Shimon Shetreet and Christopher Forsyth
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges
The Impact of the ECHR Jurisprudence on the Austrian Practice in the Field of Judicial Independence
There is increasing acknowledgment that an independent judiciary is a main pillar for a democratic society, because the protection of human rights depends at least partly on a robust, fair, and independent judiciary. This independence can take various forms across different jurisdictions and systems of law. But the same principle always applies, namely the protection of human rights is dependent on the guarantee that judges will be free and will be perceived to be free to make impartial decisions based on the facts and the law in each case, and to exercise their role as protectors of the constitution, without any pressure or interference from other sources, especially the executive.
Domestically, constitutions of many countries stipulate that judges should handle their cases in an independent manner without any interference exercised in their business, either by the other branches of government or by any individual. At the international level there are various international instruments that deal with judicial independence.
Under public international law states are obliged to establish a system of government which can assure that international guaranteed rights and freedoms are maintained, which means that they have a duty to erect impartial and independent tribunals to decide over human rights violations. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) entitles everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Therefore the European Court of Human Rights (ECtHR) and its
Commission play a mayor role to ensure the independence of the judiciary in states which ratified the Convention.
Austria joined the Council of Europe in 1956 as its fifteenth Member State, after it had regained its full sovereignty by the State Treaty of Vienna . Because of the accession to the Council of Europe Austria signed and ratified the ECHR and its first additional Protocol of 1952. After its ratification, the Convention was officially published in the Austrian Federal Law Gazette (BGBl) without any comment on its legal status. Since a major controversy arose very soon afterwards, as to whether the ECHR formed part of constitutional law, the legislator finally clarified the status of the ECHR as constitutional law through an amendment to the Constitution in 1964. Austria was the first state to incorporate the ECHR fully into its constitutional legal order. Therefore the rights laid down in the convention have the same relevance as the original catalogue of fundamental rights in the Austrian Federal Constitution and the Basic Law of the State on the General Rights of Citizens. Therefore legislation has to observe and give effect to the rights and freedoms of the ECHR and additionally all courts and administrative authorities are obliged to apply the ECHR in all proceedings before them, which means that they have to interpret the law in a manner which does not infringe the rights laid down in the ECHR. The fact that Austria was the first state to incorporate the ECHR fully into its constitutional legal order created a high level of awareness within Austrian society concerning the ECHR itself as well as its legal and practical implications. Consequently, a relatively large amount of applications was – and is still – lodged against Austria. Most of the applications so far have concerned the Articles 5 and 6, some Articles 3, 8, 10 and 11 as well as Article 1 of the First Protocol.
Hence, the ECHR has also a prominent place in Austrian high court jurisprudence. Especially the Austrian Constitutional Court (VfGH) has displayed almost unreserved readiness to follow the European Commission’s and ECtHRs’ interpretation of the ECHR. Thus, many areas of Austrian legislation over the years have been influenced by the ECHR and the case law of the Strasbourg institutions. However, government and parliament still remain reluctant to observe and entirely fulfil the obligations specified in the ECHR.
II. DECISIONS OF THE ECTHR CONCERNING JUDICIAL INDEPENDENCE
The ECHR expressly recognises the importance of judicial independence and impartiality. The right to a fair trial in Article 6 para 1 ECHR guarantees everyone an entitlement to have cases heard by an independent and impartial tribunal established by law. The right applies equally to criminal cases and cases concerning civil rights and obligations.
A. Independent and Impartial
For a tribunal to be independent, it must function independently of the executive and the legislature and base its decisions on its own free opinion about facts and legal grounds. There must be guarantees to enable the court to function independently. Therefore regard must be had to the manner of appointment of the court’s members and their term of office. As far as the latter requirement is concerned, it is not necessary that the judges have been appointed for life, provided that they cannot be discharged at will or on improper grounds by the authorities. The absence of a formal recognition of the irremovability of judges during their terms of office does not imply a lack of independence as long as it is recognized in fact and the other necessary guarantees are present. Also there must be safeguards against outside pressure. A tribunal that is otherwise separate from the executive is not independent where it seeks and accepts as binding Foreign Office advice on the meaning of a treaty that it has to apply; in such a case it has surrendered its judicial function to the executive. With regard to other bodies, in Campbell and Fell v. UK the ECtHR indicted the considerations it takes into account when assessing independence: “In determining whether a body can be considered to be independent – notably of the executive and of the parties to the case – the Court has had regard to the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.”
For impartiality it is required that the tribunal is not biased with regard to the decision to be taken, does not allow itself to be influenced by information from outside the court room, by popular feeling, or by any pressure whatsoever, but bases its opinion solely on objective arguments on the ground of what has been put forward at the trial.
Even a semblance of dependence must be avoided. In testing whether a tribunal or judge has been prejudiced, the Court makes a distinction between a subjective and an objective approach to impartiality. The subjective approach refers to the personal impartiality of the members of the tribunal involved. This impartiality is presumed as long as the contrary has not been proved. The objective approach refers to the question of whether the way in which the tribunal is composed and organised, or a certain coincidence or succession of functions of one or more of its members, may give rise to doubt as to the impartiality of the tribunal or that member. If there are justified reasons for such doubt, even if subjectively there is no concrete indication of bias of the person in question, this already amounts to an inadmissible jeopardy of the confidence which the court must inspire in a democratic society. The fear that the tribunal or a particular judge lacks impartiality must be such that it can “be held to be objectively justified”; consequently, the standpoint of the accused on this matter, although important, is not decisive.
In the Sramek Case, where a member of the court was hierarchically subordinate to one of the parties to the suit, the ECtHR held: “Litigants may entertain a legitimate doubt about his independence. Such a situation seriously affects the confidence which the courts must inspire in a democratic society.” However, strictly speaking, the latter aspect no longer refers to the independence, but to the impartiality of the tribunal.
There is a close inter-relation between the guarantees of an independent and impartial tri¬bu¬nal. Accordingly there is a certain degree of interchange between the language of the tests used by the Strasbourg Court concerning independence and impartiality. A tribunal that is not independent of the executive is likely to be in breach of the requirement of impartiality also in cases to which the executive is a party. Likewise, a tribunal member who has links with a private party to the case is likely to be in breach of both requirements. For this reason, the ECtHR commonly considers the two requirements together, using the same reasoning to decide whether the tribunal is independent and impartial. In respect of both requirements, there is a breach not only where there is proof of actual dependence or bias (subjective test), but also where the facts raise a legitimate doubt that the requirement has been met (objective test). These tests can be deduced from Lord Hewart C.J.’s famous maxim that “… it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
The principles established in the ECtHR’s case law with regard to the notions of independence and impartiality apply to professional judges as well as to lay judges and jurors. Where a complaint concerns lack of impartiality on the part of the decision-making body, the concept of full jurisdiction demands that the reviewing court not only considers the complaint but also has the power to quash the impugned decision and either take a new decision or remit the case for a new decision by an impartial body.
Many of the decided cases on the meaning of an independent tribunal concern administrative or disciplinary tribunals, in which context the Strasbourg authorities have not imposed standards as high as might be applied to the ordinary, classic courts of law. This is particularly true of such matters as the duration of office of tribunal members and their protection from outside pressures.
In the Ringeisen Case the ECtHR held that the Regional Commission could be regarded as a tribunal as it was independent of the executive and also of the parties. The latter element, however, refers in fact not to the independence but to the impartiality of the court. The ECtHR added that the members of the Regional Commission had been appointed for five years and the proceedings before it did offer the necessary guarantees. A comparable line of reasoning was developed in the Langborger Case: “In order to establish whether a body can be considered independent, regard must be had to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.”
B. Tribunal established by Law
The prescription that the tribunal must be established by law implies the guarantee that the organisation of the judiciary is not left to the discretion of the executive, but is regulated by law. The phrase covers not only the legal basis for the very existence of a tribunal. In the opinion of the Commission the organization and functioning of the tribunal must also have a legal basis. The ECtHR left the issue undecided in the Piersack Case, but in the Posokhov Case it held that the requirement also covers the composition of the bench in each case. But the tribunal need not be “a court of law of the classic kind, integrated within the standard judicial machinery of the country”.
For the notion of tribunal it is essential that there exists a power to decide matters “on the basis of rules of law, following proceedings conducted in a prescribed manner”, and that the judicial body has “full jurisdiction, including the power to quash in all respects, on questions of fact and law, the challenged decision”.
A tribunal was defined in the Belilos Case as follows: “… a tribunal is characterized in the substantive sense of the term by its judicial function, that is to say determine matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements – independence, in particular of the executive; impartiality; duration of its members’ terms of office; guarantees afforded by its procedure – several of which appear in text of Article 6 para 1 itself”.
This definition is overly comprehensive, insofar as it contains organizational and procedural elements that, as the Court notes, are included or may be subsumed under other guarantees in Article 6 para 1 ECHR. As to the functional element, an important feature of a tribunal is that it must be competent to take legally binding decisions: the capacity to make recommendations or give advice (even if normally followed) is not enough. A tribunal’s decisions must also not be subject to being set aside by a non-judicial body and the government must not be empowered by law not to implement them, even though the power is never exercised. The fact that a body has other functions does not in itself prevent it from being a tribunal when exer¬cising its judicial function.
In the Schmautzer Case the Court held that the appeal from the administrative authorities to the Administrative Court did not satisfy the requirements of Article 6 ECHR, since the latter did not have full jurisdiction to review and quash the decision of the administrative body both on questions of fact and of law. There, the Court took into consideration that the Admini¬stra¬tive Court was sitting in proceedings that were of criminal nature for the purposes of the Con¬vention.
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, pp. 173-181