Norms on Judicial
in European and International Law
Summary: As the most relevant mandatory norms affecting judicial independence at European level are those enshrined in Article 6 §1 (first sentence) of the European Convention on Human Rights, this chapter tries to summarize the most important judgements by the Court of Human Rights on this subject. The issue is deepened under different viewpoints, and namely: (a) Relations to the Executive; (b) Powers of the Executive to Appoint and Influence Judges; (c) Composition of Disciplinary Panels for Judges; (e) Relations to the Legislature. After a judgement published in 2018 also the European Court of Justice could have a say on the question whether in EU member states a given legal system concretely complies with the principles of independence and impartiality of the judiciary. Finally a brief view is provided over some international non-European mandatory norms on the independence of the judiciary.
Contents: 1. Article 6 § 1 of the European Convention on Human Rights
and its Interpretation by the European Court of Human Rights: Relations to
the Executive. – 2. Article 6 § 1 of the European
Convention on Human Rights and its Interpretation by the European Court of
Human Rights: Powers of the Executive to Appoint and Influence Judges. – 3. Article 6 § 1 of the European Convention on Human Rights
and its Interpretation by the European Court of Human Rights: Assessing the
The most relevant binding rules affecting judicial independence at European law level are those enshrined in Article 6 §1 (first sentence) of the European Convention on Human Rights  , according to which “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Unfortunately, no provisions of the said Convention describe what an “independent tribunal” should look like. For this reason, the European Association of Judges, the Regional Group of the International Association of Judges (I.A.J.)  , is currently trying to persuade the Council of Europe of the need to adopt a protocol to the said Convention, or at least to launch a new international agreement or convention, which defines in a binding way the minimum acceptable standards of judicial independence in member States, on the basis of the rich panoply of soft-law international documents currently available inside and outside Europe  .
Whilst judges and scholars around Europe are eagerly waiting for a binding definition of the rules concerning judicial independence, a crucial role is played by the European Court of Human Rights  , which actually has been called several times to decide whether, in a given case, a violation of the Convention had occurred on the basis of a judgment having been rendered by an allegedly non independent judge  .
First of all we have to point out that the Court has always underlined the role of the principles of judicial independence, and of the separation of power, as pillars of the rule of law  . In this framework it has stated that judges must be fundamentally independent from any kind of external influence from the Executive  , Parliament  or the parties to a given case  . Generally speaking, we can say that the principle of judicial independence has been affirmed by the Strasbourg Court in relation to the possible interference from the other two powers of the State (so called “external” independence), whereas—at least so far—no case appears to refer to the question of “internal” independence  .
We shall therefore deal first with cases concerning relations to the executive, and will deal secondly with the cases concerning the legislative powers.
In the first category of cases we see that special attention was given by the Court to the independence of the judicial activity in its function of interpretation of the law and its application and rejected claims that the government may dictate binding rules on how the law is to be read by the judge.
In Beaumartin v. France (24 November 1994)  a French citizen complained against a law (subsequently repealed by France) which allowed the Conseil d’Etat to rely on the official interpretation of international treaties given by the Minister for Foreign Affairs. The law had provided that the Conseil d’Etat, when dealing in its jurisdictional activity with provisions of international treaties that it considered insufficiently clear, could defer making a decision and ask the Minister for Foreign Affairs to advise on how to interpret the provisions of the treaties concerned. The Court of Human Rights observed that the law (now repealed) had provided that the minister’s involvement, which had been decisive for the outcome of the legal proceedings, was not open to challenge by an applicant. The Court of Human Rights observed that only an institution that has full jurisdiction, and which satisfies a number of requirements such as being independent from the executive and also from the parties, warrants the designation of “tribunal” within the meaning of Article 6 Para. 1 (art. 6-1), and that the Conseil d’Etat did not meet these requirements under that law.
In Chevrol v. France (13 May 2003)  (a similar case to the previous one) an applicant challenged the Conseil d’Etat’s practice of referring preliminary questions to the Minister for Foreign Affairs for interpretation of an international treaty. This practice meant, in the particular case, that, when the administrative court was called upon to give a ruling on the conditions governing the application of the reciprocity clause in Article 55 of the French Constitution, it was obliged to ask the Minister for Foreign Affairs to clarify whether the treaty in issue had been applied on a reciprocal basis and to draw the necessary consequences. The administrative judge had then to abide by the Minister’s interpretation in all circumstances. In this case also the Court of Human Rights noted that Article 6 § 1 had been violated.
According to the Court’s case-law, the way judges are appointed, or the way a panel of a given national court is composed, may also infringe the principle of judicial independence. However, even if, generally speaking, the mere circumstance that in a certain legal system judges are appointed by the Executive or the Legislature does not breach the principle of judicial independence, the Court requires that in any case, once appointed, judges do not receive any kind of pressure or instructions in the performance of their judicial tasks  . Having said this, we must point out that in more than one case the Court of Human Rights considered that there was infringement by the way the judicial body was composed.
In Ciraklar v.
Turkey (28 October 1998)  the Court of Human Rights held that it was understandable that a
civilian should be apprehensive about being tried by a bench of three judges
which included a regular army officer who was a member of the Military Legal
Service. The civilian was being prosecuted in a
In Pohoska v. Poland (10 April 2012)  the Court of Human Rights pointed out that the judge in that Polish case
had been an “assessor,” who in Poland was a particular kind of judge who was
subject to special powers of the Minister of Justice. The Minister could confer
on an assessor the authority to exercise judicial power in a district court,
subject to approval by the board of judges of a regional court, and for a
period not exceeding four years. The Minister could remove assessors, including
those who were vested with judicial powers. The Polish Constitutional Court
considered the status of assessors in its leading judgment of 24 October 2007,
finding that the manner in which Poland had legislated for the status of
assessors was deficient since it lacked the guarantees of independence required
under Article 45 § 1 of the Constitution which are substantially identical to
those under Article 6 § 1 of the Convention. As a result, the
3. Article 6 § 1 of
the European Convention on Human Rights and its Interpretation by the European
Court of Human Rights: Assessing the
The Court of Human Rights has been called upon several times to assess the compliance with Article 6 § 1 of disciplinary panels which issued sanctions against judges. The Court has affirmed many times that, in order to establish whether a tribunal can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and to their term of office, the existence of guarantees against outside pressures, and the question of whether the body has the appearance of independence  .
The decision of Volkov v. Ukraine (2013) is especially
relevant in this context where the composition (at the time) of the High
Council of Justice of Ukraine, as the disciplinary body of judges, was held as
not in compliance with Article 6 § 1 of the Convention, taken into account that
of the sixteen members of the Council who had determined Mr Volkov’s case, only
three had been judges elected by their peers. Furthermore, the Minister of
Justice and the Prosecutor General were ex
officio members of the Council  . The Court also noted that this case disclosed serious systemic
problems as regards the functioning of the Ukrainian judiciary, in particular
as regards the separation of powers. It urgently recommended
Similarly, in Gerovska Popčevska v. the former Yugoslav Republic of Macedonia (2016)  , relevant parts of an opinion given by the Venice Commission of the Council of Europe, and of the Magna Carta of the Consultative Council of European Judges, were quoted in the reasoning of the judgment in deciding that the composition of a judicial disciplinary body, was in violation of said Article 6 where one of the members was the minister of justice  .
In Kamenos v. Cyprus (2017)  the Court of Human Rights said that a disciplinary sanction inflicted on a judge was contrary to Art. 6 § 1 of the Convention because the Supreme Court and the Supreme Council of the Judiciary had had the same composition and the judges who had presided over the proceedings were the same individuals who had examined the witness statements which had been against the judge subject to the disciplinary proceedings, had referred the case to trial, had formulated the charges against him and had acted as a prosecution authority in the proceedings.
In Ramos Nunes de Carvalho e Sà v.
Coming now to the
relations between the judiciary and the legislature, we may cite Zielinski, Pradal, Gonzales and others v.
France (28 October 1999 (GC  , where the Court of Human Rights held that France had violated the
Convention, by retrospectively establishing or altering the law so as to
influence the judicial determination of a judicial dispute. The only exception
permitted for the retrospective alteration of the law applicable to an existing
dispute was cases in which such an intervention could be justified on
compelling grounds of the general interest. The Court therefore confirmed all
of its decisions in earlier cases, in which initially the principle was laid
down that the legislature must not interfere with the administration of justice
(Stran Greek Refineries and Stratis
Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B,
and Papageorgiou v. Greece judgment
of 22 October 1997, Reports of Judgments and Decisions 1997-VI), but introduced
the possibility that such interference could be justified on compelling grounds
of general interest (judgment of 23 October
In this case the
reason for the legislature’s intervention (section 85 of the Act of 18
January 1994) was primarily, if not exclusively, the fact that there was a
conflict of case-law, on a question of fact, between two trial courts, the
Colmar and Besançon courts of appeal. The latter court had ruled on a case
referred to it after a judgment of the Metz Court of Appeal had been quashed.
5. Protection of
The recent judgment
of the EU Court of Justice in Associação
Sindical dos Juízes Portugueses  has raised the problem of a possible protection of judicial independence
through EU mandatory laws. The Court applied, as a justiciable rule of law, a
clause in Art. 19,
The case originated
by the fact that the Portuguese legislature had temporarily reduced the
remuneration of certain categories of civil servants. Under implementing
administrative measures, the remuneration of the Court of Auditors’ judges was
also reduced. The ASJP, an association of Portuguese judges, acting on behalf
of the Court of Auditors’ judges, brought an action in the
The Court agreed
with the Advocate General regarding both the admissibility of the preliminary
reference and the scope of application of Art. 19,
Non-European Mandatory Norms on the
In relation to
countries other than those in Europe, we may mention the American Convention on
Human Rights (Adopted at the Inter-American Specialized Conference on Human
Rights, San José, Costa Rica, 22 November 1969), in which Article 8 § 1
provides that “Every person has the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial tribunal,
previously established by law, in the substantiation of any accusation of a
criminal nature made against him or for the determination of his rights and
obligations of a civil, labour, fiscal, or any other nature.” Infringements
against judicial independence can be brought before the Inter-American Court of
Human Rights  , which is an autonomous judicial institution based in the city of
At the worldwide
level we may refer to Article 10 of the Universal Declaration of Human Rights
(UDHR). Drafted by representatives with different legal and cultural
backgrounds from all regions of the world, the Declaration was proclaimed by
the United Nations General Assembly in Paris on 10 December 1948 (General
States that have ratified or acceded to the First Optional Protocol (currently 116 countries) have agreed to allow persons within their jurisdiction to submit complaints to the Committee requesting a determination whether provisions of the Covenant have been violated. For those countries, the Human Rights Committee functions as a mechanism for the international redress of human rights abuses, similar to the regional mechanisms afforded by the Inter-American Court of Human Rights or the European Court of Human Rights. The binding character of the above mentioned instruments allows the UN Human Rights Committee to issue decisions, which may be retrieved on the UN’s web site  . In particular, accessing the special data base  and using the search expression “independent and impartial tribunal”, all the materials and decisions on this subject can be easily viewed and retrieved.
 Available under the following URL: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005.
 For a review of them see Oberto, Judicial Independence and Judicial Impartiality: International Basic Principles and the Case-Law of the European Court of Human Rights, Riv. dir. priv., 2006, 485-547. On the subject of judicial independence see Rodriguez-Arribas, Sgroi, Abravanel, et al., L’indipendenza della giustizia, oggi. Judicial Independence, Today, Liber amicorum in onore di Giovanni E. Longo, Milano, 1999; Guarnieri and Pederzoli, La magistratura nelle democrazie contemporanee, Roma-Bari, 2002; Volpi, I consigli di giustizia in Europa: un quadro comparativo, in Albamonte and Filippi (ed.), Ordinamento giudiziario: leggi, regolamenti e procedimenti, Torino, 2009, 3-15; Piana, Judicial Accountabilities in New Europe, London, 2010, 49-69; Piana and Vauchez, Il Consiglio Superiore della Magistratura, Bologna, 2012; Gass, Kiener and Stadelmann (ed.), Standards on Judicial Independence, Bern, 2012; Oberto, Judicial Independence in its Various Aspects: International Basic Principles and the Italian Experience, 2013, http://giacomooberto.com/reportkiev2013.htm; Engstad, Lærdal Frøseth and Tønder (ed.), The Independence of Judges, The Hague, 2014; Sobrino, Il ministro della giustizia e i poteri dello Stato. Vicende e prospettive di una collocazione problematica, Napoli, 2015, 53-150.
list of cases concerning this peculiar aspect is available in Laffranque, Judicial Independence in Europe: Principles and Reality, in Engstad, Lærdal
Frøseth and Tønder (ed.), The Independence of Judges, 144-155. See also Oberto, Judicial Independence and
Judicial Impartiality: International Basic Principles and the Case-Law of the
European Court of Human Rights (
 Mosteanu and Others v.
 Sacilor-Lormines v.
 Sramek v. Austria, no. 8790/79, 22 October 1984; see also Ettl and others v. Austria, no. 9273/81, 23 April 1987.
 On the difference between “external” and “internal” independence, and in particular on possible violations of the latter by organs of the judiciary (High Council of Justice, heads of courts, etc.) or by lawyers (especially when they are too close to some heads of courts), see Oberto, The Universal Charter of the Judge Approved in 2017 by the International Association of Judges, http://www.iaj-uim.org/iuw/wp-content/uploads/2018/01/Oberto_The_Universal_Charter_of_the_Judge_2017.pdf, 6-10; Oberto, Un nuovo statuto per un nuovo giudice, 2017, http://www.iaj-uim.org/iuw/wp-content/uploads/2017/12/Oberto_Un_nuovo_statuto_per_un_nuovo_giudice_2017.pdf.
 Campbell and Fell v. the United Kingdom, 28 June 1984, Series A no. 80; Loyen v. France (dec.), no. 46022/99, 27 April 2000; Filippini v. San Marino (dec.), no. 10526/02, 26 August 2003; Majorana v. Italy (dec.), no. 75117/01, 26 May 2005; Flux v. Moldova, no. 31001/03, 3 July 2007
mentioning are the following points of this Polish case: “34. The Court recalls
that in determining whether a body can be considered as “independent” – notably
of the executive and of the parties to the case – regard must be had, inter alia, to the manner of appointment
of its members and the duration of their term of office, the existence of
guarantees against outside pressures and the question whether the body presents
an appearance of independence (see Campbell
and Fell v. the United Kingdom, 28 June 1984, § 78, Series A
no. 80; Findlay v. the United
Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997‑I; Incal v. Turkey, 9 June 1998,
§ 65, Reports 1998‑IV; Brudnicka and Others v. Poland,
no. 54723/00, § 38, ECHR 2005‑II; and Luka v. Romania, no. 34197/02, § 37, 21 July
2009). Furthermore, 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
(see Campbell and Fell, cited above,
§ 80). The Court further
recalls that the requisite guarantees of independence
apply not only to a “tribunal” within the meaning of Article 6 § 1 of the Convention,
but also extend to “the judge or other officer authorised by law to exercise judicial power” referred to in
Article 5 § 3 of the Convention (see McKay v. the United Kingdom [GC], no. 543/03, § 35,
ECHR 2006‑X). 35. The Court further reiterates
that it is of fundamental importance in a democratic society that the courts
inspire confidence in the public. To that end, Article 6 requires a tribunal
falling within its scope to be impartial. Impartiality normally denotes the
absence of prejudice or bias and its existence or otherwise can be tested in
various ways. The Court has thus distinguished between a subjective approach –
that is, endeavouring to ascertain the personal conviction or interest of a
given judge in a particular case – and an objective approach – that is,
determining whether he or she offered sufficient guarantees to exclude any
legitimate doubt in this respect (see Piersack
v. Belgium, 1 October 1982, § 30, Series A no. 53, and Grieves v. the United Kingdom [GC],
no. 57067/00, § 69, ECHR 2003‑XII (extracts .
36. In applying the subjective test, the Court has consistently held
that the personal impartiality of a judge must be presumed until there is proof
to the contrary (see Hauschildt v.
 The reasoning of this judgement is available under the following URL: Kulykov and Others v. Ukraine, nos. 5114 and others, 19 January 2017; see also Denisov v. Ukraine, no. 76639/11.
 The reasoning of this judgement is available under the following URL: http://hudoc.echr.coe.int/eng?i=001-159769 (see in particular the part of the reasoning under the title: “international materials”).
 On the role of the Court of Human Rights in the protection of judicial independence in such cases see Oberto, Judicial Independence and Judicial Impartiality: International Basic Principles and the Case-Law of the European Court of Human Rights (Turin – 2012), http://www.giacomooberto.com/munich2012/independence.htm.
 Kamenos v. Cyprus, no. 147/07, 31 October 2017.
 Ramos Nunes de Carvalho e Sà v. Portugal, nos. 55391/13, 57728/13 and 74041/13, 22 March 2017.
 Judgment of 27 February 2018, case C-64/16.
 “Article 19
1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
 See Krajewski, Associação Sindical dos Juízes Portugueses: The Court of Justice and Athena’s Dilemma, European Papers, http://europeanpapers.eu/en/europeanforum/associacao-sindical-dos-juizes-portugueses-court-of-justice-and-athena-dilemma.
 On the differences between the concepts of independence and impartiality see Oberto, Judicial Independence and Judicial Impartiality: International Basic Principles and the Case-Law of the European Court of Human Rights, in Riv. dir. priv., 2006, 485-547.
 See in particular Art. 10: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” The text of the Universal Declaration is available under the following URL: http://www.un.org/en/universal-declaration-human-rights/index.html.