PROTECTING THE INDEPENDENCE OF THE JUDICIARY

POSSIBILITIES AND LIMITS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Abstract

Against the background of ‘reform measures’ aimed at the judiciary in various Council of Europe Member States, this contribution addresses the question what one may expect from the European Convention on Human Rights (ECHR) when the independence of the judiciary comes under pressure. An analysis of the Strasbourg case-law shows growing concern for judicial independence. As a result, the position of both judges and litigants is strengthened. The principle of irremovability of judges is now clearly protected as an integral part of the right to a fair trial. Also it is now accepted that, as a general rule, Article 6 ECHR will apply to all types of disputes concerning disciplinary measures against judges. This means that a judge should have access to an effective remedy to challenge his dismissal. If an individual complains about a lack of independence of the courts, the Strasbourg Court will follow an objective, functional approach: it will examine if there are adequate guarantees against arbitrariness. The individual judge may have acted in an irreproachable way and there may have been no actual interference with his independence – all that is necessary but not sufficient to meet the requirements of Article 6 ECHR. If safeguards against abuse are absent, the mere possibility that the executive could have interfered is enough to affect the independence of the court. In practical terms, however, it must be acknowledged that the ECHR has its limits: the dismissal of a judge is often a fait accompli that the Court may be unable to change.