welcomed’, inviting governments ‘to respect them
and to take them into account within the framework of their national legislation and practice’
(A/RES/40/146, 13 December 1985).
19
The need to adopt objective legal criteria for judicial appointments is also stressed by the
Human Rights Committee, though admittedly in less clear wording:
“[…] the Committee recommends that specific measures guaranteeing the independence
of the judiciary […] through the adoption of laws regulating the appointment […] of
members of the judiciary, be adopted as a matter of policy.” 58

Additional safeguards against outside pressures
In the Lauko case, the Court was confronted with a situation in which the appointment
of the members of a national tribunal was controlled by the executive. Their
employment contracts were governed by the provisions of the Labour Code and they
had the status of salaried employees without any additional safeguards against outside
pressures. The Court concluded that the manner of appointment of these officers clearly
showed that those bodies could not be considered to be 'independent' of the executive
within the meaning of Article 6 §1 of the Convention.59
In conclusion, the mere appointment by the executive branch is unproblematic in principle. The
Court will however attach weight to additional safeguards, such as the participation of an
independent body and objective selection criteria. Problems could arise in case judicial
appointments by the executive are made for a limited term of office after which the judge needs to
be re-appointed (discussed in *** §3.2 ***).
3.1.2
Appointment by Parliament or political parties
Election by Parliament or political parties is a common feature in several member states of the
Council of Europe.60 This manner of appointment has various advantages.61 It clearly strengthens
58
Concluding Comments on Slovakia (1997), to be found in: UN doc. CCPR/C/79/Add. 79. See
also: S. Joseph, J. Schultz & M. Castan, The International Covenant on Civil and Political
Rights – Cases, Materials, and Commentary, Oxford: Oxford University Press, 2000, p. 288.
59
ECHR, 2 September 1998, Lauko - Slovakia (Reports 1998, p. 2492), §64.
60
For example in Denmark (Court of Impeachment), Estonia (Justices of the Supreme Court), Former
Yugoslav Republic of Macedonia (Supreme Court Justices; see the facts of ECHR, 30 March 2000,
Veselinski – FYRM (appl. no. 45658/99)), Germany (judges of the Constitutional Court on the basis
of elections by two parliamentary committees out of both Chambers of Parliament), Italy (judges of
the Constitutional Court), Portugal (judges of the Constitutional Court), the Slovak Republic (judges
are elected by Parliament on the government’s recommendation), Slovenia (Parliament appoints
judges upon the recommendation of a Judicial Council), Sweden (political parties appoint lay
judges) and Switzerland. But also for example the United States (the political nominations in the
Supreme Court and the practice in several States, where judges are elected on the basis of a quasipolitical campaign).
61
Appointment by Parliament is
(‘erwünscht’); see M.E. Villiger,
Zürich: Schultess, 1993, p. 244.
richterlichen Unabhängigkeit im
by some commentators even described as ‘desirable’
Handbuch der Europäischen Menschenrechtskonvention,
See also H.U. Walder, “Gedanken zur Verteidigung der
Lichte der EMRK”, in: O.J. Ballon & J.J. Hagen,
20
the democratic legitimacy of the judge and it ensures that various social values are represented on
the Bench.62 There are, however, also potential dangers. Candidates for judicial posts should be
appointed purely on the basis of merit (i.e. qualifications, integrity, ability and efficiency), not
simply on the basis of political sympathies. Judgments should be statements of law, not turn into
political statements influenced by the political agenda and standpoints of the political party of the
specific judge. This danger is all the more real if a judge is only elected for a limited term of
office. It is not unlikely that a judge will promote the standpoints of ‘his’ or ‘her’ political party in
order to get re-elected after expiration of his term of office by that very same party.63 The United
Nations Human Rights Committee seems aware of this potential pressure. It held in its Concluding
Comments on Slovakia:
“The Committee notes with concern that the present rules governing the appointment of
judges by the Government with the approval of Parliament could have a negative impact on
de independence of the judiciary. Therefore: the Committee recommends that specific
measures guaranteeing the independence of the judiciary, protecting judges from any form
of political influence […], be adopted as a matter of policy.” 64
The Strasbourg institutions have held that election by Parliament is permissible. The Commission,
considering that election by Parliament was a common feature in several Member States of the
Council of Europe, did not find a breach of the Convention.65 The ‘new’ Court (after the
introduction of the 11th Protocol) reached the same conclusion in the Ninn-Hansen case:
“[…] mere appointment by Parliament cannot be seen to cast doubt on the independence or
impartiality of the court. Although political sympathies may play part in the process of
appointment […] the Court does not consider that this alone gives legitimate doubts as to
their independence and impartiality.” 66
Verfahrensgarantien im nationalen und internationalen Prozeßrecht – Festschrift Franz
Matscher, Wien: Manzsche Verlag, 1993, p. 519 (“In der Schweiz betrachtet man die Wahl der
Richter durch das Parlament als wichtige Errungenschaft der Demokratie”). Walder himself,
however, makes a few critical comments.
62
The United Nations Human Rights Committee has stressed the importance of a pluralistic
judiciary, ensuring the representation of diverse values within the judicial branch of government.
It criticized, in its Concluding Comments on Sudan of 1997, the fact that women and members of
minorities were not adequately represented in the judiciary (UN doc. CCPR/C/79/Add. 85).
63
See the facts of EComHR, 7 May 1984, E. – Switzerland (Yearbook of the ECHR 27 (1984), p.
149), which will be discussed more elaborately in *** Chapter 7 §2.4.2 ***. The case illustrates that
a system of political appointments necessitates the judge to get more involved in the political
debate, which in its turn can cause difficulties vis-à-vis his appearance of impartiality.
64
UN doc. CCPR/C/79/Add. 79 (italics supplied).
65
See EComHR, 18 December 1980, Crociani, Palmiotti, Tanassi & Lefebvre d'Ovivio – Italy (appl.
nos. 8603/79, 8722/79, 8723/79 & 8729/79; D&R 22, p. 147); EComHR, 5 October 1981 (appl. no.
8866/80; Digest, pp. 694-695) and EComHR, 6 November 1990, Ruiz-Mateos – Spain (appl. no.
12952/87; D&R 67, p. 175).
66
ECHR, 19 May 1999, Ninn-Hansen – Denmark (appl. no. 28972/95); the complaint was
21
The Court did, however, indicate that it would reach a different conclusion in case the applicant
could establish that the judges “were appointed with a view to adjudicate this particular case or
had declared political affiliations concerning the subject matter in issue”. And perhaps it was also
relevant that in casu the domestic court was intended to adjudicate cases that required “a certain
insight in political matters”.
In my opinion, the Court should adopt a cautious approach with regard to judicial appointments by
political parties, and to a lesser extent with regard to judicial appointments by Parliament. During
a meeting in 1997, delegates of the High Councils of Judges specifically stated that “no pressure
from politics must influence judicial decisions”.67 In case of judicial appointments by a political
party this threat of informal pressure can hardly be called theoretical. The European Court has so
far not been called to deal with the compatibility of judicial appointments by political parties with
the requirements of Article 6 ECHR. However, one could argue that the Court’s judgment in the
Holm case68 (to be discussed in *** Chapter 7 §2.4.2 ***) implies that Article 6 ECHR will be
violated if a judge who is appointed because of his close links with a particular political party, is
called to determine a dispute whereof the subject-matter is closely related to that particular
political party.
3.1.3
Appointment by election
Some systems also appoint judges on the basis of elections. Some commentators strongly favour
such a direct form of democratic legitimacy.69 Other commentators warn for the danger that a
judge might be influenced by improper motives in case of upcoming re-elections and that the
qualifications of a candidate are not necessarily decisive for his appointment.70 In its Concluding
unanimously declared inadmissible. This standpoint was confirmed in ECHR (dec.), 26 August
2003, Filippini – San Marino (appl. no. 10526/02). See also: J.G. Steenbeek & P.C. Gilhuis,
“Het Koninkrijk Denemarken”, in: L. Prakke & C.A.J.M. Kortmann (eds.), Het staatsrecht van
de landen van de Europese Unie, Deventer: Kluwer, 1998, p. 86. In Denmark Minister are not
only politically accountable to Parliament, but they can also – on the basis of §16 of the
Constitution – be tried by a special tribunal (‘Rigsret’), composed of Supreme Court Justices and
members elected by Parliament.
67
Conclusions and recommendations of the conference ‘Guarantees of the independence of the
judiciary’, meeting in Warsaw and Slok from 23 to 26 June 1997, to be found in: Council of
Europe, Independence, impartiality and competence of judges – Achievements of the Council of
Europe (doc. no. MJU-22 (99) 5).
68
ECHR, 25 November 1993, Holm - Sweden (Series A-279-A).
69
V.O. Orlu Nmehielle, The African Human Rights System – Its Laws, Practice, and Institutions,
The Hague / London / New York: Martinus Nijhoff, 2001, p. 97, footnote 399: “[Judges] need to
be answerable to the citizenry rather than to an individual who seizes political power by force”.
Obviously, such a strong preference in favour of election by the citizenry can partly be explained
by the particular political context.
70
See, for example, K. Wagner, “De onafhankelijkheid van de rechter naar Europees recht”, in: De
onafhankelijkheid van de rechter - Preadvies voor de Vereniging voor de vergelijkende studie
22
Comments on the United States in 1995, the United Nations Human Rights Committee explicitly
voiced these concerns:
“The Committee is concerned about the impact which the current system of election of
judges may, in a few states, have on the implementation of the rights provided under article
14 of the Covenant and welcomes the efforts of a number of states in the adoption of a meritselection system.” 71
Legal systems whereby members of the judiciary in general are appointed by way of elections are
rare within Europe (compared to the judicial organisation in some states of the United States of
America72), although it does exist in some cantons of Switzerland where cantonal judges are
elected by the people (and have to be re-elected periodically). A more common situation is the
election of lay judges. Sometimes these lay judges are involved in the ordinary court structure73,
but more often they participate in disciplinary proceedings. It is not unusual that members of a
certain profession (sometimes indirectly through a professional organisation) elect the lay judges
of a disciplinary tribunal from within their midst.
The latter situation has been presented to the Court. The Court held in its H. - Belgium judgment
that appointment by means of election was compatible with the Convention.74
3.1.4
Appointment by peers
In his comprehensive study on judicial independence, Shetreet concluded that only a small
number of countries in the world entrust the power of judicial appointments to the judiciary,
though “judicial participation has been viewed as an imperative requirement”.75 Within Europe,
there is a growing tendency to assign the task of judicial appointments to independent bodies,
van het recht van België en Nederland, Deventer: Tjeenk Willink, 2001, p. 14.
71
UN doc. CCPR/C/79/Add. 50.
72
See M. Comisky & P.C. Patterson, The Judiciary – Selection, Compensation, Ethics, and
Discipline, New York / Westport / London: Quorum Books, 1987, pp. 3-37. The founding
fathers were not in favour of popular election of judges in view of their belief that the electorate
at large was not capable of evaluating the professional qualifications of prospective judges.
Popular election of judges emerged in the first half of the 19 th century as a result of the rise of the
egalitarian philosophy.
73
For example, Finnish courts of first instance have some locally elected lay judges.
74
ECHR, 30 November 1987, H. - Belgium (Series A-127-B), §51.
75
S. Shetreet, “Judicial independence: new conceptual dimensions and contemporary challenges”,
in: S. Shetreet & J. Deschênes (eds.), Judicial independence: the contemporary debate,
Dordrecht: Martinus Nijhoff, 1985, p. 624. See also Principle 10 sub d of the Tokyo Principles
on the Independence of the Judiciary in the Asia region (adopted by the Law Association for
Asia and the Western Pacific during a seminar held in Tokyo on 17 and 18 July 1982), in which
the Committee recommends the institution of a Judicial Services Commission as a means of
safeguarding the proper appointment of judges.
23
completely or partly composed of judges.76 The European Charter on the Statute for Judges of
1998 envisages the establishment of “an authority independent of the executive and legislative
powers within which at least one half of those who sit are judges elected by their peers following
methods guaranteeing the widest representation of the judiciary” (Section 1.3). One of the tasks of
such an independent body should be to take decisions concerning judicial appointments or to
make a recommendation or proposal or give its opinion (Section 3.1). The latter role can often be
found in European countries where the official appointment is still done by the executive (see ***
footnote 38 supra ***). In many other European countries the task of judicial appointments has
officially been assigned to these independent bodies.77 The independent body is usually also
responsible for the selection of candidates, done on the basis of objective criteria by way of
competitions.78
It is also possible that judges are appointed by the judicial tribunal itself. In Finland, for
example, most candidate-judges are appointed by the President of the court (on the
recommendation of the judges of the tribunal) in which they will function.79
So far, there has not yet been any case-law of the Court on this particular appointment
method. The Court will, however, most likely hold the appointment method compatible with the
requirements of the Convention. From a viewpoint of judicial independence there can hardly be
any criticism on this system. Its potential weakness is much more related to the ‘democratic
legitimacy’ of the judge.80
76
See also W.J.M. Voermans, “De opkomst van Raden voor de rechtspraak in de Europese Unie”,
in: A.K. Koekkoek (ed.), Organisatie van de rechtspraak, Deventer: Tjeenk Willink, 1999, pp.
37-71.
77
For example, Andorra (Consell Superior de la Justicia), Croatia (the High Council of Justice
composed of lawyers from the ranks of distinguished judges, state attorneys, practising lawyers
and law school professors), Cyprus (judges of inferior courts are appointed by the Supreme
Council of Judicature which is composed of all the judges of the Supreme Court), France (judges
must be appointed on the basis of a favourable opinion (which binds the government) issued by
the Conseil Supérieur de la Magistrature), Portugal (Conselho Superior da Magistratura), Spain
(El Consejo General del Poder Judicial es el órgano de gobierno del mismo) and Italy
(Consiglio Superiore della Magistratura, for the majority composed of members elected by
judges and prosecutors). Information from: Council of Europe, Judicial Organisation in Europe,
Strasbourg: Council of Europe Publishing, 2000.
78
For example: Andorra (all candidate judges have to take part in an open competition, organised
by the Consell Superior de la Justicia), Italy (judges are recruited by competitive examination,
organised by the Consiglio Superiore della Magistratura) and Moldova (judges are recruited by
competitive examination by the Judicial Service Commission).
79
J.C.E. van den Brandhof, “De Republiek Finland”, in: L. Prakke & C.A.J.M. Kortmann, Het
staatsrecht van de landen van de Europese Unie, Deventer: Kluwer, 1998, p. 213. To be
distinguished from systems in which the executive officially appoints the judges on the
recommendation (which in practice is followed) of the respective judicial tribunal, like Austria.
80
See for example the critical remarks by the Dutch Minister of Justice Donner in NJB 2002, p.
1841. Donner is not in favour of delegating the task of judicial appointments to the Dutch Raad
voor de Rechtspraak because of the lack of political accountibility. He is also afraid that the
executive would loose control over the judiciary with regard to safeguarding safety and
expediency: “Moet juist het benoemingsbeleid niet ondergebracht worden bij de Raad? Er is
niets zo gevaarlijk als dat. Men ziet dat aan de ontwikkelingen in Italië waar […] de overheid de
24
3.1.5
Appointment by lot
In some countries of the Council of Europe part of the administration of justice is done by jury
trials.81 The historical and ideological justification of the jury-system (primarily in criminal trials)
is the fact that justice is administered by ‘the people’ and not by a magistrate who personifies state
authority. Jurors will be arbitrarily selected by lot. Therefore, one can not really say that jurors are
‘appointed’ and that a problem of judicial independence can arise:
"According to the law and practice in the United Kingdom, the jurors for a particular case
are chosen by lot. Consequently, the authorities have no influence on the composition of a
particular jury." 82
Selection of jurors by lot guarantees that the selection procedure is purely objective and cannot
be influenced by the executive (in the sense that the executive does not have the opportunity to
appoint jurors with particular convictions). The Commission implicitly emphasised a traditional
view on human rights law: human rights protect the individual from interferences from state
authorities.
In the Holm case83 the Court did, however, indicate that it will attach importance to the existence
of certain safeguards concerning the procedure of selection of prospective jurors. The Court
examined, for example, whether national legislation provides that citizens are only eligible as a
juror if they can be expected to perform their duties with sound judgment and in an independent
and fair-minded manner, whether the statutory rules on disqualification of judges also extends to
jurors84, whether jurors are required to take an oath to the effect that they will carry out the tasks
eisen van veiligheid, van voortvarendheid niet kan waarborgen […] Uiteindelijk moet de
Minister van Justitie kunnen verantwoorden hoe de rechtspraak functioneert”.
81
For example, Belgium (Hof van Assisen in which the trial judge is assisted by a jury of twelve
persons chosen by lot; see also ECHR, 1 October 1982, Piersack – Belgium (Series A-53), §27),
France (Cour d’assises consisting of three professional judges and a lay jury of nine citizens
appointed by lot), Greece, Ireland, Malta (see also J.J. Cremona, “The Jury System in Malta”, in:
American Journal of Comparative Law 1964, pp. 570-583), Sweden (in cases concerning the
Freedom of the Press Act and the Fundamental Law on Freedom of Expression) and the United
Kingdom.
82
EComHR, 6 February 1969 (appl. no. 3471/68; unpublished).
83
ECHR, 25 November 1993, Holm - Sweden (Series A-279-A), §31.
84
This raises the question whether the issue of disqualification should be left entirely to lawyers. In
his dissenting opinion in the Commission's report in the Remli case (EComHR, 30 November 1994,
Remli - France (appl. no. 16839/90)), Schermers emphasised that it was the lawyer's task to pose
questions to candidate jurors. The answers given by the candidate jurors could indicate a tendency
of bias during the questioning of prospective jurors and the lawyer could then disqualify the person
concerned.
I agree with Schermers that the primary duty in this field rests with the lawyer. However, trial
lawyers do not seek impartial jurors, they seek jurors who favour their side. I would therefore be
in favour of a subsidiary responsibility for the trial judge. The trial judge would then have a duty to
25
to the best of their abilities and in a judicial manner and whether jurors are selected arbitrarily by
lot. The Commission has expanded this list in one of its decisions. The Commission also looked at
the ratio between the disputed members of the jury and the total number of jurors85, unanimity of a
jury verdict and the influence of the disputed juror on other members of the jury.86 The
Convention does on the other hand not require, that political, religious or moral convictions of
potential jurors are examined during the selection of jurors.87 There is no Strasbourg case-law
concerning alleged violations of the ‘fair cross-section requirement’ used by the United States
Supreme Court. The fair cross-section requirement demands that no distinctive group in the
community is systematically excluded from the jury selection process.88
3.1.6
Promotion
In Slovenia judges obtain the right to promotion by entering the judicial service. However, in
many other countries promotion will not be such a mechanical act. This involves a certain risk for
abuse. There is no specific Strasbourg case-law on this point, but the issue is dealt with in the
European Charter on the Statute for Judges. Principle 4.1 lays down the desirable standard
procedure for promotion in great detail.89 The system of promotion should either be based on
seniority or exclusively on the professional qualities and merits (such as objectivity, integrity,
independence and professional ability) observed in the performance of duties entrusted to the
judge. Such an appraisal of the judge’s performance should be performed by one or several judges
step in if he is informed about anything jeopardizing the impartiality requirement. This also seems to
be implied by Principle 4.10 of the Universal Declaration on the Independence of Justice (Montréal,
1983; to be found in: S. Shetreet & J. Deschênes (eds.), Judicial independence: the contemporary
debate, Dordrecht / Boston / Lancaster: Martinus Nijhoff, 1985, p. 447): "If the judge determines
during the examination of prospective jurors, than an individual is unable or unwilling to hear the
particular case at issue fairly and impartially, the individual shall be removed from the panel.
Such a determination may be made on motion of a party or on the judge's own initiative". The US
Supreme Court is even more outspoken in imposing a duty on the trial judge: "[T]he obligation
to impanel an impartial jury lies in the first instance with the trial judge" (quoted in: J.J. Gobert,
"In search of the impartial jury", in: Journal of Criminal Law & Criminology 1988, p. 290).
85
See on this point also J.J. Gobert, "In search of the impartial jury", in: Journal of Criminal Law &
Criminology 1988, pp. 279-280.
86
EComHR, 7 March 1978, X. - Austria (appl. no. 7428/76; D&R 13, p. 36).
87
EComHR, 29 June 1994, Zarouali – Belgium (appl. no. 20664/92; D&R 78, p. 97).
88
In order to establish a prima facie violation of the fair cross-section requirement, the defendant
must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2)
that the representation of this group is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepresentation is due to systematic exclusion of
the group in the jury selection process (US Supreme Court in Duren v. Missouri, as cited in: J.J.
Gobert, "In search of the impartial jury", in: Journal of Criminal Law & Criminology 1988, p. 293).
89
See also Principle 13 of the United Nations Basic Principles on the independence of the
judiciary, Principle 5 of the Judges’ Charter in Europe (adopted on 20 March 1993 in Wiesbaden
by the European Association of Judges) and Principles 10 and 11 of the Syracuse Draft
Principles on the Independence of the Judiciary (Syracuse, 1981).
26
and should be discussed with the judge concerned. Decisions as to promotion should then be
pronounced by an independent judicial body, such as a High Council of the Judiciary. And finally,
a judge who is not proposed for promotion must be entitled to lodge a complaint before the
independent judicial authority.
3.1.7
Concluding remarks
The case-law of the Court leaves the member states of the Council of Europe a large margin of
appreciation of how to organise their judicial systems with regard to judicial appointments. As for
example the Universal Declaration on the Independence of Justice notices, there is “no single
proper method of judicial selection provided it safeguards against judicial appointments for
improper motives”.90 Some legal systems emphasise the fact that judicial appointments are an
administrative task that belongs to the executive, others emphasise the need for democratic
legitimacy and assign the task of judicial appointments to Parliament or choose a system of
appointment by lot, and some countries have entrusted the task of judicial appointments to an
independent (judicial) body in view of the desire to avoid any appearance of improper influence
by the administration. The European Court is flexible with regard to the question who is in charge
of judicial appointments. It has accepted appointment by the executive, by parliament, by election,
by peers and by lot. In my opinion, the Court could have adopted a more cautious approach with
regard to appointment by political parties via parliament. If one worries about improper informal
influences, appointment by political parties through parliament is the most dangerous. With regard
to the method of appointment many questions remain. The case-law of the Court only superficially
refers to the need for objective selection criteria and the participation of an independent (judicial)
body. In various political documents these requirements have been described in more detail. All in
all, the Court does not seem to be very strict with regard to the criterion ‘manner of appointment’.
3.2
Duration of the term of office
3.2.1
Duration of the term of office
If members of a tribunal are appointed for life, this is seen as a guarantee of judicial
independence. Life tenure can actually mean two things: either literally that a judge is appointed
for life (like in Belgium), or – and this is more common – that a judge is appointed until he
reaches a certain age (for example, in the Netherlands at the age of 70 years).91
Neither the Council of Europe’s Recommendation R (94) 12 nor the United Nations’ Basic
90
Universal Declaration on the Independence of Justice, Montreal, 10 June 1983 (First World
Conference on the Independence of Justice), principle 2.14.
91
In case a judicial system has introduced a retirement age, it seems desirable to prohibit that any
change to the judicial obligatory retirement age has retroactive effect. See the International Bar
Association Code of minimum standards of judicial independence (New Delhi, 22 October
1982), standard 22 (b): “Retirement age shall not be reduced for existing judges”.
27
Principles on the Independence of the Judiciary (Milan, 1985) demands appointment for life. Both
documents just state that the term of office should be guaranteed by law and that judges shall have
tenure “until a mandatory retirement age or the expiry of their term of office”.92
The Strasbourg Court does not require members of the judiciary to be appointed for life93, but if
judges are appointed for life the imposition of an age limit is not forbidden.94 In other words, it is
not in breach with the Convention if judges have a limited term of office. The Court accepted a
term of office of six years in the Le Compte case.95 The Court held that the duration of the term of
office (six years) provided “a further guarantee” of judicial independence. In the Campbell and
Fell case, the Court accepted a term of three years:
“Members of the Board hold office for a term of three years or such lesser period as the
Home Secretary may appoint […] The term of office is admittedly very short but the Court
notes that there is a very understandable reason: the members are unpaid […] and it might
well prove difficult to find individuals willing and suitable to undertake the onerous and
important task involved if the period were longer.” 96
It is true that in the Campbell and Fell case the Court accepted the rather short term of three years
partly because of the special circumstances of the case. However, in subsequent cases the Court
gave its approval of similar mandates without the existence of similar special circumstances.97
This case-law has been confirmed by the ‘new’ Court after the introduction of the 11th Protocol. In
its admissibility decision in the Siglfirdingur Ehf case, the Court held that the duration of the term
of office of the members of the Icelandic Labour Court (i.e. three years) was “admittedly rather
92
Principle I sub 2, a, ii of Recommendation R (94) 12 and Principles 11 and 12 of the Milan
Principles. A similar provision is included in the Universal Declaration on the Independence of
Justice (Montreal, 10 June 1983), Principle 2.19.
93
Implicitly in ECHR, 16 July 1971, Ringeisen - Austria (Series A-13), §95. Explicitly in EComHR, 2
October 1975, X. - Belgium (appl. no. 6859/74; D&R 3, p. 139); EComHR, 12 October 1978, Zand
- Austria (appl. no. 7360/76; D&R 15, p. 70) and EComHR, 14 December 1979, Le Compte, Van
Leuven and De Meyere - Belgium (to be found in Series A-43), §§76-77. See also: P. van Dijk &
G.J.H. van Hoof, Theory and practice of the European Convention on Human Rights, The Hague:
Kluwer, 1998, p. 452.
94
EComHR, 12 October 1978, Zand – Austria (appl. no. 7360/76; D&R 15, p. 80).
95
ECHR, 23 June 1981, Le Compte, Van Leuven and De Meyere - Belgium (Series A-43), §57.
96
ECHR, 28 June 1984, Campbell and Fell - United Kingdom (Series A-43), §80.
97
ECHR, 22 October 1984, Sramek – Austria (Series A-84), §38. The Court held that the length of
the term of office (i.e. three years) of the members of the Regional Authority (an administrative
tribunal) satisfied the requirements of Article 6 ECHR. See also: ECHR, 23 April 1987, Ettl a.o.
– Austria (Series A-117), §41 (5 year term in case of specialised administrative tribunals) and
ECHR, 29 April 1988, Belilos – Switzerland (Series A-132), §66 (Court accepted a 4 year term
of office of members of the Lausanne Police Board competent to deal with minor criminal
offences).
28
short but it cannot, in the Court’s opinion, by itself affect their independence”.98
In the Kleuver case99, the criterion ‘duration of term of office’ was discussed within the special
context of substitute judges. The complaint was directed against the participation in the
Norwegian Supreme Court of a temporary judge in order to replace members of that court. The
judge in question normally served as a permanent member of the High Court, with all the
guarantees of judicial independence befitting members of the judiciary in general. Each of his
assignments with the Supreme Court had been of a fixed duration with the specific purpose of
replacing a member of that court. In light of these specific circumstances, the Court did not find
that “the relatively short duration of each term of temporary replacement could reasonably call
into doubt the judge’s independence and impartiality”.
The case-law is even more relaxed with regard to judicial proceedings in which lay judges
participate. Lay judges often have a separate full-time job. A judicial mandate of longer duration
would in view of their professional activities be practically impossible. The Commission has held
that a judicial mandate for members of the Armed Forces in a military tribunal of just a month was
not in breach with the Convention.100 Duration of the judicial mandate is therefore of hardly any
relevance in judicial proceedings in which lay judges participate (the same is obviously true for
jury trials). As a kind of counterbalancing measure the Court emphasises that lay judges should
not be subject to any authority in the exercise of their judicial tasks:
"The fact that the military members of these courts are appointed for sessions of one month
is of little consequence. However, it is essential that in the performance of their duties they
should not be subject to any authority." 101
This case-law does raise the question whether it would not be justified to differentiate the required
standard with regard to judicial proceedings in which professional judges are active on the one
hand and judicial proceedings in which lay judges or jurors participate on the other hand. It is
understandable that the duration of a term of office can hardly be a relevant criterion with regard
to the latter category (and that this will be compensated by way of emphasising other criteria).
However, one can have doubts concerning the desirability of a term of office of just three years
with regard to professional judges.102
98
ECHR, 7 September 1999, Siglfirdingur Ehf – Iceland (appl. no. 34142/96).
99
ECHR (admissibility decision), 30 April 2002, Kleuver – Norway (appl. no. 45837/99).
100
EComHR, 8 September 1988, Depuis - Belgium (appl. no. 12717/87; D&R 57, p. 196) and
EComHR, 22 May 1995, Heudens - Belgium (appl. no. 24630/94; unpublished). See also ECHR, 8
June 1976, Engel - Netherlands (Series A-22), §§68, 89.
101
EComHR, 8 September 1988, Depuis - Belgium (appl. no. 12717/87; D&R 57, p. 196). See also
EComHR, 1 March 1979, Sutter - Switzerland (appl. no. 8209/78; D&R 16, p. 166) and EComHR,
22 May 1995, Heudens - Belgium (appl. no. 24630/94; unpublished).
102
The United Nations Human Rights Committee seems stricter with regard to judicial appointments
for short periods. In its Concluding Comments on Armenia (1998), election by popular vote for
29
An appointment for a short fixed term can be especially problematic when combined with the
possibility of re-appointment.
3.2.2
Appointment for a fixed period and the possibility of re-appointment
In case a fixed-term contractual appointment is combined with the possibility of re-appointment,
security of tenure can be endangered, since it opens up the possibility of only renewing an
appointment of a ‘desirable’ judge. The European Charter on the Statute for Judges acknowledges
the existence of fixed-term renewable contracts can present “difficulties if not dangers from the
angle of the independence and impartiality of the judge in question”. It therefore states in
Principle 3.3:
“[…] where recruitment is made for a limited period capable of renewal, the decision […]
not to renew, may only be taken by [an] independent authority […] or on its proposal, or its
recommendation or with its agreement or following its opinion.”
The Strasbourg case-law is less specific. There has been one complaint alleging that judicial
independence could be threatened in case judges would repeatedly be offered a contract of a
year. The judge could feel pressurised to reach certain decisions or take certain standpoints in
order to get re-elected by the executive. The complaint, however, was declared inadmissible for
non-exhaustion of domestic remedies.103
The problem was discussed indirectly in the Wille case.104 In 1992 a controversy arose
between His Serene Highness Prince Hans-Adam II of Liechtenstein (“the Prince”) and the
Liechtenstein government on the division of political competences and on various
constitutional issues. At the relevant time, Wille was a member of the Liechtenstein
government. In 1993, when parliamentary elections for the Diet took place, Wille did not stand
for re-election. He was appointed President of the Liechtenstein Administrative Court
(Verwaltungsbeschwerdeinstanz) for a fixed term of office. In 1995, in the context of a series of
lectures on questions of constitutional jurisdiction and fundamental rights, Wille gave a public
lecture at the Liechtenstein-Institut, a research institute, on the “Nature and Functions of the
Liechtenstein Constitutional Court”. In the course of the lecture, Wille expressed the view that
the Constitutional Court was competent to decide on the “interpretation of the Constitution in
case of disagreement between the Prince (government) and the Diet”. The following day, the
six years did “not ensure […] independence and impartiality” (UN doc. CCPR/C/79/Add. 100,
§8; see also Concluding Comments on Peru (1996) UN doc. CCPR/C/79/Add. 67, §14).
103
EComHR, 5 July 1994, Størksen – Norway (appl. no. 19819/92; D&R 78, p. 88).
104
ECHR, 28 October 1999, Wille – Liechtenstein (appl. no. 28396/95). See M. Kuijer & P.
Mendelts, “Een vorstelijk dispuut”, in: NJCM-Bulletin 2000, pp. 1209-1227, which also deals
with the question whether the letters by the Prince can be regarded as an Act of State. The Wille
judgment is also relevant from the viewpoint of the limits concerning the exercise by members of
the judiciary of their freedom of expression. This element will be discussed in *** Chapter 7 §2.4
***.
30
newspaper Liechtensteiner Volksblatt published an article on the lecture given by Wille,
mentioning, inter alia, his views on the competences of the Constitutional Court. A few days
later the Prince addressed a letter to Wille concerning the above lecture: “Sir, I was astonished
to read the report in the 17 February issue of the Liechtensteiner Volksblatt on your lecture on
the theme of the ‘Nature and Functions of the Liechtenstein Constitutional Court’ […] In my
eyes your attitude, Dr Wille, makes you unsuitable for public office. I do not intend to get
involved in a long public or private debate with you, but I should like to inform you in good
time that I shall not appoint you again to a public office should you be proposed by the Diet or
any other body. I only hope that in your judgments as President of the Administrative Court you
will abide by the Constitution and the ordinary laws for the rest of your term of office”. In
spring 1997 Wille’s term of office as President of the Administrative Court expired. The
Liechtenstein Diet decided to propose Wille again as President of the Administrative Court. In
a letter of 17 April 1997 to the President of the Diet the Prince refused to accept the proposed
appointment. Since then Wille is employed as a researcher by the Liechtenstein-Institut. Wille
brought a complaint before the European Court of Human Rights. He complained that his
freedom of expression under Article 10 ECHR had been violated.
This immediately raises the first issue: a judge cannot complain under Article 6 ECHR
about the refusal of the administration to re-appointment the judge.105 The Strasbourg Court can
only review complaints concerning judicial independence within the framework of a specific
judicial decision. This lack of judicial protection is understandable in view of the fact that the
Convention looks at judicial independence from the viewpoint of the individual’s right to a fair
trial. This unavoidable lack of judicial protection on the European level should therefore, in my
opinion, be remedied on a national level by providing a legal remedy against the administrative
decision not to re-appoint.
In the Wille case, the judge could indirectly invoke the protection of the Convention via
Article 10 ECHR because the refusal to re-appointment was a direct consequence of his public
statements (this ‘indirect’ protection will be more difficult to construct in case the refusal to reappointment is a consequence of the judge’s ‘undesirable’ judicial decisions). However, under
Article 10 ECHR there exists a further complication: Article 10 ECHR does not protect the
right of recruitment to the civil service (contrary to Article 21 §2 of the Universal Declaration
and Article 25 of the International Covenant on Civil and Political Rights; see *** Chapter 4
§4.2 ***). The travaux préparatoires of the Convention (in particular of Protocol No. 7) clearly
prove that the member states deliberately omitted such a right. The diminished role of the
travaux préparatoires has already been discussed in *** Chapter 3 §3 ***, but the Court is far
more reluctant to ignore the drafting history of the Convention when member states
deliberately left out a specific right. The Court has therefore never found a violation of the
Convention because of the refusal by the authorities to admit a person into public service (the
so-called Glasenapp doctrine).106 However, the Court has adopted a different approach in case a
105
See also the Pitkevich case as discussed in *** §3.3.2 ***.
106
See, for example, ECHR, 28 August 1986, Glasenapp and Kosiek – Germany (Series A-104 and
105), §49 respectively §35.
31
civil servant, who is already appointed, is subsequently dismissed for his or her beliefs. 107 The
Court states in the Wille case (§41):
“[…] the refusal to appoint a person as a civil servant cannot as such provide the basis for
a complaint under the Convention. This does not mean, however, that a person who has
been appointed as a civil servant cannot complain of being dismissed if that dismissal
violates one of his or her rights under the Convention.”
The Court concluded that the Convention had been breached in Wille’s case. Perhaps the
Court’s approach in the Wille case can be partly explained by the fact that in casu the civil
servant was a judge. The raison d’être for the Court’s position in the Glasenapp case is that the
state authorities have a legitimate interest to demand a certain loyalty from their civil servants.
This raison d’être is difficult to reconcile with the special status of a judge, in particular his
independence vis-à-vis the authorities.
In light of the above-mentioned lack of judicial protection, the Court’s position in the
Wille case is to be welcomed. It allows the Court to exercise a marginal supervision over
national appointment policies. If the Court would strictly adhere to its Glasenapp doctrine the
Court would not have any possibility to offer protection in case re-appointments by national
authorities are influenced by improper motives.
Similar considerations apply in case of re-appointment by Parliament or by popular elections.
Judicial appointments for a limited period with the possibility of being re-elected can be
equally problematic (purely from the viewpoint of judicial independence, not the viewpoint of
democratic legitimacy). Walder has elaborated on this issue referring to some incidents in
Switzerland where some judges were not (immediately) re-appointed by Parliament.108
In conclusion, judicial appointments (whether by the executive or by parliament or by election) for
a limited period with the possibility of re-appointment can lead to situations in which judicial
independence is threatened or seen to be threatened.
3.2.3
Probation periods
107
ECHR, 26 September 1995, Vogt – Germany (Series A-323).
108
“[…] obgleich ihm weder Verschleppung von Prozessen, mangelhaft begründete Urteilsanträge
oder sonst eine unzureichende Amtsführung vorgeworfen werden konnte […] Solche Vorgänge
relativieren zumindest die Feststellung […] in schweizerischen System sei die Wiederwahl
faktisch gesichert und wenn man das System als ganzes in Funktion betrachte, sei es nicht
vermessen festzustellen, daß der schweizerische Richter praktisch-faktisch wohl so gefestigt ist
wie ein ausländischer seinen Richterstuhl behaupte” (H.U. Walder, “Gedanken zur Verteidigung
der richterlichen Unabhängigkeit im Lichte der EMRK”, in: O.J.Ballon & J.J. Hagen (eds.),
Verfahrensgarantien im nationalen und internationalen Prozeßrecht – Festschrift Franz
Matscher, Wien: Manzsche Verlag, 1993, pp. 519-520). Walder refers to the opposite opinion of
Eichenberger: K. Eichenberger, “Sonderheiten und Schwierigkeiten der richterlichen
Unabhängigkeit in der Schweiz”, in: R. Frank (ed.), Unabhängigkeit und Bindingen des Richters
in der Bundesrepublik Deutschland, in Österreich und in der Schweiz, special of Zeitschrift für
Schweizerisches Recht, 1990, p. 67.
32
In many countries (especially in Eastern Europe) novice judges are appointed for a limited period,
after which they are given life tenure (in some instances: upon their request).109 Once again there
is a potential danger that only ‘desired’ judges get appointed after the probation period. Justice
Deschênes has vividly described the potential dangers:
“In this way, the Executive hangs a sword of Damocles over the head of a new judge. A
judge who accepts a one year appointment is, in all likelihood, interested in carrying out a
career in the judiciary but his career will hinge on the goodwill of the Prince. Clearly, a
judge on probation is not independent and there is a risk that his decision may be coloured
by his plans for the future. Could he rule against a government from whose ‘pleasure’ his
appointment derives? And in private litigation, could he take the position that the law and his
conscience dictate but that might displease the government of the day? Then, too, what
criteria will the government apply in deciding after one year of probation, whether a judge
merits a permanent appointment?” 110
Various documents voice their concern over the existence of probationary appointments. The
Universal Declaration on the Independence of Justice (Montréal, 1983) states:
“[…] the appointment of judges for probationary periods is inconsistent with judicial
independence. Where such appointments exist, they shall be phased out gradually.” 111
Likewise, at a meeting in Budapest in May 1998 the Presidents and members of the Associations
of Judges of twenty countries of central and eastern Europe stated:
“The practice of appointing a judge for a probationary period existing in certain countries, as
well as the nomination of a judge for a limited period should be carefully examined from the
point of view of the independence of justice.” 112
109
For example, in Hungary, novice judges are appointed for a three-year term, after which they can
request a life appointment. In Moldova, judges are at first appointed for a period of 5 years, after
which they are given tenure until they reach the age limit for retirement. In the Slovak Republic,
judges are initially appointed for 4 years, after which they are appointed for life.
Sometimes the position of junior judges must be called into question. In Bulgaria, for example, a
junior judge is not tenured until he or she has served three years in a position. During this period,
the junior judge is not irremovable from office. See the Recommendation with regard to Bulgaria
in the European Commission’s PHARE Programme ‘Reinforcement of the Rule of Law’
(Nijmegen: Wolf Legal Productions, 2002, p. 17).
110
J. Deschênes, Masters in their own house, 1981, p. 105, as quoted in: S. Shetreet & J. Deschênes
(eds.), Judicial independence: the contemporary debate, Dordrecht / Boston / Lancaster:
Martinus Nijhoff, 1985, p. 625.
111
Principle 2.20. This document can be found in: S. Shetreet & J. Deschênes (eds.), Judicial
independence: the contemporary debate, Dordrecht / Boston / Lancaster: Martinus Nijhoff,
1985, p. 447.
112
‘The guarantees of the independence of judges – evaluation of judicial reform’, Budapest, 13-15
May 1998, to be found in: Council of Europe, Independence, impartiality and competence of
33
However, most of these documents also emphasise the justification of such a system in countries,
where the ordinary judicial appointment comes immediately after completing the legal education.
Many legal systems of the civil law tradition have career judges and a probationary appointment
might be necessary to select those who prove to be inept for the office. The International Bar
Association standards, for example, prohibit the practice of probationary appointments, unless
“practical experience in the profession [is] a condition of appointment”.113 The Montreal
Declaration seems to be voiced in stronger terms, stating that probationary appointments are
inconsistent with judicial independence and that such practices should be phased out. But the
explanatory note acknowledges the legitimacy of probationary appointments in countries with a
career judiciary.114
On the basis of existing case-law, the mere existence of a probation period is not in breach with
the requirements of Article 6 ECHR.115 In the Stieringer case, the applicant alleged that, due to
the participation of two probationary judges, the trial had not been conducted by an
"independent" tribunal. In Germany, the participation of probationary judges is regulated in the
Law on the Judiciary and the Courts Organisation Act. Several safeguards exist to guarantee
judicial independence of probationary judges. Any dismissal of judges in the course of their
probationary period is susceptible to judicial review. The Commission did not find the German
system to be in violation of the requirements of Article 6 ECHR:
“Under the German system, the participation of probationary judges serves at the same
time the purposes of training and selecting candidates for appointment as permanent
judges and of allowing the courts to benefit from the work of these judges who, following
legal studies and training, obtained the general qualification to exercise the functions of
judges. In the exercise of their function as judges, they enjoy the full guarantees as to
their objective independence. The fact that for the sole purpose of training, they remain
for a period regularly not longer than three years liable to removal by the judicial
authorities does not justify the conclusion that their objective independence is no longer
established. Accordingly, in the Commission's view, this system does not, in itself,
amount to a situation which could seriously affect the confidence which the courts must
inspire in a democratic society.” 116
Neither did the facts of the case disclose any concrete reasons to doubt the independence of the
judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5).
113
International Bar Association Code of minimum standards of judicial independence (New Delhi,
22 October 1982), Standard 23 sub a.
114
Universal Declaration on the Independence of Justice (Montreal, 10 June 1983), Principle 2.20.
115
Cf. R. Lippold, “Der Richter auf Probe im Lichte der Europäischen Menschenrechtskonvention”,
in: NJW 1991, p. 2383.
116
EComHR, 25 November 1996, Stieringer – Germany (appl. no. 28899/95).
34
Chamber in question. Neither the handling of the case, nor the conduct of the probationary
judges gave rise to any legitimate doubts as to these persons' independence. The Commission
therefore declared the complaint manifestly ill-founded.
In my opinion, the Court should in future cases more explicitly focus on the existence of
safeguards against potential abuse by the authorities of its discretionary powers. For example:
whether an independent authority is involved in the decision not to make a permanent
appointment after a probationary period117, on which objective criteria the decision is based, and
whether the decision is susceptible to judicial review.
3.2.4
Concluding remarks
In conclusion, the Court interprets the criterion ‘duration of the term of office’ very leniently,
so that in fact it plays a completely insignificant role in the Strasbourg case-law. In my opinion,
the Court’s approach is too lenient. The interpretation of the Court is understandable in light of
the fact that the European Court is confronted with a wide variety of legal systems using
professional judges, unpaid lay judges and juries. In view of the intrinsic differences between
the various legal systems it would have been desirable, however, if the Court had differentiated
its standard. Instead the Court has chosen to emphasise that the duration of a judicial mandate
sec does not answer the question whether there is a sufficient degree of judicial independence
and that other criteria are more decisive.
3.3
Irremovability of members of the judiciary
No authority should be able to discharge a judge arbitrarily of his duties (this paragraph does
therefore not focus on retirement at a certain age, being relieved from office at the judge’s own
request or on the possibility of not being re-appointed or re-elected). For the purpose of this
paragraph the notion ‘discharge’ can have several meanings: a permanent removal from office,
a temporary suspension as a (disciplinary) sanction, a transferal of the judge to other judicial
tasks. Rules concerning the security of tenure of judges are especially important if judges are
not appointed for life. Authorities should not be able to threaten a judge with dismissal in order
to influence his opinion in the exercise of his judicial role.
In order to ‘strengthen’ their complaints concerning judicial independence, applicants before
the Strasbourg Court regularly claim that the national legislation did not sufficiently prohibit
the arbitrary dismissal of members of the judiciary.118 In the British-American Tobacco
117
For example, the European Charter on the Statute for Judges states in Principle 3.3: “[…] where the
recruitment procedure provides for a trial period, necessarily short, after nomination to the
position of judge but before confirmation on a permanent basis […], the decision not to make a
permanent appointment […] may only be taken by [an] independent authority […] or on its
proposal, or its recommendation or with its agreement or following its opinion”.
118
Besides the cases mentioned explicitly in this paragraph, see also: EComHR, 8 February 1973, X. Sweden (appl. no. 5258/71; CD 43 (1973), p. 71); EComHR, 13 October 1980, Van Marle, Van
35
Company Ltd. case119, for example, the applicant complained about the independence of the
Appeals Division of the Dutch Patent Office. Civil servants of the Industrial Property Bureau
acted as judges in this Appeals Division. These civil servants were employed on the same
conditions as other civil servants and could be dismissed by the Crown without any formal
guarantees against dismissal on improper grounds. This was partly the reason why the
Commission found a breach of the Convention.120
The Court has underlined the importance of the irremovability of judges in its early case-law:
“It is true that the irremovability of judges by the executive during their term of office
must in general be considered as a corollary of their independence and thus included in
the guarantees of Article 6 §1.” 121
The very existence of the power to remove a judge is sufficient, notwithstanding the limited
exercise of the power in practice and irrespective of whether its exercise was or could have
been in issue in a concrete case.122 In Strasbourg case-law, the complaint is usually directed
against the lack of proper legislative safeguards. The Court has never found a violation because
of an actual dismissal by the executive authorities of a country.123
Zomeren, Flantua & De Bruijn - Netherlands (appl. nos. 8543/79, 8674/79, 8675/79 & 8685/79;
Yearbook of the ECHR 24 (1981), p. 204) and EComHR, 10 October 1991, Mitap & Müftüoglu Turkey (appl. nos. 15530/89 & 15531/89; D&R 72, p. 169).
119
ECHR, 20 November 1995, British-American Tobacco Company Ltd. - Netherlands (Series A331), §§68-77.
120
The Court did not find it necessary to give a ruling on the merits of the case. It considered that the
question whether the Appeals Division of the Patent Office fulfils the requirements of Article 6
ECHR could have been raised before the ordinary civil courts. If the civil courts would have
reached the conclusion that the Appeals Division of the Patent Office did not comply with the
requirements of Article 6 ECHR, they would have had full jurisdiction to rule on the merits of the
case. The Court therefore reached the conclusion that domestic remedies were not exhausted
(Article 35 ECHR).
121
ECHR, 28 June 1984, Campbell and Fell – United Kingdom (Series A-80), §80. The InterAmerican Commission on Human Rights has followed the Court’s judgment in the Campbell and
Fell case, stating that “the irremovability of judges […] must […] be considered a necessary
corollary of their independence” (see Annual Report of the Inter-American Commission on
Human Rights 1994 (OEA/Ser.L/V/II.85 (1995)), pp. 92-93.
Cf. the Court’s fairly indifferent position in the Sramek case, in which the Court held that
national legislation was in conformity with the requirements of Article 6 ECHR as regards the
“limited” possibility of removing a judge (ECHR, 22 October 1984, Sramek – Austria (Series A84), §38). See also the Commission in the Sutter decision, demanding only a “certain stability, if
only for a specific period” (EComHR, 1 March 1979, Sutter – Switzerland (appl. no. 8209/78;
D&R 16, p. 166)).
122
ECHR, 22 November 1995, Bryan – United Kingdom (Series A-335-A), §38.
123
Cf. United Nations Human Rights Committee, 19 August 2003, Pastukhov – Belarus
(communication number 814/1998), in which the author complained about his dismissal from a
position as a judge of the Constitutional Court by presidential decree, several years before the
expiry of the term for which he had been appointed. The Committee stated that this constituted an
36
Irremovability of judges obviously does not mean that a judge can never be removed from
office. Irremovability of judges is not absolute under the Convention. The Convention only
prohibits dismissal at will; the arbitrary discharge of a judge. 124 Any discharge on irrelevant
grounds (personal animosity, dissatisfaction with the substance of the judge’s rulings, et cetera)
can be considered arbitrary.125 Various factors can be relevant in order to determine whether the
possibility of removing a judge is surrounded with sufficient safeguards to prevent abuse of
power.
3.3.1
Is the possibility of removing a judge from office regulated by law?
Principle VI sub 2 of Recommendation R (94) 12 requires that the possibility of permanently
removing a judge from office should be based on valid reasons which “should be defined in
precise terms by the law”.126 However, the Court does in its case-law not require any formal
recognition in law of the irremovability of judges:
“[…] the absence of a formal recognition of this irremovability in law does not in itself
imply lack of independence provided that it is recognised in fact and that the other
necessary guarantees are present […]” 127
The Court reached a similar elastic standpoint in the Engel case.128 The military members of the
Netherlands Supreme Military Court were removable by Ministers at will, but once again the
Court held that formal recognition of irremovability was not required and that judicial
independence was not threatened because of the presence of other guarantees. Also in the
Eccles, McPhillips and McShane case in which the members of a special Irish criminal court
dealing with terrorist offences could be dismissed at will, the Commission held that one needed
to look at “the realities of the situation”.129
attack on the independence of the judiciary contrary to Article 14 of the International Covenant
on Civil and Political Rights.
124
K. Wagner, “De onafhankelijkheid van de rechter naar Europees recht”, in: De onafhankelijkheid
van de rechter – Preadviezen voor de Vereniging voor de vergelijkende studie van het recht van
België en Nederland, Deventer: Tjeenk Willink, 2001, p. 7.
125
P. van Dijk, “De ‘objectieve’ onpartijdigheid van de rechter”, in: NJB 1997, p. 1214.
126
See also the explanatory memorandum of Principle 5.1 of the European Charter on the Statute for
Judges (Council of Europe, document number DAJ/DOC (98) 23), which explicitly refers to the
legality of disciplinary sanctions.
127
ECHR, 28 June 1984, Campbell and Fell – United Kingdom (Series A-80), §80. In practice, the
Home Secretary only removed a judge “in the most exceptional circumstances”.
128
ECHR, 8 June 1976, Engel – Netherlands (Series A-22), §68.
129
EComHR, 9 December 1988, Eccles, McPhillips & McShane – Ireland (appl. no. 12839/87;
D&R 59, p. 212).
37
3.3.2
Grounds on the basis of which the judge may be dismissed
The admissibility decision in the Pitkevich case130 seems to suggest that the Court will examine
the specific nature of the grounds on which a judge is dismissed. In this Russian case, the judge
was an active follower of a religious movement, which started to influence her judicial work. It
was established that she had prayed publicly during court hearings, that she had promised
certain parties to proceedings a favourable outcome of their cases if they joined the Church,
that she had criticised the morality of certain parties to proceedings concerning various family
rights, and that those activities had resulted in delayed cases and a number of challenges against
the applicant. In 1998 the Russian Judiciary Qualification Panel dismissed the applicant from
office on the ground that she had “damaged her reputation as a judge and impaired the authority
of the judiciary” within the meaning of Article 14 of the Status of Judges Act. The judge
complained before the Strasbourg Court that her dismissal constituted an unjustified
interference with her freedom of religion as laid down in Article 9 ECHR. The Court therefore
did not examine the case from a viewpoint of judicial independence. Nonetheless, it might be
important to note that the Court found it relevant that the grounds for dismissal were “precisely
defined”. As a result, the Court declared the application inadmissible because it considered the
complaint manifestly ill-founded (Article 35 §3 ECHR).
The Court has, however, never enumerated the grounds, which it considers proper for the
dismissal of a judge. Principle VI sub 2 of Recommendation R (94) 12 refers in this respect to
incapacity to perform judicial functions, commission of criminal offences or serious
infringements of disciplinary rules.131 It should not directly relate to the substance of the
judicial decisions of the specific judge.132 A few remarks should be made here.
First of all, the exact meaning of ‘incapacity to perform judicial functions’. A
comparison with the practice in the United States of America can be useful in this regard. In
practically every state the notion is described as a mental or physical disability, that prevents or
seriously interferes with the judge’s performance of his judicial duties and is permanent or
likely to be permanent.133 Senility could fall under this heading. Adequate safeguards against
130
ECHR (admissibility decision), 8 February 2001, Pitkevich – Russia (appl. no. 47936/99).
Article 6 ECHR (the civil head) is applicable in disciplinary proceedings in which the right to
continue to exercise a profession is at stake (see, for example, ECHR, 27 June 1997, Philis Greece No. 2 (Reports 1997, p. 1085), §45 and ECHR, 21 December 1999, W.R. - Austria (appl.
no. 26602/95), §§25-31).
131
Cf. Principle 30 of the International Bar Association Code of minimum standards of judicial
independence (New Delhi, 1982): “A judge shall not be subject to removal unless, by reason of a
criminal act or through gross or repeated neglect or physical or mental incapacity, he has shown
himself manifestly unfit to hold the position of judge”.
132
K. Wagner, “De onafhankelijkheid van de rechter naar Europees recht”, in: De onafhankelijkheid
van de rechter – Preadviezen voor de Vereniging voor de vergelijkende studie van het recht van
België en Nederland, Deventer: Tjeenk Willink, 2001, p. 7.
133
M. Comisky & P.C. Patterson, The Judiciary – Selection, Compensation, Ethics, and Discipline,
38
abuse should be in place concerning the use of this ground: only a mental or physical disability
of a sufficiently serious nature can lead to a dismissal, the permanency of the condition, the
confirmation of the disability by (several) medical practitioners, et cetera.
The Recommendation also refers to the commission of criminal offences. However,
this would in my opinion only be a sufficient reason to dismiss a judge if the confidence of the
citizens in the proper functioning of the judiciary would be undermined in case the specific
judge would remain in office. In other words, the imposition of the most serious sanction (i.e.
removal) should be subject to the principle of proportionality.134
Lastly, the Recommendation refers to serious infringements of disciplinary rules. This
could include, in my opinion, dismissal for reasons of professional ineptness. Professional
ineptness is a dangerous ground for dismissal, since it implies a value-judgment of the judicial
work of a specific judge. However, in certain circumstances it needs to be possible to discharge
a judge against his will. For example, in case a judge demonstrates a consistent inadequacy of
legal knowledge, a consistent racist behaviour or otherwise undermines the authority of the
judiciary. The above-mentioned Pitkevich case demonstrates that the Court under certain
circumstances is willing to accept the dismissal of a judge for these reasons. Such a dismissal
should never directly relate to the substance of judicial decisions. On the other hand, a
consistent pattern can only be proven by examining the judge’s judicial work in general.
3.3.3
Which authority is empowered to discharge the judge?
Once again, the Court does not seem to be strict. The Court did not question the possibility of
removal by the executive in the Campbell and Fell case and in the Engel case.135 In the more
recent Pitkevich case136, it seems as if the Court starts to attach more importance to the question
who under national law is empowered to order the dismissal of a judge. In its considerations the
Court explicitly referred to the fact that
“[…] the applicant’s case was examined in her presence at two instances, including the
supreme disciplinary panel before 23 judges. The panels’ conclusions were later
confirmed by the Supreme Court.”
It might be too early, however, to conclude that the Court requires an independent body taking
decisions concerning dismissal. A more demanding approach would be in line with the
standards laid down in various non-binding documents137 and with state practice.138
New York / Wesport / London: Quorum Books, 1987, p. 218.
134
See also Principle 5.1 of the European Charter on the Statute for Judges (Council of Europe,
document number DAJ/DOC (98) 23).
135
ECHR, 28 June 1984, Campbell and Fell – United Kingdom (Series A-80), §80 and ECHR, 8
June 1976, Engel – Netherlands (Series A-22), §68.
136
ECHR (admissibility decision), 8 February 2001, Pitkevich – Russia (appl. no. 47936/99).
137
For example, Principle 20 of the United Nations basic principles on the independence of the
39
Recommendation R (94) 12 states:
“[…] states should consider setting up, by law, a special competent body which has as its
task to apply any disciplinary sanctions and measures, where they are not dealt with by a
court, and whose decisions shall be controlled by a superior judicial organ, or which is a
superior judicial organ itself.” 139
A similar provision can be found in Principle 5.1 of the European Charter on the Statute for
Judges:
“The dereliction by a judge of one of the duties expressly defined by the statute, may only
give rise to a sanction upon the decision, following the proposal, the recommendation, or
with the agreement of a tribunal or authority composed at least as to one half of elected
judges […]”
3.3.4
Procedure to be followed
Again, one can refer to the Campbell and Fell and the Engel judgments, in which the Court did
not question the fact that the removal of judges was not subject to judicial review. 140 Once
again, the European Court does not impose a strict standard. In relation to the United Nations
Human Rights Committee and various political documents, the protection offered by the
European Court can only be described as poor.
The United Nations Human Rights Committee has explicitly referred to the need for
independent judicial review. In 1996, the Committee noted with concern that in Zambia the
power to remove judges was not subject to independent judicial oversight.141
judiciary (Milan, 1985, endorsed by the General Assembly of the United Nations), Principle 9 of
the Judges’ Charter in Europe (Wiesbaden, 1993, drafted by the European Association of Judges)
and Principle 31 of the International Bar Association Code of minimum standards of judicial
independence (New Delhi, 1982). See also the Tokyo Principles on the Independence of the
Judiciary in the Lawasia region (adopted by the Law Association for Asia and the Western
Pacific at a meeting in Tokyo on 17-18 July 1982): “The Committee recognises that […] removal
by parliamentary procedures has traditionally been adopted in some countries. However, the
Committee believes […] that procedure is unsuitable […] [It] believes that there is […] a clear
consensus within the legal profession that such procedures should be under the control of the
senior judges of the particular society”.
138
In many European countries judges can only be removed from office by a judicial decision (like
Denmark, Finland, Germany, Greece, Iceland and the Netherlands) or by a decision of a High
Council of the Judiciary (like Italy). Ireland is clearly at odds: judges may be removed from
office for stated misbehaviour or incapacity by the President following resolutions passed by
both Houses of Parliament.
139
Principle VI sub 3 of Recommendation R (94) 12.
140
ECHR, 28 June 1984, Campbell and Fell – United Kingdom (Series A-80), §80 and ECHR, 8
June 1976, Engel – Netherlands (Series A-22), §68.
141
(1996) UN doc. CCPR/C/79/Add. 62, §16.
40
Various political documents have elaborated on the minimum standards concerning the
procedure for removal. Some documents make an explicit link with the minimum procedural
safeguards laid down in Article 6 ECHR.142 Principle 5.1 of the European Charter on the Statute
for Judges states that the decision concerning the removal needs to be taken “within the
framework of proceedings of a character involving the full hearing of the parties, in which the
judge proceeded against must be entitled to representation”. The Charter further requires that
the decision is “open to an appeal to a higher judicial authority”. Other documents add the right
that the initial stage shall be kept confidential, unless otherwise requested by the judge.143
The above-mentioned factors with regard to the removal of a judge (i.e. transferal on which
grounds, decision concerning transferal taken by which authority and on the basis of which
procedure) are more or less mutatis mutandis applicable with regard to the transferal of a
judge.144 Shetreet comments in his comprehensive study:
“If such a power vests in the hands of [the] executive it can constitute a very powerful
deterrent and sanction against a judge who does not conform to what the authorities may
desire. If such power exists, therefore, it is of the highest priority to ensure that it is in the
hands of the judiciary, and as an extra security, that it be vested in a collegial body, at any
rate, in the hands of more than one person.” 145
However, in the Strasbourg case-law transferal of a judge is not seen to pose a problem in light
of the requirements concerning judicial independence.146 This distinction in the Court’s caselaw between removal and transferal – although both related to the security of tenure – is not
explained. In my opinion, there is no justification for this distinction. The case-law is
regrettable, especially in light of the fact that the European section of the Union Internationale
des Magistrats (UIM), meeting in Bratislava (19-21 April 1996), has concluded that the
possibility of a transfer of a judge without his or her consent to another court by other than
142
Principle VI sub 3 of Recommendation R (94) 12 (“[…] at least all the due process requirements
of the Convention”). See also Conclusion 3 of the meeting of the Presidents and members of the
Associations of Judges of twenty countries of central and eastern Europe ‘The guarantees of the
independence of judges – evaluation of judicial reform’, held in Budapest on 13-15 May 1998, to
be found in: Council of Europe, Independence, impartiality and competence of judges (document
number MJU-22 (99) 5, p. 49).
143
Principle 2.32 of the Universal Declaration on the independence of justice (Montreal, 1983).
144
In several countries, for example, the power of transferal is assigned to a High Council of the
Judiciary (like Greece, Italy and Poland). Other countries provide that judges cannot be
transferred against their will (like Austria, Belgium and Finland).
145
S. Shetreet, “Judicial independence: new conceptual dimensions and contemporary challenges”,
in: S. Shetreet & J. Deschênes (eds.), Judicial independence: the contemporary debate,
Dordrecht / Boston / Lancaster: Martinus Nijhoff, 1985, p. 630.
146
EComHR, 1 March 1979, Sutter – Switzerland (appl. no. 8209/78; D&R 16, p. 166). See a
similar reasoning in EComHR, 24 March 1983, Santschi – Switzerland (appl. no. 7468/76; D&R
31, p. 43). The latter case concerned the interpretation of Article 5 §1(a) ECHR.
41
disciplinary reason is in contradiction with the perception of judicial independence.147
Likewise, Principle VI of Recommendation R (94) 12 – while acknowledging that transferal of
a judge can be a disciplinary measure – calls on states to consider setting up, by law, a special
competent body whose decisions shall be controlled by a superior judicial organ. It further
states that “the law should provide for appropriate procedures to ensure that judges in question
are given at least all the due process requirements of the Convention, for instance that the case
should be heard within a reasonable time and that they should have a right to answer any
charges”.
3.3.5
Concluding remarks
In conclusion, the Court has referred to irremovability of judges in firm wording, calling it a
“corollary” for judicial independence. But in practice the protection offered by the Court is
poor. Irremovability of judges is – understandably – not absolute. However, the conditions
under which a judge can be removed from office are scarcely laid down in the case-law.
Irremovability of judges does not need to be formally recognised in law (in case other
guarantees exist) and the Court has not formulated standards concerning the grounds for
removal, the authority responsible for the decision regarding removal and the procedure to be
followed. In this respect, one has to look at documents like Recommendation R (94) 12 and the
European Charter on the Statute for Judges. Lastly, it is regrettable that the Commission has
held that transferal is unproblematic in light of the requirements of Article 6 ECHR.
3.4
Not being subject to any authority
3.4.1
Introductory remarks
In the Findlay case, the Court stated that in order to determine whether a judicial tribunal can be
regarded as independent regard must be had to the existence of ‘guarantees against outside
pressures’.148 The exact wording of this criterion can differ in the Court’s case-law. For example,
in the Incal judgment the Court referred to ‘safeguards against outside pressures’.149 Despite the
slightly different wording, the meaning and scope of the criterion is identical. No authority may
give instructions or even recommendations to a judge with regard to his exercise of judicial
functions in a concrete case.150 Likewise, the tribunal must have the power to give a binding
147
That is not to say that sound administrative practices enumerated in law, such as a system of
regular rotation or the practice of transferring a young judge from post to post to enrich his
judicial experience, should be considered problematic (see Principle 9 and its explanatory
memorandum of the Syracuse Draft Principles on the Independence of the Judiciary, adopted by
a committee of experts organised by the International Commission of Jurists and the International
Association of Penal Law in Syracuse in May 1981).
148
ECHR, 25 February 1997, Findlay – United Kingdom (Reports 1997, p. 263), §73.
149
ECHR, 9 June 1998, Incal – Turkey (Reports 1998, p. 1547), §65.
150
See, for example, ECHR, 16 July 1971, Ringeisen – Austria (Series A-13), §95; ECHR, 4
42
decision which can not be altered by a non-judicial authority.151 Even the purely theoretical
possibility of such an interference should not exist under national law.152 Any judge should be
able to reach his decisions solely on the basis of his interpretation of the law according to his
sense of justice. Judges are “answerable only to their own consciences”.153 A judicial decision can
only be subject to another independent judicial body (for example by way of an appeal against the
original judicial decision). This also includes the possibility that a judge may be obliged to ask for
a preliminary ruling from another independent judicial body (for example, the Court of Justice of
the European Communities) before adjudicating the dispute. The Strasbourg institutions have on
several occasions classified the requirement that judges should not be subject to any authority in
their judicial functions as essential.154 In the enumeration of criteria mentioned in the very
beginning of this paragraph, it is stipulated that a tribunal needs to be ‘in particular’ independent
of the executive and of the parties to the case. The clause ‘in particular’ indicates that the
requirement of judicial independence is also relevant in other relationships. These various
relationships will be discussed below.
3.4.2
The executive
3.4.2.1 Introductory remarks
A judicial tribunal will have to be able to administer justice without being subject to any form of
dependence from the executive.155 This is the most important aspect of judicial independence. As
December 1979, Schiesser – Switzerland (Series A-34), §31; ECHR, 28 June 1984, Campbell
and Fell – United Kingdom (Series A-80), §79; ECHR, 23 April 1987, Ettl – Austria (Series A117), §39, ECHR, 24 November 1994, Beaumartin - France (Series A-296-B), §38 and ECHR, 13
February 2003, Chevrol – France (appl. no. 49636/99).
151
ECHR, 25 February 1997, Findlay – United Kingdom (Reports 1997, p. 263), §77: “[…] the
well-established principle that the power to give a binding decision which may not be altered by
a non-judicial authority is inherent in the very notion of ‘tribunal’ and can also been seen as a
component of the ‘independence’ required by Article 6 §1”. See also: ECHR, 28 October 1999,
Brumarescu - Romania (appl. no. 28342/95), §§60-65.
152
ECHR, 19 April 1994, Van de Hurk - Netherlands (Series A-288), §§44-55.
153
ECHR, 30 November 1987, H. – Belgium (Series A-127), §51.
154
See for example, EComHR, 1 March 1979, Sutter - Switzerland (appl. no. 8209/78; D&R 16, p.
166) and EComHR, 8 September 1988, Depuis - Belgium (appl. no. 12717/87; D&R 57, p. 196).
155
Cf. the UN Human Rights Committee: “The Committee considers that a situation where the
functions and competences of the judiciary and the executive are not clearly distinguishable or
where the latter is able to control or direct the former is incompatible with the notion of an
independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant”
(HRC, Case 468/91, 20 October 1993, Bahamonde – Equatorial Guinea (Annual Report 1994, p.
183), §9.4). Vincent O. Orlu Nmehielle remarks about judicial independence in Africa: “[…] it is
regrettable that the judiciary in most African states is nothing but an appendage to the executive
arms of government. Judges are appointed and dismissed at the whims and caprices of the executive,
especially in military and one-party dictatorships” (V.O. Orlu Nmehielle, The African Human
Rights System, The Hague / London / New York: Martinus Nijhoff Publishers, 2001, p. 97).
43
Mahrenholz stresses: “[…] die Voraussetzungen seiner Unabhängigkeit kann es [das Richtertum,
MK] nicht schaffen und nicht erhalten. Die Unabhängigkeit der Justiz lebt von dem Willen der
ersten beiden Gewalten, sie zu respektieren, auszubauen, zu pflegen”.156 This is exactly why the
Court should have an exceptionally critical examination of various ways in which the executive
can exercise a direct control over the judiciary. This control can have a ‘direct’ nature, i.e. a judge
receiving instructions in his judicial task. More often, the dependence will be more hidden.
3.4.2.2 Direct threats to judicial independence
A clear example of direct dependence can be found in the Beaumartin case.157 The French judge
was obliged by law to ask for advice from a representative of the executive when interpreting an
international agreement. He was then obliged to render judgment in accordance with the given
interpretation. This would allow a representative of the executive to be responsible for the
adjudication of a judicial problem and the Court therefore found a breach of Article 6 ECHR. A
judge should not be obliged to consult a representative of the executive for interpretation of legal
provisions. This case law was confirmed in the Chevrol case158 in which the Conseil d’Etat was
called upon to give a ruling on the conditions governing the implementation and reciprocity of an
international treaty. The court had to consult the Minister of Foreign Affairs on the matter and
abide by his opinion. The Court concluded that the case had not been heard by a ‘tribunal’ with
full jurisdiction and held that the Convention had been violated.
Neither should a member of the executive ‘recommend’ a certain interpretation of law out
of his own motion. In the Sovtransavto case, the President of Ukraine had written a letter to the
President of the Supreme Arbitration Tribunal urging him in a dispute between a Russian
public company and a Ukrainian public company to "defend the interests of Ukrainian
nationals". The Court held that an intervention of this sort was incompatible with the notion of
an 'independent' tribunal:
“Lastly, the Court can but note that the Ukrainian authorities acting at the highest level
intervened in the proceedings on a number of occasions. Whatever the reasons advanced
by the Government to justify such interventions, the Court considers that, in view of their
content and the manner in which they were made […], they were ipso facto incompatible
with the notion of an “independent and impartial tribunal” within the meaning of Article 6
§1 of the Convention.” 159
156
Mahrenholz, “Justiz – eine unabhängige Staatsgewalt? Festvortrag beim Deutschen Richtertag”,
in: DriZ 1991, p. 433.
157
See ECHR, 24 November 1994, Beaumartin - France (Series A-296-B), §38. In the very early caselaw, the Commission was somewhat more lenient. See, for example, the complaint in EComHR, 4
October 1966, X. – Austria (appl. no. 1706/62; CD 21 (1967), p. 34). The complaint was that the
executive had made the case of the applicant a ‘Berichtsache’, i.e. the national court had to report
on the case to the executive. The Commission found that there was no appearance of any undue
influence and declared the case inadmissible.
158
ECHR, 13 February 2003, Chevrol – France (appl. no. 49636/99).
159
ECHR, 25 July 2002, Sovtransavto Holding - Ukraine (appl. no. 48553/99), §80. See also the
44
Another obvious example of direct dependence is when a Minister is able to establish or (and this
is more dangerous in view of judicial independence) to dissolve judicial tribunals (this problem
was discussed in the previous Chapter). The Commission has stated that this influence in itself is
not sufficient to consider the requirement of judicial independence to have been breached, as long
as the judge cannot be dismissed from office during his term of office.160 In my opinion, the
Commission should have interpreted judicial independence in a more strict manner. The executive
should not have the power to close down or suspend the operation of the courts.161
The ability of the executive to set aside a judicial decision is yet another example of direct
dependence. Recommendation R (94) 12 states that the government "should not be able to take
any decision which invalidates judicial decisions retroactively" (see Principle I.2.a sub iv). Even
the mere existence of a legal provision which enables the executive to do so, will be sufficient for
the Court to consider the Convention breached. In the Van de Hurk case162, the Court considered it
insignificant that such a legal provision had never actually been used in practice by the executive.
This bold judgment clearly indicates, that the ‘independence’-test is of a more abstract character.
Normally the mere existence of a legal provision is insufficient to consider the Convention
breached. One can wonder whether the applicant in the Van de Hurk case satisfied the
requirement of being a ‘victim’ in the sense of Article 34 ECHR.163 The legal provision, which
enabled the executive to put aside the judicial decision, was after all not actually used in casu and
according to standard case-law it is not the task of the Court to give in abstracto opinions on the
legal state of affairs in a particular country. The Court, however, stressed the fact that there was
always a possibility that the judge would act in a more ‘governmental’ manner in order to avoid
that the executive would invalidate the judicial decision. In my opinion such an in abstracto
approach is understandable with regard to complaints dealing with judicial independence. I favour
more abstract formulated judgments of the Court in view of the higher level of judicial protection
offered by the Court and its increasing workload (see *** Chapter 3 §12 ***).
final report of the PHARE programme 'Reinforcement of the Rule of Law'. In Romania the
Minister sends "occasional letters" in which a certain interpretation of law is recommended to the
judiciary (see European Commission, Reinforcement of the Rule of Law, Nijmegen: Wolf Legal
Productions, 2002, p. 41). This practice is open to abuse. In my opinion, the Court’s ruling in the
Sovtransavto case is not intended to prohibit lawful third party interventions by the authorities.
160
EComHR, 12 October 1978, Zand – Austria (appl. no. 7360/76; D&R 15, p. 70). See also the
complaint in EComHR, 10 October 1991, Mitap & Müftüoglu - Turkey (appl. nos. 15530/89 &
15531/89; D&R 72, p. 169).
161
See also Principle 2.07 (c) of the Universal Declaration on the Independence of Justice (Montréal,
1983; to be found in S. Shetreet & J. Deschênes (eds.), Judicial independence: the contemporary
debate, Dordrecht / Boston / Lancaster: Martinus Nijhoff, 1985, p. 447).
162
See ECHR, 19 April 1994, Van de Hurk - Netherlands (Series A-288), §§44-55. This standpoint
has been reiterated in ECHR, 22 November 1995, Bryan - United Kingdom (Series A-335-A), §38.
163
See the dissenting opinions of judges Ryssdal, Martens, Foighel and Bonnici (ECHR, 19 April
1994, Van de Hurk - Netherlands (Series A-288), pp. 23-33).
45
Factual non-implementation of judicial decisions by the authorities can equally undermine the
authority (and in the longer run the independence) of the judiciary.164 As was discussed in ***
Chapter 4 §1 *** the Court held in the Hornsby case that the right to court
"would be illusory if a Contracting State's domestic legal system allowed a final,
binding judicial decision to remain inoperative to the detriment of one party […] It
would be inconceivable that Article 6 should describe in detail procedural guarantees
afforded to litigants [...] without protecting the implementation of judicial decisions […]
Execution of a judgment given by any court must therefore be regarded as an integral
part of the 'trial' for the purposes of Article 6." 165
Likewise, in the Brumarescu case the Court held unconditionally:
"One of the fundamental aspects of the rule of law is the principle of legal certainty,
which requires, inter alia, that where the courts have finally determined an issue, their
ruling should not be called into question." 166
The Court did not make an explicit link with the requirement of judicial independence167, but it
did reach the conclusion that Article 6 ECHR was violated. This raises the question whether
national law should provide for a legal remedy in case the authorities do not execute a judicial
decision. In my opinion, one could argue that Article 13 ECHR obliges states to offer such a
remedy. At the same time, one has to wonder whether the purpose of offering effective protection
to the citizen is really served by introducing such an additional national procedure. Why would the
executive authorities respect the second ruling by the national judge urging the authorities to offer
their assistance in executing the original judgment, when they disregarded the first judicial
decision telling them to do so? Most likely, the additional remedy would only be a burden to the
164
See also the dissenting opinion of Schermers in Van de Hurk - Netherlands (Series A-288), p. 39.
Schermers seems to attach less importance to this kind of dependence of members of the judiciary.
He emphasises the fact that judges are systematically unable to exercise control over the execution
of, the supervision over and the compliance with their judgments.
165
ECHR, 19 March 1997, Hornsby - Greece (Reports 1997, 495), §40. A similar reasoning should
be applied in my opinion by the Court in complaints concerning the non-implementation of judicial
measures in the field of child protection by the authorities (see for example ECHR, 23 September
1994, Hokkanen - Finland (Series A-299-A)). The police, faced with a final judicial decision,
sometimes decides not to take a child away from its factual residence because of the potentially
traumatic and unsettling consequences of such an action. Authorities will claim that non-execution
of the judicial decision is in the best interest of the child. In light of the Hornsby judgment it is
questionable whether such behaviour of the authorities should be honoured. Authorities need to
assume that the judge who took the original decision was also guided by what should be considered
to be in the best interest of the child.
166
ECHR, 28 October 1999, Brumarescu - Romania (appl. no. 28342/95), §61.
167
Cf. Principle 7 of the International Bar Association Code of Minimum Standards of Judicial
Independence, adopted in New Delhi on 22 October 1982 where judicial independence is linked
with the state’s duty to provide for the execution of judgments.
46
citizen. On the basis of the exhaustion of domestic remedies rule, the citizen will not be able to
file a complaint before the European Court before he has also exhausted the follow-up procedure.
In my opinion, the European Court should therefore adopt a lenient approach with regard to the
admissibility of a complaint concerning non-implementation of a judicial decision.
In its Immobiliare Saffi judgment the Court elaborated on problems arising from a stay of
execution of a judicial decision by the authorities (see *** Chapter 4 §1 ***). The Court stated
that "the consequence of such intervention should not be that execution is prevented,
invalidated or unduly delayed or, still less, that the substance of the decision is undermined". 168
A similar threat can arise in case the executive publicly criticises the judiciary in such harsh
wording that it can potentially undermine the confidence in the authority of the judiciary.169
Principle 16 of the International Bar Association Code of minimum standards of judicial
independence (New Delhi, 1982) states:
“The Ministers of the government […] shall not make statements which adversely affect
the independence of individual judges, or of the Judiciary as a whole.”
In the Falcoianu case170, the applicants complained about the independence of the Romanian
Supreme Court because it had departed from its own case-law after a speech made in 1994 by
the Romanian president, Mr Iliescu, in which he had stated that judicial decisions for the
restitution of unlawfully nationalised property should not be executed. The Court found that
there was nothing to suggest that the judges who had sat in the applicants’ case had been
influenced by the President’s remarks and the fact that two of the judges had previously voted
in favour of changing the case-law did not infringe the right embodied in Article 6 §1.
Consequently, the Court held unanimously that there had been no violation of Article 6 §1 as a
result of the change in the case-law of the Supreme Court of Justice. In this case, the Court took
a pretty lenient approach. A violation of Article 6 will only be found in case the applicant can
demonstrate that the judge has actually been influenced in the determination of a specific case.
This will be a difficult hurdle for the applicant.
In my opinion, at least two factors should be taken into account by the Court. The
Court should adopt a more rigid approach in case the criticism is directly linked with a
'sanction' or in case the wording of the public criticism is so harsh that one might expect that
the general public will loose faith in the proper functioning of the judiciary. This higher level of
protection of the judiciary is also justified by the fact that members of the judiciary should
168
ECHR, 28 July 1999, Immobiliare Saffi - Italy (Reports 1999, 1999), §§69 and 74 and ECHR,
22 May 2003, Kyrtatos – Greece (appl. no. 41666/98).
169
This situation needs to be distinguished from case-law concerning criticism voiced in the media
on different aspects of the administration of justice, as was discussed in *** Chapter 4 §3.2 ***.
170
ECHR, 9 July 2002, Falcoianu a.o. - Romania (appl. no. 32943/96), §§35-38. See also identical
complaints in ECHR, 16 July 2002, Ciobanu - Romania (appl. no. 29053/95), §44 and ECHR,
26 November 2002, Mosteanu a.o. - Romania (appl. no. 33176/96), §§41-43.
47
exercise restraint when responding to such criticisms. Let me refer to some other examples. In
the above-mentioned Wille case171, the Prince of Liechtenstein expressed severe criticism against
the President of the Administrative Court for his legal interpretation of the constitution. The
Prince wrote a harsh reprimand to the judge. Such an interference should be examined with the
most critical scrutiny. In this particular case, the Court did not examine the facts of the case from a
viewpoint of judicial independence (the applicant invoked freedom of expression). The facts of
the case do demonstrate, however, that public criticism by the executive is not merely a theoretical
possibility. Despite the fact that there is no direct Strasbourg case-law, various examples can be
found in European newspapers and official reports.172 One of these examples can be found in a
report of the British government after the conviction of this government by the Strasbourg Court
in the infamous McCann a.o. case.173 The resentment of the British government concerning this
conviction was such that the government publicly criticised the Court and that it proposed changes
in the selection procedure for candidate judges of the Court. Reasons for this critical (one could
even say hostile) attitude towards the Court were according to the report:
"The British Government has been concerned about some recent judgements of the Court,
and would like to see certain changes to promote fairness and to ensure that the Strasbourg
institutions take all factors into account." 174
Pressure of this kind after an unfavourable judgment is in my view unacceptable. Expressing
criticism on a judgment does not necessarily have to be harmful, as long as it is done after the
judge has reached his decision. It can prevent a judge to drift off from public opinion and general
interest. However, simply expressing critical remarks should be distinguished from the statements
made by the British government after the McCann case and the Prince of Liechtenstein in the
Wille case, in which the executive threatens to take measures in order to persuade the judge to
reach a different conclusion in future cases.
171
See *** §3.2.2 ***.
172
For example, after the murder on Dutch politician Fortuijn, two government ministers (one of
them being the Minister for the Interior) expressed their opinion on the pending criminal
proceedings against the then defendant. The Amsterdam Court of Appeal had to rule whether the
statements had violated the defendant’s right to a fair trial by an independent and impartial
tribunal. In its judgment of 18 July 2003 (reproduced in NJCM-Bulletin 2003, pp. 874-876 and
discussed in *** Chapter 4 §3.3.2 ***) the Court of Appeal was very critical about the remarks
made by the Minister of the Interior and qualified them as ‘inappropriate’ and ‘risky’.
See also the controversy concerning some condescending remarks made by Italian prime minister
Berlusconi about the Italian judiciary (see NRC Handelsblad 30 January 2003, p. 6). The
remarks even led to parliamentary questions in the Dutch House of Commons (Tweede Kamer
2002-2003, Aanhangsel van de Handelingen, 1017).
173
ECHR, 27 September 1995, McCann a.o. - United Kingdom (Series A-324). See also R. Lawson,
“Artikel 2 EVRM en de bestrijding van terrorisme; Britse wrevel over het Hof”, in: NJCM-Bulletin
1996, pp. 537-561.
174
Financial Times of 3 April 1996, p. 9. See also: R. Lawson, “Artikel 2 EVRM en de bestrijding
van terrorisme; Britse wrevel over het Hof”, in: NJCM-Bulletin 1996, p. 554.
48
3.4.2.3 Indirect threats to judicial independence
There are of course also various ways in which the executive can exercise a more informal control
over the judiciary. Usually, the executive can also create a dependent relationship by withholding
certain material means, such as finances, staff, facilities, et cetera. In these instances, there rests a
positive obligation on the shoulders of the state authorities to facilitate the administration of law.
There is hardly any Strasbourg case-law in this field. I will therefore try to derive a standard from
the various relevant political documents.

Financial administration of the judiciary
Various documents refer to the duty of state institutions to provide the judicial system with
sufficient resources to carry out its task.175 There are however some differences of opinion as to
which authority should be responsible for the judicial system's budget, i.e. the Ministry of Justice
or an independent body emanating from the judiciary.176 In view of the political accountability of
the Minister vis-à-vis Parliament for public expenses, a certain control by the Ministry seems
unavoidable. The final decision on the determination of the budget will always remain a political
one. In order to oppose the potential threat of undue influence, an additional role by an authority
which possesses a certain degree of independence itself is desirable (despite the fairly
undemocratic nature – in the sense of not being elected by the people – of such an authority).177
Financing the judiciary will always remain the Achilles heal of judicial independence. "He who
pays the piper calls the tune".178 In newspapers one can regularly read about judges who complain
about budgetary matters and their influence on the functioning and authority of the judiciary.
175
See, for example, Principle 1.6 of the European Charter on the Statute for Judges (Strasbourg, 810 July 1998), Principle 7 of the United Nations Basic Principles on the independence of the
judiciary (endorsed by the UN General Assembly in November 1985) and Principle 4 of the
conclusions of the conference "The role of the Ministry of Justice in financing the judicial
system", held in Riga on 12-14 May 1997 (to be found in: Council of Europe, Independence,
impartiality and competence of judges – Achievements of the Council of Europe (doc. no. MJU22 (99) 5), p. 75).
176
See the guidelines of the multilateral meeting "The administration of justice and court
management", held in Bordeaux on 28-30 June 1995 (to be found in: Council of Europe,
Independence, impartiality and competence of judges – Achievements of the Council of Europe
(doc. no. MJU-22 (99) 5), p. 68).
177
See also Principle 2.42 of the Universal Declaration on the Independence of Justice (Montréal,
1983): “The judiciary shall submit their estimate of the budget requirements to the appropriate
authority”. See also the recommendations with regard to the Slovak Republic in the European
Commission’s PHARE Programme ‘Reinforcement of the Rule of Law’ (Nijmegen: Wolf Legal
Productions, 2002, p. 47): “It is suggested that the National Judicial Council […] become more
involved in the process of drafting the budget”. Many countries have established a High Council of
the Judiciary, responsible for submitting such an estimate.
178
In Dutch: "Wiens brood men eet, diens woord men spreekt" or in German "Des Brot ich ess, des
Lied ich sing".
49
Similar guarantees exist with regard to the remuneration of individual judges. In the so-called
Tokyo Principles, the drafting Committee states that it is aware of instances in which the
remuneration of a judge has been affected because of decisions given by the judge.179 Such a
threat should be neutralised. Recommendation R (94) 12 states that remuneration of judges should
commensurate with the dignity of their profession and burden of responsibilities.180 An adequate
remuneration is also necessary in order to ensure the desired level of competence and to avoid
brain drain or the search for additional sources of income.181 The remuneration system and
pensions (but also guarantees against social risks linked with illness, maternity, invalidity and
death) should be based on clear and objective criteria laid down in law. Principle 6.2 of the
European Charter on the Statute for Judges mentions some of these criteria: length of service,
nature of the duties which judges are assigned to discharge in a professional capacity, and the
importance of the tasks which are imposed on them. No authority should be able to modify
arbitrarily the salaries and pensions neither on a global scale, nor in individual cases.182
There is hardly any Strasbourg case-law on this specific issue. The applicants in Eccles,
McPhillips & McShane - Ireland complained about the fact that the executive was able to lower
the salary of the judge. The Commission contemplated, that...
"[...] there is no evidence of any attempt to undermine the independence of the court by an
abusive [italics supplied, MK] exercise of the power [...] in a manner calculated [italics
supplied, MK] to influence the court in the performance of its functions." 183
This quotation indicates the difficult burden of proof which rests upon the applicant to establish a
breach of the Convention. It will be extremely difficult to prove that the executive deliberately
manipulated the payment of members of the judiciary.

Supporting staff and facilities
179
Principle 12 (a) sub (ii) of the Tokyo Principles on the Independence of the Judiciary in the
Lawasia region (report of a seminar held in Tokyo on 17-18 July 1982; to be found in S. Shetreet
& J. Deschênes (eds.), Judicial independence: the contemporary debate, Dordrecht: Martinus
Nijhoff, 1985, p. 441).
180
Principle I.2.a sub (ii) and Principle III.1.b.
181
Conclusion 5 of the multilateral meeting "The role of the Ministry of Justice in financing the
judicial system", held in Riga on 12-14 May 1997 (to be found in: Council of Europe,
Independence, impartiality and competence of judges – Achievements of the Council of Europe
(doc. no. MJU-22 (99) 5), p. 75). See also: Principle 8 of the Judges' Charter in Europe, adopted
on 20 March 1993 in Wiesbaden by the European Association of Judges.
182
Conclusion 4 of the meeting "The guarantees of the independence of judges - evaluation of
judicial reform", held in Budapest on 13-15 May 1998 (to be found in: Council of Europe,
Independence, impartiality and competence of judges – Achievements of the Council of Europe
(doc. no. MJU-22 (99) 5), p. 49).
183
EComHR, 9 December 1988, Eccles, McPhillips & McShane - Ireland (appl. no. 12839/87; D&R
59, p. 212).
50
The executive will also be able to exercise a certain degree of supervision over the judiciary by
withholding sufficient supporting staff and/or facilities. Courts must have sufficient and adequate
means in order to accomplish their mission in complete independence. The importance of this has
been emphasised in Principle III.1.d of Recommendation R (94) 12:
"Proper conditions should be provided to enable judges to work efficiently and, in
particular, by:
[...]
d.
providing adequate support staff and equipment in particular office automation
and data processing facilities, to ensure that judges can act efficiently and without
undue delay; [...]" 184
The importance of modern computing facilities is stressed in this regard:
"The most modern technical means should be made available to the judicial authorities so
as to enable them to give justice in the best possible conditions of efficiency, in particular
by facilitating access to the various sources of law and speeding up the administration of
justice."185
But the same is true for legally trained support staff. They can assist individual judges in various
ways, for example in organising their work, examining case files, checking legal literature,
communicating with the parties, et cetera.186

Obligation to provide necessary information
Judicial independence can also be affected by systematically withholding knowledge which is at
184
Confirmed in Principle 7 of the Judges' Charter in Europe, adopted on 20 March 1993 in
Wiesbaden by the European Association of Judges and in the conclusions of the conference
"Judicial systems in a period of transition", held in Budapest on 25-27 October 1995, organised
by the presidents and judges from Supreme Courts in Central and Eastern Europe; conclusion no.
4 of the conference "The guarantees of the independence of judges - evaluation of judicial
reform", held in Budapest on 13-15 May 1998, organised by various national Associations of
Judges(to be found in: Council of Europe, Independence, impartiality and competence of judges
– Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), p. 34, p. 49 and p. 71).
185
Principle 9 of Recommendation R (84) 5 on the principles of civil procedure designed to
improve the functioning of justice, adopted by the Committee of Ministers on 28 February 1984
(to be found in: Council of Europe, Independence, impartiality and competence of judges –
Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), p. 11).
186
The role of the Registrar, providing technical assistance and/or helping to ease the burden on
judges, was highlighted in the conclusions of the conference "The participants in the trial with
particular reference to criminal proceedings", held in Strasbourg on 29-31 May 1996; to be
found in Council of Europe, Independence, impartiality and competence of judges –
Achievements of the Council of Europe (doc. no. MJU-22 (99) 5).
51
the disposal of the executive.187 Certain information can be so complex that only the executive is
able to collect it. Likewise it is possible that the executive has an ‘information-monopoly’ in
certain areas. As long as the prosecuting authorities, for example, are not willing to give an insight
in the investigating methods they use, a judge will be unable to test the lawfulness of these
methods.188 The controversy in the Netherlands following the conclusions of the Parliamentary
Commission-van Traa (a parliamentary commission conducting an inquiry into investigation
methods used by the police in the fight against organised crime) has underlined this once again. A
similar issue may arise in case prosecuting authorities want to use intelligence provided by secret
services in criminal proceedings against alleged terrorists.

Physical security of members of the judiciary
There is no Strasbourg case-law in this respect. However, it is generally accepted that the state
authorities should provide the means for guaranteeing the physical security of members of the
judiciary. This is confirmed in Principle III.2 of Recommendation R (94) 12:
“All necessary measures should be taken to ensure the safety of judges, such as ensuring
the presence of security guards on court premises or providing police protection for
judges who may become or are victims of serious threats.” 189
Likewise, the Inter-American Commission stated in its report on Guatemala: “[…]
administrative measures are needed to provide judges with suitable material means for
protecting their security, the autonomy, independence and integrity of the members of the
judiciary calls for measures”.190
187
Reasoning by analogy the grounds of a decision of the Court of Justice of the European
Communities could support this proposition. The ECJ gave its opinion on 13 July 1990 about the
claim of a Dutch judge, who -in order to correctly administer justice in national litigation- was
dependent on certain information that only the European Commission was able to provide him
(Case C-2/88-Imm, Zwartveld [1990] ECR I-3365, §§17, 18 & 25): "In that community subject to
the rule of law, relations between the Member States and the Community institutions are governed,
according to Article 5 of the EEC Treaty, by a principle of sincere cooperation. [...] This duty of
sincere cooperation imposed on Community institutions is of particular importance vis-à-vis the
judicial authorities of the Member States. [...] Under those circumstances, the Commission must
produce to the Rechter-commissaris the documents which it has requested, unless it presents to the
Court imperative reasons relating to the need to avoid any interference with the functioning and
independence of the Communities justifying its refusal to do so".
188
Cf. various judgments of the Court in which the Court reiterated that Article 6 §1 ECHR requires
that the prosecuting authorities should disclose to the defence all material evidence in their
possession for or against the accused: ECHR, 16 December 1992, Edwards – United Kingdom
(Series A-247-B), §36; ECHR, 16 February 2000, Fitt – United Kingdom (appl. no. 29777/96),
§44 and ECHR, 16 February 2000, Jasper – United Kingdom (appl. no. 27052/95), §51.
189
Cf. Principle 2.23 of the Universal Declaration on the Independence of Justice (Montréal, 1983;
to be found in S. Shetreet & J. Deschênes (eds.), Judicial independence: the contemporary
debate, Dordrecht: Martinus Nijhoff, 1985, p. 447), which also refers to the physical protection
of the families of judges, especially in the event of threats being made against them.
190
See IACHR Annual Report 1994, p. 456.
52

Training facilities
There is no specific case-law on judicial independence in light of training facilities for judges.
However, in various documents the importance of proper training facilities for judges has been
stressed in order to prepare judges for performing their judicial task in an independent manner. As
the explanatory memorandum to Principle 2.3 of the European Charter on the Statute for Judges
states:
“Certain precautions must be taken in preparing judges for the giving of independent and
impartial decisions, whereby competence, impartiality and the requisite open-mindedness
are guaranteed in both the content of the training programmes and the functioning of the
bodies implementing them.”
This consideration seems to imply that only initial training of candidate judges is required, but the
same is true for continuous training during the judicial career (see Principle 4.4 and Principle
III.1.a of Recommendation R (94) 12). Principle 2.3 of the European Charter on the Statute for
Judges talks about ‘appropriate training’ without giving more explicit guidelines as to the contents
of the training programmes. Recommendation R (94) 12 refers in this respect to training on recent
legislation and case-law, practical training and study visits to European and foreign authorities and
courts. Training on the application of international law is also stressed in this respect.191 Cooperation at a European level between those bodies responsible for training should therefore be
reinforced.192
This training can be organised either in specific institutions or through training
programmes within the courts.193 But it is stressed that a High Council of the Judiciary (or a
similar body) should be involved in ensuring the appropriateness of training programmes and of
the organisation which implements them.
Despite a lack of Strasbourg case-law in this field, it is clear from the various non-binding
documents that the State should provide adequate budgetary and material means for the
191
See, for example, the conclusions of the conference “The training of judges on the application of
international conventions”, held in Bordeaux on 2-4 July 1997, organised by the Council of
Europe and the Ecole Nationale de la Magistrature (to be found in: Council of Europe,
Independence, impartiality and competence of judges – Achievements of the Council of Europe
(doc. no. MJU-22 (99) 5), p. 45).
192
Conclusions of the conference “The training of judges and public prosecutors in Europe”, held in
Lisbonne on 27-28 April 1995, organised by the so-called Lisbon Network (to be found in:
Council of Europe, Independence, impartiality and competence of judges – Achievements of the
Council of Europe (doc. no. MJU-22 (99) 5), p. 42).
193
Conclusions of the conference “The guarantees of the independence of judges – evaluation of
judicial reform”, held in Budapest on 13-15 May 1998, organised by various national
Associations of Judges (to be found in: Council of Europe, Independence, impartiality and
competence of judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), p. 49).
53
organisation of such training activities. Such training should be free of charge to the judge.194
3.4.2.4 Concluding remarks
In conclusion, the Strasbourg institutions have taken a strict stand with regard to the requirement
"independence vis-à-vis the executive" in case the influence is of a more direct nature (as in the
Van de Hurk case). At the same time the Court should be more aware of various hidden threats to
exert an influence on the judiciary.
3.4.3
The Legislative
This kind of independence can only be relative, since the judge will be bound by national
legislation.195 On the other hand, a judge is free to interpret a legal provision. This freedom will
become more extensive if the legislator uses so-called ‘vague’ or open norms. Further elaboration
of the norm, in order for the norm to be applied in a specific set of circumstances, is left to the
judge's own discretion. Likewise, in certain circumstances (for example in Dutch civil law) it will
be possible for a judge to set aside a legal provision in order to comply with a general principle of
law. Finally, certain topics can be so politically sensitive that legislation never materialises or only
after a long elapse of time, so that the judge is not able to base his decision on a legal provision.
The result of these developments is that judges take more and more often policy-making
decisions. As a consequence the judiciary could be the subject of public criticism more often.
Judicial independence is more likely to be threatened if the judiciary is involved as an actor in the
political arena.196
The Strasbourg bodies have acknowledged the fact that the judge needs to be independent vis-àvis the legislator. In 1980 the Commission explicitly stipulated that a judicial tribunal needs to be
independent vis-à-vis the legislature.197 There are, however, not many precedents in the Court’s
194
Principle III.1.a Recommendation R (94) 12, Principle 2.3 of the European Charter on the Statute
for Judges and the Conclusions of the conference “Training of judges and prosecutors in matters
relating to their professional obligations and ethics”, held in Strasbourg on 13-15 May 1996,
organised by the Lisbon Network (to be found in: Council of Europe, Independence, impartiality
and competence of judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), p.
44).
195
Montesquieu and Blackstone emphasise the dependence of the judge vis-à-vis the legislature.
Kantorowicz and other Freirechtler emphasise the independence of the judiciary. In the
Netherlands the discussion is focused around Wiarda (Drie typen van rechtsvinding, Zwolle:
Tjeenk Willink, 1988) and Scholten (Algemeen Deel, Zwolle: Tjeenk Willink, 1974).
196
See M.G. Rood (ed.), Rechters en politiek: nationale en internationale beschouwingen, Zwolle:
W.E.J. Tjeenk Willink, 1993 and the report of the Nederlandse Vereniging voor Rechtspraak in
Trema Special 1979-2, pp. 8-9.
197
EComHR, 18 December 1980, Crociani, Palmiotti, Tanassi & Lefebvre d'Ovivio – Italy (appl. nos.
8603/79, 8722/79, 8723/79 & 8729/79; D&R 22, p. 147). See also EComHR, 5 October 1981 (appl.
no. 8866/80; Digest, pp. 694-695).
54
case-law.
Interferences by the legislature in the administration of justice by adopting new retrospective
provisions to regulate rights arising under existing laws are the most common problem.198 This
issue was already discussed in *** Chapter 4 §1 ***. The general principles of the Court with
respect to this problem were laid down in the Stran Greek Refineries case:
"The principle of the rule of law and the notion of fair trial enshrined in Article 6
preclude any interference by the legislature with the administration of justice designed
to influence the judicial determination of the dispute. [...] In conclusion, the State
infringed the applicants' rights under Article 6 para. 1 by intervening in a manner
which was decisive to ensure that the - imminent - outcome of proceedings in which it
was a party was favourable to it." 199
The Strasbourg bodies had to examine another situation in which parliamentary debate tried to
influence the independent judiciary.200 In 1962 the Commission had to comment on a
parliamentary debate on the organisation of the judiciary in the German Bundestag.201 A member
of parliament of the socialist SPD complained during the debate about the sentencing policy of
judges, which in his view was too lenient. In order to support his argument he referred to some
specific cases, one of which was pending before the Court of Appeal. Did this mean that the Court
of Appeal judge had been unlawfully influenced by Parliament? The Commission decided that
this was not the case, pointing out that the necessity of judicial independence had been explicitly
referred to in the debate. Furthermore, the Commission considered it important that the debate had
not resulted in a vote or declaration addressed to the judge. And finally, the Court of Appeal
judgment had been properly reasoned. This reasoning did not seem to indicate any bias because of
the parliamentary debate. The case does show that the Commission did not want to allow remarks
made by parliamentary members concerning pending cases unconditionally.202
3.4.4
The parties
198
Principle 19 of the International Bar Association Code of minimum standards of judicial
independence (New Delhi, 1982): “The Legislature shall not pass legislation which retroactively
reverses specific court decisions”.
199
ECHR, 9 December 1994, Stran Greek Refineries and Stratis Andreadis - Greece (Series A-301B), §§49-50. This element was discussed in *** Chapter 4 §1 ***.
200
Cf. the discussion on freedom of expression sub judice by other actors in *** Chapter 4 §3.2.2 ***
and the situation in which parliament itself exercises certain judicial functions which will be
discussed in *** Chapter 7 §2.5 ***.
201
EComHR, 16 July 1962, X. - Germany (appl. no. 1063/61; Digest, pp. 669-670).
202
Cf. the Amsterdam Court of Appeal’s judgment of 18 July 2003 (reproduced in NJCM-Bulletin
2003, pp. 874-876 and discussed in *** Chapter 4 §3.3.2) concerning statements made by certain
(candidate) members of parliament against the defendant in the criminal case ensuing the murder
on Dutch politician Fortuijn.
55
Judicial independence should furthermore be guaranteed vis-à-vis the parties to a dispute,
according to the list of criteria mentioned in the beginning of this paragraph. Van Dijk and Van
Hoof are of the opinion that this element refers in fact not to the independence but to the required
impartiality of the court.203 Admittedly, the dividing line between the requirement of
independence vis-à-vis the parties and the requirement of impartiality is not very clear. Yet there
is a difference between both requirements. Whereas ‘impartiality’ deals with the relationship
between a specific judge and specific parties, the requirement of ‘independence vis-à-vis the
parties’ concentrates on the relationship between judges and parties in general.204 This distinction
also explains the use of both requirements by the Commission and the Court. In practice, however,
the requirement ‘independence vis-à-vis the parties’ has not been further elaborated in European
case-law. The Court deals with most of the problems between a judge and one of the parties
within the framework of the requirement of impartiality, since a situation which is generally
unacceptable will also be unacceptable in the specific case. The advantage of this approach is that
the Court does not have to prove that a certain situation is in breach with the Convention in all
possible circumstances, but just in the specific circumstances of the individual case. The
disadvantage is that the Court will seldom make a generally phrased statement of dogmatic value
(see also *** Chapter 3 §12 ***).
Even though the clause ‘independence vis-à-vis the parties’ has not been elaborated in the
European case-law, some remarks should still be made concerning the requirement. Firstly, the
applicability of the requirement is limited to the machinery of justice institutionalised by the state.
This specific requirement cannot relate to arbitration clauses. Secondly, one should remember that
independence of a judge vis-à-vis the parties in criminal and civil adversarial proceedings is of
relative value anyway. A judge will be bound by the factual boundaries of the dispute
(respectively by the indictment or by the writ of summons). The parties decide what aspects of the
dispute they wish to submit to the judge's attention. Thirdly, despite the lack of case-law in this
regard one can safely predict that certain situations will be in breach with this requirement, such
as remuneration of judges by the parties.205 Equally unacceptable would be the situation, in which
the parties would 'appoint' specific judges for the settlement of their dispute.206 A practice such as
‘forum shopping’ by lawyers is alarming in this regard.
203
P. van Dijk & G.J.H. van Hoof (eds.), Theory and practice of the European Convention on
Human Rights, The Hague/London/Boston: Kluwer Law International, 1998, p. 451.
204
See also P. Smits, Artikel 6 EVRM en de civiele procedure (thesis Erasmus University), Zwolle:
Tjeenk Willink, 1996, p. 284.
205
Remuneration of arbitrators will be discussed between the parties and ‘their’ arbitrator(s) before the
arbitration takes place. The arbitrators accepted their task, knowing what kind of remuneration to
expect.
206
See Principle I section 2 sub e of Recommendation No. R (94) 12 on the independence, efficiency
and role of judges (adopted on 13 October 1994): "The distribution of cases should not be
influenced by the wishes of any party to a case or any person concerned with the results of the case".
56
Another important aspect of ‘independence vis-à-vis the parties’ also asks for careful
consideration, namely personal immunity. However, there is hardly any case-law in this particular
field. The issue arose indirectly in the Ernst case.207 Belgian journalists complained about a lack
of access to court as a result of the fact that their complaint was directed against a judge who
enjoyed immunity from jurisdiction. The Court held that immunity from jurisdiction was a longstanding practice to be found in other domestic and international legal systems, which ensured a
proper independent administration of justice. The Court’s judgment in the Ernst case indicates
that the Court accepts the importance of granting immunity to members of the judiciary. Various
non-binding documents may be helpful in providing guiding criteria.
(a)
Immunity from civil suit
As a general principle, judges personally should enjoy absolute freedom from liability in respect
of claims made directly against them relating to their exercise in good faith of their functions.
Judicial independence could otherwise be seriously threatened. Judicial errors should be dealt
with by way of an appeal or a claim against the State.208 However, in some European countries the
state may then claim recourse from the judge.209 What appropriate safeguards should be in place?
Principle 16 of the United Nations Basic Principles on the Independence of the Judiciary states
unconditionally: “[…] judges should enjoy personal immunity from civil suits for monetary
damages for improper acts or omissions in the exercise of their judicial functions”.210 Strangely
enough, the list of criteria used in the Court’s case-law when examining questions concerning
judicial independence does not refer to this issue at all. Principle 5.2 of the European Charter on
the Statute for Judges does refer to the issue and is slightly more flexible than the United Nations
Basic Principles. It states:
“Compensation for harm wrongfully suffered as a result of the decision or the behaviour
of a judge in the exercise of his or her duties is guaranteed by the State. The statute may
provide that the State has the possibility of applying, within a fixed limit, for
207
ECHR, 15 July 2003, Ernst – Belgium (appl. no. 33400/96). See also *** Chapter 4 §5.1 ***.
208
See, for example, article 121 of the Spanish Constitution explicitly acknowledging state
responsibility for damages caused by judicial conduct.
209
For example, in the Czech Republic the state may claim recourse from the judge after the judge’s
misconduct has been established in criminal or disciplinary proceedings. Likewise, in Italy, the
action for damages should also be addressed to the State. However, the state authorities can
subsequently deduct a maximum of one third of the judge’s yearly income in case of wilful deceit or
‘gross negligence’. The Italian Constitutional Court has held that this law is compatible with the
Constitution (decisions 18 and 143/89). Cf. the situation in Greece (on the basis of Article 99 of the
Constitution and Law 693/1977) where a special court on mistrial actions (dikastirio agogon
kakodikias) exists.
210
See also Principle 2.24 of the Universal Declaration on the Independence of Justice (Montréal,
1983) and Principle 17 of the Syracuse Draft Principles on the Independence of the Judiciary
(Syracuse, 1981). Both documents can be found in S. Shetreet & J. Deschênes (eds.), Judicial
independence: the contemporary debate, Dordrecht: Martinus Nijhoff, 1985, p. 447 and 414.
57
reimbursement from the judge by way of legal proceedings in the case of a gross and
inexcusable breach of the rules governing the performance of judicial duties.”
Various safeguards are provided: (a) the State may only ask for reimbursement in case of a “gross
and inexcusable” breach; (b) only “within a fixed limit”; and (c) reimbursement can only be
ordered after “legal proceedings”. The European Charter on the Statute for Judges also states that
the State can only ask for reimbursement after “prior agreement” of a High Council of the
Judiciary. The Consultative Council of European Judges endorses all these points but adds that it
should generally be considered inappropriate to impose any personal civil liability on judges, even
by way of reimbursement of the state, except in cases of wilful default.211
(b)
Complaint procedure
A similar balance needs to be found with regard to complaint procedures against members of
the judiciary.212 Principle 5.3 of the European Charter on the Statute for Judges states:
“Each individual must have the possibility of submitting without specific formality a
complaint relating to the miscarriage of justice in a given case to an independent body.
This body has the power, if a careful and close examination makes a dereliction on the
part of a judge indisputably appear […] to refer the matter to the disciplinary authority,
or at the very least to recommend such referral to an authority normally competent […]
to make such a reference.”
Further safeguards will then be offered in the ensuing disciplinary proceedings, as discussed in
*** §3.4.6 ***.
3.4.5
Political, economical or social pressure groups
The roots of judicial independence were discussed in the beginning of this chapter. The concept is
closely intertwined with the doctrine of the trias politica. The ensuing necessity for judicial
independence is foremost seen in relationship to the other state powers. Besides these state powers
there are of course numerous other factual or societal powers, such as the media, pressure groups,
civil servants, criminal organisations, et cetera.213 These societal powers can also cause a judge
not to feel free anymore to base his judicial decision on his own free will. The state can be held
211
CCJE-GT (2002) 7, p. 31.
212
Various countries provide for the possibility of lodging a complaint against a member of the
judiciary. In Denmark, for example, cases are brought before Den Saerlige Klageret by the
Director of Public Prosecution on complaints from private citizens. In Finland, the Chancellor of
Justice conducts inquiries on the basis of complaints by members of the public.
213
See, among others, P.B. Cliteur, “De onafhankelijkheid van de rechterlijke macht: acht vormen”,
in: J.P. Loof (ed.), Onafhankelijkheid en onpartijdigheid, Leiden: NJCM-Boekerij, 1999, pp. 1213; R. Crince le Roy, De vierde macht, The Hague: Vuga-Boekerij, 1976, p. 11; M. de Werd,
“De Trias Politica van Montignac”, in: NJB 1998, pp. 660-661 and R. de Winter, “De Raad voor
de Rechtspraak: een raadsel voor het staatsrecht”, in: NJB 1998, pp. 658-660.
58
responsible for these societal threats to the judge’s independence in an indirect manner, in the
sense that there rests a positive obligation on the state authorities to sufficiently protect the
independence of the judiciary against these societal pressures. This protection can be offered in a
physical sense or by way of enacting legislative safeguards.
In Recommendation R (94) 12, the Committee of Ministers states:
"In the decision-making process, judges should be independent and be able to act without
any restriction, improper influence, inducements, pressures, threats or interferences,
direct or indirect, from any quarter or for any reason. The law should provide for
sanctions against persons seeking to influence judges in any such manner." 214
Does the concept ‘judicial independence’ as used in the Convention include independence vis-àvis these societal powers? In my opinion, the Court’s review should take into account factual
pressures, such as political, economic or social movements when examining a complaint under
Article 6 ECHR.215 Pressure on the judiciary from media coverage was already extensively
discussed in *** Chapter 4 §3.2 ***. There is no reason to assume that the Court’s review would
not be equally strict with regard to pressures from other societal powers. However, there are
hardly any precedents in the Court’s case-law on judicial independence. Instead the Court wishes
to examine these complaints via its impartiality test.
Also on the issue of security of the judiciary requiring physical protection from the state
authorities there is no European case-law.216 The issue has only been raised in a couple of political
documents in a more general fashion.
3.4.6
Internal independence
214
Principle I.2.d. See in almost identical wording Principle 2 of the United Nations Basic
Principles on the independence of the judiciary and Principle 2.02 of the Universal Declaration
on the Independence of Justice (Montréal, 1983; to be found in S. Shetreet & J. Deschênes (eds.),
Judicial independence: the contemporary debate, Dordrecht: Martinus Nijhoff, 1985, p. 447).
See also Principle 2 of the Judges' Charter in Europe adopted on 20 March 1993 in Wiesbaden
by the European Association of Judges: "[The Judge] pays no heed to political parties or pressure
groups".
215
See also J. Velu & R. Ergec, La convention européenne des droits de l’homme, Bruxelles:
Bruylant, 1990, p. 454: “[…] cette notion [l’indépendance du tribunal] va plus loin. Elle inclut
aussi l’indépendance à l’égard [des] pouvoirs de fait, tels les groupes de pression politiques,
économiques ou sociaux”.
216
In comparison to the UN Human Rights Committee which stipulated that the judiciary had to be
protected from threats and reprisals from discontented litigants (Concluding comments on Brazil
in 1996; see UN doc. CCPR/C/79/Add. 66, §11). A similar standpoint has been adopted by the
Inter-American Commission on Human Rights, since the lack of physical security of judges
threatened judicial independence in a number of American states such as Colombia (see S.
Davidson, “The Civil and Political Rights Protected in the Inter-American Human Rights
System”, in: D. Harris & S. Livingstone (eds.), The Inter-American System of Human Rights,
Oxford: Clarendon Press, 1998, p. 247).
59
A judge should be able to perform his judicial tasks without being subject to any ‘authority’.217
Can other judicial organs and their case-law under certain circumstances be considered an
‘authority’ in the sense of the Convention? Many commentators argue that ‘internal’ factual
pressures of this kind need to be examined because they can negatively influence the judicial
independence of an individual judge. Cliteur218, for example, is of the opinion that these pressures
are the likely result of (a) the fact that the judiciary is a structured organisation (which could
imply an element of hierarchy), and (b) the fact that the judiciary as an institution is composed of
different units (different branches and layers of judges, public prosecutors and registrars) which
could try to exert influence on each other.
Others emphasise that judicial independence is a ‘prerogative’ of the judiciary as an
institution.219 So what is required according to Convention standards? The Strasbourg institutions
have seldom been faced with this aspect of judicial independence. In those few cases that were
brought before the Strasbourg institutions, applicants were usually not successful. Different
elements of internal independence have been examined.
(a)
Judicial independence and reliance on previous judicial standpoints
The Commission declared that a tribunal cannot be qualified as partial and dependent because its
case-law is in accordance with established and appropriate case-law of higher tribunals:
217
Cf. the discussion on whether the judicial independence of a domestic court is threatened by
accepting state responsibility before international tribunals for judicial decisions made on the
domestic level. The Court of Justice of the European Communities has held that an individual
may, under certain circumstances, claim compensation for a breach of Community rules resulting
from a final judicial decision on the national level. The Court of Justice rejected the assertion that
accepting state liability would endanger judicial independence (ECJ, C-224/01, 30 September
2003, Köbler – Austria). The same has been held by the Strasbourg Court in the Lukanov case
(ECHR, 20 February 1997, Lukanov – Bulgaria (Reports 1997, 529), §§38 and 40). The Court
emphasised that the governments are answerable under the Convention for the acts of
independent judicial authorities as they are for those of any other State agency.
218
P.B. Cliteur, "De onafhankelijkheid van de rechterlijke macht: acht vormen", in: J.P. Loof (ed.),
Onafhankelijkheid en onpartijdigheid, Leiden: NJCM-Boekerij, 1999, p. 13. See also J. ter
Heide, De onafhankelijkheid van de rechterlijke macht - een functioneel-analytische
beschouwing, Amsterdam / Brussel: Agon Elsevier, 1970, pp. 19-20. Ter Heide is of the opinion
that there is no hierarchy in the judiciary (as compared to the public prosecution). A judge will
admittedly take into account the possibility of having his judgment reversed by a 'higher' tribunal,
but this does not mean that a judge operates in a hierarchical organisation. A similar standpoint is
defended by D. Pannick, Judges, Oxford: Oxford University Press, 1987, p. 20.
219
See, for example, Dutch Minister of Justice Donner: "Ik constateerde dat de wetgever de
rechtsmacht aan colleges opdraagt, terwijl rechters hun onafhankelijkheid zijn gaan ervaren als
een individuele onafhankelijkheid. Mijn pleidooi was dan ook: dat impliceert onder andere dat je
binnen een college wel degelijk moet afstemmen en dat je dat ook op een breder niveau tussen de
colleges kunt doen. [...] Je hebt als rechter, ook als je in afzonderlijke kamers zit je standpunten
te toetsen en te coördineren met andere kamers. [...] [J]e blijft altijd functioneren als rechter in
een rechterlijk apparaat. [...] Onafhankelijkheid hoeft niet per definitie individuele
eigengereidheid te betekenen" (C.M.Th. Lindo, "Eén uit de Donnerdynastie - interview met de
minister van Justitie", in: NJB 2002, p. 1840). See also P.P.T. Bovend’Eert, Benoeming en
ontslag van rechters, Nijmegen, 2000, p. 14 (“Onafhankelijkheid is geen persoonlijk privilege
van de rechter”).
60
"[...] it is evident that the reliance by a tribunal on established and appropriate
jurisprudence has no relation to the notion of a tribunal acting in a manner which is not
independent and impartial [...]" 220
This standpoint has been confirmed by the Court in the Mosteanu case. Merely applying the caselaw of an authority such as a Supreme Court does not, in the Court's view, infringe the rights and
duties of the lower courts to carry out a wholly independent examination of cases before them.221
A similar situation existed in the Pretto case222, in which a chamber of a tribunal referred to the
case-law of the court in plenary. The Commission did not consider the Convention to have been
breached, since the reference to the case-law of the court in plenary was meant to give the
judgment of the chamber more authority. Neither is confirming the arguments and motivation of a
judgment of a lower court by a higher court in breach with the right to an independent and
impartial tribunal.223 The Commission has also been confronted with a situation in which a civil
court was bound by the findings of an administrative court as to a preliminary issue. The
Commission did not consider that an issue under Article 6 ECHR arose.224
(b)
Judicial independence and influences from other judicial officers within the same tribunal
One can discern a certain development tending towards assigning the task of court administration
to the court itself and restraining the prerogatives of the Ministry of Justice.225 The Universal
220
EComHR, 30 May 1961, X. - Norway (appl. no. 931/60; CD 6 (1961), p. 46).
221
ECHR, 26 November 2002, Mosteanu a.o. - Romania (appl. no. 33176/96), §42. Cf. ECHR
(admissibility), 23 October 2001, Kozlova & Smirnova - Latvia (appl. no. 57381/00).
See also Principle 2.03 of the Universal Declaration on the Independence of Justice (Montréal,
1983; to be found in S. Shetreet & J. Deschênes (eds.), Judicial independence: the contemporary
debate, Dordrecht: Martinus Nijhoff, 1985, p. 447): “Any hierarchical organization of the
judiciary and any difference in grade or rank shall in no way interfere with the right of the judge
to pronounce his judgment freely”.
222
EComHR, 11 July 1979, Pretto - Italy (appl. no. 7984/77; D&R 16, p. 92). The scope of the Court's
judgment (8 December 1983; Series A-71) was limited to other requirements of Article 6 ECHR
(public pronouncement of the judgment and the 'reasonable time' requirement).
223
EComHR, 18 January 1989, Versteele - Belgium (appl. no. 12458/86; D&R 59, p. 113).
224
EComHR, 5 October 1981 (appl. no. 9126/80), as discussed in: J.A. Frowein & W. Peukert,
Europäische Menschenrechtskonvention, Kehl / Strasbourg / Arlington: N.P. Engel Verlag,
1996, p. 250.
225
Conclusion 4 of the meeting "The Supreme Court and the administration of justice", held in Kyev
on 12-14 October 1998 (to be found in: Council of Europe, Independence, impartiality and
competence of judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), p. 40).
See also Principle 9 of the International Bar Association Code of minimum standards of judicial
independence (New Delhi, 22 October 1982): “The central responsibility for judicial
administration shall preferably be vested in the Judiciary or jointly in the Judiciary and the
Executive”.
61
Declaration on the Independence of Justice (Montréal, 1983), for example states in Principle 2.40
that the main responsibility for court administration shall be vested in the judiciary. As a
consequence, in various documents the increased need for managerial techniques is stressed.226
There is however no case-law at all on this specific issue.
There can be other reasons for a potential influence from judicial officers within the same
tribunal, besides in the context of managerial functions. In practice, there can exist a certain
pressure from other (more senior) judges within the same tribunal.227 In case of a tribunal
consisting of several judges rendering judgments without the possibility of separate opinions by
individual judges, an individual judge will by definition be forced to adopt the decision of the
majority if he has not been able to convince his colleagues during deliberations.
The Strasbourg bodies have been confronted with an alleged lack of judicial
independence because of the fact that a probationary judge might not feel free to form his opinion
vis-à-vis the senior judges in his tribunal. In the Stieringer case the Commission declared the
complaint inadmissible:
“[...] the participation of probationary judges serves at the same time the purposes of
training and selecting candidates for appointment as permanent judges and of allowing the
courts to benefit from the work of these judges who, following legal studies and training,
obtained the general qualification to exercise the functions of judges. In the exercise of
their function as judges, they enjoy the full guarantees as to their objective
independence.” 228
Alkema commented on the Stieringer case that he thought that the Strasbourg Court should not
always be so flexible. He is of the opinion that in other circumstances the Convention could be
considered violated.229 I agree with Alkema. The Commission's conclusion in the Stieringer case
was undoubtedly based on the various safeguards in the German legal system concerning
probationary judges. A lack of such general safeguards could lead the Court to a different
conclusion. Caution is therefore advisable. The specific facts of the case can lead the Court to
conclude that the Convention is violated.
The Daktaras case seems to be such an example. Under domestic law the President of the
226
Recommendation R (95) 12 on the management of criminal justice, adopted by the Committee of
Ministers of the Council of Europe on 11 September 1995 and the guidelines adopted by the
multilateral meeting "The administration of justice and court management", held in Bordeaux on
28-30 June 1995 (to be found in: Council of Europe, Independence, impartiality and competence
of judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), p. 30 and p. 68).
227
This explains the practice whereby the most junior judge expresses his opinion first during the
deliberations of the case in camera.
228
EComHR, 25 November 1996, Stieringer – Germany (appl. no. 28899/95).
229
E.A. Alkema, "De rechterlijke macht - enige opmerkingen vooraf", in: J.P. Loof (ed.),
Onafhankelijkheid en onpartijdigheid, Leiden: NJCM-Boekerij, 1999, p. 6.
62
Supreme Court had the power to instigate cassation proceedings and to make a proposition
concerning the merits of the case. The President therefore necessarily becomes an ally or
opponent of the parties.230 The same President would then appoint the Judge Rapporteur and
constitute the chamber of the Supreme Court to examine the case. The Court held:
“[…] when the President of the Criminal Division not only takes up the prosecution [of
the] case but also, in addition to his organisational and managerial functions, constitutes
the court, it cannot be said that, from an objective standpoint, there are sufficient
guarantees to exclude any legitimate doubts as to the absence of inappropriate pressure.”
231
In my opinion, the phrase “in addition to his organisational and managerial functions” indicates
that the Court does take matters of internal independence into account when examining
complaints.
A court president can exert a substantial influence over his fellow judges in the field of
distribution of cases and the distribution of bonuses. In some courts in Romania, for example,
the President assigns the cases to the individual judges. In principle, while assigning cases the
President will take into account the difficulty of cases, but there are no general, fixed rules. At
the same time Presidents also fulfil an important role in the distribution of bonuses. Between
four and six bonus-rounds are to be distributed yearly among the judges. The president has to
send to the Ministry a table of the number of cases per judge, the number of cases solved and
the ‘quality of work’. The number of cases will of course depend on the number of ‘difficult’
cases that have been assigned. Also the assessment of the quality of work is in practice done by
the court president on a yearly basis, which can have a ‘theoretical impact on promotion’.232
One can imagine that in such a system, the role of court president deserves greater scrutiny.
Matters of internal independence are often neglected in national legal practice. It might be
interesting to refer to a Dutch decision by the Regional Court Leeuwarden.233 The decision was
concerned with the fact that the Chamber dealing with a challenge was itself challenged. The
original challenge was directed against the President of the tribunal and was dealt with by a
wrakingskamer (a fixed chamber of judges from that tribunal responsible for dealing with
challenges). The party who had challenged the President subsequently challenged the
wrakingskamer because the judges would in his opinion not feel free to criticise their 'boss'.
The Regional Court Leeuwarden stated that the challenge made against the wrakingskamer was
230
See mutatis mutandis ECHR, 30 October 1991, Borgers – Belgium (Series A-214-B), §25).
231
ECHR, 10 October 2000, Daktaras – Lithuania (appl. no. 42095/98), §36.
232
Source of information: interview with Ms. Onica (President of First Instance Court Sector 5
Bucarest), held on 26 February 2002.
233
Decision of 24 July 2000 by the Rechtbank Leeuwarden, as mentioned in Nederlandse
Jurisprudentie 2000, no. 696.
63
unfounded: one cannot qualify the President of a tribunal in his relationship with other judges
of that tribunal as a 'boss'. I agree with the outcome of the case. From the outset it seems under
the specific circumstances of the case (i.e. a trial within a trial) more acceptable to grant a
certain latitude. However, I do not agree with the reasoning. This decision seems to
categorically deny the possibility of internal dependence. In light of the Court’s judgment in the
De Haan case234 such an approach seems to be at odds with Strasbourg case-law. In that
particular judgment the Court emphasised that the judge whose impartiality was doubted
presided the tribunal. As a president he could exert a certain influence over his fellow judges.
In my opinion, the Regional Court should have drawn attention to all other guarantees of
judicial independence of these judges vis-à-vis their President. On the basis of the sum of these
guarantees the Regional Court could then have drawn the conclusion that the complaint against
the wrakingskamer was unfounded.
(c)
Judicial independence and reliance on general guidelines
Another possibility is that guidelines (drawn up by members of the judiciary) exist in order to coordinate and streamline the decision-making process in the entire judicial organisation so that a
uniform interpretation of the law is guaranteed and legal certainty for citizens is increased.
Guidelines of this kind are frequently used in criminal law with the purpose of either harmonising
the severity of penalties or providing a clear policy with regard to the criminal nature of certain
acts. Some argue that this restraint on the judge’s discretionary power to administer justice by
such undemocratic guidelines is contrary to the concept of judicial independence. In fact, in
Greece judges are not bound by instructions or suggestions of their superior judicial authorities in
relation to a substantive or procedural issue in a particular case or a category of cases. It even
constitutes a disciplinary offence to issue such instructions or suggestions. Such instructions are
only allowed for the good operation of the court services.235 Others argue that reliance on such
guidelines does not threaten the judicial independence of an individual judge.236
The European Court has never explicitly given a ruling on the effect of such internal guidelines on
judicial independence. However, it seems unlikely that the Court would find a violation of Article
6 ECHR. In the Campbell and Fell case the Court was confronted with guidelines issued by the
Home Office. The Court held that such guidelines about the general performance of judicial duties
did not give rise to a lack of independence per se, since these guidelines were not in reality
instructions as to how cases were to be decided.237
234
ECHR, 26 August 1997, De Haan - Netherlands (Reports 1997, p. 1379), §51. The case is
discussed more elaborately in *** Chapter 7 §3.3.3 ***.
235
Article 19 of the Law 1756/1988 (Code of Courts By-Laws and status of judges), as mentioned in
Council of Europe, Judicial organisation in Europe, Strasbourg: Council of Europe Publishing,
2000, pp. 162-163.
236
See also K. Teuben, Rechtersregelingen als ‘recht’ in de zin van art. 79 Wet RO, Leiden: E.M.
Meijers Instituut, 2001, pp. 64-67 and *** Chapter 8 §6 ***.
237
ECHR, 28 June 1984, Campbell and Fell - United Kingdom (Series A-80), §79.
64
(d)
Judicial independence and internal distribution of cases
The issue of internal distribution of cases and its potential impact on judicial independence was
already discussed in *** Chapter 5 §2.3 ***. Once again, the Strasbourg case-law did not really
focus on this ‘internal’ aspect of judicial independence. In the Lindler case, the Court held that
"[...] the internal assignment of a particular case on the basis of existing rules is an
administrative matter which does not as such concern the establishment of the court." 238
Slightly more explicit is Recommendation R (94) 12:
"The distribution of cases should not be influenced by the wishes of any party to a case or
any person concerned with the results of the case. Such distribution may, for instance, be
made by drawing of lots or a system for automatic distribution according to alphabetic
order or some similar system." 239
The Recommendation does not refer to a system used in some countries where the Court President
divides the work load among the judges of the tribunal. However, that does not seem to be an
indication that the international community finds such a system unacceptable. Other documents
state:
"The assignment of cases to judges within the court to which they belong is an internal
matter of judicial administration." 240
and
“(a) Division of work among judges should ordinarily be done under a predetermined
plan […]
(c) Subject to (a), the exclusive responsibility for case assignment should be vested in a
responsible judge, preferably the President of the Court.” 241
In my opinion, a system of internal distribution of cases by a president is unproblematic as long as
238
ECHR, 9 March 1999, Lindner - Germany (appl. no. 32813/96).
239
Principle I.2.e.
240
Principle 14 of the United Nations Basic Principles on the independence of the judiciary. See
also Principle 19 of the Syracuse Draft Principles on the Independence of the Judiciary
(Syracuse, 1981): “The court itself should be responsible for assigning cases to individual
judges”.
241
Principle 11 of the International Bar Association Code of minimum standards of judicial
independence (New Delhi, 22 October 1982). See also Principle 2.44 of the Universal
Declaration on the Independence of Justice (Montréal, 1983): “The head of the court may
exercise supervisory powers over judges on administrative matters”.
65
it is linked with issuing general ‘internal’ guidelines to limit the discretionary powers of the
president of a tribunal when assigning cases to individual judges and chambers.
(e)
Disciplinary proceedings
Independence is stressed with regard to members of the judiciary. However, this should not
lead to a complete state of non-accountability. Judicial organisation should therefore provide in
the possibility of disciplinary proceedings in case of misconduct by a judge. But this raises the
question who should watch the watchmen: Quis custodiet ipsos Custodes? And more
importantly: in what manner will the watchmen be watched? Four aspects can be distinguished:
 What conduct should render a judge liable to disciplinary proceedings?
The Consultative Council of European Judges has stated that it does not believe that it is
possible to specify in precise or detailed terms at a European level the nature of all misconduct
that could lead to disciplinary proceedings.242 Such codification of misconduct should be done
at the national level. Principle 5.1 of the European Charter on the Statute for Judges states that the
grounds giving rise to a disciplinary sanction need to be “expressly defined”. A similar wording
was chosen by the European Court of Human Rights in the Pitkevich judgment, mentioned in
§3.3.243 In this Russian case, the judge was an active follower of a religious movement, which
started to influence her judicial work. In 1998 the Russian Judiciary Qualification Panel
dismissed the applicant from office in disciplinary proceedings on the ground that she had
“damaged her reputation as a judge and impaired the authority of the judiciary”. The judge
complained before the Strasbourg Court that her dismissal constituted an unjustified
interference with her freedom of religion as laid down in Article 9 ECHR. The Court therefore
did not examine the case from a viewpoint of judicial independence. Nonetheless, the reasoning
of the Court might be important in order to determine some of the relevant criteria when
assessing the appropriateness of disciplinary proceedings against a judge. The Court, for
example, found it relevant that the grounds for taking disciplinary action were “precisely
defined”. It is difficult to determine exactly how ‘precisely’ defined judicial misconduct should
be. Some countries have tried to enumerate all specific disciplinary offences in order to give
effect to the general principle nulla poena sine lege.244 However, such attempts usually resort to
a general “catch-all” provision. This seems unavoidable.
 By whom and how can disciplinary proceedings be initiated?
In some European countries, disciplinary proceedings are brought by the Ministry of Justice. 245
242
CCJE-GT (2002) 7, p. 32.
243
ECHR (admissibility decision), 8 February 2001, Pitkevich – Russia (appl. no. 47936/99).
244
See, for example, the 2002 law in Slovenia specifying 27 categories of disciplinary offence.
245
Sometimes representatives of the executive are empowered to apply to a disciplinary tribunal
(see, for example, Article 107 of the Italian Constitution or practice in the Slovak Republic). It is
generally accepted that the executive’s influence should stop there and that one should refrain
66
In other European countries they may be instigated by representatives of the judiciary. 246 The
latter option seems preferable. This is also laid down in Principle 5.1 of the European Charter on
the Statute for Judges. The Charter states that the decision needs to be taken following the
involvement of “a tribunal or authority composed at least as to one half of elected judges”.247
 By whom and how can disciplinary proceedings be determined?
In the above-mentioned Pitkevich case, the Court seems to require an independent body taking
decisions concerning disciplinary action. This independent body can either be a judicial court
specialising in cases of this type248 or a Judicial Council sitting as a disciplinary court249. The
working party of the Consultative Council of European Judges expresses in this respect its
preference that disciplinary proceedings are determined by a Judicial Council.250
The European Charter on the Statute for Judges is the most elaborate document with regard to the
manner in which these proceedings should be conducted. The Charter requires that the
disciplinary proceedings should be of a character involving the full hearing of the parties in which
the judge is entitled to representation.251 Some documents also require that the decision
from working with certain types of ministerial ‘inspectorates’, especially when such inspectorates
exercise a postiori control of the court’s case materials (see the introductory report to the
conference ‘Rule of Law’, held in Noordwijk on 23-24 June 1997, on page 32). Equally
undesirable is the situation in Malta where political authorities are very involved in the
proceedings. Disciplinary proceedings can be initiated by the President of the Republic following
a vote of Parliament.
246
See, for example, France, Italy and the Netherlands.
247
See also Conclusion 8 of the meeting “Guarantees of the independence of the Judiciary”, held in
Warsaw and Slok on 23-26 June 1997, organised by various High Councils of Judges (to be
found in: Council of Europe, Independence, impartiality and competence of judges –
Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), p. 77): “Judicial discipline
should fall within the competence either of the High Council or of disciplinary tribunals
composed of judges of high authority”.
248
See, for example, Czech Republic, Estonia, Lithuania, Slovenia, Slovakia and Ukraine.
249
See, for example, France, Moldova and Portugal.
250
CCJE-GT (2002) 7, p. 34.
251
See also Principle 3 of the Conclusions of the meeting “The guarantees of the independence of
judges – evaluation of judicial reform”, held in Budapest on 13-15 May 1998, organised by
various Associations of Judges (to be found in: Council of Europe, Independence, impartiality
and competence of judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), p.
49), which refers to “procedures which ensure sufficient guarantees for the protection of
individual rights and freedoms of the judge, following the rules laid down in Article 6 of the
European Convention of Human Rights”.
Principle 17 of the United Nations Basic Principles on the independence of the judiciary adds an
additional element: “The examination of the matter at its initial stage shall be kept confidential,
unless otherwise requested by the judge”. This element can also be found in Principle 28 of the
International Bar Association Code of minimum standards of judicial independence (New Delhi,
1982) and in Principle 2.32 of the Universal Declaration on the Independence of Justice
(Montréal, 1983), but not in its European counterparts.
Another element would be the use of a limitation period. In Slovenia, for example, disciplinary
67
pronouncing a sanction must be open to an appeal to a higher judicial authority.252
 What sanctions can be imposed?
Principle 5.1 of the European Charter on the Statute for Judges states that the scale of sanctions
must be pre-fixed. The imposition of a specific sanction must be subject to the principle of
proportionality.253
(f)
Judicial independence and the role of the prosecuting authorities
The public prosecution’s office is a hierarchically structured organisation, which in many
countries officially falls under the responsibility of the Minister of Justice. It can therefore not be
considered ‘independent’ despite all the safeguards of integrity and autonomy for individual
prosecutors.254 Dutch Supreme Court Justice Corstens has defended this dependence of the
prosecuting authorities.255 In his eyes the prosecuting authorities have to make important policy
related decisions: what offences do we prioritise, what offences do we prosecute. These decisions
have a substantial impact on society and should be subject of public / political debate. This limited
degree of dependence is in principle compatible with judicial independence.256 However, in some
situations the dividing line becomes blurred.
procedures against a judge may not be initiated more than two years after the infringement
occurred.
252
See also Principle 3 of the Conclusions of the meeting “The guarantees of the independence of
judges – evaluation of judicial reform”, held in Budapest on 13-15 May 1998, organised by
various Associations of Judges (to be found in: Council of Europe, Independence, impartiality
and competence of judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), p.
49).
For example, in Slovenia, appeals against the decision of a first level disciplinary court are
decided upon by a second level disciplinary court, composed of seven supreme court judges.
253
See also Principle 18 of the United Nations Basic Principles on the Independence of the
Judiciary: “Judges shall be subject to suspension or removal only for reasons of incapacity or
behaviour that renders them unfit to discharge their duties”.
254
See, for example, the 1990 U.N. Guidelines on the Role of Prosecutors, the 2000 Council of
Europe Recommendation on the Role of Public Prosecution in the Criminal Justice System and
the 1999 International Association of Prosecutors Standards. All these texts clearly indicate that
public prosecutors must be able to perform their professional duties free from improper
interferences. See also: P.P. van der Lee, Legitimiteit en onpartijdigheid bij vervolging (thesis
University of Maastricht), The Hague: Sdu Uitgevers, 2003.
255
G.J.M. Corstens, “De nieuwe organisatie van het OM en de gevolgen daarvan voor de
onafhankelijkheid van de rechter”, in: J.P. Loof (ed.), Onafhankelijkheid en onpartijdigheid,
Leiden: NJCM-Boekerij, 1999, p. 94. See also the reference to Pradel and Laborde: “Il ne serait
pas concevable en effet qu’un organe tel que le ministère public […] conduise une politique
générale de l’État. Cette politique appartient par essence au Gouvernement” (J. Pradel & J.-P.
Laborde, “Du ministère Public en matière pénale. A l’heure d’une éventuelle autonomie?”, in:
Recueil Dalloz 1997, 19e Cahier, Chronique, pp. 141-144).
256
A.C. ‘t Hart, “De nieuwe wet op de rechterlijke organisatie en de positie van het OM”, in: J.P.
Loof (ed.), Onafhankelijkheid en onpartijdigheid, Leiden: NJCM-Boekerij, 1999, pp. 103-107
and the (Dutch) literature mentioned there.
68
In some countries, like the Netherlands, prosecutors and judges are both officially part of
the ‘judiciary’. This closely interwoven relationship between the judges and the prosecuting
authorities can endanger the image of an independent judiciary in the eyes of the lay public. So
where possible the distinctive features of the judicial branch (vis-à-vis the prosecuting branch)
should be stressed.257 Some aspects deserve closer examination.

The office of avocat général
One potentially problematic issue in this regard can be the existence in various countries of the
office of avocat général. In many continental legal systems (like Belgium, France, Italy, the
Netherlands and Portugal) the office of avocat général exists whose task it is to offer the highest
court in the country an independent advice on matters of law in a specific case. This function is
historically performed by officers from the ministère public, so that the law would be correctly
interpreted and applied with uniformity and consistency. The active involvement of such a
representative of the ministère public can lead to doubts concerning the independence of the
tribunal as such. Admittedly, the doubts concerning judicial independence are closely related to
aspects of impartiality of the tribunal and the fairness of the proceedings.
One of the earliest complaints dates back to 1963 when the Commission had to deal with a
complaint against Austria.258 The senior public prosecutor submitted observations (the so-called
croquis) to the Verfassungsgerichtshof. These observations were of considerable influence, but
were not communicated to the applicant. The Commission considered the system as such
undesirable, because abuse of the system could lead to a dependent and biased tribunal. However,
after making this reprimand the Commission reiterated that the Strasbourg review should not be in
abstracto, but based on the specific facts of the case. In the specific case the public prosector had
submitted observations which were favourable to the applicant, so that the complaint was declared
manifestly ill-founded. The next opportunity for the Strasbourg institutions to address the issue
came in 1970.
In the Delcourt case the Court had the opportunity to give its opinion on the matter. In criminal
proceedings between the prosecuting authorities and Delcourt, the Belgian procureur général had
the right to attend the deliberations of the Court of Cassation (without by the way having the right
to vote). The European Court first observes that several features of the system "may allow doubts
to arise about the satisfactory nature of the system in dispute". The defendant may consider the
procureur général as an opponent, especially when the procureur général submits unfavourable
observations. However, one should "look behind appearances" and take into account "the realities
of the situation". The reality according to the Court is that the procureur général is an
independent and impartial "adjunct and adviser" to the court. The procureur did not bring
257
See the report of the Nederlandse Vereniging voor Rechtspraak in Trema Special 1979-2, p. 13.
258
EComHR, 21 June 1963, X. – Austria (appl. no. 1418/62; CD 12 (1964), p. 1). See also:
EComHR, 19 December 1960, Ofner – Austria (appl. no. 524/59; unpublished) and EComHR,
19 December 1960, Hopfinger – Austria (appl. no. 617/59; unpublished).
69
prosecutions himself, did not give instructions to other members of the prosecuting authorities and
did not receive instructions from the Minister. The European Court concludes that there are no
negative consequences for the independence of the Court of Cassation:
"Nor could the independence and impartiality of the Court of Cassation itself be
adversely affected by the presence of a member of the Procureur général's department at
its deliberations once it has been shown that the Procureur général himself is independent
and impartial." 259
In subsequent cases the Court has chosen a different approach. In the Borgers case, the Court
starts by noting that the findings in the Delcourt judgment concerning judicial independence
remain "entirely valid". However, the Court then reaches a different conclusion by referring to
the equality of arms principle:
"[...] the opinion of the procureur général's department cannot be regarded as neutral
from the point of view of the parties to the cassation proceedings. By recommending
that an accused's appeal be allowed or dismissed, the official of the procureur
général's department becomes objectively speaking his ally or his opponent. In the
latter event, Article 6 para. 1 requires that the rights of the defence and the principle of
equality of arms be respected."260
The Court's judgment shows how closely intertwined judicial independence is with other
requirements of Article 6 ECHR (see *** Chapter 4 §5 ***). It is also one of the best examples
of the increased sensitivity in the Court's case-law (see *** §4 *** below).

Criminal liability of judges
Judges who in the conduct of their office commit a crime (for example, accepting bribes)
cannot in some European countries claim immunity from ordinary criminal process. In Sweden
and Austria, for example, judges can be punished (e.g. by fine) in some cases of gross
negligence (e.g. involving putting or keeping someone in prison for too long). The working
party of the Consultative Council of European Judges (CCJE) states in its report on the
principles and rules governing judges’ professional conduct:
“[…] the CCJE does not regard the introduction of such liability as either generally
259
ECHR, 17 January 1970, Delcourt - Belgium (Series A-11), §35. See for a similar line of
reasoning: EComHR, 5 February 1970, X. - Netherlands (appl. no. 3692/68; CD 32 (1970), p. 1),
in which the Commission stated that the Dutch Procureur-Generaal was merely an "impartial
adviser" of the Dutch Supreme Court. See also: EComHR, 4/5 October 1974, Huber - Austria
(appl. no. 5523/72; CD 46 (1974), p. 99).
260
ECHR, 30 October 1991, Borgers - Belgium (Series A-214-B), §26. The Court's findings are
also applicable in civil proceedings, regardless of whether or not the state is a party in those
proceedings: ECHR, 20 February 1996, Vermeulen - Belgium (Reports 1996, p. 224), §§33-34.
70
i)
ii)
acceptable or to be encouraged:
a judge should not have to operate under the threat of a financial penalty,
still less imprisonment, the presence of which may, however subconsciously,
affect his judgment;
the incurring of criminal liability is generally […] regarded as carrying a
degree of opprobrium, which should usually only attach to cases of
deliberate wrongdoing […]” 261
(g)
Concluding remarks
In conclusion, there have been only a handful of cases brought before the Strasbourg
institutions concerning internal independence. One of the reasons for this lack of precedents is
of a procedural nature. The Strasbourg Court can only review complaints concerning judicial
independence within the framework of a specific judicial decision. The Convention is only
interested in judicial independence from the viewpoint of the individual’s right to a fair trial.
The average applicant will complain about an alleged lack of judicial independence for reasons
that do usually not relate to internal independence. As a consequence, there is a lacuna in the
protection offered by the Convention mechanism.262
The few complaints concerning elements of internal independence have usually not been
successful. Despite that fact I think one can argue that matters of internal independence can in
principle fall within the scope of the Court's review. The only conclusion to be drawn from the
existing case-law must be that the Court shows considerable restraint in its examination. So, in
theory the Court will be able to examine aspects of internal independence. In practice, the Court
leaves the authorities considerable freedom. Although I agree with Donner that internal
independence should not be abused as an argument for complete individual autonomy, I do
believe that the European Court should explicitly state that it will examine matters of internal
independence and that it should develop at least a basic framework of general principles which
it will use when examining matters of internal independence.
3.4.7
Administrative tribunals (partly) composed of civil servants
In some technical fields of law, a traditional court of law may not represent the best forum to
adjudicate disputes.263 In those instances it may be preferable to have lay experts in the judicial
261
Report of the 2nd and 3rd meetings of the working party of the Consultative Council of European
Judges (CCJE-GT), Strasbourg, 19-21 June 2002 and 16-18 September 2002 (CCJE-GT (2002)
7), p. 30.
262
See also M. de Werd, "Een raad voor de rechtspraak - Artikel 6 EVRM en het bestuur en beheer
van de rechterlijke macht", in: NJCM-Bulletin 1998, p. 148.
263
Cf. the Court's judgment in the BATCO case: "The Court recognises that in a domain as technical
as that of the granting of patents there may be good reasons for opting for an adjudicatory body
other than a court of the classic kind integrated within the standard judicial machinery of the
country" (see ECHR, 20 November 1995, British-American Tobacco Company Ltd. - Netherlands
(Series A-331), §77).
71
tribunal (see also *** §3.5 ***). Sometimes civil servants are called upon to adjudicate
administrative disputes. However, this raises questions concerning their independence in their
judicial task. The complaints brought before the Court usually criticise civil servants who
according to the applicants were (or could have been) subject to instructions of their superiors. In
examining these complaints the Court takes into account three factors. Firstly, it is relevant to
determine whether there is a legal provision, prohibiting instructions to be given to lay judges in
their adjudicatory role. Secondly, the Court determines whether actual instructions can be proven.
Thirdly, the Court refers to the requirement that the legal process should also have an appearance
of independence towards the citizen.264
In the Ringeisen case, the Court stated as a general rule that the presence of civil servants in a
judicial tribunal was compatible with the requirements of the Convention.265 In the Sramek case
the Court stated that the presence of such specialists may be "desirable and even essential" in
principle.266
However, the use of civil servants has also triggered many complaints. Most of these complaints
were directed against the so-called Regional Commissions in Austria. These specialised
administrative tribunals have existed in Austria since the last century. In 1974, the legislature
already adjusted the organisation of the boards in order to comply with the requirements of Article
6. However, the presence of civil servants on these boards has remained the subject of debate in
Strasbourg. In the Sramek case, the Court found a violation. This finding was very much based on
the fact that in the specific proceedings the state authorities were one of the parties:
"Where, as in the present case, a tribunal's members include a person who is in a
subordinate position, in terms of his duties and the organisation of his service, vis-à-vis
one of the parties, litigants may entertain a legitimate doubt about that person's
independence." 267
The question remained whether the presence of civil servants was compatible with the
Convention, as long as the state authorities were not a party to the proceedings. This issue was
discussed in the Ettl case. In the Ettl case the Commission took a very clear standpoint with regard
to the possibility of a civil servant receiving instructions from his superiors:
"The Commission considers it as incompatible with the requirements of an independent
tribunal that the majority of its members [...] are civil servants who, while free from
instructions in exercise of their functions within this tribunal, may nevertheless receive
264
See for example, ECHR, 22 October 1984, Sramek - Austria (Series A-84), §§39-42 and ECHR, 29
April 1988, Belilos - Switzerland (Series A-132), §§66-67.
265
ECHR, 16 July 1971, Ringeisen - Austria (Series A-13), §§95-97.
266
ECHR, 22 October 1984, Sramek - Austria (Series A-84), §40.
267
ECHR, 22 October 1984, Sramek - Austria (Series A-84), §§41-42
72
(or give) administrative instructions in closely related matters falling outside the exercise
of these functions. The independence of the tribunal can be even more doubted if all these
civil servants belong to the same administration, or even the same administrative unit [...]
It is unacceptable that a relationship of hierarchical subordination should exist between
the individual members of a tribunal. Even if it is limited to matters outside the
competence of this tribunal, it cannot be excluded that the hierarchical structure will
influence also the behaviour within the tribunal." 268
This decision would in practice have meant a general prohibition on the participation of civil
servants in judicial proceedings as lay judges. As a matter of principle one can sympathise with
the position of the Commission. The Court has however clearly rejected the reasoning of the
Commission in the Ettl case and taken a different standpoint. The Court does not seem to attach
any importance to the factual hierarchical subordination between individual civil servants, serving
as members on a judicial tribunal, outside the scope of their adjudicatory role:
"Given the situation in law and in fact as found in the present case, the hierarchical links
which existed in other contexts between civil servants from the same division are of no
consequence from the point of view of Article 6 [...]" 269
And the Court has reiterated this standpoint in subsequent cases brought against Austria. 270 This
fairly relaxed standpoint may be partly due to the fact that these cases are concerned with
technical administrative law. It is unlikely that the Court adopts a similar lenient approach with
regard to classic criminal law. In the Belilos case, the Court was confronted with a Swiss Police
Board consisting of a single municipal civil servant from police headquarters:
"In Lausanne the member of the Police Board is a senior civil servant who is liable to
return to other departmental duties. The ordinary citizen will tend to see him as a
member of the police force subordinate to his superiors and loyal to his colleagues. [...]
In short, the applicant could legitimately have doubts as to the independence and
organisational impartiality of the Police Board [...]" 271
The above-mentioned case-law is, however, not applicable to judicial proceedings held before a
purely administrative authority. Already in the Öztürk case, the Court held that conferring the
prosecution and punishment of minor offences on administrative authorities is not inconsistent
with the Convention. However, the person concerned should be able to take any decision thus
268
EComHR, 3 July 1985, Ettl a.o. - Austria (to be found in: Series A-117), §99.
269
ECHR, 23 April 1987, Ettl a.o. - Austria (Series A-117), §39.
270
ECHR, 23 April 1997, Stallinger and Kuso - Austria (Reports 1997, p. 666), §37; ECHR, 1
August 2000, Entleitner - Austria (appl. no. 29544/95), §17 and ECHR (admissibility decision),
21 February 2002, Kolb a.o. - Austria (appl. nos. 35021/97 and 45774/99), sub 1 c.
271
ECHR, 29 April 1988, Belilos - Switzerland (Series A-132), §67.
73
made against him before a tribunal that does offer the guarantees of Article 6 ECHR. 272
Otherwise, a violation of Article 6 will be found. In the Malhous case the Court was confronted
with proceedings that took place before a so-called Land Office. The Court observed:
"[...] that the Land Office is an autonomous department of the District Office which is
charged with carrying out local state administration under the control of the
Government. The appointment of the head of the District Office is controlled by the
executive and its officers are subordinated to him." 273
The Court concluded that the Land Office could not be regarded as an authority which satisfied
the requirements of independence necessary for a tribunal within the meaning of Article 6 §1
ECHR.
Other issues with regard to the composition of the judicial tribunal in view of the presence of
lay judges (including civil servants) arise as well in light of the requirement of judicial
impartiality, but these issues will be discussed in *** Chapter 7 §3.1 ***. The Court does not
draw a very clear dividing line between judicial independence and impartiality in this respect.
3.4.8
Hierarchically superior officers: military tribunals
The practice of using courts staffed in whole or in part by the military to try members of the armed
forces is deeply entrenched in the legal systems of many European states.274 A military court can,
in principle, constitute an 'independent tribunal' for the purposes of Article 6 ECHR. In the Engel
case, for example, the Court concluded that the then Dutch Supreme Military Court (composed of
two civilian Justices of the Supreme Court and four military officers) met the requirements of
Article 6 ECHR.275 More recently, in the Cooper case, the Court rejected the applicant’s general
272
ECHR, 21 February 1984, Öztürk - Germany (Series A-73), §56.
273
ECHR, 12 July 2001, Malhous - Czech Republic (appl. no. 33071/96), §57. See for an identical
Slovakian example: ECHR, 2 September 1998, Kadubec - Slovakia (Reports 1998, p. 2531),
§57.
274
And of course outside of Europe as well. The UN Human Rights Committee has asked many
questions about the independence of military tribunals, specifically in Latin-American countries.
In its General Comment 13 the Committee noted: “[…] the existence, in many countries, of
military or special courts which try civilians […] Quite often the reason for the establishment of
such courts is to enable exceptional procedures to be applied which do not comply with normal
standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless
the conditions which it lays down clearly indicate that the trying of civilians by such courts
should be very exceptional and take place under conditions which genuinely afford the full
guarantees stipulated in article 14”.
See also the practice of the Inter-American Commission on Human Rights. In Case 11.084 the
Commission held that a Peruvian special military court was not a competent, independent and
impartial tribunal because it was subordinate to the Ministry of Defence (see IACHR Annual
Report 1994, p. 113 at p. 125).
275
ECHR, 8 June 1976, Engel a.o. - Netherlands (Series A-22), §89.
74
submission that service tribunals could not, by definition, try criminal charges against service
personnel in a manner which is consistent with the requirements of judicial independence and
impartiality.276 However, the Court has also stressed that "the Convention will only tolerate such
courts as long as sufficient safeguards are in place to guarantee their independence and
impartiality".277
Various complaints concerning judicial independence relate to the participation of members of the
Armed Forces in military tribunals. These complaints are mostly addressed to the Turkish and the
British system.
Judicial independence of the Turkish Martial Law Courts has been questioned in a long list of
complaints. These courts are composed of two civilian judges and two military judges and an
army officer. The independence of the civilian judges is not in dispute. The complaints are
directed against the military judges and the army officer.
In 1994 the Commission condemned the Turkish system in a so-called Article 31 report
in the Mitap and Müftüoğlu case.278 The Commission noted that the statutory rules governing
the composition and functioning of these courts raise various questions about their
independence, particularly as regards the system for appointing and assessing the military
judges who sat on them. As regards the officer, the Commission noted that he was subordinate
in the hierarchy of command and he was therefore not in any way independent. The Court was
unable to deal with this particular complaint as it fell outside its jurisdiction ratione
temporis.279
The next opportunity came for the Court in 1998 in the Incal case and the Çiraklar
280
case. The Court noted that the two military judges were appointed with the approval of the
Chief of Staff and by a decree signed by the Minister of defence, the Prime Minister and the
President of the Republic. The army officer was appointed on the proposal of the Chief of Staff
and is removable on the expiry of one year after his appointment. As regards the military
judges, the Court accepted that certain safeguards concerning judicial independence were in
place. Military judges undergo the same professional training as their civilian counterparts.
When sitting as members of National Security Courts, military judges enjoy constitutional
safeguards identical to those of civilian judges. In addition, with certain exceptions, they may
not be removed from office or made to retire early without their consent. And, according to the
Constitution, they must be independent and no public authority may give them instructions
276
ECHR, 16 December 2003, Cooper – United Kingdom (appl. no. 48843/99).
277
ECHR, 26 February 2002, Morris - United Kingdom (appl. no. 38784/97), §59.
278
EComHR, 10 October 1991, Mitap & Müftüoglu - Turkey (appl. nos. 15530/89 & 15531/89; D&R
72, p. 169).
279
ECHR, 25 March 1996, Mitap & Müftüoglu - Turkey (Reports 1996, p. 410), §27.
280
ECHR, 9 June 1998, Incal - Turkey (Reports 1998, p. 1571), §§66-73 and ECHR, 28 October
1998, Çiraklar - Turkey (Reports 1998, p. 3073), §39.
75
concerning their judicial activities or influence them in the performance of their duties. The
Court, however, went on to stress that other aspects of these judges’ status make it
questionable. Firstly, the military judges are servicemen who still belong to the army, which in
turn takes its orders from the executive. Secondly, they remain subject to military discipline and
assessment reports are compiled on them by the army for that purpose. They therefore need
favourable reports both from their administrative superiors and their judicial superiors in order
to obtain promotion. Thirdly, decisions pertaining to their appointment are to a great extent
taken by the administrative authorities and the army. Lastly, their term of office as National
Security Court judges is only four years and can be renewed. As regards the officer, the Court
observed that he is subordinate in the hierarchy to the commander of the martial law and/or the
commander of the army corps concerned. He could therefore not in any way be considered
independent of these authorities. The Court concluded that where, as in the present case, a
tribunal’s members include persons who are in a subordinate position, in terms of their duties
and the organisation of their service, vis-à-vis one of the parties, accused persons may entertain
a legitimate doubt about those persons’ independence.281 Such a situation seriously affects the
confidence which the courts must inspire in a democratic society. The fact that two civilian
judges, whose independence are not in doubt, sat on that court makes no difference in this
respect.
In these Turkish cases, the Court attached importance to the fact that a civilian (accused of an
offence against the State) had to appear before a court composed, even if only in part, of
members of the armed forces. However, it was only one of the arguments used by the Court. It
is difficult to deduce a general rule that jurisdiction by a military court over civilians is
incompatible with the Convention. With regard to conscientious objectors, for example, the
Commission did not seem to attach any importance to the fact that a civilian had to appear
before a military court.282
In comparison, the United Nations Human Rights Committee seems to take a very clear
strict standpoint in this regard. In 1997 in its Comments on Slovakia, the Committee
recommended “that the Criminal Code be amended so as to prohibit the trial of civilians by
military tribunals in any circumstances”.283 Similarly, the Committee noted in its Concluding
Comments on Chile in 1999 “that the law be amended so as to restrict the jurisdiction of the
military courts to trial only of military personnel charged with offences of an exclusively
281
282
283
And this conclusion has been systematically reiterated. See, for example, ECHR, 12 March 2003,
Öcalan – Turkey (appl. no. 46221/99) and ECHR, 6 March 2001, Mehdi Zana - Turkey (appl.
no. 29851/96), §§22-23; ECHR, 17 July 2001, Sadak a.o. - Turkey (appl. no. 29900/96 a.o.),
§§37-40; ECHR, 7 February 2002, E.K. - Turkey (appl. no. 28496/95), §§96-99; ECHR, 4 June
2002, Yağmurdereli - Turkey (appl. no. 29590/96), §§62-65; ECHR, 9 July 2002, Karataş Turkey (appl. no. 33179/96), §§49-52; ECHR, 15 October 2002, Karakoç a.o. - Turkey (appl. no.
27692/95 a.o.), §§61-65; ECHR, 22 October 2002, Algür - Turkey (appl. no. 32574/96), §§52-55
and ECHR, 7 November 2002, Özel - Turkey (appl. no. 42739/98), §§31-34.
EComHR, 22 May 1995, Heudens - Belgium (appl. no. 24630/94; unpublished).
UN doc. CCPR/C/79/Add. 79.
76
military nature”.284 Also the Universal Declaration on the Independence of Justice (Montréal,
1983) stipulates that the jurisdiction of military tribunals should be confined to military
offences committed by military personnel.285
In my opinion, the time has come for the European Court to explicitly lay down a
general rule in its case-law stating that jurisdiction by military courts (or other courts in which a
member of the armed forces participate) over civilians is incompatible with the Convention
unless the military tribunal fulfils all the requirements of Article 6 ECHR in the same manner
as an ordinary court.286 Especially, with regard to proceedings dealing with conscripts who, for
political and conscientious reasons, refuse to perform military service one may wonder whether
military courts are most suited in light of the requirements of judicial independence and
impartiality. In general, one cannot expect an officer of the armed forces (who has himself
chosen for a military lifestyle and who operates on a daily basis in a military culture) to be very
understanding of civilians refusing to perform military service for conscientious reasons. In my
view, one could have objectively justified fears concerning the unbiased functioning of the
military members of the tribunal.
A contrario, the Court does not have any difficulties with military personnel being tried by a
military court. In other cases applicants have complained about the participation of military
judges in the Turkish Supreme Military Administrative Court. The Court differentiated these
cases from its Incal jurisprudence, because the Supreme Military Administrative Court was set
up to adjudicate on, inter alia, civil claims brought by military personnel in respect of acts and
omissions which are imputed to the Ministry of Defence. As a consequence, the Court declared
these latter complaints inadmissible.287 This line of reasoning seems understandable.
Proceedings in which professional members of the armed forces or soldiers who perform
military civilian service are disciplined seem comparable to ordinary disciplinary proceedings,
in which participation of other members of the same ‘profession’ is also deemed to be
appropriate.
A similar list of case-law exists with regard to the British system of military courts. In the Findlay
284
UN doc. CCPR/C/79/Add. 104.
285
Principle 2.06 (e), to be found in: S. Shetreet & J. Deschênes (eds.), Judicial independence: the
contemporary debate, Dordrecht / Boston / Lancaster: Martinus Nijhoff, 1985, p. 447.
286
A clear standpoint by the European Court of Human Rights would also be desirable in view of
the military court practice in some Eastern European countries. In Romania, for example,
military courts have a very broad jurisdiction, including jurisdiction over police officers for
ordinary criminal matters. See the Recommendation with regard to Romania in the European
Commission’s PHARE Programme ‘Reinforcement of the Rule of Law’ (Nijmegen: Wolf Legal
Productions, 2002, p. 43): “Transfer of the jurisdiction of the military courts to the normal court
system for all matters not concerning strictly military personnel (Army, Navy, Airforce) is
recommended”.
287
ECHR, 25 May 2000, Çimen a.o. - Turkey (appl. no. 40079/98 a.o.), sub 2 and ECHR, 25 May
2000, Yavuz - Turkey (appl. no. 29870/96), sub 1.
77
case288, the Court held that the General Court Martial did not satisfy the requirements of Article
6 ECHR. The Court’s concerns focused on the multiple roles played in the proceedings by the
'convening officer'. That officer played a key prosecuting role, but at the same time appointed
the members of the court martial, who were subordinate in rank to him and fell within his chain
of command. He also had the power to dissolve the court martial before or during the trial and
acted as 'confirming officer', with the result that the court martial’s decision as to verdict and
sentence was not effective until ratified by him. The Court held that these fundamental flaws
were not remedied by the presence of safeguards, such as the involvement of the judge
advocate, who was not himself a member of the court martial and whose advice to it was not
made public.
The Findlay case was based on the military court system laid down in the Armed
Forces Act 1955. This system was replaced in 1997 with the introduction of the Armed Forces
Act 1996. Many problems identified in the Findlay case were remedied by the 1996 Act. The
posts of 'convening officer' and 'confirming officer' were abolished and the prosecuting and
adjudicatory roles previously played by these officers were seperated.
However, some questions remained. In the Morris case289 the Court was able to review
the new structure of the court martial system. Dean Morris became the target of bullying while
serving in the British Army and fearing a further attack he went absent without leave. He was
arrested and in 1997 a court martial was held according to the new rules of the 1996 Act. The
court was comprised of a Permanent President of Courts Martial (an army Lieutenant Colonel
due to remain in his post for four years until retirement), two army Captains and a legally
qualified civilian judge advocate. The Court gave - contrary to its usual practice - an in
abstracto ruling on the structure of the court martial system. The role of the judge advocate was
not in dispute. As regards the Permanent President of Courts Martial, the Court held that his
presence did not call into question the independence of the court martial. His presence was
actually seen as a significant guarantee of judicial independence in view of his term of office
and de facto security of tenure, the fact that he had no apparent concerns as to future army
promotion and advancement and was no longer subject to army reports, and his relative
separation from the army command structure. In doing so, the Court referred to its Engel
judgment in which it had also emphasised the importance of the fact that the appointment of the
military members was usually the last of their careers.290 The Court, however, was not so
positive concerning the compatibility of the two serving officers with the requirement of
judicial independence. They were appointed on a purely ad hoc basis, in the knowledge that
288
ECHR, 25 February 1997, Findlay - United Kingdom (Reports 1997, p. 263), §§74-78. Similar
deficiencies were found with regard to a district court-martial in ECHR, 24 September 1997,
Coyne - United Kingdom (Reports 1997, p. 1842), §58. The Court also found a violation in a
series of cases involving army and air force district and general courts-martial in ECHR, 18
February 1999, Cable a.o. - United Kingdom (appl. no. 24436/94 a.o.), §21. In 2001 the Court
reiterated its standpoint in ECHR, 6 February 2001, Wilkinson and Allen - United Kingdom
(appl. nos. 31145/96 and 35580/97), §24 and ECHR, 5 June 2001, Mills - United Kingdom (appl.
no. 35685/97), §25.
289
ECHR, 26 February 2002, Morris - United Kingdom (appl. no. 38784/97), §§58-79.
290
ECHR, 8 June 1976, Engel a.o. - Netherlands (Series A-22), §§30 and 89.
78
they would return to their ordinary military duties at the end of the proceedings. Such an ad hoc
nature of their appointment made the need for the presence of safeguards against outside
pressures all the more important. The Court stated that it found these safeguards to be
insufficient. These relatively junior serving officers had no legal training, they remained subject
to army discipline and reports, and there was no statutory or other bar to their being made
subject to external army influence when sitting on the case. This was a matter of particular
concern in a case where the offence charged directly involved a breach of military discipline.
The Court was equally critical with regard to the role played by the 'reviewing authority'. The
authority was empowered to quash the applicant’s conviction and the sentence imposed by the
court martial. More importantly, it had powers to reach any finding of guilt which could have
been reached by the court martial and to substitute any sentence which would have been open
to the court martial, not being in the authority’s opinion more serious than that originally
passed. The Court considered that the very fact that the review was conducted by such a nonjudicial authority was contrary to the requirements of Article 6 §1. The Court concluded that
these "fundamental flaws" were not corrected by the applicant’s subsequent appeal to the Court
Martial Appeal Court, since that appeal did not involve any rehearing of the case.
The most recent addition to the Court’s case-law consists of two cases, the Cooper
291
case and the Grieves case292. The Cooper case was concerned with the Air Force system. The
Court found no grounds to question the independence of the Air Force judge advocate, since he
was a civilian appointed by another civilian (i.e. the Lord Chancellor). The Court also reiterated
that the Permanent President of Courts Martial (PPCM) made an important contribution to the
independence of an otherwise ad hoc tribunal. The Court was more critical with regard to the
ordinary members of the court martial (in view of their relatively junior rank), but found that
there were safeguards against outside pressures, such as the presence of the PPCM and the
judge advocate, the prohibition of reporting on members’ judicial decision-making and the
briefing notes distributed to the members. The Court expressed its concern about the existence
of a Reviewing Authority, since this non-judicial body was empowered to interfere with
judicial findings. However, the Court reached the conclusion that Article 6 ECHR was not
violated since the final decision in the proceedings would always lie with a judicial body (i.e.
the Courts Martial Appeal Court). The Grieves case was concerned with the Royal Navy system
which differed in certain important aspects from the Air Force system: the post of PPCM did
not exist in the naval system, judges advocate were serving naval officers and were appointed
by a naval officer, and – at the relevant time – there were certain reporting practices regarding
Royal Navy judge advocates. In view of these distinctions, the Court concluded that the Royal
Navy court martial system was in breach with the requirements of Article 6 ECHR.
However, complaints concerning military tribunals do not only relate to Turkey and the United
Kingdom. In the case-law of the Commission there have also been cases against Belgium and
Switzerland. First of all, it is interesting to note that these old decisions by the Commission are
291
ECHR, 16 December 2003, Cooper – United Kingdom (appl. no. 48843/99).
292
ECHR, 16 December 2003, Grieves – United Kingdom (appl. no. 57067/00).
79
far less demanding than the above-mentioned judgments by the Court. Secondly, these
decisions refer to one additional element to be taken into account when examining judicial
independence of martial courts: the secrecy of deliberations. In the Depuis case the
Commission stated:
"Their independence is further guaranteed by the fact that the part each member plays
in the taking of the decision remains secret, because the decision is taken by the whole
bench and the members are obliged under oath to keep the deliberations secret." 293
In my opinion, the Court could reintroduce this element in its case-law. Fear of reprisals at the end
of the judicial task of the military member could be prevented by adopting such a rule concerning
the secrecy of deliberations. Decisions are taken by the tribunal as such without making public
how individual members of the tribunal voted. A similar line of reasoning could be adopted in
case of civil servants who adjudicate administrative disputes.
3.4.9
Concluding remarks
In conclusion, the criterion discussed in this paragraph is an important one in the Strasbourg test
concerning the independence of a judge. The importance of this criterion is even more true in case
civil servants or military personnel participate as lay members of a judicial tribunal. To what
extent this criterion can be used to question influences from other judges in the judicial
organisation remains unclear.
3.5
Participation of members of the judiciary in the composition of the court
In the Holm case, the Commission listed the criteria relevant to determine whether a tribunal
can be considered 'independent' (see the beginning of paragraph 3). 'Attendance of members of
the judiciary in the proceedings' was one of those criteria. The rationale behind this criterion is
undoubtedly that legally trained persons, whose only or main professional activity is the
exercise of judicial functions, are better trained to withstand undue pressures. In this respect the
Court does not merely refer to 'legally trained' persons, but to the attendance of 'members of the
judiciary'.294 In Le Compte, Van Leuven & De Meyere the Court stated:
"The presence [...] of judges [in French: 'magistrats', so not just merely legally trained]
[...] provides a definite assurance [...]" 295
293
EComHR, 8 September 1988, Depuis - Belgium (appl. no. 12717/87; D&R 57, p. 196). See also:
EComHR, 1 March 1979, Sutter - Switzerland (appl. no. 8209/78; D&R 16, p. 166).
294
Cf. the United Nations Human Rights Committee in its Concluding Comments on the United
States in 1995, in which the Committee expressed its concern "[...] about the fact that in many
rural areas justice is administered by unqualified and untrained persons" (UN doc.
CCPR/C/79/Add. 50, §23). It seems that the Committee refers to 'legally trained'.
295
ECHR, 23 June 1981, Le Compte, Van Leuven & De Meyere - Belgium (Series A-43), §58. See
80
See also, the reasoning of the Commission in a decision against Sweden:
"It is true that assistant judges do not benefit from the protection given to holders of
permanent judgeships. However, the Commission is satisfied that assistant judges belong to
the judicial profession and when given assignments as a judge either in a District Court or in
the Court of Appeal act in full independence." 296
The Court, on the other hand, does not require that a judicial tribunal is exclusively composed
of professional judges (or even lawyers).297 Lay people can therefore also be members of a
judicial tribunal. Any other result would have struck at the very roots of many legal systems
(the United Kingdom, for example, because of the use of magistrate courts and jury trials).298
Often (this is especially true with regard to administrative, disciplinary and military tribunals)
the use of lay judges can be explained by their specialised knowledge. In view of such
complementary skills, the Court has acknowledged the usefulness of the participation of lay
judges who "appear in principle to be extremely well qualified to participate in the adjudication
of disputes".299 The Court does not demand a specific proportion in representation between
professional and lay judges, in case a judicial tribunal is composed of both types of judges.300
However, some commentators have argued that a judicial tribunal should at least have some
degree of representation by professional judges.301 I have my doubts whether this can be
also: J. Velu & R. Ergec, La Convention européenne des droits de l'homme, Bruxelles: Bruylant,
1990, p. 454 ("La présence de magistrats professionnels au sein de l'organe en question est une
marque de son indépendance").
296
EComHR, 8 February 1973, X. - Sweden (appl. no. 5258/71; CD 43 (1973), p. 71).
297
Implicitly in ECHR, 16 July 1971, Ringeisen - Austria (Series A-13), §97. Explicitly in ECHR,
23 June 1981, Le Compte, Van Leuven & De Meyere - Belgium (Series A-43), §57
298
The use of lay judges is a common feature in many European legal systems: Austria
(Geschwornengericht and Schöffengericht), Denmark (assessors), Estonia (assessors), Finland
(assessors), France (cour d’assises), Germany (Schöffen), Greece (mikta orkota diskastiria),
Hungary (local courts using assessors), Ireland (trial by jury), Italy (justice of the peace and an
Assize Court), Luxembourg (specialised areas of law, such as labour law), Netherlands
(specialised areas of law, such as disputes concerning rural properties), Norway (assessors),
Poland (common courts of justice), Slovenia (lay judges at the regional courts), Spain (trial by
jury), Sweden (nämnedemän), Switzerland (assessors), Turkey (Assize courts), United Kingdom
(magistrates, jury trials and specialised tribunals), et cetera.
299
ECHR, 22 June 1989, Langborger - Sweden (Series A-155), §34.
300
See EComHR, 18 January 1989, Versteele - Belgium (appl. no. 12458/86; D&R 59, p. 125): “[...]
the Court does not demand […] that there be the same number of doctors and judges”. Neither is
it contrary to the Convention if a member of the judiciary acts as chairman of such a ‘mixed’
tribunal and has a casting vote (see ECHR, 23 June 1981, Le Compte, Van Leuven & De Meyere
- Belgium (Series A-43), §58).
301
See, for example, M.E. Villiger, Handbuch der Europäischen Menschenrechtskonvention
(EMRK), Zürich: Schultess, 1993, p. 244: "[...] unter den Mitglieder des Gerichts müssen
81
concluded on the basis of the scarce amount of case-law. Further interpretation of this criterion in
the Strasbourg case-law is virtually non-existent. It does not appear to be an important element in
the Strasbourg test. One of the reasons could be that many complaints concerning the participation
of non-legally trained people in judicial proceedings specifically refer to bias. The Court therefore
deals with these complaints under the impartiality requirement.
Paragraph 4
Appearance of independence
‘Appearance of independence’ is not really an autonomous criterion. With regard to each of the
above-mentioned criteria there can be an appearance of dependence. The notion ‘appearance’
does not go as far as to condemn a state for a situation in which a judge seems to be dependent but
in fact is not (an irrealis), it merely means that the judicial system should also offer prima facie all
the guarantees as judicial independence.302 There is a fine line between ‘keeping up appearances’
and ensuring the confidence of citizens in the judicial process.303 It is generally accepted however
that appearances are of some importance. In this regard the Court often refers to the English
maxim "Justice must not only be done, it must also be seen to be done".304 Or as the Court in the
Findlay case put it: “[…] whether the body presents an appearance of independence”.305 The
Commission phrased the principle in a different manner:
"A tribunal in the sense of Article 6 must be recognisable as an independent judicial organ
by the individual who has no specific legal training." 306
The emphasis on appearances has only grown in recent years. In the Borgers case the Court
noticed:
"[...] a considerable evolution in the Court's case-law, notably in respect of the importance
attached to appearances and to the increased sensitivity of the public to the fair
eigentliche Richter amten".
302
See also K. Wagner, “De onafhankelijkheid van de rechter naar Europees recht”, in: De
onafhankelijkheid van de rechter – Preadviezen van de Vereniging voor de vergelijkende studie
van het recht van België en Nederland, Deventer: Tjeenk Willink, 2001, p. 11.
303
See ECHR, 25 February 1997, Findlay – United Kingdom (Reports 1997, p. 263), §76: “In order
to maintain confidence in the independence and impartiality of the court, appearances may be of
importance”.
304
Lord Hewart in R. Sussex Justices ex parte Mc Carthy [1924] 1 KB 256-260, 259.
305
Ibidem, §73.
306
EComHR, 3 July 1985, Ettl a.o. - Austria (to be found in Series A-117), §95.
82
administration of justice." 307
Seemingly in contradiction with this emphasis on appearances is a simultaneous trend "to look
behind appearances and investigate the realities of the situation complained of".308 The mere
existence of doubts based on appearances is insufficient to find a violation of the Convention.
Doubts concerning judicial independence need to be objectively justified. The subjective
standpoint of the applicant can not be sufficient to conclude that there has been a violation of the
Convention. In practice, the contraction between the importance of appearances and the need to
look at the realities of the situation is negligible. Most of the time the Court chooses the approach
that offers the applicant the highest level of judicial protection. The Court might want to
emphasise the reality of a situation, for example, if judicial independence is only theoretically
safeguarded by meaningless legal provisions.309 In the following examples, the Court based a
violation by referring to the lack of an appearance of independence.
In the Campbell and Fell case the applicants complained about the independence of the Board of
Visitors, a tribunal established to take disciplinary measures against prisoners. Members of this
tribunal were also responsible for administratively reviewing the prison authorities. Many
prisoners considered the Board of Visitors to be an extension of the prison authorities in view of
the frequent contacts between both institutions. The Court considered that:
"The impression which prisoners may have that Boards are closely associated with the
executive and the prison administration is a factor of greater weight, particularly bearing in
mind the importance in the context of Article 6 of the maxim ‘justice must not only be done,
it must also be seen to be done’. However, the existence of such sentiments on the part of
inmates, which is probably unavoidable in a custodial setting, is not sufficient to establish a
lack of 'independence'. This requirement of Article 6 would not be satisfied if prisoners were
reasonably entitled [emphasis added], on account of the frequent contacts between a Board
and the authorities, to think that the former was dependent on the latter; however, the Court
does not consider that the mere fact of these contacts, which also exist with the prisoners
themselves, could justify such an impression." 310
An objectively justified doubt concerning the independence of judges was accepted by the Court
307
ECHR, 30 October 1991, Borgers - Belgium (Series A-214-B), §24.
308
ECHR, 24 June 1982, Van Droogenbroeck - Belgium (Series A-50), §38. See also ECHR, 17
January 1970, Delcourt - Belgium (Series A-11), §31 and ECHR, 23 September 1982, Sporrong
and Lönnroth - Sweden (Series A-52), §63.
309
A similar approach prevails in the Inter-American system: “[…] independence of the judiciary
should not only be formally guaranteed, but should also obtain in practice” (see S. Davidson,
“The civil and political rights protected in the Inter-American human rights system”, in: D.
Harris & S. Livingstone (eds.), The Inter-American System of Human Rights, Oxford: Clarendon
Press, 1998, p. 246).
310
ECHR, 28 June 1984, Campbell and Fell - United Kingdom (Series A-80), §81.
83
in the Sramek case.311 The complaint concerned the participation of civil servants in the judicial
proceedings. The authorities were by law forbidden to give instructions to the civil servants in the
exercise of their judicial tasks. The Court still considered that a citizen could have an objectively
justified fear concerning the independence of the civil servants in view of the unclear
organisational separation between the judicial functions and the administrative units of which the
civil servants were members.
Also in the Belilos case the Court reached the conclusion that the fear concerning judicial
independence was well-founded. In this case a local tribunal, which adjudicated minor offences,
consisted of only one member: a policeman acting in his personal capacity. During the exercise of
his judicial functions he could not receive any instructions from his superiors and could not be
dismissed. However, he would return to departmental duties and therefore he would be seen as a
member of the police force subordinate to superiors and loyal to his colleagues. The Court
unanimously concluded that the Convention was breached:
"The ordinary citizen will tend to see him as a member of the police force subordinate to his
superiors and loyal to his colleagues." 312
In the British-American Tobacco Company case the Commission addressed a complaint
concerning the civil servants of the Appeals Division of the Patent Office. There was no reason to
assume that the members of the Appeals Division had not in fact dealt with the case in an
unprejudiced manner and without being subjected to any external pressures. However, doubt
concerning the independence of the Appeals Division was justified. On the basis of this
objectively justified doubt, the Commission found a violation of the Convention. The Court did
not express an opinion concerning this matter.313
In the Bryan case, the Court found that the judicial tribunal did not present an appearance of
independence because of the power for the Minister to remove a judge. The very existence of
the power to remove a judge was sufficient, notwithstanding the limited exercise of the power
in practice and irrespective of whether its exercise was or could have been in issue in a concrete
case.314
In the above-mentioned cases a plea on appearances was successful. However, in just as many
cases the Court rejects a complaint based on appearances. The dividing line between those two
categories of cases is not always easy to draw. The resulting legal uncertainty has been
311
ECHR, 22 October 1984, Sramek - Austria (Series A-84), §39. See also EComHR, 3 July 1985, Ettl
a.o. - Austria (to be found in Series A-117), §95.
312
ECHR, 29 April 1988, Belilos - Switzerland (Series A-132), §§66-67.
313
ECHR, 20 November 1995, British-American Tobacco Company Ltd. - Netherlands (Series A331), §69.
314
ECHR, 22 November 1995, Bryan – United Kingdom (Series A-335-A), §38.
84
criticised by many commentators. Former judge Van Dijk attacked the objective test used in the
Court's case-law concerning Article 6 ECHR. His comments are concerned with the objective
impartiality test, but are equally applicable to the use of appearances with regard to judicial
independence:
"[...] the application of the objective [...] test by the Court [...] makes it necessary for the
Court to choose between appearance and reality. [...] When the Court takes too casuistic
an approach in its objective test, basing distinctions on elements the distinctive character
of which is not self-evident, it does not serve legal certainty and fails to give the necessary
guidance to the national courts and legislatures." 315
In my opinion, the criticism is justified to the extent that the Court only introduced the concept
of appearances to alleviate the burden of proof for the applicant. While acknowledging the
need to make the burden of proof not an unsurpassable hurdle, it would have been more logical
to achieve this result by adopting a stricter interpretation of the other criteria to determine
whether a tribunal can be qualified independent. For example, most of the above-mentioned
cases could have been dealt with under the heading 'not being subject to any authority' in case
the Court would adopt a more stringent approach.
Another point of criticism is related to the question whose appraisal of appearances should be
decisive. How important should the perceptions of a layman be? Judge Martens:
"A layman's perceptions of procedural institutions and practices are, of course, not
immaterial per se, but at the risk of jeopardising legal certainty they can only be held
to be decisive under very special circumstances and conditions. [...] [I]n my opinion
[...] the formula 'objectively justified' in principle implies two tests: the first is whether
the circumstances are such that (not only a layman, but also) the Court cannot exclude
the possibility that the judge (or the expert) is prejudiced; and the second is whether,
nevertheless, in the particular case in which this arises other public interests are to be
deemed more important than the confidence the courts should inspire." 316
Paragraph 5
Judicial independence with regard to arbitration tribunals
315
Dissenting opinion Judge Van Dijk in ECHR, 26 August 1997, De Haan - Netherlands (Reports
1997, p. 1379). See also M.F.J.M. de Werd, "De wetgever en artikel 6 EVRM", in: J.P. Loof
(ed.), Onafhankelijkheid en onpartijdigheid - de randvoorwaarden voor het bestuur en beheer
van de rechterlijke macht, Leiden: NJCM-Boekerij, 1999, p. 37: "Het is onnodig te vermelden
dat de nationale beleidsmakers of de rechtswetenschap nauwelijks uit de voeten kunnen met de
objectieve test. Het leerstuk van de schijn van rechterlijke onafhankelijkheid en onpartijdigheid
dreigt daardoor een grabbelton te worden, waaruit naar believen argumenten voor en tegen eigen
opvattingen gehaald kunnen worden".
316
Judge Martens in his dissenting opinion in the Borgers case (ECHR, 30 October 1991, Borgers Belgium (Series A-214-B), pp. 45-46).
85
Former President of the European Court of Human Rights Wiarda wrote in 1988 that arbitration
proceedings did obviously not comply with the standards laid down in Article 6 ECHR.317 He
argued that arbitration awards are not handed down by a ‘tribunal established by law’ and that one
could often question the independence and impartiality of an arbitral court.
Fact is that the requirement of judicial independence is interpreted differently with regard to
arbitration tribunals (in comparison to ordinary judicial tribunals). In *** Chapter 4 §4.7.1 ***
the applicability of Article 6 ECHR with regard to arbitration proceedings was discussed. There
is no doubt as to the applicability of Article 6 with regard to compulsory arbitration. On the
other hand, if parties choose out of their own free will to settle their dispute before an
arbitration tribunal (consensual arbitration), the full applicability of all the requirements of
Article 6 ECHR is unlikely. It was argued that Article 6 ECHR - once applicable - should be
applied in a more moderated manner. This paragraph will examine whether this differentiation in
the level of protection is made in the Strasbourg case-law.
5.1
Compulsory arbitration
The Court adopts a strict approach with regard to compulsory arbitration. The Court has been
confronted with several aspects of judicial independence in its case-law and it does not seem to
take a more lenient standpoint in comparison to ordinary tribunals.
5.1.1
Appointment of members of the arbitration tribunal
One particular characteristic of arbitration proceedings, the fact that parties themselves usually
appoint (some) members of the tribunal, deserves separate attention. In case the parties themselves
appoint (some) members of the arbitration tribunal, the Strasbourg case-law requires that all
parties have an equal influence with regard to the appointment of the members of the arbitration
tribunal.318 In its report in the Bramelid & Malmström case, the Commission stated:
"[...] there must be a rigorous guarantee of equality between the parties in regard to the
influence they exercise on the composition of the court." 319
317
“Arbitrale beslissingen worden niet gegeven door een ‘tribunal established by law’, van openbare
behandeling en uitspraak zal zelden sprake zijn, en bij de wijze van samenstelling van arbitrale
commissies zal ten aanzien van de onafhankelijkheid en onpartijdigheid niet zelden een
vraagteken moeten worden geplaatst” (G.J. Wiarda, “De waarborgen van artikel 6 EVRM
tegenover het onderwerp van deze feestbundel”, in: H.J. Snijders a.o. (eds.), Overheidsrechter
gepasseerd, Arnhem: Gouda Quint, 1988, p. 426). See also: W. ten Cate, “Enkele verschillen
tussen overheidsrechtspraak en arbitrage”, in: Tijdschrift voor Arbitrage 1993, p. 197.
318
The following method could, for example, be used. Both parties appoint one arbiter; those two
arbiters appoint a third who acts as chairman of the tribunal.
319
EComHR, 12 December 1983, Bramelid & Malmström - Sweden (appl. nos. 8588/79 & 8589/79;
86
The word 'rigorous' may well be explained by the fact that recourse to arbitration was compulsory
under Swedish law. In future cases, the Court might use a less firm wording in case of voluntary
arbitration.
A logic consequence of this standpoint is that appointment of arbiters by the executive is not in
breach with the Convention in case the executive is a party to the proceedings. In the Lithgow
case320 the Court had to decide whether the appointment of two members of an arbitral tribunal by
a Secretary of State who was a party to the proceedings before the arbitral tribunal was in breach
with the requirements of the Convention. The Court observed in the first place that the criteria for
the selection of members of the tribunal were worked out by both parties jointly. It further
observed that no appointments could be made without prior consultation of the other party and
that in this stage of the preparation of the proceedings no dispute had arisen concerning the
nominations. The Court concluded on the basis of the foregoing considerations that the
appointment of two members of the tribunal by one of the parties was not in breach with the
requirement of an independent judiciary.
5.1.2
Other aspects of judicial independence
Some commentators have argued that other reasons to fear a lack of judicial independence can
also be justified by the "guarantee of equality" between parties (as used in the Bramelid &
Malmström decision).321 I have my doubts concerning the validity of that assertion. The fact that
an arbiter is equally dependent on both parties is not in my opinion a safeguard for judicial
independence. It can hamper the judge to exercise a counterbalancing role vis-à-vis the parties. In
my opinion, the 'equality'-doctrine should be strictly interpreted and limited to the manner of
appointment of the arbiters.
Other fears relating to the independence of an arbitration tribunal may include the limited term
of office of arbiters, their removability and a lack of guarantees against outside pressures.
Doubts concerning the limited term of office of arbiters (in case of ad hoc arbitration) will very
likely be unsuccessful in view of the low standard adopted by the Court with regard to ordinary
tribunals. The Court has already accepted relatively short terms of offices in its case-law.
Another problem could be the possibility for both parties jointly to remove an arbiter without
giving any reasons (see, for example, Articles 1029 and 1031 in the Dutch Law on Civil
Procedure). This seems to be a greater problem in light of the Court's judgment in the Campbell
and Fell case.322 However, no specific case-law is available on this point. The only additional
D&R 38, p. 18), §33.
320
ECHR, 8 July 1986, Lithgow a.o. - United Kingdom (Series A-102), §202.
321
A.J. van den Berg, R. van Delden & H.J. Snijders, Arbitragerecht, Zwolle: Tjeenk Willink,
1992, p. 18.
322
ECHR, 28 June 1984, Campbell and Fell - United Kingdom (Series A-80), §80.
87
case-law is related to the criterion 'not subjected to any other authority'.
In the Sovtransavto case, the Court was confronted with the following complaint. The applicant
in the case was a Russian public company holding 49% of the shares in a Ukrainian public
company. After a meeting of shareholders a dispute arose which was put before a regional
arbitration tribunal. In the meantime, the President of Ukraine had written a letter to the
President of the Supreme Arbitration Tribunal urging him to "defend the interests of Ukrainian
nationals". The Court held that the various interventions by the Ukrainian authorities were
incompatible with the notion of an 'independent' tribunal:
“Lastly, the Court can but note that the Ukrainian authorities acting at the highest level
intervened in the proceedings on a number of occasions. Whatever the reasons advanced
by the Government to justify such interventions, the Court considers that, in view of their
content and the manner in which they were made […], they were ipso facto incompatible
with the notion of an ‘independent and impartial tribunal’ within the meaning of Article 6
§1 of the Convention.” 323
There is no indication that the Court's approach is more lenient in view of the fact that the
proceedings took place before an arbitration tribunal. The Court's review seems identical
compared to ordinary tribunals. There should be no reason to make a distinction between
ordinary tribunals and (compulsory) arbitration tribunals.
5.2
Consensual arbitration
It was argued in *** paragraph 4.7.1 of Chapter 4 *** that Article 6 ECHR - once applicable should be applied in a more moderated manner. That differentiation in the level of protection
seems to be made in the Strasbourg case-law. In its Bramelid & Malmström decision the
Commission made a clear distinction between compulsory and consensual arbitration. 324 It
stated, in a rather over-simplified manner, that consensual arbitration does in principle not pose
323
ECHR, 25 July 2002, Sovtransavto Holding - Ukraine (appl. no. 48553/99), §80. See also the
facts and circumstances in the Stran Greek Refineries case (ECHR, 9 December 1994, Stran
Greek Refineries – Greece (Series A-301-B), §§42-50). Stran Greek Refineries concluded a
contract with the military junta in 1972. Once democracy had been restored, the State took the
view that the contract was prejudicial to national economy. The ensuing dispute was first
conducted before an arbitration tribunal, which held that Stran’s claims were (partly) wellfounded. The State then asked the ordinary courts to set aside the arbitral award. While those
proceedings were pending the State enacted legislation limiting the jurisdiction of arbitration
tribunals to deal with these matters and invoked the brand new law before the courts. The
European Court found that such an intervention constituted a breach of Article 6 ECHR. Strictly
speaking, however, the intervention occurred vis-à-vis the ordinary courts (who happened to look
into the validity of an arbitration clause).
324
EComHR, 12 December 1983, Bramelid & Malmström - Sweden (appl. nos. 8588/79 & 8589/79;
D&R 38, p. 18), §30. The Commission referred in this respect to its earlier decision in: EComHR, 5
March 1962, X. – Germany (appl. no. 1197/61; CD 8, p. 68).
88
any problem in light of the requirements of Article 6 ECHR.325
In this respect one can refer to the decision in the Nordström case by the Commission.
Dutch law contains a rule, which permits the courts to quash arbitral awards on specific
grounds. The Dutch Supreme Court has interpreted this provision to mean that an arbitral award
can only be quashed if either facts and circumstances have been revealed on the ground of
which it has to be assumed that the arbitrator has in fact not been independent, or the doubts as
regards his independence are so grave that the disadvantaged party can not be required to
accept the arbitral award. The mere appearance of a lack of independence is not sufficient. By
adopting this standpoint, the Supreme Court applies a different standard with regard to
arbitration tribunals in comparison to ordinary courts. The Commission held that Article 6
ECHR did not require the Dutch courts to apply a different standard:
"It finds it reasonable that in this respect Dutch law requires strong reasons for quashing
an already rendered award, since the quashing will often mean that a long and costly
arbitral procedure will become useless and that considerable work and expense must be
invested in new proceedings." 326
This decision first of all clearly indicates that the Strasbourg institutions accepted a different
standard with regard to judicial independence. It accepted that appearances of a lack of
independence are not sufficient to annul an arbitral award. In comparison, in its Bramelid &
Malmström decision the Commission followed with regard to compulsory arbitration its
ordinary test, stating that justice must not only be done, but that it must also be seen to be
done.327
The Commission did not examine the complaint of the applicant autonomously, but
simply satisfied itself that the Supreme Court adopted a reasonable criterion. In doing so it
referred, inter alia, to the fact that the grounds on which arbitral awards may be challenged
before national courts differ among the various Contracting States and that an arbitral award
does not necessarily have to be quashed because the parties have not enjoyed all the guarantees
of Article 6 ECHR. The Commission concluded that each Contracting State may ‘in principle’
decide itself on which grounds an arbitral award should be quashed. The Commission did not
completely waive the possibility of any form of control (it needed to be satisfied that the
criterion is ‘reasonable’ and it stated that national authorities have this freedom ‘in principle’),
but the review is too marginal for my liking. Judicial independence is one of the ‘core’
guarantees of Article 6 ECHR and the external review exercised by the Strasbourg Court should
be slightly more explicit.
325
Also criticised by Matscher in F. Matscher, “Article 6 – L’arbitrage et la Convention”, in: L.-E.
Pettiti, E. Decaux & P.-H. Imbert, La Convention européenne des droits de l’homme, Paris:
Economica, 1995, p. 289.
326
EComHR, 27 November 1996, Nordström - Netherlands (appl. no. 28101/95). See also the
annotation by R.A. Lawson in Tijdschrift voor Arbitrage 1997, pp. 27-29.
327
EComHR, 12 December 1983, Bramelid & Malmström - Sweden (appl. nos. 8588/79 & 8589/79;
D&R 38, p. 18), §35.
89
Secondly, the reasoning in this decision is limited to the post facto annulment of an
arbitral decision. The mere appearance of a lack of independence will not be sufficient to annul
an arbitral award. The Commission’s decision can in my opinion not be applied analogously to
the situation in which the national legal provisions had stipulated that a party could not
challenge an arbitrator for such an appearance during the course of arbitration proceedings.
Paragraph 6
Revival of judicial independence because of the situation in some
Central and Eastern European countries
An analysis of the Court's case-law concerning judicial independence, as was done in this
chapter, can only lead to the provisional conclusion that the concept is underdeveloped, which
is surprising in view of its essential nature. Judicial independence does not in practice seem to
be an important element in the Court's case-law. This seems to be the consequence of a very
lenient interpretation by the Strasbourg Court of the various criteria. One may wonder whether
the Court will be able to maintain this apparent lack of interest with regard to judicial
independence in the future. With the accession of the new High Contracting Parties from
Central and Eastern Europe there seems to be a revival of the importance of judicial
independence (see also *** Chapter 2 §3.5 ***). This revival is visible in various ways.
In several - more recent - Council of Europe documents, the importance of judicial
independence is emphasised. In the foreword of the European Charter on the Statute of Judges,
for example, it is first reiterated that the Council of Europe has organised many activities on the
organisation of Justice. The foreword then states: "The number of these meetings has increased
since the end of the eighties due to the profound changes that have taken place in Eastern
Europe". The link between on the one hand an increased sensitivity with regard to judicial
independence and on the other hand the accession of Central and Eastern European countries is
explicitly made. In the explanatory memorandum to the European Charter on the Statute for
Judges a similar remark can be found:
"[...] it has also been argued that in a fair number of countries, including new Council of
Europe member States [...] the safeguards on competence, independence and impartiality
are ineffective." 328
Also in reports drafted by the Parliamentary Assembly during the process of accession by the
Central and Eastern European countries, the increased emphasis on judicial independence can
be found.329 A similar trend can be seen with regard to the accession of the Central and Eastern
328
DAJ/DOC (98) 23.
329
See for example the report of the Bureau of the Parliamentary Assembly on the conformity of the
legal order of the Federal Republic of Yugoslavia with the Council of Europe standards of 7
90
European candidate member states to the European Union.
Although the state of affairs is diverse in the various Central and Eastern European States, there
are some characteristics which are more or less common in these legal systems. 330 The role of
the Ministry of Justice in the organisation and administration of the courts is often
predominating and establishes a danger to judicial autonomy. In this respect the creation of
National Judicial Councils must be recommended. Another acute problem is posed by the state
of affairs of the training institutions. The enormous output of new legislation asks for increased
efforts in initial training and continuous training of judges. Further improvements could be
made by improving the working conditions for judges, especially by improving the
computerisation of courts and by introducing adequately trained (legal) staff at all court levels.
The proper execution of judgments is another common problem in many Central and Eastern
European countries. The same must be said about the relation with the media. Public opinion on
the judiciary in many countries is not very high. To enhance the image of the judiciary and to
improve the flow of information to the public, certain judges should be appointed and trained to
be liaisons with the press.
This increased emphasis on judicial independence in ‘political’ documents is still difficult to
detect in the Court’s case-law concerning Article 6 ECHR. However, there are some indications
that also the Court's attitude towards judicial independence is affected by this 'revival'.
In the Sovtransavto case331 the Court was confronted with a complaint concerning judicial
independence. The substance of the complaint was not spectacular. In various countries in
Eastern and Central Europe, a member of the executive is (or used to be) empowered to
challenge final judgments by lodging an objection (protest). That power was discretionary, so
that final judgments were liable to review indefinitely, in breach of the principle of legal
certainty. The abstract manner in which the Court phrased its judgment, however, is quite
remarkable. The Court considered that judicial systems characterised by the objection (protest)
procedure and therefore by the risk of final judgments been set aside repeatedly, were ipso
facto incompatible with the principle of legal certainty that was one of the fundamental aspects
November 2001: “Large parts of the legal framework governing State institutions are outdated
and certain areas, especially with regard to judicial independence, require urgent and radical
reform”.
330
The information originates from the final report of the PHARE Horizontal Programme on Justice
and Home Affairs ‘Reinforcement of the Rule of Law’ – a study of over 600 pages on the
question whether candidate countries Bulgaria, the Czech Republic, Estonia, Hungary, Latvia,
Lithuania, Poland, Romania, the Slovak Republic and Slovenia fulfil the requirements
concerning an independent judiciary (European Commission, Reinforcement of the Rule of Law,
Nijmegen: Wolf Legal Productions, 2002).
331
ECHR, 25 July 2002, Sovtransavto Holding - Ukraine (appl. no. 48553/99), §77. See also:
ECHR, 28 October 1999, Brumarescu - Romania (appl. no. 28342/95), §§60-65 (there are
various other judgments against Romania on the same issue; see, for example, ECHR, 9 July
2002, Falcoianu a.o. – Romania (appl. no. 32943/96), §32) and ECHR, 12 July 2001, Malhous –
Czech Republic (appl. no. 33071/96), §§44-63.
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of the rule of law for the purposes of Article 6 §1. A stricter wording by the Court that might
well be motivated by the wish to give a clear signal towards the 'new' member states. It would
not be surprising if the Court would have to deal with more complaints concerning judicial
independence in view of the remaining difficulties in this field in the 'new' member states.
Neither would it be surprising if the Court as a result thereof would become more stringent and
explicit in its interpretation of the various applicable criteria.
Paragraph 7
Concluding remarks
Judicial independence may be described as the autonomous formation of a judgment. The
blindfold of Lady Justice needs to ensure that a judge is able to reach his decision on the basis of
his own judgment without the existence of an improper relationship with the parties before him or
the authorities, and without his decision being subject to any authority. A judge may not be
subjected to any authority, except the law (if the law is developed in accordance with democratic
principles) and his own conscience and sense of justice, as far as the law leaves room for
interpretation.
The first issue that needs to be addressed is how judicial independence as laid down in Article 6
ECHR and interpreted by the Court (and Commission), relates to the theoretical concept which
was discussed in the first paragraph of this chapter. This exercise is complicated by the fact that
the Strasbourg institutions have failed to give a clear abstract definition of the notion ‘judicial
independence’. The Court’s case-law is rather casuistic. It is regrettable that the Court has never
taken the opportunity to clarify its standpoint in a dogmatic approach.332 The absence of a clear
delimitation of the concept has also resulted in a rather ambigious demarcation vis-à-vis the
requirement of objective impartiality.333 In my opinion, the essence of judicial independence can
best be described as requiring that a judge can base his interpretation of the law on his own free
conscience without being subjected to any authority, including other organs of the state, litigants
and other pressure or interest groups, with the exception of the judge’s obligation to abide by the
law and with the exception of other judicial authorities in appeal proceedings provided for by
law.
332
See also K. Wagner, "De onafhankelijkheid van de rechter naar Europees recht", in: De
onafhankelijkheid van de rechter - Preadviezen van de Vereniging voor de vergelijkende studie
van het recht van België en Nederland, Deventer: Tjeenk Willink, 2001, p. 17 and M.F.J.M. de
Werd, "De wetgever en artikel 6 EVRM", in: J.P. Loof (ed.), Onafhankelijkheid en
onpartijdigheid - De randvoorwaarden voor het bestuur en beheer van de rechterlijke macht,
Leiden: NJCM-Boekerij, 1999, p. 33.
333
See, for example, F.A.M. Stroink, "De betekenis van de Straatsburgse jurisprudentie inzake de
onafhankelijkheid en onpartijdigheid voor het Nederlandse recht", in: NJCM-Bulletin 1999, p. 10
and J. Velu & R. Ergec, La convention européenne des droits de l'homme, Bruxelles: Bruylant,
1990, p. 451.
92
Nonetheless, on the basis of the body of case-law one can conclude that the European Court
chooses in principle for a broad approach. Judicial independence in the sense of Article 6 ECHR
can comprise aspects of both personal and functional independence, including constitutional,
factual and internal independence. The fact that some of these elements of judicial independence
may be underdeveloped in the Court's case-law, does not mean that the Court has excluded these
elements from its review.
One of the main reasons why certain areas of judicial independence remain underdeveloped is of
a purely procedural nature. The Strasbourg Court can only review complaints concerning
judicial independence within the framework of a specific judicial decision. The Convention is
only interested in judicial independence from the viewpoint of the individual’s right to a fair
trial. The average applicant will complain about an alleged lack of judicial independence for
reasons that do usually relate to only some aspects of judicial independence. Other areas of
judicial independence, mainly aspects of internal independence, remain underexposed. 334 The
result hereof is a lacuna in the supervisory mechanism of the Convention. This could only be
remedied if the Court would accept that judges or associations of judges or High Councils of
the Judiciary could be regarded as 'victims' of a violation of the principle of judicial
independence as laid down in Article 6 ECHR because of the existence of national legislation
in which the organisation of the judiciary is described. This is unlikely to happen for at least
two reasons. First of all, courts and public law associations of judges will have difficulties
using the Strasbourg system because of the fact that they are themselves state organs.
Secondly, groups of interested citizens (including bar associations and private law associations
of judges) bringing these complaints before the Court will often be declared inadmissible since
it is standing case-law of the Court to declare an actio popularis incompatible with the
Convention. A solution would be to have interest groups involved in individual complaint
proceedings before the Court as amicus curiae to comment on these aspects of judicial
independence.335
Turning back to the Court's case-law. Besides the lack of a clear definition, one can conclude that
the relevant criteria have not been elaborately interpreted and explained by the Court.336
Nonetheless, it is possible to deduce the relative 'weight' of the different criteria from the Court's
334
See also L.F.M. Verhey, “De onafhankelijkheid van de rechter naar Nederlands recht”, in: De
onafhankelijkheid van de rechter - Preadviezen van de Vereniging voor de vergelijkende studie
van het recht van België en Nederland, Deventer: Tjeenk Willink, 2001, p. 23.
335
See also the introductory report (prepared by the F.M. van Asbeck Centre for Human Rights
Studies of the University of Leiden) to the conference “Rule of Law”, organised by the Dutch
presidency of the European Union in cooperation with the Council of Europe and held in
Noordwijk on 23-24 June 1997, p. 17.
336
Cf. J.-C. Soyer and M. De Salvia, “Article 6”, in: L.-E. Pettiti, E. Decaux & P.-H. Imbert, La
convention européennes des droits de l’homme, Paris: Economica, 1995, p. 260: “Tous ces
éléments, l’un après l’autre scrutés, font l’objet d’un contrôle minutieux par les organes de la
Convention […]”.
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case-law.337 The requirement of not being subject to any authority in the exercise of judicial
functions seems to be the most important one. Issues like who has appointed the members of the
judiciary and the duration of the term of office seem to be of very little importance. The Court has
taken a more strict standpoint with regard to direct forms of dependence of the judiciary vis-à-vis
the executive. The case-law seems to promote a strict separation powers (the trias politica).338
Judicial independence does not in practice seem to be an important element in the body of caselaw of the European Court of Human Rights, which is remarkable in view of its essential nature.
This is primarily due to the very lenient interpretation of the applicable criteria. In light of the
accession of Eastern European countries, it is likely that the Court will be confronted with issues
concerning judicial independence more frequently in future and as a result thereof will adopt a
different approach. Some criteria will be interpreted more strictly and the wording of judgments
might become more abstract and general. The Court will have to prove once again that the
Convention is a living instrument and it will have to emphasise more clearly that it wants to
offer judicial protection that is not only theoretical but also effective.
At the moment, however, an observer cannot but conclude that the Court does not take the
interpretation of judicial independence seriously. The Court’s apparent lack of interest with regard
to judicial independence is only compensated by an active attitude of the Court with regard to the
interpretation of the requirement of impartiality. The Court has not given a lot of 'body' to the
rather vague criteria it has developed. ‘Soft law’ documents, such as Recommendation R (94) 12
and the European Charter on the Statute for Judges, are much more useful in this regard. They
provide a much clearer guideline as to what is required. It would be advisable if the Court would
make an explicit reference to such documents as a source of inspiration when interpreting Article
6 ECHR.
337
See also EComHR, 22 May 1995, Heudens – Belgium (appl. no. 24630/94).
338
See also ECHR, 27 August 1991, Demicoli - Malta (Series A-210), §40 and ECHR, 9 December
1994, Stran Greek Refineries & Stratis Andreadis - Greece (Series A-301-B), §49.
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