Who Safeguards the Guardians? A Subjective Right of Judges to their Independence under Article 6(1) ECHR

Abstract

Time for the European Court of Human Rights to interpret Article 6 ECHR to encompasses a subjective right for domestic judges to their own independence – Overview of the existing case law on the principle of judicial independence – Such a right currently not present in case law – Judges are obliged to frame their complaints, while at their heart independence-related, in terms of other substantive Convention rights – Court cannot properly address one of the fundamental aspects of these cases – Lower protection for the domestic judges – Other international legal orders do include such a subjective right to a judge’s independence – Several arguments for the European Court of Human Rights to similarly acknowledge such a right under the Convention – Few difficulties in integrating such a right into the existing case law

Introduction

In their 2009 article ‘Guarding the Guardians’, Nuno Garoupa and Tom Ginsburg discussed the emergence of judicial councils as important actors in the selection and discipline of judges. ¹ In their contribution, they were critical of the prevailing opinion that having a majority of judges in such councils would improve the quality of the judiciary, and stressed the need for politically accountable judges. The article can be seen as an example of the increasing attention to questions of accountability of judges and the search for a balance between judicial independence and judicial accountability. ²

Over a decade later, the international landscape has changed considerably. In countries all over the world, ³ measures have been introduced that may safely be described as a deliberate attempt to destroy judicial independence as part of a broader strategy to dismantle the existing system of checks and balances. Gathered under the common denominator of rule of law backsliding, ⁴ these measures include lowering the retirement age of judges, ⁵ court-packing, ⁶ (ab)using disciplinary proceedings, ⁷ and generally increasing the power of the political branches over the judiciary. Even though Hungary and especially Poland are mentioned everywhere as the enfants terribles in Europe at the moment, similar concerns have also been raised with regard to other countries, like Romania ⁸ or Malta. ⁹

In such a climate, the question may very well be rephrased as ‘who can safeguard the domestic judges?’, instead of who guards them. Clearly, this is a very broad question which can be discussed from a multitude of different angles, based on the nature of the measures in question (political or legal, binding or non-binding), or the level from which they originate (national or international). This article will deal only with one distinct aspect of this question, namely whether it is time for the European Court of Human Rights to acknowledge the subjective right of a judge to his or her independence under the European Convention on Human Rights. Such a right could offer an important new form of international protection for judges whose independence is threatened by national actors. While this question has so far received limited attention in legal doctrine, ¹⁰ it may be expected to become increasingly pressing in the current climate.

This article is structured as follows. The next section will provide a brief overview of the existing case law on the notion of judicial independence, enshrined in Article 6 ECHR, concluding that at this point in time it does not provide for a subjective right of judges to their independence. The third section will give an overview of how certain judges have nonetheless attempted to enforce their own independence before the Court via other Convention rights. The fourth section will broaden the scope and look whether such a subjective right for judges exists in other international legal orders, examining the case law of the UN Human Rights Committee, the Inter-American Court of Human Rights and the European Court of Justice. The fifth and final substantive section will then shift the focus back to the European Court of Human Rights and argue that it should acknowledge a subjective right to a judge’s independence under Article 6 ECHR. A short conclusion completes the article.

The existing case law on judicial independence under article 6 ECHR

Judicial independence is generally understood as a prerequisite for any state that claims to be governed by the rule of law. Judges must be able to form a decision strictly on the basis of considerations pertaining to the law and justice, free from fear or favour, and untethered from any interests that are irrelevant to the case. ¹¹ It is incumbent upon the (constitutional) legislature of each state to design a judicial system that allows judges to rule in such an independent manner. Yet, such a system should equally foster other values pertaining to the judiciary, such as judicial accountability, transparency, and the absence of corporatism. In each state, the protection of judicial independence should thus be balanced against other values. ¹² While the way in which that balance is given shape is primarily a domestic issue, it has at this point in time an undeniable European dimension as well. Since its conception, the European Court of Human Rights has imposed minimum standards as to the right to judicial independence. That right, enshrined in the first paragraph of Article 6 ECHR, has given rise to a very rich body of case law. For the Court, judicial independence is primarily a jurisprudential construct, the foundational layer of which was laid in the 1980s and 1990s and to which new layers are added regularly. ¹³ While the body of case law is too vast to describe in all its intricacies, it is possible to point to a few important developments that have taken place over the years.

It was in the judgment of Campbell and Fell that the European Court of Human Rights introduced the – by now classic – list of factors which it takes into account to determine whether a body can be considered independent: the manner of appointment of its members; the duration of their term of office; the existence of guarantees against outside pressure; and the question whether the body presents an appearance of independence. ¹⁴ To this day, these four factors, while not exhaustive, remain the starting point for any assessment of judicial independence. ¹⁵ Whereas the Court originally stressed the need for the independence from the executive and the parties to the case, it later explicitly added the need for independence vis-à-vis the legislature as well. ¹⁶

This original jurisprudence stressed the independence of the judiciary in a sense that is commonly understood as an implementation of the theory of separation of powers. ¹⁷ It denotes the basic relationship between the judiciary and the two political branches of powers and stresses that the judiciary should be institutionally and functionally independent from them. In this sense, it is relevant to point out that the Court regularly states that the notion of separation of powers has assumed a growing importance in its case law. ¹⁸ Whereas in some cases the Court has mainly stressed the importance of the separation between the judiciary and the executive, ¹⁹ in others it has pointed to the importance of the separation between the judiciary and the political organs of government as a whole. ²⁰

In its more recent case law, the Court has also been tasked with delineating more ancillary and subtle cases of judicial independence, more particularly those relating to judicial councils. ²¹ Whereas there is no uniformity on this issue in Europe, a judicial council may be defined as an independent organ, positioned between the judiciary and the political branches of government, with – depending on the country in question – significant powers in terms of appointment, promotion and discipline of judges, court management, and budgeting. ²² Generally speaking, these institutions can be understood as striking a balance between judicial independence and judicial accountability. ²³

When it comes to judicial councils, the European Court of Human Right’s foundational judgment is Olujić. ²⁴ In this case, the Court indicated that a judicial council may be seen as a tribunal in the sense of Article 6(1) ECHR, thereby subjecting them to the substantive requirements of that provision. Since then, it has received several cases on this issue. In most of these cases, a domestic judge complains about a disciplinary penalty that he or she had incurred, arguing that the council in question was not impartial or independent. In several of these cases, the Court has had to assess the composition of these bodies, reviewing the fragile balance that had been struck between the judicial and political members. ²⁵ These cases concerning the composition of judicial councils thus put the Court in a position to delineate a more nuanced aspect of the independence of the judiciary from the political branches of power.

Around the same time, the Court also started to develop jurisprudence concerning a different aspect of judicial independence: internal judicial independence. ²⁶ The concept of internal judicial independence requires that judges are free from any undue pressure from their superiors or their colleagues within the judiciary. ²⁷ Whilst this principle originated in international soft-law instruments, ²⁸ it was explicitly adopted by the Court in its 2009 judgment in Parlov-Tkalčić. In this judgment, the Court held that judicial independence as enshrined in Article 6 ECHR demands that individual judges be free not only from undue influences outside the judiciary, but also from within. This internal judicial independence requires that they be free from directives or pressures from the fellow judges or those who have administrative responsibilities in the court such as the president of the court or the president of a division in the court. The absence of sufficient safeguards securing the independence of judges within the judiciary and, in particular, vis-à-vis their judicial superiors, may lead the Court to conclude that an applicant’s doubts as to the (independence and) impartiality of a court may be said to have been objectively justified. ²⁹ Since its judgment in Parlov-Tkalčić, the Court has issued several judgments in which judges have challenged measures coming from within the judiciary, mainly disciplinary sanctions, that they argued constituted a threat to their independence. ³⁰

From this short overview, it becomes clear that the Court’s case law on judicial independence includes several dimensions of the principle: independence from the parties, institutional and functional independence from the executive, and legislative powers both in its basic and more nuanced aspects, as well as internal judicial independence. ³¹ However, it is crucial to note that in all of the abovementioned case law these aspects of judicial independence have been assessed from the perspective of persons involved in court proceedings and not from that of judges’ subjective right to have their own independence guaranteed and respected by their government. ³² Even in cases that concern internal judicial independence, the central question remains whether the applicant’s doubts concerning the independence of the domestic judge in question can be objectively justified. ³³ Admittedly, the cases in which the composition of a judicial council is challenged are brought before the Court by the national judges themselves. However, in these cases the judges should be seen as civil servants who simply want to enjoy the right to an independent tribunal. Therefore, these cases too concern the right to a fair trial for a party to the proceedings, rather than a judge’s subjective right to independence. It must thus be concluded that at this point in time, the case law of the Court does not allow for a judge’s subjective right to have his or her independence safeguarded.

Enforcing judicial independence via other Convention rights

This absence of a right to independence has nevertheless not prevented domestic judges from lodging complaints with the Strasbourg Court in order to try and safeguard their own independence, challenging measures such as removal or demotion. Yet, due to the lack of an established right in this regard, they have had to rely on other substantive Convention rights. Thus, instead of directly invoking a right to be independent, they had to rely on Convention rights that form part of a broader status that protects their independence. ³⁴ The two Convention rights that have been relied on most in this regard are the right to private life, enshrined in Article 8 ECHR, and the freedom of expression, enshrined in Article 10 ECHR.

Before we can delve into the case law, however, an important disclaimer is in place. Just because a domestic judge has lodged a case with the European Court of Human Rights does not mean that the underlying measure can automatically be described as an attack on that judge’s independence. For example, if a judge acts in a way that is incompatible with the dignity of office and he or she suffers a disciplinary sanction because of this, that sanction must not be seen as an assault on the judge’s independence. It is certainly possible to point to such examples in the case law of the Court. ³⁵ However, examples can also be found of cases in which the underlying measure can be understood as a concealed attack on the independence of the judge in question. It is this second kind that is most important for this article’s topic. Thus, it would in principle be possible to make a distinction based on the underlying motive of the measure in question. It is acknowledged here that this distinction is not black and white and that it may be difficult to convincingly argue in one case or another whether the measure in question had the intention of eroding the independence of the judge concerned. ³⁶ Proving intent is difficult and illiberal regimes often invoke seemingly laudable aims to push through far less laudable changes. In this respect, in the EU context, Advocate General Bobek has stressed that alleged breaches of the principle of judicial independence should always be examined in their context, by looking at all relevant elements. ³⁷ A legal measure should thus not be examined in isolation but assessed in its application in practice when placed in the broader legal and institutional landscape. ³⁸ Both the European Court of Human Rights and the European Court of Justice also look at the broader legal context when examining cases about judicial independence. ³⁹ Even though such a contextual approach certainly helps, it remains difficult – if not impossible – to completely objectively assess the motivation behind a measure, whether legislative or administrative in nature. Despite this important caveat, it is argued here that the following cases are all examples of cases where the measure in question entails a concealed attack on the independence of the judge in question, based on the context in which they occurred.

Without a doubt the most well-known example of a case in which a domestic judge relied on a substantive Convention right in order to safeguard his own independence is the 2016 Grand Chamber judgment of Baka. ⁴⁰ András Baka was the President of the Hungarian Supreme Court and was as such also ex officio President of the National Council of Justice. A particular aspect of this case was that in that capacity he had the statutory obligation to express an opinion on parliamentary bills that affected the judiciary. In this official capacity, Baka voiced strong criticisms against the reforms of the Constitution and other legislation by the Fidesz party, which had a great impact on the Hungarian judiciary. Ultimately, as a consequence of the entry into force of these constitutional and legislative reforms, Baka lost his mandate as President of the Supreme Court three and a half years before its expected date of expiry.

In legal doctrine there is little doubt that the dismissal of Baka from his position as Supreme Court President was a means of removing an influential voice that was critical of the political majority. ⁴¹ Consequently, the disputed measure can be seen as an assault on his judicial independence. ⁴² Nonetheless, Baka did not invoke the principle of judicial independence before the Strasbourg Court as such. He relied on Article 6 ECHR, but exclusively in the sense that he had been denied the right of access to a court, since there was no domestic remedy available to him. Furthermore, he relied on Article 10 ECHR, arguing that the termination of his mandate as President of the Supreme Court was a result of the views he had publicly expressed, and therefore violated his right to freedom of expression.

Thus, even though judicial independence is one of the core issues at play in the Baka case, the case before the Strasbourg Court could not be framed as such. This meant that the Court could not really deal with one of the fundamental issues of this case. ⁴³ Nonetheless, as was pointed out by judge Sicilianos in his concurring opinion, the principle of judicial independence is omnipresent in the judgment. ⁴⁴ The Court indeed tries to incorporate the principle in its reasoning by relying heavily on international soft-law standards and referring to these standards all throughout the judgment. ⁴⁵ In doing so, the Court stresses the concept of judicial independence in a different substantive Convention right, in this case Article 10 ECHR. It has recently adopted the same reasoning in the judgment of Kövesi, which concerned a case in which a Romanian prosecutor’s mandate had been prematurely terminated following public criticism of legislative reforms. ⁴⁶

A second example of a case in which a domestic judge challenged a measure that can be seen as an attack on judicial independence via another substantive Convention right is Erményi. In fact, this case is closely related to the Baka case, since Erményi was the Vice-President of the Hungarian Supreme Court at the time of the abovementioned constitutional and legislative reforms. As a consequence of the same legislative provisions that affected Baka, Erményi was removed from his position as Vice-President almost four years before the scheduled expiry of his mandate. Then, one year later, he was released from his duties as a judge by the Hungarian President, due to the new law lowering the mandatory retirement age of judges. ⁴⁷

The complaint before the Court was limited to the dismissal from his post as Vice-President of the Supreme Court. In his application to the European Court of Human Rights, Erményi relied on Articles 6, 8, 13 and 14 of the Convention, as well as Article 1 of the First Additional Protocol. Nonetheless, the Court decided to consider the examination solely from the point of view of Article 8 ECHR. After finding the complaint admissible, the Court came to the conclusion that the Hungarian government had not been able to show that the termination of his mandate pursued one of the legitimate aims of Article 8(2) ECHR and subsequently found a violation of that Convention provision. ⁴⁸

The third and final example that will be mentioned here is the case of J.B. ⁴⁹ In this case, a group of over 150 Hungarian judges complained about the mandatory lowering of their retirement age and the consequences of that measure for their professional careers and their private lives. The judges relied on Articles 6, 13 and 14 of the Convention, as well as Article 1 of the First Additional Protocol. The Court decided to communicate the applications to the government also under Article 8 ECHR. Ultimately, the Court found all complaints inadmissible, either because they were incompatible ratione materiae or because they were manifestly ill-founded. Importantly, the judges also relied on the principle of judicial independence and argued that the lowering of the retirement age had constituted a serious attack against the independence of the Hungarian judiciary as a whole. ⁵⁰ The Court, however, did not address this argument in its decision. ⁵¹

The examples do not end there. ⁵² Nonetheless, the three set out above suffice to show the dangers of the current limited understanding of the right to an independent tribunal under the Convention framework. Due to the absence of a subjective right to their independence, domestic judges have to build their cases on other Convention rights, arguing that the measure in question was in violation of their right to freedom of expression, or that a mandatory lowering of the retirement age constituted a violation of the prohibition of discrimination, or of their rights to respect for private life and to property. The current state of the Court’s case law does not allow domestic judges to challenge any of these measures from an independence angle, but forces them to take a detour via other substantive fundamental rights, often via a rather contorted reasoning. This state of affairs has two important and related drawbacks. First, it leads to a situation where the Court is not able to fully grapple with one of the crucial elements underlying the application before it. As was shown in Baka and Kövesi, the Court may try to circumvent this by incorporating independence-rhetoric in other substantive Convention rights, but this cannot mask the fact that the right to freedom of expression or the right to private life were never meant to deal with issues of judicial independence. Second, and crucially, this, in turn, results in a lower protection for the domestic judges. They have to force their complaints into the straightjacket of Conventions rights that have fundamentally different aims and which – unlike the principle of judicial independence – leave the domestic authorities with a margin of appreciation. Briefly put, this leads to a situation in which domestic judges cannot effectively safeguard their own independence.

There are, however, two developments in recent jurisprudence that are important for the subject of this article and which merit closer attention. The first of those evolutions concerns the right of access to a court for judges. In several recent cases, the European Court of Human Rights seems to have enhanced the procedural protection that judges enjoy via an expansive interpretation of the right of access to a court, as enshrined in Article 6(1) ECHR. According to the Court’s well-established Eskelinen criteria, civil servants, including judges, may only be excluded from access to a court when this exclusion is expressly provided for in law and is justified on objective grounds in the state’s interests. ⁵³ In four recent judgments, the Court came to the conclusion that the exclusion in question could not be justified. ⁵⁴ In this regard, the Court pointed to the crucial position that judges hold in the domestic constitutional landscape as a check on the political branches of government. Because of this, it stressed the need for procedural protection of judges in order to ensure their autonomy. ⁵⁵ According to the Court it would be a fallacy to assume that judges can uphold the rule of law if domestic law deprives them of the guarantees of the Convention on matters directly touching upon their individual independence and impartiality. ⁵⁶ Judges should enjoy protection from the arbitrariness of the political branches, and only oversight by an independent judicial body is able to render such a right effective. ⁵⁷ Consequently, the Court held that it did not consider it justified to exclude members of the judiciary from the protection of Article 6 of the Convention. ⁵⁸

The effect of the Court’s reasoning in these cases should not be underestimated. By stressing the procedural protection of judges and the need for their independence, the Court seems to have enhanced the right of access to a court where judges are concerned. When one takes a look at the Court’s reasoning in these cases, it seems rather unlikely that it will still accept an exclusion of access to a court for judges as being properly justified in the state’s interests. ⁵⁹ Generally speaking, on account of this strand of case law, domestic judges should have access to a domestic judicial remedy for issues concerning their independence, provided they can rely on a right that is recognised under national law.

The second evolution concerns the judgment in Denisov. ⁶⁰ In that case, a Ukrainian judge challenged the fact that he had been dismissed from his post as president of a court of appeal due to a disciplinary sanction. In his complaint, he relied, inter alia, on Article 8 ECHR. The Grand Chamber used this case as an opportunity to streamline its case law on employment-related disputes. It held that the question of whether Article 8 ECHR applies in such a dispute is an issue of jurisdiction ratione materiae, which should in principle be dealt with at the admissibility stage. After an analysis of its relevant former case law, it concluded that the right to private life may be engaged in employment-related scenarios on the basis of two different approaches. The first of the two is the reason-based approach, meaning that the impugned measure was based on reasons that encroach upon the individual’s freedom of choice in the sphere of private life. In other words, if the impugned measure was based on aspects that relate to the private life of the person in question, then Article 8 ECHR applies. ⁶¹ The second approach is the so-called consequence-based approach. When the reasons for imposing a measure are not linked to the individual’s private life, an issue under Article 8 ECHR may still arise when the impugned measure may have serious negative effects on the individual’s private life. These consequences may relate to the individual’s inner circle, his or her opportunities to establish and develop relationships with others or the impact on the individual’s reputation. However, not every kind of negative impact suffices in this regard; according to the Court it must be shown that the consequences reached a certain threshold of severity. ⁶²

The Grand Chamber judgment in Denisov and its express establishment of the consequence-based approach is of significant importance for the subject of this article. Under the current state of affairs, the consequence-based approach under Article 8 ECHR is the closest thing to a right for judges to safeguard their own independence in the Convention framework. This is because measures like the lowering of the retirement age or a disciplinary sanction can all be understood as entailing negative consequences for the judge’s inner circle or his or her reputation. In this sense, Denisov can be understood as broadening the material scope of Article 8 ECHR, allowing judges to raise a complaint due to almost any measure that negatively affects them and their independence. ⁶³

The two evolutions outlined above are certainly important for the subject of this article. The enhanced protection of the right of access to a court strengthens the position of judges to bring cases concerning measures that affect their independence before a judicial body. The Denisov judgment can be seen as creating a certain fall-back right via which judges may protect their independence. However, the effects of these evolutions should also not be overestimated. For the right of access to a court to be admissible, a judge must be able to rely on a right in the domestic legal order, which may not always be evident when issues like mandates as court (vice) president or transfer to another court are at stake. ⁶⁴ Furthermore, a right of access to a domestic judicial review might ring hollow in those states where there are doubts on a structural level about the independence of the judiciary. As far as Denisov is concerned, it bears repeating that the Court has established a certain threshold for the consequence-based approach, requiring that the consequences attain a minimum level of severity. The limited judgments in which the consequence-based approach has been applied so far prove that this threshold is not that easily met. This was already apparent from the case of Denisov itself, where the Court held that dismissal from the position of court president, while retaining the post of judge, did not reach the required level of severity. ⁶⁵ In J.B., the Court equally did not find a violation of Article 8 ECHR based on the consequence-based approach, finding the complaint inadmissible. ⁶⁶ So far, the Court has only found the level of severity to be reached when the person concerned has been dismissed. ⁶⁷ All this indicates that whilst the consequence-based approach under Article 8 ECHR provides domestic judges with something of a safety-net in terms of safeguarding their own independence, its protection is limited and will likely lead to an inadmissible complaint in most cases. As such, it does not offer a suitable avenue to protect judicial independence – which, it must be noted, was never the aim of that provision.

Thus, as matters stand now, domestic judges have still found their way to Strasbourg in order to challenge measures that threatened their independence, despite the absence of any recognition of a subjective right to their independence. However, due to this absence, they had to rely on other substantive Convention rights. This meant that the ensuing cases could not easily be framed in terms of judicial independence. This state of affairs means that the Court cannot truly address one of the crucial aspects of the cases, which makes it difficult for the domestic judges to effectively safeguard their independence this way. While recent case law can be understood as creating some new avenues in this regard, it is clear that they each have their limitations. All of this leads us to the question whether the Court should acknowledge a subjective right for judges to their independence under Article 6 ECHR.

The subjective right of judges to their independence in other legal orders

Before we turn to the ECHR, however, this article will first examine whether such a right for a judge to have his or her independence safeguarded is acknowledged in other legal orders. This section will first look into the case law of the UN Human Rights Committee and the Inter-American Court of Human Rights. ⁶⁸ It will then address an important and recent evolution that has been taking place in the EU and the case law of the European Court of Justice.

The UN Human Rights Committee has had three cases in which it had to rule on the dismissal of judges. In these cases, the Committee addressed the complaints primarily from the point of view of Article 25(c) of the International Covenant on Civil and Political Rights, safeguarding the right to access to public service. Importantly however, it read this provision in light of the principle of judicial independence, enshrined in Article 14(1) of the Covenant. In this sense, it held in the case of Bandaranayake that:

the dismissal procedure did not respect the requirements of basic procedural fairness and failed to ensure that the author benefited from the necessary guarantees to which he was entitled in his capacity as a judge, thus constituting an attack on the independence of the judiciary. For this reason, the Committee concludes that the author’s rights under Article 25(c) in conjunction with Article 14, paragraph 1, have been violated. ⁶⁹

From this, it becomes clear that the Human Rights Committee acknowledges that the dismissal of a judge may constitute an attack on the independence of the judiciary and that a judge is entitled, on the basis of his function, to the necessary guarantees of independence. ⁷⁰

Such attention to the personal right of a judge to have his or her independence protected is mentioned even more expressly in the case law of the Inter-American Court of Human Rights. In its 2013 judgment in Quintana Coello the Court had to rule on the removal of 27 judges of the Supreme Court of Ecuador via a parliamentary resolution. The Court held that the measure had violated the right to a fair trial, enshrined in Article 8(1) of the American Convention on Human Rights. With reference to the abovementioned case law of the Human Rights Committee, the Court held in its judgment that the institutional guarantee of judicial independence is directly related to a judge’s right to remain in his post, as a consequence of the guarantee of tenure in office. ⁷¹ The Court sets out the following reasoning:

i) respect for judicial guarantees implies respect for judicial independence; ii) the scope of judicial independence translates into a judge’s subjective right to be dismissed from his position exclusively for the reasons permitted, either by means of a process that complies with judicial guarantees or because the term or period of his mandate has expired, and iii) when a judge’s tenure is affected in an arbitrary manner, the right to judicial independence enshrined in Article 8(1) of the American Convention is violated, in conjunction with the right to access and remain in public office, on general terms of equality, established in Article 23(1)(c) of the American Convention. ⁷²

These principles were subsequently confirmed in two later judgments. ⁷³ In this regard, two judges of the Court have stated in a dissenting opinion that the Court’s case law has two different facets: an external one where the state is obliged to protect the judiciary as a system, and an internal one where it is obliged to protect a single judge. In other words, the Court has analysed the principle of judicial independence from both an institutional and a personal perspective. ⁷⁴ From this, it becomes clear that the Inter-American Court also acknowledges a judge’s personal right to have his or her independence protected. ⁷⁵

Another notable jurisprudential evolution for the subject of this article has recently taken place in the EU legal order. Here, something akin to a judge’s substantive right to judicial independence has taken shape in the case law of the European Court of Justice. This evolution started with the 2018 judgment in Associação Sindical dos Juízes Portugueses (ASJP). ⁷⁶ In this case, the Court developed an autonomous ground to verify the requirements of effective judicial protection, via a novel understanding of Article 19(1)(2) TEU. ⁷⁷ Essentially, the Court’s reasoning in this case was as follows. It reiterated that the observance of Union law is entrusted to both the European Court of Justice and national courts and tribunals. ⁷⁸ Therefore, member states are obliged to ensure the application of and respect for EU law. In that regard, they are required to provide remedies that are sufficient to ensure effective judicial protection for individual parties in those fields covered by EU law. In light of these principles, all member states must ensure that the bodies which as courts or tribunals within the meaning of EU law come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection. ⁷⁹

The revolutionary nature of the ASJP judgment lies in the fact that it has created an autonomous ground to verifying the right to an effective judicial remedy, free from the constraints of Article 51(1) of the Charter. ⁸⁰ Article 19(1)(2) TEU applies to all domestic courts that may be required to rule on questions which concern the application or interpretation of EU law and thus fall within the fields covered by EU law. ⁸¹ As has been noted several times, there do not appear to be many – if any – courts that do not fit that description. ⁸²

In its judgments, the European Court of Justice has fleshed out the content of Article 19(1)(2) TEU by interpreting it in light of Article 47 of the Charter. ⁸³ In several judgments, the Court has interpreted the former by looking at the right to an impartial and independent court as enshrined in the latter. ⁸⁴

When we take these two considerations together, it becomes clear that the Court has created an autonomous ground to assess the compatibility of national measures with the principle of judicial independence. The importance of that conclusion for this article becomes apparent when it is combined with the preliminary reference procedure, enshrined in Article 267 TFEU. In essence, this combination has created a lifeline which allows domestic judges to ask the European Court of Justice whether a national measure endangers the principle of judicial independence, thereby giving them an avenue via which to safeguard their own independence.

There are already several examples of cases in which a domestic court has made use of this avenue of ‘judicial self-defence’. ⁸⁵ A first example is Escribano Vindel, in which a Spanish judge challenged a reduction in his salary before the Catalan High Court of Justice. That court asked the European Court of Justice – similarly to the ASJP case – whether the lowering of the salary of judges in Spain was in violation of the principle of judicial independence. ⁸⁶ Although the European Court of Justice ultimately found no violation of the principle of judicial independence, it did acknowledge that the receipt by judges of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence. ⁸⁷ A second example can be found in the case of A.K., in which the Polish Supreme Court, in a case brought by three Polish judges, asked whether the new disciplinary chamber of the Supreme Court violated Article 19(1)(2) TEU, given their appointment by the newly composed council of the judiciary. ⁸⁸ A third example is the Court’s order in RH. ⁸⁹ In this case, the domestic judge asked the Court whether a national law, which required the judge to adjudicate a certain case immediately, without being allowed to make a request for a preliminary ruling, and this on pains of a disciplinary sanction, was in compliance with Article 267 TFEU and Article 47 of the Charter. In its order, the Court made clear that such a national law is not in accordance with EU law and stressed that the principle of judicial independence opposed the situation in which a domestic judge is subjected to disciplinary sanctions for making a request for a preliminary ruling. ⁹⁰

These few examples show that the preliminary reference procedure, in combination with the strong position that the principle of judicial independence has acquired in EU law, provides domestic judges with a framework through which to have their own independence safeguarded by the European Court of Justice. They can do this either directly in a case pending before them, as evidenced by RH, or indirectly by starting a judicial procedure and nudging the domestic court in question to request a preliminary ruling. ⁹¹ Admittedly, there is a difference between the EU framework and the ECHR. The protection which is offered by the European Court of Justice is less the consequence of a domestic judge enforcing a personal fundamental right to independence and is rather a protection flowing from the judge’s specific status as an EU judge. Nonetheless, the consequences in practice are very similar, as it offers the judge a way of enforcing his or her own independence.

It should, however, be pointed out that the protection that is offered by the EU framework is not unlimited. ⁹² This was made clear by the European Court of Justice’s judgment in Miasto Łowicz. ⁹³ In this case, the Court had to respond to two preliminary references by Polish judges, who feared that they would be subjected to disciplinary proceedings if they decided against the Polish state in cases that were pending before them, and who asked whether the Polish system for judicial discipline was in accordance with Article 19(1) TEU. However, the European Court of Justice ruled that these questions were inadmissible since the disputes in the main proceedings – relating to public subsidies and a criminal procedure – did not show any link to Union law. ⁹⁴ With this judgment, the Court more clearly delineated the procedural access to the protection of Article 19(1)(2) TEU and indicated that even in cases that question the compatibility of domestic measures with the principle of judicial independence there must still be a connecting factor between the dispute in the main proceedings and the provisions of EU law to which the question in the preliminary reference relates. ⁹⁵ In other words, Article 19(1)(2) TEU does not allow a domestic judge to ask purely abstract questions concerning the compatibility of pieces of domestic legislation with the principle of judicial independence without indicating how they are relevant to the case before him or her. ⁹⁶

This section has shown that other international legal orders do safeguard the subjective right of judges to their own independence in their case law. The UN Human Rights Committee and the Inter-American Court of Human Rights incorporate this right in the requirement of judicial independence as part of the broader right to a fair trial. The EU framework, in turn, offers domestic judges a way to safeguard their own independence as well. The autonomous requirement in EU law to safeguard judicial independence, coupled with the preliminary ruling mechanism of Article 267 TFEU, has provided every Union judge with a lifeline to the European Court of Justice in order to ask for protection. ⁹⁷

A right for judges to safeguard their own independence under the ECHR

The previous section has made clear that other international orders do offer domestic judges a right to protect their own independence. The logical next question is then whether a similar right should exist under the Convention. From the outset, it should be pointed out that an affirmative answer to that question is by no means self-evident. Judicial independence is seen by some as a structural safeguard for the judiciary as a whole, rather than a right of individual judges. ⁹⁸ In other words, independence is then understood as a characteristic of the judge as a body of public power, rather than the individual. If the Court were to read a subjective right to judicial independence in Article 6 ECHR, it would scramble the – albeit already rather blurry – ⁹⁹ distinction between the public post and the individual rights. ¹⁰⁰ Though this argument should not be swept aside in too cavalier a fashion, it is argued there that the Court should nevertheless acknowledge such a right under Article 6 ECHR.

To substantiate this claim, it is worthwhile briefly turning back to the EU legal order. The main reason for the European Court of Justice’s recent emphasis on judicial independence and the importance of ‘judicial self-defence’ is the crucial position that domestic courts take up within the Union’s constitutional framework. It is up to them to provide effective remedies to individuals and to uphold the rule of law within the EU. ¹⁰¹ Clearly, that is a role they can only properly fulfil when they are sufficiently independent. The correct application of Union law and the right to effective judicial protection of individuals cannot be ensured when the independence of domestic judges is not guaranteed. ¹⁰²

This same reasoning can be applied to the Convention without many difficulties. ¹⁰³ According to the principle of subsidiarity, which has recently been explicitly inserted into the Convention preamble, ¹⁰⁴ it is first and foremost incumbent upon the Contracting Parties to safeguard the Convention rights. ¹⁰⁵ On this point, domestic courts play a crucial role. They are in a position to enforce the Convention standards in national disputes and to assume an essential role as compliance partners. ¹⁰⁶ Exactly as in the EU, domestic courts are the foot soldiers in the enforcement of the Convention. ¹⁰⁷

However, this privileged position in the enforcement mechanism of the Convention presupposes that the domestic courts operate in an institutional framework that guarantees their impartiality and independence. The idea of subsidiarity is premised on the engagement in good faith with the Convention principles by the domestic actors. ¹⁰⁸ In states where judicial independence is under threat, this application in good faith may be called into doubt. In other words, the weakening of domestic courts will almost inevitably lead to a weakening of compliance with the Court’s case law at a domestic level. ¹⁰⁹ To build upon the words of judge Sicilianos, how can one hope that persons involved in court proceedings will enjoy the right to an independent judge, or in fact any fundamental right, if judges themselves are not afforded safeguards capable of ensuring that independence? ¹¹⁰ In that sense, giving domestic judges a way to safeguard their own independence can be understood as a way to safeguard the conscientious application of Convention standards at the domestic level, which is an essential prerequisite for the application of the subsidiarity idea. ¹¹¹

Moreover, understanding Article 6 ECHR as encompassing a right for judges to their independence would allow the Court to more convincingly address cases in which the domestic authorities endanger the independence of the judiciary. As shown above, the current state of affairs forces judges that challenge such measures to frame their complaint in terms of other substantive Convention rights. This, in turn, implies that the Court cannot clearly deal with one of the main underlying issues of the case. In this sense, a subjective right to independence would give the Court an instrument to more appropriately address complaints that challenge domestic measures attacking the independence of judges and with it, to better grapple with one of the most serious challenges at the moment within the European legal sphere. As was pointed out by judge Sicilianos, ¹¹² this would also be most in line with the idea of the rule of law, ¹¹³ which forms one of the foundational principles of the Convention and is inherent in all its provisions. ¹¹⁴ Such an understanding of Article 6 ECHR is especially important for those instances where there are no effective domestic remedies available to the judges in question, either because the domestic legal order does not provide them, or because those remedies are themselves not independent. In that regard, the European Court of Human Rights could be seen as providing – somewhat similar to the European Court of Justice – an external lifeline for the judges.

Connected to this, it should be pointed out that a subjective right to independence would put more emphasis on the independence of the individual judges instead of the independence of the judiciary as a whole. While these two dimensions are clearly connected, they do not fully overlap, and an institutionally independent judiciary is not a watertight guarantee of independence on an individual level. ¹¹⁵ In fact, a strong institutional independence of the judiciary may even lead to a climate that endangers the independence of the judges on an individual level, for example due to pressure coming from high-ranking judges. ¹¹⁶ The introduction of a subjective right to independence for judges would lead to a stronger protection at the individual level, irrespective of the institutional context. In this sense it would not only better protect judges against pressure from inside the judiciary, but also make them more resilient against attacks on the independence of the judiciary as an institution. ¹¹⁷

The above has set out several arguments why the Court should acknowledge a subjective right for judges to their independence under the Convention. A second question, then, is how such a right could be read into Article 6(1) ECHR. In this regard it is important to first point out that the UN Human Rights Committee and the Inter-American Court of Human Rights have read such a right into Article 14(1) ICCPR and Article 8(1) of the Inter-American Convention on Human Rights respectively, which are drafted in a very similar fashion to Article 6(1) ECHR. Neither of these provisions expressly enshrine a right for judges to enforce their own independence. Rather, like Article 6(1) ECHR, both are framed in terms of everyone having the right to a fair hearing by an independent and impartial tribunal. ¹¹⁸ There is not immediately anything preventing the Strasbourg Court from applying the same reasoning, and from reading a subjective right to judicial independence for judges into the existing text of Article 6(1) ECHR.

It would appear, moreover, that such a new dimension of the principle of judicial independence could easily be integrated into existing case law. The abovementioned four criteria to assess whether a body is sufficiently independent can equally well be applied in such cases, the only difference being that it will be a judge setting out his or her own situation instead of one of the parties to the proceeding questioning the independence of the tribunal that decided their case. The principles regarding internal judicial independence can easily be applied to that kind of case without any difficulties. It might even turn out to be easier for judges to prove certain issues concerning their own independence, for example pressure that was put on them by certain people, than for normal parties to the proceedings. It would thus appear that acknowledging a subjective right for judges to their own independence would not raise many difficulties for the Court and its jurisprudence.

Nevertheless, one critical issue in this regard will be to decide exactly at what point there is a violation of the right to independence, which is an issue that the EU legal order is struggling with as well. ¹¹⁹ A subjective right to judicial independence should not be (ab)used as a means to challenge trivial issues or well-functioning systems of judicial accountability. ¹²⁰ It is commonly understood that judicial independence, despite its crucial importance, cannot be seen to imply an absence of judicial accountability. ¹²¹ This has also been indicated by both the European Court of Human Rights and the European Court of Justice. ¹²² Seen in that light, it would seem advisable to subject such a right to a severity threshold. In that regard, the threshold that the Court introduced in the Denisov judgment may provide some guidance. ¹²³ Another – somewhat more radical – option would be to use the inadmissibility ground of no significant disadvantage, enshrined in Article 35(3)(b) ECHR. Notably, such a threshold may also be seen as mitigating the abovementioned blurring of the divide between the public post and the individual right.

Another novel question that would arise is who exactly can be seen as a judge and would thus be able to invoke this right to their own independence. As yet, the Court has not clarified the notion of ‘judge’ in its case law. ¹²⁴ The most obvious way to flesh out this concept would be to look at the notion of the tribunal, since Article 6(1) ECHR makes mention of ‘an independent and impartial tribunal’. The Court has, moreover, on several occasions stressed the link between the notion of tribunal and independence. ¹²⁵ According to long-standing case law of the Court, the ‘tribunal’ is an autonomous concept, ¹²⁶ which is broader than a court of law of the classic kind, integrated within the standard judicial machinery of the country. ¹²⁷ Rather, the Court has adopted a substantive understanding of the term. A tribunal is any body that determines matters within its competence on the basis of rules of law, following proceedings conducted in a prescribed manner, ¹²⁸ resulting in a binding decision. ¹²⁹ Recently, the Court has clarified that the mere fact that a court does not have the same powers as a court called upon to examine the merits of the case, for example when it rules in pre-trial proceedings, cannot be taken to mean that this court is not a ‘tribunal’ under Article 6(1) ECHR. ¹³⁰ Accordingly, the notion of judge under the Convention could be interpreted as any person who has a decision-making function for the disputes that arrive before a body that can be seen as a ‘tribunal’ under the Convention. This would mean that the subjective right to independence would extend to people outside of the classic courts within a state. Such an understanding of the notion of judge would also lead to the most consistent application of the principle of judicial independence under the Convention.

The issues discussed here will permeate the Court’s case law for years to come. Over the course of the last few years, the Court has increasingly seen cases being lodged by domestic judges who are hoping to safeguard their own independence, and many other such cases are pending at the moment. ¹³¹ The way in which the Court responds to the issues that were raised in this text may change the way in which such cases are decided and could have an effect on the European judicial space as we know it. If the Court were to conclude that there is a subjective right to judicial independence in Article 6(1) ECHR, it would join a broader development in the international legal landscape. Such a decision would put an undeniable focus on the vital position that domestic judges take up within the Convention system and provide them with a crucial lifeline.

Conclusion

For scholars who are interested in constitutional law and human rights law, these are very interesting times. The deplorable path that some European countries have embarked upon has led to some ground-breaking developments in the case law of the highest courts in Europe. The most spectacular of these is probably the development of an autonomous ground to assess judicial independence within the European Union. ¹³² However, equally remarkable changes have taken place in other topics, for example the right to a tribunal established by law. ¹³³

One area in which the case law of the European Court of Human Rights has been unaltered since its origins is the subjective right of judges to their independence. This article has shown that, despite the evolution that the principle of judicial independence has undergone in the Court’s case law, it does not yet offer judges the possibility to enforce their own independence. This state of affairs has forced domestic judges to frame their complaints in terms of other, substantive Convention rights, often via a rather contorted reasoning. Nonetheless, several other international jurisdictions do provide for such a subjective right of judges to their own independence. In this light, this article has argued that it is time for the Strasbourg Court to do the same. As has been shown, such a right could be integrated into the existing body of case law without many difficulties. Taking this step would greatly improve the international protection of domestic judges as crucial actors in the enforcement of the Convention standards and would allow the Court to deal more convincingly with one of the most serious current challenges in Europe.