‘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

* 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.

2 S. Shetreet & J. Deschênes (eds.), Judicial Independence – the Contemporary Debate, Dordrecht: Martinus Nijhoff, 1985, p. XV.

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).

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candidate 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 freedoms and judicial independence. Sometimes an effective democratic system is added as a fifth

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.

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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 bound by domestic law that is in breach with international ius cogens).13 This should not be

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.

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

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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, non-applicable 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 judicial independence: independence vis-à-vis which authority? How has this rather elusive concept been defined in the literature?

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.

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Judicial independence is often analysed by way of distinguishing different components:

Functional independenceFunctional 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 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:

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.

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“[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 independencePersonal 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 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

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.

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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).

Paragraph 2 Judicial independence in the case-law of international human rights bodies

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.

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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;(c) giving judges security of tenure(d) preserving the rule of law […]” 24

23 Adopted on 12 April 1984 (21st session), to be found via www.unhchr.ch/tbs/doc.nsf.

24 IACHR Annual Report 1992-1993, p. 207 (OEA/Ser.L/V/II.83 (1993)).

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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 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

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).

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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 quasi-official 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 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;

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.

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- 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 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,

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.

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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

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 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).

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).

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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

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

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.

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

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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 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

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.

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.

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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 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

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.

45 ECHR, 30 April 2002, Kleuver – Norway (appl. no. 45837/99). Complaint declared inadmissible.

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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 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

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.

48 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).

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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) 12Recommendation 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 JudgesA 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) Other documentsIn 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

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).

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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 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

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.

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

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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.”

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

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).

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.

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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 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

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 quasi-political campaign).

61 Appointment by Parliament is by some commentators even described as ‘desirable’ (‘erwünscht’); see M.E. Villiger, Handbuch der Europäischen Menschenrechtskonvention, Zürich: Schultess, 1993, p. 244. See also 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. 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).

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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

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”.

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 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.

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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 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 merit-selection system.” 71

Legal systems whereby members of the judiciary in general are appointed by way of elections are

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 van het recht van België en Nederland , Deventer: Tjeenk Willink, 2001, p. 14.

71 UN doc. CCPR/C/79/Add. 50.

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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, 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

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.

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.

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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

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)

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 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

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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 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

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 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).

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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 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

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).

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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 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

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”.

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

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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 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

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).

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).

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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

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

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 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).

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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 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

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 ***.

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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 re-appointment 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 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 dis-missal 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.

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.

107 ECHR, 26 September 1995, Vogt – Germany (Series A-323).

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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

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:

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.

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).

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“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

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

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 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.

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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, follow-ing legal studies and training, obtained the general qualification to exercise the func-tions of judges. In the exercise of their function as judges, they enjoy the full guaran -tees 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 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.

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).

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”.

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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 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

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 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 A-331), §§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

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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 ex-ercise 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

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?

were not exhausted (Article 35 ECHR).

121 ECHR, 28 June 1984, Campbell and Fell – United Kingdom (Series A-80), §80. The Inter-American 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 A-84), §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 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.

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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

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

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).

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).

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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 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

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, 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).

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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 con-firmed 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

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

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 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.

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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 recommenda-tion, 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

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:

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.

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

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“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 case-law 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 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

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.

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).

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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 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

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 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 A-117), §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.

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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 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

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).

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 case-law, 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.

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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

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

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 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).

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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 ***).

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

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).

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.

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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 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.”

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.

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 ***.

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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 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

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.

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,

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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.

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

“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.

175 See, for example, Principle 1.6 of the European Charter on the Statute for Judges (Strasbourg, 8-10 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. MJU-22 (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

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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.

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

(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".

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

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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

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

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).

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).

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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 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

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).

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.

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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

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 Co-operation at a European level between those bodies responsible for training should

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.

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

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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 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

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).

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).

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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-à-vis 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 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

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).

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-301-B), §§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).

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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

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

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.

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.

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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.

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 long-standing 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 suitAs 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

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".

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.

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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 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 procedureA 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 ***.

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.

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.

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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 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-à-vis 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

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. 12-13; 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.

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”.

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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

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 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).

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

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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 standpointsThe 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:

"[...] 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 case-law 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

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”).

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).

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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 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

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”.

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.

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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 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

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.

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.

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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 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 guidelinesAnother possibility is that guidelines (drawn up by members of the judiciary) exist in order to co-ordinate 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

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.

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 ***.

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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

(d) Judicial independence and internal distribution of casesThe 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

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.

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

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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 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.

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”.

242 CCJE-GT (2002) 7, p. 32.

243 ECHR (admissibility decision), 8 February 2001, Pitkevich – Russia (appl. no. 47936/99).

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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

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

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 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.

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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 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 authoritiesThe 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

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 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

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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.

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

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.

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).

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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 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).

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.

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Criminal liability of judges

Judges who in the conduct of their office commit a crime (for example, accepting bribes) can-not 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 acceptable or to be encouraged:

i) 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;

ii) 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 remarksIn 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.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.

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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 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

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).

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

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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 (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

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.

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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 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

271 ECHR, 29 April 1988, Belilos - Switzerland (Series A-132), §67.

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).

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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 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 di-rected 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 case.280 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.

275 ECHR, 8 June 1976, Engel a.o. - Netherlands (Series A-22), §89.

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.

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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 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

281 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.

282 EComHR, 22 May 1995, Heudens - Belgium (appl. no. 24630/94; unpublished).

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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 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,

283 UN doc. CCPR/C/79/Add. 79.

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.

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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 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

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.

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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 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 non-judicial 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 case291 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.

290 ECHR, 8 June 1976, Engel a.o. - Netherlands (Series A-22), §§30 and 89.

291 ECHR, 16 December 2003, Cooper – United Kingdom (appl. no. 48843/99).

292 ECHR, 16 December 2003, Grieves – United Kingdom (appl. no. 57067/00).

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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 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]

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'.

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[...] provides a definite assurance [...]" 295

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 de-gree of representation by professional judges.301 I have my doubts whether this can be concluded

295 ECHR, 23 June 1981, Le Compte, Van Leuven & De Meyere - Belgium (Series A-43), §58. See 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

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on the basis of the scarce amount of case-law. Further interpretation of this criterion in the Stras-bourg 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

Menschenrechtskonvention (EMRK), Zürich: Schultess, 1993, p. 244: "[...] unter den Mitglieder des Gerichts müssen 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.

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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 in the Sramek case.311 The complaint concerned the participation of civil servants in the judicial

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.

311 ECHR, 22 October 1984, Sramek - Austria (Series A-84), §39. See also EComHR, 3 July 1985,

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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 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

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 A-331), §69.

314 ECHR, 22 November 1995, Bryan – United Kingdom (Series A-335-A), §38.

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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

Former President of the European Court of Human Rights Wiarda wrote in 1988 that arbitration

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).

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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

The word 'rigorous' may well be explained by the fact that recourse to arbitration was compulsory

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; D&R 38, p. 18), §33.

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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 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

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.

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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 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

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) well-founded. 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).

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.

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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.

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.

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.

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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 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

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 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

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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 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.

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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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.

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

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.

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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 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

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 […]”.

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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Judicial independence does not in practice seem to be an important element in the body of case-law 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.

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