Although the reasoning of the Strasbourg Court in its case law usually focusses strictly on the individual case in question, meaning that judgments in which the Court explains the role that it plays in the body of case law as a whole or in which it formulates general rules are rare,
this, I think, does not prevent us from summarising its case law on internal judicial independence in a single legal rule. This rule runs as follows:
I will discuss the various elements of this rule in the light of the Court’s case law.
A Colleague …
Internal judicial independence, as defined by the Court, bears on the relationship between judges or between a judge and other judicial officials. In Parlov-Tkalčić v Croatia the Court states:
‘[I]nternal judicial independence requires that [individual judges, JS] be free from directives or pressures from the fellow judges or those who have administrative responsibilities in the court such as the president of the court or the president of a division in the court’.
Internal judicial independence thus regulates the relationship between judges, i.e. between a member of a judicial panel and its chairman, but it also pertains to the relationship between a judge and ‘his’ court executives.
It also applies to court executives who are themselves not involved in judging, as Parlov-Tkalčić also shows. In that case the Court held that the applicant’s doubts that the judges in his case were influenced by their court president were objectively justified, although court presidents under Croatian law only perform ‘administrative (managerial and organizational) functions which are strictly separated from the judicial function, that is, from adjudication of individual cases’.
From the Court’s definition, it follows that when pressure is exerted on a judge by anyone other than a judicial official, the concept of internal judicial independence does not apply. Usually, this distinction is easy to make. Sometimes, however, it is not. I will discuss two examples. First, does internal judicial independence apply when the pressure on a judge originates from a body consisting of judicial officials and other (non-judicial) officials? Denisov v Ukraine is an example of such a case.
Denisov, the presiding judge of the Kyiv Administrative Court of Appeal, was dismissed from the office of president by the High Council of Justice, whose membership consists largely of non-judicial staff, including the Prosecutor-General and other representatives of the prosecutorial system.
Denisov then unsuccessfully challenged his dismissal before the Higher Administrative Court. Before the Strasbourg Court, Denisov argued that the Ukrainian Administrative Court had not provided him with access to an independent and impartial tribunal because its members were under the disciplinary jurisdiction of the High Council of Justice, whose decision was the subject of the appeal. The Grand Chamber of the Strasbourg Court agreed with the applicant. However, it did not specify whether this violation of Article 6 of the Convention amounted to a violation of external or internal judicial independence. In my opinion, the concept of internal judicial independence did not apply in this case since the majority of the members of the High Council of Justice were not judicial officials.
Another situation in which it is not immediately clear whether the concept of internal judicial independence applies is when judicial officials, in pressuring a judge, act in line with the wishes of government officials from outside the judiciary and thus act as transmission belts for another branch of government.
In such cases, the Court considers both internal and external independence to be applicable, as in Agrokompleks v Ukraine. Agrokompleks had supplied 375,000 tonnes of crude oil to LyNOS, a company whose majority-owner was the Ukrainian government. However, LyNOS, in turn, delivered only a small part of the agreed-upon oil products to Agrokompleks. A domestic court established that LyNOS had defaulted on its contractual obligations and ordered payment of about €19.5 million to Agrokompleks. After that judgment had become final, the government started an inquiry into the liabilities of LyNOS to its creditors, upon which it was concluded that the outstanding liability to Agrokompleks was in fact much lower than the court had established. LyNOS relied on that conclusion as a newly-discovered circumstance and applied for a review of the court order by a panel of the court. The court, finding that the government report did not contain new information, upheld its ruling.
The president of the court, however, after receiving numerous letters from various government officials including the Speaker of Parliament, the Prime Minister, and the President of Ukraine urging him to repeal or reconsider the court’s decisions,
instructed his two deputies to review that latest ruling.
The court then proceeded to reverse its earlier ruling.
The Strasbourg Court held that the interference of these government officials with the court proceedings constituted a violation of external judicial independence as laid down in Article 6 of the Convention.
However, the Court also ruled that the instruction given by the president of the court to his two deputies asking them to reconsider the earlier judgment was itself in contravention of the Convention as it, too, violated the principle of internal judicial independence.
…who can exert pressure on the judge …
Not every judicial colleague is equally relevant when investigating a violation of internal judicial independence. Only colleagues capable of exerting pressure on a judge are of importance here. Whether a colleague can apply such pressure is determined by the Strasbourg Court on the basis of the powers that the colleague in question has.
Some powers are not relevant for this purpose. For example, the Court also takes into account that, within courts, the exercise of certain managerial powers – and the ensuing pressure – is inevitable:
‘It has to be borne in mind that any supervision of the work of judges involves a certain risk to their internal independence and that it is impossible to devise a system that would completely eliminate that risk’.
The mere fact that a colleague has executive power over a judge, for example, because he is the president of the court to which the judge is assigned, is therefore insufficient to justify the assumption that he can exert pressure on the judge to such an extent that it could result in a violation of internal judicial independence.
When examining whether a judicial colleague can exert pressure on the judge, the Court looks at whether one of the following two circumstances apply: has the colleague (a) exercised powers with regard to the handling of a case that is or has been assigned to the judge, or (b) does he have the power to change the legal status of the judge?
Powers exercised with regard to the handling of a case
When examining whether a colleague has used powers with regard to the handling of a case, this usually concerns the power to assign a case to a particular judge or panel of judges or the right to appoint a judge-rapporteur.
Daktaras v Lithuania illustrates both elements.
The applicant had been convicted by a court of first instance as the principal offender in a blackmail charge.
On appeal, that judgment was amended in that the applicant was no longer regarded as the principal offender but only as a secondary party to the crime. However, the penalty remained the same.
Subsequently, the judge who had pronounced judgment at the Court of First Instance asked the President of the Criminal Division of the Supreme Court to lodge a petition with the Supreme Court requesting the repeal of the Court of Appeal’s judgment.
The President of the Criminal Division of the Supreme Court granted that request and petitioned the Supreme Court to repeal the judgment of the Court of Appeal as it had erred in applying the law and had wrongly held that the applicant was not the principal offender. The President asked the Supreme Court to uphold the judgment by the Court of First Instance instead.
Subsequently, he appointed a Chamber of three judges of the Criminal Division of the Supreme Court to examine the case, and he appointed a judge-rapporteur.
The Chamber of the Supreme Court subsequently overturned the judgment of the Court of Appeal and upheld the judgment of the Court of First Instance.
In Strasbourg, the applicant complained that the Chamber of the Supreme Court that had heard the petition could not be considered an impartial tribunal within the meaning of Article 6 of the Convention because it was the President of the Criminal Division of the Supreme Court who had lodged the petition and that the same President had appointed the members of the Chamber and the judge-rapporteur.
The Lithuanian government argued that the power of the President to lodge petitions with the Supreme Court requesting the repeal of judgments by lower courts is based on the need to prevent judicial error; that the domestic statutes gave the President only organisational functions; that the President did not take part in the examination of the case; and that he had no legal power to influence the Chamber’s decision or to otherwise exert inappropriate pressure on the Chamber’s judges. The Government moreover presented 11 decisions by the Supreme Court in which petitions by the President of the Supreme Court or its Criminal Division had been rejected by the Supreme Court.
The Court rejected the arguments made by the government and found a violation of Article 6 of the Convention. It held that the applicant’s fears about the impartiality of the Chamber were justified.
The fact that the President of the Criminal Division of the Supreme Court had requested confirmation of a decision that was detrimental to the applicant was evidence that the President had taken sides.
Because he had, moreover, appointed the judges of the Chamber and the judge-rapporteur, the impression was created that the judges who had heard the case had been subject to pressure to decide in accordance with the wishes of their President.
The Court stated:
‘[W]hen the President of the Criminal Division not only takes up the prosecution 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 doubt as to the absence of inappropriate pressure’.
The fact that, in other cases, a President’s petition had not been granted did not change the Court’s view: every case must be assessed on its own merits.
The power to remove a case from a judge is a variant of the power to assign a case to a specific judge or judicial panel. Most Strasbourg cases on internal judicial independence deal with this variant. By removing a case from a judge, the impression could arise that the first judge intended to decide the case in a way that would contradict the wishes of the person who assigned the case.
A striking example of this is Moiseyev v Russia. The applicant had been indicted for treason. At trial, the president of the court replaced all the judges of the chamber hearing the case no less than three times. The Court considered this to be a violation of Article 6 of the Convention because the applicant was justified in the impression that the judges had been replaced because they intended to decide differently from what the president had in mind.
Having the power to change the legal status of the judge
If a judicial colleague has not exercised any powers with regard to a specific case, as in the examples above, the Court examines whether there are (other) powers he can wield to exert pressure on the judge. At this point, it is important to stress that a violation of internal judicial independence does not require that the colleague has actually exercised his powers or even merely threatened to exercise them. This criterion, therefore, differs substantially from the previous one. The Court stated:
‘the question is whether the powers conferred on the court presidents under the [domestic] law were capable of generating latent pressures resulting in judges’ subservience to their judicial superiors or, at least, making individual judges reluctant to contradict their president’s wishes, that is to say, of having “chilling” effects on the internal independence of judges’.
As mentioned, the Court also takes into account that, within courts, the exercise of certain managerial powers – and the resulting pressure – is inevitable. The mere fact that a colleague can exercise these powers over a judge is therefore insufficient to assume that inadmissible pressure in the sense of Article 6 of the Convention has been exerted.
The Court’s examination, therefore, focuses on other powers, namely powers that can lead to changes in the legal status of the judge. In practice, the Court focuses on the power to promote judges or to impose disciplinary sanctions on them. It does so because these powers, as the Court states, ‘potentially have the most significant impact on the internal independence of judges’.
Gazeta Ukraine-Tsentr v Ukraine illustrates how the Court conducts such an examination.
In a newspaper published by the applicant, the applicant had reported on a press conference in which the president of a local court – who was also a candidate in a mayoral election – had been accused by a journalist of having had put out a contract for the murder of the applicant. The president then sued the journalist for defamation. Another court than that of the president heard the defamation case and ordered the applicant to pay the president compensation. The Court of Appeal confirmed that judgment. In Strasbourg, the applicant argued that neither court could be deemed impartial within the meaning of Article 6 of the Convention. He argued that, although a different court than that of the president had heard his case, the president was also the chairman of the Regional Council of Judges, under whose authority both the Court of First Instance and the Court of Appeal fell, and that the plaintiff was therefore entitled to propose to the Council that disciplinary proceedings be instituted against the judges and that another decision affecting their legal status be taken. The applicant argued that the judges of these courts, therefore, lacked the appearance of impartiality. The Court agreed and ruled that Article 6 of the Convention had been violated.
… tries to influence the judge’s decision in a concrete case
The mere fact that a colleague of the judge has used powers with regard to the handling of a specific case or has (other) powers he can use to exert pressure on the judge does not mean that he has actually tried to influence the judge. For example, a case can rightly be assigned to a different judge if, for example, the first judge has fallen ill. There is also nothing illegal about a judge being warned that disciplinary measures might be issued against him if, for example, he has neglected the duties of his office. The assertion that a judicial colleague has actually tried to influence the judge must, therefore, be proven in both cases. Providing such evidence is difficult because the intent to influence is rarely openly expressed.
Agrokompleks v Ukraine, discussed above, is an exception to the rule that judicial influencing does not occur out in the open.
In that case, various government officials, including the Speaker of Parliament, the Prime Minister and the President of Ukraine, urged the president of a domestic court to repeal or reconsider a decision of ‘his’ court.
Eventually, the court president instructed his two deputies to review that ruling,
which the court eventually did.
The Strasbourg Court ruled, inter alia, that the instruction, given by the president of the court to his two deputies, to reconsider an earlier judgment contravened the Convention as it violated the principle of internal judicial independence.
Usually, however, attempts to influence judges are discreet. Proving that a judge has been influenced (or that an attempt thereto has been made) is therefore quite difficult. Hence, the Court has simplified the burden of proof with regard to judicial influencing, basing it on the general rule that Article 6 of the Convention is not only violated when a judge is not independent or impartial but also when there are legitimate doubts about his independence or impartiality. In practice, this requirement of ‘objective’ independence and impartiality
results in the applicant focusing on establishing doubt about the judge’s independence and impartiality; in response, the state will then argue that such doubt cannot be held objectively justified.
To show how this simplified burden of proof works out for both the applicant and the respondent state, it is again necessary to differentiate between situations in which a judicial colleague (a) has exercised powers with regard to the handling of a case which is (or was) assigned to the judge, and situations (b) in which he has the power to change the legal status of the judge, irrespective of whether he actually uses that power.
For the applicant, the foregoing mitigates the burden of proof. He no longer has to provide a ‘smoking gun’. Instead, the focus is on establishing that there could be doubts about the independence and impartiality of the judge who heard the case. To understand what this burden of proof requires, it is important to stress that a violation of Article 6 of the Convention of the Strasbourg Court does not require that the attempted influencing was successful. Under the established case law, it is sufficient that officials from the legislative or executive branch merely try to influence the judge. In such cases, the Court considers that the mere attempt to influence a judge reveals such a lack of respect for the judicial office that there is sufficient reason to doubt that the judge is independent or impartial.
It is fair to assume that the same applies if an official within the judiciary attempts to influence a judge.
In order to explain how this alleviation of the burden of proof works in practice, it is again necessary to differentiate between two situations.
If a judicial colleague has exercised powers with regard to the handling of a specific case such as re-assigning the case or appointing a judge-rapporteur, that mere fact creates doubt about the impartiality and independence of the judge who hears the case. Usually, however, there is additional evidence of judicial influencing or attempts thereto, but such additional evidence is not necessary to establish the required doubt. Moiseyev v Russia, discussed above, shows this. In that case, the president of the court repeatedly replaced the entire judicial panel trying the case; in fact, the case was re-assigned no less than three times.
The Strasbourg Court stated that the fact that the panels had been replaced was enough to raise doubts about the independence and impartiality of the judges who eventually decided the case.
If the judicial colleague has not exercised any power with regard to the handling of a specific case but does have the power to change the legal status of the judge, more evidence is needed to establish the necessary doubt that a violation of internal judicial independence has taken place. Additional facts and circumstances are needed, as Khrykin v Russia shows.
In that case, the applicant had asked the authorities to upgrade his retirement pension retroactively. A judge of the Elektrostal Town Court granted that request. After the judgment became final, the pension fund lodged an application for supervisory review of that judgment with the Moscow Regional Court. That application was never examined. However, the President of the Court wrote a letter to the judge of the first-instance court, stating that he considered the latter’s decision to be incompatible with the case law of the Supreme Court, ‘a judicial error’ that ‘cannot be regarded lawful’. Therefore, the President of Regional Court wrote, the case should be reconsidered on the basis of newly-discovered circumstances.
The pension fund later asked the Court of First Instance to reopen the case. The latter agreed and subsequently rejected the applicant’s claim to upgrade his retirement pension. Its findings were identical to the arguments put forward in the letter sent by the President of the Regional Court.
In Strasbourg, the applicant argued that the President’s letter had unduly influenced the judgment of the first-instance court. The Court agreed. It reached that conclusion after pointing out a number of additional circumstances. First, the President of the Regional Court never decided on the application for supervisory review, as required by law, but instead wrote a letter to the judge of the Court of First Instance.
Second, unlike the government, the Court found that the President’s letter had exerted undue pressure on the judge because of the language used to qualify the judge’s decision: a ‘judicial error’ that ‘cannot be regarded lawful’.
Third, the Court noted that the President is empowered to bring disciplinary proceedings against a judge for committing a disciplinary offence. Such proceedings can lead to early termination of office. ‘[E]rroneous application of the law’ can constitute such a disciplinary offence.
Having noted these additional facts and circumstances, the Court concluded that the applicant’s fear that the court of first instance was not independent was justified.
If the applicant successfully raises doubts about the independence and impartiality of the judge in question, the respondent state will try to establish that those doubts are not legitimate, that is, that they cannot be held objectively justified. As a rule of thumb, the Strasbourg Court considers this to be the case if domestic law provides sufficient procedural guarantees to prevent judicial influencing.
In the Court’s case law, such safeguards are particularly important when a case is assigned to anyone other than the usual judge or when a case has been re-assigned. For example, in Miracle Europe Kft v Hungary the Court emphasised the importance of regulating, by law, the way cases are distributed among the judges of a court and warned against the lack of clear and transparent legal criteria for case distribution:
‘that situation puts at risk the appearance of impartiality, by allowing speculation about the influence of political or other forces on the assignee court and the judge in charge, even where the assignment of the case to the specific judge in itself follows transparent criteria’.
In Miracle Europe Kft v Hungary, such a legal framework was lacking.
As a result, the judge who distributed cases had far-reaching discretionary power. The Strasbourg Court considered, therefore, that:
‘the allocation or reassignment of cases could be misused as a means of putting pressure on judges by for instance overburdening them with cases or by assigning them only low-profile ones. It is also possible to direct politically sensitive cases to certain judges and to avoid allocating them to others’.
The Court concluded that because of the absence of procedural guarantees – such as legislation that significantly restricts the way cases are distributed – the applicant’s fears that his case was not heard by ‘a tribunal established by law’, as Article 6 of the Convention requires, were objectively justified.
Procedural guarantees are also important when a judicial official exerts pressure on a judge by using or referring to his power to change the legal status of the judge. Parlov-Tkalčić v Croatia shows this.
After the applicant had suffered a road traffic accident, the Zlatar Municipal Court ordered the insurance company to pay compensation for the resulting damage. Afterwards, the Municipal Court modified its decision; the interest it had calculated was too high. At that point, however, the insurance company had already paid out the initial judgment, and the applicant refused to pay back the amount in excess. The President of the Municipal Court – after having received a letter from the insurance company – filed a criminal complaint against the applicant. He stated that the applicant had refused to return the unlawfully obtained amount, that the insurance company had already instituted civil proceedings against the applicant, and that the applicant’s refusal to return the amount ‘contains elements of criminal liability’.
As mentioned above, the insurance company had already instituted civil proceedings against the applicant to recover the allegedly wrong amount. The Zlatar Municipal Court – the court of the president who had filed the criminal complaint against the applicant – ruled against the applicant. The applicant appealed to the Zlatar County Court. At the same time, she asked for a transfer of jurisdiction from both the Zlatar Municipal Court and the Zlatar County Court, because both courts, in her view, could not be expected to be impartial in the examination of her appeal, given that the President of the Municipal Court, who had filed a criminal complaint against her, had in the meantime become the President of the County Court.
The Supreme Court dismissed the applicant’s request for a transfer of jurisdiction.
The County Court then upheld the judgment of the Municipal Court.
In Strasbourg, the question was whether the judges of either court at which the applicant’s case had been heard in civil proceedings were sufficiently independent of the aforementioned president.
The Court noted first that, under Croatian law, the president, rather than performing any judicial functions, only has administrative tasks. The president, therefore, could not ‘take advantage of his hierarchical position to give the rapporteur or other members of the panel instructions as to how to decide on the applicant’s appeal, and there is nothing to indicate that he did so in her case’.
He was, however, charged with the assignment of cases to judges, but – as the Court noted – Croatian law ‘contained rules governing the distribution of cases to judges within courts, which means that cases were not distributed by the court presidents at their own discretion’. The Court, therefore, concluded that Croatian law ‘provided for adequate safeguards against arbitrary exercise of court presidents’ duty to (re)assign cases to judges’.
Next, the Court examined ‘whether there were any other elements in the (hierarchical) relationship between judges who decided the applicant’s appeal and the president of the Zlatar County Court, which were capable of curbing their internal independence’.
The Court next found that court presidents, inter alia, play a role in the appraisal of judges and have the power to initiate disciplinary proceedings against judges and to temporarily suspend judges. ‘However’, the Court continued, ‘in neither of these areas the court presidents had exclusive powers or unfettered discretion’. For example, a judge who receives a negative appraisal can appeal against it to the president of a higher court; while a court president can institute disciplinary proceedings against a judge, the power to impose a disciplinary sanction lies exclusively with the National Judicial Council; and, finally, the power to temporally suspend a judge can only be exercised when a judge is being held in detention.
The Court concluded:
‘For these reasons, the Court considers that Croatian law at the material time had adequate mechanisms to prevent improper interferences coming from within the judiciary, and that the powers vested in the court presidents could not have reasonably been viewed as running counter to, or having “chilling” effects on, the internal independence of judges. … Therefore, the Court considers that the applicant’s fears as regards the lack of impartiality of the Zlatar County Court were not objectively justified’.
Article 6 of the Convention had therefore not been violated.
The Strasbourg Court has thus developed some clear rules with regard to the concept of internal judicial independence. What is striking, however, is that the Court judgments discussed above were issued against only a limited number of post-communist member states of the Council of Europe. This raises the question whether the concept of internal judicial independence is only relevant for those member states, other whether it has also consequences for the established democracies of the Council of Europe. I will address this question in the next paragraph.