Towards a European Standard for Judicial Independence?

The concept of an independent tribunal within the meaning of article 6 of the European Convention on Human Rights (hereinafter: ECHR) has been discussed in Chapters 2 and 3. The institutions concerned with the interpretation of the ECHR, the Commission and the Court, have not provided an exact definition of the concept of judicial independence. The case law has mostly developed on a case-by-case basis. The Court has indicated what factors are important for judicial independence but it is sometimes hard to determine the specific importance of each individual factor and the absolute minimum standard which must be met. The conclusion on judicial independence depends on a complete set of facts, including a court’s composition and its functioning within the legal framework as well as in practice. In the assessment a proven lack of independence may be offset by certain guarantees of independence. The usual factors that the Court considers in determining whether a judicial body can be considered as ‘independent’ are the way in which its members are appointed, the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. The tribunal must avoid even the slightest appearance of lack of independence. These factors relate to both the legal status and the functioning of judges. The Court thus makes a distinction between actual independence and objective or structural independence, i.e. whether a tribunal appears independent at first sight. This latter criterion is by far the most stringent.

The Court regards functional independence as the most important factor. Fundamental to functional independence is the absence of any legal authority of the other branches of government, especially the Executive, to give directions or instructions on the execution of judicial functions. The emphasis is on the judge's freedom to form his or her own opinion. Indirect outside pressures on a judge also affect his or her functional independence. Even the risk that a judge may be influenced in his or her judicial functioning by one of the other branches of government may constitute such an indirect outside pressure, so even the appearance of lack of independence must be avoided. Such a risk, however, should be objectively justified. Hence, judicial independence within the meaning of article 6 ECHR has a wider meaning than the mere lack of interference with the judge’s adjudicatorfy role through issuing orders or using other powers. The risk of a judge being influenced in his or her conclusion may also occur if a judge acting in a non-judicial function is in a subordinate position vis-a-vis the Executive. The mere possibility of him or her being subject to directions in that other function may create an appearance of lack of independence. The underlying idea is that his or her lack of independence in another position may have (negative) consequences for the performance of his or her judicial function, or at least that the public may have cause to fear so. Also the introduction of new legislation, pending a judicial procedure, which would interfere with its outcome where there is no general interest at stake may infringe the right to a fair trial, although the Court has not specifically classified this under the heading of judicial independence (par. 3.5.5.).

As long as a judge’s freedom to reach his or her own decision is not jeopardized, the Court will not readily conclude that a tribunal lacks independence, even though the protection of a judge’s legal status may be limited. As regards a judge’s legal status the Court's focus of attention is on his or her irremovability, that is the impossibility of other branches of government dismissing a judge prematurely or taking him or her off a case. This criterion is satisfied when irremovability is put into judicial practice. The Court considers the way in which judges are appointed and the duration of their term of office considerably less important. An appointment for the duration of three years may be sufficient, depending on the circumstances. In my opinion, by its lenient attitude towards the legal status of judges, the Court fails to acknowledge the connection between their legal status and their functional independence. Interference in a judge’s legal status may compromise his or her proper functioning. The Court could emphasize more that both aspects of independence must be fulfilled and, moreover, should specify the standards for personal independence.

A tribunal within the meaning of article 6 ECHR should be independent from both the Executive and the Legislature. The requirement of independence in principle applies to each individual member of the tribunal. Lack of independence of one or more judges in a full court may lead to the entire ‘tribunal’ being found to lack judicial independence within the meaning of article 6 ECHR, as the Court judgment always applies to the tribunal as a whole. However, in some cases tribunals consisting of both lay and professional judges, with guarantees of independence only applying to the professional judges, may satisfy the requirements of article 6 ECHR.

In addition, according to the Court the members of a tribunal must be independent of the parties to the case. In my opinion this requirement refers to judicial impartiality (par. 3.8.4.) rather than judicial independence. It is this element in the Court’s case law that blurs the distinction between independence and impartiality. Although closely related, these notions have different meanings. The distinction between independence and impartiality may become clear by looking at the nature of the legal relationship. If the structure and position of a tribunal vis-a-vis the other branches of government raises concerns, for instance because one or more members of the tribunal are subordinate to an executive organ, its independence is at stake whereas a tribunal’s impartiality is at issue if the person of the judge and his or her conduct towards one of the parties to the case or the legal issue in dispute is dubious. An example of the latter is the situation in which a judge holding a subordinate position within a private organisation is also a party to the case -which is not uncommon where lay-judges are concerned- or the situation in which a judge serves in multiple roles in legal proceedings. These situations directly affect the open-mindedness of the individual judge in reaching a decision in the particular case. Incidentally, independence and impartiality may overlap if one of the parties to the case is a governmental organ, for instance in Administrative Law cases.

It is unknown what the Court’s stance is on independence between judges themselves, i.e. within the same tribunal (par. 3.5.6). Thus far, cases in which some form of interdependence existed did not concern the hierarchy between judges from the same tribunal acting in their capacity of judges, but the hierarchy between judges acting in other capacities. At the very most, it could be argued a contrario that hierarchic relations between judges when acting as such may contravene article 6 ECHR. However, it is uncertain whether the Court is prepared to rule accordingly. The advisory bodies of the Council of Europe, the Consultative Council of European Judges (hereinafter: CCJE) and the Venice Commission have explicitly stated that judges acting as such should be independent from fellow-judges within the same chamber or tribunal, its President and other (higher) tribunals.

Since the Court rulings only apply to a particular tribunal in a particular case, rather than the organisation of justice in a Member State as a whole, little can be said about the relationship between the Judiciary and the two other branches of government on the microeconomic level. The Court does not demand a separation of powers as such, although it does acknowledge that this concept has gained importance in its case law. It also follows from the notion of ‘outside pressure’ mentioned earlier that a high level of separation of powers is essential since otherwise the functional independence of a tribunal or an individual judge may be compromised.

Remarkably, the Court has made virtually no reference to the recommendations on judicial independence or the organisation of justice made by the Committee of Ministers, the Consultative Council of European Judges or the Venice Commission. These recommendations do not contain hard and fast rules that are binding upon the Member States and the Court, but should instead be regarded as ideal standards that Member States should aim to achieve. In general, the standards for judicial independence set out in the recommendations are more stringent and detailed than those applied by the Court, which focuses on the minimum standards laid down in article 6 ECHR.

In Europe, there seems to be a reasonable level of consensus as to what elements are essential for judicial independence. These include the way in which members of the tribunal are appointed, the duration of their term of office, the existence of guarantees against unfair dismissal or transfer, a statutory salary, decisional independence and safeguards against outside pressures.

Much less consensus exists, however, as to how each of these elements should be incorporated into the respective domestic laws of the Member States. Often, there are many different ways to satisfy the requirement of judicial independence. The Court leaves the Member States some margin of discretion, allowing for their legal traditions. The way judges are appointed probably illustrates this best. It hardly seems to matter by whom a judge is appointed, begging the question whether this element is of any importance for judicial independence at all. However, there is a general consensus that judges must be appointed on the basis of objective selection criteria relating to qualification requirements such as integrity, competence and efficiency. The existing differences in the respective systems of the allocation of cases to and within tribunals in the Member States are another example. In Germany, cases are randomly assigned on the basis of a draw, which is seen as a prerequisite for judicial independence, since in this way not even the presidium can exert influence on the outcome of a case by assigning it to a particular judge. In France, on the other hand, cases are assigned to a judge on the basis of his or her experience and competence. Again, there seems to be a kind of European consensus that the assignment of cases should take place on the basis of previously established objective criteria (par. 5.6.3). It is also crucial that judges should never be subject to instructions from any of the other branches of government in the performance of their adjudicatory functions, as this obviously makes it impossible for them to form an opinion freely. That is the essence of judicial independence. It is also the absolute minimum standard. Yet, it is not a guarantee for (functional) judicial independence. Individual judges and tribunals may also be indirectly pressurized by measures relating to their legal status or to the judicial organisation respectively. These kinds of measures, or the indirect pressure resulting from them, could in certain circumstances constitute a breach of judicial independence, amongst other reasons because they do not give an appearance of independence. The Council of Europe thus on the one hand gives a broad interpretation to the concept of judicial independence, namely the absence of outside pressures on judges, in appearance as well as in fact, whether or not originating from the other branches of government, while on the other hand it gives the Member States discretion to organise their judicial system as they see fit, but in compliance with article 6 ECHR.