Definitions of judicial independence

In almost all (international) rules and regulations, recommendations and case law on judicial independence, functional independence has a predominant place. This mainstay of judicial independence is not open to discussion. Consequently, a judge in his adjudicatory role can form his or her opinion about the facts of a case and the applicable law freely without being subject to instructions or guidelines from the other branches of government. On the basis of the Court’s case law any indirect influence or the threat of indirect influence on a judge’s opinion is considered to infringe judicial functional independence. In accordance with the JO Act the adjudicatory role is deemed to include the procedural aspects, the assessment of the legal issues in dispute and the decision in the case or a category of case. More precisely, these include ascertaining the facts, evaluating evidence, writing decisions, giving reasons for a decision and applying procedural rules in the particular case or category of case.

Guarantees as to a judge’s legal status are a prerequisite for his or her independent functioning. Personal independence can only be properly defined by summing up the elements that are considered to form part of it. These include the way in which judges are appointed, on the basis of objective material criteria and involvement of the judicial body concerned, the duration of a judge’s term of office, preferably for life, the rules applying to suspension and dismissal on the basis of objective criteria, disciplinary supervision by peers, transfer – a judge may not be taken off a case without a reasonable cause – and statutory regulation of their legal status, including their salary. The establishment of a judge’s legal status for the most part in the Constitution and in laws ensuing therefrom prevents the Executive from pressurizing judges through interfering with their legal status.

Organisational independence too, is a prerequisite for the independent functioning of a judge. If a judicial organisation interferes with the functioning of its judges in their adjudicatory role, the judges themselves should be made responsible for the functioning of the organisation. Autonomous organisation of tribunals and judicial independence are therefore closely related (see Boone 2006). There is virtually no ECHR case law on this issue. However, it follows from the general consensus on the necessity of guarantees against outside pressures on judges, that the competencies attributed to the other branches of government are subject to the limitations required for the proper organisation of justice. ECHR case law makes it plain that it is not only pressure on a judge in his adjudicatory role which may give the appearance of a lack of independence but that pressure on a judge without any connection to a particular case may also have this effect..

Organisational independence should be achieved first and foremost by leaving the courts, as well as the judicial organisation as a whole, a certain level of independence vis-a-vis the other branches of government. In this respect, the judicial organisation’s control and management structure is of direct importance for judicial independence. Examples of this are the independent operation of courts, the courts’organisation and working methods, the allocation of cases and their financial costs. Moreover, this type of independence follows from the doctrine of the separation of powers. Indeed, judicial independence has traditionally been regarded primarily as a refinement of the doctrine of the separation of powers. It would be unwise not to acknowledge this.

Secondly, organisational independence means that certain (ancillary) functions are incompatible: Ministers and Members of Parliament should not be allowed to serve as judges simultaneously. Indeed, this would raise concerns about organisational independence, even though a judge who is also a member of parliament can perform these functions completely independently of each other. Incompatible functions must be acknowledged as such in order to guarantee a separation of powers. On the basis of article 6 ECHR also, the appearance of lack of independence created by multiple functions matters.

Finally, some other aspects of judicial independence within this threefolddivision as mentioned in legal works will be addressed below.

The term individual independence refers to the independence of a person, i.e. the individual judge, without indicating the nature of that independence or from whom independence exists. Individual independence may have different meanings. An individual judge enjoys an independent legal status and has to be functionally independent, and this is equally true for a tribunal. The requirement for judicial independence thus clearly also applies to individual judges. Both forms of independence refer to the relation between the individual judge on the one hand and the public and institutions of the other branches of government on the other. Yet, some people would associate the term individual independence with the independence of a judge within his or her own division, tribunal, or the entire judicial organization. This leads me to discuss the concept of internal independence.

Internal independence can be defined as the relationship between judges themselves. Legal literature on this subject varies greatly. In my opinion it would be useful to simplify the discussion by looking at the relationship between a judge and his fellow-judges based on the three categories mentioned earlier: functional independence, personal independence and organisational independence.

Functional independence, the backbone of judicial independence, applies to all relationships at all levels. A judicial institution in its adjudicatory function may not receive instructions from others which would influence judicial opinion. This aspect of independence applies equally where the relationship between judges is concerned. The law confers jurisdiction on single judges or full courts. The judicial body (chamber) concerned is therefore legally competent to decide in a particular case on the basis of the law, without any further instructions from anyone else. Therefore, in my opinion it is undesirable that judges be strictly bound by policy, guidelines and rules made by judges. This also follows from the articles 11 and 12 of the General Provisons Act: a judge is only bound by the law. Judicial policy rules may be useful as long as judges may deviate from them if necessary. Judicial deliberation in the chambers falls outside the scope of this remark. An individual judge sitting in a full court is independent from his fellow-judges so far as his contribution to the hearing, his opinion and decision in the case are concerned, but even though an individual judge may have a different opinion from the majority opinion of the full court, the court speaks with one voice in external communications. In the end it is the tribunal that decides the case.

Personal independence, by definition, relates to the individual judge. However, a judge’s personal legal status is not entirely independent from fellow-judges. There are various internal control mechanisms within the judicial organisation, such as disciplinary measures, dismissal and performance reviews. These control mechanisms do have built-in safeguards against arbitrariness through procedures laid down in advance and the introduction of objective criteria.

Organisational independence refers to both tribunals and the judicial organisation as a whole. This concept by definition does not refer to the independence of an individual judge vis-a-vis his or her fellow-judges, as long as it does not involve a judge’s adjudicatory role. The organisation of the operational control and management of courts, a component of the judicial function, can thus be designed in such a way that not every single judge has a decisive say in matters. Thus, there is no room for internal independence within this aspect of independence.

Actual independence is not a separate type of judicial independence. The ECHR requires statutory independence as well as independence in practice. In addition to statutory guarantees of judicial independence and the absence of legal powers of other government branches that could infringe this independence, actual independence is also necessary. A member state that dismisses a judge - in a corrupt system - ‘solely’ because the judge’s decision is not favourable to it, would surely be found to be acting in breach of article 6 ECHR.

The concepts of independence and impartiality touch upon each other. One of the objectives of this research has been to keep these concepts as clear as possible by distinguishing them where possible. The Strasbourg institutions have only been modestly successful in this respect, giving rise to confusion in legal articles on these concepts. Based on extensive study of case law, rules and regulations and legal reading on the subject, an attempt will be made below to provide a systematic distinction.

Some overlap is inevitable since both independence and impartiality are directly related to the judge being free to form his or her own opinion. I would argue that the distinction between the two concepts is clear from the answer to the question ‘What prevents a judge from freely deciding a case?’

Where independence is concerned (statutory) competencies are at issue: Is the judge independent from a legal perspective -in the sense that others lack powers to instruct him or affect his legal status so that they can directly or indirectly influence judicial opinion- and thus entirely free to form his or her own opinion on the basis of the law. Dependency mainly exists in institutional relationships, as in relationships between government bodies. Judicial independence is about the relationship between the judge, appointed by the government, and the other two branches of government. Secondly, arbiters, lay-judges, experts or members of the jury may have a dependent relationship, whether personal or professional, with an individual party to a case, for instance an interest group that has appointed them and pays for their services. I think that this second category of relationships particularly has caused confusion in Strasbourg. If it is not always kept in mind that judicial independence applies to the relationship of the judge vis-a-vis the other branches of government, the concept quickly loses its distinctive meaning in relation to other terminology used to indicate judicial neutrality or typical features of the judicial function (see Bovend’Eert 2008).

Where impartiality is concerned the issue is that of a judge being generally unbiased: Is the judge free to give his or her own decision with an open mind and on the basis of the law without being influenced by external factors? A judge may not let himself be influenced by personal interests in the outcome of the case, a preference or affection for other persons, such as one of the parties to the case, other persons with an interest in the case, fellow-judges, certain political, religious or other opinions other than those based on the law. Prejudices may exist in any relationship and as such are unrelated to power exercised over a judge. Close ties between two persons wholly independent from each other may cause a judge to be biased, simply because a judge may favour one party over the other, or, conversely, strongly dislike one of the parties. The issue of a judge feeling free to give his or her own decision, sometimes referred to as inner independence, can also be classified as judicial impartiality. This issue is also unrelated to competence. Psychological or social pressure may cause a judge to reach a different decision to one based on the law and the dictates of his own conscience. Pressure may originate from the media, society, pressure groups, family and friends or other branches of government, for example politicians may react to a judicial decision. Only if such (psychological) pressure can be attributed to the other branches of government trying to exert influence on a judge can this be regarded as an infringement of judicial independence. The degree to which a judge has actually been influenced is very hard to establish, since it is clearly impossible to see inside a judge’s mind. A judge who is completely resistant to influence, even in his unconscious mind, does not exist. That is why attention is directed towards objective factors that may indicate bias, such as a judge fulfilling a double function or having a close relationship with one of the parties to the case.

In my opinion there is a clear difference between the two concepts. Independence relates to the absence of direct or indirect influence, or the threat thereof, through the other branches of government exerting their powers. Impartiality relates to the absence of direct or indirect influence on a judge in forming his opinion. This distinction does not mean that judicial dependence and bias may not both be present in a particular case, for example if a government institution of which the judge is a dependent is a party to the case.