European Judicial Supervision of the Rule of Law: The Protection of the Independence of National Judges by the CJEU and the ECtHR

Abstract

While an independent judiciary is considered an indispensable component of the rule of law, attacks of the domestic political power on the independence of the judicial branch are observed today in several European States. The European judges (CJUE, ECtHR) appear to be the “last soldier standing” in the defense of judicial independence and they have in no case remained indifferent. This contribution contains an analysis of the dynamic approaches that the CJEU and the ECtHR have adopted in order to reinforce the guarantees of independence that domestic judges enjoy under European Law (EU and ECHR law). An emphasis is put on the international judicial function of these Courts as protective and promoting judicial independence at the national level, arguing that both Courts assumed their role as guarantors of the common European value of the rule of law through a proactive stance, without going, however, to the extremes. Furthermore, the paper provides an examination on the fact that the European Courts have adopted measures in order to assure the effectiveness of the European guarantees of judicial independence. A particular focus is put on the protection through interim measures as a means of assuring an effective protection of the independence of national judges. Considering a comparative analysis, the issue of the ECtHR’s potential in this regard is hereby tackled, notably after the recent evolution in the case-law of the CJEU.

1 Introduction

This contribution is written in a time of ongoing crisis for liberal democracy and for the rule of law in Europe.¹ While the concept of the rule of law is graciously accepted and frequently emphasized as a European value, which in its core generally means the pre-eminence of the law over political decisions and the protection of the individual from arbitrary governmental power,² the reality in several European countries has recently demonstrated grave challenges (reaching sometimes the point of existential crisis) in its implementation regarding judicial independence, in particular with regard to judicial appointments and the security of tenure of judges. That way, the special and fundamental role of the judiciary as an independent branch of power in every democratic state has been shaken by the rule of political power, rendering imperative the reflection on possible supervision or corrective mechanisms on the international level, such as the European judiciary. In fact, while an independent judiciary is considered an indispensable component of the rule of law,³ attacks of the domestic political power on the independence of the judicial branch are observed today in many European States, par excellence in Hungary and Poland.⁴ When one takes note of the criticism of such “reforms” by international experts, it seems evident that they cannot be reconciled with the foundational European common value of the rule of law.⁵ At the same time, the non-judicial mechanisms that the European Institutions could use in order to tackle this “rule of law backsliding”⁶ seem [relatively] ineffective.⁷ In view of this background, the European judges appear to be the “last soldier standing”⁸ in the defense of judicial independence.

In this paper, the focus is on the protection that the European Courts in Luxembourg (the “CJEU”) and Strasbourg (the European Court of Human Rights, hereafter “ECtHR”) can offer to the national judge, whose independence is under attack.⁹ In particular, an examination on the relevant case-law of the ECtHR in regard to Hungary and most recently Romania, as well as the CJEU rulings in the case of Poland, highlights the dynamic approach that the Courts have adopted in order to reinforce the guarantees of independence that domestic judges enjoy under European Law (EU law and the European Convention of Human Rights law respectively). Their proactive stance is commended by the authors, as indispensable for the European Courts fulfilling their role as guarantors of the common European value of the rule of law. At the same time, an examination of other aspects of the case-law of Strasbourg and Luxembourg Courts demonstrates that this proactiveness is balanced: the European Courts have not adopted the most radical of the solutions available to them, nor have they exercised a maximalistic approach in every aspect of the protection of judicial independence. Lastly, this contribution will examine the measures that these Courts have adopted in order to promote the effectiveness of the “European judicial protection” of the independence of judges and of the rule of law, notably in view of issues emerging in the execution phase. A particular focus is put on interim protection as a means of assuring this effectiveness.

2 The Reinforcement of the European Guarantees of Independence of Domestic Judges by the CJEU and the ECtHR

In the cases to be examined, the European Courts gave their full substance to the guarantees of independence that domestic judges hold under European Law. While each Court acted from its respective legal spheres, many convergences emerge in their approaches, and most importantly a common objective: safeguarding the rule of law.

2.1 Article 19 TEU as Guarantee of the Independence of Judges

From the point of view of European Union Law, the Court of Justice is in the process of constantly reviewing the questionable Polish reforms on the judiciary. Four sets of infringement have already been brought before the Court¹⁰: the first two are still pending and relate to the judicial disciplinary regime,¹¹ while the other two have already been the subject of a ruling and concern the independence of the Supreme Court¹² and of the ordinary courts of Poland,¹³ respectively. In these two cases, the impugned measures consisted mainly in the reduction of the age of compulsory retirement of active judges, with immediate effect, giving at the same time to the executive (the President of the Republic with respect to the Supreme Court and the minister of Justice with regard to ordinary courts) the power to discretionarily prolong the mandate of each judge beyond the newly established legal age of retirement. The Court found, that the impugned reforms infringed the second subparagraph of Article 19 par. 1 of the Treaty on the European Union (“TEU”), which stipulates that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”.

2.1.1 Giving Article 19 TEU its True Substance

While this was the first time that an infringement of Article 19 and of the principle of judicial independence was pronounced by the Court,¹⁴ the paramount importance of this Article with regard to the enforcement of the principles of the rule of law and of the independence of judges had already been affirmed one year earlier, in the seminal decision of Associação Sindical dos Juízes Portugueses¹⁵ (“ASJP”). Τhis case concerned a preliminary reference on the compatibility of the reductions of the salaries of Portuguese judges, adopted on the context of austerity reforms that were implemented in connection to the EU economic bailout of Portugal.

In its “Portuguese judges” ruling, the Court operated a strong connection between the requirement of effective legal protection as guaranteed under Article 19 on the one hand, and the rule of law on the other. The Court held that Article 19 gives “concrete expression” to the value of the rule of law, a value common to Member States, enshrined in Article 2 TEU, as it entrusts not only the CJEU, but also national judges, with the task of ensuring judicial review in the EU legal order. It also affirmed that effective judicial protection, which member states must ensure under Article 19 TEU, is “of the essence” of the rule of law.¹⁶

Having established that, the Court also made a close connection between the requirement of effective legal protection under Article 19 and the preservation of judicial independence, making the latter an essential component of the former. It explicitly held that this was confirmed by the Article 47 of the Charter of Fundamental Rights of the EU (“CFREU”, “the Charter”), which refers to the access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy.¹⁷ This relation was also indicated by the Court by reiterating its Johnston jurisprudence, that the principle of effective legal protection is enshrined not only in Article 13, but also in Article 6 of the European Convention of Human Rights (“ECHR”, “the Convention”).¹⁸

The groundbreaking element in theASJP ruling is the affirmation that the requirements of Union law in terms of judicial independence, guaranteed by Article 19, are not limited to a precise situation in which EU law is in concreto implemented, but stretches to all national jurisdictions which might be potentially confronted, in general, with questions relating to the application of EU law. Indeed, the Court disconnected the scope of Article 19 from the limits inherent in the scope of the Charter, as reflected in its Article 51.¹⁹ The Court held, instead, that Member-States are bound by Article 19 TEU “in the fields covered by EU law”.²⁰ That means, according to the Court’s own interpretation, that Member States should guarantee the independence of all domestic courts that might be called to rule “on questions concerning the application or interpretation of EU law”.²¹ As it is difficult to imagine the courts of EU member states that would never be called to –potentially- interpret or apply EU law, this disposition should be thus considered to have a general application.

Through the examined interpretation of Article 19 TEU, the Court left the way open for the Commission to bring infringement proceedings against Poland, for failing to fulfill its obligations under this Article. The Charter, more precisely its Article 47,²² would most likely be unable to serve the same purpose, due to its inherently limited scope: it could be applicable only in cases where Member States would implement a concrete norm of EU law when regulating the organization of their judiciary. As this competence is, under EU Law, still exclusive to Member States, such a norm would be found only in exceptional cases.²³

2.1.2 Applying Article 19 TUE in Poland

Mobilizing the ASJP formula, the Court affirmed its competence to review the impugned Polish reforms under Article 19. It held in particular that “although, as the Republic of Poland and Hungary point out, the organization of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law […] and, in particular, from the second subparagraph of Article 19(1) TEU[…].”.²⁴

The Court found in particular that the impugned reforms infringed, in both Polish cases, the principle of irremovability, a corollary to judicial independence, guaranteed by Article 19.²⁵ It is worth noting that the CJEU set a particularly strict criterion for the assessment of compliance with this principle: as its importance is “cardinal”, an exception thereto must not only satisfy a regular proportionality test (legitimate objective, proportionality lato and stricto sensu); it should also be such as to not “raise reasonable doubt in the minds of individuals as to the imperviousness of the courts concerned to external factors and their neutrality with respect to the interests before them”.²⁶ It is interesting to note in that regard that the Advocate General brought before the attention of the Court both the ECtHR case-law on the importance of the public’s confidence in the judiciary,²⁷ but also CoE and UN instruments, affirming the importance of the principle of irremovability in general. In the A.G.’s opinion, these international standards form a “normative consensus” for EU member States in this field.²⁸

In concreto, the Court found that such “reasonable doubts” arose vis-à-vis the legitimate objective of the impugned reforms: the Court was convinced that they were not aimed at the harmonization of the Polish pension system, but the side-lining of a certain group of judges. For this conclusion, the Court took note of the analysis of the explanatory memorandum of the Polish law by the Venice Commission,²⁹ of the fact that the impugned measures implicated a significant change in the composition of the courts,³⁰ and of the absence of a transitional period.³¹ Moreover, those “doubts” were exacerbated by the discretionary nature of the “prolongation power” of the executive, by the impossibility to challenge the decisions of the executive in court and by the inadequacy of the guarantees offered by the intervention of the National Council of the Judiciary.³² In that way, the Court seized the opportunity to set clear standards to which reforms on the judicial system must comply.

2.1.3 Empowering National Judges to Apply Article 19, Disapplying National Measures

The Court has not only robustly enforced Article 19 TEU through infringement proceedings, but also highlighted the role and powers of national judges in applying EU guarantees of judicial independence. This approach was consolidated³³ in A.B. and others, a preliminary ruling delivered in a case where polish judges had appealed, before the Supreme Administrative Court, against the omission of the National Judicial Council (“NJC”) to propose their names to the President of the Republic for nomination to the Supreme Court.³⁴ While the effectiveness of this appeal was seriously questioned by the CJEU,³⁵ a principal issue emerging was its total abolishment in 2019 and the legislative provision for the automatic dismissal any appeals still pending. This issue, in stark contradiction with the requirements of Article 267,³⁶ was assessed by the CJEU under Article 19 TEU.

The Court affirmed that it was for the national judge to rule on the compliance of the reforms with Article 19 TEU in the context of a preliminary ruling, Luxembourg’s competence being reserved to giving pertinent interpretative guidelines.³⁷ In abstract, the Court affirmed that while the absence of legal remedies in the process of appointments to a national supreme court could be justified, this would not apply if the concrete national context [such as a sudden elimination of judicial remedies previously available] could generate “systemic doubts in the minds of individuals” as to the independence of the judges appointed at the end of that process.³⁸ The Court reiterated that such doubts could arise particularly in case the independence of a body such as the NJC is under question.³⁹ If that was the case [verifiable by the national judge as a preliminary step] the existence of a judicial remedy available to unsuccessful candidates would be indispensable to dispel those “doubts”.⁴⁰ Leaving the in concreto assessment to the national judge,⁴¹ the CJEU left little doubt as to whether those “doubts” are indeed provoked.⁴²

The Court, moreover, habilitated national judges with the power-obligation to disapply national provisions that they found to be contrary to Article 19, in the name of primacy of EU law.⁴³ Contrary to doubts expressed in that regard,⁴⁴ the Court clarified that Article 19 “imposes on the Member States a clear and precise obligation as to the result to be achieved and that that obligation is not subject to any condition as regards the independence which must characterize the courts called upon to interpret and apply EU law”.⁴⁵ Thus, the Court concluded that national judges are obliged to disapply national provisions infringing Article 19 TEU, even of Constitutional origin.⁴⁶

2.2 The European Convention as a “Shield” for National Judges

Turning to the ECHR and to the ECtHR, one can note that the Court has diachronically underlined the importance of the principle of separation of powers in its case-law,⁴⁷ and had explicitly underlined the necessity to safeguard the independence of the judiciary.⁴⁸ It has also insisted on the importance of judicial independence for the rule of law,⁴⁹ holding that “the mission of the judiciary in a democratic State is to guarantee the very existence of the rule of law”.⁵⁰

Attempts to attenuate this mission of judges were brought before the ECtHR in the cases of Baka v. Hungary⁵¹ and Kövesi v. Romania.⁵² These cases concerned the premature termination of the mandates of high-ranking judicial officials, following their criticism on legislative reforms on the judiciary, combined with the inability to challenge these dismissals before court: In Baka, the mandate of the President of the Hungarian Supreme Court was terminated in a context of structured incursions of the executive and legislative branches in the independence of the judiciary, while, in Kövesi, the case concerned a bras-de-fer between the Romanian chief prosecutor of the National Anticorruption Directorate and the national government, that led to the dismissal of the former. The approach that was established by the Grand Chamber in Baka paved the way for the Court in future cases and was consolidated and further developed in Kövesi. This case-law highlights two⁵³ important guarantees that the Convention offers to national judges, in order to defend their independence: freedom of expression and fair trial guarantees.

2.2.1 Fair Trial Guarantees Concerning the Career of Judges

In theBaka case, the Court established that, in principle, there can be no exception to the applicability of fair trial guarantees in disputes relating to the career of judges. In order to do that, the Court explicitly extended the applicability of the Eskelinen criteria to disputes concerning the career of judges, despite the fact that the wording of the Ekselinen judgment limited its reasoning to the career of “civil servants”.⁵⁴ The Court overcame that obstacle by reiterating that the judiciary is “part of typical public service” and by citing its most recent case-law, where Art. 6 had been applied similarly.⁵⁵ Thus, in order for any exception to judges’ access to court to be justified, the two traditional conditions required by the Eskelinen criteria have to be satisfied: (1) that national law “expressly excluded access to a court for the post or category of staff in question”; and (2) that this was justified on “objective” grounds in the State’s interest.⁵⁶ In that way, the Court affirmed a “presumption of applicability” of Article 6 applies in cases concerning the career of judges.

What is most remarkable is that the Court established, inBaka, an additional third condition that should be satisfied, cumulatively to the traditional two Eskelinen criteria, in order to exclude Article 6 applicability: compliance of national measures restricting access to court to the rule of law itself. The Court invented this criterion when it was faced with the [extremely] particular circumstances of Mr. Baka’s case, to whom access to court had not been expressly excluded under national law, but was made impossible due to the inclusion of the termination of his mandate in the Constitution.⁵⁷ In this context, the Court affirmed that “in order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it should be compatible with the rule of law”.⁵⁸ For the ECtHR, the rule of law requires, inter alia, that any interference must in principle be based on an instrument of general application.⁵⁹ Legislation ad hominem was not to be tolerated. Thus, the Court disregarded in concreto the Constitutional provisions in question and took into consideration the pre-existing legal regime, as doing otherwise “would open the way to abuse” for contracting states.⁶⁰ Besides, the Venice Commission had already found the impugned dispositions as contrary to the rule of law.⁶¹

After having overcome the obstacles to its competence, it did not require a lot of effort in the part of the Court in order to find a violation of Article 6, as no access to court at all was available to Mr. Baka.⁶²

The precited approach concerning the applicability of Article 6 was further developed some years later, when the Court was faced with the case of Mme. Kövesi. In her case, the Court found that domestic law had not “expressly excluded access to court”, as the administrative courts were competent to review the removal decision.⁶³ While this would be, as already seen, sufficient to conclude the applicability of Article 6, the Court went even further and examined whether a hypothetical scenario where judges were deprived of any access to court would be compliant with the second Eskelinen criterion. The Court was clear: there could not exist any “objective justification for this exclusion in the State’s interest”, as “senior members of the judiciary should enjoy—as other citizens—protection from arbitrariness from the executive power and only oversight by an independent judicial body of the legality of such a removal decision is able to render such a right effective”.⁶⁴ In that way, four years after Baka, the Court dispelled any last doubt that it would review any case of arbitrary removal of a judge brought before it.

Coming to the merits of Mme Kövesi’s complaint, the Court noted that the administrative courts’ review on the applicant’s complaint would have been “insufficient” if it had to be exercised. That was the result of the particular interpretation that was given by the Constitutional Court in the context of the applicant’s case, which had limited the extent of the administrative courts’ review to the external legality of the removal decision, notably excluding from its scope the question of whether the removal proposal was endorsed or not by the Council of the Judiciary. For the Court, this violated Article 6, as the review of the domestic courts could not address the essence of the applicant’s complaint: the fact that her removal had been an illegal disciplinary sanction triggered by her opinions expressed publicly in the context of legislative reforms.⁶⁵

Departing briefly from the context of Hungary and Romania, one should make a brief mentioning of another aspect of Article 6: disciplinary proceedings brought against judges. In Mitrinovski v. the former Yugoslav Republic of Macedonia,⁶⁶ the ECtHR found a violation of Article 6, due to failure of the respondent state to fulfil the standard of impartial and independent tribunal. The message from the Strasbourg judicial authority was clear: the proceedings to remove a judge from his/her function have to comply with guarantees of fair trial which means in concreto that disciplinary proceedings must also comply with such guarantees.⁶⁷

2.2.2 Judges’ Freedom of Expression, Corollary to Their Independence

Apart from access to court, the ECtHR also put increased weight to the right of judges to freedom of expression and found violations of Article 10 in both the Hungarian and the Romanian cases examined. The foundations of the Court’s case-law in that regard were set inWille v. Lichtenstein,⁶⁸ where the Prince of Lichtenstein, acting as head of State, decided to not re-appoint the applicant as President of the Liechtenstein Administrative Court, due to him publicly expressing his views on constitutional legal issues. The Grand Chamber found that the Prince’s letters to the applicant amounted to a reprimand because of his view, and consequently to an interference with his rights under Article 10, which was not necessary in a democratic society.

After almost two decadesthe Court also found in Baka and Kövesi that the applicants’ removal did not pursue any legitimate aim as it was due solely to their exercising their right to freedom of expression. As the Court affirmed with regard to Mr. Baka’s removal, the premature termination of a judge’s mandate that does not relate to any grounds of incompetence or misconduct cannot serve the aim of “promoting the authority of the judiciary” or of the promotion of judicial independence.⁶⁹ The conclusions of the Court were similar in Kövesi: the Court did not accept that, as the Minister of Justice claimed, the removal of Ms. Kövesi was motivated by the need to protect the rule of law, in the sense that her behavior had made Romania a subject of concern at national, European and international level. The Court observed that, on the contrary, international concern was expressed by the Venice Commission, the European Commission and the UN Human Rights Committee not in relation to the applicant’s behavior, but concerning the compatibility of her removal with respect to the rule of law.⁷⁰

While, in both cases, the Court could have put a stop to its review at this point, it went even further to examine the proportionality of the impugned interferences (“necessity in a democratic society”).This was effectuated by the Court, in Baka, in to affirm the following innovation in its case-law: that the enjoyment of freedom of expression by judges, when exercising their official duties, is a necessary corollary of their independence, even when it is used as a weapon to scientifically criticize the reforms aimed at the judiciary.⁷¹ This duty of judges was founded by relying on Council of Europe instruments, which insisted on the particular judges’ role in defending the independence of the judicial branch as a whole.⁷² The approach was similar in Kövesi, where the Court developed those principles in the context of prosecutors. Thus, as high ranking judges and prosecutors, the applicants had, in both cases, a duty to express their opinions on laws potentially affecting judicial independence.⁷³

The Court did not miss the systemic dimension of the impugned infringements of freedom of expression for the judiciary as a whole: they undoubtedly had a “chilling effect” on the exercise of the freedom of expression of other judges, prosecutors and court presidents in general, dissuading them from participating in future public debate on legislative reforms affecting the courts and matters concerning the independence of the judiciary.⁷⁴

Also, one should not overlook that the Court reiterated the importance of the principle of irremovability of judges as a key element for the maintenance of judicial independence.⁷⁵ In view of this principle, the fact that the applicants remained in place as a lower ranking judge/prosecutor respectively did not justify the premature termination of their mandates as President of the Supreme Court or chief anticorruption agent, respectively, as this disregarded the nature of the judicial function as an independent branch of State power.⁷⁶ In these circumstances, the Court concluded that the impugned measures “defeated the purpose” they were supposed to serve, namely maintaining the independence of the judiciary.⁷⁷ On this issue, but also concerning standards of judicial independence in general, it is notable that the Court relied in several CoE and UN instruments, and did not miss the opportunity of citing relevant case-law of the UNHRC and of the CJEU.⁷⁸

2.2.3 Back to Article 6: Indirect Protection of Judicial Independence in the Ástráðsson Case

At this point, a detour should be made back to fair trial guarantees: Guðmundur Andri Ástráðsson v. Iceland is illustrating of how the Court does not hesitate to go out of its way to protect judicial independence in a case not directly concerning the violation of the rights of judges. This case concerned allegations that a person was criminally convicted by a tribunal not “established by law”, due to great defects in the appointment process of one of the judges of the bench.

The Grand Chamber seized this opportunity to establish thatthe process of appointing judges constitutes an inherent element of the “established by law” requirement, as this provision reflects the rule of law, seeking “to protect the judiciary against unlawful external influence”.⁷⁹ Concluding that the common aim of all institutional requirements of Article 6 § 1 is upholding the rule of law and the separation of powers, the Court emphasized that the examination under the “established by law” requirement must “systematically enquire whether the alleged irregularity in a given case was of such gravity as to […] compromise the independence of the court in question”.⁸⁰ Concretely, the Grand Chamber adopted the following three-part test as to whether irregularities in a judicial appointment entail a violation of this requirement, necessitating: (a) that the breach of national law is “manifest”⁸¹; (b) that the legal rule breached is not purely technical, but “fundamental”, which is notably the case if its purpose was preserving judicial independence; and (c) that the national courts balanced the conflicting interests at stake.⁸²

The ECtHR thus emitted a warning that it will enquire in depth into the compliance of national authorities with the rules governing the appointment of judges, highlighting that violations of the rule of law and of judicial independence have consequences not only vis-à-vis the legitimacy of national courts, but also in regard to the validity of their judgments. The role of national judges themselves as a safeguard against such developments was underlined: the ECtHR criticized the Icelandic Supreme Court for refusing to annul the judgment of the illegally composed inferior court, despite having the legal power to do so. In the eyes of the Court this practice amounted to “resignation”, an acceptance of the illegal appointment as a fait établi which unjustifiably favored legal certainty at the detriment of the rule of law and judicial independence.⁸³ The ECtHR did, besides, underline the strict criterion adopted CJEU in the case of the Polish Supreme Court vis-à-vis exceptions to the principle of irremovability, necessary corollary to judicial independence.⁸⁴

3 European Courts as Guardians of the Rule of Law: a Proactive, While Balanced Approach

In their strong criticism of “illiberal” judicial reforms, the European jurisdictions unequivocally established the essential nature of judicial independence for the rule of law. Luxembourg and Strasbourg adopted dynamic approaches in order to defend this foundational European value, by reinforcing the guarantees of judicial independence that national judges enjoy under European Law. In the exercise of their role as guarantors of judicial independence and the rule of law, the competences of Luxembourg and Strasbourg seem to have a complementary nature. On the one hand, the CJEU reviews compliance with the principle of independence of judges in abstracto, notably due to the procedural context of the EU law infringement proceedings but also to the interpretation of Article 19 TEU as an objective obligation.⁸⁵ On the other hand, the ECtHR focuses on the respect of individual rights of the applicant in concreto, in the context of the individual petition under Article 34 ECHR (despite the fact that assessment of the general situation, namely rule of law compliance of Member States, remains possible for this Court too). Both Courts, each from their own perspective, work towards the same objective: offering “European judicial protection” to judicial independence and, by extension, to the rule of law, promoting it as an indispensable European value.

In doing this, however, the Courts avoided adopting the most radical of the options available. In this respect, their approach was thus indeed proactive, but balanced. On the part of the CJEU, Luxembourg did not heed the calls to make the Charter of the EU applicable outside its intended limited scope.⁸⁶ Instead, it made Article 19 TEU an autonomous standard of the rule of law, in order to assure compliance with this value.⁸⁷ Indeed, as Advocate General Tanchev confirmed, the limited competence of the CJEU vis-à-vis fundamental rights, reflected on the inherently limited scope of the Charter, could not have been taken “so far as to attenuate the duty of the Commission to protect the fundamental values of the Union expressed in Article 2 TEU, forming as they do part of the common European constitutional heritage”.⁸⁸ The rule of law was also fervently defended by the ECtHR, who did not hesitate to criticize the new Hungarian Constitution as regards its compliance with this value, and conclude that it resulted in a violation of the Convention. This affirmation of the “direct, supra-constitutional effect of the Convention” was necessary in order for the Court to assure its role in upholding the rule of law and the independence of the judiciary in Europe, according to the concurring judges Pinto de Albuquerque and Dedov.⁸⁹ Nonetheless, the Court has yet to interpret Article 6 of the Convention as an individual guarantee of independence of national judges, as was advocated by President Sicilianos in Baka.⁹⁰ Moreover, it is notable in that regard that, also in Ástráðsson, the margin of appreciation of States in selecting a model of judicial appointments was underlined, as was the subsidiary role of the ECtHR that regard,⁹¹ an approach close to that of the CJEU in A.K. and A.B.⁹²

The above considerations point to a proactive, yet tempered approach on behalf of the European Courts, as will be further analyzed below.

3.1 CJEU: Preliminary References and [Some] Limits to the Protection of the Rule of Law

Focusing on the CJEU, it is notable that the Court’s preliminary reference rulings with regard to judicial independence and the rule of law have been received as less audacious than its infringement rulings.

3.1.1 Respecting the Political Process of Article 7 TEU

Such an example is the CJEU’s ruling inCelmer/ Deficiencies in the system of justice,⁹³ an exercise of deference that was seen as a complement to the audacity that the Court showed in the Portuguese Judges’ ruling.⁹⁴ In that case, the CJEU was asked by an Irish Judge whether it was possible to refuse the (in principal obligatory) execution of a European Arrest Warrant («ΕΑW») emitted by Poland, whose judicial system seemed to be “no longer operating under the rule of law”. The Court emphasized that, as was expressly provided for in recital 10 of Framework Decision 2002/584, the EAW mechanism could be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 2 TEU (including the rule of law), determined by the European Council pursuant to Article 7 TEU. The CJEU expressly refused to bypass this legal provision and declined its competence to pronounce by itself a “serious and persistent violation” of the rule of law in abstracto, allowing for an automatic suspension of the EAW vis-à-vis Poland.⁹⁵ Thus, the CJEU held that in absence of such a legal act on behalf of the European Council, the non-execution of a EAW could be decided by a national judge only if a two-step test was satisfied: not only confirm that (a) there were indeed systemic and generalized deficiencies affecting the independence of the courts of the issuing State, but also that (b) there were substantial grounds for believing that the requested person would, if surrendered, be exposed to the risk of suffering a breach of the right to fair trial in concreto.⁹⁶

With this two-step test, the Court left space for the political process of Article 7 TEU, warning simultaneously Member States systematically menacing the independence of judges that they risk seeing themselves partially excluded from the EU system of judicial cooperation. While disappointment was expressed that the Court did not address the systemic deficiencies in Poland’s judiciary in that occasion,⁹⁷ it has been accurately underlined that the framing of the case was ultimately not the most suitable for a strong intervention in the Polish crisis, contrary to infringement proceedings.⁹⁸ The two-step test has also attracted criticism which underlines the serious practical difficulties⁹⁹ of the system of horizontal judicial dialogue that the CJEU established: the Celmer test obliges the judge executing the EAW to ask the judicial authority to assess its own independence and, additionally, to provide elements on that subject to its foreign counterparts.¹⁰⁰ However, it has been pointed out that the solution to the contrary, permitting of an automatic de facto suspension of the EAW system towards Poland in the face of the systemic rule of law problems, would amount to an unjustified “vote of no confidence” to all Polish judges, some of whom are actively fighting for their independence; moreover, it could lead to the exclusion of all polish judges from the preliminary reference system.¹⁰¹

These last considerations were of paramount importance in theOpenbaar Ministerie¹⁰² judgment of the CJEU, the “sequel” of Celmer, where the Rechtbank of Amsterdam proposed to abolish the second part of the method established (requiring an in concreto risk to be demonstrated) and allow the non-execution of a EAW merely in view of “systemic deficiencies” relating to the independence of judges, expressing concerns on the worsening of the situation in Poland. The CJEU did not “give in” and retained its previous approach, underlining that structural deficiencies vis-à-vis judicial independence do not “necessarily affect every decision that the courts of that Member State may be led to adopt in each particular case”, and that an interpretation to the contrary would mean that no court of that Member State could any longer be regarded as a ‘court or tribunal’ for the purposes of the application of other provisions of EU law, in particular Article 267 TFEU”.¹⁰³ The worsening of the situation in Poland should, in the opinion of the Court, prompt national judges to “exercise vigilance”, but it could not suffice to make the two-step test a one-step process.

3.1.2 Setting Limits to Access to Luxembourg

Another aspect of the CJEU’s tempered approach is the more recentMiasto Łowicz¹⁰⁴ ruling. In that case, the Court received two preliminary references by polish judges adjudicating in the context of administrative (financial claims against local authorities) and criminal (kidnapping) proceedings. At this occasion, the referring judges invited the CJEU to rule on the compatibility of the disciplinary regime for judges in Poland with the EU standards of judicial independence, as the abovementioned disciplinary regime undermined their independence, depriving the litigants concerned of their right to an effective remedy, guaranteed by Article 19. The Court however disagreed and held that the preliminary references at hand were inadmissible as they did not “concern an interpretation of EU law which meets an objective need for the resolution of those disputes”, but were “of a general nature”.¹⁰⁵ In other words, the Court held that the general legal question of the compatibility of the polish disciplinary regime with EU law was not essential for the resolution of the disputes arising in the main proceedings.¹⁰⁶ And while the Court applied severely its rule of admissibility, it simultaneously emitted a clear warning to Poland regarding its new disciplinary regime: the “mere prospect” of being the subject to such disciplinary proceedings was contrary to EU law judicial independence standards, but also Article 267 TFEU.¹⁰⁷

With this reasoning,Miasto Łowicz affirmed a limitation to national judges’ access to Luxembourg: the CJEU will not address the situation concerning the rule of law at the occasion of a preliminary ruling emitted by a judge adjudicating in a “random” case, the resolution of which does not necessitate the interpretation of Art. 19 TEU. This approach of the Court has led critics to question whether the Court views preliminary references as not apt to deal with problems with judicial independence, raising the issue of remedies available to individual judges, who would have to rely exclusively to the European Commission in order to guarantee their independence.¹⁰⁸ Almost as anticipating the first point of criticism, the judges in Luxembourg affirmed that “the task of the Court must be distinguished according to whether it is requested to give a preliminary ruling or to rule on an action for failure to fulfill obligations. Whereas, in an action for failure to fulfill obligations, the Court must ascertain whether the national measure or practice challenged by the Commission or another Member State, contravenes EU law in general, without there being any need for there to be a relevant dispute before the national courts, the Court’s function in proceedings for a preliminary ruling is, by contrast, to help the referring court to resolve the specific dispute pending before that court”.¹⁰⁹ Concerning the question of remedies available to national judges, it should not be overlooked that, apart from its infringement rulings, the Court has heard as admissible and gave precious guidance to national judges in several preliminary references concerning cases where judges were parties to the main proceedings and alleged a violation of the principle of judicial independence.¹¹⁰

3.2 Article 8 as a [Limited] Safeguard Against Judicial Dismissals

Moving to the ECtHR, recent changes on its case-law on the applicability of Article 8 show that this Court also avoids being proactive in every aspect of the protection of judicial independence, avoiding an overly activist approach.

3.2.1 Application of Article 8 in Judicial Careers: The Distinction Between Judicial Administration and Adjudicatory Functions

The key case in that regard isDenisov v. Ukraine, where, the applicant had been dismissed from the position of President of the Kyiv Administrative Court of Appeal on the basis of a failure to perform his administrative duties properly, while remaining a judge at the same court. The Court, apart from finding a violation of Article 6,¹¹¹ systematized its principles on the material scope of Article 8 in employment related disputes, discerning two fundamental categories: while Article 8 applied automatically in cases where a private-life issue was the underlying reason for the impugned measure (reason-based approach),¹¹² the same was not true if the private-life issue resulted from the consequences of the measure (consequence-based approach).¹¹³ In the second category, the Court established a minimum “threshold of severity”, requiring that the measure affected, substantially, aspects of one’s private life, such as: (1) the individual’s “inner circle”, in particular where there are serious material consequences, (2) the individual’s opportunities “to establish and develop relationships with others”, and (3) the individual’s reputation.¹¹⁴ The Court insisted that if “the consequence-based approach is at stake, the threshold of severity with respect to all the above-mentioned aspects assumes crucial importance. It is for the applicant to show convincingly that the threshold was attained in his or her case. The applicant has to present evidence substantiating consequences of the impugned measure. The Court will only accept that Article 8 is applicable where these consequences are very serious and affect his or her private life to a very significant degree.”¹¹⁵

The Court applied the consequence based approach in judge Denisov’s case (as the applicants removal from court president was motivated only on an assessment of his professional performance), concluding that the severity threshold was not satisfied. The Court emphasized that the applicant, despite his dismissal from court president, remained a judge and, as a consequence, continued receiving a considerable amount of his salary and working with his colleagues: his removal did not thus affect his “inner circle”, nor did it prevent him from “establishing and maintaining relationships with others”.¹¹⁶ The Court also concluded [with insistence] that the applicant’s professional reputation was not tarnished to a degree sufficient to bring Article 8 into play: “In objective terms, the judicial function constituted the applicant’s fundamental professional role. His position as president of a court, however important and prestigious it might be in the judicial sphere and however it might have been subjectively perceived and valued by the applicant, did not relate to the principal sphere of his professional activity”. Contrary to Volkov v. Ukraine, where the applicant was criticised for his performance in his judicial activities, judge Denisov’s removal concerned only his managerial skills.¹¹⁷ The Court also rejected the applicant’s argument, that his dismissal had undermined his peers’ opinion of his competence, considering it as unsubstantiated and not detailed enough, reminding the applicant’s burden in demonstrating that a measure breached the threshold of severity.¹¹⁸

The principles established by the Court inDenisov point to a turn to severity with regard to applying Article 8 in cases of judicial careers, in a double manner. The first point concerns the severity “threshold” requiring from applicant judges to argue and prove in particular detail the consequences of measures on their private life. This was not the stance that Strasbourg had adopted two years earlier in Erményi v. Hungary, where the Court found without hesitation that the dismissal of the applicant as Vice-President of the Hungarian Supreme Court constituted an interference with Article 8 of the Convention (finding a violation for the same reasons as in the Baka case).¹¹⁹ One can argue that, had the Court followed the Denisov principles in Erményi, the result could have been inadmissibility.¹²⁰ The second point is that the approach of the ECtHR in Denisov seems to implicate larger latitude for contracting States with regard to interferences with judicial careers, as long as they concern judges’ participation in judicial administration and not a judge’s judicial functions. The absence of the principle of irremovability in the Court’s reasoning could point to that conclusion, as does the Court’s insistence in the distinction between a judge’s main judicial activities and his/her participation in judicial administration.

3.2.2 Application of Article 8 in the Context of Albanian “Vetting” Proceedings: Restraining the Rights of Judges to Promote the Rule of Law

Nonetheless, when a judge is dismissedtout court, Article 8 automatically comes to play, as demonstrates the case of Xhoxhaj v. Albania.¹²¹ This case concerned a Constitutional Court judge who had been dismissed from office following the outcome of proceedings commenced in relation to her, as part of the “vetting process”, an exceptional process for the reevaluation of suitability for office of all judges and prosecutors in Albania, because of excessive findings of widespread corruption in the justice system. In that case, the Denisov test was put to work and Article 8 was deemed applicable by the Court, emphasizing (a) that the applicant was dismissed from her judicial post, losing all her remuneration with immediate effect (“inner circle”); (b) that the vetting bodies examined her judicial competence by finding that she had undermined public trust in the justice system and (c) that the applicant’s reputation was thus tarnished, “stigmatized as being unworthy of performing a judicial function.”.¹²²

Nonetheless, the Court found no violation of Article 8 with regard to Judge Xhoxhaj complaints. In general, the ECtHR found that judicial dismissals operated in the context of the “vetting process” pursued the legitimate aim of fighting corruption in the judicial system, whose extent was underlined by GRECO and the Venice Commission; in that regard, the Court also noted that the Constitutional Court had found the restrictions imposed by the vetting processjustified.¹²³ The Court did not distance itself from those particularly strong indicators, and found that such a reform responded to a “pressing social need”.¹²⁴ In the review of the particularities of Judge’s Xhoxhaj’s case, the Court also held a rather reserved stance, adhering to the subsidiarity principle.¹²⁵ Even a lifetime ban for judges to re-enter the justice system was deemed proportionate, especially “within the national context of ongoing consolidation of the rule of law”.¹²⁶ The Court’s repetition of the necessity of vastly reforming the justice system in Albania in order to preserve the rule of law, unanimously affirmed by international experts, and its simultaneous insisting on the sui generis nature of the vetting proceedings in Albania as opposed to ordinary disciplinary proceedings¹²⁷ is not without significance. Apart from serving as a serious justification of the restrictions on the rights of judges subject to vetting, this repetition could be perceived as an indicator that the ECtHR’s “understanding”¹²⁸ in this case could not be extended to other cases where the authorities would allege a “necessity” of “purging” of its judicial system.

4 Boosting the Effectiveness of the “European Judicial Protection” of the Independence of Domestic Judges: Focus on Interim Measures

The effectiveness of the “European” guarantees of independence, as above examined, can be seriously hampered if the judgments of the European Courts remain unimplemented. The execution of international judgments in an area of State competence as sensible as the organization of the judiciary could not be without its setbacks.

An element that should not be underestimated is the unwillingness of “illiberal” governments to cooperate. The general measures indicated by the Committee of Ministers in Baka v. Hungary had still not been implemented in 2020, when the Committee of Ministers expressed concerns, on a double axis. Concerning access to Court, it deplored the Parliament’s competence, established in 2012 and following the facts of Baka, to impeach the President of the Kúria without judicial review.¹²⁹ Concerning freedom of expression, the concerns that the Committee expressed in 2019,¹³⁰ regarding the “chilling effect” of measures such as the ones operated in Baka case for the freedom of expression of other judges, were still considered an open issue by the Committee in 2020,¹³¹ fact that was echoed by the European Commission in 2020.¹³² Moreover, the attitude of the Polish government can be demonstrated through its defiance with regard to some of the CJEU’s interim orders, which will be further developed below.

Another issue which can hamper the effectiveness of the European protection of judicial independence is the powerlessness of the European Courts to undofaits accomplits. This can be demonstrated by taking a closer look in the particularities of the execution of the CJEU’s infringement judgment on the Hungarian reforms, dating of 2012. In that case, the Court found that the lowering of the pension age for judges from 70 to 62, with immediate effect, was contrary to EU law, as it amounted to discrimination on the basis of age and thus to a violation of directive 2000/78.¹³³ Notwithstanding this finding of the Court, it is worth observing that many superior judges were not reinstated to their previous positions.¹³⁴ This was impossible due to the fact that judges forced into pension had, in the meantime, accepted their dismissal with some pecuniary payment,¹³⁵ and the Court’s judgment could not reverse this reality. This issue is not limited to the CJEU, but concerns also the ECtHR. Taking an example again from the context of the Hungarian reforms, one notes that Mr. Baka’s reinstatement as President of the Supreme Court was never effectuated. This was in fact deemed “impossible” by the Committee of Ministers, as the term of Mr. Baka’s successor would not expire before 2021, by which time Mr. Baka would have already himself reached the legal age of retirement.¹³⁶

Under those circumstances, it seems that some of the damage done to the independence of the judiciary might not be remedied, in spite of the Courts’ final judgments. Thus, the European guarantees of judicial independence which were proactively reinforced by the European fora could be rendered practically ineffective in the execution phase.

These problems are not to be attributed to the CJEU and the ECtHR. On the one hand, they cannot be reproached for the eventual absence of cooperation on the part of domestic authorities. Nor are the Courts omnipotent, disposing the power to undo what has been done by an act of sheer will.¹³⁷ However, the Judges sitting in Luxembourg and Strasbourg are not without their say concerning the effective implementation of their judgments, as will be discussed below.

4.1 The CJEU’s Approach: Assuring Effective Legal Protection via Interim Measures

The CJEU was doubtlessly conscious of the rapidity of the developments at the domestic level in Poland, which seemed like a real “bras-de-fer” between the political and judicial branches of power.¹³⁸ This was particularly intense in the case of the Supreme Court of Poland, the “apple of discord” being its composition, but also its Disciplinary Chamber. The Court thus adopted a proactive stance, aiming to prevent any irreversible situation that would hamper the execution of its future judgment. Additionally to following expedited procedures,¹³⁹ the CJEU prescribed interim measures.

4.1.1 Interim Measures to Prevent Irreparable Harm to the Rule of Law

The first interim injunction of the CJEU was ordered by its Vice-President 17 days after the deposition of the Commission’s infringement application. This order, adopted inaudita altera parte,¹⁴⁰ was validated by the Grand Chamber on 17 December 2018.¹⁴¹ In particular, the Court ordered the authorities to: (1) suspend the impugned law; (2) to take all necessary measures to ensure that the judges may continue to perform their duties in the positions which they held when the impugned law entered into force, while continuing to enjoy the same status and the same rights and working conditions; and (3) to refrain from adopting any measure concerning the appointment of new judges in the place of those concerned by those provisions.¹⁴²

The pre-examined approach can appear surprising, as the Court rarely prescribes interim measures in the context of infringement proceedings.¹⁴³ This has been explained by the particular nature of such measures, as an intense interference with the exercise of State powers.¹⁴⁴ Besides, the Court did not order interim measures in the case of the Polish ordinary courts.

What seems to have justified the prescription of interim measures in the case of the Supreme Court was that a loss of independence of this jurisdiction was “likely to cause serious damage to the EU legal order and thus to the rights which individuals derive from EU law and to the values, set out in Article 2 TEU, on which the European Union is founded, in particular the rule of law”.¹⁴⁵ Firstly and foremost, if the Supreme Court’s independence were compromised, the functioning of the preliminary reference system of EU law would be menaced, as the latter requires that a national jurisdiction be independent in order to participate in it.¹⁴⁶ Moreover, it would damage the functioning of the European Arrest Warrant, which was based in the principle of mutual trust, itself founded in the premise that Member States observe the value of the rule of law.¹⁴⁷ That damage would moreover be “irreparable”, since the judgments of the Supreme Court would have irreversible effects on the domestic, but also on the EU legal order, given that they have the authority of res judicata.¹⁴⁸ It would “undermine the trust of the Member States and their courts in the Republic of Poland’s judicial system and, as a result, in that Member State’s observance of the rule of law”.¹⁴⁹ Those arguments founded the “urgency” condition required for interim protection under Article 279 TFEU.

Thus, the Court announced the interim measures solicited by the Commission after having balanced the conflicting interests. In this assessment, the Court concluded that that not according interim protection would “seriously and irreparably put to risk the “general interest of the European Union in the proper functioning of its legal order”.¹⁵⁰ In this regard, the Court put particular weight to this apparent danger: if the judges concerned were not protected from the imminent forceful retirement, their future reinstatement that would be required in execution of the principal judgment of the Court would most probably be doubtful, if not impossible.¹⁵¹

The same considerations were of increased weight in the most recent order that the Grand Chamber pronounced in the context of the pending infringement proceedings relating to the reforms on the disciplinary regime of polish judges. The interim measures requested by the Commission concerned in particular the independence of the Disciplinary Chamber of the Polish Supreme Court.¹⁵² In that occasion, the Court stressed that the mere prospect that the Polish judges would be subject to a disciplinary procedure before an instance whose independence was not guaranteed would be able to endanger their own independence.¹⁵³ Then the Court reiterated that a “loss” of independence of the Polish courts implicated a systemic danger for the rule of law, and by extension, would cause serious and irreparable harm to the EU legal order itself.¹⁵⁴ Thus, the CJEU, in an “unprecedented”¹⁵⁵ move, suspended the functioning of the Disciplinary Chamber, ordering (a) the suspension of the application of the dispositions constituting the foundation on its competence and (b) that the authorities abstain from transferring any of the pending disciplinary cases before this newly constituted body, sitting in a composition which does not satisfy the requirements of judicial independence.¹⁵⁶ For the CJEU, again in this case, the intérêt général of the EU in the proper functioning of its legal order outweighed any negative consequences that would result from a temporary suspension of the Disciplinary Chamber’s activities.¹⁵⁷

4.1.2 Effective Compliance with Interim Measures and Financial Penalties

Returning to the case of the independence of the Polish Supreme Court, one should note that the order of the Grand Chamber was promptly implemented by the Polish authorities and the impugned measures were repealed.¹⁵⁸ What must have contributed in that regard was the strong message that the Court emitted, already in 2017, that it would not tolerate non-compliance with its interim injunctions.

It was in the case of the primeval forest ofBiałowieska,¹⁵⁹ in Poland, that the Court was faced with non-compliance to its first interim injunction. In view of this reality, it prescribed, for the first time, that a periodic penalty payment of 100.000 Euros per day would be imposed in case of non-compliance with the second order of the Court.¹⁶⁰ This solution was adopted despite the fact that the Court could not –and cannot- adopt such a measure in the main proceedings under the first subparagraph of Article 258 TFEU, but only in subsequent proceedings under Article 260 TFEU, concerning the non-execution of the “initial” infringement judgment.¹⁶¹ In order to overcome this obstacle, the Court relied on the broad wording of Article 279 TFEU, which confers on the Court the power to “prescribe any necessary interim measures”.¹⁶² More importantly, it insisted on the purpose of the power to issue interim injunctions: effective application of EU law, “such application being an essential component of the rule of law, a value enshrined in Article 2 TEU and on which the European Union is founded”.¹⁶³ For this reason, the Court concluded that even if the powers resulting from Article 279 were limited by their ancillary character, it could indeed include the imposition of a periodic penalty payment, if such a measure were deemed necessary in the circumstances of a given case to ensure the effectiveness of the interim measures.¹⁶⁴

The aforementioned effectiveness of Luxembourg’s interim orders is not, unfortunately, identical in every case. Concerns of non-compliance with the order suspending the functioning of the Polish Disciplinary Chamber have already been expressed by the European Commission, which sent an additional reasoned opinion to Poland in the context of the latest Muzzle Law infringement proceedings,¹⁶⁵ but also by A.G. Tanchev on 17 December 2020, in his Opinion in A.B. and others.¹⁶⁶

4.2 The Response of the ECtHR in Cases of Systemic Problems in Judicial Organization

Effective judicial protection with respect to compliance to a European Court’s own judgments in cases concerning systemic attacks on the judiciary is not only present in the reasoning of the CJEU, but is also present in the ECtHR adjudication. This problématique can be indirectly derived from the reasoning of the Court in the judgment in Baka v. Hungary, which left no doubt to the Committee of Ministers that not only individual, but also general measures targeting the organization of the whole of the Hungarian judiciary were called for.¹⁶⁷

4.2.1 Article 46 ECHR: Individual and General Measures

A more directly proactive stance in this respect can be found in the “prequel” of Denisov: Oleksandr Volkov v. Ukraine, which concerned the dismissal of a Supreme Court judge following disciplinary proceedings that did not fulfill the requirements of Article 6 of the Convention.¹⁶⁸

In that case, the Court made extensive use of its powers under Articles 41 and 46 of the Convention and explicitly prescribed general measures, taking note of the exceptional circumstances of the case, namely the serious systemic problems concerning the functioning of the Ukrainian judiciary.¹⁶⁹ In particular, the Court ordered Ukraine to urgently reform its system of judicial discipline, as it did not “ensure sufficient separation of the judiciary from other branches of State power”.¹⁷⁰ The system did not “provide appropriate guarantees against abuse and misuse of disciplinary measures to the detriment of judicial independence, the latter being one of the most important values underpinning the effective functioning of democracies”.¹⁷¹

The Court went as far as to expressly indicate individual measures, holding that “the dismissal of the applicant, a judge of the Supreme Court, in manifest disregard of the above principles of the Convention, could be viewed as a threat to the independence of the judiciary as a whole”.¹⁷² Thus, Ukraine was ordered, in point 9 of the operative part of the judgment, to reinstate Mr. Volkov in the post of Supreme Court at the earliest possible date. As results from the Concurring Opinion of Judge Yudkivska, the pronouncing of individual measures is exceptional practice of the ECtHR, and it was the first time that the ECtHR ordered the reinstatement of a person. This measure, accompanied by the general measures, was for the concurring judge called for, given “the paramount importance of the independence of the judiciary, which lies at the heart of the whole system of human rights protection”, and was in compliance with the practice of the UNHRC, which had itself requested the reinstatement of 68 irregularly dismissed judges.¹⁷³

Indeed, following the Court’s judgment, Mr. Volkov was reinstated successfully to his post after the appropriate parliamentary procedures had been followed.¹⁷⁴ The same cannot be said, however, for the general measures indicated by the Court, as shows the continuation of the Denisov “saga”.¹⁷⁵

4.2.2 Interim Measures in Cases of Systemic Attacks on Judicial Independence?

A question that remains open is whether the ECtHR could go further and adopt interim measures in future cases similar to Baka, Volkov or Kövesi. Such a solution could prevent the formation of faits accomplis such as the ones described above, and thus further promote the effectiveness of the protection offered by the European Court.

The adoption of interim measures in such cases would probably not beprima facie justified, if one focuses on the applicant judge’s individual rights. Indeed, in interim measures adjudication, this is the principal focus: the Court’s case law is well-established since its judgment in Mamatkulov and Askarov v. Turkey¹⁷⁶ that the purpose of interim measures is to facilitate the “effective exercise” of the right of individual petition under Article 34.¹⁷⁷ As the Court held there, it normally prescribes interim measures only in cases which present an immediate danger to “core rights” of individuals, essentially cases concerning Articles 2 and 3 of the Convention, or expulsions of immigrants.¹⁷⁸ However, the cases examined in this contribution are not likely to fall into this category. While in the cases of Baka, Volkov or Kovesi, the applicants did not request interim measures, Armenian Constitutional Court judges facing dismissal did, invoking violations of Articles 6, 8 and 18 ECHR. This demand was rejected, as being “outside the scope” of Rule 39, “since it did not involve a risk of serious and irreparable harm of a core right”.¹⁷⁹ Similarly, two requests which were made by Polish judges in the “rule of law backsliding” context have recently been rejected.¹⁸⁰

Nonetheless, one can argue that the Court could assess, together with the applicants’ rights, the bigger picture and insist on the systemic danger that the concrete measures against individual judges could have vis-à-vis the observance of the principles of judicial independence and of the rule of law by the respondent State. This could justify the adoption of interim measures.

In this regard, one should pay due attention to the fact that, in Mamktulov, the Court gave particular weight not only to the effectiveness of individual petitions, but also to the consistency of its interpretation with “the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society”.¹⁸¹ Such values, the maintaining of which the Court must assure, are judicial independence and the rule of law. The rule of law is a foundational European constitutional value, enshrined in the Preamble of the Convention and inherent to all its Articles.¹⁸² Judicial independence is not less fundamental for the effective functioning of a democracy, as the Court affirmed in Volkov, and a particular attack against on judge can systemically menace the judiciary in toto.¹⁸³ Thus, it seems that the Court, in its interpretation of its powers to prescribe interim protection, should aim to maintain values that are essential in the Convention system in order to achieve consistency with the general spirit of the Convention as an instrument to promote them.

The Court should by consequence take into account the gravity of the impugned measures not only with regard to the applicant judges’ rights, but also vis-à-vis the observance of the pre-cited values by contracting States, in order for its interpretation to be consistent. This would mean that the principle of the effectiveness of remedies, which applies in the proceedings before the ECtHR, would not only require a remedy capable of preventing the execution of measures whose effects are “potentially irreversible” with respect to the individual rights of the applicant¹⁸⁴; it would also justify the prevention of measures with “irreversible effects” on fundamental values such as judicial independence and the rule of law.

The grave and irreparable effects that judicial reforms such as the ones operated in Poland and Hungary could have with regard the respect of the rule of law are not to be doubted.¹⁸⁵ This has been illustrated by also the CJEU in the most dramatic tones. Besides, as President Sicilianos argued, attacks on judicial independence can threaten the whole European human rights protection system: if judges, guarantors of individual rights, are not able to adjudicate in full independence, who will effectively guarantee the rights that individuals hold under the Convention against the State¹⁸⁶? And those rights, as the Court has diachronically held, should not be “theoretical or illusory, but rights that are practical and effective”.¹⁸⁷

Interim measures could counter the effects of the inherently ex post facto character of ECTHR adjudication. While the Court has improved its adjudication time,¹⁸⁸ critics persist in this regard, pointing to [understandable, due to Strasbourg’s excessive backlog, yet detrimental for the rule of law] delays in adjudication in cases implicating judicial independence and the rule of law,¹⁸⁹ especially relating to Polish judicial reforms.¹⁹⁰ Welcoming that the Court prioritized the pending Polish cases as urgent (Category 1),¹⁹¹ interim measures could still contribute to effective protection of the rule of law.

If the Court should indeed adopt such an approach and prescribe interim protection, its relevant powers seem to have great potential. One the one hand, the Court can adopt such an order even ex proprio motu, according to the Rule 39 of the Rules of the Court (“Rule 39”). Moreover, Rule 39 confers to the Court the power to prescribe “any measure”. What remains to be seen is the ECtHR’s interpretation on the Rule 39 in terms of possible allowing the imposition of pecuniary penalties in case of non-compliance with interim measures, echoing the CJEU’s approach in Białowieska. This could indeed be considered as in line with recent developments in international law, namely EU law.

5 Concluding Remarks

Judicial independence as a conditio sine qua non for the realization of the rule of law has recently been under serious attacks not only in the countries in transition toward democracy, but also in EU member states. This paper emphasized that both the ECtHR and the CJEU strongly criticized the “illiberal” judicial reforms in Poland and Hungary, and denounced what seemed to be a political persecution of a Romanian top prosecutor. These reforms were found to not be pursuing legitimate objectives, but to be aiming at the “capturing” of the judiciary. They thus infringed the principle of irremovability, whose importance is affirmed in unison by Strasbourg and Luxembourg. Both Courts adopted a strict standard of review in this regard, be it on the Courts’ competence or on the substance, and seem to find common ground that dismissals of judges can be effectuated only under adequate guarantees, one of them being access to independent courts in order to contest their dismissals (this requirement being also relevant in cases relating to judicial appointments).

In their assessments, both Courts draw inspiration from CoE and UN instruments to substantiate their findings, especially concerning the assessments of international experts (particularly the Venice Commission). The European Courts are also not ignorant of the case-law of their counterpart, but rather draw inspiration from it.

It is particularly noteworthy that the European jurisdictions establish “in unison” the essential nature of judicial independence for the rule of law. They adopt dynamic approaches in order to defend this foundational European value, by reinforcing the European guarantees of judicial independence and making them opposable to the domestic political powers: Article 19 TEU and Article 6 ECHR. This does not mean, however, that they go as far as acting ultra vires in order to achieve it, in the sense that the CJEU and the ECtHR avoided adopting the most radical of the solutions available to them. With respect to Luxembourg’s case-law, this is visible through the analysis of its series of preliminary reference rulings with regard to Poland, where the Court showed, on the one hand, deference vis-à-vis Article 7 TEU, and, on the other hand, rigorous application of the rules on the admissibility of preliminary references addressing the general situation of the rule law in that State. Strasbourg, on the other hand, has given such signals in its interpretation of Article 8 of the Convention in cases of judicial dismissals in Ukraine, and its take on the Albanian judicial reform indicates its flexibility if it is convinced of the legitimate objective of the reform (particularly rule of law consolidation).

Coming to the issue of the effectiveness of the “European judicial protection” of the rule of law and of the independence of judges, it is clear that it can be hampered by shortcomings in the execution phase. The European Courts have done much in this respect, each one from their respective legal spheres and institutional contexts: interim measures by the CJEU and individual and general measures by the ECtHR. This contribution argues that more could be done, in particular by the ECtHR vis-à-vis interim protection. A further step that could be envisaged is that the ECtHR could focus, in its assessment of the necessity to issue interim injunctions in cases concerning structural shortcomings in judicial organization, not only on the effects of the concrete measures under its review with regard to the applicant judges’ rights. It could also give due consideration to their potentially irreversible repercussions towards the respect of the principle judicial independence by the respondent State, and by extension to its observance of the foundational value of the rule of law.

In any case, the battle for judicial independence is ongoing, notably in Poland. The Polish judicial reforms are currently under the scrutiny of the CJEU, which will decide on their compliance with Article 19 TEU, but also the ECtHR, which will deliver judgments in cases of alleged violations of Articles 6, 10 and 13 of the Convention.¹⁹²

And while the European Courts’ intervention is of paramount importance, it is not to be considered aspanacea. The debate on judicial independence is not to be decided only by the Courts in Luxembourg and Strasbourg, as one should not overlook the role of domestic judges in defending their own independence. The latter can not only defend their fundamental rights under European Law as individual applicants, but can also apply the European guarantees of judicial independence in the exercising of their functions, giving “flesh and bone” to the subsidiarity principle. In particular, judges of EU Member States could disapply, when exercising their functions, national regulations that are contrary to Article 19 TEU and to the principle of judicial independence, in the name of the primacy of EU law, being able to also order their suspension.¹⁹³ This task is, however, not a simple one, in view of the repercussions that national judges that opt to follow this path face in some countries.¹⁹⁴ As to the ECtHR, one of its “primordial tasks is to develop its case-law on the independence and impartiality of the European judiciary”, but with an emphasis to domestic national judges who have to “preserve his or her own independence vis-à-vis the governing powers”.¹⁹⁵ Actually, the defense of the rule of law is a “shared responsibility,¹⁹⁶ bearing in mind that it is for the domestic national judge “to robustly enforce constitutional guarantees of judicial independence by also taking account of the case-law of the Strasbourg Court”.¹⁹⁷