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European Yearbook of Constitutional Law Volume 1
European Yearbook
of Constitutional
Law 2019
Judicial Power: Safeguards and
Limits in a Democratic Society
Ernst Hirsch Ballin

Gerhard van der Schyff
Maarten Stremler Editors
European Yearbook of Constitutional Law
Volume 1
The European Yearbook of Constitutional Law (EYCL) is an annual publication
devoted to the study of constitutional law. The yearbook provides a forum for
in-depth analysis and discussion of new developments in constitutional law in
Europe and beyond. Each issue is dedicated to a specific theme. Papers are subject
to editorial and double-blind peer review. The yearbook is published by T.M.C. ASSER
PRESS in cooperation with Springer Publishers.
Contact
To get in touch, please send an e-mail to eycl@tilburguniversity.edu
More information about this series at http://www.springer.com/series/16431

Ernst Hirsch Ballin Gerhard van der Schyff
• •
Maarten Stremler
Editors
European Yearbook
of Constitutional Law 2019
Judicial Power: Safeguards and Limits
in a Democratic Society
123
Editors
Ernst Hirsch Ballin Gerhard van der Schyff
Tilburg University Tilburg University
Tilburg, The Netherlands Tilburg, The Netherlands
and
Maarten Stremler
University of Amsterdam Tilburg University
Amsterdam, The Netherlands Tilburg, The Netherlands
The views expressed in this Yearbook are not necessarily those of the members of the
Editorial Board, the Board of Recommendation and/or those institutions they represent,
including the T.M.C. Asser Instituut and T.M.C. ASSER PRESS.
ISSN 2405-6111 ISSN 2405-612X (electronic)

European Yearbook of Constitutional Law
ISBN 978-94-6265-358-0 ISBN 978-94-6265-359-7 (eBook)
https://doi.org/10.1007/978-94-6265-359-7
Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl
Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg
© T.M.C. ASSER PRESS and the authors 2020

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Editorial Board
Series Editors
Prof. dr. Ernst M. H. Hirsch Ballin (Editor), Tilburg University/University of
Amsterdam
Dr. Gerhard van der Schyff (Editor), Tilburg University
Dr. Maartje de Visser (Editor), Singapore Management University
Managing Editor
Maarten Stremler LLM, Tilburg University
Board of Recommendation
Prof. dr. Armin von Bogdandy, Max Planck Institute for Comparative Public Law
and International Law
Prof. em. dr. Marc Bossuyt, University of Antwerp
Prof. dr. Alfonso Celotto, Roma Tre University
Prof. dr. Janneke Gerards, Utrecht University
Prof. dr. Daniel Halberstam, University of Michigan
Preface
This is the inaugural issue of the European Yearbook of Constitutional Law

(EYCL), an annual publication that will be devoted to the study of constitutional
law. It aims to provide a forum for in-depth analysis and discussion of new
developments in the field, both in Europe and beyond. Each issue will be dedicated
to a specific theme.
While a number of journals cover the topic of constitutional law, there has until
now been no yearbook dedicated to the study of the discipline. The benefit of a
yearbook is that it can be devoted to specific themes, with a different aspect of the
field being covered each year. Although this is also possible in journals, some
journals avoid ‘special issues’, whereas others allow such issues, but remain
focused on publishing series of mostly unrelated articles.
The theme of the present volume is ‘Judicial Power: Safeguards and Limits in a
Democratic Society’, while the next volume will concentrate on ‘The City in
Constitutional Law’. We are grateful to T.M.C. Asser Press and Springer for their
support in publishing this yearbook, to Tilburg Law School for its commitment to
bringing this project to fruition, and to the authors and anonymous reviewers of this
year’s volume.
Tilburg, The Netherlands Ernst Hirsch Ballin

Gerhard van der Schyff
Maarten Stremler
vii
Contents
Part I
1 Introduction: Safeguards and Limits of Judicial Power . . . . . . . . . 3
Ernst Hirsch Ballin, Gerhard van der Schyff and Maarten Stremler
2 The Independence of the Belgian Constitutional Court . . . . . . . . . . 13
Evelyne Maes
3 Judicial Independence and Democratic Accountability: The
Function and Legitimacy of the German Federal Constitutional
Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Anja Seibert-Fohr
4 Italy and Its Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Alfonso Celotto
5 Bipolar Constitutionalism in The Netherlands and Its
Consequences for the Independence and Accountability
of the Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Geerten Boogaard
6 ‘… destroy all sense of dependence’: On the Selection and
Independence of the Judiciary in Norway . . . . . . . . . . . . . . . . . . . . 121
Eivind Smith
7 Judicial Independence and Accountability in the British
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Paul Daly
8 Independence and Accountability of the South African
Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Francois Venter
ix
x Contents
9 Judicial Independence and Accountability in the Council

of Europe and the European Court of Human Rights . . . . . . . . . . 197
Jörg Luther
10 Accountability Through Transparency and the Role
of the Court of Justice of the European Union . . . . . . . . . . . . . . . . 221
Marios Costa
11 The Last Soldier Standing? Courts Versus Politicians
and the Rule of Law Crisis in the New Member States
of the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Dimitry Kochenov and Petra Bárd
12 A Stress Test for Europe’s Judiciaries . . . . . . . . . . . . . . . . . . . . . . 289
Eirik Holmøyvik and Anne Sanders
Part II Comments and Opinions

13 The Strasbourg Court: Judges Without Borders . . . . . . . . . . . . . . 315
Marc Bossuyt
14 The Strasbourg Court: Acting Within Its Limits . . . . . . . . . . . . . . 325
Egbert Myjer
Editors and Contributors
About the Editors
Ernst Hirsch Ballin is Distinguished University Professor at Tilburg University

and Professor of Human Rights Law at the University of Amsterdam. He is the
president of the Asser Institute for International and European Law and a Member
of the Royal Netherlands Academy of Sciences. Previously, he has served as deputy
justice in the Appellate Court for the Public Service and Social Security Law, as
judge and President of the Judicial Division of the Council of State and as the
Minister of Justice of the Kingdom of the Netherlands. His current research
focusses on Dutch and transnational constitutional law, migration and citizenship,
and legal research methods.
Gerhard van der Schyff is Associate Professor in the Department of Public Law
and Governance at Tilburg University in the Netherlands. He lectures and conducts
research on constitutional law and fundamental rights in comparative and European
perspective. In 2015, he held a Humboldt Fellowship for Experienced Researchers
at the Chair of Christian Calliess at the Free University in Berlin, dealing with the
topic of constitutional identity.
Maarten Stremler is Researcher and Lecturer in Constitutional Law in the

Department of Public Law and Governance at Tilburg Law School and a guest staff
member in the Department of Constitutional and Administrative Law at Leiden
Law School. His primary research interests are constitutional law and constitutional
theory. He is writing a Ph.D. thesis on constitutional oversight by the European
Union. He is co-author of Constitutional Preambles: A Comparative Analysis
(Edward Elgar, 2016).
xi
xii Editors and Contributors
Contributors*
Geerten Boogaard Leiden University, Leiden, The Netherlands

Marc Bossuyt University of Antwerp, Antwerp, Belgium
Petra Bárd Eötvös Loránd University, Budapest, Hungary;
Legal Studies Department, Central European University, Budapest, Hungary
Alfonso Celotto ‘Roma Tre’ University, Rome, Italy
Marios Costa City, University of London, London, UK
Paul Daly University of Cambridge, Cambridge, UK
Ernst Hirsch Ballin Tilburg University, Tilburg, The Netherlands;
University of Amsterdam, Amsterdam, The Netherlands
Eirik Holmøyvik University of Bergen, Bergen, Norway
Dimitry Kochenov University of Groningen, Groningen, The Netherlands
Jörg Luther University of Eastern Piedmont Amedeo Avogadro, Alessandria,
Italy
Evelyne Maes Saint-Louis University, Brussels, Belgium
Egbert Myjer Leiden, The Netherlands
Anne Sanders University of Bielefeld, Bielefeld, Germany
Anja Seibert-Fohr University of Heidelberg, Heidelberg, Germany
Eivind Smith University of Oslo, Oslo, Norway
Maarten Stremler Tilburg University, Tilburg, The Netherlands
Gerhard van der Schyff Tilburg University, Tilburg, The Netherlands
Francois Venter North-West University, Potchefstroom, South Africa
*
The full information on each contributor is included at the end of the chapter they contributed to.
Part I
Chapter 1
Introduction: Safeguards and Limits
of Judicial Power
Ernst Hirsch Ballin, Gerhard van der Schyff and Maarten Stremler
Contents
1.1 Judicial Power and Judicial Independence ....................................................................... 3

1.2 Judges in a Democratic Society ........................................................................................ 6
1.3 Varieties of Safeguards and Limits................................................................................... 7
1.4 Deliberative Constitutionalism .......................................................................................... 9
References .................................................................................................................................. 11
1.1 Judicial Power and Judicial Independence
This first volume of the European Yearbook of Constitutional Law is devoted to the
theme of judicial power. Countless treatises on the judiciary have preceded the
publication of this yearbook. Although the various authors of this volume have
naturally relied on these preceding publications, they have also chosen on this
occasion to focus on a specific angle, in which the power of judges has been
problematized. By taking binding decisions, judges exercise far-reaching powers.
While their decisions can protect, they can also seriously limit the freedom of
citizens or otherwise determine how this freedom is used. Modern courts can also
influence and even drive processes of national transformation such as in
E. Hirsch Ballin (&) G. van der Schyff M. Stremler

Tilburg University, Tilburg, The Netherlands
e-mail: ballin@tilburguniversity.edu
G. van der Schyff
e-mail: g.vdrschyff@tilburguniversity.edu
M. Stremler
e-mail: m.stremler@tilburguniversity.edu
E. Hirsch Ballin
University of Amsterdam, Amsterdam, The Netherlands
© T.M.C. ASSER PRESS and the authors 2020 3

Hirsch Ballin, Van der Schyff & Stremler (eds.), European Yearbook of
Constitutional Law 2019, European Yearbook of Constitutional Law 1,
https://doi.org/10.1007/978-94-6265-359-7_1
4 E. Hirsch Ballin et al.
post-conflict societies, or processes of integration and constitutionalization such as

that of the European project.1 Judicial power needs, as a consequence of such
potential, to be subject to constraints. The common phrase of ‘judicial indepen-
dence’ suggests the absence of restraint. In the context of a constitutional democ-
racy, however, no power can be absolute and without some element of restraint or
confinement. Hence the demand for safeguards and limits on judicial power. The
authors of this yearbook analyse and discuss these safeguards in a variety of
constitutional systems, both at a national and supranational level in Europe and
beyond.
According to the classical doctrine of ‘judicial independence’, independence
indicates the absence of opportunities for politics and governance to influence the
judiciary.2 The judicial independence recognized in human rights treaties and many
constitutions – whether credible or otherwise – is designed to ensure that the
judiciary is impartial and not subject to instructions from other state powers. While
the separation of state powers is intended to serve as a blueprint for this, judicial
independence does not exist in a separate or parallel universe. Instead, the judiciary
is part of the constitutional system and operates within a legal order that connects
the citizens and powers of that state to each other. Looking at judicial independence
from this broader perspective, the traditional trias politica would appear no longer
to adequately represent the diversity and complexity of constitutional systems and
their democratic legitimacy in today’s world.3
Tim Koopmans, for example, has characterized modern constitutionalism as
‘bipolar’.4 By this he means that political institutions, understood as the executive
and the legislature, are nowadays held to account not only through elections and
political checks and balances, but also through review by national and supranational
courts. This development, which amounts to a reconfiguration of the trias politica,
highlights the need for a new assessment of judicial power in the contemporary
constitutional context. Similarly, the political theorist Pierre Rosanvallon speaks of
the ‘judicialisation of politics’, by which he means the tendency of citizens to use
the judicial process in order to achieve what they fail to accomplish via the ballot
box.5 This he views as an example of ‘counter-democracy’, understood to mean an
expression of democratic distrust that actually serves to buttress and complement
electoral democracy instead of fundamentally opposing it.
Also illustrating the limits of the trias politica as a definitive frame of analysis,
Mark Tushnet points not only to the emergence of the administrative state as a
1
For analyses of the transformative function with a focus on the Constitutional Court of South
Africa, see Robertson 2010, pp 255–270 and Chap. 8 by Venter in this volume. See Stone Sweet
2004, pp 64–96 for an account of the constitutional impact of the European Court of Justice (and
its dialogue with national courts), and compare Claes 2006, who develops a ‘bottom-up’ view in
this regard centred on the perspective of national courts in the European Union.
2
Consider Bell 2006, pp 26–29. See also Venter 2010, pp 67–70.
3
Ackerman 2017, p 40.
4
Koopmans 2003, pp 248–251.
5
Rosanvallon 2008, pp 8; 227–247.
1 Introduction: Safeguards and Limits of Judicial Power 5
fourth branch of governance, but also to a possible fifth branch.6 The latter branch
would address the need in modern systems of governance to prevent constitutional
corruption and decay and address conflict-of-interests problems that do not easily fit
the separation of powers. This branch he distinguishes from the judiciary, while
noting that institutions within the new branch might take some inspiration from the
courts in wanting to combine independence and accountability – but probably in a
different configuration to that found in courts.7 Tushnet also explores what he
describes as going beyond the fifth branch. This pertains to a discussion of Roberto
Mangabeira Unger’s proposal to create a ‘destabilization branch’ with which to
interrupt routines and prevent ossification in social institutions, to which govern-
ment bureaucracies and agents also belong.8 This is definitely appealing as a way to
conceptualize judicial power today, given that courts can and do destabilize
bureaucracies in the service of constitutional rights in this manner.9 There is also no
denying that acting in this way courts generate political controversy, which leads to
questions about the proper role of the judicial function.10
Observations and discussions like these reinforce, once more, the need to look
afresh at judicial power in its present-day context.
Many treatises on judicial independence focus on the need to ensure an absence
of risks emanating from politics and governance. There are good reasons for this.
But while the importance of insulating the judiciary from improper political pres-
sure exerted by members of the executive or legislature can hardly be
over-emphasized, this yearbook investigates the idea of judicial independence
somewhat differently: not in an – untenable – conceptual separation, such as the
traditional notion of separation of powers would seem to involve, but instead as an
institutionalizing of relationships that legitimize the power of the courts. No
institution in a constitutional democracy can have its legitimacy in isolation;
legitimacy is acquired within the wider context of the constitutional system as a
whole. The judiciary is part of the state system and operates in a legal order that
connects the citizens and institutions of that state – increasingly in a multi-level
environment. The notions of ‘safeguards’ and ‘limits’ indicate the reciprocally
enabling and protecting nature of these relationships.
In recognition of this, the contributions to this volume analyse these safeguards
and limits as relations existing within a complex constitutional architecture. The
authors, coming from a variety of legal cultures, mainly European, demonstrate the
diversity of these relations. Despite the simplicity of the trias politica model, a
constitutional order is characterized by complexity. However, this must not lead to
6
Tushnet 2018, pp 107–123.
7
Ibid., p 119.
8
Ibid., pp 123–124.
9
Ibid., p 125.
10
Ibid.
instability with regard to fundamental characteristics, such as judicial indepen-

dence. This architecture is not a fixed system; it can only work and retain its
legitimacy if it is able to absorb internal and external system turbulences appro-
priately, while also continuing to uphold its constitutional principles.
1.2 Judges in a Democratic Society
A constitutional democracy is the organizational framework for opinion-forming

and decision-making for a democratic society. The phrase ‘democratic society’
plays a central role in the European Convention on Human Rights and Fundamental
Freedoms.11 It functions like a chorus, as the only situation in which legislators may
impose restrictions on fundamental rights such as the freedom of expression and the
freedom of religion is when these restrictions are ‘necessary in a democratic
society’. When it comes, however, to the fundamental rights of fair trial and an
effective remedy (Articles 6 and 13), such restrictions seem out of place because
access to justice serves and guarantees the democratic society in which fundamental
rights are to be effected.
Here, however, we encounter an antinomy12 that is currently contributing to
serious tensions around judicial independence, and specifically the question of how
to prevent a situation in which judges exercising their independence become
detached from the democratic society that they are required to protect. In a number
of European countries, populist parties, which all came to power on the basis of free
elections, have recently attempted to thwart the independence of the judiciary.13
In many countries, the judiciary is the frontline where questions of legitimacy
and populist criticism of supposed elitism manifest themselves. This is made par-
ticularly clear in the contribution to this volume by Dimitry Kochenov and Petra
Bárd. Discussing developments in Hungary and Poland in Chap. 11, they describe
how autocratic regimes, operating in the name of ‘democracy’ and under the pretext
of ‘reform’, have curbed the powers of the courts and effectively captured the
judiciary. They also note that while the political institutions of the European Union
seem to lack the political will to take concrete measures in the face of what the
authors call ‘rule of law backsliding’ in the Member States, the Court of Justice is
developing new case law contributing to the formation of supranational standards of
judicial independence.
11
Van der Schyff 2005, pp 198–211.
12
The notion of antinomies between fundamental constitutional decisions was coined by Norbert
Achterberg. See Achterberg 1969.
13
See the contributions by Gábor Attila Tóth, Dimitry Kochenov and Kim Lane Scheppele in
Adams et al. 2017. See also AIV 2017.
The discussions about how the European Court of Human Rights (ECtHR)
perceives its responsibilities are another manifestation of the aforementioned ten-
sion. This becomes clear from the debate in this volume between Marc Bossuyt, the
former President of the Constitutional Court of Belgium, and Egbert Myjer, former
judge on the bench in Strasbourg. While Bossuyt in Chap. 13 contends that the
Strasbourg Court has been expanding its mandate by attributing positive obligations
to civil rights and by its close scrutiny of asylum cases in the absence of an express
right to asylum in the Convention, Myjer in Chap. 14 counters that the High
Contracting Parties have never criticized the Court for interpreting the Convention
‘without borders’. Myjer recalls that the Court interprets the Convention as a living
instrument in the light of present-day conditions and mentions the duty of the Court
to protect the rights and freedoms of those residing within its jurisdiction.
1.3 Varieties of Safeguards and Limits
Constitutional jurisdiction, whether as a separate discipline or otherwise, occupies a

distinguished place in this yearbook. The contributions relate mainly to continental
European, codification-based legal systems, with contributions from countries
representative of various parts of the continent. But Brexit or not, the question of
how to prevent a situation in which judges exercising their independence become
detached from the democratic society that they are required to protect also arises in
the world of common law. That is why this yearbook also gives a place to judicial
independence in the legal system of England and Wales, as well as to the legal
system of South Africa, where civil and common law traditions meet in a consti-
tutional framework that a quarter of a century ago, after the abolition of Apartheid,
was just starting out on the path towards building a democratic society.
While all the countries discussed in this yearbook can be regarded as constitu-
tional democracies, the individual chapters demonstrate that the safeguards and
limits to judicial power vary considerably. As Geerten Boogaard explains in
Chap. 5 on the Netherlands, this diversity is the result of historical developments,
which are different for each state. The principle that judges are independent of the
legislature and executive can safely be said to be a common point of departure in
most constitutional systems. But while in some countries the financial and orga-
nizational position of the judiciary is also included in the constitutional set-up, this
dimension is lacking in others.
The method of appointing judges is a characteristic of their independence, or
lack of it. In the Netherlands, appointments of judges are traditionally for life and
made by Royal Decree on the proposal of the Minister of Justice. In the case of
appointments to the Supreme Court (i.e. the Court of Cassation), the House of
Representatives (the Chamber of Deputies) nominates three people, while other
judges are appointed on a recommendation from the Council for the Judiciary. The
role of the Minister of Justice has gradually been reduced to a procedural one,
without any amendments to the Constitution in this respect. From this we can see
that independence depends not only on explicit constitutional standards, but also on
conventions and other behavioural patterns that have developed over time in the
relationship between the highest state institutions.
Like Boogaard does for the Dutch judiciary, Alfonso Celotto in Chap. 4 situates
the position of the Italian Constitutional Court in a bipolar schema of constitutional
relationships. Judges in Italy rule on constitutional questions, but not as the sole
actors. Although the Italian Constitution firmly and clearly enshrines the
Constitutional Court in its legal system, Celotto observes a greater measure of
restraint in the Court’s relationship with the country’s political institutions than in
its relationship with other courts.
Paul Daly in Chap. 7 outlines the highly contrasting position of the British
judiciary, with a particular focus on the legal system of England and Wales. The
whole constitutional development of the United Kingdom is one of principled
pragmatism rather than system design. For instance, the Supreme Court in that
country has no normative basis to place its judgement on the constitutionality of
laws above that of Parliament. Judicial pay and pensions are vulnerable to changes
in the political climate. What is even more remarkable is the way in which the other
highest state organs relate to the judiciary. Based on recent examples, these
arrangements would appear to be insufficiently characterized by an awareness of the
constitutional value of courts’ independent jurisdiction.
In contrast to the principled pragmatism of British constitutionalism, the South
African system can rightly be regarded as an example of constitutional design, and
even grand design. Francois Venter explains in Chap. 8 how the judiciary in that
country, and in particular the Constitutional Court, has established itself as the most
important instrument in developing and protecting constitutionalism. In this system,
Koopmans’ above-mentioned notion of bipolar constitutionalism is plain to see.
Venter’s analysis also shows the tensions generated by seeking to protect consti-
tutional supremacy through the judicial function in such a fundamental manner.
A reliance on the judicial branch to safeguard the country’s Constitution is also
apparent in German constitutionalism. In Chap. 3 on Germany, Anja Seibert-Fohr
explains that the constitutional role of judges is key in balancing the tension
between democracy and the rule of law in a system where the courts have a duty
to protect the Constitution. She stresses the interplay of democratic legitimation
and the qualification of professional judges in making judicial appointments. But
there is more: in her view, constitutional jurisprudence itself also plays an
important role in striking a balance in the same bipolar zone of conflict. The
methodology of interpretation and the judges’ practice of restraint concerning
political decisions concretize their relationship to democratically legitimated
majority decisions.
As Evelyne Maes illustrates in Chap. 2 on the Belgian Constitutional Court, the
independence of an institution is determined not only by the constitutional
entrenchment of its existence, competences and composition and by its normative,

organizational and financial autonomy, but also by the independence and impar-
tiality of each of its members. Although she concludes that the Belgian
Constitutional Court is a strong and independent institution, she is critical of cuts in
the Court’s funding, as well as of the procedure for nominating new judges. This
procedure does not always involve a parliamentary hearing, at least not necessarily
one of a serious nature, while, in her view, Parliament’s involvement in the
appointments procedure is crucial if constitutional judges are to have true demo-
cratic legitimacy.
The appointment of judges is also a matter of discussion in Norway, as the
contribution by Eivind Smith shows. Unlike many other countries, Norway has not
assigned the task of judging the constitutionality of formal legislation and other acts
of parliament to a constitutional court, but instead to courts of general jurisdiction.
In such a system, where judges may be involved in the task of authoritative
norm-setting, it could be argued that it is far from obvious that judicial indepen-
dence requires judges to be selected in complete isolation from the political bran-
ches of government. In Chap. 6 Smith contends that elements of open political
appointments may even be necessary to ensure a sufficient level of legitimacy,
regardless of the high level of social trust present in that country.
Whereas most contributions to this volume focus on the independence of the
judiciary in states, Chap. 10 by Marios Costa examines the role played by the Court
of Justice of the European Union with regard to accountability in the EU. In
analysing the EU access to documents regime from a perspective of accountability,
Costa argues that the case law of the Court creates a substantial accountability gap
because of restricting the right to access documents.
In addition to the European Union, the Council of Europe offers a constitutional
meta-level on a pan-European scale. This applies particularly in the case law of the
ECtHR, but also in the Council’s efforts as an institution, fuelled by the ‘Venice
Commission’. With regard to the Council of Europe, Jörg Luther in Chap. 9
examines the general principles of judicial independence and legal accountability as
they relate to the ECtHR and calls for the further development of the Court’s
institutional independence. Meanwhile, in Chap. 12 Eirik Holmøyvik and Anne
Sanders outline the elements of a stress test for judicial independence, concluding
with the pertinent question of whether it is the constitutional arrangement or rather
the constitutional culture that ensures the independence of the judiciary.
1.4 Deliberative Constitutionalism
The most important source of legitimacy for judicial decisions is the legality of the
law in force, which always needs to be explained when being applied. In the past,
the law in force was viewed as a single legal order, but today’s reality of a
multi-layered order and multi-level governance makes this much more complicated.
Judges have to identify the sources of their legitimacy in this complex legal
structure. We are no longer talking here of a single legitimating legal source
(usually a certain piece of legislation), but rather of a plurality of anchor points in a
complex network. Within the confines of a single legal order, it could be assumed
that the law is something that can be found ‘out there’. In a pluralist, layered legal
order, however, judges are themselves co-actors in a dynamic process, such as that
of European legal development.14 The legitimacy of a judicial decision is not
implied by the democratic content of the sources of law on which it is based, but
instead requires further deliberation and argumentation. This is especially true for
international judges, whose constitutional embeddedness is quite rudimentary,15
and for constitutional judges, whose work begins where the highest legislative
bodies have left ambiguity.16
In all these situations – in one more so than the other – judges themselves
become actors in the deliberative constitutionalism characterizing a democratic
society: ‘Judicial decision can trigger dialogue.’17 It is a role that judges cannot
evade in a democratic society, and they have to fulfil it in an acceptable, proce-
durally legitimating way. Like other actors in this process, judicial institutions have
to define their own constitutional position in interaction with the other institutions
and the citizens of the state. The more effectively the safeguards that anchor judges
in the constitutional system function, the more judges will be able to avoid rigidity
in respect of the limits set on their role.
In the meantime, changes in political culture mean these political state institu-
tions are themselves involved in a fundamental transformation of what they
understand their function to entail, particularly as a result of the vehement desire for
direct control that, through the ballot box, is challenging the moderating effect of
guarantees of fundamental rights and the rule of law. The judiciary cannot maintain
these guarantees if political support is weakening. Several contributions to this
volume provide examples of political criticism and pressure on the judiciary,
against which the usual guarantees are unable to provide protection. The pressure
on judges in many states shows that the risk of the rule of law being eroded is not
limited to the EU Member States Poland and Hungary, which are being criticized in
various EU circles, as evidence of the fragility of constitutional arrangements in
times when power questions dominate is visible in other countries as well.
When judicial power comes into direct confrontation with political power, the
very foundations of a constitutional system are put to the test. The rejection,
especially by populist movements, of judicial rulings that protect the weak is a
phenomenon perceptible in many Western democracies today. If their rigorous
14
Hirsch Ballin 2004.
15
Von Bogdandy and Venzke 2014, p 215.
16
Möllers 2011.
17
Young 2018, p 133.
rejection of migrants, for example, is not compatible with judicial review, such
movements boast of voicing the ‘will of the people’. A constitutionalist-minded
response requires careful argumentation and should focus specifically on con-
firming what all state institutions need: a legitimacy that ultimately lies in the
principle of protecting every human being and everyone’s life situation, including
in a political and economic sense.
Complex systems, to which democratic constitutional orders under the rule of
law unquestionably belong, encompass a multitude of stabilizing and destabilizing
features. Going back to the idea of merely ‘separating’ powers is desperately
inadequate. This is why a convincing and effective response to threats to the
judiciary’s independence requires a detailed and precise analysis of the judiciary’s
constitutional safeguards and limits.
References
Achterberg N (1969) Antinomien verfassunggestaltender Grundentscheidungen. Der Staat 8:159–

180
Ackerman B (2017) Good-bye, Montesquieu. In: Ackerman S R et al (eds) Comparative
Administrative Law. Edward Elgar, Cheltenham, pp 38–43
Adams L H J et al (eds) (2017) Constitutionalism and the Rule of Law: Bridging Idealism and
Realism. Cambridge University Press, Cambridge
AIV (2017) The will of the people? The erosion of democracy under the rule of law in Europe.
Adviesraad voor Internationale Vraagstukken, The Hague
Bell J (2006) Judiciaries within Europe: A Comparative Review. Cambridge University Press,
Cambridge
Claes M (2006) The National Courts’ Mandate in the European Constitution. Hart Publishing,
Oxford/Portland
Hirsch Ballin E M H (2004) Reflections on co-actorship. In: Hirsch Ballin E M H, Senden L
(eds) Co-actorship in the Development of European Law-Making: The Quality of European
Legislation and its Implementation and Application in the National Legal Order. T.M.C. Asser
Press, The Hague, pp 3–23
Koopmans T (2003) Courts and Political Institutions: A Comparative View. Cambridge University
Press, Cambridge
Möllers Ch (2011) Legalität, Legitimität und Legitimation des Bundesverfassungsgerichts. In:
Jestaedt M et al (eds) Das entgrenzte Gericht: Eine kritische Bilanz nach sechzig Jahren
Bundesverfassungsgericht. Suhrkamp, Berlin, pp 281–405
Robertson D (2010) The Judge as Political Theorist: Contemporary Constitutional Review.
Princeton University Press, Princeton/Oxford
Rosanvallon P (2008) Counter-Democracy: Politics in an Age of Distrust. Cambridge University
Press, Cambridge
Stone Sweet A (2004) The Judicial Construction of Europe. Oxford University Press, Oxford
Tushnet M (2018) Advanced Introduction to Comparative Constitutional Law. Edward Elgar,
Cheltenham/Northampton MA
Van der Schyff G (2005) Limitation of Rights: A Study of the European Convention and the South
African Bill of Rights. Wolf Legal Publishers, Nijmegen
Venter F (2010) Global Features of Constitutional Law. Wolf Legal Publishers, Nijmegen
Von Bogdandy A, Venzke I (2014) In wessen Namen? Internationale Gerichte in Zeiten globalen
Regierens. Suhrkamp, Berlin
Young A L (2018) Dialogue, Deliberation and Human Rights. In: Levy R et al (eds) The
Cambridge Handbook of Deliberative Constitutionalism. Cambridge University Press,
Cambridge, pp 125–138
Ernst Hirsch Ballin is Distinguished University Professor at Tilburg University and Professor of
Human Rights Law at the University of Amsterdam. He is the president of the Asser Institute for
International and European Law and a Member of the Royal Netherlands Academy of Sciences.
Previously, he has served as deputy justice in the Appellate Court for the Public Service and Social
Security Law, as judge and President of the Judicial Division of the Council of State and as the
Minister of Justice of the Kingdom of the Netherlands. His current research focusses on Dutch and
transnational constitutional law, migration and citizenship, and legal research methods.
Gerhard van der Schyff is Associate Professor in the Department of Public Law and Governance
at Tilburg University in the Netherlands. He lectures and conducts research on constitutional law
and fundamental rights in comparative and European perspective. In 2015, he held a Humboldt
Fellowship for Experienced Researchers at the Chair of Christian Calliess at the Free University in
Berlin, dealing with the topic of constitutional identity.
Maarten Stremler is Researcher and Lecturer in Constitutional Law in the Department of Public
Law and Governance at Tilburg University and a guest staff member in the Department of
Constitutional and Administrative Law at Leiden Law School. His primary research interests are
constitutional law and constitutional theory. He is writing a PhD thesis on constitutional oversight
by the European Union. He is co-author of Constitutional Preambles: A Comparative Analysis
(Edward Elgar, 2016).
Chapter 2
The Independence of the Belgian
Constitutional Court
Evelyne Maes
Contents
2.1 Introduction........................................................................................................................ 14
2.2 The Independence of a Constitutional Court and the Rule of Law................................. 15
2.2.1 Threatening the Independence of Constitutional Courts ....................................... 15
2.2.2 The Rule of Law and the Independence of (Constitutional) Judges .................... 17
2.3 The Institutional Independence of the Belgian Constitutional Court............................... 19
2.3.1 The Conditions for Independence of the Institution.............................................. 20
2.4 The Independence of the Judges....................................................................................... 27
2.4.1 The Appointment Procedure .................................................................................. 27
2.4.2 The Mandate and its Incompatibilities................................................................... 34
2.4.3 Discipline and Dismissal ........................................................................................ 35
2.5 No Dissenting Opinions by Constitutional Judges........................................................... 35
2.6 Conclusion ......................................................................................................................... 37
References .................................................................................................................................. 38
Abstract The independence of a constitutional court depends on the independence

of the institution itself and of its members. This chapter argues that the Belgian
Constitutional Court is a strong, independent institution. Its existence, competences
and composition are entrenched in strong legislation: the Belgian Constitution and
the Special Act on the Constitutional Court. The Belgian Constitutional Court also
enjoys normative and operational autonomy. The financial autonomy of the
Constitutional Court is however not fully guaranteed in practice, for two reasons.
Firstly, the government forces the Constitutional Court to cut down on its expen-
E. Maes (&)
Saint-Louis University, Brussels, Belgium
e-mail: evelyne.maes@lozie.com

https://doi.org/10.1007/978-94-6265-359-7_2
14 E. Maes
ditures, regardless of the consequences on its functioning. Secondly, the House of

Representatives wants to have more control on the budget and the expenditures of
the Constitutional Court than the Special Act on the Constitutional Court allows for
at the moment. It is argued that more control by the House of Representatives
would endanger the independence of the Constitutional Court and the principle of
the separation of powers. It is furthermore argued that the independence of the
constitutional judges is also quite well safeguarded. Nevertheless, the appointment
procedure could be ameliorated by the obligation for Parliament to organize a
public hearing before confirming the nomination of a candidate-judge. This would
contribute to the legitimacy and thus independence of the Constitutional Court.
Finally, it is argued that the accountability of the Constitutional Court could be
reinforced if the Constitutional Court would use a more deliberative argumentation
style and would allow separate opinions.

Keywords appointment procedure budget and expenditures control

Constitutional Court of Belgium deliberative argumentation style entrenched

legislation financial autonomy judicial independence public hearing separate
opinions
2.1 Introduction
In a Rechtsstaat (état de droit, a democracy governed by the rule of law), the

independence of the judiciary is crucial to safeguard the balance of power between
the legislator, the executive and the judiciary. As constitutional courts are com-
petent to annul legislation, they have an even more important role in this balance of
power. The independence of such a constitutional court is therefore paramount.
History has however shown us that the independence of constitutional courts has
not always been safeguarded. Therefore international courts are (and should be) the
watchdog to oblige states to safeguard the independence of their (constitutional)
judges. In this chapter, I investigate whether the Belgian constitutional court, as an
institution, is truly independent. First, I look at the factors that guarantee the
independence of the institution. Those factors are the entrenchment in strong leg-
islation of the existence, competences and composition of the constitutional court
and its autonomy. An institution is however just as (in)dependent as its members
are. Therefore, I look at the factors that determine the independence of the con-
stitutional judges. The appointment procedure is an important factor to assess the
independence of a judge, as a constitutional judge should also enjoy democratic
legitimacy. I investigate whether the demands of democratic legitimacy can be
reconciled with the demands of independence. Further, I look at the duration of the
mandate and the rules on removal from office to assess whether the Belgian con-
stitutional judges are truly independent. Finally, I have a quick regard to the way
the Belgian constitutional judges are accountable for the role they take in balancing
powers in the Belgian (federal) state.
2 The Independence of the Belgian Constitutional Court 15
Having in mind the threats to its independence a constitutional court can suffer, I
will argue that the Belgian Constitutional Court is a strong, independent institution.
Its existence, competences and composition are entrenched in strong legislation (the
Constitution and the Special Act on the Constitutional Court). The Belgian
Constitutional Court also enjoys normative and operational autonomy. The finan-
cial autonomy of the Constitutional Court is however not fully guaranteed in
practice. I will argue that the independence of the constitutional judges is also quite
well safeguarded. Nevertheless, the appointment procedure could be ameliorated by
the obligation to Parliament to organize a public hearing, before confirming the
nomination of a candidate-judge. Finally, I argue that the accountability of the
Constitutional Court could be reinforced, if the Constitutional Court would use a
more deliberative argumentation style and would allow separate opinions.
2.2 The Independence of a Constitutional Court

and the Rule of Law
2.2.1 Threatening the Independence of Constitutional

Courts
Constitutional history has showed us that even the most independent constitutional
courts have been subject to attempts, by the legislator and/or the executive, to
weaken the independence of constitutional courts. Legislators and executives have
tried to influence the case law of constitutional courts by changing its composition
or competences or have flatly ignored judgements of constitutional courts.
One of the most famous examples of a threat to the independence of a consti-
tutional court is the so-called ‘court packing plan’ of President Roosevelt of the
United States of America in response to the case law of the US Supreme Court
regarding the New Deal legislation.1 With the New Deal legislation President
Roosevelt tried to combat the financial and economic crisis of 1929. The US
Supreme Court considered this legislation however unconstitutional as it violated
the limited competence of the federal state in interstate commerce. In 1936,
President Roosevelt was re-elected as President with a great majority of votes. He
considered this electoral victory as a confirmation of his New Deal policy. To tackle
the Supreme Court, he introduced a Bill to change the composition of the US
Supreme Court (the ‘court packing plan’): according to the Bill the President would
be able to nominate an additional Justice, with a maximum of six, for every Justice
1
The US Supreme Court is not a constitutional court in the European sense of a constitutional
court. It is a Supreme Court, which reviews the judgements of lower cases. In practice, the US
Supreme Court considers its jurisdiction over constitutional issues as its main mission and scru-
tinises mainly legal norms and their implementation to the US Constitution. Bishop et al. 2006,
p 26 and Shapiro 2013, p 64.
16 E. Maes
that would not retire at the age of 70. The Supreme Court would then count fifteen
Justices instead of nine. Less than two months after the introduction of the Bill, the
Supreme Court changed its case law on the interstate commerce clause in the case
West Coast Hotel Co. v. Parrish. Important New Deal legislation was found con-
stitutional. This case is called the ‘switch in time that saved nine’. The Bill to pack
the US Court was later rejected by Congress.
The US legislator has also tried to influence the case law of the US Supreme
Court by changing the competence of the Supreme Court. To avoid a declaration of
unconstitutionality, Congress legislated in 1869 that the Supreme Court, while a
case was pending, no longer had the competence to scrutinize a habeas action.2 The
court session had already taken place, the Court Opinion however was not yet
delivered. Due to the constitutional competence of Congress to decide on the
competence of the Supreme Court regarding its appellate jurisdiction, the Supreme
Court accepted that it had lost its competence to decide the case. The Supreme
Court rejected the appeal.3
Unfortunately, there are also more recent examples. At the elections of 2010 and
2014, the party Fidesz got a two third majority in the Hungarian Parliament. This
large majority enabled this party to change the constitution and to establish a new
constitution. This party has used this competence to change the case law of the
Hungarian Constitutional Court and to limit its competences.
The Hungarian legislator limited firstly the competence of the Constitutional
Court after the Constitutional Court had decided that a taxation of 98% on very high
termination fees for public servants was unconstitutional. The Constitution was
amended and the Constitutional Court was no longer competent to decide on
financial and budgetary legislation.4 This constitutional amendment was contested
before the Hungarian Constitutional Court. In the absence of substantial limitations
to the power to amend the constitution, the Hungarian Constitutional Court denied
itself the authority to perform a review on the substance of the amendment. In a
later decision, the Hungarian Constitutional Court indicated that it might be com-
petent to review constitutional amendments from the perspective of substantive
constitutionality.5
The Council of Europe disapproved the constitutional changes in Hungary.
According to the Venice Commission, the constitutional amendments in order to
2
The Congress has this competence on the ground of Article III, Section 2, para 2, fine US
Constitution: ‘In all the other Cases before mentioned, the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.’
3
SC 12 April 1869, Ex parte McCardle, 74 U.S. 506 (1869). The Supreme Court had the
possibility to decide the case before the entering into force of the new Act. The majority of the
Supreme Court Justices did not want to do that. Choper 1974, p 852 and Hall 1999, p 180.
4
The Hungarian Constitutional Court is now only competent to scrutinise legislation for viola-
tions of the right to life and human dignity, the protection of privacy, the freedom of thought, of
conscience and religion and the rights regarding Hungarian citizenship.
5
Kovács 2013, pp 3–4.
change the case law and competences of the Constitutional Court were a threat for
constitutional justice and for the supremacy of the basic principles contained in the
Constitution of Hungary. The limitation of the role of the Constitutional Court leads
to a risk that it may negatively affect all three pillars of the Council of Europe: the
separation of powers as an essential tenet of democracy, the protection of human
rights and the rule of law.6
The European Commission also raised questions about the conformity of the
Hungarian constitutional changes with the rule of law but awaited the report of the
Venice Commission.7 Constitutional lawyers called up the European Commission
to start an infringement procedure against Hungary.8 The European Commission
has not done that for the constitutional amendments regarding the competence of
the Constitutional Court.
The European Commission however has started an infringement procedure
against Poland for violating the principle of independence of the Constitutional
Tribunal.9 The European Commission asks Poland to restore the independence and
legitimacy of the Constitutional Tribunal as guarantor of the Polish Constitution. Its
independence and legitimacy are violated because the current composition of the
Constitutional Tribunal is illegal. The European Commission demands that Poland
ensures that the judges, the President and the Vice- President of the Constitutional
Tribunal are lawfully elected and appointed. Therefore, Poland should implement
the judgments of the Constitutional Tribunal of 3 and 9 December 2015 which
require that the three judges that were lawfully nominated in October 2015 by the
previous legislature can take up their function of judge in the Constitutional
Tribunal. Secondly, the three judges nominated by the new legislature without a
valid legal basis should no longer adjudicate without being validly elected. The
European Commission also asks to publish and implement fully the judgments of
the Constitutional Tribunal of 9 March 2016, 11 August 2016 and 7 November
2016.
2.2.2 The Rule of Law and the Independence

of (Constitutional) Judges
The abovementioned examples show that the independence of a constitutional court

can be threatened by several means: changing the law on the competence and the
6
Venice Commission Opinion 720/2013, p 20.
7
European Commission, ‘Hungary and the Rule of Law - Statement of the European Commission
in the Plenary Debate of the European Parliament’, http://europa.eu/rapid/press-release_SPEECH-
13-324_en.htm Accessed 8 March 2019.
8
https://verfassungsblog.de/evade-constitution-case-hungarian-constitutional-courts-decision-
judicial-retirement-age-part-ii/ Accessed 8 March 2019.
9
European Commission 20 December 2017, COM(2017) 835 final, 2017/0360 (APP).
18 E. Maes
composition of a constitutional court, illegally appointing new constitutional jud-

ges, no implementation of the judgements, etc. The independence of the judiciary is
a cornerstone of the principle of separation of powers and of the right to a fair
trial.10 This principle and right have always been and are fundamental to the rule of
law.11 In a democracy under the rule of law, a constitutional court should enjoy the
same degree of independence as the judiciary, in order to safeguard the separation
of powers.
Rightly, the European Court of Justice (ECJ) and the European Court of Human
Rights (ECtHR) try to protect the (constitutional) courts against threats to their
independence by the legislator or executive of a member state. The ECtHR has
judged that in a state governed by the rule of law a court that falls under the scope
of Article 6 of the European Convention on Human Rights (ECHR) should be
established by law and the law should guarantee the competences of the courts.12
The right to access to a judge and the principle of legal certainty demand that
judgements have binding force and are implemented.13
The ECJ considers the independence of national courts in particular essential to
the proper working of the judicial cooperation system embodied by the preliminary
ruling mechanism under Article 267 TFEU. Only a body responsible for applying
EU law which satisfies the criterion of independence,14 can ask a preliminary ruling
from the ECJ.15 According to the ECJ, the concept of independence presupposes
that the court exercises its judicial functions wholly autonomously, and that it is
protected against external interventions or pressure liable to impair the independent
judgment of its members and to influence their decisions. Secondly, like the pro-
tection against removal from office of the members of the body concerned, the
receipt by those members of a level of remuneration commensurate with the
importance of the functions they carry out constitutes a guarantee essential to
judicial independence.16
The jurisprudence of the ECJ and the ECtHR on the independence of consti-
tutional courts is, by its nature, casuistical and does not give an all-round legal
10
Jacquelot 2009, p 5 and Zähle 2011, pp 174–175.
11
Cf. Coke, 12 Co. Rep. 64–65 or 77 Eng. Rep. 1342–1343 (Prohibitions del Roy). See also
Cartier 2011, p 34.
12
ECtHR, DMD Group v. Slovakia, 5 October 2010, application no. 19334/03, ECLI:CE:
ECHR:2010:1005JUD001933403, para 58; ECtHR, Jorgic v. Germany, 12 July 2007, application
no. 74613/01, ECLI:CE:ECHR:2007:0712JUD007461301, para 64; ECtHR, Lavents v. Latvia, 28
November 2002, application no. 58442/00, ECLI:CE:ECHR:2002:1128JUD005844200, para 81.
13
See for example ECtHR, Süzer and Eksen Holding v. Turkey, 23 January 2013, application no.
6334/05, ECLI:CE:ECHR:2012:1023JUD000633405, para 75 and ECtHR, Brumarescu v. Romania,
28 October 1999, application no. 28342/95, ECLI:CE:ECHR:1999:1028JUD002834295, para 61.
14
ECJ, Wilson, 19 September 2006, case C-506/04, EU:C:2006:587, para 51, and, ECJ, Margarit
Panicello, 16 February 2017, case C-503/15, EU:C:2017:126, para 37.
15
ECJ, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, 27 February 2018,
case C-64/16, EU:C:2018:117, para 43.
16
Ibid., paras 44–45.
framework to guarantee the independence of constitutional courts. Therefore, in this

chapter, the independence of the Belgian Constitutional Court will be scrutinized,
using the jurisprudence of the ECJ and ECtHR, but also the opinions of the Venice
Commission and the doctrine.
2.3 The Institutional Independence of the Belgian

Constitutional Court
Having in mind the possible threats to the independence of a constitutional court, I

will investigate in this section whether the Belgian constitutional court is an
independent court. I take into account the abovementioned factors:
– Is the court established by law and does the law guarantee its competences and
composition?
– Does the constitutional court enjoy autonomy?
– How are the constitutional judges elected?
– What is the duration of the mandate and are there incompatibilities?
– Are the constitutional judges protected against removal from office?
Before investigating the degree of independence that the Belgian Constitutional
Court enjoys, we should emphasize that the Belgian Constitutional Court is an
autonomous institution. It enjoys a separate place in the Belgian constitutional
order. It has a separate place in the Constitution (Chapter V of Title III ‘on the
Constitutional Court, on the prevention and resolution of conflicts’). The
Constitutional Court therefore does not belong to one of the three state powers and
is independent from them.17 Some authors suggest that the Constitutional Court
belongs to the ‘constitutional power’, together with the constitutioner.18
The independence of the Belgian Constitutional Court depends on several
safeguards. We should firstly distinguish the conditions safeguarding the inde-
pendence of the institution and the conditions safeguarding the independence of the
judges. The first mentioned conditions are the entrenchment of the existence,
competence and composition of the Constitutional Court in legislation and the
normative, operational and financial autonomy of the Constitutional Court
(Sect. 2.3). The conditions safeguarding the independence of the judges are the
appointment procedure, the duration of the mandate and its incompatibilities and
the rules on discipline and removal from the office (Sect. 2.4).
17
Alen and Muylle 2011, p 486.
18
Delpérée and Rasson-Roland 1990, pp 21–23; Delva 1991, p 78 and Velaers 1990, p 97.
20 E. Maes
2.3.1 The Conditions for Independence of the Institution
2.3.1.1 The Legal Foundations of the Belgian Constitutional Court
Having in mind the abovementioned examples of threats to the independence of

constitutional courts, we need to examine whether the existence, competences and
composition of the Belgian Constitutional Court is safeguarded by, so-called,
entrenched or strong legislation. For the independence of a constitutional court is
defined by the rigidity of the law that establishes the constitutional court and that
regulates its competences and organization. Does the constitution or another strong
legislative act protect the Constitutional Court against threats by the legislator or
executive?
The Belgian Constitutional Court indeed enjoys strong foundations in the
Belgian Constitution. In Article 142 of the Constitution, three essential elements of
the Constitutional Court are entrenched. First of all, the Constitution entrenches the
existence of the Belgian Constitutional Court. Secondly, in Article 142 of the
Constitution it is determined that the Constitutional Court reviews all (federal and
federalized) legislation upon its compatibility with the competence-dividing rules of
the federal state and with some provisions of the Constitution.19 Those provisions
of the Constitution are enumerated in Article 142 of the Constitution or in the
Bijzondere Wet of 6 January 1989 on the Constitutional Court (hereafter ‘the
Special Act on the Constitutional Court’20). Thirdly, Article 142 of the Constitution
determines the locus standi rules: it establishes the right of every person, entitled by
law or having interest, to bring a case before the court and the right of every court to
request an answer through the prejudicial question procedure.
Those three elements regarding the Constitution Court can only be changed
through a rigid procedure of revision of the Constitution. This rigid procedure
entails two phases: firstly, the current Parliament decides which Articles of the
Constitution should be amended. Following this decision, the Parliament is dis-
solved and new elections are held within forty days. The then newly elected
Parliament can amend the Constitution when two third of the members of
Parliament are present and two third of the present members approve of the
amendment.21
The Constitutional Court is not only the guardian of the Constitution, but also of
the Belgian federal state structure. This is shown by the fact that Article 142 of the
Constitution demands that the competence, functioning and composition of the
Constitutional Court is (further) stipulated in a Special Act. Every modification of
this Special Act requires the support of a special parliamentary majority, with a
special quorum. The federal Parliament counts two language groups: the Dutch and
19
The competence of the Constitutional Court can be enlarged by a Special Act.
20
In footnote this Act will be abbreviated by Special Act CC.
21
Article 195 of the Constitution.
the French speaking language group.22 To enact a Special Act, a majority of every
language group needs to be present (quorum) and a majority of every language
group should vote in favour of the Act.23 The decrees executing the Specific Law
on the Constitutional Court are adopted by the Council of Ministers. No delegation
to a Minister is possible.24
The constitutional entrenchment of the existence, competence and the locus
standi-rules and the obligation to regulate the competence, functioning and com-
position by a Special Act guarantee the independence of the Belgian Constitutional
Court. Compared to other constitutional courts, the Belgian Constitutional Court
stands on firmer foundations.25 In Belgium, a normal legislature/government can
only influence the composition of the Constitutional Court by changing the
retirement age.26 If the competence or composition of the Constitutional Court
needs to be changed, the Specific Act on the Constitutional Court or the
Constitution should be changed. For the abolishment of the Constitutional Court,
the Constitution needs to be amended.
2.3.1.2 The Autonomy of the Belgian Constitutional Court
Next to entrenched legislation that safeguards the independence of the constitutional

court, a constitutional court needs to be autonomous. To fulfil its duties, the Belgian
Constitutional Court needs a place, competent staff and a good library. It is crucial for
the independence of a constitutional court that it enjoys the autonomy to decide for
itself on those subjects: if the recruitment and payment of staff or investments in the
building or in the library is dependent on the permission of another authority, this
authority would be able to influence the functioning of the constitutional court and as
such the independence would no longer be guaranteed.27 There are three sorts of
autonomy: normative autonomy, operational autonomy and financial autonomy.
Normative autonomy is twofold. First, it means the power of a constitutional
court to participate in the enactment of legislation that is applicable to the consti-
tutional court.28 Secondly, the court must be able to enact its own regulations on the
functioning of the court. For Favoreu, this autonomy is essential for ‘constitutional
justice’.29
22
23
Article 4, 3rd paragraph of the Constitution.
24
Artikel 123, para 2 Special Act CC.
25
See supra, the examples of the US Supreme Court (court packing plan and changing the
competence of the US Supreme Court).
26
At this moment, the age for retirement is 70 years. Article 4 of the Act 6th January 1989
‘betreffende de wedden en pensioenen van de rechters, de referendarissen en de griffiers van het
Grondwettelijk Hof’.
27
See also Thomas 2010, p 88.
28
Thomas 2010, p 97.
29
Thomas 2010, p 97.
22 E. Maes
The Belgian Constitutional Court enjoys a certain normative autonomy.

Although not prescribed by law, the Belgian Constitutional Court, represented by
its two Presidents, is generally involved in the enactment of legislation that is
applicable to the Constitutional Court.30 The Court is also competent to review the
legislation that is applicable to the Constitutional Court. It is competent to review
the Special Act on the Constitutional Court upon its compatibility with the
competence-dividing rules and the constitutional provisions.31 The Constitutional
Court also enacts its own code of order, which must be publicized in the Belgisch
Staatsblad.32
Secondly, to enjoy full independence, an institution should have operational
autonomy. It should be able to decide on its staff: how many employees are nec-
essary for which jobs, their salary, their evaluation, hiring and firing, etc.33
The Constitutional Court enjoys this functional autonomy.34 It hires and fires the
staff it needs and decides on its tasks, its replacement, its absences, holidays, etc.35
The Special Act on the Constitutional Court lays down the maximum number of
law clerks (referendarissen), but the Constitutional Court decides how many law
clerks are necessary.36 One of the most important decisions on the functioning of
the Constitutional Court is that the Court decides how the Presidents of the Court
are elected.
For a constitutional court to be independent, it is thirdly crucial that it enjoys
financial autonomy. This enables a court to execute its operational autonomy and to
guarantee the proper functioning of the court.37 A constitutional court should be
able to decide on its budget. It should receive the necessary means and should be
able to spend the money freely.38
According to Article 123, § 1 of the Specific Act on the Constitutional Court, the
Constitutional Court receives a fund (dotatie). A fund is an allocation on the federal
expenditure budget that can be freely disposed of by the institution that receives the
fund.39 As a result of an agreement between the Chamber of Representatives and
the Constitutional Court, the Constitutional Court draws up an estimate. This
30
See for example Parl. doc Senate 2002–03, n° 2–897/6, 169ff. See also Debry 2010, p 65
(footnote 100).
31
CC 28 March 2002, n° 62/2002; 19 January 2000, n° 1/2000 and 26 May 1999, n° 55/99 (three
preliminary rulings on the constitutionality of Article 26 Special Act CC).
32
Article 122 Special Act CC.
33
Favoreu et al. 2012, p 258; Thomas 2010, p 94 and Zurn 2007, p 278.
34
Article 42 Special Act CC. Bossuyt et al. 2011, p 6.
35
Arcticles 42 and 43 Special Act CC.
36
See Parl.doc Senate 2002–03, n° 2–897/6, 175.
37
Alen and Muylle 2011, p 487; Henneuse and Rosoux 2006, p 10 and Zurn 2007, p 277.
38
Di Manno 1994, pp 53 and 60; Thomas 2010, p 89 and ‘Rapport national français - Séparation
des pouvoirs et indépendance des cours constitutionnelles et instances équivalentes’, available at
https://www.venice.coe.int/WCCJ/Rio/Papers/FRA_Conseil_constitutionnel_f.pdf Accessed 8
March 2019, at 4.
39
Alen and Muylle 2011, p 487.
estimate is the basis for the fund that is communicated to the president of the
Chamber of Representatives and to the minister of Budget. Each year the
Constitutional Court, represented by its Presidents or its registrars, is invited to
discuss about the fund in the parliamentary Audit Commission.40 After the bud-
getary year, the Constitutional Court approves its accounts, after advice by the
Court of Audit.41
Since 2000, Representatives of the Chamber try to limit the financial autonomy
of the Constitutional Court. They try to put the Constitutional Court under a more
stringent financial supervision. They want to supervise the budget, the execution of
the budget and the accounts. The first attempt to limit the financial autonomy was a
decision by the parliamentary Commission for accountability,42 then in June 2002 a
protocol between the Chamber and the presidents of the Constitutional Court,43 and
the third attempt were legislative initiatives.44 The Chamber and the Senate how-
ever disagreed on the scope of financial supervision by Parliament. ‘[To protect the
Court] against any possible revenge by the Chamber of Representatives because of
the annulment of legislation by the Court’,45 the Senate only wanted to limit the
financial supervision by the Chamber to the verification and approval of the
accounts.46 The Chamber assumed it should be competent to supervise the budget
estimates, to approve the budget, to verify the execution of the budget and the
accounts and to approve the accounts.47 As the government was brought down in
2010, the bill was not enacted; presumably not to the regret of the Constitutional
Court that, on the occasion of the decision of the parliamentary Audit Commission,
already had stated:
In the state the [Constitutional Court] is instituted to resolve disputes between the several
legislators of the federal Belgium and to act as a supervisor of their legislative acts. It is
probably incompatible with the constitutional order that the [Constitutional Court] would
be subject to a stringent supervision by (only) one of the legislators or an organ that is the
emanation of it.48
40
See also Debry 2010, p 66.
41
On 24 March 2000 the parliamentary Commission for accountability decided that the Court of
Audit will control the execution of the budget and the accounts and will report to the Commission.
Parl.doc Chamber 1999–2000, n° 50–693/1, 5. The Belgian Constitutional Court agreed to this in
a Protocol of 20 June 2002, signed by the Constitutional Court and the Chamber of
Representatives. See Debry 2010, p 57.
42
Parl.doc Chamber 1999–2000, ‘Arbitragehof – begroting van het begrotingsjaar 2000 – aan-
passing van de dotatie van het begrotingsjaar 2000’, n° 50–693/1, 4–5.
43
Parl.doc Chamber 2003–04, n° 51–552/1, 15.
44
Parl.doc Chamber 2000–2001, n° 50–987/1, and Parl.doc Chamber 2008–2009, n° 52–1937/1.
45
46
Parl.doc Chamber 2008–2009, n° 52–1937/1.
47
Parl.doc Chamber 2008–2009, n° 52–1937/4 and n° 52–1937/5.
48
Parl. doc Chamber 1999–2000, n° 50–693/1, 10.
24 E. Maes
Analyses of the estimates and the accounts of the last ten years show that the
estimate of the Constitutional Court is always very cautious. Each year the
Constitutional Courts spends less than it has estimated. In the last decade, only
rarely a budget item was exceeded. The fund that the Constitutional Court demands
increases every year, because the wages of the staff are the largest expenditure item
(85%): the wages of the members of the Constitutional Court, of the law clerks and
of the personnel.
To see whether the Constitutional Court enjoys real financial autonomy, it is
important to check whether the Chamber of Representatives actually grants to the
Constitutional Court the fund it asks. In the beginning, it did, and the Court also
sometimes was granted an extra fund for specific reasons.49 Since more than ten
years, however, the Chamber no longer grants the fund that the Constitutional
Courts asks. Each year, the estimated fund for the next budgetary year is decreased
with the boni of the previous year and with the reserve that the Constitutional Court
has built up before 2000. In other cases, the estimated fund is only granted thanks to
surpluses of the fund of other institutions (such as the Court of Audit).
Sometimes the Constitutional Court receives even a lower fund than the year
before. This enforces the Constitutional Court to cut down on its expenditures. This
happened for the first time in 2009: the federal government suggested that a lower
fund should be granted than the Court had received in 2008. In 2009 it was decided
that the Constitutional Court had to spend less in 2010 than it had spent in 2008.
For the budget of 2013, the Audit Commission decided to take into account the full
reserve of the Constitutional Court (2,008,000 euro – plus the estimated interest)
and the boni of the year before, to determine the fund. The reserve that the
Constitutional Court had built up before 2000, thus had to be used completely to
finance the functioning of the Constitutional Court.50 Finally, since 2014 the
Constitutional Courts has had to cut down 2% every year (as has every other
government institution).51
Each time when significant savings were imposed, the Presidents of the
Constitutional Court had to explain / defend the requested funding in the Commissie
voor de Comptabiliteit (a parliamentary Audit Commission). Notwithstanding the
fact that the Presidents do recognize that each institution should make an effort in
budgetary difficult times, they still had strong objections against significant saving
rounds.
49
In 2003, the Constitutional Court received an extra fund because of the enlargement of its
competences. In 2000, it received an extra of 7,800,000 frank (cc. 194,352 euro) to finance the
XIIth Conference of European constitutional courts in Brussels in May 2002. Parl.doc Chamber
1999–2000, n° 50–693/1, 3.
50
Parl.doc Chamber 2012–2013, n° 53–2521/8, 5 and Parl.doc Chamber 2012–2013, n° 53–
2578/1, 14. To safeguard its autonomy the Constitutional Court prefers to have a reserve that
allows the proper functioning for six months. This reserve should be five million euro. Parl.doc
Chamber 2012–2013, n° 53–2578/1, 13. Henneuse and Rosoux 2006, p 11.
51
In 2009, the President explained that the requested raise in funding was required
to cover the higher staffing costs caused by three index jumps in 2008, a possible
index jump in 2009, salary alignments and an increase in travel costs; all costs that
are outside the reach of control of the Court. Furthermore and rightfully so, the
President objected to the fact that no prior consultation had been initiated by either
the Prime Minister or the Minister of Budget. Finally, he emphasized the fact that a
reduction in funding would deteriorate the functioning of the Court and that it was
crucial for the autonomy and well-functioning of the Court that the reserve should
be maintained and protected as it serves to pay invoices before any funding is
available and to ensure renewal and refurbishing works.52 Because of these
objections, the parliamentary Audit Commission did an extra effort to propose
higher funding than the government had done.
In 2014, the President emphasized that the basis for the linear saving of 2%
should be done on the (adjusted) budget and not on the funding. Furthermore, he
explained the budgetary consequences of some of the specific aspects of the
organization and functioning of the Constitutional Court. First of all, the
Constitutional Court has little say in the staffing costs: the number of law clerks is
determined by a specific law and has decreased since 2010. Because of the
increasing workload since the 6th Reform of the State further savings on staffing are
impossible. On top of that, there are numerous operating expenses because of legal
obligations. The Constitutional Court has proposed to reduce the latter by inter-
vention of the legislation. An additional element is the cost of the building which
has been in use since over 20 years. And finally the President emphasized that the
Constitutional Court is only able to meet its responsibilities as custodian of the
fundamental rights and liberties and of the division of powers, if it disposes of
sufficient means to do so.53 These arguments were repeated in 2015.54
A constitutional court needs to have financial autonomy, yet it cannot be
unlimited. The principles of democracy require that a (federal) institution should
approve the budget. This serves as a control on the constitutional court: a means to
political accountability of the constitutional court. In Belgium, for instance, the
parliamentary Audit Commission is by far not a formality and often does not
approve the requested funding. On top of that, the mandated institutions can
supervise the spending of the expenses.
However, the way in which the Chamber of Representatives exercises the
supervision of the budget and the accounts of the Constitutional Court and grants
the fund can be seriously criticized: the exclusive mandate of the Chamber of
Representatives to approve the budget and its custom to check the accounts raise
principal objections. Furthermore, its actual method raises practical objections.
I elaborate further on those objections.
52
Parl.doc Chamber 2008–2009, n° 52–1636/1, 18–19.
53
54
26 E. Maes
The power of the Chamber of Representatives to approve the funding of the

Constitutional Court first of all raises a principal question in the light of the sep-
aration of the powers and the Belgian federal state structure. Based on the con-
stitutional separation of duties between the Chamber of Representatives and the
Senate, the approval of the budget of a federal institution belongs to the competence
of the Chamber of Representatives. However, due to the specificity of the
Constitutional Court, one should reconsider whether the Chamber of
Representatives is indeed the most appropriate organ to – on its own – approve the
funding of the Constitutional Court. Indeed, the Court actually checks the consti-
tutionality of legislation enacted by the federal parliament but also legislation
enacted by the parliaments of the communities and regions. In the light of the
separation of powers and the Belgian federal state structure, it seems improper that
the Chamber solely approves the funding; preferably, it should happen in concer-
tation with the Senate (as in Germany). Indeed, in the Senate, all communities and
regions are represented and as such the funding would be approved – whether
directly or indirectly – by all legal institutions subject to the legal supervision of the
Constitutional Court.
The second principal objection relates to the non-compliance of the principles of
a fund by the Chamber of Representatives. The Special Act on the Constitutional
Court stipulates clearly that the Constitutional Court is entitled to a fund (dotatie).
What is typical about a fund is that it is a credit which is included in the federal
budget, but the spending of which is determined autonomously and freely by the
entitled institution. Obviously, it is recommendable that – in the light of trans-
parency and the good spending of government finances – the Constitutional Court
makes a detailed budget and publicizes the parliamentary reports of the accounts.
This requirement for transparency however does not mean that the Chamber of
Representatives is entitled to check whether the Constitutional Court has exceeded
certain budget items, provided the fund in total has not been exceeded. However,
this is exactly what the Chamber of Representatives does.
Thirdly, the proceedings of the Chamber of Representatives also reveal practical
objections. In the case that a lower funding than requested has been approved by the
Chamber of Representatives, no checks are done on the consequences of this
decision on the functioning of the Court. The parliamentary reports show that the
members of parliament do not try to seek information on the consequences of their
austerity measures. However, in this matter, the Court as well has to take its own
responsibility. In the past, the Court is represented by a registrar in the parlia-
mentary Audit Commission. In the period 2002–2013, only at two occasions the
Court was represented by its two Presidents. Each time they explained in large why
a smaller funding would cause functional problems at the Court. In 2009, in
response to this explanation, the parliamentary Audit Commission did the utmost to
approve a larger funding than the government had proposed. As is the case in other
constitutional courts, it is the duty of both Presidents of the Constitutional Court to
discuss in the Audit Commission the budget and requested funding and to explain
which consequences a possible saving would have. Moreover, this would increase
the mutual respect for the institutions and the openness to dialogue.
Finally, a serious change of the financial autonomy is only possible by amending

the Special Act on the Constitutional Court. Only changing this Special Act will
allow an extension of the supervision of the budget proposals and the Court’s
accounts. The Constitutional Court is competent to judge whether these amend-
ments are constitutional: for instance by scrutinizing whether those changes violate
the legal principles of the independence of a judge and of the balance of powers.
Obviously, it is not the intention that Parliament and the Constitutional Court
should confront each other in such a collision course. However, should Parliament
restrict the financial autonomy of the Constitutional Court in a significant way, it is
not to be excluded that the Constitutional Court will feel compelled to preserve the
independent functioning of this institution.
2.4 The Independence of the Judges
The independence of an institution is not only determined by the entrenchment of

its existence, competences and composition in sharing legislation and by its nor-
mative, organizational and financial autonomy, but also – and essentially so – by
the independence and impartiality of each of its members. Hereafter I assess the
factors that safeguard the independence of the judges: the appointment procedure,
the mandate and the rules on removal from office. Finally, I will argue that allowing
dissenting opinions at the Constitutional Court would enhance the independence of
the judges.
2.4.1 The Appointment Procedure
The appointment procedure of a constitutional judge is a very important factor to

guarantee the independence of a constitutional court. The appointment procedure
however also has to realize other demands: it should give the constitutional judges
democratic legitimacy. The procedure should also contribute to the dignity55 of the
institution and of the judges and, in a federal state structure, it should include the
cooperation of the federations.56
In the majority of the member states of the Council of Europe the appointment of
the constitutional judges is a ‘teamwork of the juridical and politics’: politicians
nominate the constitutional judges.57 In a study on the nomination procedures in 40
55
The dignity of the appointment procedure of the US Supreme Court Justices is threatened by
the high media attention and the private questions during the auditions. Davis 2005, p 23.
56
Venice Commission, Report on the composition of constitutional courts, CDL-JU (97) 34 rev2, 6.
57
Szymczak 2006, p 426.
28 E. Maes
countries, the Venice Committee has distinguished three kinds of nominations:58

the direct nomination, the nomination by election and finally a hybrid system that
has two types of examples: a parliamentary confirmation of the candidate that is
proposed by the Head of State (as in the United States) and a choice by the Head of
State of a candidate proposed by the parliament (as in Belgium).
In Belgium, it is the King – read the Council of Ministers – who takes the
decision, who nominates the judges for the constitutional court from a list of two
candidates, proposed in turns by the Chamber or the Senate.59 The Representatives
and Senators express a vote based on the curriculum vitae of the candidates, who
have to achieve a two third majority.60 The King, who in theory has the choice
between the two candidates, always nominates the first candidate on the list.61
As in Germany, it is common practice in Belgium that the posts of the consti-
tutional judges are spread amongst the political parties: (in principle) according to
the D’hondt system, it is decided which political party, with exception of
non-democratic parties,62 is entitled to the available post.63 In principle, the other
political parties consent to the candidates as proposed by the entitled party. This
means that, without the support of the (president64 of the) political party,65 a
candidate has no chance whatsoever to be nominated.66
The Chamber or the Senate approves of the candidate by a two third majority.
Being confirmed by such a large majority gives a constitutional judge democratic
legitimacy. Especially for a constitutional judge it is crucial to enjoy democratic
legitimacy. Constitutional courts struggle with legitimacy-issue, so that a
58
Venice Commission, Report on the composition of constitutional courts, CDL-JU (97) 34 rev2,
4–6. See also Rousseau 1998, p 49.
59
Until 1993, only the Senate nominated candidate judges. The language groups in the Senate
reflected the communities in Belgium. That way the balance between the communities was
safeguarded. See old Article 32 Special Act CC and Parl. Doc Senate 1981–82, n° 246/2, 140.
This was changed by the Special Act of 16 July 1993, without having regard to the involvement of
the communities. See Parl.doc Senate 1992–93, n° 558/1, 62–63. See Courtoy 2000, p 539;
Delpérée and Rasson-Roland 1990, 29 and Delpérée 1988, p 104.
60
Article 32 Special Act CC. See also Rasson-Roland 2004, p 26.
61
Verdussen 2013, 69 and Rasson-Roland 2004, p 26.
62
Courtoy 2000, p 25. The so-called anti-democratic party Vlaams Blok was not entitled to
nominate a judge.
63
Rasson-Roland 2004, p 25 and Courtoy 2000, p 540.
64
Verdussen 2012, p 150.
65
There is one example where the Parliament did not merely vote for the two candidate-judges
that were nominated by the entitled party. In 2007, a candidate-judge, Mia De Schamphelaere, did
not receive the two-third majority. This was remarkable, as the other candidate-judge, Trees
Merckx-Van Goey, received firstly the two-third majority. Therefore, the King would appoint
Merckx-Van Goey as constitutional judge. According to the media, the other political parties
wanted to give a sign that a candidate-judge renowned for having conservative ideas on the
legislation regarding abortion and euthanasia, would never be appointed as a constitutional judge.
See Hand. Senate 2007–08, 9 October 2007, 18 and ‘“Majeur politiek incident” in Senaat’, De
Standaard, 11 October 2007 and ‘Cinema II’, De Morgen, 11 October 2007.
66
Rasson-Roland 2004, 25.
confirmation of its judges by Parliament is a crucial element in the balance of power

between the legislator and a constitutional court. Unless directly elected by the
people, it is difficult to conceive of a nomination procedure in which a candidate
judge obtains democratic legitimacy without political parties or politicians playing a
role in it.
The confirmation by two third of the members of the Chamber or the Senate
should not be problematic in the light of the independence of a constitutional judge.
The ECtHR states that, even though a constitutional judge should be independent
from the legislator and from the executive, a political nomination by the legislator is
– in essence – not a reason to doubt the independence of these judges.67 The ECtHR
confirms this in the decision Ruiz-Mateos.68 The ECtHR is especially attentive to
the oath that the magistrates take at their inauguration. This oath emphasizes the
independence of the judicial function.69 Other elements that safeguard the inde-
pendence, according to the ECtHR, are the duration of the mandate the incom-
patibilities as defined by law and the constitution.70
The ECtHR has not yet decided on the independence and impartiality of con-
stitutional judges nominated by the government. There is no reason to assume that
the ECtHR would be stricter for nominations of constitutional judges than for those
of other judges.71 This allows that lessons can be learned from the case law on the
appointment of judges of the judiciary. In this case law the ECtHR decided that a
nomination by the government and the fact that also political preferences play a role
in the nomination process, is – as such – not a cause to doubt the independence of
the judges.72
67
ECtHR, Crociani v. Italy, 18 December 1980, application no. 8603/79 etc., ECLI:CE:
ECHR:1980:1218DEC000860379.
68
ECtHR, Ruiz-Mateos v. Spain, 6 November 1990, application no. 12952/87, ECLI:CE:
ECHR:1993:0623JUD001295287.
69
ECtHR, Salaman v. United Kingdom, 15 June 2000, application no. 43505/98, ECLI:CE:
ECHR:2000:0615DEC004350598.
70
For election by parliament of extra judges in the Italian Constitutional Court, see ECtHR,
Crociani v. Italy, 18 December 1980, application no. 8603/79 etc., ECLI:CE:
ECHR:1980:1218DEC000860379. For other judges, see ECtHR, Ninn-Hansen v. Denmark, 18
May 1999, application no. 28972/95, ECLI:CE:ECHR:1999:0518DEC002897295; ECtHR,
Filippini v. San-Marino, 26 August 2003, application no. 10526/02, ECLI:CE:
ECHR:2003:0826DEC001052602 (appointment by the legislator) and ECtHR, Zolotas v. Greece,
2 June 2005, application no. 38240/02, ECLI:CE:ECHR:2005:0602JUD003824002, para 24 and
26 and ECtHR, Campbell and Fell v. United Kingdom, 28 June 1984, application no. 7819/77,
ECLI:CE:ECHR:1984:0628JUD000781977, para 79 (appointment by the government). See also
71
72
ECtHR, Zolotas v. Greece, 2 June 2005, application no. 38240/02, ECLI:CE:
ECHR:2005:0602JUD003824002, para 24 and 26 and ECtHR, Campbell and Fell v. United
Kingdom, 28 June 1984, application no. 7819/77, ECLI:CE:ECHR:1984:0628JUD000781977,
para 79.
30 E. Maes
It certainly should be recommended that the parliament (and not the government)
should have its say in the nomination procedure of the constitutional judges.73 In
Austria, for instance, in 1929 the nomination procedure was changed so that con-
stitutional judges no longer were nominated by the parliament but by the govern-
ment. By consequence, the government only nominated judges that were allies to
the government. For Kelsen, this meant the beginning of a political evolution that
inevitably led to fascism and that was responsible for the fact that the annexation of
Austria by the Nazi’s did not encounter much resistance.74
Especially in the light of the principle of balance of power, it is recommended
that the parliament should be involved in the nomination of constitutional judges.
The checks on constitutionality which these judges will need to perform, form
indeed a supervision of these parliaments (or of the legislator).
In Germany and Belgium, the political nomination procedure, as practiced,
ensures a proportional representation of all political parties in the constitutional
court. This practice increases the independence of the constitutional court. For a
court should not be the instrument of the parliament nor of the government. The
proportional representation encourages the legitimacy of the constitutional court
and as such the authority of its rulings. A disadvantage however is that this practice
entails that good candidate-judges who are politically neutral, shall not be appointed
as a constitutional judge.75
The Committee of Ministers of the Council of Europe nevertheless advises in its
recommendation about the independence, efficiency and accountability of the
judges – which is also valid for the judges of a constitutional court76 – that:
[…] where the constitutional or other legal provisions prescribe that the head of state, the
government or the legislative power take decisions concerning the selection and career of
judges, an independent and competent authority drawn in substantial part from the judiciary
(without prejudice to the rules applicable to councils for the judiciary contained in
Chapter IV) should be authorised to make recommendations or express opinions which the
relevant appointing authority follows in practice.77
Taking this recommendation into consideration, in Belgium, it is possible to ask

the High Council of Justice (or other stakeholders) to give a recommendation or
advise about the candidate constitutional judges.78 It is up to the members of
parliament whether they will take this advice into account or not. For the moment,
the High Council of Justice does not play a role in the nomination of the judges of
73
See also Parl.doc. Senate 1981–82, n° 246/2, 155. Pro, Verdussen 2004, p 53. Contra, Robert
and Rousseau 1998, 1.
74
Kelsen 1942, p 188.
75
Benda et al. 2012, 70 (para 5, n° 139).
76
Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges:
independence, efficiency and responsibilities, Article 1.
77
Ibid., Article 47.
78
Ibid., Article 47.
the Constitutional Court. An even more far-reaching option would be that the High
Council of Justice receives the mandate to – with respect for the proportional
representation – draw up a list of candidates from which the Chamber or the Senate
can propose two candidate-judges.79
The Belgian practice, whereby the entitled party (president) determines the
candidate-judge, leads to the consequence that obtaining a two third majority in the
Chamber or in the Senate is a mere formality. The members of the parliament do
not get a free choice. They are supposed to vote for the candidate judges that are
proposed by the entitled party. Nevertheless this step should be maintained in the
appointment procedure as only a parliament can give enough democratic legitimacy
to an appointment procedure and to the nominated judge. Furthermore, the
requirement to find a two third majority for a nomination obliges the nominating
instance to only propose valid candidates.
This obligation should be strengthened by subjecting the candidate-judges to a
parliamentary hearing. In Belgium, there is no legal obligation for the members of
parliament to organize hearings for the nomination of constitutional judges. Before
1996, it never happened. On October 24th 1996, a few days after the ‘Witte
Mars’,80 the Senate thought that it would not be opportune to nominate at that
moment two candidate judges for the constitutional court and enforced upon
themselves a reflection period. Next, they decided to organize hearings for these
nominations, to allow the candidates to introduce themselves to the Commissie voor
de Institutionele Aangelegenheden (Commission for Institutional Affairs). The
modalities for these hearings were defined ad hoc. They were not public.81 The
proposition to ask for the advice of a Council of Wise Men was discarded.82
This example became a precedent without legal basis and with very limited
impact.83 Only when the Senate needs to propose two candidate judges as
judges-lawyers,84 the committee organizes – in principle – non-public hearings.85
79
As happens in South-Africa. The President of South-Africa appoints the judges on advice of the
Judicial Service Commission: the JSC nominates one candidate-judge for the judiciary, so the
President does not enjoy a discretionary power. For the appointment of constitutional judges, the
JSC nominates several candidates, so the President can choose one candidate. Murray 1999, p 865.
80
A March held to contest the political and juridical situation in Belgium after the Dutroux affair.
One of the criticisms was that the appointment of judges of the judiciary was too political and
therefore did not guarantee quality and independence. The government promised to reform the
judiciary to make it more independent and politically neutral.
81
Hand. Senate 1996–97, 20 December 1996, 2186.
82
Parl. doc Senate 1996–97, n° 1–491/1, 20.
83
The ‘Reglement’ of the Senate does not regulate these hearings. See Parl.doc Senate 1996–97,
n° 1–491/1, 9.
84
The Constitutional Courts is composed of twelve judges: six of them are so-called
‘judges-lawyers’: professors, judges or law clerks at the highest Courts (Cour de Cassation,
Conseil d’Etat or Constitutional Court). Six of them are the so-called ‘judges-politicians’: they are
appointed thanks to their political expertise (a parliamentary mandate of minimum five years).
85
Hand. Senate 2017–2018, 13 July 2018, Hand. Senate 2013–14, 19 December 2013, 29; Hand.
Senate 2000–01, 7 December 2000, 23 and Hand. Senate 1996–97, 20 December 1996, 2186. In
32 E. Maes
No hearings are organized if the Senate proposes members of parliament as judges

(for the so-called ‘judges-politicians’) or if the Chamber of Representatives pro-
poses candidate judges.86 It happened a second time in November 2000. Because of
the lack of a serious number of candidates, of the presence of members of the
committee, of a formal framework for the hearing and of objective evaluation
criteria, the use of the hearing was put in question. Or as Verdussen puts it: ‘[…]
c’était pour une visite de courtoisie qui ressemblait plus à un five o’clock dans un
salon de thé qu’à une audition digne de ce nom.’87
In 2010 however, the Senate did not organize a hearing when a candidate
judge-jurist was proposed.88 None of the senators requested a hearing: did their
memory not reach far enough or was there a reason why they felt they did not need
a hearing? We do not know. The senators voted on the basis of the curriculum vitae
of the candidates. In 2013 however, the Senate again organized a hearing for the
proposal of a candidate-judge-jurist: most probably the parties of the majority
wanted a hearing because the candidate was proposed by a non-majority party (the
N-VA). In 2018, the Senate also organized a hearing.
Because there was no hearing in 2010 and yet a hearing in 2013, the precedent of
1996 is not only a precedent without legal basis and with limited impact, but also
with a random application. The fact that the nomination procedure for a judge of a
constitutional court is subject to such inequity, does not improve the trust in the
institutions nor the respect for a judge of the Constitutional Court. As such this
random procedure can harm the independence of this office.
A constitutional judge needs to have a true democratic legitimacy and needs to
represent the diversity of ideas and ideologies in our society. Therefore, the
involvement of the parliament in the appointment procedure should be more than a
mere voting for proposed candidates. The members of parliament should execute
their task properly and transparently:89 independently and with the required
knowledge whether a candidate-judge would be a proper constitutional judge. This
entails that the members of parliament should have a greater ambition than simply
abide to the practice of the political nomination: with respect for the practice or rule
of law that it is up to a certain party or person to propose candidate judges, they
should ensure themselves about the capability of the candidate judge.
I therefore argue in favour of the obligation to organize a public hearing in the
nomination process of a constitutional judges. In Germany, some constitutional
authors warn for the risk of such hearings. Fearing such a hearing, potentially good
constitutional judges would not present their candidacy; good candidates would not
this hearing, candidate-judges would be tested on their knowledge of the other official languages
and their neutrality regarding the Belgian language questions. Courtoy 2000, p 540.
86
See Hand. Senate 2007–08, 9 October 2007, 18; Hand. Chamber, 2009–2010, 11 March 2010,
34ff; Hand. Chamber 2003–04, 4 March 2004; Hand. Chamber 2000–2001, 15 February 2001, 34
and 40 and Hand. Chamber 1999–2000, 10 November 1999, 14.
87
Verdussen 2012, p 150 and Rasson-Roland 2004, pp 26–27.
88
François Daout (and Pierre Vandernoot). Hand. Senate 2010–2011, 9 December 2010, 20.
89
Kischel 2013, pp 972–973.
shine in the hearing and thus not be elected; parties would not withdraw from
asking awkward questions and questions could be asked about subjects that should
be judged by the constitutional court.90 They argue that confidentiality is more
important than the wish for transparency.91
These risks assume that the hearings would evolve into American practices.
However, qualitative hearings and debates should oblige the political parties to only
propose appropriate and valid candidates. A competent candidate-judge for a
constitutional court will not be deterred by a hearing.92 A parliamentary committee
can ask the candidate about his views about the role of the constitutional court,
about the interpretation of the constitutional law, about the relation between
international and national law and about certain themes (freedom of education,
freedom of speech, etc.) without however wanting to learn how a judge would
decide in certain cases.93 These hearings should be public so that not only the
members of parliament, but also experts, the media and interest groups can form an
opinion about the quality of the candidate.94 A hearing should expose the profes-
sional qualities of the candidate, not his personal life. Through their questions, the
members of the committee should guarantee that the dignity of the nomination
procedures is not attacked.
Opponents of hearings often state that there is a link between a request for
hearings and the qualification given to the constitutional court. Those who prefer
hearings, consider the constitutional court as a political organ; the others as a proper
court.95 This theorem is not supported. On the contrary, there is strong pleading for
public hearings as an instrument to force the members of parliament to exercise
their duty in an independent and informed manner: to give a two-third majority to
the election of a judge. This is only possible if the members of parliament ensure
themselves of the competence and ideology of the candidate-judge and not when
they merely vote as marionettes of the party in charge. Only then will the judges of
the constitutional court truly enjoy democratic legitimacy.
Finally, through these hearings, the media would also pay more attention to the
nomination of a new constitutional judge: this would add to a better knowledge of
the public of the role of the constitutional court and of the constitutional judges.96
This further adds to the democratic legitimacy of the judge, as he or she is then also
supported by society.
90
Benda et al. 2012, p 68 (para 5, n° 134) and Kischel 2013, pp 974–975.
91
Benda et al. 2012, 68 (para 5, n° 134).
92
Carcassonne 2008, p 5. See for the United Kingdom, Clark 2010, pp 466 and 477.
93
For guidelines to candidate-justices how to answer questions, see Alleman and Mazzone 2010,
pp 1378–1381. For the kind of questions that should or should not be asked, see Kischel 2013,
p 973.
94
95
Kischel 2013, pp 977–978.
96
Clark 2010, p 467.
34 E. Maes
2.4.2 The Mandate and its Incompatibilities
The duration of the mandate of constitutional judge, the possible renewal of it and
its incompatibilities are three important factors that determine how independent a
constitutional judge is.
The duration of the mandate and whether the mandate is renewable is essential
for the functioning of a constitutional court: both factors influence the (political)
shifts in a court, the independence of the judges and the stability of the institution.97
A conditio sine qua non for the independence of the institution is that the mandate
is not renewable.98 In Germany and France the mandate is limited in time: 12 years
for the Bundesverfassungsgericht (or till the end of the month when the judge turns
68)99 and 9 years for the appointed members of the Conseil constitutionnel.100 The
judges of the Belgian Constitutional Court are appointed ‘for life’, but retire at the
age of 70.101 The legislator did not want that the mandate only lasted 15 years.102 If
however the mandate only lasts for 9 or 12 years, what can the judge do after his
mandate? The independence of a constitutional court forbids of course that he or
she would take up a political office. Therefore, for the independence of a consti-
tutional court, it is preferred that judges should be nominated for life.
The average duration of the mandate of the Belgian constitutional judges is
about 10.5 years (shortest: 2 years and 1 one month, longest: 19 years and 4
months). Lately, the mandates last much longer than the average: more than 15 and
several even more than 20 years. Long mandates have however the disadvantage
that a few constitutional judges have the longest expertise and dominate the
court.103
For the independence of a constitutional court it is crucial that a constitutional
judge holds no other office than his mandate as a judge. Belgian constitutional
judges are only allowed to teach at university while they are judge.
97
Venice Commission, Report on the composition of constitutional courts, CDL-JU (97) 34 rev2,
p 14.
98
Ibid., pp 14–15. See also Benda et al. 2012, p 62 (para 5, n° 119); Robert and Rousseau 1998,
p 1753; Rousseau 1998, p 58 and Umbach et al. 2005, p 198 (para 4, n° 8).
99
Article 4, para 1 BVerfGG. See BVerfG 3 December 1975, BVerfGE 40, 356. See Benda et al.
2012, pp 62–63 (para 5, n° 120).
100
Article 56 French Constitution and Article 12 Organic act Conseil constitutionnel. This is
criticized by Fromont 2007; p 52. Nine years is not too short, according to former judge Robert in
Robert and Rousseau 1998, p 1753 and is ideal according to Drago 2003, p 76.
101
Article 4 of the Act of 6 January 1989 ‘betreffende de wedden en pensioenen van de rechters,
de referendarissen en de griffiers van het Grondwettelijk Hof’, BS 7 January 1989, err. BS 1
February 1989.
102
The proposal to limit the mandate to fifteen years and non-renewable was rejected by a large
majority of votes. See Parl.doc Senate 1981–82, n° 246/2, 156–157, such as a proposal to have a
renewable mandate of six years, see Parl. doc Senate 1981–82, n° 246/2. See also Courtoy 2000,
p 539.
103
See also Benda et al. 2012, p 63 (para 5, n° 121) and de Visser 2014, p 219.
2.4.3 Discipline and Dismissal
The ECtHR has many times stated that the impossibility for the executive power to
dismiss a judge is a corollary of the independence of a judge.104 For the inde-
pendence of a constitutional court, it is mandatory that the court can decide itself
whether a constitutional judge, in his functioning, meets the requirements of a
constitutional judge.
The Belgian Constitutional Court indeed has the power to decide itself to dismiss
a candidate. The Constitutional Court defines the disciplinary regime that applies to
the judges and decides via a ruling, decided in plenary meeting, about the dismissal.
So far, no constitutional judge has ever been dismissed.
2.5 No Dissenting Opinions by Constitutional Judges
A constitutional court can only be accountable through its case law: it should proof
that it uses a high quality of decision-making. One of the possible proofs thereto is
the presence of separate opinions. Separate opinions show that the court has
debated the case thoroughly, that not the opinion of one judge has dominated105 and
that the decision is based on valid – legal or non-legal – arguments.106 This is a
means for constitutional judges to be accountable. Because of the composition of a
constitutional court and the political nature of its decisions, there is more need for
such accountability, and thus for separate opinions.107 In the doctrine, it is argued
that dissenting opinions also enhance the independence of constitutional judges.108
The judges of the Belgian Constitutional Court cannot publish their separate
opinions. The deliberations of the court are secret (Article 108 Special Act on the
Constitutional Court). In Belgium this principle entails that judges are not allowed
to state their private opinion on the case.109
From time to time, members of parliament argue that constitutional judges
should be allowed to publish their separate opinion.110 They think it would increase
the seriousness and credibility of the Court; it would enforce the objectivity of the
104
See for example ECtHR, Campbell and Fell v. United Kingdom, 28 June 1984, application no.
7819/77, ECLI:CE:ECHR:1984:0628JUD000781977, para 80.
105
Fuld 1962, p 927; Moorhead 1952, p 822 and Voss 1992, p 653.
106
Feyen 2012, p 274.
107
Sohier 1986, p 767 and Zweigert 1968, D. 28.
108
Prignon 2011, p 115; Douglas 1948, pp 105–106; Mastor 2001, p 230; Zweigert 1968, D.
30 and D. 37.
109
Cass. 13 March 2012, P.11.1750.N/8. See Martens 2013, pp 806–807.
110
Parl.doc Chamber 2008–09, n° 52–1912/1; Parl.St. Senate 1981–82, n° 246/2, 195 and 202;
Parl St. Chamber 1980–81, 704/1, 53; Parl.doc Chamber 1982–83, n° 647/5, 15. See also Velaers
1990, pp 521–522.
36 E. Maes
judgements, as the judgements would have to answer to the arguments that are
raised in the case;111 it would oblige the judges to take up responsibility and be
accountable;112 it would exclude the presumption that a judgement is based on
communitarian reasons;113 it would allow to define the authority of a decision;114 it
would serve legal scholarship;115 and it would be necessary because the Court has
no advocate-general, who normally presents the issues of a case and argues on the
possible solutions.116
The competent minister and the majority of the parliament have never accepted
those arguments. They see the disadvantages: they think separate opinions are
dangerous because of the special communitarian situation in Belgium, the equal
composition of the Court and the delicate federal cases that the Court has to
decide;117 Belgium does not have this tradition;118 the objectivity of the debate
should be safeguarded;119 and there would be the risk that judges would give
priority to their own reputation rather than to the reputation of the Court.120
The Belgian Constitutional Court is, together with the European Court of
Justice,121 one of the few constitutional courts that does not use separate opin-
ions.122 The majority of Belgian constitutional scholars and judges of the
Constitutional Court are not in favour of separate opinions, because of the com-
munitarian situation in Belgium.123 I however think that it is not the communitarian
situation that prohibits separate opinions for the constitutional judges, but the
(French) legal tradition, which uses the Cartesian argumentation style. By using a
more deliberative argumentation style in its decisions, the Constitutional Court
would contribute to a constitutional dialogue, to its accountability and to its inde-
pendence.124 This deliberative argumentation style entails that the Constitutional
111
Hand. Senate 1982–83, 5 May 1983, n° 57, 1917.
112
Parl.St. Senate 1981–82, n° 246/2, 196 and 202; Hand. Chamber 1982–83, 2 June 1983, n°
81–82, 2416; Hand. Senate 1982–83, 27 April 1983, n° 52, 1802.
113
Hand. Chamber 1982–83, 2 June 1983, n° 81–82, 2416.
114
Hand. Senate 1982–83, 27 April 1983, n° 52, 1802.
115
Hand. Chamber 1982–83, 2 June 1983, n° 81–82, 2416; Hand. Senate 1982–83, 27 April
1983, n° 52, 1802.
116
Hand. Senate 1982–83, 27 April 1983, n° 52, 1802.
117
Parl.St. Senate 1981–82, n° 246/2, 195 and 202.
118
Parl.St. Senate 1981–82, n° 246/2, 202.
119
Parl.St. Senate 1981–82, n° 246/2, 197.
120
Parl.St. Senate 1981–82, n° 246/2, 196ff, 202ff and 223; Hand. Senate 1982–83, 5 May 1983,
n° 57, 1917 and 26 April 1983, 1782.
121
Edward 1995, p 539–558; Weiler 2001, pp 8–9; Wouters 2001, p 346 and Korah 1997, pp 98–
103.
122
Passaglia 2007, p 881.
123
124
Verdussen 2004, pp 66–67.
Court explains that the legal question can have various right solutions, but that, for
such and such (legal and non-legal) arguments, the Constitutional Court has chosen
for one solution. Because of the Cartesian argumentation style, together with the
absence of separate opinions, makes the case law of the Belgian Constitutional
Court somewhat opaque. It is difficult to know the real arguments that have led the
constitutional judges to decide a case. This leads to questions about the account-
ability and the independence of the Belgian Constitutional Court.
2.6 Conclusion
Having in mind the threats to its independence a constitutional court can suffer, we
conclude that the Belgian Constitutional Court is a strong, independent institution.
Its existence, competences and composition are entrenched in strong legislation (the
Constitution and the Special Act on the Constitutional Court). The Belgian
Constitutional Court also enjoys normative and operational autonomy. The finan-
cial autonomy of the Constitutional Court is however not fully guaranteed in
practice. Cuts in the dotation and a more extensive review on the finances of the
Constitutional Court by the Chamber of Representatives limit the financial auton-
omy, more than the Special Act on the Constitutional Court allows. A great limi-
tation on the financial autonomy threatens the independence of a constitutional
court. The doctrine should therefore be vigilant towards the review and acts of the
Chamber of Representatives.
The independence of the constitutional judges is also safeguarded by an
appropriate appointment procedure, a non-renewable mandate for life and a strong
protection against the removal from office. The appointment procedure gives a role
to the Parliament and political parties, which as such does not limit the indepen-
dence of the constitutional judge. Nevertheless, the appointment procedure could be
ameliorated by the obligation to Parliament to organize a public hearing, before
confirming the nomination of a candidate-judge. In this hearing, the members of
Parliament could judge for themselves on the qualities of the candidate-judge.
A public hearing would also give more media attention to the appointment pro-
cedure. This would enforce the constitutional dialogue. The democratic legitimacy
and the independence of the constitutional judge would be strengthened.
Finally, I argue that allowing dissenting opinions at the Constitutional Court
would enhance the independence of its judges and the accountability of the court.
Its accountability could be reinforced, if the Constitutional Court would use a more
deliberative argumentation style and would allow separate opinions. The nowadays
used Cartesian argumentation style and the prohibition on separate opinions makes
it sometimes difficult to know the real arguments that decided a case. The inde-
pendence and legitimacy of a constitutional court demand however that there
should be no secrecy on the real arguments of a judgement.
38 E. Maes
Acknowledgement I would specifically like to thank Mia Lozie for the great help regarding the
translation of my contribution.
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Evelyne Maes is attorney and professor in constitutional law. In her doctoral research, she
combined her interests in constitutional law and legal theory by researching what the rule of law
demands regarding the competences and composition of and the procedure before constitutional
courts. She teaches non-discrimination law at the University of Liège and a seminar in legal theory
at Université Saint-Louis. Her main research topics are federalism and the principles of legality
and separation of powers.
Chapter 3
Judicial Independence and
Democratic Accountability: The
Function and Legitimacy of the German
Federal Constitutional Court
Anja Seibert-Fohr
Contents
3.1 Introduction........................................................................................................................ 42
3.2 The Function of the Federal Constitutional Court Over the Course of Time ................. 44
3.2.1 Transformation of the Legal System on the Basis of Fundamental Rights.......... 46
3.2.2 Legal Development on the Basis of State Duties.................................................. 48
3.2.3 The Federal Constitutional Court and the Division of Powers............................. 49
3.2.4 The Role of the Federal Constitutional Court in Relation to the European
Union ...................................................................................................................... 50
3.2.5 The Mediating Function of the Federal Constitutional Court............................... 51
3.3 Personal, Substantive, and Institutional Legitimation ...................................................... 53
3.3.1 The Personal Legitimation of the Constitutional Judges....................................... 54
3.3.2 Legitimation During the Term in Office................................................................ 57
3.3.3 Complementarity of the Parameters ....................................................................... 61
3.4 Legitimacy and Function as Mirror Images ..................................................................... 62
3.5 Significance for Other Constitutional Systems ................................................................. 62
References .................................................................................................................................. 64
Abstract This chapter examines the legitimation of the German Federal

Constitutional Court. It shows that the Court’s function and its legitimation are
intimately bound up with one another. Balancing democracy and the rule of law in
the appointment of the judges depends crucially on the Court’s special tasks. In this
respect, one must take into account that a court’s function is by no means static but
A. Seibert-Fohr (&)
University of Heidelberg, Heidelberg, Germany
e-mail: sekretariat.seibert-fohr@jurs.uni-heidelberg.de

https://doi.org/10.1007/978-94-6265-359-7_3
42 A. Seibert-Fohr
rather is subject to development. Such changes are reflected accordingly in the

judges’ appointment and their legitimation.

Keywords appointment procedure democratic legitimation functional legiti-

mation German Federal Constitutional Court judicial independence judicial

selection legal development
3.1 Introduction
Since Marbury v. Madison, constitutional jurisdiction has oscillated in the constant

tension between democracy and the rule of law.1 On the one hand, it is in the
interest of a constitutional system to submit the legislator’s acts to a constitutional
review. On the other hand, this form of review fundamentally calls into question the
legislator’s will as a democratically legitimized power.2 This poses weighty
questions of legitimacy for constitutional jurisprudence. For when courts oversee
the compliance with the constitutional order, the question arises in turn: quis cus-
todiet ipsos custodes?3 To whom must the constitutional judges answer as the
supervisors of liberal democracy? And even more importantly: from what source do
the judges derive their legitimation? After all, they too must be appointed to their
office in some way.4
If one emphasizes the principle of judicial independence in this context, then a
lot speaks for an appointment dissociated from the other powers at first. But if one
highlights the need for democratic legitimation, then the appointment of judges
necessitates a tie to the democratically legitimized state bodies. None of these
demands is convincing in its absoluteness. If one left the judicial appointment up to
the third branch of government alone, then a democratic legitimation equal to the
power of the court would be lacking. If one prioritized solely the democratic
1
US Supreme Court, Marbury v. Madison, 5 U.S. 1 Cranch 137 (1803). For the tension between
judicial autonomy and accountability, see Kommers 2001, p 151; Guarnieri and Pederzoli 2002,
p 150. For the counter-majoritan difficulty, see Bickel 1962. But see Dahl 1957; Friedman 2009;
Ginsburg 2003; Hirschl 2004. According to Cassese, the stereotype that opposes justice to
democracy is simplistic and should be reconsidered in the light of a more careful research that
takes into account that judicial review is subject to intrinsic limitations, such as the missing control
over its caseload, the case or controversy requirement, and the adversarial procedure. Cassese
2011, pp 16, 24. Habermas argues that judicial review should protect the integrity of the demo-
cratic process. Habermas 1992, pp 292–348.
2
For the ambivalence of judicial review as a safeguard for and constraint on democracy, see
Lübbe-Wolff 2016, p 19.
3
Juvenal ± 115, Satire VI, lines 347–348.
4
For a comprehensive comparative account of the legitimation of constitutional court judges, see
Seibert-Fohr forthcoming 2019.
3 Judicial Independence and Democratic Accountability … 43
legitimation, however, then the independence of constitutional jurisprudence would

be called into question because of the periodic reelection of the judges. Judges
would have to fear for their reelection during their term, which would entail the risk
of influencing their jurisprudence.
This demonstrates that the appointment of constitutional judges vacillates
between the same poles as constitutional jurisdiction as such, namely in the zone of
conflict between democracy and the rule of law. In world-wide comparison, there
are thus hardly any examples of the extremes delineated here.5 Rather, as a rule, one
tries to find the middle ground that makes possible a democratic legitimation
without calling the judges’ independence into question per se. The various con-
stitutional systems answer the question of how to balance this tension differently,
however. In fact, the different modes of appointment display significant differences.
While in Great Britain, for instance, where the British Supreme Court among other
things also exercises constitutional powers, the independence of judges has prior-
ity,6 in the United States, democratic legitimation is particularly emphasized in
appointing the US Supreme Court judges.7 The nomination by the President and the
Senate’s confirmation transmits this legitimation.
Of course, these examples involve systems of integrated constitutional juris-
diction. In contrast, the Federal Republic of Germany offers an example of a system
of specialized constitutional jurisdiction with the Federal Constitutional Court.8
This too is based on its own model of legitimation, which seeks to balance the
tension between democracy and the rule of law in its very own way.9 In the essay
that follows, I will therefore examine the legitimation of the Federal German
constitutional judges, in order to demonstrate how the German constitutional sys-
tem deals with the tension between democracy and the rule of law.10 In the process,
I will show that the Court’s function and its legitimation are intimately bound up
with one another. For in each case, balancing the conflict of the stated principles in
the appointment of the judges depends crucially on the special tasks of a consti-
tutional court. In this respect, one must take into account that a court’s function is
by no means static but rather is subject to development. Such changes are reflected
accordingly in the judges’ appointment and their legitimation.
5
Brewer-Carías 2006, pp 153, 178–180.
6
Malleson and Moules 2010, p 206; Oliver 2003, p 331; Kentridge 2003, p 62; Stevens 2002,
p 143.
7
Resnik 2005, pp 593–594; McGinnis and Rappaport 2010, p 42; Marshall 2005, pp 536–537.
8
Kommers and Miller 2012; Vanberg 2004.
9
According to Esward Blankenburg, the German judiciary constitutes an institution that
emphasized autonomy from politics at the expense of democratic legitimation. Blankenburg 1996,
p 249. But see Kommers 2001, p 131.
10
For the historical development of constitutional review in Germany, see Möllers 2014, pp 4–5.
44 A. Seibert-Fohr
3.2 The Function of the Federal Constitutional Court

Over the Course of Time
Vested with the power of abstract and concrete judicial review of the formal and
substantive compatibility of federal law or Länder law with the Basic Law and of
the compatibility of Länder law with other federal law, the Federal Constitutional
Court has a special status in Germany.11 Its jurisdiction extends essentially from
constitutional complaints to abstract and concrete judicial review to federal disputes
and Organstreitverfahren. According to Section 1 Federal Constitutional Court
Act, the Constitutional Court is not only an independent federal court but also a
federal constitutional organ. Thus, it has a dual function within the constitutional
structure.12
The Federal Constitutional Court is independent of all other courts. Although
jurisdiction concerning the constitution does not lie exclusively in its hands, it is the
only organ empowered to declare a law unconstitutional. Even though as a result,
the Federal Constitutional Court has the power to review the judgments of other
courts with authority, insofar as they deal with questions of the compatibility of
laws with the constitution, it does not act as a general court of appeal.13
In its role as the supreme judicial body in constitutional matters, the
Constitutional Court specializes in applying and interpreting the Basic Law. Due to
the general terms of the Basic Law, the Constitutional Court is called upon to
interpret and specify its meaning. Because it performs adjudicatory functions, the
Constitutional Court is part of the third branch, like other federal courts. Yet since
its jurisdiction is limited to constitutional matters, it differs from the other courts of
the German judiciary. At the same time, the Constitutional Court has competences
that exceed its general judicial function. As a constitutional organ, the Court
maintains for itself the role of the supreme guardian of the constitution. Its mandate
is to ensure that all other bodies comply with the Basic Law. All other institutions
are bound by its decisions, which can even have the force of law. The court is not a
political constitutional organ, but, as it gives meaning to the existing constitutional
law, its decisions have a strong impact on German politics.14
The Constitutional Court’s power of judicial review illustrates its prominent
position in the area of constitutional adjudication. Anchored in the Basic Law, the
power of the Federal Constitutional Court to decide on the conformity of statutes
with the Basic Law set an important course for the Court’s relationship with the
legislative branch, already at the time when the constitution took effect.15 This
11
For an overview, see Grimm 2017.
12
For a critique, see Möllers 2014, p 20.
13
For the relationship between the Federal Constitutional Court and other courts, see Möllers
2014, pp 8–9, 20.
14
Möllers gives three examples for the Court’s influence on the political branches. Möllers 2014,
pp 10–13.
15
For the relationship, see Kirchhof 1998, p 5.
mapped out possible divergences from the beginning and established the tension
between majoritarian democracy and constitutionalism.16
Yet although this course was set, the function of the Federal Constitutional Court
in the federal German constitutional system cannot be determined statically.17
Instead, its role demonstrates a dynamic development in the history of the Federal
Republic.18 Its function was in no way comprehensively pre-determined with the
adoption of the Basic Law. During the drafting of the Basic Law in the
Parliamentary Council, there was already a widespread consciousness of the fact
that the Court would not only take on exclusively judicial functions. But the
relationship to politics remained contested, with the consequence that the regula-
tions of the Basic Law represented a compromise that was deliberately kept open to
development. With the Basic Law’s entry into force, the scope of the Federal
Constitutional Court’s tasks was thus only sketched out and was subsequently left
to legislation and the Court itself.
The Court’s function was essentially determined by its own initiative and by the
reaction of the other powers.19 The openness of the Federal Constitutional Court
Act made it possible for the Court to position itself early on as a state body of equal
stature. Thus, already in early judgments, the Court claimed its independence and
the power to make the final decision in constitutional questions. For instance, it
stipulated in 1952 that judicial review must prioritize ‘the task of the Federal
Constitutional Court as guardian of the constitution’.20 The role of the Court as the
instance of final decision in constitutional questions was deduced from the primacy
of the constitution stipulated in Article 1 para 3 Basic Law and from the obligation
of government powers to follow the Basic Law according to Article 20 para 3 Basic
Law. Consequently, since then, the Court claims supremacy of its jurisprudence.21
Interacting with the other state bodies, the Court obtained a central position in the
Federal German power structure in the course of its jurisprudential activity and
lastingly shaped the state and the legal system of the Federal Republic.22
16
Lübbe-Wolff 2016.
17
For the special role of the Federal Constitutional Court, see Jestaedt et al. 2011. For the
historical development of constitutional review in Germany, see Möllers 2014.
18
For a detailed account of its jurisprudence, see Kommers and Miller 2012.
19
Möllers 2014, pp 6–7.
20
BVerfGE 1, 184, 195–196.
21
Lepsius 2011, p 163.
22
BVerfGE 1, 208; 2, 1; 6, 32; 6, 309; 7, 198; 123, 267 (for an English version of this decision,
see http://www.bverfg.de/e/es20090630_2bve000208en.html. Accessed 19 July 2018).
46 A. Seibert-Fohr
3.2.1 Transformation of the Legal System on the Basis

of Fundamental Rights
One of the Court’s central functions lay and still lies today in maintaining funda-
mental rights.23 The constitutional complaint adopted in the Federal Constitutional
Court Act in 1951 soon developed into the most frequent kind of action.24 It
enabled the Court to illuminate the diverse aspects of the legal system from the
perspective of constitutional law. The groundbreaking significance of the funda-
mental rights jurisprudence for the entire legal system already emerged in the Elfes
judgment, which the Federal Constitutional Court made in 1957.25 At the time, the
plaintiff was refused the extension of his passport, and so his departure from
Germany had been made impossible. In its review of his constitutional complaint,
the Federal Constitutional Court interpreted the right of personality in Article 2 para
1 Basic Law broadly, so that this also protected the general freedom of action and
the plaintiff’s freedom to depart.
With the derivation of this general freedom of action, the Court instituted a
complete protection of fundamental rights, for there is hardly a state action imag-
inable that would not touch upon the individual’s freedom to act.26 This jurispru-
dence, which made Article 2 Basic Law into an umbrella right, was maintained later
despite critical voices.27 The jurisprudence on the general freedom of action opened
a broad scope of application for the Federal Constitutional Court for its own
decisions. The Court thus gained the power of comprehensively reviewing legality,
without the particular infringement as such having to show a special relation to the
plaintiff.28 For since an intervention in the general freedom of action may only take
place on the basis of a constitutionally issued statute, an unlawful intervention in
the general freedom of action can itself result from violations of formal provisions
establishing legislative power or procedure.29 Interpreted in this way, the Basic
Law’s regulatory breadth enables the Court to have a comprehensive power of
review. This provides it with the basis for an extensive review of legality of leg-
islation, administration, and courts.
Beyond this, the Lüth case of 1958 set the course in a fundamental way.30 The
proclamation of fundamental rights as an objective value system (objektive
Wertordnung), which applies to all areas of law including private law, and its
radiating effect on all legal relations including procedural law penetrated every area
23
See Papier 2009, p 1007.
24
For statistical data, see http://www.bundesverfassungsgericht.de/DE/Verfahren/
Jahresstatistiken/jahresstatistiken_node.html. Accessed 19 July 2018; see also Limbach 1999, p 8.
25
BVerfGE 6, 32, 36.
26
Kahl 2000; Kröger 1998, p 94.
27
BVerfGE 64, 208; 80, 137, 154; 91, 176, 177; 92, 191, 196.
28
Möllers 2014, p 11.
29
BVerfGE 44, 308, 313; 13, 237, 239; 68, 193, 216–217.
30
For a summary of this case, see Limbach 1999, p 11.
of life.31 With the Court’s help, the German constitutional system thus quickly
unfolded into a value system with substantive stipulations for the entire legal and
societal order.32 The Court held an important if not exclusive function in devel-
oping the free liberal state. In this respect, it acted not only in the capacity of review
but also of development on the basis of constitutional law. Essentially, this capacity
resulted from the value orientation of the constitutional system founded on the
Basic Law, in combination with the Court’s corresponding authority of interpre-
tation. Since then, the Court participates in the authority and normativity of the
constitution, whose effectiveness and intensity it determines itself.33 Due to the
Basic Law’s comprehensive guarantee of the rule of law, in combination with the
broadly conceived jurisdiction of the Court, there will hardly be a case that could
not be presented to the Court for a decision.34 The significance of the judgments
thus exceeds the individual dispute resolution.35
This can be explained historically first and foremost, for the Basic Law was the
beginning of a fresh start, which necessitated a transformation of the entire state.36
With the central participation of the Federal Constitutional Court in building a free
democratic basic order and the expansion of the Basic Law’s scope of application in
the Elfes37 and Lüth38 judgments as well as the adoption of positive fundamental
rights dimensions, the Court exercised a historical function of transformation, in
contrast for instance to the British Supreme Court.39 This function was sustained by
the wish to help fundamental rights achieve comprehensive effectiveness. In this
way, fundamental rights aided the Court in transforming the entire legal system.40
After the Court had positioned itself in this way in the structure of state powers,
it fully exhausted the frequently invoked function as ‘guardian of the constitution’,
so that subsequently, the question was posed again and again – and arises to the
current day – whether the Court has not by now become the master of the con-
stitution.41 At any rate, the entire legal and societal system was lastingly shaped by
its jurisprudence.42
31
BVerfGE 7, 198.
32
Limbach 1999, p 13.
33
See, e.g., BVerfGE 123, 267, 434.
34
Heidebach 2014, p 153.
35
Limbach 1999, p 10.
36
The Federal Constitutional Court was the answer to the failure of democratic self-government
after the experience of National Socialism. See Möllers 2014, p 5.
37
BVerfGE 6, 32, 36.
38
BVerfGE 7, 198.
39
Wahl 2004, p 756, mn 14.
40
Würtenberger 1998, p 60.
41
42
Limbach 1999, pp 14–19; see, e.g., BVerfGE 4, 7; 39, 1; 121, 317; 125, 175 (http://www.
bverfg.de/e/ls20100209_1bvl000109en.html. Accessed 19 July 2018); 128, 326 (http://www.
bverfg.de/e/rs20110504_2bvr236509en.html. Accessed 26 July 2018); 133, 377.
48 A. Seibert-Fohr
3.2.2 Legal Development on the Basis of State Duties
Constitutional jurisprudence advanced increasingly into the domain of legal

development by adopting positive dimensions promoting fundamental rights and
positive state duties. With the acknowledgment of positive fundamental rights
dimensions, which imposes positive duties of protection and participation on the
state,43 and the interpretation of the principle of the social state, following the
guarantee of human dignity, the Federal Constitutional Court has contributed to
state duties no longer being limited to the protection of order and safety but also
having an effect in numerous ways on the economic, social, and cultural life of
society.44
While in principle, the Federal Constitutional Court grants the legislator freedom
of design in social legislation,45 the latter is nevertheless restricted due to consti-
tutional stipulations.46 This restriction of legislative discretion is amplified, because
fundamental rights are taken into account as a measure of review. The fundamental
right that guarantees a subsistence minimum compatible with human dignity,
deduced from Article 1 para 1 in conjunction with Article 20 para 1 Basic Law,
justifies the relevant judicial review.47 Thus, the recourse to human dignity extends
the principle of the social state with a subjective-legal component. The result is the
adoption of an individual, directly constitutional entitlement to a subsistence
minimum compatible with human dignity.48
In this way, the mandate of Article 20 para 1 Basic Law for the legislature to secure
a subsistence minimum worthy of human dignity for everyone is actionable for any
concerned party. The implementation of the social-state principle, which, according to
the Federal Constitutional Court, requires the legislator to concretize and continu-
ously update provisions in order to adapt the necessary benefits to the changing level
of development of the public and the living conditions,49 is subject to judicial review.
To this extent, the Court asserts itself as guarantor of a social order worthy of human
dignity following its own definition. Möllers even speaks of an ‘agenda-setting role, in
which the Court not only reacts to legislative decisions in its review, but also initiates
them.’50 Here lies an essential difference for instance from British understanding,
where the constitution, in so far as it is recognized as an instrument of law, is at most
viewed as a normative framework for political processes.51 The US Constitution does
43
For the Abortion Cases as an example, see Möllers 2014, pp 10–11.
44
Limbach 1999, pp 13–14.
45
BVerfGE 125, 175, 222; 123, 267, 362–363; 100, 271, 284.
46
BVerfGE 45, 376, 387.
47
BVerfGE 125, 175, 222.
48
Ibid.
49
Ibid.
50
Möllers 2014, p 11; Möllers 2013, p 138.
51
Loughlin 2007, p 244, mn 55; see Feldman 2005.
not provide any state goals here either and is limited substantively to fundamental
liberal rights.52
3.2.3 The Federal Constitutional Court and the Division

of Powers
The Federal Constitutional Court has shaped the order of the Federal Republic of
Germany not only in substantive but also in institutional terms.53 The Court has
contributed to forming both the legal division of powers and the political order.54
This applies particularly to the federal system. In Article 93 para 1 no. 3 Basic Law,
the Basic Law assigns the Federal Constitutional Court a comprehensive compe-
tence to decide all differences in opinion about rights and duties of the federation
and the states. With the argument that it is its duty to clarify what is lawful,55 the
Federal Constitutional Court claimed a central function for itself in the constellation
of the federal bodies that clarify legal disputes between the federation and the states.
So while the substantive development function of the Federal Constitutional Court
manifests itself in the domain of fundamental rights protection and state duties, the
Court performs the function of a state court (Staatsgerichtshof) in relation to the
federal-state order. To a greater degree than in fundamental rights protection, this
function resembles that of a referee.
On the whole, the Court occupies a central position in the Federal German
structure of the division of powers. Due to the already portrayed development of
jurisprudence in the areas of fundamental rights and of the determination of state
goals, the Federal Constitutional Court’s role in relation to the political powers has
repeatedly been perceived and criticized as a force advancing into the areas of
competence of the legislative and executive branches.56 Often, the Federal
52
Epstein and Walker 2016, p 7; Jackson and Tushnet 2006, p 1651.
53
BVerfGE 62, 1. According to Möllers, the court second-guessed the political attitudes of the
members of parliament, see Möllers 2014, pp 11–12.
54
Lübbe-Wolff 2016, pp 27–28; see BVerfGE 2, 1; 5, 85; 144, 20 (http://www.bverfg.de/e/
bs20170117_2bvb000113en.html. 16 August 2018); 36, 1; 73, 339; 82, 316, 320; 82, 322; 89, 38;
89, 155; 108, 34 (http://www.bverfg.de/e/qs20030325_2bvq001803.html. Accessed 9 August
2018); 123, 267; 130, 318 (http://www.bverfg.de/e/es20120228_2bve000811en.html. Accessed 9
August 2018); 131, 152 (http://www.bverfg.de/e/es20120619_2bve000411en.html. Accessed 16
August 2018); 134, 366 (http://www.bverfg.de/e/rs20140114_2bvr272813en.html, Accessed 2
August 2018); 135, 317 (http://www.bverfg.de/e/rs20140318_2bvr139012en.html. Accessed 26
July 2018); 142, 123 (http://www.bverfg.de/e/rs20160621_2bvr272813en.html. Accessed 26 July
2018); BVerfG, order for reference of the Second Senate of 18 July 2017 – 2 BvR 859/15, 2 BvR
1651/15, 2 BvR 2006/15, 2 BvR 980/16.
55
BVerfGE 6, 309, 325.
56
Würtenberger 1998, p 69; Lepsius 2008, p 112.
50 A. Seibert-Fohr
Constitutional Court provides the legislative branch with detailed specifications for
the constitutional development of statutes.57 Sometimes, when a statute is declared
invalid because of unconstitutionality, it provides interim regulations itself until a
new statute is passed.58
This also crucially distinguishes it from the US Supreme Court. In the United
States, the Supreme Court participates in the system of mutual checks and balances
and functions as a counterbalance to the other powers without standing in a relation
of superiority to them. Instead of the conflict between the public powers, which
shapes American constitutional life, in the Federal Republic, there is the constitu-
tional jurisprudence – relevant in many domains – of the Federal Constitutional
Court as the ultimate deciding authority.59 Political dispute, as it is carried out
above all in the Parliament in the United Kingdom, is supplanted in Germany by the
substantive stipulations of the Basic Law in the interpretation of the Federal
Constitutional Court.
3.2.4 The Role of the Federal Constitutional Court

in Relation to the European Union
In the European integration process, the Federal Constitutional Court has not taken
on the role of mediator between the levels but rather asserts itself over the European
Union.60 In this context, the Court has also been described as guardian of inte-
gration and its limits.61 Concerning the question what role the Federal
Constitutional Court plays with regard to European integration, the Court reserved
the guarantee of fundamental rights protection vis-à-vis European acts of public
authority early on.62 After the Solange II decision, it only makes use of this for
general problems, however, when the European fundamental rights protection falls
short of the fundamental rights standard provided by the Basic Law.63 Added to this
is the legal figure of the ultra vires act (ausbrechender Rechtsakt), developed in the
57
BVerfGE 93, 181; Möllers 2014, pp 10–11.
58
See BVerfGE 24, 300; 50, 290, 335; 56, 54, 78; 72, 330, 333; 88, 203, 209–211, 270–272; 93,
386, 402–403; 100, 104, 106.
59
60
According to Möllers, the Court’s approach to the European integration process is ‘quite
activist and relatively unusual’. Möllers 2014, p 12. He refers inter alia to a case concerning the
European rescue mechanism in which the Court strengthened parliamentary participation and
effectively blocked the installation of European bonds. He concludes that the Court ‘substantiates
the political procedure to allow the Court to intervene in decisions that have a degree of political
legitimacy of their own.’ Ibid., p 13.
61
Gusy and Kutscher 2011, p 136.
62
BVerfGE 73, 339.
63
BVerfGE 37, 271.
Maastricht judgment, which allows the Federal Constitutional Court to perform an

ultra vires review concerning the European Union.64
With the Lisbon judgment, the review function of the Federal Constitutional
Court regarding the European integration process has been extended by another
aspect: the identity review.65 On this basis, the Court evaluates whether Union legal
acts violate the values of the Basic Law that establish identity pursuant to Article 79
para 3 Basic Law, meaning in particular the untouchable core content of funda-
mental rights (Article 1 para 1 Basic Law) and the constitutional principles of
Article 20 Basic Law (inter alia democracy and the rule of law). Since in trans-
ferring competences to the Union, the German legislator may not restrict these
constitutional guarantees in favor of the Union, the Union’s acts of public authority
and measures based upon them may not infringe these guarantees either, according
to the Court.
As guardian of this constitutional identity, the Court so also positions itself in
relation to the other bodies of constituted power. It opposes a development which
increasingly questioned the importance of the German Constitution due to the
superimposition of European on German law. The Lisbon judgment restituted the
significance of the Basic Law, which produced an effect not only in the German but
also in the entire European context. The Federal Constitutional Court is accorded
the power of final decision in questions of the unalterable constitutional base, over
which it claims the sovereignty of definition. Despite the openness to European law,
the Court claims a final decision reserve, which is not restricted to a narrowly
defined function of review alone but also shows features of legislative creation, due
to the Court’s sovereignty of definition in relation to constitutional identity.
3.2.5 The Mediating Function of the Federal Constitutional

Court
As the previous remarks demonstrate, one would not do justice either to the original
conception of the Parliamentary Council or to the actual performance of duties and
the role of the Court within the federal German state and governmental system if
one reduced the portrayal of the Federal Constitutional Court’s jurisprudence
exclusively to the application of law.66 Its sui generis role is indisputable.67 It
emerges in the intimate connection between legal review and legal development in
the Court’s jurisprudence.
64
BVerfGE 89, 155.
65
BVerfGE 123, 267, 353–354.
66
See also Möllers 2011, p 350.
67
Leibholz 1957, pp 120–121.
52 A. Seibert-Fohr
The overlap of the review and the development functions emerges not only in the
domain of fundamental rights protection, but also in other areas of duties that the
Court performs, starting with the guarantee of the social order, to defending con-
stitutional identity, whose meaning it increasingly develops, to the function of
democratic securing,68 in which the Court became a catalyst for the development of
the democratic system.69 For legislation, the Federal Constitutional Court’s
jurisprudence has taken over the function of catalyst or supervisor in other domains
of regulation as well.70
With this basic conception, which does not only apply the law, one can explain
why the Court ultimately performs a balancing function aimed at equilibrium and
moderation in considering the positions relevant to the dispute, in particular in
politically contested cases.71 The idea of this substantive equilibrium72 manifests
itself in different ways, be it in applying the principle of proportionality, which aims
to balance colliding interests, or in producing a practical concordance in the ambit
of fundamental rights,73 in applying the social-state principle or deriving federal
loyalty, which demands mutual consideration and assigns the Federal Constitutional
Court a mediating role. Procedurally, the idea of balance appears for instance in the
Court’s decision to grant transitional periods and refrain from declaring a statute
unconstitutional.74 Here, the Court seeks not only to create a procedural balance in
the sense of an equilibrium of the various actors; rather, substantive balance is the
ultimate goal. This balance is an essential reason for the legitimacy of the Federal
Constitutional Court. For it founds its acceptance, and so its authority, on the ability
to move substantially in the framework of a presumed social fundamental con-
sensus and so to grant the constitutional system stability.75
The idea of balance ultimately also describes the Federal Constitutional Court’s
relationship to the European courts. Where the European Court of Human Rights
and the European Court are concerned, the Court tries to achieve this balance by
referring to the constitutional commitment to international and to European law.76
In this way, it is able to take up a mediating position despite the reserved com-
petence of final decision. This mediating stance only threatens confrontation, but in
68
BVerfGE 2, 1; 40, 296; 80, 188; 84, 304; 6, 84; 95, 335; 99, 1.
69
Bryde 2006, pp 324–326.
70
BVerfGE 10, 59; 12, 205; 25, 167; 33, 303; 65, 1; 98, 218; 120, 274 (http://www.bverfg.de/e/
rs20080227_1bvr037007en.html. Accessed 19 July 2018); 133, 59 (http://www.bverfg.de/e/
ls20130219_1bvl000111en.html. Accessed 19 July 2018).
71
Schneider 1987, p 312.
72
Würtenberger 1998, p 58.
73
BVerfGE 93, 1, 21.
74
Schneider 1987, pp 308–309, 310–311.
75
Gusy and Kutscher 2011, p 133.
76
BVerfGE 126, 286 (http://www.bverfg.de/e/rs20100706_2bvr266106en.html. Accessed 26
July 2018).
the application of set rules acts more considerately than it may initially appear.77
Ultimately, this corresponds to a practice that shapes the Federal Constitutional
Court’s jurisprudence as a whole. While the development of standards often seems
categorical and excessive,78 this is not true to the same degree of their concrete
legal application, which is exercised more moderately. While the Court continues to
claim the competence of the final decision, in practice it confronts the political
powers more rarely than one might think after reading the part on standards,
especially in the politically sensitive areas of state organization.79
3.3 Personal, Substantive, and Institutional Legitimation
If one compares the central function of the Federal Constitutional Court with its
personal, special, and institutional legitimation,80 it is scarcely surprising that the
personal legitimation of the judges plays a central role. The legitimation conveyed
in the figure of the judge (personal legitimation) supplements the institutional and
substantive legitimation transmitted by the Basic Law. Due to the broad scope of
interpretation the Basic Law alone would scarcely legitimate the Court’s jurispru-
dence. The function of development claimed by the Federal Constitutional Court
requires a further basis for legitimation, which is essentially transmitted by
democratically legitimated bodies.81
In contrast, the Constitutional Court enjoys a great deal of independence, once
the judges have been appointed. As a constitutional organ, the Federal
Constitutional Court is structurally largely independent of the other branches and
organs.82 It is equal to and independent of other constitutional organs such as the
Bundestag (Federal Parliament), Bundesrat (Federal Council), Bundespräsident
(Federal President) and the Bundesregierung (Federal Government). The Federal
Constitutional Court is not subordinate to any ministry, either, because its orga-
nization is based on self-administration. Nevertheless, the Federal Constitutional
Court is interrelated with other branches of government and state organs that focus
on justice-related issues.
77
BVerfGE 126, 286; 111, 307 (http://www.bverfg.de/e/rs20041014_2bvr148104en.html.
Accessed 12 July 2018).
78
79
See, e.g., BVerfGE 62, 1; 114, 107; 114, 121 (http://www.bverfg.de/e/es20050825_
2bve000405en.html. Accessed 28 August 2018).
80
For the Court’s institutional legitimacy, see Möllers 2014, pp 22, 24.
81
See also Heidebach 2014, p 153.
82
See Möllers 2014, p 7.
54 A. Seibert-Fohr
3.3.1 The Personal Legitimation of the Constitutional

Judges
During the deliberations in the Parliamentary Council, the problem arose in shaping
personal legitimation how to guarantee judicial independence with simultaneous
democratic accountability.83 In this process, the particularity of constitutional
jurisdiction was recognized from the start and taken into account in shaping the
parameters of legitimation.
3.3.1.1 Election of the Judges
Although the necessary independence of the constitutional judges was recognized,

in view of the Court’s meaningful role in the constitutional life of the Federal
Republic, it was decided overall that the bodies of the Bundestag and the Bundesrat
would transmit legitimation, hence opting for a distinctly democratic legitimation.
The Bundestag and the Bundesrat have the power to elect the constitutional judges.
They thus decide on the personal composition of the Court, which is of utmost
importance for the performance of its interpretative function. Accordingly, it is not
only the judges’ qualifications in judicial specialization that is considered when
selecting the Federal Constitutional Court’s judges. Rather, their legitimation has
always been shaped by the political process of the election of the judges. The
constitutional judges’ special function explains the difference from the legitimation
of the judges in other courts.84
Whereas Article 94 para 1 sent 2 of the Basic Law prescribes that an equal
number of judges be elected by the Bundestag and Bundesrat, it does not indicate
how the election procedure is structured nor does it specify the relevant qualifi-
cation criteria for the candidates. Article 94 para 2 of the Basic Law delegates this
task to the legislator instead.85 The Bundestag fulfilled this mandate by adopting the
Federal Constitutional Court Act (FCCA) in 1951. Sections 2 to 7a FCCA contain
the key provisions for the appointment of judges.86
The election of judges is a political process, which has been criticized because of
its lack of transparency.87 Section 6 para 1 FCCA sets forth that judges must be
elected by secret ballot by the plenary of the Bundestag upon proposal by the
selection committee. After the committee has made its proposal, the plenary of the
Bundestag elects a candidate with a two-thirds majority in accordance with
83
Niclauß 2015, p 193.
84
Voßkuhle 2018, Article 94 mn 8.
85
For the selection of Federal Constitutional Court’s judges, see, e.g., Kommers 2001, pp 148–
150; Maunz 2018, Article 94 mn 14, 18.
86
For a general description of the selection process to the Federal Constitutional Court, see Clark
1988, pp 1826–1829.
87
Section 6 para 1 sent 2 FCCA. With respect to the Bundesrat, Section 7 FCCA also
provides that the justices are elected by this chamber with a two-thirds majority.
The judges are thus legitimated partly on the basis of the principle of parliamentary
democracy and partly on the basis of federal democracy. According to Section 9
Federal Constitutional Court Act, the President and Vice-President of the
Constitutional Court are elected alternately by the Bundestag and the Bundesrat in a
political process too. This is a distinctive feature of the German system, as in many
other systems the court president is elected by her or his fellow judges.
Already in drafting the Federal Constitutional Court Act, it was clear that due to
the crucial role of the political bodies in the judicial election, the selection of judges
would be influenced by other considerations in addition to the criteria of specialized
qualifications. Accordingly, the Act stipulates that the Court is composed of pro-
fessional judges and judges with other work experiences. In this way, the
appointment of judges has reflected from the start that the Federal Constitutional
Court is not merely a court. Since three judges of each panel (Senat) must be elected
from among the judges of the Supreme Federal Courts, it is still guaranteed that the
judicial experience plays a central role in finding justice.88 What is more, all judges
must prove that they are qualified for judicial office. Thus, it is a court composed
only of lawyers. This emphasizes the normativity of the Basic Law and its inter-
pretation, which is guided by legal methodology.89
Because of the central role of the Bundesrat and Bundestag in the judicial
appointment, political considerations, guided by the party affiliation or the party
proximity of the candidates, determine their selection, in addition to their legal
qualification. It was acknowledged early on that the politically shaped appointment
ensured that the judges would show an understanding for the political powers.90
Yet already in developing the Federal Constitutional Court Act in 1950, it was
largely agreed that judicial appointment would be designed so that the Federal
Constitutional Court would not become the mirror of the political majority in
question.91 The requirement of the qualified majority in elections in the Bundestag
or Bundesrat ensures that this is so. This hurdle has a consensus-forming effect,
unlike in the American judicial appointment, which depends on the relevant
political majorities. Overall, this brings about a balance within the Federal
Constitutional Court when it is composed, because the parties take turns.92 Informal
arrangements between the parties as well as practices shaped by party-political
interests contribute to achieving the qualified majority.93 So if in the judicial
88
Section 2 para 3 FCCA secures judicial expertise for both Senates. It provides that in each
Senate three judges must have previously served at one of the federal supreme courts for at least
three years.
89
Voßkuhle 2018, Article 94 mn 6.
90
Leibholz 1957, p 122.
91
Protokoll vom 21.3.1950, ParlA I 115 A, pp 136, 151.
92
Kommers 2001, p 149.
93
For the informal procedure, see Kommers 2001, p 149; Heidebach 2014, p 155.
56 A. Seibert-Fohr
appointment, what is at stake is preserving the ideological balance in the Court as a

whole, then this form of legitimation correlates with the Court’s mediating function
described in the first part of this essay. In other words, the Court’s efforts at
achieving a balance between opposing positions can be traced back to the mode of
judicial appointment.
3.3.1.2 Term of Office and Exclusion of Reelection
While democratic legitimation is foregrounded in the appointment of the judges,

after they are appointed, their democratic accountability diminishes in the interest of
judicial independence, as is customary.94 Other parameters of legitimation take their
place. An essential element in securing legitimation is therefore the regulation of the
term of office and the exclusion of reelection.
Originally, the Federal Constitutional Court Act still provided for the possibility
of reelecting the constitutional judges. But in the interest of judicial independence,
this was later abolished,95 for, as the federal government puts it when stating the
grounds of the bill, ‘the reputation of the judges’ independence is enhanced by the
fact that the members of the Federal Constitutional Court, appointed for a defined
period of time, are not reelected by electoral bodies whose constitutional actions
they review.’96 Previously, a third of the members of the Federal Constitutional
Court were reelected every four years, with the exception of the professional jud-
ges. By changing the Federal Constitutional Court Act in 1970, the term of office
was standardized to 12 years and at the longest until the judges’ age limit of 68
years.97
Upon closer inspection, the intimate connection between this regulation and the
changing function of the judges emerges. For the elimination of the renewal pos-
sibility was temporally connected to the introduction of dissenting opinions. At the
time, it was feared that the renewal could be abused as a sanction against the legal
views expressed in the judges’ dissenting opinions.98 To prevent this and to secure
judicial independence, the legislator therefore decided on a longer term of office,
but without the possibility of renewal.
In this way, the term of office of the Federal Constitutional Court’s judges
functions as a complementary parameter of legitimation, which supplements the
procedure of judicial appointment legitimatorily, in the interest of democracy and
94
Cassese 2011, p 14: ‘A genetic link connects them [political bodies and constitutional courts],
although the relationship of accountability between the appointer and its appointee is broken:
constitutional judges are of political derivation, although they are not required to answer to
politics.’
95
96
BT-Drucks. VI/388, p 6.
97
Section 4 para 1 FCCA.
98
Laufer 1968, p 216.
judicial independence, even reconciling the two to a certain extent.99 With the
exclusion of renewal, firstly, the judges’ independence is secured for their entire
term as soon as they are appointed, since there is no need for political considera-
tions in the interest of re-election. Secondly, the new filling of the seats enables a
periodic renewal of the democratic legitimation.
As with the appointment procedure, the regulation of the term of office is also
shaped by the idea of balance. The twelve-year duration of this term takes the desire
to renew the democratic legitimation into account, but the long term in office
nevertheless uncouples this legitimation from the political majorities.100 Although
seats are newly filled more frequently in comparison to repeated reelection of the
same judges, the twelve-year term in office (as well as the requirement of a qualified
majority) entails that the respective elected judges are independent of political
fluctuations, for the term in the Federal Constitutional Court exceeds the legislative
period threefold. This underscores once more the independence of political
majorities, while at the same time acknowledging the necessity of a renewal of
democratic legitimation. Simultaneously, the regulation of the term in office brings
about a compromise between the requirement of democratic legitimation and the
continued fulfilment of judicial duties.101
3.3.2 Legitimation During the Term in Office
Not only reappointment is excluded in the interest of judicial independence. The

administration of the judges is also secured against other external threats. As will be
seen in what follows, essential elements here are the protection of personal inde-
pendence during the tenure – a protection that is only restricted in the case of
grievous official misconduct in the interest of the rule of law and judicial
accountability – as well as the regulations of incompatibility and bias.
3.3.2.1 Personal Independence Through the Protection Against

Removal or Transfer
In addition to the guarantee of substantive independence, due to their judicial

function, the judges’ personal independence is comprehensively protected during
their term in office in the form of a fundamental impossibility of removal or
transfer. Apart from securing their judicial salary and the performance of their
official duties, they are largely protected against disciplinary measures. The removal
of a judge of the Federal Constitutional Court requires an authorization from the
99
100
See also Cassese 2011, p 14.
101
Schefold 1988, p 293.
58 A. Seibert-Fohr
Federal President through a decision of the Court’s plenary assembly, made with a
majority of two-thirds of the Court’s members.102 Neither the Bundestag nor the
Bundesrat have a say in this. The threshold of intervention is high because of the
procedural prerequisites arising from the principle of the Court’s collective
accountability. It is additionally secured by the substantive prerequisites for
removal. A judge’s lasting invalidity is the prerequisite for mandatory retirement. In
the case of a removal, the precondition is a ‘dishonorable act’, a final conviction to
imprisonment of more than six months, or such a gross breach of duty that it
precludes the judge from remaining in office.103 That this is a high threshold of
intervention is proven by the fact that the pertinent requirements have not become
relevant in the history of the Federal Constitutional Court, which has existed for
over six decades by now.
3.3.2.2 Incompatibility and the Safeguarding of Personal

Independence
The safeguarding of personal independence is flanked by the regulations on

incompatibility. These aim to guarantee the internal independence of the judges by
protecting the independent and unbiased administration of office. Therefore, these
rules are in the interest of both the rule of law and democratic legitimation, which
would otherwise be interrupted in case of an extraneous influence on jurisprudence.
In order to do justice to their judicial review function vis-à-vis the other powers and
to the principle of the division of powers, the judges of the Federal Constitutional
Court may not belong either to the Bundestag or the Bundesrat or the federal
government during their term in office, according to Article 94 para 1 sent 3 Basic
Law.
In order to avoid collisions of duties, which would be detrimental to judicial
independence, the civil-service rights and duties are suspended for the duration of
their term in office also for those civil servants appointed as judges of the Federal
Constitutional Court.104 Furthermore, with the exception of university professor,
secondary employment is excluded, in order to guarantee the Court’s ability to
work.105
102
Section 105 paras 1, 2 and 4 FCCA.
103
104
Section 101 para 1 sent 2 FCCA.
105
3.3.2.3 Impartiality in Light of the Constitutional Court’s Sui Generis

Nature
The rules on impartiality and bias in the Federal Constitutional Court Act also serve
to secure judicial impartiality and its external perception and so take the judicial
function of the Federal Constitutional Court into account in the interest of due
process. At the same time, they are based on the concern to ensure the functioning
of the Court.
In this context, it is interesting how bias is defined. In recusal proceedings, the
Federal Constitutional Court elaborated: ‘The natural, even desired, basis of the
provisions concerning the election of judges of the Federal Constitutional Court
(Article 94 para 1, Section 3.3 ff FCCA) is that also those persons who have
exercised political functions as party representatives in the parliaments or have held
other political offices in the governments can be elected and appointed as members
of the Federal Constitutional Court, in order to mobilize their political experiences
for the constitutional jurisdiction. This is accompanied by the expectation of the
constituent power and legislature that they will perform their new role as judges
independently of earlier party-political disputes.’106
Despite the interest in securing judicial independence, which might initially
speak for a personal distance from the legislative bodies, this takes into account the
special nature of the Federal Constitutional Court. If the previous participation in
the legislative branch as such is not in principle viewed as impairing independence,
then this shows that the understanding of judicial independence expressed by the
judges’ legitimation must not be confused with neutrality but aims to protect against
judicial bias or partisanship and to ensure the Court’s general openness to different
constitutional positions. As Section 18 para 2 FCCA underscores, the purpose is
not to exclude different ideological positions. Rather, it is acknowledged that the
judges are shaped by their ideological positions and their personal circumstances,
such as background, family status, and profession. As long as they maintain their
openness to diverging arguments and do not judge on the basis of their political
affiliation, the impartiality of the Court is not called into question according to this
fundamental understanding. The law only draws the line where there is the threat of
bias and the danger that the balance within the Court no longer works due to
external interference.
Except in cases of disqualification because of partiality, a judge can also be
recused from the rest of the proceedings by resolution of the Court, without par-
ticipation of the recused – on application of a party to the proceedings or at his or
her own request (self-recusal) – because of the concern of bias pursuant to
Section 19 FCCA. The jurisprudence of the Federal Constitutional Court estab-
lishes stringent requirements for the recusal of a judge. These exceed the standards
for other jurisdictions and therefore frequently lead to the rejection of a petition for
106
BVerfGE 99, 51, 56–57.
60 A. Seibert-Fohr
recusal.107 The judges point out that in principle one must assume that the judges
are impartial and objective, due to the qualified majority required for the judicial
election.108 Moreover, the Court justifies the particularly exacting standard with the
possible consequences for jurisprudence that the change of majorities in the Court
entails.109
The statement of grounds shows that the answer to the question of bias is again
based on the sui generis nature of the Federal Constitutional Court and more
particularly considers the special features of the judicial election. In this way, the
Court shows that it intends to prevent motions to dismiss from being instrumen-
talized in a way that endangers judicial independence. If the Court is largely
concerned with preserving the composition of the Court and thus the weighting of
votes in the particular Senat, then what is expressed is that the idea of balance
within the Court essentially shapes its legitimation. This influences the legitimation
of the individual judges in as much as a recusal can dissolve the balance within the
body. The Court recognizes its plural composition, which preferably should not be
disturbed. In other words, in general, the democratic legitimation of the Court as a
college shall not be compromised by the recusal of a judge.
As a result, the rules concerning both exclusion and recusal reflect the con-
ception that underlies judicial appointment in the first place: The proximity to a
political party or party affiliation alone is not grounds for bias. Judges are con-
sidered legitimated to take part in the decision as long as they are willing to weigh
factors and do not take a side beyond the basic conviction that is accepted and even
desired in judicial appointment.
3.3.2.4 Deliberative Legitimation
As we have seen so far, the judges’ democratic accountability is restricted by the

limitations on their dismissal during their tenure in the interest of judicial inde-
pendence. The initial legitimation effected by the appointment thus requires an
accompanying continuous legitimation during the term in office. In this phase,
alternative mechanisms of accountability are important, which are the Court’s own
responsibility. Soft control mechanisms, such as the principle that reasons must be
given, as articulated in Section 30 para 1 FCCA, entail that the accountability
necessary for democratic legitimation can be upheld without judicial independence
being at issue. Thus, legitimation is produced by the contentious proceedings,
which guarantee a fair hearing and the hearing of different interests, as well as by
the publicity of proceedings or the explanatory work of the Court vis-à-vis the
parties and the wider public, for they guarantee a comprehensive deliberation not
107
Geck 1998, pp 723–724, mn 39–40; see also BVerfGE 35, 246, 251; 73, 330.
108
BVerfGE 35, 171, 173.
109
BVerfGE 35, 171, 172–173.
only within the Court but also in relation to those who are legally concerned.110 The
exchange of opinions serves to allow for opposing positions, the self-review of the
Court, and so a balanced decision-making process. Beyond this, these deliberative
elements make it possible to reconnect to public opinion. As a whole, these
parameters bring about a balance between the demands of democratic legitimation
and the guarantee of judicial independence.
3.3.3 Complementarity of the Parameters
In summary, at this junction one can retain the following: in addition to the election
of judges, the regulations on term of office, incompatibility and impartiality belong
to the parameters of legitimation that play a role in personal legitimation. The
individual parameters have a complementary function and are crucially shaped by
the guarantee of democracy, the rule of law, federalism, and the division of powers.
At times, these fundamental principles are in conflict and must be balanced when
developing the individual parameters.111 While the election of the judges ensures
democratic legitimation, which is vital according to the jurisprudence of the Federal
Constitutional Court,112 the requirement of the qualified majority vote prevents a
biased influence from the particular governing party.113 The legal qualification is
meant to secure the independence of the judges and their competence for
jurisprudential activity despite the political appointment. Due to the participation of
the Bundestag and Bundesrat, the principle of equal appointment applies,114 which
expresses the federal structural principle.115 It can be explained with the Federal
Constitutional Court’s responsibility for federal disputes, which requires the bal-
anced participation of both chambers, so that the Court can fulfil its arbitrational
function in disputes between the federation and the states. At the same time, judicial
election effects an interweaving of powers, which takes the fact into account that the
Federal Constitutional Court is appointed to review the other state bodies.
On the whole, the design of judicial legitimation is essentially based on the
fundamental idea of complementarity. The Court unites different qualifications and
ideological perspectives, in order so to achieve a certain balance institutionally.
This is demonstrated not only by the different substantial basic convictions of the
judges, but also by the Court’s composition of professional judges and members
who are not professional judges. The plural composition is intended to bring in
different expertise, which the Court needs to fulfil its tasks. In this way, the judges
110
See also Cassese 2011, p 20.
111
Laufer 1968, p 207.
112
BVerfGE 40, 356, 366.
113
114
BVerfGE 65, 152, 155.
115
62 A. Seibert-Fohr
complement one another and accommodate the special nature of constitutional

jurisdiction. At the same time, the regulation of the term of office brings about a
certain adaptability of the Court over time. The twelve-year term of the judges
without the possibility of re-election stands for a balance of preservation and effi-
ciency on the one hand and the dynamism of constitutional jurisprudence on the
other hand. If the judicial appointments have hardly encountered essential criticism
in society so far,116 this proves that substantially legitimation in the Federal
Republic is commensurate with output legitimation. Accordingly, the public’s
acceptance of the jurisprudence endows the Court with a high degree of
legitimacy.117
3.4 Legitimacy and Function as Mirror Images
As indicated above, if one compares the function and legitimacy of the Federal
Constitutional Court, then one notices that the legitimation of the judges clearly
reflects the special role of the Court in the Federal German constitutional system.
This synchronization of function and legitimation became apparent especially in
those times when parameters of legitimation were adapted to the Court’s changing
function. Some reforms of the Federal Constitutional Court Act were justified with
its special tasks. Thus, for instance, the elimination of the possibility of reelection
took the change of function brought about by the introduction of dissenting opin-
ions into consideration.
Conversely, the legitimation of the judges, as it is designed in the Federal
Republic of Germany, is also reflected in the Federal Constitutional Court’s con-
crete performance of its duties. The Court, which is composed by means of a
political process, performs a dual function that cannot be reduced to a mere judicial
review function but also displays characteristics of legal development. Hence, the
Court’s concrete performance of its duties reflects the interplay of democratic
legitimation and the qualification of professional judges in the judicial appointment.
The thesis of the function guided by legitimation, developed at the beginning of this
essay, is thus confirmed.
3.5 Significance for Other Constitutional Systems
The theory of functional legitimation is important for other democratic constitu-

tional systems as well. Concretely, it can be of use whenever the matter at stake in
judicial appointment is determining the relationship between democracy and the
116
For an academic critique, see Heidebach 2014, pp 158–159.
117
Möllers 2014, pp 14, 21.
rule of law. For as mentioned in the beginning, in the legitimation of judges who
perform constitutional functions, the concern of democratic legitimation and the
safeguarding of judicial independence do not always coincide. Both principles can
strengthen one another: for instance, provisions concerning impartiality and
incompatibility – much like requirements for the judges’ legal qualification – serve
the concern of democratic legitimation as well as the securing of due process. Yet at
the same time, both principles can also stand in tension. If the principle of
democracy for example generally demands a periodic review and renewal of
legitimation beyond the act of appointment, such a regular renewal of legitimation
in the shape of re-election challenges the guarantee of personal independence.
With the introduction of constitutional jurisdiction, this tension was by no means
decided unilaterally, with constitutionality taking precedence over democracy.
Conversely, invoking the principle of democracy is also not suitable as a unilateral
influence on the composition of the Court. Rather, a continuous balancing of both
principles is required.118 Accordingly, the plural composition of the Federal
Constitutional Court imparts the equilibrium needed for the constitutional juris-
diction, despite the crucial role of the political bodies in the election of judges. So
the underlying understanding of democracy cannot be reduced to a simple majority
principle. Rather, for constitutional jurisdiction, democratic legitimation means a
balanced reconnection to the people as a whole. After all, constitutional jurisdiction
would be unnecessary if it were only a reflection of the particular political
majorities and therefore could not perform its review function.
How the tension between democracy and the rule of law is balanced concretely
in essence depends on what function the judges have or should have according to
the constitutional lawmaker. This is influenced for one by the catalogue of com-
petences of the court in question, but for another also by how the nature of con-
stitutional jurisprudence as the subject of legitimation is defined. Here lie the
fundamental decisions of constitutional theory, which shape the concrete design of
judicial legitimation in a crucial way. In addition to judicial appointment, consti-
tutional jurisprudence itself also plays an important role in striking a balance in the
zone of conflict. The relevant methodology of interpretation and the judges’
practice of restraint concerning political decisions concretize the relationship to
democratically legitimated majority decisions. This is a dynamic process that
requires all constitutional bodies to engage in continuous reflection.
118
According to Lübbe-Wolff there is no ‘one and only’ proper solution to the democracy
dilemma implicit in the question of constitutional review. Lübbe-Wolff 2016, p 19.
64 A. Seibert-Fohr
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Anja Seibert-Fohr holds the Hengstberger Chair in Public Law, International Law and Human
Rights Law at Heidelberg University and is Director of the Institute for Constitutional Law,
Constitutional Theory and Philosophy of Law. Until 2018, she served as a member and Vice-Chair
of the UN Human Rights Committee. Her research focuses on the rule of law, comparative
constitutional law and international human rights. She has published a large number of works,
including Judicial Independence in Transition (Springer, 2012).
Chapter 4
Italy and Its Constitutional Court
Alfonso Celotto
Contents
4.1 Introduction: Judicial Independence and Accountability in the Italian Legal

Order .................................................................................................................................. 68
4.2 The Italian Constitutional Court ....................................................................................... 70
4.2.1 The Establishment of an Ad Hoc Court Entrusted with Centralized Constitutional
Review .................................................................................................................... 70
4.2.2 The Powers of the Constitutional Court ................................................................ 71
4.3 The Rules Aimed at Ensuring the Independence of the Constitutional Court and Its
Accountability.................................................................................................................... 72
4.3.1 The Independence of the Constitutional Court as a Whole: The Composition
and the Process for the Appointment of Judges.................................................... 73
4.3.2 The Independence of the Individual Judges of the Court: The Status
of the Judges........................................................................................................... 76
4.3.2.1 The Qualifications of the Candidates to Become Members
of the Court ......................................................................................................... 76
4.3.2.2 Rules on Incompatibility .................................................................................... 78
4.3.2.3 Irremovability of the Judges .............................................................................. 79
4.3.2.4 Immunity.............................................................................................................. 79
4.3.2.5 Title of ‘Judge Emeritus’ ................................................................................... 80
4.3.2.6 Salary.................................................................................................................... 81
4.3.3 Other Procedural and Organization Rules Aimed at Ensuring the Independence
of the Court ............................................................................................................ 81
4.3.3.1 Lack of Dissenting and Concurring Opinions and Lack of Appeal Against
the Decisions of the Court................................................................................. 81
4.3.3.2 The Special Rules on the Abstention and Objection...................................... 82
4.3.3.3 Duration of the Term of Office and the Rule Against the Re-election of the
Judges................................................................................................................... 83
4.3.3.4 Election of the President of the Court.............................................................. 84
4.3.4 The Accountability of the Court ............................................................................ 84
4.4 The Independence and the Accountability of the Italian Constitutional Court in Light
of Bipolar Constitutionalism ............................................................................................. 85
A. Celotto (&)
‘Roma Tre’ University, Rome, Italy
e-mail: alfonso.celotto@uniroma3.it

https://doi.org/10.1007/978-94-6265-359-7_4
68 A. Celotto
4.4.1 The Independence of the Italian Constitutional Court in Practice ........................ 85

4.4.2 The Italian Constitutional Court in Light of Bipolar Constitutionalism ............... 87
4.4.2.1 The Court of Rights and the Court of Powers................................................ 88
4.4.2.2 The Relationship Between the Constitutional Court
and the Legislator ............................................................................................... 89
4.5 Conclusive Remarks .......................................................................................................... 91
References .................................................................................................................................. 93
Abstract This contribution analyses the constitutional and legislative rules aimed at
ensuring the independence of the Italian Constitutional Court and its accountability,
both as a whole and in relation to the single judges. The effectiveness and the impact of
such rules are then assessed in practice, also in light of bipolar constitutionalism. The
author concludes that the Italian Constitution seems to be strongly inclined towards a
solid independence of the Court, with a rather low degree of accountability. It is also
concluded that such rules work properly in practice, making the Court an independent
institution, and allowing it to effectively protect the Constitution from possible
manipulations by the dominant groups. It is then argued that the Court is able to serve
as an intermediary between law and politics, ‘jurisdictionalising’ politics into the legal
procedures and, at the same time, ‘politicizing’ its judicial role through the political
nature of the matters examined and the political effects of its decisions.

Keywords bipolar constitutionalism Constitutional Court of Italy judicial

accountability judicial independence jurisdictionalisation politicisation
4.1 Introduction: Judicial Independence

and Accountability in the Italian Legal Order
The independence of the judiciary represents one of the fundamental principles of

the Italian constitutional order, as of many other democratic legal systems. Article
104 of the Constitution states that ‘[t]he Judiciary is a branch that is autonomous and
independent of all other powers’, and Article 101 states that ‘[j]ustice is administered
in the name of the people’ and that ‘[j]udges are subject only to the law’.1
This principle of independence applies also to the Constitutional Court, whose
main role is to protect the citizens from certain types of unconstitutional conduct of
the powers of the State, such as the passing of unconstitutional laws or breach of the
constitutional rules on the allocation of power.2
1
In this contribution, the English translation of the articles of the Constitution is from the text
published by the Parliamentary Information, Archives and Publications Office of the Senate
Service for Official Reports and Communication, available on the website of the Senate: https://
www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf. Accessed 1 March 2019.
2
4 Italy and Its Constitutional Court 69
According to a widely accepted definition, an institution could be considered to

be independent when the decisions it adopts are not meant to favour the interests of
the members of that institution (or of subjects with similar interests) or of subjects
who can in the future ‘reward’ the members of that institution.3 Therefore, a court
can be considered to be independent when its judges do not adopt their decisions to
gain a personal advantage or to allow other subjects to gain any advantage in
exchange for money or any other form of compensation. This, applied to a con-
stitutional court could mean that this court is independent ‘insofar as it is not the
agent of either the executive or the legislative branch, or of both’.4 However, as
correctly pointed out, independence should be considered as a ‘matter of degree’
and it is probably ‘never complete and never totally lacking’.5
Judicial independence is considered as an essential element of liberal democ-
racy6 but at the same time it is considered crucial that this is balanced with judicial
accountability. In other words, although it is generally agreed that judges (including
in particular judges exercising constitutional functions) are independent from other
powers (in particular, the legislative and the executive powers), it is also felt
necessary in democratic legal orders that they are held accountable to the institu-
tions and the public.7
Both the principle of independence and the principle of accountability serve the
purpose of allowing the constitutional courts to have the legitimacy to exercise the
delicate and sensitive powers they have been attributed. However, the application of
the same principles could expose the courts to the risk of being excessively detached
from the political context and to the opposite risk of being excessively politicized.8
This chapter is structured as follows: first of all, it provides an overview of the
powers and of the role of the Constitutional Court in the Italian legal system; it then
provides a description of the main rules (mainly contained in the Constitution itself
or in constitutional laws9) aimed at ensuring the independence of the Court; the
following section includes an analysis of the application and effect of those rules in
3
Breton and Fraschini 2003, p 320.
4
Fiorino et al. 2007, p 688.
5
6
Russell 2001, p 1, where the author notes that, however, there is ‘little agreement on just what
this condition of judicial independence is, or on what kind or how much judicial independence is
required for a liberal democratic regime, or on the societal conditions on which judicial inde-
pendence depends’.
7
Peri 2012, p 2, where it is argued that more and more countries in the world are now finding
themselves in what has been defined (by A Paterson) as a ‘conundrum of the apparently insoluble
tension between judicial independence and judicial accountability’. As noted by the author,
judicial accountability shall be considered separate from judicial responsibility because ‘the last
one generally arises from the violation of norms’, while accountability ‘affects in some way ethics
and governance (for this reason it is often called “ultimate responsibility”’ (Peri 2012, p 3).
8
Ibid., p 4.
9
These are laws with the same strength as the Constitution and that are adopted following the
special procedure provided by Article 138 of the Constitution.
70 A. Celotto
practice and in light of the principles of bipolar constitutionalism; finally, conclu-

sive remarks are offered in relation to the role of the Court within the Italian legal
order and in relation to its degree of independence.
4.2 The Italian Constitutional Court
4.2.1 The Establishment of an Ad Hoc Court Entrusted

with Centralized Constitutional Review
The Italian 1948 Constitution, adopted by the Constituent Assembly after the fall of
the Italian Fascist regime and the end of the Second World War, introduced for the
first time a Constitutional Court in the country. This Court was entrusted with the
protection of the new ‘rigid’ Constitution, i.e. a Constitution which could be
amended only through a complex process, different from the one for the passing of
ordinary laws.10
The establishment of the Court, in other words, mainly aimed at addressing the
need for a judicial constitutional review of the legislation in the newly established
‘constitutional democracy’,11 where the people has the sovereignty but where it
(and its representatives) must act in compliance with the provisions of the
Constitution itself.12 The members of the Constituent Assembly opted for a form of
centralized, rather than de-centralized,13 constitutional review and decided to
establish a dedicated Court.14
10
Under Article 138 of the Constitution ‘[l]aws amending the Constitution and other constitu-
tional laws shall be adopted by each House after two successive debates at intervals of not less than
three months, and shall be approved by an absolute majority of the members of each House in the
second voting. Said laws are submitted to a popular referendum when, within three months of their
publication, such request is made by one-fifth of the members of a House or five hundred thousand
voters or five Regional Councils. The law submitted to referendum shall not be promulgated if not
approved by a majority of valid votes. A referendum shall not be held if the law has been approved
in the second voting by each of the Houses by a majority of two-thirds of the members’.
11
Zagrebelsky and Marcenò 2018, p 63. The previous Constitution, i.e. the 1848 ‘Statuto
Albertino’, was a flexible constitution as it could be amended through an ordinary legislative
procedure and therefore created no need for a judicial review of the legislation.
12
Article 1, para 2 of the Constitution, states that ‘Sovereignty belongs to the people and is
exercised by the people in the forms and within the limits of the Constitution’.
13
However, it has been argued that ‘the experience of more than 50 years of judicial review in
Italy (…) has seen an evolution towards a much more decentralized system, (…) a system in which
the ordinary judges also play an important role in constitutional review’ (Groppi 2008, p 101).
14
Actually, the idea of establishing a court with the role of ensuring and protecting the rigidity of
the Constitution emerged even before the start of the works of the Constituent Assembly.
However, in the first phases of the debate, no real discussion took place in relation to the com-
position of such a court or in relation to its independence.
As soon as the subjects and the political parties involved in the debate started
discussing the features of the new Court, it became immediately clear that the
objective shared by the majority of them was to shape the Court as a body with a
mixed nature, i.e. a body which was neither purely political nor purely legal.15
4.2.2 The Powers of the Constitutional Court
The Italian Constitutional Court can be called to pass a judgment in the following
cases:16 (i) controversies on the constitutional legitimacy of laws and enactments
having force of law issued by the State and Regions;17 (ii) conflicts arising from
allocation of powers of the State and those powers allocated to State and Regions,
and between Regions; (iii) charges brought against the President of the Republic,
according to the provisions of the Constitution, in cases where he is accused of high
treason and attempt to overthrow the Constitution;18 and (iv) to adjudicate on the
admissibility of requests for referenda directed at the repealing of laws.19
Hence, the powers of the Italian Constitutional Court appear to be more limited than
those of the constitutional courts in other jurisdictions.20 First of all, it cannot exercise
control relating to more political aspects, such as for example in relation to electoral
issues, or the supervision of political parties or to ascertain the incapacity of the
President of the Republic. Secondly, the main power of the Court, i.e. the power to
adjudicate on disputes relating to the constitutionality of laws, is strictly limited from
many points of view. In particular, the access to the Court is indirect and is decided by
ordinary judges, and the constitutionality review takes place ex post. The question of
constitutionality of a law can be raised within ordinary judicial proceedings (where the
15
According to one of the proposals discussed by the Constituent Assembly, the nature of the
Court should have been at the same time political, legal and technical ‘because these are the
elements of any norm’. As a result, it was proposed that the Court should have been composed of
members elected by the Parliament, members elected by the judicature or coming from the legal
profession, together with deans of the faculties of engineering, of medicine, or natural sciences.
16
As noted in Groppi 2008, p 102, these powers are typical of constitutional tribunals.
17
The analysis of the decisional practice of the Court shows that this is the power that has been
exercised the most over the years, in particular as regards the ‘incidental’ review of certified questions.
18
19
Article 2 of Constitutional Law no. 1/1953. Pursuant to article 75 of the Constitution, the
referendum to repeal laws can be promoted by 500,000 voters, or five regional councils.
20
See Groppi 2008, pp 102–104.
72 A. Celotto
contested law should be applied), either upon request of one of the private parties or on
its own motion by the court.21
In addition, the powers of the Court are rather limited both in terms of acts that can
be submitted to its review (only laws and enactments having force of law, and not
delegated or administrative legislation) and in terms of the scope of the review itself,
which is restricted to the question submitted and to the limit of the challenge brought
forward.22 Furthermore, the Court may in principle only choose among a limited
number of categories of decisions to conclude its proceedings, whose effects are also
made very clear by the applicable rules. If it does not issue an interlocutory judgment or
rejects the question on the basis of procedural grounds, the Court may in theory only
opt either for a decision upholding the question on the constitutionality of the law
(sentenze di accoglimento)23 or a decision rejecting such question (sentenze di
rigetto),24 but has in practice developed a rich variety of judgments.25
4.3 The Rules Aimed at Ensuring the Independence

of the Constitutional Court and Its Accountability
The Italian Constitution and other constitutional and ordinary laws provide for
several rules aimed at ensuring the independence of the Constitutional Court.
21
A form of direct review is however possible when the national government or a regional
government challenge, respectively, a regional or a national statute (Article 127 of the
Constitution). Individual citizens, parliamentary groups or local governments do not have direct
access to the Court. It is to be noted that this form of review is very relevant in quantitative terms:
more than 35% of the decisions of the Court in 2017 were in direct review cases.
22
Under Article 27 of Law no. 87/1953, ‘The Constitutional Court, when it accepts an application
or petition involving a question of constitutionality of a law or act having force of law, shall
declare, within the limit of the challenge, which of the legislative provisions are illegitimate’,
although in any case the Court may also decide to state ‘which are the other legislative provisions
whose illegitimacy arises as a consequence of the decision adopted’.
23
Such judgments are universally binding and produce retroactive effects, with the exception of
the principle of res iudicata (except for criminal cases).
24
Such decisions do not state the constitutionality of the law but they simply reject a specific
challenge which was submitted against that law, and only in the form in which it was submitted to
its review. In addition, they do not have an erga omnes effect.
25
As noted in Groppi 2008, pp 105–106, the Court was able - due to the wide discretion it enjoys
in interpreting its procedure and practice - to develop such a variety of judgments, with the aim of
addressing the necessity to respond to specific practical needs.
4.3.1 The Independence of the Constitutional Court

as a Whole: The Composition and the Process
for the Appointment of Judges26
It is widely recognized that the procedures and the rules on the selection of the
members of a court have a considerable impact on its status and on its role within
the legal order.27 The rules on the composition of the Italian Constitutional Court
and the values underlying such rules determined and still determine the way the
Court functions and the way it interacts with the other components of the consti-
tutional system (and, in primis, the other powers of the State).28
In fact, it does not come as a surprise that the Leitmotiv of the discussion within
the Constituent Assembly was that the issue of the composition of the Court was
directly and closely connected with its legitimation and with its functions; for this
reason, the new Court needed to be at the same time highly political (because it was
called to exercise its review on the content of the legislation) and highly prestigious
(both in terms of the selection of the members and in terms of the status recognized
to those members). However, several different positions emerged on how this
mixed nature of the Court should have been achieved in practice.29
26
The systematization applied here is only one of the many possible systematizations that have
been proposed by the doctrine in relation to the different rules aimed at ensuring the independence
of the Court.
27
In other words, ‘judicial selection process is not a neutral procedure: norms which refer to
judicial selection, like all the positive norms in the system, convey a value’. This is because ‘the
method to select the judiciary is so rooted in a broader context which involves various individuals,
groups and political institutions which can influence judicial independence’ (Peri 2012, pp 2–3).
28
Just as in many other constitutional legal orders, the rules on the composition of the Italian
Constitutional Court are contained either in the Constitution or in constitutional laws. This is
considered to be a way not only to emphasize the special status of the Court but also to give it the
necessary legitimation to exercise its role in terms of review of the legislation and for the insti-
tutional compromises. However, it can be noted that Italy belongs to the jurisdictions where the
written procedural rules on the appointment of the constitutional judges are not excessively
detailed and this lack of detailed rules is not compensated by a considerable transparency and
involvement of the public in the process of appointment (as it is for example in the United States,
where the procedure is very informal but involves several institutional and non-institutional
players) (Peri 2012, pp 6–7).
29
The tension between these two features influenced the debate between the political parties
sitting in the Constituent Assembly. In the same context, it was stressed that the Court should also
have a strong judicial character, in order to ensure its impartiality and its independence from the
legislative power (which it was called to control) and from the government. On the other hand, it
was proposed to establish a link between the election of the judges of the Court and the political
elections: according to this proposal, the Parliament would have elected the judges at the beginning
of each legislature and the term of both the Parliament and the Court would have had the same
duration. However, this proposal was rejected, together with several other alternatives, in order to
ensure the independence of the Court from the political parties sitting in the Parliament and in
order to avoid establishing an excessively close connection between the Court and the political
power. The original wording of the relevant provision regulating the procedure for the renewal of
74 A. Celotto
The solution which prevailed in the Constituent Assembly was that the
Court should be composed - in its ordinary configuration - of fifteen judges30 to be
appointed by the Parliament (the Chamber of Deputies and the Senate in joint
sitting), by the three highest Courts (three judges are elected by the Supreme Court
of Cassation, one by the Council of State, one from the Court of Audit)31 and by the
President of the Republic (one third, i.e. 5 judges, each).32
However, despite the diversified appointment procedure, it is underlined that all
the three components of the Court are homogeneous and united by the fact of being
all independent from the institutions that have elected them, and act as a single
body.33 Such independence and separation from the electing body is achieved
through different means, depending on the single component.
As regards in particular the judges elected by the legislature, a majority of the two
thirds of the members of the Parliament is required in the first two ballots to elect the
constitutional judges, while a majority of the three fifth is required for the following
ballots. Such thresholds have been raised in 1967,34 in order to reduce the political
nature of such election and avoid that the judges be identified with any political
the composition of the Court foresaw a partial renewal, designed in order to ensure the maximum
level of independence of the Court from the political parties who had elected its members.
However, such mechanism proved to be so difficult to be applied in practice that it was necessary
to amend it rather soon; at the same time, the whole provision of the Constitution concerning the
composition of the Court was substantially amended, leading to its current language.
30
The high number of judges is coherent with the role and the nature of the Italian Constitutional
Court, which is called to ensure the balance in the constitutional system and exercise a role of
guardian of respect for the Constitution. It is in fact observed that bigger courts are in general
conceived to increase the ‘judiciousness’ of their decisions, thus making them fitter for such a
guaranty role (Peri 2012, p 7).
31
It has been noted that the judges elected by the highest Courts come from the same single
Courts electing them, but this is not considered to be an issue for the independence of the Court,
which is considered to be sufficiently ensured by the whole system for the election of the judges.
See Breton and Fraschini 2003, p 322.
32
The mixed composition of the Court recalls the traditional separation of powers described by
Montesquieu (Celotto 2006, p 34) but it is also considered to be a consequence of the mixed nature
of the body, which is neither representative nor bureaucratic, and which needs to be able to play a
role which is at the same time technical and political in nature (Conti 2006). As explained by
Zagrebelsky 1992, the meaning of the composition of the Court is linked to the balancing between
legal needs (consistent with the fundamentally judicial nature of the Italian constitutional review)
and the institutional-political needs (consistent with the nature of the role attributed to the Court). In
addition, it has also been noted that the three components of the Court represent a way of merging in
an independent body three different elements: the representatives of the people (the Parliament), the
national unity (the President of the Republic) and the primacy of the law (the judicature) (D’Orazio
1966, p 160). This mixed composition is aimed at ensuring that the Court has the technical
knowledge and the political sensibility needed to carry out its functions and, at the same time, the
strong legitimation, the credibility and the authority towards the subjects who are called to
implement its decisions (i.e. the judges, the Parliament and the rest of the country) (Conti 2006).
33
D’Orazio 1966, p 165.
34
Article 3 of Constitutional Law no. 2/1967, amending Article 3 of Law no. 87/1953, which
required the majority of the three fifth of the members of the Parliament for the first three ballots
and the majority of the three fifth of the members of the Parliament present at the voting.
orientation or affiliation. In other words, the fact that a wide majority is required to
elect the judges to the Court forces the political parties to find an agreement and a
compromise on a list of names, because each one of the (main) political groups
enjoys a sort of veto power on the names proposed by the other political groups.35
In relation to the judges appointed by the President of the Republic, it has been
noted that this component could be considered as a way of re-balancing the com-
position of the Court, depending on the selection made by the Parliament and by the
judiciary. In other words, the President would be called to adjust his selection in
order to reinforce the technical or the political component, depending on which one
is under-represented from time to time. In practice, it has been observed that the
President has in some cases consulted the Court itself, before taking his choice, thus
leading someone to conclude that the appointment of the five ‘presidential’ judges
represents a sort of co-optation of the new judges by the Court, further reinforcing
its independence.36
In conclusion, it should be noted that the importance of the appointment process
of the judges of the Court (in relation to its independence) is further underlined by
the rules on the composition of the Panel of Justice (Collegio dei Giudici), which is
appointed by the President of the Court for each case and decides by simple
majority on the draft decisions prepared by the rapporteur. The minimum number of
judges in the Panel is eleven, in order to avoid the situation in which a group of five
judges from the same extraction (i.e. having been appointed by the Parliament,
judiciary or the President) can reach the majority in a case, and this has been
considered a further sign of the fact that the composition of the Court is ‘expected to
35
For several years (between the end of World War Two and the beginning of the Nineties), the
consolidated practice in the election of the members of the Court by the Parliament was that the
main political parties would share the judges as follows: two judges to the Christian Democrats,
one to the Socialist Party, one to the Communist Party and one to the smaller parties (liberal and
republican parties).
Now that the Italian political scenario is more complicated and less stable this practice does not
always apply with the same degree of certainty. Bin 2009, p 4026, argues that only an ‘institutional
slovenliness’ can explain why there is not a practice requesting that the justices are heard and
examined by the Parliament in joint session before their appointment, as it happens for example in
the United States.
36
The doctrine has in fact clarified that the President is autonomous in his decision for the
appointment of the five presidential judges. Contrary to what happens for the ordinary decrees of
the President of the Republic (the DPRs), which are proposed by the Government or by the
Ministers and signed by the President, the decree for the appointment of the judges of the
Constitutional Court is proposed and signed by the President, although it is also counter-signed by
the President of the Council of Ministers. There are however opposite views on this aspect, of
those who claim that, in practice, because the President is elected by the two chambers by absolute
majority, he can be considered as an agent of the Parliament, also in the act of appointing the
judges of the Constitutional Court and that this theory is further supported by the fact that the
appointment of the five presidential justices is preceded by informal consultations with the political
parties and the Government (Fiorino et al. 2007, p 689).
76 A. Celotto
influence the sort of jurisprudence and the degree of independence of the Court’.37
As a result of the mechanism described above, the structural independence of the
Court cannot be considered to be a constant, in the sense that it changes for every
decision, depending on the composition of each Panel. This is argued to the extent
that even absences may affect the independence as they change the effective
composition of the Panel compared to that originally conceived by the President;
even a bigger impact is created by vacancies, as judges to be appointed by the
Parliament are usually not immediately replaced when they terminate their tenure.38
4.3.2 The Independence of the Individual Judges

of the Court: The Status of the Judges
The concept of the status of the judges of the Constitutional Court has been
thoroughly investigated by the Italian doctrine over the years. Several definitions of
such concept have been proposed by many different scholars and it is considered to
be connected with the idea of independence of the Court and of its members.
4.3.2.1 The Qualifications of the Candidates to Become Members

of the Court
The first element that defines the status of the judges of the Court is connected with
the fact that they need to belong to one of the following categories: (i) judges of the
highest ordinary or administrative courts; (ii) professors of law; and (iii) lawyers
37
38
Fiorino et al. 2007, p 690, where it is noted that the Court already operated with less than fifteen
judges in several occasions (sometimes also for long time) and this impacted its structural inde-
pendence. Several legislative proposals have been tabled, over the years, aiming at changing the
rules on the composition of the Court. In particular, in 2004 a proposal was discussed by the Italian
Parliament, which would have changed the rules for the selection of the judges, by reducing the
number of the judges appointed by the President of the Republic and by the judiciary (from five to
four each) and by increasing the number of judges appointed by the Parliament. In addition, the
parliamentary nominees would have been appointed by a Federal Senate, and not by the two
chambers of the Parliament in joint sitting. The reform failed to be adopted and the content of the
new rules was criticized by several commentators, in particular because it was considered as
increasing the weight of the political component of the Court (by reducing the number of judges
which were not appointed according to political criteria). Furthermore, it was argued that the
proposed changes would have introduced a sort of ‘federalist factor’ to the Constitutional Court,
thus changing the nature and the position of the body, especially in relation to the conflicts
between the State and the Regions (Peri 2012, p 18).
after twenty years of practice.39 This ‘mixed’ composition of the Court serves the
purpose of ensuring that different points of view are applied when the Court
examines and assesses the cases brought before it: the impartiality of the judge, the
scientific approach of the professor and the attention to the individual rights and
interests of the lawyer.40
The fact in itself that the members of the Court may apply such a diversified and
rich approach to the law could be in itself considered an element of independence.
Comparative studies on the professional requirements and the professional back-
ground required to be eligible for the appointment in Supreme and Constitutional
Courts show that the higher these requirements, the higher the degree of inde-
pendence of the court. In fact, strict and high requirements substantially reduce the
degree of discretion in the selection of the judges and therefore reduce the political
influence on such process. Therefore, the fact that the Parliament, the Government
and the President of the Republic select the members of the Court on the basis of
objective criteria (and not on the basis of ideological criteria) limits the risk of
politically driven nominations. In addition, it has been observed that a Court made
of jurists will be more inclined to act, think and proceed according to legal cate-
gories and considerations, rather than on the basis of political or in general external
factors, and this is expected to further increase the independence of the institution.41
Moreover, another element that makes this provision a demonstration of the
independence of the Court is the fact that it is for the Court itself (by an absolute
majority vote) to verify that the subjective and individual requirements are met by
each judge.42 Traditionally, the Court has exercised such function in full autonomy
and independence, also in cases where an intense debate arose in connection with
the election of specific judges: in those cases, the Court confirmed the election of
the judges, even if criticisms and doubts had been raised in relation to the proposed
candidates.43
39
Article 135, second paragraph, of the Constitution.
40
Conti 2006.
41
Peri 2012, p 8. This observation seems to be confirmed by the fact that the judges of the Italian
Constitutional Court typically come from the judiciary or academia, with no or very limited
involvement in politics. This is the current composition of the Court: five members are former
members of the judiciary, while nine members are former professors of law.
42
Article 2 of Constitutional Law no. 2/1967.
43
Debated cases relating to the Court’s responsibility to verify that its members meet the criteria
set out above are the confirmation of judge Bucciarelli Ducci in 1977, of judge Contri in 1996 and
of judge Napolitano in 2006. In particular, in the first case the Court argued that the fact that the
candidate had served as the President of the Chamber of Deputies would correspond to the exercise
of the functions of judge of the supreme courts, because it was a proof of the same level of
independence and impartiality.
78 A. Celotto
4.3.2.2 Rules on Incompatibility
Another prominent component of the independence of the Court is traditionally

identified with the rules relating to the incompatibility of the function as a judge of
the Court with other roles and responsibilities. In particular, justices are subject to
an absolute prohibition to hold any other post or function, to exercise any pro-
fessional, commercial and industrial activity, or to serve as directors of companies.
As a result, professors and ordinary or administrative judges are temporally sus-
pended from their functions when they become members of the Court (with the
right of re-assuming their original post at the end of their tenure) and the judges of
the Court cannot be members of the selection boards in competitions or being
candidate in any elections. For the same reason, and in order to ensure the full
independence of the Court from any political influence (or even suspect of influ-
ence), it is provided that the judges cannot take part in the activities of any asso-
ciation or political party.44
It has been noted that the ‘appearance of impartiality’ is a need that is valid both
for ordinary judges and for constitutional justices.45 This principle imposes on all
judges the duty to ensure the freedom from any bond and to the suspension of any
activity and expression relating to the status of member of a political party (e.g.
attending party meetings or congresses, signing ‘manifestos’ or political pro-
grammes, etc.), in order to protect both the independence in the judgement and the
prestige of the body, and therefore the trust of the citizens. As a result, the pro-
hibition for constitutional justices to carry out political activities is considered to
entail the prohibition to publicly reveal their political beliefs and raise doubts on
their impartiality in the exercise of their functions, in addition to the duty of acting
independently from the political parties.46
Again, as for the confirmation of the subjective satisfaction of the qualifications
of the judges candidate to become members, the Court decides also (but in this case
with the majority of the two thirds of the members taking part in the voting) on the
incompatibility of the judges for the reasons listed above, as well as on the veri-
fication of the judges’ compliance with their duty to take part in the activities of the
Court.47
44
Article 8 of Law no. 87/1953. A traditional discussion related to whether such prohibition also
included the prohibition for the constitutional justices to register with a political party, which is a
right of all citizens under Article 49 of the Constitution. The answer to this question depends on
the extension of the scope of the notion of ‘activities’ and on how much the notion of indepen-
dence of the Constitutional Court can in fact be linked to the notion of independence of the
judiciary as a whole.
45
Even the scholars who have opposed the idea that the position of the two categories of judges
should be assimilated recognized that such principle applies to the Constitutional judges as well as
to ordinary judges.
46
Bin 2009, p 4019.
47
Article 3 of Constitutional Law no. 1/1948; Article 7 of Constitutional Law no. 1/1953; Article
11 of Law no. 87/1953.
In addition, a further evidence of the autonomy of the Court is represented by the

rule under which the judges are responsible for ‘serious misconduct in the exercise
of their functions’48, which leaves to the Court itself to define both the functions of
its members and how these should be correctly carried out.49
4.3.2.3 Irremovability of the Judges
For the same purpose of ensuring the independence of the Court, the applicable
provisions also state the principle of irremovability of the judges, who cannot be
dismissed unless there is a specific decision of the Court ordering their dismissal.
Depending on the seriousness of the reason for such decision, the Court may decide
to either remove the judge concerned (for more serious violations or for super-
vening inability), to suspend him (for minor or for temporary reasons), or to declare
the loss of the title of judge of the Court (for not having taken part in the works of
the Court for more than six months).50
4.3.2.4 Immunity
The legal framework defining the independence of the Court as described above is
reinforced by another element of the status of the judges of the Court: the immunity
they enjoy. The judges of the Court cannot be held accountable for the votes cast
and for the opinions expressed in the exercise of their functions.51
The rules on the immunity of the judges of the Court has been for several years
at the centre of a lively debate, because of the uncertainty regarding the interpre-
tation of one of those rules,52 which provides that they enjoy the same immunity
and the same protection recognized to the members of the Parliament under Article
68, second paragraph, of the Constitution. This provision included a rule by which
the judges could only be prosecuted if the Court authorized their prosecution on a
case-by-case basis. The problem arose when (in 199353) the corresponding provi-
sion relating to the members of the Parliament was amended, and the new rules did
not contain any power for the Parliament to authorize or not authorize the prose-
48
Article 3, para 1, of Constitutional Law no. 1/1948.
49
Conti 2006.
50
Ibid. This has never happened in practice, while there have been cases in which judges have
resigned before the end of their tenure, not always for health reasons.
51
Article 5 of Constitutional Law no. 1/1953.
52
Article 3, second paragraph, of Constitutional Law no. 1/1948.
53
Constitutional Law no. 3/1993.
80 A. Celotto
cution of its members.54 In particular, the doctrine started discussing whether the
rule concerning the judges of the Court should have been considered automatically
changed (due to the change of the provision to which it was referring) or whether
the authorization should have been considered to be still necessary for the judges of
the Court, because this was the original intention of the legislator.
Some scholars note that the authorization should be considered as still necessary
for the judges of the Court, irrespective of the changes to the rules applicable to the
members of the Parliament. In particular, this would be due to the fact that the very
rationale of the rule on the authorization has traditionally been different for the
judges (i.e. protecting their independence and impartiality) and for the members of
the Parliament (i.e. protecting the autonomy of the institution).55
4.3.2.5 Title of ‘Judge Emeritus’
Another element of the status of the constitutional judges which qualifies their
independence relates to their title following the end of the mandate. In fact, once
they cease to be members of the Court, all the former judges become ‘judge
emeritus’ without the need of any act by the Court or by any other body (provided
that they have served as judges of the Court for at least four years).56 It has been
observed that the automatic attribution of this title (as well as the pension rights of
the judges) serves the purpose of further reinforcing the independence of the body
as a whole, as well as ensuring that all the judges are at the same level.57
54
Article 68, para 2, of the Constitution now states: ‘In default of the authorisation of his House,
no Member of Parliament may be submitted to personal or home search, nor may he be arrested or
otherwise deprived of his personal freedom, nor held in detention, except when a final court
sentence is enforced, or when the Member is apprehended in the act of committing an offence for
which arrest flagrante delicto is mandatory’.
55
Sandulli 1966. In addition, it has also been noted that the instrument of the required autho-
rization to prosecute has a much more relevant role when it relates to the protection of the integrity
of the Court (which is composed of only fifteen judges) rather than when it relates to the protection
of the Parliament (composed of almost one thousand members). In the first case, the risk is
considerably higher that a series of prosecutions could substantially paralyze the Court. For the
reasons above, several scholars advocate for the maintenance of the required authorization to
prosecute for the judges of the Court (Conti 2006). As regards in particular the President of the
Constitutional Court, a law of 2003 had provided for the suspension of any criminal prosecution
against him or her, as well as of the prosecution against the individuals holding the highest offices
of the State (the President of the Republic, the President of the Council of Ministers, the Presidents
of the Chamber of Deputies and the President of the Senate). Such law, however, has been
declared in breach of the Constitution by the very Constitutional Court, which among other things
considered it to be discriminatory, because it unduly differentiated between the Presidents and the
members of those institutions (Decision of the Constitutional Court n. 24/2004).
56
Article 20 of the Statute of the Constitutional Court.
57
Conti 2006.
4.3.2.6 Salary
In order to ensure the full independence of the judges of the Court, together with the
‘prestige’ of the institution itself, it has been considered appropriate to ensure that
the members receive an appropriate salary. Their economic treatment is calculated
on the basis of the salary of the First President of the Supreme Court of Cassation
and is not subject to taxation; in addition, the President of the Court is recognized a
further allowance for his role, corresponding to one fifth of the salary. This
mechanism has been considered as an adequate means to guarantee the indepen-
dence of the Court, not only because it can ensure that the judges shall receive an
adequate salary (and therefore be less inclined to be influenced) but also because the
legislator will not be able to intervene on the economic treatment of the judges of
the Court without also intervening on the economic treatment of the judges of the
highest courts (and in particular of the Supreme Court of Cassation).58
4.3.3 Other Procedural and Organization Rules Aimed

at Ensuring the Independence of the Court
4.3.3.1 Lack of Dissenting and Concurring Opinions and Lack

of Appeal Against the Decisions of the Court
The decisions of the Constitutional Court are ‘unsigned and without dissents,
making partisanship difficult to measure’.59 As mentioned, all decisions of the
Court are adopted by a college of judges (the Panel), made of at least eleven of the
fifteen judges. The college tends to reach unanimity on its decisions but, should this
prove to be impossible in specific cases, decisions may be adopted by simple
majority (the weight of the vote expressed by the President is doubled, in case there
is a tie).60
The fact that the judgments of the Court are only attributable to the college as a
whole removes the possibility of verifying the attitudes and ‘political loyalty’ of each
judge, thus increasing the independence and the ‘freedom’ of the Court. On the other
hand, however, some commentators have argued that the system adopted in Italy,
which does not recognize the possibility for each judge to publicly express his
individual opinions, may contribute to make the activity of the Court more
58
Ibid.
59
Volcansek 2006, where the author claims the absolute independence of the judges of the
Constitutional Court, despite the so-called ‘lottizzazione’, i.e. the ‘division whereby virtually all
sectors of Italian civil life are allocated on the basis of political party affiliation’.
60
Collegiate judgements are considered to be a common feature of continental European courts
(except for Germany), as opposed to common law courts (where dissenting and concurring
opinions are allowed) and serve the purpose of favouring judicial independence (Peri 2012, p 19).
82 A. Celotto
‘ambiguous’ and more difficult to classify from a political point of view, thus also
making it more difficult for the Court to establish a direct relationship with the
people.61
In addition, pursuant to Article 137, para 3, of the Constitution ‘[n]o appeals are
allowed against the decision of the Constitutional Court’, thus further reducing the
external influence which could be exercised on constitutional judges while voting
on specific judgements.
4.3.3.2 The Special Rules on the Abstention and Objection
The rules on the abstention and the objection relating to ordinary judges do not
apply to the justices of the Constitutional Court.62 The rationale of such exclusion is
that the composition of the college follows the rules provided in the Constitution,
aimed at ensuring its effective operations and its independence, and therefore
cannot be modified by the single judges or by the parties in the proceeding. In
addition, it was noted that the abstention and the objection would lack any basis if
applied to the Court, because it reviews acts issued by public bodies.63
In fact the very Constitutional Court recognized in the past that the abstention
and the objection serve the purpose of ensuring the impartiality of the judge in
relation to the specific dispute64 and for this reason these instruments are regulated
according to rules, which are specific to the type of proceedings (and for example
differ between the criminal and the civil procedures).65
As a result, the rule preventing the application of the objection in proceedings
before the Court could be interpreted as a limitation of the right of defence of the
61
Peri 2012, p 19. However, it shall be observed that, in an increasing number of decisions, the
judge rapporteur is replaced by another judge of the Court for the drafting of the final decision: this
is considered as a sign of the dissent of the rapporteur towards the decision of the college.
62
As stated in Article 29, Norme integrative giudizi costituzionali (OJ n. 261 of 7 November
2008), with the exception of the proceedings for charges brought against the President of the
Republic for high treason and attempt to overthrow the Constitution (Article 25 of Law no. 20/
1962).
63
Bin 2009, p 4017, as well as Pertici 2004, 3105 and ff, where it is argued that the legislator
should introduce a specific set of rules applicable to the judges of the Constitutional Court and
aimed at preserving their impartiality.
64
See for example decision of the Constitutional Court n. 103 of 1964.
65
As noted by Bin 2009, p 4023, this might also explains why the abstention and the objection
only apply, among the different proceedings that can be submitted to the Constitutional Court, to
the criminal charges brought against the President of the Republic, which may be considered as the
only case in which it is possible that real reasons for abstention or objection may arise, due to the
concrete and specific nature of the dispute (very different from, for example, the review of the
admissibility of a referendum, whose object is very abstract).
parties, should a judge put himself in a situation which would be in a different

context be solved through an objection against him.66
However, it has been noted that the exclusion of the application of the objection
in the proceedings before the Court should rather be interpreted as a ‘diplomatic’
way of imposing certain limits on the conduct of the constitutional justices in the
form of a self-restraint. By stating that the parties are not allowed to object against
the participation of any of the justices in the proceedings, the provision is indirectly
pointing the justices’ attention to the obligations they have assumed when they have
accepted to become members of the Constitutional Court, i.e. to avoid any cir-
cumstance in which their ‘appearance of impartiality’ might be questioned and to
abstain should such situation occur, in order to avoid any embarrassment for the
Court itself.67
4.3.3.3 Duration of the Term of Office and the Rule Against

the Re-election of the Judges
Generally, the tenure in office of the judges of the Supreme or Constitutional Courts
is considered one of the features able to ensure their independence. In particular,
common ways to ensure such independence include long terms in office and the
exclusion of the possibility to reappoint a judge following his or her first term.
Alternatively, it can be provided that the judges maintain their role for life.68
Both approaches are considered to serve the purpose of increasing the inde-
pendence of the courts for two different reasons. First of all, because they sub-
stantially reduce the risk that the judges are influenced in their decision making by
the interest in being reappointed (thus for example attempting to favour the powers
which will decide on their reappointment). Secondly, providing for a long term of
office avoids the risk that there is political homogeneity between the courts and the
representative bodies.69
The duration of the term of office of the judges of the Italian Constitutional Court
was initially set at twelve years and later reduced to nine years,70 one of longest
terms of office among Italian public offices. Most importantly, it has been provided
that the judges of the Constitutional Court could not be re-elected. This is con-
sidered to be another important element of the constitutional architecture aimed at
ensuring the independence of the Court: as mentioned above, if a judge cannot be
re-elected, it is possible to assume that he or she will be less inclined to be
66
For example, this would be the case if a judge issues a statement on the press where he takes
position in relation to a delicate question of constitutionality currently pending before the Court.
67
Bin 2009, p 4025.
68
As it is for example for the judges of the Supreme Court in the U.S.; see Tega 2018, p 439.
69
Peri 2012, p 11.
70
Constitutional Law no. 2/1967, which amended Article 135, para 3, of the Constitution.
84 A. Celotto
influenced by external factors in his decisions, including the desire to increase the
chances of being re-elected.
4.3.3.4 Election of the President of the Court
The Constitution explicitly provides that it is for the Court itself to elect, by secret
ballot, its President, who remains in office for three years and may be re-elected,
‘respecting in all cases the expiry term for constitutional judges’.71 This has tra-
ditionally been considered to be another instrument to ensure the independence of
the Court, which enjoys the freedom to decide who - among its members - will
preside over its works.
The rules provide that, should none of the candidates, receive the majority of the
votes at the first ballot, a second ballot takes place and, if necessary, a runoff
election between the two judges with the most votes occurs.
The rules relating to the election of the President of the Court should not be
underestimated, considering the important role that he plays in shaping the decisions of
the Court: he has the power to select the rapporteur for each case and in turn the
rapporteurs produce their reports, which are one of the very few documents of the
proceedings before the Court which are made known to the public. In addition, the
President decides the Court calendar and several important procedural aspects.72
However, the Court has traditionally followed the practice of electing President the
judge with most seniority, with the aim of reinforcing the collegial nature of the
institution and of avoiding any competition between the judges for the role of President.
4.3.4 The Accountability of the Court
The activities of the Constitutional Court are inspired by the principle of trans-
parency, both from the point of view of its organization and from the point of view
of its decisional powers. The reasons for this are, first of all, that the Court - like any
other institution of a democratic legal system - is accountable towards the citizens
for its actions, both when it takes its decisions (because these are taken in the name
of the people73) and when it manages the resources, which are needed for its
functioning (because they are constituted by public money, and therefore taxation).
71
72
However, it shall also be noted that the President of the Court does not enjoy the same
considerable power, for example, of the Chief justices in the United States or Canada (Breton and
Fraschini 2003, p 323).
73
As mentioned above, Article 1, para 2 of the Constitution, states that ‘Sovereignty belongs to
the people and is exercised by the people in the forms and within the limits of the Constitution’,
thus providing both legitimacy and accountability to the Court.
It has been noted that the principle of accountability is somehow weakened, in relation
to the Italian Constitutional Court, due to the lack of dissenting or concurring opinions
(see above). The lack of such instruments - meant to disclose the whole rationale of a
certain decision to the public - would prevent the dialogue internal to the Court from
being known at the exterior. As a result, the judges would risk being perceived as an
‘oracle’ or as a ‘judge-king’, who know the truth and ‘dispense’ it to the people.74
4.4 The Independence and the Accountability

of the Italian Constitutional Court in Light of Bipolar
Constitutionalism
4.4.1 The Independence of the Italian Constitutional Court

in Practice
Besides the analysis provided above of the constitutional rules governing the
independence of the Court, it is now useful to see if the Court can in practice
actually be considered independent.
Some commentators have stressed that an assessment of the degree of inde-
pendence of a court can only be based on the empirical observation.75 In consti-
tutional law terms, it could be said that, having observed and analysed the
Constitutional provisions regulating the independence of the Court (i.e. the
so-called ‘formal Constitution’), we should now examine how these rules play
within the real context (i.e. the so-called ‘material Constitution’).
Studies on the independence of the Court in practice have in particular focused
on its decisions of the Court in cases relating to constitutional illegitimacy. This
choice is traditionally linked with the fact that those decisions are in fact the main
means for the Court to oppose the decisions of the other public powers and to
enforce the constitutional provisions against the will of the other institutions and
therefore be independent.76
74
De Vergottini and Frosini 2010, p 7.
75
Breton and Fraschini 2003, p 319. It is therefore not surprising that these kind of studies have
been carried out in the past by economists.
76
Fiorino et al. 2007, p 694, where the authors highlight that these decisions modify the legis-
lation, and therefore have a considerable impact. The authors reject the theory that the high rate of
judicial invalidation is a consequence of the political miscalculation of the legislator or of strategic
choices of the disputants. The first hypothesis is excluded on the basis that Italian politicians would
enact a statute that the voters want in that specific moment, although they know the Court will
strike it down; the second one because it is very difficult for the disputants to foresee the final
decision of the Court, due to the fact that it is for the local tribunal to decide to submit the case of
potential illegitimacy to the Court, and due to the fact that much depends on the rapporteur and the
Panel that are appointed.
86 A. Celotto
It has been observed that the independence of the Italian Constitutional Court is
in practice ensured by the fact that the rules on its composition and on the collegiate
nature of its decisions make extremely difficult to carry out the so-called
log-rolling.77 As a consequence, it seems that the application of the rules govern-
ing the composition and the operations of the Court produce in practice the result
that ‘even if every single judge chose not to be independent, the Court itself would
still be independent’.78
It has been observed that two elements relating to the judges taking part in the
decision-making for the single cases seem in particular to be positively correlated
with the independence of the Court, i.e. the number of judges elected by the
professional judiciary and the age of the judges.79
In Italy, as opposed to what happens in several other jurisdictions (where the
tenure of constitutional judges is longer than the mandate of political institutions),
the political system has traditionally been more stable80 than the - quite short -
duration of the tenure of the judges of the Constitutional Court (nine years). Since
the end of World War II, the Italian political scenario was ruled for decades by the
same coalition of parties, with a leading role attributed to the Christian Democrats
(the so-called ‘blocked political system’). Following the end of the so-called First
Republic and the beginning of the Second Republic in the early 1990s, new parties
emerged together with a sort of two coalition system, where the left and the right
coalition alternated in taking power.81
The relative stability of the political system - especially compared with the rather
short tenure of the Constitutional judges - created a situation in which the legislative
and executive branches have a quite small possibility to influence the career of the
judges, thus creating a situation in which ‘it does not pay judges to be
accommodating’.82
The observation of the career paths of the judges of the Constitutional Court
following their tenure seems to confirm this statement. In particular, it has been
recorded that the percentage of post-tenure appointments for Presidents and
77
This is defined as a system in which judge A supports judge B in a decision aimed at (directly
or indirectly) favouring judge B’s interests in exchange for judge B’s support in a decision which
favours judge A’s interests (Breton and Fraschini 2003, p 323). In particular, the functioning of this
system within the Italian Constitutional Court is made extremely difficult by the fact that only a
small number of the judges can be involved, by the special role of the rapporteurs in the
decision-making process, by the importance and the weight of precedent decisions on similar
cases, and by the rules on the adoption of the decisions (simple majority and lack of dissenting
opinions) which make the decisions anonymous.
78
79
80
To be noted, anyway, that while political alliances have traditionally been stable, governments
changed very often.
81
In more recent years, we witnessed a switch towards a sort of three or four party system;
however, it is probably too early to assess its impact on the whole checks and balances structure
and on the independence of the Constitutional Court.
82
Vice-Presidents of the Court rather than for ordinary judges is much higher, that
most of those receiving such appointments were university professors, and that
younger judges have more chances of being appointed to other posts than older
judges.
As a result, these data do not seem to lead to the conclusion that the conduct of
the judges during their tenure could be considered as a way to favour certain
interests and being rewarded for this favour. To the contrary, they seem to show a
rather natural situation, which can be quite easily explained with the institutional
role exercised during the mandate, with the age at the end of the tenure and with the
professional qualifications held by the former judges. In particular, the high
appointment rate for university professors could be explained by the fact that they
possess a legal training and a preparation that make them natural candidate for
further appointments.83
In conclusion, through the analysis of the decisional practice of the Court, it has
been observed that the independence of the Court appears to be increased by certain
elements of structural independence (in particular, the presence in the Panel
deciding a specific cases of more justices elected by the judiciary rather than from
the other bodies) and by the age of the judges. This has led to the conclusion that
independence should not be considered as a constant feature, but as a characteristic
depending on the role played from time to time by those variables.84
4.4.2 The Italian Constitutional Court in Light of Bipolar

Constitutionalism
We aim now at understanding how the independence of the Italian Constitutional

Court qualifies the Italian system as constitutionally bipolar and whether the current
situation in Italy is healthy from the perspective of sound bipolar constitutionalism.
In other words, it is now important to assess whether and how the independence of
the Court allows it to be the ‘other pole’ to which legislation is subject (i.e. to be the
judicial pole, in addition to the legislative one).85
In fact, as it has been noted, the main characteristic distinguishing the courts
from the political institutions is judicial independence, and this means ‘indepen-
dence from government and from political leadership, independence from political
83
84
85
As it occurs in the context of the bipolar constitutionalism, as explained in Van der Schyff
2010, p 5.
88 A. Celotto
parties and the latest political fashion, independence from popular feelings’.86 As a
result, ‘judicial independence is at the heart of the bipolar model’.87
4.4.2.1 The Court of Rights and the Court of Powers
First of all, we should analyse the position of the Court within the Italian form of
government. It shall be noted, in fact, that the very creation of the Court modified
that form of government, because it had the effect of making the law lose its
position of ‘absolute supremacy’ that it used to enjoy.88 In fact, before the estab-
lishment of the Court, a traditional principle would entail the prohibition to subject
the law to review and the prohibition - for any subject other than the Parliament - to
amend it. The Constitution introduced the principle that the law can be reviewed
and annulled by an institution which is not directly representative of the people.
The role of the Court within the legal order and its impact on the form of
government has changed over the years since its establishment. This evolution is
traditionally classified in different phases which correspond to different periods of
the history of the Italian Republic.
In the first fifteen years of its activity (between the 1950s and the end of the
Sixties), the Court mainly played the role of promoting reforms and applying the
Constitution. In this phase, the Court was mainly called to ‘clean’ the Italian legal
order which had recently come out of the Fascist period. In order to do so, the Court
was in particular called to not only reinforce and root the values of the new
Constitution but also more in general to support the process of modernization of the
whole legal system. In a way, the Court replaced the Parliament which was still
reluctant to substantially intervene and change the existing system and assumed
what has been defined as a ‘didactic’ function, in the sense that it ‘explained’ the
values of the Constitution to the public (including the notions of personal liberty,
freedom of expression, freedom of assembly and gender equality), thus acquiring its
authority as guardian of the Constitution.89
In the Seventies and at the beginning of the Eighties, the Court served as an
instrument of mediation in the social and political conflicts which characterized
those years. During this phase, the Court promoted the recognition and the con-
solidation of new rights and focused its review and attention on the new legislation.
It has been observed that in this phase the Court became more politicized and more
involved in ensuring the balancing of the different interests and values concerned by
the questions it was called to decide on, making sure that the choices taken by the
86
Koopmans 2003, p 250.
87
Ibid.
88
Mortati 1949, 460.
89
Groppi 2008, pp 110–111.
Parliament were able to ensure the best balancing possible among the different
values.90 In these years, the Court did not hesitate to take important decisions
concerning very sensitive issues, such as divorce and abortion, as well as family
rights and the relationship between the State and the Church.91
Since the end of the Eighties, the Court entered the so-called phase of the
‘operational efficiency’ (thus managing to eliminate the backlog, which was due to
the mentioned increase in the intervention of the Court on several different issues),
acquiring an important role within the process for the legislative and constitutional
reforms, facing a more bipolar political system with a high level of conflict and
political tension.
Following the elimination of the backlog, the Court entered into a new phase, in
which the rapidity of the operational efficiency of the Court brought it to more and
more often review laws which had been recently adopted (in some cases, when the
Parliament that has adopted those laws was still in power). This inevitably deter-
mined that the Court got more and more involved in the political debate. The
situation not only made more difficult to ensure that its decisions maintain full
authority and the aura of full impartiality, but also forced the Court to take into
account the economic consequences of its decisions, which had to be balanced with
the need to protect and implement the principles embodied in the Constitution.92
The current role of the Court in the form of government is substantially influ-
enced by the nature of the functions attributed to it according to the Constitution.
While for many years, it has been almost exclusively the judge of the scrutiny of the
legislation through an ‘incidental’ review, it progressively became the judge of
conflicts among the powers of the State and between the State and the Regions.93
As a result, the Court has become more and more a Court of rights (when exercising
its control over the laws) and a Court of powers (when deciding on the disputes
among the institutions). In other words it involuntarily assumed a role of an arbiter
of political (as well as constitutional) conflicts.94
4.4.2.2 The Relationship Between the Constitutional Court

and the Legislator
The relationship between the Court and the Parliament has been extensively
debated, because the Court has exercised for many years what has been defined as a
90
Celotto 2009, p 21.
91
Franciscis and Zannini 1992.
92
Groppi 2008, pp 113–114.
93
In recent years, however, the Court’s case-law on conflicts became more and more consolidated
and decisions rarely include significant new statements of principle.
94
Celotto 2009, pp 21–22.
90 A. Celotto
‘para-legislative’ function.95 In particular, what was considered particularly prob-

lematic, at the beginning, was the fact that the Court started adopting - and this habit
became more and more consolidated with time - the so-called manipulative deci-
sions, i.e. judgements amending the literal content of a law or regulation. The
additive judgements in particular are decisions of the Court in which it declares a
provision unconstitutional not for what it provides but for what it fails to provide
and adds a norm to the legal order. As a result, the Constitutional Court stopped
being a ‘negative legislator’ in accordance with the Kelsenian model of constitu-
tional review and started exercising the powers of the legislator. This approach of
the Court attracted heavy criticism that was based, in particular, on the limited
democratic legitimation of the Court (legitimation which on the contrary is attrib-
uted to the Parliament).96
Not only has the Court increased such activity but this has been progressively
accepted at all levels.97 The Court in particular was able to successfully reduce the
intensity of the criticisms and of the discussions by creating decisions known as
‘additive di principio’.98 In other words, it created a new form of decisions in which
the need to issue a decision of unconstitutionality is balanced with the need to
respect the discretional powers of the Parliament in identifying one of the possible
solutions, in order to make the norm compatible with the Constitution. In those
decisions, the Court would still declare the unconstitutionality of a law ‘because it
does not provide that…’ (as in the ‘ordinary’ additive judgements) but instead of
inserting the new provision it would only state the principle, that the Parliament will
have to follow in inserting the new provision.99
95
As noted by Groppi 2008, pp 106, this was made technically possible through the theoretical
distinction between ‘disposizione’ (the legal text) and ‘norma’ (the norm) (Crisafulli 1956,
pp 929–939). Such distinction allows to ‘derive multiple norms from a single text or a single norm
from multiple texts’ and, therefore, allows the Court to ‘operate with more surgical precision’ and
allows the system to evolve.
96
Groppi 2008, pp 108; Celotto 2009, p 23; Celotto 2004, pp 118–120. In order to avoid such
criticism, the Court has traditionally followed the so-called theory of the ‘rime obbligate’ (pre-
scribed verses), by which the Court may add to the statutes only the rules required by the
Constitution.
97
It was noted that the fact that the Constitutional Court may interfere in the activity of the
legislator is obvious and represents a necessary consequence of the constitutional norms providing
for forms of control on the legislation. The very fact that it is accepted - and explicitly allowed -
that a judicial review is exercised on the constitutionality of the statutes means that the
Constitution allows for a judgement to compete or to prevail over the law (De Vergottini and
Frosini 2010, p 3).
98
However, the use of the additive di principio has also been subjected to criticism because they
attribute to the judge the power to decide which rule shall be applied in the specific case, until the
intervention of the Parliament.
99
Clearly, this type of decisions created problems in relation to their effectiveness, because, while
in some instances ordinary judges would consider them to be directly applicable to the specific
case, in most cases ordinary judges would rather prefer to wait for the Parliament to intervene and
adopt the ‘missing’ provision.
Another tool used by the Court to mitigate the intrusiveness of its intervention
into the remit of the legislator is represented by the so-called ‘admonitory deci-
sions’, i.e. decisions by which the Court rejects the challenge to the law but warns
the Parliament that – should it not intervene and amend the contested law – it will
uphold a future challenge and declare the law unconstitutional.100
The decisional practice outlined above created a sort of ‘dialogue’ between the
Court and the Parliament. However, such collaboration with the legislator has not
always been fully implemented by the Court, especially in two sector, which can be
considered as a counter-trend. The first one is represented by the additive judgments
as described above, which use has been sometimes even worrying: in some cases,
the Court has forced its will upon the Parliament, which is in theory the only
institution with the legitimation of creating new rules.
The second trend is constituted by the more and more active scrutiny of
reasonableness. Year after year, such form of review has been developed into a
sort of scrutiny on the unfairness of the law. In other words, it has been observed,
the Court feels that the law ‘is not right’ and, although it cannot identify any
direct or indirect, explicit or implicit violation of the Constitution, the Court still
finds that the Constitution has been breached.101 It has been argued that, through
this reasoning, the Court created a sort of passe partout which can be used in
several different situations and cases and which could lead the Court to decide on
the merits (and not on the legality) of the law and on political issues.102 As a
result, some commentators have concluded that the Court ended up controlling
that the laws are ‘just’, as it was feared in the past and without having the
legitimation to do so.103
4.5 Conclusive Remarks
In conclusion, looking at the different elements and the main features of the
Constitutional Court it appears that the choices adopted by the Italian constitution
seem to be strongly inclined towards a strong independence of the Court, with a
100
Groppi 2008, p 109, where the author also notes that the Court has over the years also
attempted to mitigate the effects of its decisions declaring laws as unconstitutional, taking into
account the needs connected with the social welfare state and the limits to public economic
resources.
101
Ruggeri and Spadaro 2004.
102
Paladin 1998.
103
Luther 1997. On the other hand, others have argued that the Court had to adopt such an
approach to ‘fix’ the defects of the Italian legislation.
92 A. Celotto
rather low degree of accountability.104 Moreover, it can be concluded that the rules
aimed at ensuring the independence of the Court have effectively served their
purpose in practice. The doctrine has traditionally considered the Italian
Constitutional Court to be characterized by a high degree of independence105 or
stated that it is ‘at least as independent as any other corresponding constitutional
court of democratic countries’.106 In particular, it has been observed that the
independence of the Court and its independent decision-making have helped it
‘counteract the greater cohesion of the other government branches’, thus ‘im-
proving the effectiveness of the system of checks and balances’.107
In fact, this degree of independence, together with the peculiar mixed nature of
the Court (i.e. at the same time legal and political108) allowed the Court to effec-
tively play the role for which it was conceived by the Constituent Assembly, i.e.
protecting the Constitution from possible manipulations by the dominant groups. If
the values and the principles of the Constitution are still present and effective in the
Italian legal system, this is also due to the activity and constant intervention of the
Constitutional Court.109
Interestingly, the Court traditionally took very strict positions vis-a-vis the
Parliament and the ordinary judges, while it opted for a ‘softer’ approach toward the
abuses of the Government concerning the rules concerning sources of law (e.g.
104
See in particular Peri 2012, pp 22–23, where the author has carried out a comparison among
the Constitutional Courts of a number of jurisdictions, and has concluded that Italy opted for the
highest level of independence and the lowest level of accountability.
105
Peri 2012, p 17.
106
107
108
However, when compared to constitutional courts of other jurisdictions, the Italian
Constitutional Court is often considered one of those with the smallest degree of politicization, at
least as regards the norms provided for the appointment of the judges. In particular, this is derived
from the following features: (i) two thirds of the judges are appointed by a college and not by a
single person; (ii) a quite considerable number of judges are appointed by the judiciary and not by
political powers; and (iii) all the powers of the State are involved in the appointment procedure
(Peri 2012, p 16).
109
However, it has also been noted that because of the delicate role it has been attributed by the
Constitution, the Court has never been fully accepted and its authority recognized by politicians. It
is in particular claimed that recently the decisions of the Court are often not followed by the
legislator or are strongly criticized by policitians and public opinion: this is seen as a serious
problem, considering that the Court does not have powers to impose its decisions, and its force lies
with its prestige and the consensus it enjoys (Bin 2009, p 4028). It has been observed that the
approach of the Court to such situation has been very cautious, in order to ‘preserve its legitimacy
and to defend itself against an increasingly aggressive political power’, not trying to make a ‘direct
link with public opinion’ but rather deciding to ‘“disappear” from the headlines, devolving a large
part of its job to other actors’ (Groppi 2008, p 116). According to the author, this is particularly
achieved by decentralizing its work (i.e. involving ordinary judges in constitutional review) and
increasingly looking at supranational jurisdictions.
legislative decrees whose content is not aligned with the delegating laws and
decree-laws adopted in breach of constitutional rules on their adoption).110 The
reason for this reluctance is probably that the Court never wanted to intervene in the
core of the relationship between the Parliament and the Government, and wanted to
leave to the former the role of controlling the latter.
In any case, the Court demonstrated to be ductile over time and to adapt its role
to the different phases of the history of the Italian Republic, always maintaining its
independence, as well as its accountability, and therefore its prestige and authority.
It was able over the years to ‘clean’ the legal order from laws and regulations of the
Fascist time, to mediate in social and political conflicts, to promote progress in the
legal system and to become more and more efficient in its activities, while at the
same time affirming its legitimation within the legal order.
In other words, the initial role of the Court was that of the ‘island of reason-
ableness in the chaos of the opinions’,111 i.e. the Kelsenian constitutional judge and
rational guardian of the law not influenced by political considerations. With time,
the Court more and more became a mediator of social conflicts and a political
interlocutor. However, it never turned into a body of the political system but was
rather able to ‘measure politics with the meter of the law’.112 It is so possible to
fully understand the real role of the Court in the Italian legal system, also in the
light of the notion of bipolar constitutionalism: it served as an intermediary between
law and politics, ‘jurisdictionalising’ politics into the legal procedures and, at the
same time, ‘politicizing’ its judicial role through the political nature of the matters
examined and the political effects of its decisions. As a result, it can be said that the
Court turned into the ‘island of the most reasonable opinion’,113 based on the idea
that constitutional cases shall be assessed with a discretion which is similar to that
of political decisions.
References
Bin R (2009) Sull’imparzialità dei giudici costituzionali, Giurisprudenza costituzionale. 4015–

4028
Breton A, Fraschini A (2003) The Independence of the Constitutional Court. Constitutional
Political Economy 14:319–333
Celotto A (2004) La Corte costituzionale. Il Mulino, Bologna
110
It can be observed, however, that a similarly soft approach was adopted in cases relating to the
breach of procedural rules on the ordinary legislative procedure.
111
Modugno 1970, p XI.
112
Cheli 1996, 13.
113
Elia 1984, p 163.
94 A. Celotto
Celotto A (2006) Rappresentanza e Corte costituzionale. In: Chieffi L (ed) Rappresentanza

politica. Gruppi di pressione. Élites al potere. Atti del convegno (Caserta, 6–7 maggio 2005).
Giappichelli, Turin
Celotto A (2009) Questioni di giustizia costituzionale. Editoriale Scientifica, Naples
Cheli E (1996) Il giudice delle leggi. Il Mulino, Bologna
Conti G L (2006) Articolo 135. In: Bifulco R, Celotto A, Olivetti M, Commentario alla
Costituzione. UTET Giuridica, Turin
Crisafulli V (1956) Questioni in tema di interpretazione della Corte Costituzionale nei confronti
con l’interpretazione giudiziaria, Giurisprudenza costituzionale, 929
De Franciscis M E, Zannini R (1992) Judicial Policy-Making in Italy: The Constitutional Court.
West European Politics 15:68–79
De Vergottini G, Frosini T E (2010) Sul mito della Corte costituzionale ‘in-politica’. Percorsi
costituzionali, 2/3
D’Orazio G (1966) Aspetti dello status di giudice costituzionale. Giuffrè, Milan
Elia L (1984) Relazione di sintesi sul tema Corte costituzionale e principio di eguaglianza. In:
Occhiocupo N (ed) La Corte costituzionale tra norma giuridica e realtà sociale. CEDAM,
Padua
Fiorino N, Padovano F, Sgarra G (2007) The Determinants of Judiciary Independence: Evidence
from the Italian Constitutional Court (1956–2002). Journal of Institutional and Theoretical
Economics 163:683–705
Koopmans T (2003) Courts and Political Institutions. A Comparative View. Cambridge University
Press, Cambridge
Groppi T (2008) The Italian Constitutional Court: Towards a ‘Multilevel System’ of Constitutional
Review? Journal of Comparative Law 3:100–117
Luther J (1997) Ragionevolezza (delle leggi). In: Digesto delle discipline pubblicistiche. UTET,
Turin, 12:341–362
Modugno F (1970) L’invalidità della legge. Giuffrè, Milan
Mortati C (1949) Sull’eccesso di potere legislativo. Giurisprudenza Italiana, 1:457–461
Paladin L (1998) Diritto costituzionale. CEDAM, Padua
Peri A (2012) Judicial Independence vs. Judicial Accountability: Judicial Selection Models for
Constitutional Courts. A Comparative Analysis. Comparative Law Review 3:1–24
Pertici A (2004) Astensione e ricusazione dei giudici costituzionali: ragioni e limiti della loro
esclusione ed ipotesi di una loro introduzione. Giurisprudenza costituzionale, 3105
Ruggeri A, Spadaro A (2004) Lineamenti di giustizia costituzionale. Giappichelli, Turin
Russell P H (2001) Toward a General Theory of Judicial Independence. In: Russell P H, O’Brien
D M (eds) Judicial Independence in the Age of Democracy. University Press of Virginia,
Charlottesville/London
Sandulli A M (1966) L’indipendenza della Corte costituzionale. In: Maranini G (ed) La giustizia
costituzionale. Vallecchi, Florence
Tega D (2018) Articolo 135. In: Clementi F, Cuocolo L, Rosa F, Vigevani G E (eds) La
Costituzione italiana: commento articolo per articolo. Il Mulino, Bologna, pp 438–443
Van der Schyff G (2010) Judicial Review of Legislation: A Comparative Study of the United
Kingdom, the Netherlands and South Africa. Springer, New York
Volcansek M (2006) Judicial Selection in Italy: A Civil Service Model with Partisan Results. In:
Mallerson K, Russell P H (eds) Appointing Judges in an Age of Judicial Power. University of
Toronto Press, Toronto/Buffalo/London
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Zagrebelsky G, Marcenò V (2018) Giustizia costituzionale. Il Mulino, Bologna
Alfonso Celotto is Professor of Constitutional Law at ‘Roma Tre’ University and lawyer admitted
to plead before the Court of Cassation. He was visiting professor at the universities of Buenos
Aires and Warsaw and at the McGill University of Montreal. He authored more than 400 books,
articles, comments and encyclopaedia entries, as well as novels. He coordinates the Editorial Board
of the journal Giurisprudenza Costituzionale and of www.giustamm.it, and is a member of the
Steering Committee of the journal Giurisprudenza Italiana. He is co-editor of the ‘Dictionary of
public law’ and coordinates the Commentario alla Costituzione and the Digesto delle discipline
pubblicistiche.
Chapter 5
Bipolar Constitutionalism in The
Netherlands and Its Consequences
for the Independence and Accountability
of the Judiciary
Geerten Boogaard
Contents
5.1 Introduction........................................................................................................................ 98
5.2 Historical Introduction to the Netherlands Judiciary........................................................ 101
5.3 The Development of the Constitutional Function of the Supreme Court........................ 105
5.4 The Independence of Administrative Jurisdiction ............................................................ 106
5.5 The Formal Safeguards for the Independence of the Supreme Court
and the Administrative Jurisdiction Division of the Council of State ............................. 108
5.6 The Informal Safeguards for the Independence of the Supreme Court
and the Administrative Jurisdiction Division of the Council of State ............................. 113
5.7 Conclusion: Bipolar Constitutionalism and Democratic Legitimacy ............................... 117
References .................................................................................................................................. 118
Abstract The expansion of the constitutional function of the judiciary in the

Netherlands necessitates a perpetual review of its independence. Should it be
reinforced in order to better protect judges from the possible repercussions of
politically unwelcome judgments? Or should the safeguards be weakened in order
to legitimize judicial interventions in political processes? This chapter analyses the
historical expansion of the constitutional function and provides an overview of the
current formal and informal constitutional safeguards relating to the legal status and
institutional and functional independence of the judiciary in the Netherlands. The
conclusion is that in particular the informal safeguards for independence such as the
convention of co-optation and the sub judice principle can help to strike a balance
between legal protection and democracy.
G. Boogaard (&)
Leiden University, Leiden, The Netherlands
e-mail: g.boogaard@law.leidenuniv.nl

https://doi.org/10.1007/978-94-6265-359-7_5
98 G. Boogaard
Keywords Administrative Jurisdiction Division of the Dutch Council of State

constitutionalism Dutch Supreme Court judicial accountability judicial
independence
5.1 Introduction
Any jurisdiction with some history has court judgments which in hindsight are
referred to with great pride, or which one would rather were forgotten. Judgments
where the court did what it had to do, and choices that turned out to be on the wrong
side of history. The same is true in The Netherlands. At the end of the 19th century,
the feminist Aletta Jacobs brought a case contesting her exclusion from the right to
vote. She relied in the court proceedings on the literal text of the Netherlands
Constitution. In 1848, the constitutional legislature had apparently found it so
self-evident that only men would be called to the ballot box, that it had simply
omitted stating this explicitly in the text. In the case of suffrage based on ownership
of property, the only requirement was full Dutch citizenship.1 And were women,
Jacobs argued before the Supreme Court, not also full Dutch citizens? Not entirely,
the Supreme Court ruled; at least not in the relevant sense of the meaning in this
case.2 Without providing any further critical reasoning, the Supreme Court left the
issue to the constitutional legislature, which waited until 1917 before giving women
the right to vote. This thorny issue and the evasive response of the Court brings to
mind the Dredd Scott case in 1857.3 Scott was a slave who had applied to the
American Supreme Court for his freedom, only to have the door slammed in his
face. Afro-Americans were not citizens in the sense of the American Constitution
and therefore had no standing in federal courts. They only received this after the
civil war by virtue of the fourteenth amendment to the American Constitution. In
terms of legal protection of minorities or the attainment of individual fundamental
rights, terms often used to defend the constitutional function of the courts in a
democracy, both cases bestow little honour on the highest courts. Thankfully, there
are judgments that do so. In American literature, the case Brown v. Board of
Education in 19544 is placed opposite Dredd Scott. Miss Brown was refused
enrolment by the school of her choice because of her dark skin colour and she, too,
1
More precisely: ‘The members of the House of Representatives will be elected in the electoral
districts, into which the Kingdom is divided, by the Dutch residents of majority age, in the full
enjoyment of civil and citizenship rights’, Article 76 Dutch Constitution 1848 (author’s
translation).
2
Supreme Court of the Netherlands, 18 May 1883, Weekblad van het recht, 45, No. 4917. See on
this case Pessers 1983.
3
Supreme Court of the United States, Dred Scott v. Sandford, 6 March 1857, 60 U.S. 393.
4
Supreme Court of the United States, Brown v. Board of Education, 17 May 1954, 347 U.S. 483.
5 Bipolar Constitutionalism in The Netherlands … 99
turned to the Supreme Court. In this case the Court responded positively. Not only
was Brown’s claim upheld, the Supreme Court proceeded to rule against all seg-
regation in public schools since separate facilities were considered inherently
unequal. From an institutional point of view, this was a courageous judgment and
assistance from marines would be required to actually implement the decision. The
Netherlands Supreme Court also made peace with the women’s movement. Instead
of being left out in the cold like Aletta Jacobs, there was a warm reception for the
Proefprocessenfonds Clara Wichmann (Clara Wichmann Foundation for Test
Cases) in its case against the State concerning the Staatkundig Gereformeerde
Partij (Political Reformed Party) (SGP).5 The SGP is a small orthodox Protestant
political party that refused to include women on its list of candidates because it
believes this to be incompatible with the position of women in society. The
Foundation claimed that if the State did not act to halt this practice, it would be
unlawful because the Netherlands is party to the UN Women’s Convention. The
Netherlands is thus obliged to ensure that men and women are equally electable in
representative bodies. The Supreme Court accepted this argument and upheld a
declaratory Statement, which required the State to take legislative measures against
a political party represented in parliament. Though no marines were needed in this
case, it was a politically sensitive judicial intervention that had a number of con-
stitutional complications; a good example, thus, of how far the Supreme Court is
now prepared to go to safeguard legal rights and fulfil fundamental rights.
There are many differences between Brown v. Board of Education and the SGP
case; but there are also similarities. One of the most interesting similarities from a
scholarly point of view is that both cases are examples of public interest litigation
with which the American Supreme Court and the Netherlands Supreme Court fulfil
their constitutional function compared to other state authorities.6 Public interest
litigation is characterized by its typical structure in a legal dispute. Often cases are
involved where interest groups strive to implement fundamental rights via the
courts. This is in direct contrast to the classic model upon which the division of
powers is based. The archetype of civil law justice is the settlement of a dispute
between two individual citizens concerning a conflict that has arisen between them.
The victim and the offender are claimant and defendant; the issue is an unlawful act,
which occurred in the past, the resulting damage of which must be compensated.
Public interest litigation cases are less involved with individuals, but more with
groups who are focussed on the general interest. Claimants are sometimes not even
a victim: in the SGP case, not the SGP women had gone to court but a foundation
that stood up for the general interest that would be served by proceedings against
the SGP. In the way that the claimant does not necessarily have to be the victim, the
defendant does not have to be the actual offender. The SGP case was brought
against the State and not the SGP. Finally, the focus of public interest litigation is
5
Supreme Court of the Netherlands, SGP, 9 April 2010, ECLI:NL:HR:2010:BK4549. See on this
case: Van den Brink and Ten Napel 2013.
6
Uzman and Boogaard 2015.
100 G. Boogaard
not primarily redress for a past injustice, but is aimed more at extra measures in the
future. In the SGP case, no payment or compensation was required; it was all about
measures to prevent the SGP acting in such a manner again in the future. All things
considered, public interest litigation is an important element of what Koopmans
refers to as bipolar constitutionalism: political institutions, understood as the
executive and the legislature of a constitutional entity, are held to account not only
through elections and political checks and balances, but also through review per-
formed by national and supranational courts.7
The constitutional function of the courts in bipolar constitutionalism gives rise to
new questions concerning the independence of the judiciary. Should the safeguards
against interference be reinforced in order to strengthen the constitutional function?
A court which directly corrects political bodies could, after all, expect repercus-
sions. An illustration of this is the politicization of appointments to the American
Supreme Court since the growth of public interest litigation. Or is the opposite true,
and should the safeguards be weakened to legitimize the constitutional function? Or
is the situation just fine as it is? This chapter will discuss these questions in relation
to the Netherlands legal system. More specifically, in relation to the two most
important courts with a constitutional function: the Supreme Court and the
Administrative Jurisdiction Division of the Council of State (the Division). The
Supreme Court has always been independent and only in the course of time
acquired a constitutional function. The Council of State, on the other hand, has had
a constitutional function for years, but its independent Administrative Jurisdiction
Division is of a later date. In the Netherlands, there are a few other highest
administrative courts that officially also have a constitutional function, but little can
be added to this contribution by giving these separate attention.
The background and development of bipolar constitutionalism in the
Netherlands will be analysed in Sects. 5.2 to 5.4. Sections 5.5 and 5.6 will deal with
the official and unofficial constitutional safeguards for the independence of these
courts. Section 5.7 will close with an evaluation of whether these safeguards should
be reinforced, weakened, or whether they should remain as they are. This chapter
deals with classic constitutionalism. The implications of various factual develop-
ments, such as the growth of digital technology, on the functioning and position of
the judiciary will only be dealt with briefly. This is not because they are irrelevant
for the independence of the judiciary, but because such developments have little
particular relevance to the question of whether the growth of the constitutional
function of the judiciary must lead to a new appraisal of the safeguards for
independence.
Certainly, from a theoretical point of view, there is a difference between the
independence of the courts and their impartiality. The first difference is institutional:
is the court in an optimal position to do what it thinks the law requires of it? The
second is individual: does the court have any special interest, which coincides with
that of one of the parties? Of course, marginal cases do exist. For example, the
7
Koopmans 2003, pp 248–251.
institutional setting of a court can create the appearance of partiality, which is

prohibited, as will become clear in relation to the Division. This chapter, however,
will deal mainly with the independence of the judiciary. The rules on the ‘blood’
relationships between courts and parties etc. will not be considered; the topic of
independence is already large enough as it is. It is even so large, that it would be
helpful at the outset to make certain distinctions. In this chapter, independence takes
(at least) three forms: in relation to the institution, its legal position and its function8
Institutional independence relates to the organization of the judiciary as a whole; it
concerns systematic safeguards. For example, the structural underpayment of jud-
ges, or specific powers for the executive to intervene in proceedings at a certain
court which threaten the institutional independence. In addition, there is indepen-
dence in relation to the legal position of the courts. In an independent judiciary,
judges need not fear individual repercussions if their decisions possibly go down
badly with other state authorities. Consider, for example, protection from dismissal,
or the policy on promotions or lowering the retirement age in order to sidetrack
certain judges. Finally, functional independence concerns the absence of any form
of legal authority to issue instructions to individual judges, but goes much further
than that. True functional independence exists when all judges feel free to decide in
accordance with what they believe the law requires of them. For example, if a judge
on a criminal court has the freedom to acquit a suspect who was deemed guilty by
the public of child abuse because he found that the evidence, though valid, was
unconvincing. Such functional independence is not just a matter of judicial stan-
dards, it is perhaps in particular a question of a collective mentality: an ésprit de
corps within the judiciary and the constitutional understanding of this outside the
judiciary. As Böckenförde put it, a state, which is based on the rule of law, exists on
conditions, which it cannot secure itself. Meaningful evaluations of the indepen-
dence of the judiciary cannot ignore this. I have therefore noted this here at the
outset.
5.2 Historical Introduction to the Netherlands Judiciary
The history of the current Netherlands judiciary starts in 1811, when the Emperor
Napoleon had had enough of the squabbling in the Low Countries and annexed
them by decree to his empire. This led to the implementation here of the existing
French judicial system.9 Just like in France, the Netherlands was divided into
arrondissementen and departementen, each with its own district court and court of
assizes. In The Hague, an Imperial High Court of Law was established for all Dutch
departementen combined. An appeal could be brought against the judgments of the
8
Van den Eijnden 2011; Van Emmerik et al. 2014, pp 16–18.
9
Van Boven 2011.
102 G. Boogaard
Imperial High Court of Law in The Hague before the existing Cour de cassation in
Paris. As a result, three Dutch judges were appointed to that Court. And so
Napoleon succeeded where the patriots had failed: transforming the 1579 confed-
eral Republic of the Seven United Provinces of the Netherlands into a modern
unitary state. The administration of justice in the Republic had been a matter for the
provinces, and the various provincial aristocracies resisted centralization of the
influential competences wholeheartedly. That was, until Napoleon lost his patience
and dispatched an army of French officials to the North to get matters organized
centrally. At the same time, the French kept a close eye on stability. For the new
judicial functions, they recruited the same regents as had previously been in office
in the Republic; therefore, in the end, the same group of judges remained. But from
1811 onwards, a professional judicial organization existed that had functional
requirements with regard to education and age, procedures for appointments, pro-
tection from dismissal and also included a number of incompatibilities; and this
would remain so.
After the French period, the Netherlands became a Kingdom under King
Willem I in 1815. The judiciary formed according to the French example, remained
an important pillar in the unitary state. ‘Throughout the Kingdom, justice will be
done in the name of the King’, the Constitution declared in 1815. A return to the old
provincial jurisdiction was therefore absolutely out of the question. However,
instead of the French departementen, the old provinces and their Provincial Courts
of Appeal did return. This was hardly efficient. At the Court of Appeal in Assen, the
capital of the sparsely populated province Drenthe, between 1838 and 1875 on
average there was one criminal case a week and one civil case every six weeks.10
One concession to the old provincial aristocracy were the Provincial Courts of
Appeal. Appointments were made upon the nomination of three persons, done by
the Provincial Council of the province in question. Once again, the same regents
therefore still called the judicial shots, so to speak. But they did have a court of
cassation above them. This task was given to the new Supreme Court in The Hague
which could first only set aside a judgment because of a breach of procedural rules,
but soon also because of a violation of law. In this way, uniformity of law was
safeguarded in the new Kingdom. One typical compromise with which the French
legacy became reconciled with Dutch history in 1815, was the constitutional
requirement to select members of the Supreme Court as far as possible from all the
different provinces. These types of proportionality requirements are taken very
seriously in the Netherlands. A justice was even appointed from the abovemen-
tioned province Drenthe after a long search.11
Not only did the organization of the judiciary remain more or less intact during
the regime change between 1813 and 1815, the French safeguards for independence
survived for the most part. The 1815 Constitution required that officers of the
judiciary would be appointed for life and when appointing new justices to the
10
Brood 2011, p 243.
11
Van Koppen and Ten Kate 2003.
Supreme Court, the King had to choose between three persons nominated by the
House of Representatives. As a result, a certain degree of independence for the
judiciary was safeguarded in relation to the government: it was not possible to
easily appoint friends, and enemies could also not easily be removed from office. In
addition, a degree of independence of the judiciary as an institution was safe-
guarded by virtue of the instruction from the constitutional legislature to the
ordinary legislature to establish the organization of the judiciary in general and the
remuneration of judges in particular in an Act. Therefore, in principle, the executive
could not intervene at the individual level. Setting up the judiciary, however,
remained problematic. It took until 1838 before the Judiciary (Organization) Act
took effect. Of relevance in relation to judicial independence is the prohibition on
justices of the Supreme Court to become a member of the House of Representatives
included in this Act. And the members of the Provincial Courts of Appeal may not
also be a member of the Provincial Council. The background to this incompatibility
was a safeguard against a conflict of interests, since the House of Representatives
and the Provincial States nominated the candidates for these posts. At that time, it
was not generally incompatible for judicial officers to have a political post. What is
more, until the end of the 19th century it was even not unusual that judges were
appointed to representative bodies as well. Between 1849 and 1888, 15 percent of
the members of the House of Representatives came from or were still active in the
judiciary.12 Later, this combination of offices gradually disappeared, while at the
same time the States General became more democratic and political. Until recently,
there were only a few members of the Upper House who also presided as judge.13
Today, the internal rules of the judiciary advise against membership of the States
General, since ‘a judge should not at the same time be a (co)legislator’.14 Recently,
a senator therefore resigned when she was appointed as a judge.15 In this way, the
factual division of the legislature and the judiciary from a staffing perspective has
been accomplished; a conclusion which the Group of States against Corruption
(GRECO) of the Council of Europe would like to see laid down in the
Constitution.16
12
Brood 2011, pp 229–256.
13
From 2007 to 2011 senator E.F. Lagerwerf-Vergunst was a senator for the ChristenUnie party
and a judge at the District Court Rotterdam. See www.parlement.com/id/vhjogfpxq4zz/e_f_flora_
lagerwerf_vergunst. Accessed 1 March 2019.
14
See https://www.rechtspraak.nl/SiteCollectionDocuments/Leidraad-onpartijdigheid-en-
nevenfuncties-in-de-rechtspraak-januari-2014.pdf, p 14. Accessed 1 March 2019.
15
In April 2018 senator J. Beuving became a justice at the Court of Appeal in
Arnhem-Leeuwarden and as a result resigned from her position at the Senate. See https://www.
eerstekamer.nl/nieuws/20180326/senator_beuving_pvda_vertrekt_uit. Accessed 1 March 2019.
16
Group of States against Corruption 2012, p 49 (Recommendation V).
104 G. Boogaard
However, not everything from the French period was adopted in full in the new
Kingdom. A crown jewel of the French revolution - trial by jury - was repealed as
soon as possible. There is no reason to suppose that so much had gone wrong
between 1811 and 1813 at trials by jury in the courts of assizes. It is more likely that
the democratic origin of a system of trial by jury was distrusted. The Dutch regents
judged faith in themselves to be greater than that of the French people in the judges
of their ancien régime.17 Moreover, trial by jury does not fit in the elitist tradition,
which has never entirely disappeared in the Netherlands. The reintroduction of trial
by jury was something that regularly returned to the agenda, but never became a
serious option. The Constitution in 1922 ruled out the introduction of trial by jury.18
In 1971, the Cals/Donner Government Committee considered the ordinary citizen to
be too emotional when it came to criminal justice.19 However, for many years now,
there have been a few specialist courts where laypersons do have a part in judicial
proceedings.20 This is more to do with specific expertise than democracy.
What remains in relation to the history of the judicial organization can be
concluded as being more of the same: further centralization and professionalization.
By 1875, the unitary state had become so self-evident that the authority of the
provinces could finally be broken. The inefficient eleven provincial Courts of
Appeal were abolished and the judicial map for appeals was divided into five areas
of jurisdiction, each with its own court of appeal. At the same time, the number of
district courts was reduced from 34 to 23. The 1983 Constitution deleted the slogan
that throughout the entire Kingdom, justice was administered in the name of the
King. The confusion that such a slogan could give rise to in relation to the inde-
pendence of the judiciary, outweighed the necessity to reinforce the unitary state.
Nevertheless, the custom has remained to hang a portrait of the reigning monarch
behind the judges in all courtrooms. In 2013 the judicial map was completely
revised so that the Netherlands now has eleven district courts, four courts of appeal
and one Supreme Court.21 Their relationship to each other has never changed:
district courts pass judgment mainly at first instance, courts of appeal in appeal
cases and the Supreme Court in appeals in cassation.
17
Bossers 1987.
18
Technically because Article 116(3) Dutch Constitution refers to ‘partial participation’ of
laypersons in the judicial system. A contrario, it can thus be deduced that a judicial system with
full implementation via laypersons can be considered to be excluded.
19
Staatscommissie-Cals/Donner 1971, pp 247–249. See for a recent reiteration: De Roos 2013.
20
Jansen 2014.
21
See for a useful introduction to the current judicial organization the English web pages on
rechtspraak.nl: www.rechtspraak.nl/English and on the website of the national government: www.
government.nl/topics/administration-of-justice-and-dispute-settlement/the-dutch-court-system.
Accessed 1 March 2019.
5.3 The Development of the Constitutional Function

of the Supreme Court
When the Netherlands inherited the French judicial system, it also inherited
something of the French revolutionary distrust of the judiciary. The Dutch tradition
falls under the French deviation: the desire to protect the law from the judges.22 If
trial by jury was found in the Netherlands to be a bit of an insult to the professional
administration of justice, this certainly did not mean that the judiciary was seen as
the least dangerous branch of government. Illustrative of this is the General
Provisions (Kingdom Legislation) Act of 1829, parts of which are still in effect
today. The Act emphasizes to judges that they must ‘rule in accordance with the
law’ and ‘on no occasion may judge the inherent value or fairness of the law’. They
are also prohibited from delivering judgment ‘by way of general regulation, dis-
position or rule’.23 In particular, the prohibition on so-called arrêts de règlement
(regulatory judgments) is striking since this is clearly superfluous. Contrary to
France, this has never existed in the Netherlands. These are purely prohibited to be
on the safe side.
In line with this distrust towards judges, the Supreme Court did not fulfil a
constitutional function from the start. The independent administration of justice was
mainly limited to the adjudication of criminal offences and the settlement of private
disputes. Between 1822 and 1844, a so-called Conflict Decree even existed in
which the King could remove a case against the executive power from the juris-
diction of the judiciary. In 1848, the Constitution added a prohibition on consti-
tutional review. This article prohibits the courts from reviewing the constitutionality
of an Act. Of all the degenerate types of government, the government of judges was
the worst, so it was thought on that occasion, and therefore the formal Act had to be
placed outside any suspicion.24 So the fact that the Supreme Court in 1883 did not
consider itself to be the correct institution to introduce the vote for women may be
disappointing from the perspective of human rights, but it is not entirely inexpli-
cable in light of the institutional context.
Since 1900, the civil courts have increasingly acquired a constitutional function.
The starting point of this process is often viewed to be a ruling in 1915 in which the
Supreme Court finally dealt with the thought behind the Conflict Decree: that the
civil courts should not be involved in disputes in which the government is a party.25
Ever since, the Supreme Court has ruled that the civil courts at all times have
jurisdiction when a citizen requests protection against a violation of a civil right,
even if protection against the State is requested. Given the possibility to bring all
22
Merryman 1996; Pieterman 1990.
23
Respectively Articles 11 and 12 of the General Provisions (Kingdom Legislation) Act (Act 15
May 1829, Bulletin of Acts and Decrees 829/28) (author’s translation).
24
Adams and Van der Schyff 2006; Boogaard and Uzman 2018.
25
Supreme Court of the Netherlands, Guldemond/Noordwijkerhout, 21 December 1915, ECLI:
NL:HR:1915:AG1773.
106 G. Boogaard
government action which is alleged to be unlawful before the courts, since 1915 an
independent court has always had jurisdiction in disputes against the government.
A second relevant development is the recognition of group actions. Originally
developed as a way for environmental activists to bring court proceedings, the
general interest action has now acquired its own place in the Civil Code. As a result,
not only can government actions be put to the civil courts, but the possibilities to do
so are almost infinite. A further important impetus for the constitutional function is
the development of international human rights since the Second World War. The
European Convention on Human Rights (ECHR) is central here, where an indi-
vidual right of complaint is possible before the European Court of Human Rights
(ECtHR) in Strasbourg. Because of the traditional openness of the Dutch
Constitution towards international law, an alternative arose for testing an Act
against the Constitution, which is still prohibited.26 Citizens seeking legal protec-
tion against the government or wishing to invoke their fundamental rights against
the legislature, can achieve via a human rights convention what is not possible via
the Constitution. The Dutch courts may be prohibited from performing a consti-
tutional review of Acts, but they are obliged to not apply ‘provisions applicable in
the Kingdom’ on the grounds of directly applicable treaty law. From an uncertain
start in the 1960s and 1970s, the application of international human rights has risen
dramatically since the 1980s. The reason for this was not just the uncertainty of
lawyers and the cold feet of the courts, the unpleasant prospect of actually being
held to account in Strasbourg also played a role.
And so in the course of time, all building blocks for public interest litigation
were in place and the approach of the Supreme Court also changed. It still cannot be
called activist, but the Supreme Court has certainly become more self-confident in
the past hundred years.27 If the Supreme Court wishes to intervene, it does so. Even
if this means coming opposite the other State authorities or finding itself in polit-
ically sensitive waters. The SGP case is the most striking example of this. In spite of
the lack of constitutional review – the debate about which continues in full28 – the
constitutional function of the Supreme Court has reached adulthood.
5.4 The Independence of Administrative Jurisdiction
Parallel to the development of the constitutional function of the civil courts, the
administrative jurisdiction became independent. This was no easy process.29 For a
long time the notion prevailed that, legal protection against the government had to
be organized within the government. Finally, a single citizen requested protection
26
Efthymiou and De Wit 2013; Martens 1998; Ten Kate and Van Koppen 1994.
27
Uzman et al. 2010.
28
Adams and Van der Schyff 2006.
29
For a general overview of Dutch administrative law, see: Seerden and Wenders 2012.
against policy that was applied to him in the name of all citizens. An important
spokesman for this line of thought was the Leiden professor of constitutional law
Struycken. In a modern parliamentary democracy, he claimed in 1910, the execu-
tive authority does not stand opposite the citizens, but emanates from among the
citizens.30 Disputes between the government and individual citizens are in fact
disputes among citizens themselves. So they can be better dealt with by other
administrators than by independent civil courts. It is the distance between the
administration and the judiciary which exists because of this independence, that
makes the court, according to this line of thought, unfit to fulfil a constitutional role.
More shelter was expected from the administrative appeal. Here, a higher admin-
istrative authority rules on the legitimacy of the actions of the lower administrative
authority.
The most familiar form of administrative appeal was the Kroonberoep (appeal to
the Crown) against government action and brought before the Constitutional King,
so the King acting under the aegis of one or more ministers. Since 1861, the Crown
was obliged in its handling of such appeals to the Crown, to request advice from the
Council of State, the oldest advisory body of the government which had assisted
Emperor Charles V and which has since reinvented itself in new functions. To
provide advice in appeals to the Crown, the Council of State in line with the model of
the French Conseil d’Etat, was given a separate Administrative Disputes Division.
Members of this Division were appointed for life. This Division heard the parties and
drew up its advice in the form of a draft Royal Decree which the government merely
had to sign. In practice, the government always did so. In this way, the Disputes
Division had de facto a constitutional function. But officially, it remained an advi-
sory practice and therefore the ECtHR ruled in 1985 in the Bentham case that the
Disputes Division was not an impartial and independent tribunal in the sense of
Article 6 ECHR.31 The Netherlands, against all expectations at the time when it
became party to the Convention, was found to be in violation of a human right.
The impact of the Benthem ruling was considerable. It stimulated the uni-
formisation of administrative law which the constitutional legislature had already
decided on in 1983, and the independence of administrative jurisdiction even more
so. In 1994 the General Administrative Law Act came into being.32 The opportunity
for administrative appeal remained, but splitting up the appeal was given a definite
preference. First, there is a full administrative review by the administrative authority
which has taken the primary decision, and then there is a review of the lawfulness
by an independent administrative court. Administrative jurisdiction in first instance
was held at the courts of the ordinary judiciary. In 1994 the appeal remained
divided over the specialized courts which had developed in part within the judi-
ciary, but mainly outside it. This arrangement still applies. The final judgment in tax
30
Struycken 1910.
31
European Court of Human Rights, Benthem v. Netherlands, 23 October 1985, ECLI:CE:
ECHR:1985:1023JUD000884880. See on this case Van Dijk 1987.
32
Barkhuysen et al. 2012.
108 G. Boogaard
cases is given by the Supreme Court, disputes concerning social security are han-
dled before the Central Appeals Tribunal33 and appeals concerning economic
administrative law are handled before the Trade and Industry Appeals Tribunal. In
the case of an appeal concerning general administrative law, environmental law and
immigration law, the Administrative Jurisdiction Division of the Council of State is
authorized to pass judgment itself.34
Maintaining an Administrative Jurisdiction Division at the Council of State has
not led to the Netherlands being found in violation of Article 6 ECHR again. The
independence of the Division has not been challenged directly again in Strasbourg.
However, doubts do exist about the combination of administrative jurisdiction and
the provision of legislative advice in relation to institutional independence and its
close relation: the objective impartiality or the absence of the appearance of par-
tiality. A court, according to the ECHR, can never be objectively impartial when it
advises and adjudicates in the same case or on the same legal issue (same case,
same decision).35 Partly in response to this, the legislature in 2010 made the
division of staff at the Council of State clearer by dividing staff into state councillors
and adjudicating state councillors. The number of staff who fulfil both functions at
the Council of State (the ‘members’ in the proper sense) has been reduced to just ten
out of the current sixty members and state councillors. The criticism of the com-
bination of the advising and adjudicating task of the Council of State has not
completely disappeared with this tightening of the rules. It is certainly still a pos-
sibility that eventually the entire administrative jurisdiction will be integrated in the
ordinary judiciary, as intended in the 1980s.36 Swift reform of the judicial orga-
nization was not a feature of the Dutch system in 1800, and that still applies today.
5.5 The Formal Safeguards for the Independence

of the Supreme Court and the Administrative
Jurisdiction Division of the Council of State
The Constitution contains a number of safeguards for the independence of the

judiciary.37 The Constitution does not determine which courts are part of that
judiciary. The constitutional legislature leaves this to the ordinary legislature in the
33
See www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Centrale-Raad-van-beroep/
English-summary. Accessed 1 March 2019.
34
See https://www.raadvanstate.nl/talen/artikel/. Accessed 1 March 2019.
35
European Court of Human Rights, Procola v. Luxembourg, 28 September 1995, ECLI:CE:
ECHR:1995:0928JUD001457089; European Court of Human Rights, Kleyn v. Netherlands, 6
May 2003, ECLI:CE:ECHR:2003:0506JUD003934398.
36
Kamerstukken II 1980/ 81, 16 162, no. 3, pp 2–3.
37
For an English translation of the Dutch constitution, see https://www.government.nl/topics/
constitution. Accessed 1 March 2019. On the judicial organization and its independence in par-
ticular, see: Van den Eijnden 2011; Bovend’Eert 2008.
expectation that it will designate ‘all judicial institutions which within our legal
system fulfil a judicial task in the long term’ as courts of the judiciary.38 This
expectation has only materialized to a certain extent. Article 2 of the Judicial
Organization Act currently only designates district courts, courts of appeal and the
Supreme Court. The Administrative Jurisdiction Division of the Council of State
therefore is not part of the judiciary. As it is only involved in administrative law,
though contrary to the expectation of the constitutional legislature, this is not in
conflict with the actual wording of the Constitution. The Constitution stipulates that
civil jurisdiction and criminal jurisdiction must be incorporated in the judiciary, but
administrative law may also be assigned to courts outside the judiciary. So the
Constitution contains no general safeguard that all jurisdiction with a constitutional
function must be assigned to the officially independent judiciary. This is one of the
points where the Constitution gives priority to room for developments in the
judiciary above codifying safeguards itself.
Compared to the Division, the Supreme Court, being part of the judiciary, does
share in the safeguards for the judiciary. Institutional independence, in particular, is
anchored in Article 116 of the Constitution. This article instructs the ordinary
legislature to regulate the structure, composition and competence of the judiciary in
an Act of Parliament. Thus the former safeguard is retained which required that the
organization of the judiciary is regulated in a general Act. Delegating regulatory
competence to the government is not excluded, but must remain very limited. The
legislature may also not create administrative competences with which the gov-
ernment can interfere in details, for example in the duties of a President or the
finances of a particular court. The Council of State also has similar protection from
rushed administrative interventions. By virtue of Article 75 of the Constitution, its
structure, composition and competence must also be regulated by a general Act.
In spite of this institutional independence, any judiciary remains unavoidably
dependent on the executive for the actual conditions under which it operates.
Someone has to provide the resources. Institutional independence moreover does
not reach to the extent that the management boards of the courts simply submit their
receipts to the ministry and the budget legislature approves what the courts have
spent. The legislature can expect the judiciary to be efficient in the way it spends
what boils down to taxpayer’s money. At the same time the legislature, via this
connection, could actually threaten the functional independence of the judiciary.
The so-called Council for the Judiciary was founded in 2002 to deal with this
dilemma.39 The Council is intended to function as a buffer between the large
Ministry of Justice and Security and the individual courts. It is composed mainly of
judges appointed for life, and is supplemented by a minority of administrators
38
Kamerstukken II 1980/81, 16 162, no. 3, p 2.
39
See www.rechtspraak.nl/English/The-Council-for-the-Judiciary. Accessed 1 March 2019. See
also part 6 of the Judicial Organization Act.
110 G. Boogaard
without a life appointment. In the case of the judiciary as a whole, every three years
the Council negotiates a budget with the ministry, after which the Council allocates
funding to the courts. This funding is not provided without accountability. With a
view to good management, the Council for the Judiciary is authorized to provide the
court boards with general guidelines. In relation to this, the Council itself may
receive general guidelines from the minister. At no time, though, may the minister
use this authority to interfere ‘in the proceedings, assessment or the decision of a
specific case or categories of cases’, as prescribed by law. The Council itself may
decide whether such a situation arises. As a result, an attempt is made to avert a
threat to functional independence.40 Moreover, the Division and the Supreme Court
are not linked in an official sense to the Council for the Judiciary. The Council of
State, as High Council of State has a separate budget over which the Council of
State itself negotiates with the Minister of the Interior and Kingdom Relations. Nor
can the Supreme Court be given guidelines for its operational management from the
Council for the Judiciary, but it is part of the department budget of the Ministry of
Justice and Security. Rules have been drawn up on this in a separate covenant
between the Minister and the Supreme Court. Thus, the Supreme Court is more or
less in the same position as the Council of State. In this way, the institutional
independence of both courts is safeguarded in relation to finance.
The independence of the legal position of the judiciary is laid down in Article
117 of the Constitution. A central feature of this provision is appointment by the
Government for life. Dismissal by the Government can, and must, be done if a
judge so requests or when a judge reaches the statutory retirement age; since 1932
this has been 70 years old. The Constitution does not rule out delegation of the
competence to set the retirement age. It is after all a constitutionally precarious
competence, in particular for courts of law with an important constitutional func-
tion. In a system where the more experienced career judges at the end of their career
reach the top of the pyramid, the judiciary can be relatively simply ‘decapitated’ by
lowering the retirement age by a few years. This is exactly what Seyss-Inquart did
when he was appointed by the Nazis as the Reichskommissar at the beginning of the
German occupation of the Netherlands in the Second World War. He lowered the
retirement age from 70 to 65 and thus straight away could replace six of the
seventeen justices with persons who were more sympathetic to the Germans.41
Judges may be dismissed as a result of incompetence in office. This can only be
done in narrowly worded cases by a court of appeal which is part of the judiciary;
this is the Supreme Court, on the application of the Procurator General at the
Supreme Court. Judges, including the justices of the Supreme Court itself, can
therefore be dismissed by the Supreme Court. A legislative proposal is being
processed to extend judicial disciplinary law with more instruments to respond to
inadequate performance. To bridge the gap between a written warning from the
President and punitive dismissal, measures have been proposed such as a transfer,
40
Langbroek 2010.
41
Jansen 2005.
withholding salary and other such options; always within the judiciary and always
regulated by law. The members of the Council of State and the state councillors
entrusted with the administration of justice have the same independence in relation
to the substance of their legal position. Only the former, however, are protected by
the Constitution (by virtue of Article 74); the latter derive safeguards against
involuntary dismissal from an ordinary Act.
The Constitution does not contain specific requirements for the appointment of a
judge. The ordinary Act requires for the appointment of a judge to the judiciary the
successful completion of academic training in law, and delegates the further
selection of judges to the aforementioned Council for the Judiciary. This Council
has established a full recruitment system including an extensive job profile, a
broadly composed selection committee and its own four-year training programme.42
To become a judge, it is not sufficient just to have completed this national proce-
dure. Judges are not assigned by ‘The Hague’ to the courts of law. In the end, the
individual court boards select candidates for an appointment. This combination of a
national suitability assessment and a decentral placement sometimes gives rise to
tension. A well-known judge recently signalled that court boards are frequently
confronted with highly suitable candidate judges with excellent references, whom
they would very much like to be appointed, being rejected because of the outcome
of a psychological assessment in the national procedure. Candidates who for years
had objectively produced top quality legal work, for some reason failed the intel-
ligence test. The judge called for these tests to no longer be interpreted in absolute
terms and to always have the possibility to deviate from negative test results on the
grounds of reasonableness.43 The plea hit a raw nerve, since the House of
Representatives called for a response from the Minister who proceeded to refuse to
commit himself and referred to an ongoing evaluation of the national selection
procedures.44
In the case of the appointment of a justice, the involvement of the House of
Representatives is regulated in the Constitution. The Supreme Court even has a
committee that checks out academic circles and professional practice for potential
candidates. If a vacancy becomes available, the Supreme Court selects suitable
candidates from its own files using a self-made job profile.45 When the President of
the Supreme Court informs the House of Representatives of a vacancy, he also
nominates six persons as the potential successor. The nominations are ranked in
order of suitability. Number one is the candidate whom the Supreme Court would
prefer to see appointed and the five other candidates are deemed to be future
frontrunners. The President, the Procurator General at the Supreme Court and the
42
See https://www.rechtspraak.nl/SiteCollectionDocuments/judicial-refrom-in-the-Netherlands-
2014.pdf. Accessed 1 March 2019.
43
Hofhuis 2018.
44
Kamerstukken II 2017/18, 29 279, No. 452.
45
See https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Hoge-Raad-der-Nederlanden/
Over-de-Hoge-Raad/Raad/Paginas/Profiel-raadsheer-en-groepsprofielen-kamers.aspx. Accessed 1
March 2019.
112 G. Boogaard
candidates appear at a closed meeting of the Standing Committee for Justice and
Security of the House of Representatives. The House of Representatives then puts
forward three candidates to the Government which has no obligation to follow the
nomination of the Supreme Court. The Government is bound by the nomination of
the House of Representatives. In the practice of recent history, the favoured can-
didate of the Supreme Court is appointed. The House of Representatives strikes
through the names of the lowest three candidates and the Government chooses the
first nominee from the remaining three names and appoints this person to the
position of justice by Royal Decree. Becoming a state councillor at the
Administrative Jurisdiction Division also occurs via Royal Decree, but is not a
question of just applying to the Government. The Council of State has drawn up a
document with quality requirements and controls recruitment and selection. When a
vacancy arises, the Council of State puts forward a single, non-binding nomination
to the Minister of the Interior and Kingdom Relations.46 This procedure does not
include any official involvement by the House of Representatives. If the House
want to interfere, then it would have to make use of parliamentary means. Full
ministerial responsibility ultimately applies to the appointment of state councillors
and justices.
Where institutional independence in particular is evident from Article 116 of the
Constitution and the independence of the legal position in particular from Article
117, the functional independence is not as such included in the Constitution. Its
existence is evident from the law in particular in the negative sense: there are no
authorities to issue instructions with respect to the judiciary such as those that exist
towards the Procurator General; the instructions from the Council for the Judiciary
can never be related to the content of the administration of justice; the internal
disciplinary law only deals with the incumbency of judges, etc. In each case, the
functional independence is respected. This is a conscious choice. In line with the
observation made at the end of the introduction above, that the functional inde-
pendence ultimately can only be anchored in the law to a very limited degree, the
constitutional legislature found in 1983 that the official constitutional safeguards
were primarily intended as a means of support for the judiciary. So the Constitution
refers onwards to a higher ideal. At the same time, the Constitution also actually
limits functional independence. This, after all, would be absolute if adjudication,
like elections, took place in secrecy. In that case, the judge, just like the voter,
would be left to rely on his own conscience. The Constitution clearly does not
choose this option. By virtue of Article 121 of the Constitution, judges are obliged
to pass judgment in public and to motivate what led to their judgment. A judge is
therefore subjected to the monitoring and criticism of the general public. This
standard includes the requirement to reflect this public access in a way that public
control is optimal. This does not mean that the judge always has to do his work live
46
See https://www.raadvanstate.nl/publish/library/10/notitie-kwaliteiten-staatsraden.pdf. Acces-
sed 1 March 2019.
on the internet, but the digital publication of all judgments, for example, comes
close.
The lack of a positive codification of the functional independence of the judi-
ciary in the Constitution is partially compensated for through the international
codification of human rights. These are part of the Dutch Constitution. The most
important standard here is Article 6 ECHR, which lays down a substantive ultimate
outcome: the dispensation of justice must be done by an independent and impartial
court established by law. Via this substantive international standard, the gaps left by
the procedural standards in particular in the Constitution, can still be closed. The
Benthem case referred to above is an example of this in relation to the
Administrative Jurisdiction Division. In connection with the Supreme Court, limits
to the interference of the House of Representatives in the appointment of state
councillors to the Supreme Court could be considered. The Constitution only
arranges the procedure, but in the case law of the ECtHR it is clear that political
bodies may only play a role in the appointment of judges, provided they do not
make use of improper motives.47 The disadvantage of this approach by the ECHR
and the ECtHR is that the standard is very case-based. For a full overview of what
has now been developed under Article 6 ECHR, see the overviews elsewhere.48
5.6 The Informal Safeguards for the Independence

of the Supreme Court and the Administrative
Jurisdiction Division of the Council of State
The official safeguards for the independence of courts that have a constitutional
function are a combination of a limited number of concrete constitutional rules plus
elaboration through international case law concerning a human right (Article 6
ECHR). The functioning of the official safeguards can therefore not be viewed
separately from informal safeguards. These are not a question of enforceable
constitutional law, nor strictly a question of political culture. They concern the
intermediate category of political appropriateness standards: conventions.
Conventions arise when an existing practice and a normative conviction coincide.
These are constitutional practices, which can no longer be departed from without
being reproached from all sides. At the same time, they are not unwavering stan-
dards or parts of a rigid constitution which can only be departed from in a more
serious official procedure. When it comes to judicial independence, two conven-
tions in particular are important: the convention of co-optation and the sub judice
convention. These conventions support the independence of the judiciary because
they both increase the distance between politics and the judiciary and thus help
prevent individual judges or individual decisions becoming a political football.
47
Van den Eijnden 2011, pp 73–78.
48
Kuijer 2004; Van den Eijnden 2011; Van Emmerik et al. 2014, pp 28–38.
114 G. Boogaard
The convention of co-optation is practice-based and arises from the conviction

that judges, in principle, are best suited to appoint one another: it takes one to know
one.49 This follows in the first instance from the large degree to which the legis-
lature generally leaves the selection of new judges to the Council for the Judiciary.
This choice is not accidental, as appeared from the abovementioned response by the
House of Representatives to a claim by the judiciary about national test results
being interpreted too strictly. The sensitivity concerning these kinds of issues shows
that the House of Representatives actually believes that experienced judges are the
best people to select other suitable judges. Secondly, the convention of co-optation
is seen in the passiveness of the House of Representatives in the appointment of
judges to bodies with a constitutional function. Even in cases in which the
Constitution requires interference from the House of Representatives in the nomi-
nation for the Supreme Court, the belief has always prevailed that the Supreme
Court itself knows best who is appropriate to reinforce the ranks. The Supreme
Court and the Administrative Jurisdiction Division also propagate this themselves.
An example of this is the document referred to by the Council of State concerning
the recruitment of new state councillors. In the composition of the Advisory
Division, an explicit attempt is made to achieve a good reflection of mainstream
politics. At many other bodies concerned with Dutch constitutional law, it is cus-
tomary to share the top positions proportionally among the large political parties.
But this is explicitly not the case in the recruitment of state councillors to the
Administrative Jurisdiction Division, in accordance with the same document. The
only aim there is to achieve ‘a broad variation in backgrounds, both legal,
administrative and other’. This also applies to the Supreme Court. Long ago an
attempt was made to have a good representative spread from the provinces; between
1838 and 1970 a minimum number of Catholic justices was aimed for; and cur-
rently the proportion of men to women must be in balance. Taking into account
non-legal factors is therefore permitted, but the political background of a candidate
is never officially deemed to be a relevant criterion. Thus, politicians generally do
not regard themselves as the most appropriate persons to assess the suitability of a
judge.
The expansion of the constitutional function of the Supreme Court has of course
put pressure on the convention of co-optation.50 Cracks are already visible in
places. Generally speaking, the convention of co-optation has hardly led to a
judiciary which from an ethnical point of view somehow resembles society in the
Netherlands at present. As a result, it is now sometimes argued that the time has
come for politics to get involved in the selection of judges. More concretely, now
and then the political background of the judges does sometimes enter the political
debate. A survey shows that a relatively high number of members of the judiciary
vote for the pragmatic social liberal party D66 and that there are relatively few
49
This convention is described (and criticized) by Bovend’Eert 2000, pp 19–21. Likewise on the
appointment of judges in the Netherlands, see: De Werd 1994 and Van Koppen 1990.
50
Van Koppen 1990.
supporters of the Socialist Party (SP) and the Party for Freedom (PVV) active in
dispensing justice. Not surprisingly, judges are more moderate and pragmatic,
instead of having a clear political profile on the edges of the political spectrum. But
as a result of the news concerning the overrepresentation of D66 supporters, it is
often argued that there should be more political diversity in the judiciary, though
this does not generally lead to concrete action.51 This did however happen recently
in two incidents concerning appointments to the Supreme Court. Both concerned
objections from the PVV led by Geert Wilders.52 In 2011, the party protested
against the Supreme Court’s choice to nominate professor of criminal law Buruma
to be appointed to the Criminal Division. Buruma was active in the Labour Party
(PvdA) and had spoken very critically in an opinion piece about Wilders, when
Wilders at that time had been called to appear before the criminal court. The
convention of co-optation was too weak then to prevent the PVV from opposing the
appointment to a judicial body of a known critic who themselves might possibly be
dealing with an appeal to the Supreme Court of Geert Wilders in the future.
Likewise, in 2011 it became known that the PVV in a closed meeting of the
Standing Committee for Justice and Security had been able to block the appoint-
ment of a different justice by once again threatening to cause commotion. Then,
again, there was a court case pending against Wilders. A document in the past had
been leaked in which the proposed justice had legally ‘filleted’ a judgment that had
been given in Wilder’s favour. At that time, the Supreme Court opted to make the
best of a bad job by amending the original nomination and keeping the candidate
who had been challenged for a later moment. This caused quite some outrage,
particularly from the core of the Supreme Court. These incidents are cracks in the
convention of co-optation and proof that informal safeguards should not be
underestimated. On the other hand, these are incidents specifically related to a
criminal case against a well-known politician. The widespread criticism of the
PVV’s actions shows that the normative belief that the judiciary itself should fill its
own ranks has not disappeared yet.
The second convention that supports the independence of the judiciary, is the
rule that politicians should not speak on cases that are still being heard in the
courts.53 The term in the legal tradition is sub judice. In the Netherlands, the term
itself has no history or right of existence. The rule is connected to the prevention of
members of a jury becoming influenced by inappropriate commentary from par-
liamentarians and so the term sub judice is pre-eminently not applicable in the
Netherlands. The Chairman of the Dutch Lawyers’ Association expressed the
sentiments of his members by saying that anyone who calls themselves a profes-
sional judge can take a ‘punch’.54 The term, therefore, may not be entirely
appropriate, though the same chairman also believed that politicians should observe
51
Ten Kate and Van Koppen 1994, p 147.
52
Bovend’Eert 2015, pp 94–101.
53
Transparency International 2012, p 93.
54
Hoekstra 2017, pp 1975–1979.
116 G. Boogaard
certain limits when commenting on ongoing legal proceedings. Members of the

House of Representatives do increasingly confront one another with this norm.55
This is also confirmed in the courts. In the case against Volkert van der Graaf, the
murderer of Pim Fortuyn, ministers and MPs had commented harshly on what they
perceived to be a sentence that was too low being passed in first instance. During
the appeal proceedings, the Court of Appeal considered, in relation to Article 6
ECHR, that public authorities such as ministers and MPs could indeed endanger a
fair trial for Van der Graaf through their comments.56 All in all, there is discussion
about the nature, extent and desirability of the sub judice convention, but its
practice and a certain level of normative conviction have been established.
The benefit of the restraining effect of the sub judice convention in relation to the
independence of the judiciary is demonstrated when the convention is not observed,
and indignant MPs immediately latch on to news items. A good example of this
occurred in 2009 when the dangerous criminal Şaban Baran, who had been found
guilty in first instance, fled to Turkey. Pending his appeal, the Court of Appeal had
given him temporary leave to visit his newly-born child. When the human trafficker
did not return, it was clear that the Court had made a huge mistake. The justifiable
public outrage in response, led in the media to less the justifiable identification of
the individual judges involved in the case and subsequently in politics to the totally
inappropriate call to have these justices immediately dismissed. The Minister of
Justice was able to calm the debate by shifting the discussion to his own proposal to
leave these kinds of decisions about leave to prison directors, with a remedy at the
independent Council for the Administration of Criminal Justice and Protection of
Juveniles. In this way, he channelled the criticism away from mistakes by judges
without dealing with their dismissal. The Procurator General later gave a detailed
explanation to the Supreme Court, the body which had been approached by the
public to demand the dismissal of the justices, giving his reasons for not doing so.
His letter reads: ‘If a judge runs the risk of being fired in the event he passes a
judgment which he believes to be in accordance with the law, but which in political
and/or social circles is seen to be wrong, the parties to the proceedings will rightly
place question marks against an independent assessment of their case’.57 Dismissal
due to an honest mistake would be inconsistent with the functional independence of
the judiciary. Ideally, the House of Representative would rather have waited till this
55
See extensively on the Anglo-Saxon background and the history and the use of the sub judice
principle in The Netherlands Gommer 2008. Gommer himself disputes the existence of a sub
judice convention in the Netherlands since he believes that not enough cohesion in its use can be
discerned. However, in doing so he has raised the threshold for the existence of a convention too
much.
56
Court of Appeal Amsterdam 18 July 2003, ECLI:NL:GHAMS:2003:AI0123. The Court found
this to have been ‘risky’ and ‘in the danger zone’, but not serious enough to be unlawful.
57
As cited in NRC Handelsblad, ‘Ontslaggronden voor rechters’, 25 November 2009 (author’s
translation).
moment to comment on the issue. It was already known at that point that Baran had
been arrested in Turkey and sentenced to a long term of imprisonment.
The above example underlines not only the benefit of the sub judice convention
for the independence of a judiciary with a constitutional function, but also its limits.
Repercussions to politically unwelcome court judgments can also be targeted
towards the powers of the judge and thus form a threat to functional independence.
Politics has more means to get rid of what it sees as difficult jurisdiction besides
politicizing appointment policy or commenting on ongoing court proceedings. For
example, it can attempt to settle certain offences by placing them with the executive
power, or raising the court fees. The courts then remain independent but no longer
deal with the matter or access to the courts becomes very difficult. In that sense, the
formal and informal safeguards for the independence of the rule of law are not set in
stone.
5.7 Conclusion: Bipolar Constitutionalism

and Democratic Legitimacy
Nothing in constitutional law is absolute, except perhaps the prohibition of torture.

Everything else has limits, and that even applies to the most important and vul-
nerable principle of the state based on the rule of law: that judges ought to be
independent. This is because judges are no exception to the ancient question quis
custodiet ipsos custodes? Judges are subject to various forms of monitoring. The
most important mechanisms have already been discussed. The institutional inde-
pendence of the judiciary, for example, is tempered by the responsibility the
executive retains for the organization of the judiciary. In the end, the judicial system
must account for the expenditure of public money and the Council for the Judiciary
monitors the material administration. Likewise, the independence of the judiciary’s
legal position is tempered by the possibility to be dismissed by the Supreme Court
for dereliction of duty. Neither judges nor courts of law are inviolable. The most
important check on judges, however, is formed by the requirement to clearly and
publicly motivate their judgments. Both norms are laid down in the Constitution
and they subject everything a court does to the critical eye of fellow professionals,
the media, politics and the general public. This check is a moderation of the
functional independence of the judiciary, because a good judge who does what the
law asks can often predict how his judgment will be received in the public opinion.
For example, all judges will be aware what the reactions will be if an escaped
forensic patient, who has brutally raped and murdered a random innocent young
girl, is discharged from prosecution because he was threatened with torture during
his arrest. This, however, may be what the law requires of him. And so it is at such
times that the independence of the judiciary must prove its worth. And so in such
cases, the judge relies on two conventions in particular: the convention of
co-optation and the sub judice convention. The former prevents a judge from
118 G. Boogaard
constantly having to fear damage to his career in the case of politically unwelcome
judgments, because his professional colleagues will ultimately assess his promo-
tion. And the latter convention reduces the chance that politicians start applying
pressure on an individual judge prior to the final judgment.
It is striking that in this way the most important area of judicial independence is
afforded the weakest protection under constitutional law. The functional indepen-
dence of the judge, which is the main issue, is only ‘supported’ in the Constitution
and relies most on non-legally binding conventions. This leads to vulnerability of
the constitutional function of the Supreme Court and the Administrative Jurisdiction
Division of the Council of State because they perhaps do not feel sufficiently secure
by applying conventions to do what the law requires of them. But this vulnerability
can also be valued as a special form of democratic legitimacy. Judges, more than
anyone, have an interest in the continued existence of the conventions and this
makes them sensitive to the threats they can create. For example, judges see that
surveys on the one-sided political and cultural composition of the judiciary can lead
to proposals to politicize appointment procedures. This will make them particularly
alert to avoiding the accusation of one-sidedness and to stimulating internal
diversity policies. And these are good things. Likewise, judges will be able to
appreciate the real value of the sub judice principle. But they also know that the
convention can only survive if judges do not constantly tread on the toes of the
general public. This realization stimulates a kind of institutional hesitancy which is
a good safeguard against judicial activism ‘gone wild’. The conventions give the
judiciary a certain responsiveness to the resilience of the democratic bodies. This
contributes to the legitimacy of the constitutional function of the courts. And
moreover, it fits with the recognition that the independence of the judiciary cannot
only exist as a result of ‘tough’ principles in the Constitution, but must also be
cherished from within the judiciary itself and respected outside it. Vulnerable
conventions are a continual reminder of this. This does not just concern what is laid
down in the Constitution, but more in particular about how sturdy the conventions
remain.
References
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A Matter of Politics, Democracy or Compensating Strategy. Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 66:399–413
Barkhuysen T, Den Ouden W, Schuurmans Y E (2012) The Law on Administrative Procedures in
the Netherlands. NALL, http://www.nall.nl/tijdschrift/nall/2012/06/NALL-D-12-00004
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Boogaard G, Uzman J (2018) Commentaar op artikel 120 van de Grondwet. In: Hirsch Ballin E M
H, Leenknegt G (eds) Artikelsgewijs commentaar op de Grondwet. https://www.
nederlandrechtsstaat.nl/module/nlrs/script/viewer.asp?soort=commentaar&artikel=120
Bossers G F M (1987) Welk eene natie, die de jurij gehad heeft, en ze weder afschaft! De jury in
de Nederlandse rechtspraktijk 1811–1813. Eburon, Delft
Bovend’Eert P P T (2000) Benoeming en ontslag van rechters. Kluwer, Deventer

Bovend’Eert P P T (2008) Rechterlijke organisatie, Rechters en rechtspraak. Kluwer, Deventer
Bovend’Eert P P T (2015) Terugkerend rumoer over benoemingen door de regering en de Tweede
Kamer. Nederlands Juristenblad 2015/90:94–101
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Verloren, Hilversum, pp 229–256
De Roos Th A (2013) Democratischer strafrechtspraak? De betekenis van de inbreng van leken,
Ars Aequi, 7(8):560–565
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het rechtersambt in Nederland en in de Amerikaanse deelstaat New York. Gouda Quint,
Arnhem
Efthymiou N S, De Wit J C (2013) The Role of Dutch Courts in the Protection of Fundamental
Rights. Utrecht Law Review 9(2):75–88
Gommer H (2008) Onder de rechter. Wolf, Nijmegen
Group of States against Corruption (2012) Evaluation Report Netherlands. https://rm.coe.int/
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Hoekstra J (2017) De rechter kan tegen een stootje, ja zelfs tegen een beuk, maar behoeft zich
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120 G. Boogaard
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the Separation of Powers. In: Ten Napel H M T D et al (eds) The Powers That Be. Rethinking
the Separation of Powers. Leiden University Press, Leiden, pp 295–319
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Non-political Appointments. Law and Society Review 24(3):745–780
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Geerten Boogaard is Assistant Professor in Constitutional Law and holds the Thorbecke Chair in
regional law and politics at Leiden Law School. He published extensively on the constitutional
role of the judiciary and on (local) democracy. His current scholarship can be divided into two
strands: decentralization and the evolution of a political question-theory in Dutch case law.
Chapter 6
‘… destroy all sense of dependence’: On
the Selection and Independence
of the Judiciary in Norway
Eivind Smith
Contents
6.1 Introduction........................................................................................................................ 122

6.2 Constitutional Bipolarity?.................................................................................................. 123
6.3 The Norwegian Judiciary .................................................................................................. 125
6.4 The Judges......................................................................................................................... 128
6.5 The Independence of the Judiciary ................................................................................... 130
6.6 The Norwegian Judge as a Constitutional Judge ............................................................. 132
6.7 Judicial Appointment and Independence .......................................................................... 135
6.8 Selecting Judges with Constitutional Functions ............................................................... 136
References .................................................................................................................................. 139
Abstract Notwithstanding its bicentennial system of judicial review, the consti-

tutional system of Norway does not seem to justify a shift from a triangular to a
bipolar perspective. In the single-tiered judicial system, the courts have competence
in any legal matter, including administrative and constitutional law. Some lacunae
in the constitutional protection have not given rise to serious concerns about its
independence. However, judicial appointments by the executive give rise to some
particular questions. The author argues that appointment completely isolated from
the political branches of government, as sometimes advocated, undermines the
legitimacy of judges with a permanent status to undertake constitutional and other
norm-setting functions.
E. Smith (&)
University of Oslo, Oslo, Norway
e-mail: eivind.smith@jus.uio.no

https://doi.org/10.1007/978-94-6265-359-7_6
122 E. Smith

Keywords bipolarity career systems judges as norm-setters judicial devel-

opment of the law judicial review Norwegian Constitution of 1814 political

appointments precedent social trust Supreme Court of Norway the consti-
tution as positive law
6.1 Introduction
Within most constitutional democracies, the judiciary is regarded as the third

among three branches of government. At regular intervals, Parliament is exposed to
the evaluation of the electorate. In systems with elements of parliamentary gov-
ernment, the executive is responsible towards Parliament and indirectly, thus,
towards the electorate. By contrast, independence from the electorate as well as
from the other branches of government is generally regarded as a prerequisite for a
judiciary able to conveniently fulfil its tasks.
The requirement of independence applies, of course, towards the parties of any
cases submitted to judicial decision-making. It applies both when the parties are
natural or legal persons belonging to the private sector and when public entities, the
legislative or executive powers included, as such are involved because the legality
or the constitutionality of their acts are challenged. In other words, the
public-private divide is immaterial to the basic requirement that both courts and the
individual judges act independently and in manners likely to make their indepen-
dence apparent to the parties as well as to the public at large.
Towards the legislative and executive powers, however, the quest for judicial
independence extends beyond the individual cases. If the judiciary constitutes one
of the prime institutions of the traditional trias politica, it appears in many ways as
the feeble part. Money and other resources essential for a proper administration of
justice come from the other state powers. In different ways, even the answer to
questions like who shall become or stay judges and what is their security of office
depend on them. They may well be tempted to use such sources of influence to
facilitate the realisation of their own views about how to apply and develop the law
in general as well as about the outcome in particular cases in other ways than by
adopting or amending the Constitution itself and other legal norms enjoying
binding effect under the Constitution.
This way, the judiciary’s fundamental dependence on the political branches of
government may be detrimental to the freedom of judges to adopt the solutions they
find most suitable in a society governed by law. In legal systems where the judiciary
has the power to curtail the interests of the other state powers by setting their proper
acts aside on constitutional or other grounds, the risk of undue influence may
increase further.
Norway counts among the states where the judiciary enjoys similar powers. In
contrast to the numerous polities that have established special institutions for
constitutional affairs, namely constitutional courts, however, the task of judging the
constitutionality of formal legislation and other acts of Parliament belongs to courts
6 ‘… destroy all sense of dependence’ … 123
of general jurisdiction. The present essay will pay particular attention to some of the
questions that the inclusion of constitutional jurisdiction in the overall judicial
capacity is likely to give rise to.
This chapter will first offer a paramount look at the role of the judiciary in the
constitutional system of a country (and a part of the world) impregnated by a high
level of social trust (Sect. 6.2). Turning to the legal-institutional pattern, the
Norwegian judiciary and its judges will be introduced (Sects. 6.3–6.5). The
remaining parts of the chapter (Sects. 6.6–6.8) will be devoted to the appointment
of judges with constitutional and other norm-setting functions as a possible aspect
of the independence of the judiciary.
6.2 Constitutional Bipolarity?
Traditionally, we study constitutional systems as a triangle. This inaugural volume

of the European Yearbook of Constitutional Law, however, purports to study
judicial independence as a prerequisite for ‘the proper functioning of bipolar con-
stitutionalism’.1 This responds to the suggestion that a bipolar constitutional model
is actually emerging.2
The adjective bipolar may carry different institutional designs. Immediately, it
seems to point at a system with just two key players, opposing the judiciary to the
political branches of government. Even if the different systems of triangular sep-
aration of powers around the world rarely function according to the recipes of
Montesquieu and some other thinkers, however, it seems exaggerated to talk about a
general shift from a triangular to a bipolar approach to constitutional systems. In
most countries of a somewhat democratic character, important elements of power
sharing still operate between the legislative and executive branches of government.
At the same time, no judiciary comes close to equalising the two other state powers’
functions to set norms and ensuring that they are generally observed. There is a
powerful move in many European states towards conferring important
decision-making functions on independent administrative agencies more or less
sheltered from day-to-day politics without being parts of the judiciary. Similar
developments in the EU further underpin doubts about the sustainability of a purely
bipolar understanding of the distribution of public power.3
Against this background, it seems that a concept about bipolarity has more to it if
used in a way ‘essentially’ meaning that judicial review of both legislation and
executive acts form part of the relevant system of government.4 The appearance of
1
Editor’s guidelines. As current literature tends to use the word ‘constitutionalism’ in different
ways that are not always made apparent, it will not be further called upon in this chapter.
2
For a prominent example, see Koopmans 2003, pp 248–251.
3
See for instance Trondal 2012.
4
Van der Schyff 2010, p 5.
124 E. Smith
specialised constitutional courts in a large number of political systems in Europe

and beyond after the end of World War II, in Europe supplemented by powerful
international courts, seems to be the factor that has most heavily inspired the
formation of the concept. Many of these institutions have adopted less deferential
attitudes when reviewing statutes and other fruits of political action than those that
used to prevail in most of our societies.
To what extent could the constitutional system of Norway be characterised as
bipolar? Insofar as we use the presence of judicial review as the key criterion, it
seems to fit well; in fact, review of both administrative and legislative acts has been
around for two centuries, i.e. since the very first years following the adoption of the
Constitution (1814). It should be noted, however, that judicial review remains with
the ordinary courts with no institutional specialisation and that the numerical
importance of such cases remains remote.
When it comes to understanding the role of the judiciary within the relevant trias
politica, however, it is worthwhile taking into account that Norway, like its
Scandinavian neighbours but different from most other parts of the world, enjoys a
very high level of social trust towards other people as well as political institutions.5
The resulting social climate helps understanding why discussion and compromise
are often preferred to clear-cut antinomies in political decision-making and that
legislation is generally preferred to judicial action. Few would regard courts as
prime political actors in a way likely to justify recourse to a bipolar perspective on
the system at large.
This observation fits even in the field of human rights. Deliberate political action
during a century or more in the form of ordinary legislation and appropriate
financial measures adopted by virtue of the Constitution provides the core expla-
nation for the comparatively high level of rights’ protection. It is true that Norway’s
extensive adherence to international covenants and its recent adoption of a quite
updated catalogues of human rights in the Constitution (2014) have given rise to an
increasing number of court cases. But their outcome rarely appears as dramatic
from a political point of view. Frequently, the cases boil down to questions about
the interpretation of statutory law in the relevant field within the limits laid down by
the Constitution or relevant treaties. In short, thus, the Norwegian system of gov-
ernment does not seem to fit into an image of the judiciary as one of only two (sets
of) key players.
There are nevertheless no reasons to presume that the judiciary may not be called
upon in cases of tension or conflict with political connotations, nor that violation of
fundamental rights may never be perpetrated by public authorities. The increasing
heterogeneity of modern western societies and the political responses to it con-
tribute to substantiate the memento. Whatever overarching concept one chooses as a
point of departure, we thus cannot avoid addressing basic questions about judicial
5
See for instance Ortiz-Spinosa and Roser 2017 and OECD 2017, Fig. 3.14.
independence and accountability. The following remarks regarding Norway will

cast a particular eye on the importance for such questions as prerequisites for proper
review of political and administrative action.
6.3 The Norwegian Judiciary
The long period when the rulers of the ancient kingdom of Norway sat in
Copenhagen has been qualified as the ‘400 years’ night’.6 From 1661,
Denmark-Norway was ruled by one of Europe’s most absolute monarchies, fol-
lowing the King’s successful exclusion of the high nobility from formalised
political power. Breaking up from the double monarchy, the 1814 Constitution of
Norway opted for a constitutional monarchy as a critical part of the new state
institutions. In Denmark, l’ancien régime remained until the adoption of the
country’s first modern constitution in 1849.
According to the new constitution of Norway, pre-constitutional legislation
should remain in force until replaced by statutes adopted by virtue of the new
procedures. Their applicability, however, depended on their substantive conformity
with the new basic law. In the last resort, it thus became for the judiciary to decide
on the conformity of a contested legal norm with the Constitution. This way, one of
the precursors for the following emergence of a general system of judicial review
was established.
In other ways as well, the Danish-Norwegian legal heritage impregnated the first
steps of the new constitution apparatus of Norway. In the absence of a separate
university, for instance, the judicial staff held diplomas from the University of
Copenhagen. Only little by little, appointees trained at the Royal Frederik’s uni-
versity (since 1939 known as the University of Oslo), established a few years before
the adoption of the Constitution (1811) were at hand for gradually taking over the
judiciary. For similar reasons, the bulk of the legal literature remained
Danish-Norwegian with a clear pre-eminence for books and other publications
printed in Copenhagen.
Starting its activity (1815) more or less from scratch, even the Supreme Court of
Norway followed in the footpaths of the Copenhagen-based apex court,7 an insti-
tution that was established simultaneously with the absolute monarchy (1661) and
actually remains the World’s oldest of its kind. This makes it important to under-
score that the monarchy’s absolute character did not stand in the way for the
Supreme Court of Denmark-Norway to gradually conquer a high degree of de facto
independence from the royal power in the name of which it decided.8 During the
6
The expression, forged by the playwright Henrik Ibsen during the nation-building years of the
late 1800s, has been contested by historians.
7
Cf. Langeland 2005.
8
Cf. Christensen et al. 2015.
126 E. Smith
last decades of absolutism, it even started to review the legality of administrative

acts by virtue of royal consents formally needed, but almost systematically granted.
The fact that specialised collegiums of civil servants that were not necessarily of
noble origin but increasingly chosen for their skills, run the administrative appa-
ratus largely facilitated this development. In fact, the Supreme Court was one of
these collegiums. Together, they administered justice and most other matters in the
name of absolute monarchs who were not always devoted to the dull task of
exercising their power and sometimes even squarely insane.
This way, the Supreme Court of Norway emerged from an institution already
enjoying a considerable degree of independence as a court. In addition, the
Constitution of 1814 formalised the guarantee of independence that a judge was
ensured to keeping his office unless a court decided otherwise. This guarantee was
important even if it was enjoyed not only by the judges, but by a number of other
high civil servants appointed by the King in Council.
In the absence of particular provisions on the independence of the judiciary, its
position as one of the key creatures of a new constitution that (unlike most others in
the epoch of the bourgeois revolutions) succeeded in founding a new political
regime,9 no doubt contributed to enhancing its strength as an independent actor. In
fact, the Constitution of 1814 rapidly established itself as a positive symbol for the
nation.10
It is true that the distribution of the branches of government between separate
chapters in the Constitution reflects the basic trias politica. By substance, however,
the text only carries remote testimony to the comparatively strong status of the new
judiciary. In fact, Chapter D on the judiciary was – and remains – rather succinct,
and most of its few provisions dealt with the specialised court for judging ministers,
etc. in the first and last instance (Riksretten, the National Court). The key element
regarding the ordinary courts was the establishment of a single instance for deciding
in the last resort.
Determining that the Supreme Court has the last word, the Constitution
explicitly presupposes the existence of lower courts. Within this framework, the
judicial system is organised by virtue of ordinary statute. Somewhat simplifying, it
now consists of three levels where some 60 first instance courts and 6 regional
courts of appeal join the supreme instance. An extensively oral procedure places the
bulk of responsibility for the preparation of the cases on the parties – in practise,
thus, on their attorneys.
Appeal to the Supreme Court requires leave from an Appeals Committee
composed of three members of the Court that serve for a few weeks in a row. Since
9
Among several hundred constitutions adopted during the last years of the 18th and the first years
of the 19th centuries, only few actually succeeded in constituting a new state and/or a new political
regime.
10
On the symbolic functions of constitutions, see Smith 2012c, pp 767–795.
2008, leave is granted in principle only if the case raises questions of importance
beyond the case itself or is regarded as particularly important for other reasons. This
way, its role as a court of precedent instead of as a supreme court of appeal
supposed to correcting misled choices by inferior instances is emphasised to a much
higher degree than during the first couple of centuries of its existence.11 In
accordance, the number of judgments handed out on the merits of the case (as
opposed to decisions on procedure, etc.) has considerably diminished; in 2017, for
instance, only 71 civil and 50 criminal cases were heard in chamber.12
By establishing a single Supreme Court, the Constitution indirectly closes the
door towards establishing judicial instances not submitted to the jurisdiction of the
apex instance, like administrative or constitutional courts. Instead, the jurisdiction
of the Supreme Court extends to all fields of the legal order not explicitly
exempted.13 The lower courts possess the same broad powers of adjudication as the
Supreme Court itself. In principle, no court is specialised in particular legal matters,
and the members of each court circulate at short intervals between all kinds of
lawsuits in a way supposed to keep them updated on any kind of legal matters
(administrative, civil, criminal …).
Questions related to administrative and constitutional law are handled under the
auspices of either civil or criminal procedure with very few accommodations for the
specificity of such cases. For instance, someone convicted under criminal law may
claim his acquittal because applying the relevant sub-constitutional provision would
be contrary to the ban on retroactivity under Article 97 of the Constitution. In civil
proceedings, you might similarly sustain your case by arguing, for instance, that a
governmental decree has been adopted without the legal basis required by the
Constitution or that the measure could be applied only insofar as the right to
financial compensation in case of expropriation under Article 105 of the
Constitution is observed.
The Constitution was silent about what kinds of lawsuits should fall under the
jurisdiction of the Supreme Court as the last instance. The judiciary nevertheless
followed the path laid down by its Danish-Norwegians forerunners by reviewing
administrative acts, including those inherited from the absolute monarchy (see
above). Moreover, it started to review the constitutionality of legislation adopted by
virtue of the new Constitution (see further Sect. 6.6 below).
11
For a comparative look at the doctrine of precedent in Norway, see Eng 2000.
12
Supreme Court of Norway 2017.
13
In addition to the provisions on the National Court, Articles 55 and 64 of the Constitution,
which confer the resolution of disputes over parliamentary elections to Parliament, provide
examples.
128 E. Smith
6.4 The Judges
Many European countries entertain formal career systems for judges of different
kinds. Such systems typically enrol new judges at their exit from the relevant law or
professional school and administer their career during most of their professional
life, possibly all the way up to a position within the supreme instance. In order to
avoid the kind of dependence of the judges that would too easily follow if such a
system were run or supervised by the executive alone, those tasks are frequently
carried out by some kind of ‘supreme judicial councils’ with a high degree of formal
independence from the other state powers.
Formal career systems are typically supposed to produce judges with a high level
of legal-technical skills in the relevant fields of law. By contrast, they are com-
monly regarded as less well fitted for providing judges with experience from other
fields of the society or from the political life. This has served as one of the main
arguments for recurring to other procedures for the selection of members of con-
stitutional courts, typically including elements of openly political appointments.
While Denmark and Sweden entertain different versions of judicial career sys-
tems, no similar system has ever existed in Norway. Instead, permanent judges are
appointed by the King in Council (at present, thus, de facto by the government)
upon advice from the Minister of justice. Over time, this has contributed to keeping
the selection relatively open. New judges have typically been appointed at the age
or 40 or beyond, after having served in other sectors of the society, such as the
public administration, the police or prosecution departments and law firms.
Sometimes, local or appellate judges apply for and obtain positions in a higher
instance, but relatively few members of the appellate and supreme instances are
chosen among judges at lower levels. In particular, most new members of the
Supreme Court are picked from outside the judiciary, and throughout most of the
19th and the first part of 20th centuries, its membership counted persons with a
distinctive political or academic past.14 Together with the founding character of the
Constitution, this profile certainly contributes to explaining the development of
constitutional justice in Norway several decades before similar phenomena
appeared in other parts of Europe.
This opening towards the political world stricto sensu was not systematically
used, however, for picking judges sympathetic to the political views of the gov-
ernment in a way similar to those best known from the federal judiciary in the USA.
Notwithstanding a few exceptions, the point is rather that quite a few of the
Supreme Court judges throughout history have been involved in political or other
societal activities before entering the bench in a way that must have influenced their
attitude as judicial actors towards the political branches of government.
That pattern is now changing, however. In fact, the last member of the Supreme
Court with a distinctive political past at National level, actually a former minister of
justice, left the Court some 30 years ago (1990).
14
Cf. Langeland 2005 and Sandmo 2005.
The movement is further enhanced by the establishment of an independent

administrative body charged with selecting new permanent judges at all three levels
(except the position of president of the Supreme Court). In operation since 2002, the
collegium holds seven members including three judges, one practising lawyer, one
legally trained civil servant, and two people not trained as lawyers, all appointed by
the King in Council. When a position as permanent judge is open, it presents a
prioritised list of applicants to the Ministry. As the Constitution confers the power
of appointment to the King in Council, the government is free to choose another
name than the one ranked first by the administrative body. Should it consider
appointing someone not already ranked, however, it must first invite the collegium
to consider the relevant candidate. With a few exceptions regarding the choice
between a man and a woman, however, the position always goes to the top name on
the list.
Under the present system, thus, the task of selecting new judges has effectively
been taken away from the minister carrying the political responsibility and handed
over to a group of people where judges and other legally trained members outweigh
the ‘popular’ element by five to two. The remote possibility of active parliamentary
control ex post in such matters set aside, Parliament has no say.
As mentioned, systems where new members of the judiciary are selected by
independent administrative bodies with a strong presence of people already
admitted to the bench first developed as a part of formal career systems. For the
selection of members of specialised constitutional courts, however, no career sys-
tem takes care of the recruitment, as judicial action in the field of constitutional law
and by necessity, thus, in that of politics lato sensu is commonly thought to require
or at least to legitimise other procedures of selection than those established for the
management of formal career systems. Leaving it to collegiums dominated by
members of the legal professions or by their colleagues-to-be to select new judges
would quite evidently lack the legitimacy required for selection according to
political considerations.
In systems where ‘ordinary’ courts exercise constitutional functions, similar
techniques would hardly be better suited for safeguarding that sufficient attention is
paid to elements like broad socio-political experience and a credible equilibrium
between political currents. In Norway, the judiciary precisely exercises such
functions, with the Supreme Court as the final instance. Moreover, permanent
judges are appointed for the rest of their professional life, i.e. until the general age
of retirement fixed by law. In such systems, it is far from obvious that the need of
judicial independence towards the executive requires that judges are selected in
complete isolation from the political branches of government. Neither could we
take for granted that selection in the hands of independent bodies constructed with
an aim of widening the distance between legal and political institutions is best
suited for ensuring the judges a sufficient degree of legitimacy for tasks like
reviewing acts of Parliament.
130 E. Smith
6.5 The Independence of the Judiciary15
Throughout the first 200 years, the Constitution of Norway held no general clause
on the independence of the supreme and other courts. Instead, the main provisions
of relevance for the independence were common to judges and other kinds of high
civil servants, university professors, etc. As already mentioned, the particular status
enjoyed by high civil servants appointed as embetsmann implies that before
reaching the general age of retirement fixed by statute, a judge may involuntarily
lose his or her position only by virtue of a court order.16 For members of the
Supreme Court, the order must be issued by the National Court (Riksretten, see
above), an event that has never been close to materialise.
Other items critical for the protection of judicial independence, such as a ban on
reduced salaries in the course of the mandate or the certainty of a decent pension
level after retirement, however, have never been addressed by the Constitution of
Norway. In a comparative perspective, thus, the formal protection is far from being
complete.
The legal situation may have somewhat changed with the inclusion of a new
constitutional provision in a package of human rights provisions adopted at the
Constitution’s bicentennial in 2014. According to Article 95, ‘everyone has the
right to have their case tried by an independent and impartial court within rea-
sonable time’.17 Together with its second part on ‘fair and public’ legal proceed-
ings, the text obviously represents an adaptation of Article 6(1) of the European
Convention on Human Rights. In that sense, it may not be qualified as genuinely
new in the domestic law, as Norway has been a party to the Convention from the
very beginning and made it directly applicable en bloc at statutory level in 1999.
The similarity between the two provisions is not perfect. In one direction, the
constitutional clause extends the right to justice beyond ‘civil rights and obliga-
tions’ and ‘criminal charge’. By contrast, it limits the right to have your case tried to
‘courts’ only, thus seemingly excluding a number of administrative complaints
bodies and other tribunals that no doubt satisfy the basic requirements about
independence and impartiality under Article 6 of the Convention. The legal
implications of such differences remain unclear.
What remains, however, is that for the first time since Article 1 on National
independence was adopted in 1814, the Constitution of Norway now consecrates
the word independent (uavhengig). But it is far from clear that this step strengthens
the formal independence of the judiciary. In fact, the catalogue of human rights of
15
On the independence of judges with a particular eye on Norway, see Engstad et al. 2014.
16
Articles 21 and 22(2) of the Constitution.
17
The Constitution of the Kingdom of Norway 2018, https://lovdata.no/dokument/NLE/lov/
1814-05-17/ (unofficial translation). Accessed 1 March 2019.
which it is a part was adopted under Parliament’s clear presupposition that its aim
was to strengthen the formal status of the human rights selected by ‘exposing’ them
in the text of the Constitution without extending a level of protection that had
already been realised in domestic law by other means.
Whatever the signification of the new provision might be, the existing lacunae in
the constitutional protection of judicial independence has not given rise to major
concerns in a system where the personal independence of judges has never been
challenged by financial means. In fact, nobody seems to claim that the indepen-
dence of the judiciary is under serious threat.18For instance, none of the papers
presented in an anthology prepared at the occasion of the 100th anniversary of the
Norwegian Association of Judges is devoted to particular concerns regarding the
independence of the judiciary in Norway.19 To the contrary, the ideology under-
pinning judicial independence seems firmly rooted with the judicial professions as
well as in the Norwegian society in general.
The adoption of measures further restricting the possibility for judges to take up
non-judicial tasks is likely to further enhance their image of independence during
the last few decades. An official register that makes publicly available information
about the judges’ commercial and other personal interests supplements the
measures.
In the same direction, disciplinary complaints against judges are now handled by
an independent administrative collegium of two judges, one practising lawyer and
two ‘representatives from the public’, all appointed by the King in Council.
Established in 2001, the institution may issue disciplinary sanctions when a judge
‘either wilfully or negligently breaches the obligations that are incumbent on the
position or otherwise acts in breach of proper conduct of judges’ under the current
legislation and a number of ethical principles for judicial conduct. However, the
possible sanctions only extend to ‘warnings’ and ‘critical assessments’. So far, few
complaints have been successful; in 2016, for instance, only two ‘critical assess-
ments’ were issued. More importantly, complaints regarding case processing,
decisions and assessments made by judges as well as the content of judicial deci-
sions fall outside the collegium’s scope of action.20 In conformity with basic
requirements of judicial independence, such questions can only be addressed by
way of appeal to a superior court.
18
Of course, the statement about the absence of ‘serious threats’ does not exclude that a number
of other concerns merit discussion. See further in the anthology published in Norwegian at the
occasion of the centennial of the Norwegian Association of Judges (Engstad et al. 2012), including
Smith 2012a (on the use of short-term appointments for filling vacancies, including the use of
retired judges in short-term positions within the collegial formations of the courts of appeal).
19
Engstad et al. 2014.
20
The Supervisory Committee for Judges 2016.
132 E. Smith
6.6 The Norwegian Judge as a Constitutional Judge21
As already noted, the Norwegian judiciary holds general jurisdiction including

juridical review of statutes. Because the appointment of judges with constitutional
functions may give raise to particular questions regarding independence, an over-
view of the development of the Norwegian system of judicial review of legislation
seems appropriate.
The Norwegian system is actually the World’s oldest next to that of the United
States of America. Both systems emerged with no explicit basis in the text of the
Constitution. In Norway, this gradually happened after the adoption of the
Constitution, and one had to wait a few years only (1821) before the Supreme Court
started referring to the Constitution22 as a seemingly decisive argument for solving
issues at stake. Most fundamentally, this implies acceptance of the Constitution as
positive law.23
Even if the number of cases was limited in a society where the legislative activity
was sparse and therefore created few opportunities for constitutional litigation, the
following decades provided several.24 Some of them sparked public debate as early
as in the 1840s.25
Departing from a situation where the opinions of the Supreme Court were kept
secret, individual public voting with the obligation for each member to give reasons
for his vote was imposed by a statute adopted in 1863. The aim was to increase the
Court’s accountability in the aftermath of a number of controversies over its
jurisprudence in constitutional and other matters.26
Shortly afterwards (1866), the first case appeared where the Supreme Court ruled
against the government on the basis of reasons discussing and justifying its own
power to review.27 According to Court President Lasson speaking for the majority,
established doctrine implied that the Constitution must be preferred when the rel-
evant constitutional and statutory provisions cannot apply simultaneously.28 This
way, he not only confirmed the hierarchical character of the legal system as such,
21
In English, see Smith 2018 and Kierulf 2018. In Norwegian, the literature on the past
and present of judicial review is extensive.
22
Since the very beginning, the generally framed non-retroactivity clause in Article 97 has
constantly been the constitutional provision attracting the highest number of court cases.
23
On the emergence of the Constitution of Norway as positive law, see Smith 1999.
24
On the emergence of judicial review of legislation in Norway, see namely Holmøyvik 2007;
Kierulf 2018; Langeland 2005 and Smith 1993.
25
Slagstad 1995 and Langeland 2005.
26
Cf. Langeland 2005, pp 369 ff.
27
UfL 1866, p 165 (Wedel Jarlsberg) on a question of non-retroactivity.
28
It is no surprise that Lasson’s core reasoning leans heavily on a kind of hierarchical argument
close to those called upon by US Chief justice Marshall in the famous Marbury v Madison case
(1802).
but implicitly reaffirmed the Constitution’s character as positive law as a prereq-

uisite for judicial review.
The empoisoned question about the personal union with Sweden was brought to
an end by Norway’s unilateral breaking out in 1905. This left considerable room for
government to enhance its activity regarding economic and social affairs. The
frequency of constitutional case law increased correspondingly, and the Supreme
Court set aside a number of legislative provisions as unconstitutional during a few
years from 1909. This jurisprudence sparked growing political reaction, and the
Supreme Court took a step back in a much-commented case in 1918.29
To some extent, the period appears as a Norwegian version of a ‘New Deal’
battle almost two decades before the far better known conflict between US
President Roosevelt and the Supreme Court unfolded in the 1930s. In any case,
however, what has often been regarded as a period of judicial activism eventually
evaporated during the next 20 years. During the ‘everyone together’ reconstruction
period after the end of the German occupation (1940–1945), no piece of legislation
was set aside on constitutional grounds. In some cases, it may rather be argued that
the Supreme Court gave too much leeway to Parliament.
Arguably, a judgment handed out in 1976 was the first instance after World
War II where the Supreme Court set a piece of legislation aside on constitutional
grounds. The relevant statutory provision was adopted with the aim of reducing the
level of ‘full compensation’ in cases of expropriation according to Article 105
compared to the level established by previous case law in the absence of relevant
legislation.30 The issue had been heatedly debated in the society at large. Within the
Supreme Court itself, the judges, sitting in plenary, split in two almost equal
fractions about the constitutionality of the contested provision.
When deciding against the government, however, the majority presented the
outcome as an instance of constitutional-conform interpretation rather than as an
open setting-aside. Moreover, the fractions joined in introducing a doctrine about
setting aside legislative provisions in cases only where the understanding of the
Constitution on which Parliament had based its adoption of the relevant statute falls
outside the scope of ‘reasonable doubt’. Both elements convey an impression of
care for avoiding confrontation with Parliament.
More than 40 years later, the climate regarding judicial review has changed
considerably. After a number of precursors, including a 2007 case on property
rights,31 the shift in judicial attitude strikingly appears in three plenary cases
adjudicated in 2010. In the first one, the key issue was the retroactive character of
new legislation regarding taxation in a case the outcome of which would entail huge
financial consequences either for a limited group of ship-owners or for the
29
Supreme Court of Norway, ‘den store konsesjonssak’, 19 October 1917, Rt. 1918, p 1.
30
Supreme Court of Norway, ‘Kløfta’, 27 January 1976, Rt. 1976, p 1.
31
Supreme Court of Norway, ‘tomtefeste III’, 21 September 2007, Rt. 2007, p 1308. On the
recent history of the Supreme Court of Norway, see Sunde 2005.
134 E. Smith
government.32 In the second, the Court was faced with legislation that opened up
for using parts of the fortune allotted to church affairs in a way deviating from those
authorised by a constitutional clause unaltered since 1814.33 In the final case, the
key question was the constitutionality of applying penal law on war crimes and
crimes against humanity on acts committed years before the relevant provisions had
been adopted (Yugoslavia in the early 1990s).34
In all three cases, Parliament had devoted considerable attention to the consti-
tutional aspects of the reform. The Court nevertheless decided against the gov-
ernment in all of them. This happened under sharp dissents while nevertheless
qualifying the relevant provisions as ‘clearly’ or ‘manifestly’ unconstitutional.
Visibly, the caution apparent in the 1976 opinions and other cases has faded away.
The change seems clearly interiorised by a majority of the members of the Court
at least. Not surprisingly, however, tensions sometimes permeate from within the
Supreme Court itself about which stance to adopt towards Parliament as the highest
detainee of popular sovereignty. Tensions even appear in some of the cases adju-
dicated on the basis of the Constitution’s extended bill of human rights (2014). If all
agree that the new provisions should be used as positive law, full agreement on
what judicial attitude to adopt does not seem established. Should the Court, for
instance, depart from the relevant legislation and intervene only when needed for
avoiding outcomes that it finds unconstitutional, or rather draw the outcome directly
from the Constitution?35 The question is important, of course, because reasoning by
way of ‘principle’ would tend to extend the judicial freedom of appreciation more
than reasoning primarily with an eye on the relevant pieces of legislation, in
accordance with the inherited approach in Norway.
The relative weight judges allot to the tasks of clarifying the law or ‘developing’
it may even reflect the position they adopt on the scale between ‘principle’ and
‘statute’. By way of interpretation, ‘balancing’, etc., the judiciary cannot avoid
determining the meaning of the law they are supposed to apply in each case. But the
function of developing the law may be cultivated in different ways. A deliberately
active role necessarily implies that the judiciary takes part in the law-making power
that the Constitution otherwise confers on the legislative and executive branches of
government.
According to the mission, it has defined for itself, the ‘main function of the
Supreme Court of Norway is to ensure clarity and development of the law’.36 As a
chief task of the system’s apex court, clarifying the law is not surprising. As
interpretation necessarily commands a minimum of creative activity, one may even
32
Supreme Court of Norway, ‘rederiskatt’, 12 February 2010, Rt. 2010, p 143.
33
Supreme Court of Norway, ‘Opplysningsvesenets fond’, 12 May 2010, Rt. 2010, p 535.
34
Supreme Court of Norway, ‘krigsforbrytelse’, 3 December 2010, Rt. 2010, p 1445. On the
2010 cases, see Smith 2011, pp 180–190 and Smith 2012b, pp 577–578.
35
For a telling example, see Supreme Court of Norway, ‘Maria’, 29 January 2015, Rt. 2015, p 93
on the legality of expulsing a Nigerian woman whose small daughter had obtained Norwegian
citizenship.
36
Supreme Court of Norway 2018.
regard clarification and development of the law as identical features. The more the
task of ‘developing’ the law is stressed as an autonomous or even primary task,
however, the supreme instance takes upon itself an eminently political function.
This makes advocacy of judicial development of the law by some Supreme
Court judges even more interesting. For example, one of them has stressed that ‘the
Court is prepared to apply a contemporary perspective to constitutional adjudication
– the Constitution is not dead, it is alive’.37 In other words, thus, the basic law
would be dead if the judges did not insufflate life according to their own ideas about
what would fit the societal needs at the time of adjudication. Not surprisingly, the
most outspoken advocate of a dynamic approach to constitutional interpretation has
spent most of his pre-judicial career publishing on the jurisprudence of the
European Court of Human Rights.38
Even if the bulk of jurisprudence does not necessarily bear testimony to
adherence to a deliberately dynamic stance by a plurality within the Court, a similar
attitude nevertheless seems adopted in a number of recent cases. Suffice it here to
mention the Acta judgment handed out in 2014.39 In short, the reason why it has
sparked debate is that the Court preferred deducing the outcome from a general
‘principle’ of the Constitution in a case where the relevant statutory provision
(regarding criminal procedure) in itself might have provided a clear and perfectly
defendable answer.40
6.7 Judicial Appointment and Independence
In the absence of serious concern over the independence of the judiciary in con-
temporary Norway (see Sect. 6.5 above), possibly negative effects on judicial
independence of keeping judicial appointments with the executive is nevertheless
ventilated in the current debate in and around the judiciary itself.41
Whatever system is used for the selection of new judges, genuine dependence
may result from pressure against someone who, for instance, has accepted a bribe.
We must therefore turn to other possible effects of preferring one kind of recruit-
ment system to another.
Appointment systems likely to influence the independence of those appointed
are easy to design. Renewable terms provide evident examples; in extreme cases (as
in some extra-European polities), the future career of a judge even depends on
37
Bårdsen 2017.
38
See further Smith 2017.
39
Supreme Court of Norway, 24 November 2014, Rt. 2014, p 1105.
40
See further Kinander 2016.
41
A governmental commission appointed in 2017 is currently discussing whether the adminis-
tration of the judiciary should turn to an even stronger version of encapsulation from the political
branches of government; see also www.domstolkommisjonen.no. Accessed 1 March 2019.
136 E. Smith
re-election by popular vote. Appointment for a fixed term or until a general age of
retirement, like in Norway, does not give rise to the same kind of concerns. In
general, we may even suggest that insofar as permanent and secure judicial posi-
tions are not for sale, the way you are selected will not influence your independence
on the bench.
This implies that there is no reason to think that judicial nomination or election
by a political body (like Parliament or the government) in itself makes the judge
dependant on the person or the political party that had the decisive word in the
selection. The status and position once installed on the bench is far more important
than the way the judges arrived there. For the ‘judiciary department … the per-
manent tenure by which the appointments are held … must soon destroy all sense of
dependence on the authority conferring them’.42
That your independence primarily depends on where you stand, not on where
you come from does not contradict, of course, that our previous personal experi-
ences may influence the way we think. However, such influences do not equalise
being dependent of someone else than yourself. A high-profiled judicial actor like
late Justice Antonin Scalia of the US Supreme Court may serve as an example.
Knowing his way of reasoning frequently gave some hold on his position in
upcoming cases. Nobody would seriously claim, however, that his opinions were
due to some kind of dependence on the authority that appointed him or on the
political party (the Republicans) to which the appointing person (actually, president
Reagan) belonged. What Scalia was dependent on, was his own convictions about
how to interpret the Constitution, and so on. Dependence on oneself could not
possibly be in conflict with our ideals of the rule of law.
6.8 Selecting Judges with Constitutional Functions
Adopted on the bicentennial of the Supreme Court (2015), the first constitutional
clause on the bicentennial system of judicial review may contribute to comforting
the re-established self-confidence of the Court in the field of constitutional law.
Article 89 reads as follows: ‘In cases brought before the Courts, the Courts have the
power and the duty to review whether Laws and other decisions made by the
authorities of the State are contrary to the Constitution.’43 In conformity with the
inherited system, the provision makes clear that the judiciary cannot itself initiate
cases (‘brought before the Courts’), that ‘the power and the duty’ to review ‘Laws
and other decisions’ belong to courts at any level and that both statutory law, other
acts of Parliament and administrative acts may be reviewed. On the other side,
review of administrative acts on behalf of ordinary legislation is not spelled out
42
Madison 1961.
43
The Constitution of the Kingdom of Norway 2018, https://lovdata.no/dokument/NLE/lov/
1814-05-17/ (unofficial translation). Accessed 1 March 2019.
even if of far greater practical importance than review on constitutional grounds

only. This omission clearly disregards an uncontested part of the heritage. Luckily
enough, however, nothing leaves us to believe that this lacunae implies that this part
of the tasks of the Norwegian judiciary has been eradicated.
The provision’s most problematic element is that the text seems to indicate that
the scope of review is no longer the constitutionality of the application of the
relevant legal norms in individual cases (concrete review), but of those ‘laws and
other decisions’ as such. This way, it seems to establish (or confirm) a system of
abstract judicial review, an understanding that would uncontestably modify the
firmly established system of ex post review in Norway.
As the provision was adopted with the aim of making judicial review apparent in
the text of the fundamental law without changing the system itself, it must be
understood in light of the patterns appearing from jurisprudence throughout a
couple of Centuries. But these patterns are not immutable. To the contrary, the
Supreme Court of Norway now cultivates its role as a court of precedent much more
than in any former period and in a way marked by a growing appetite for ‘devel-
oping’ the law.
This tendency is enhanced by the judges’ growing willingness to issue general
statements about the law in their opinions far beyond what would be needed in
order to determine the relationship between the parties to the case. To the extent that
such statements are counted as more than pure obiter dicta, the recourse to this
technique tends to extend the norm-setting role of the Supreme Court beyond what
necessarily follows from its function as a court of precedent obviously in need of
giving meaning to legal provisions.
In any case, even genuinely concrete ex post review according to the inherited
system may indirectly have effects de facto close to those created by abstract norm
control. This appears most clearly in cases where the relevant provision concerns
only few subjects or the conflict may be situated somewhere in the middle of the
scope of the relevant norm, but even because the two other branches of government
in Norway invariably take account of Supreme Court rulings in a way lending them
a kind of erga omnes effect.
Together, such elements represent authoritative settling of general norms for the
polis in a way that cannot avoid making the Court an increasingly political actor.44
The political aspect of its activity is further enhanced when the norms pronounced
are of a constitutional kind, thus supposedly binding the hands of majorities in
Parliament that would otherwise be entitled to make and to change the law through
the adoption of statutory provisions.
Genuinely abstract norm review with general effect constitutes a prominent part
of the activities of specialized constitutional courts. Recalling that the Supreme
Court of Norway shares with such institutions the power to review legislation, some
of its own members have recently argued that it should be seen as a constitutional
44
For a political science perspective, see Grendstad et al. 2015.
138 E. Smith
court.45 However, a similar proposition tends to ignore (or omit) that members of
both constitutional courts and other courts with important constitutional functions
outside Norway are selected in ways that leave considerable freedom of appreci-
ation according to openly political criteria.46 Selection by Parliament, a combina-
tion of political bodies or a mixture of political and professional actors are typical
features.
Elements of open political appointments are commonly regarded not only as
legitimate but even as necessary for ensuring a sufficient level of legitimacy for
political actors even when swathed in a judges’ mantle. For almost 200 years, the
Constitution of Norway has given considerable leeway to the executive when
selecting new judges. Since 2002, however, an independent administrative body
established by statute and dominated by members of the legal professions effec-
tively selects nearly 100 per cent of new permanent judges for formal appointment
by the executive.
As mentioned, however, this reform has not stood in the way for leading
members of the judiciary to argue that the appointment system remains insufficient
for taking care of the independence of the judiciary. In support, recommendations
from different international bodies are frequently called upon. Most prominently, a
2010 recommendation from the Council of Europe’s Committee of Ministers pre-
scribes the establishment of a ‘Judicial Council’ at least half of the members of
which should be elected from within the judiciary.47 New judges should be
appointed by that council itself or by another body independent from the political
branches of government. If the formal appointment remains with the executive
power, like in Norway, the council should have the decisive word. In any case, the
selection should take place according to ‘objective criteria pre-established by law’
and in a way ensuring that candidates are not discriminated against in any way,
including on the basis of their ‘political or other opinions’.
An increasing number of European countries have established collegial bodies of
the kind initially developed for the management of formal career systems where
judges ought to be selected on more or less purely legal-technical grounds. None,
however, seems to have followed the Council of Europe’s recommendation when it
comes to appointing members of specialised constitutional courts, and the
appointees’ ‘political or other opinions’ are not regarded as foreign to the selection.
Even other judges vested with important constitutional functions in Europe
appointed on purely legal-technical grounds would be difficult to find.
We may here leave open whether professional encapsulating of the recruitment
process for the selection of members of jurisdictions with typical legal tasks (like
penal or family law) is wise in the long run for the judiciary itself. In this respect,
suffice it to mention the risks of creating or comforting an impression of a
45
See for instance Bårdsen 2015, commented upon by Smith 2017.
46
See for instance Stone Sweet 2012.
47
Council of Europe 2010.
self-sufficient judiciary and of mental streamlining along predominating states of

mind within the legal world itself.
In any case, a memento seems allowed because similar steps are not decisive for
ensuring a sufficient degree of judicial independence. According to European Court
of Human Rights jurisprudence, for instance, a multitude of different recruitment
systems may satisfy the requirements of independence according to Article 6 of the
Convention. More generally, thus, your status on the bench is more important than
where you come from (see Sect. 6.7 above).
The question thus becomes why Norwegian judges would enjoy a degree of
legitimacy for constitutional adjudication that is not recognised to ordinary ‘judi-
cial’ instances with members selected on the basis of their presumed legal-technical
skills elsewhere in Europe. To what extent may an insofar-as-possible ‘apolitical’
procedure for selecting new judges be justified in a situation where the Supreme
Court increasingly seems willing to take upon itself the eminently political task of
authoritative norm-setting, generally as well as in matters of constitutional law?
In the years to come, Norway might have to choose between a judiciary with
important constitutional and norm-setting functions comforted by a recruitment
system that is likely to ensure that societal experiences and political balance are
taken into account, and judges recruited on purely legal-technical grounds and
primarily focusing on the uncontestably important tasks as a legal-technical court
that has motivated the authors of the Council of Europe’s recommendation and
similar instruments. Should the future appointment system be constructed entirely
according to the Council of Europe’s and similar recommendations, it is hard to see
how a genuinely political profile for the Supreme Court could be defended.
References
Bårdsen A (2015) The Nordic Supreme Courts as Constitutional Courts. Main Features as Seen
From the Norwegian Perspective. https://www.domstol.no/globalassets/upload/hret/artikler-og-
foredrag/nordic-constitutional-courts—vienna-29102015.pdf Accessed 1 March 2019
Bårdsen A (2017) The Norwegian Supreme Court as the Guardian of Constitutional Rights and
Freedoms. https://www.domstol.no/globalassets/upload/hret/artikler-og-foredrag/supreme-
court—constitutional-rights—bardsen18092017.pdf Accessed 1 March 2019
Christensen J P, Erichsen J, Tamm D (2015) The Supreme Court of Denmark. DJØF Publishing,
Copenhagen
Council of Europe (2010) Recommendation CM/Rec(2010)12 of the Council of Ministers of the
Council of Europe. https://rm.coe.int/16807096c1 Accessed 1 March 2019
Eng S (2000) The Doctrine of Precedent in English and Norwegian Law. Some Common and
Specific Features. Scandinavian Studies in Law. Stockholm Institute for Scandinavian Law,
Stockholm
Engstad N, Frøseth A L, Tønder B (eds) (2012) Dommernes uavhengighet. Den norske
dommerforening 100 år. Fagbokforlaget, Bergen
Engstad N, Froseth A L, Tonder B (eds) (2014) The Independence of Judges. Eleven International
Publishing, The Hague
Grendstad G, Shaffer W R, Waltenburg E (2015) Policy Making in an Independent Judiciary. The
Norwegian Supreme Court. ECPR Press, Colchester
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Holmøyvik E (2007) Årsaker til utviklinga av prøvingsretten i Noreg og Danmark. Tidsskrift for
rettsvitenskap pp 718–779
Kierulf A (2018) Judicial Review in Norway. A Bicentennial Debate. Cambridge University
Press, Cambridge
Kinander M (2016) Fra tilbakeholdenhet til aktivisme: Nyere utviklingslinjer i forholdet mellom
rett og politikk i Høyesterett. Lov og rett 2016 pp 141–164
Koopmans T (2003) Courts and Political Institutions. A Comparative View. Cambridge University
Press, Cambridge
Langeland N R (2005) Siste ord. Høgsterett i norsk historie. Bind I, 1814–1905. Cappelen, Oslo
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Sandmo E (2005) Siste ord. Høyesterett i norsk historie. Bind II, 1905–1965. Cappelen, Oslo
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(ed) Constitutional Justice under Old Constitutions. Kluwer Law International, The Hague,
pp 81–112
Smith E (1993) Høyesterett og folkestyret. Prøvingsretten overfor lover. Universitetsforlaget, Oslo
Smith E (1999) On the formation and development of constitutional justice in a democratic
society. In: Marcusson L et al (eds) Festskrift till Fredrik Sterzel. Iustus, Uppsala, pp 289–305
Smith E (2011) Norway. Supreme Court strongly reaffirms supremacy of constitution by striking
down controversial legislative provisions. Public Law, London, pp 188–190
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(eds) Dommernes uavhengighet. Den norske dommerforening 100 år. Fagbokforlaget, Bergen,
pp 149–179
Smith E (2012b) Norway. Supreme Court on non-retroactivity of new legislation regarding crimes
of war. Public Law, London, pp 577–578
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(eds) Traité international de droit constitutionnel. Tome I: Théorie de la Constitution. Dalloz,
Paris
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Smith E (2018) Judicial Review of Legislation. In: Krunke H, Thorarensen B (eds) The Nordic
Constitutions. A Comparative and Contextual Approach. Hart Publishing, Oxford, Ch. 5
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of Comparative Constitutional Law. Hart Publishing, Oxford, Ch. 38
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Eivind Smith is Professor of Public Law at the University of Oslo. He has published extensively
in several languages on domestic and comparative public (administrative and constitutional) law.
He is a member of several learned societies and an honorary doctor in Denmark, France and
Sweden. Enjoying extensive international experience, he has chaired a number of commissions
appointed by the Norwegian Parliament, the government and other bodies and acts as chair of the
Norwegian tribunal on political party financing. Together with a number of articles in Norway and
abroad, he has recently published books on both administrative and constitutional law.
Chapter 7
Judicial Independence
and Accountability in the British
Constitution
Paul Daly
Contents
7.1 Introduction........................................................................................................................ 144

7.2 Independence ..................................................................................................................... 146
7.2.1 Security of Tenure .................................................................................................. 147
7.2.2 Financial Security ................................................................................................... 151
7.2.3 Institutional Independence...................................................................................... 154
7.3 Accountability.................................................................................................................... 161
7.4 Conclusion ......................................................................................................................... 166
References .................................................................................................................................. 167
Abstract The principal objective of this chapter is to describe the present state of
judicial independence and accountability in the British Constitution. The chapter
also takes, however, a critical view of Britain’s constitutional arrangements for
securing judicial independence and accountability, drawing on recent controversies
to demonstrate the potential frailty of these arrangements. Underlying the
description is a broader message, that Britain’s constitutional arrangements are best
understood as a series of pragmatic responses to such challenges as happen to arise
from time to time. Given the nature of Britain’s uncodified constitution, which is
neither supreme nor entrenched, the norms that exist in and constitute the British
Constitution do not lie, ultimately, in the hands of the judiciary. Significant con-
stitutional change can happen very quickly – as with the transformation of the office
P. Daly (&)
University of Cambridge, Cambridge, UK
e-mail: pd309@cam.ac.uk

https://doi.org/10.1007/978-94-6265-359-7_7
144 P. Daly
of Lord Chancellor. There is reason to fear, therefore, that the protection of norms
(including those of judicial independence and accountability) will be less robust
than in jurisdictions with a codified, entrenched, supreme constitutional document.

Keywords British Constitution financial security judicial accountability ju-

dicial appointments judicial independence judicial pensions security of tenure
7.1 Introduction
The principal objective of this chapter is to describe the present state of judicial
independence and accountability in the British Constitution.1 I also take, however, a
critical view of Britain’s constitutional arrangements for securing judicial inde-
pendence and accountability, drawing on recent controversies to demonstrate the
potential frailty of these arrangements.
Underlying my description is a broader message, that Britain’s constitutional
arrangements are best understood as a series of pragmatic responses to such chal-
lenges as happen to arise from time to time. As the United Kingdom Supreme Court
recently reminded us, the British Constitution has ‘developed over time in a
pragmatic as much as in a principled way, through a combination of statutes,
events, conventions, academic writings and judicial decisions’.2 An observer of the
landscape of British constitutional law will peer in vain for pristine examples of
principles such as ‘separation of powers’, ‘judicial independence’ or ‘account-
ability’. Britain’s constitutional law is, after all, common-law in nature. Quite
unlike the coherent, self-contained codes of the civilian tradition, the common law
is ‘chaos with a full index’.3 The point is not that Britain’s constitutional
arrangements are chaotic, but that they have not emerged from a mapping exercise
conducted by learned jurists or a constituent assembly: Britain’s is a ‘political
constitution’, which ‘lives on, changing from day to day for the constitution is no
more and no less than what happens’.4
Accordingly, the responses to the challenges posed by judicial independence and
accountability have taken multiple forms:5 Acts of Parliament; delegated legisla-
tion; non-statutory instruments; constitutional conventions; constitutional
1
For those who wish to delve further into the subject matter there are two excellent texts of recent
provenance: Gee et al. 2015 and Shetreet and Turenne 2013.
2
UKSC, Miller v Secretary of State for Exiting the European Union, 24 January 2017, UKSC 5;
[2017] 2 WLR 583, [40].
3
Holland 2001, p 171, cited by Postema 2004, p 1.
4
Griffith 1979.
5
See also Le Sueur 2013, p 215: ‘In the absence of a written constitution, the constitutional
framework of the judicial system has to rest on ordinary legislation (primary and secondary), “soft
law” and constitutional conventions’.
7 Judicial Independence and Accountability … 145
principles; day-to-day practice; and even ‘often unarticulated understandings’.6 I do

not expect that Britain is unique in this regard,7 but the British approach to judicial
independence and accountability cannot be understood without having regard to the
wide variety of norms that exist in and constitute the British Constitution. However,
given the nature of Britain’s uncodified constitution, which is neither supreme nor
entrenched, these norms do not lie, ultimately, in the hands of the judiciary. There is
reason to fear, therefore, that the protection of norms (including those of judicial
independence and accountability) will be less robust than in jurisdictions with a
codified, entrenched, supreme constitutional document. A comparative enterprise
like the collection of essays in the present volume assists in assessing whether the
British approach is better or worse than those followed by other European polities –
but any such assessment must at least take into account the potential frailty of the
United Kingdom’s constitutional arrangements for securing judicial independence
and accountability.
In Sect. 7.2, I will discuss judicial independence, describing how the security of
tenure, financial security and institutional independence of judges are ensured in the
British Constitution. Particularly prominent in this account will be the Lord
Chancellor, with the radical change in the nature of this office providing a vivid
illustration of the way in which (and how rapidly) constitutional change can occur
in Britain. In Sect. 7.3, I will turn to judicial accountability, describing how British
judges respond to the challenges of ensuring accountability, both by engaging in
discussion with the other branches of government (and, to a lesser extent, the wider
public) and by developing an understanding of their place in the British constitu-
tional order.8
In both Sects. 7.2 and 7.3, I will use some recent controversies to provide a
critical perspective on the British approach to securing judicial independence and
accountability. In Sect. 7.2, I will discuss the difficulties that have been experienced
in recruiting qualified judges to the bench, in the wake of reforms to judicial
pensions. I will also highlight the failure of the Lord Chancellor to offer a robust
defence of judicial independence subsequent to the vituperative criticism levelled at
6
Oliver 2011, p 99.
7
See e.g., on Canada, Walters 2008, and on the United States of America, Reed Amar 2012.
8
The United Kingdom comprises three separate jurisdictions – England and Wales; Scotland; and
Northern Ireland. These jurisdictions, though distinct, operate within the framework of the British
Constitution. Accordingly, although the particular arrangements that exist in respect of judicial
independence and accountability differ in some respects between the jurisdictions, the same
constitutional framework applies. With a view to keeping this contribution to a reasonable size, my
focus will be on the judiciary of England and Wales. I will occasionally refer to material from
Scotland and Northern Ireland, comprehensive treatment of which can be found elsewhere (Gee
et al. 2015, chapter 9) but my primary goal is to describe how judicial independence and
accountability are secured in the British Constitution by particular reference to the judiciary of
England and Wales. Going into more detail on Scotland and Northern Ireland would not be
feasible without an extended discussion of the nature of the devolution of legislative power in the
contemporary British Constitution, which is beyond the parameters of a chapter on judicial
independence and accountability.
146 P. Daly
the first-instance judges who held that Parliament would have to authorise Britain’s
departure from the European Union.9 In Sect. 7.3, I will observe that the judges’
means of avoiding trespassing in what is perceived to be the domain of politics have
been inadequate to protect them from being drawn into political controversy,
especially in respect of the Human Rights Act 1998, which domesticates many of
the rights set out in the European Convention on Human Rights.
7.2 Independence
My framework for analysis in this section comprises the criteria for judicial inde-
pendence enunciated by the Supreme Court of Canada in Valente v The Queen.10 I
recognise, of course, that judicial independence is a large concept11 and that dif-
ferent conceptions of it may exist in different legal and judicial cultures at different
times.12 Moreover, as I suggested in the introduction, understanding judicial
independence in Britain – as with understanding any of its constitutional arrange-
ments – is easier without resort to neatly-packaged abstract concepts. Nonetheless,
one must start somewhere and the ‘much cited’13 Valente factors are as good a
starting point as any. In Valente, Le Dain J described the ‘essential conditions of
judicial independence’ as:14 security of tenure; financial security; and institutional
independence. I use these criteria as a guide to analysis only, for as will become
clear they do not exist in a pure form in respect of the British judiciary.
First, the ‘essence’ of security of tenure involves ‘a tenure, whether until an age
of retirement, for a fixed term, or for a specific adjudicative task, that is secure
against interference by the Executive or other appointing authority in a discre-
tionary or arbitrary manner’.15 If exposed to the risk of removal from office, a judge
9
UKSC, R (Miller) v Secretary of State for Exiting the European Union, 2016, HRLR 23.
10
SCR, Valente v. The Queen, 19 December 1985, 2 SCR 673.
11
See, e.g., Lord Hodge 2016, para 4: ‘To do right, that is to decide cases impartially and in
accordance with the law, judges must be independent of all litigants and also of all who might
directly or indirectly seek to influence the outcome of a legal action, including their fellow judges
who are not sitting on the particular case.’ Lord Hodge went on to identify 10 ‘pillars’ of judicial
independence: (1) A clear constitutional commitment to the independence of the judiciary and the
rule of law; (2) Exclusion, or at the very least, minimisation, of political considerations as an
influence on the appointment and promotion of judges; (3) Adequate finance; (4) Personal
immunity from suit from acts and omissions in the exercise of judicial functions; (5) Security of
tenure; (6) The separation of powers; (7) Accountability; (8) ‘Role recognition’ by judges;
(9) Performance and moral authority; (10) Maintaining political and public understanding and
support. See also International Association of Judicial Independence and World Peace, Mount
Scopus International Standards of Judicial Independence (19 March 2008).
12
See, e.g., Bell 2001.
13
Lord Justice Beatson 2017.
14
Valente, [25].
15
Ibid., [31].
is (all things being equal) relatively more likely to favour in his or her decisions the
interests of those who hold the removal power.
Second, at the core of financial security is that ‘the right to salary and pension
should be established by law and not be subject to arbitrary interference by the
Executive in a manner that could affect judicial independence’.16 Control of the
purse strings, such that they could be tightened or loosened from time to time, will
exercise the mind of a judge who will naturally be concerned that his or her salary
might be docked for failing to please his or her financial masters, or alternatively
that his or her salary might be increased in response to decisions favourable to his or
her financial masters.
Third, the ‘essentials’ of institutional independence can ‘be summed up as
judicial control over the administrative decisions that bear directly and immediately
on the exercise of the judicial function’,17 in particular (having regard to the fact
that court facilities are typically provided by the political branches of government)
matters such as the ‘assignment of judges, sittings of the court, and court lists – as
well as the related matters of allocation of court rooms and direction of the
administrative staff engaged in carrying out these functions’.18 As with control of
the purse strings, control of judicial administration allows officials variously to
threaten judges with the withdrawal of services when decisions are unfavourable
and promise enhanced services for favourable decisions.
7.2.1 Security of Tenure
Senior judges have benefitted, since the Act of Settlement 1701, from formalised
protection for their security of tenure. Provision is made for removal of a sitting
judge by s. 11(3) of the Senior Courts Act 1981:
A person appointed to an office to which this section applies shall hold that office during
good behaviour, subject to a power of removal by Her Majesty on an address presented to
Her by both Houses of Parliament.19
Whilst the Act of Settlement ‘has been at the basis of judicial protection in all
common law countries’, it is worth emphasising that the impetus for the inclusion
of security of tenure in the Act came from contemporary political events; the
provision was designed to ensure that the interferences with the administration of
justice that had pockmarked the constitutional history of late-17th century England
16
Ibid., [40].
17
Ibid., [52].
18
Ibid., [49].
19
See also Scotland Act 1998, s. 95(6)–(7) (Scottish judges); Constitutional Reform Act 2005, s.
33 (Supreme Court judges); Tribunals, Courts and Enforcement Act 2007, sched. 1, para 6 (Senior
President of Tribunals).
148 P. Daly
would not recur.20 What has become a cornerstone of judicial independence in the
United Kingdom was designed as a pragmatic response to a set of challenges that
happened to arise at a particular point in time.
Today’s legislative framework for judicial discipline was created by the
Constitutional Reform Act 2005, a piece of legislation born of the
then-government’s ‘obsession with modernisation’.21 Chapter 3 of the Act
empowers the Lord Chancellor and, in particular, the Lord Chief Justice to put in
place procedures leading to the taking of disciplinary action against judges; dele-
gated legislation has been adopted to this effect.22 Most judicial offices are now
regulated entirely, as to discipline, under the framework of the 2005 Act.23
Members of the senior judiciary of England and Wales can still be removed only
upon an ‘address’ to Parliament, but the decision of the Lord Chancellor to ‘move’
an address is now to be taken only after the prescribed procedures have been
followed.24 An address has only ever been moved once,25 but judges embroiled in
controversy may choose to step down quietly before matters ever get that far.26
Many complaints are received each year by the Judicial Conduct Investigations
Office established by delegated legislation under the auspices of the 2005 Act. Most
are unsubstantiated and the occasions requiring disciplinary action ‘are in propor-
tion very low’.27 Of relevance in setting the standards against which judges’
behaviour is measured is a non-statutory Guide to Judicial Conduct.28 To the
provisions of the Guide must be added the terms of the Magna Carta 1215
(‘To none will we sell, to none deny or delay right or justice’) and the judicial oath
(‘I will do right by all manner of people, after the law and usages of this realm,
20
Stevens 2001, p 266.
21
Lord Windlesham 2005, p 809. Loughlin 2013, p 3, describes the reforms under the New
Labour government in the late 1990s and early 2000s as a ‘more radical set of constitutional
reforms’ than those enacted by any government since the First World War.
22
See now The Judicial Discipline (Prescribed Procedures) Regulations 2014; The Judicial
Conduct (Judicial and other office holders) Rules 2014; The Judicial Conduct (Tribunals) Rules
2014.
23
See Schedule 14 to the 2005 Act, as amended by Schedule 13, Part 4 of the Crime and Courts
Act 2013 for a full list of judicial offices covered by its provisions. Separate legislation exists in
respect of Scotland, which has a separate legal system and judiciary presided over by the Lord
President: Judiciary and Courts (Scotland) Act 2008. See also, in relation to Northern Ireland, the
Justice (Northern Ireland) Act 2002.
24
The Judicial Discipline (Prescribed Procedures) Regulations 2014, Article 2(1).
25
In respect of Sir Jonah Barrington, in 1830.
26
A recent example is provided by Sir Peter Smith, a former High Court judge who retired before
disciplinary proceedings against him concluded: ‘Conduct probe into High Court judge ends with
retirement’, The Law Society Gazette, October 27, 2017. See generally, Shetreet and Turenne
2013, pp 339–354 for other examples.
27
Shetreet and Turenne 2013, p 291.
28
Courts and Tribunals Judiciary 2018. This is ‘a set of core principles which will help judges
reach their own decisions’ about their conduct (p 5) and to which the disciplinary bodies ‘may
have regard’ (p 6).
without fear or favour, affection or ill will’),29 also instruments of great constitu-
tional importance despite their non-statutory basis.
In short, the mechanisms for the protection of security of tenure in the British
Constitution are found partly in legislation (enacted in response to political con-
ditions that happened to prevail from time to time), delegated legislation and
non-statutory instruments.
The flipside of removal from office is appointment to office, the fear here being
that judicial appointees will favour, in their decisions from the bench, those who
sent them there. Historically, in both form and substance, appointments to the
senior judiciary have been in the hands of the executive: judicial appointments are
made under the royal prerogative, by the Crown, but – by constitutional convention
– on the advice of ministers.30 Until recent times, judicial appointments were in
substance made by the Lord Chancellor. As the volume of work in the Lord
Chancellor’s department increased, he was supported to a greater extent by civil
servants,31 though much still depended on the informal ‘soundings’ taken from
members of the legal profession and existing judges.32
Modernisation did not occur overnight. Even before the era of the Constitutional
Reform Act 2005, significant transparency had been injected into the process of
judicial appointments, as a matter of practice, not as a matter of statute law or
delegated legislation:
Lord Mackay of Clashfern, had introduced a good deal of modernisation: posts were
advertised, job descriptions and statements of eligibility were introduced as were selection
criteria for each judicial office. Candidates were required to complete application forms
designed to elicit information to enable them to be assessed against the published selection
criteria.33
Now, most judicial appointments in England and Wales are made, in substance,
by the Judicial Appointments Commission established by s. 62(1) of the
Constitutional Reform Act 2005. For instance, the JAC recommends candidates for
the High Court and Court of Appeal to the Lord Chancellor. The 2005 Act imposes
some substantive and procedural requirements: for instance, selection must be on
merit and appointees must be of good character;34 and selection panels for
29
30
Cabinet Office 2011, para 3.33.
31
Shetreet and Turenne 2013, p 105: ‘Under the supervision of the Permanent Secretary, the Lord
Chancellor’s Department used to maintain records of potential candidates for the High Court and
for the lower judicial offices. At any given time the Lord Chancellor’s Office had a list of qualified
candidates who could be considered for judicial vacancies. The Lord Chancellor’s staff also
processed the applications for Queen’s Counsel, which enabled them to follow up the advance-
ment of leading members of the Bar from among whose ranks judges were drawn.’
32
See the account in Darbyshire 2011, pp 90–95. On the increasingly professionalised approach
in the 1980s and 1990s see Lord Mackay of Clashfern 2010.
33
Stephens 2018, p 22.
34
Constitutional Reform Act 2005, s. 63.
150 P. Daly
higher-level appointments must comprise at least five members.35 The composition

of the Judicial Appointments Commission is set out in delegated legislation.36 A
separate process exists for Supreme Court appointments.37
Within the statutory parameters, there is a great deal of space for the Judicial
Appointments Commission to develop its own criteria to evaluate candidates for
judicial office, to elaborate ‘[a] continuing programme of work […] to ensure that
JAC selections are fair, made solely on merit, and open […]’38 Similarly, criteria
against which to evaluate potential additions to the UK Supreme Court bench are
not to be found in legislation, which has ‘little to say about how the commissions
should go about their work’,39 but in non-statutory documentation.40 Indeed,
though the creation of statutory appointments bodies seemed to herald a new era of
transparency, with lay members to play a key role and in which existing judges
would have less influence, it is clear that as a matter of practice the judiciary
continues to exert significant sway in shaping the choices of the statutory
appointments bodies,41 with the Lord Chancellor playing a minimal role notwith-
standing his formal powers.42 In general,
[…] a highly informal system in which ministerial discretion was lightly regulated by
non-legal conventions has been replaced with a formal statutory scheme in which the Lord
Chancellor is entirely removed from lower-level appointments and where ministerial dis-
cretion for top appointments is, in practice, exceptionally limited.43
Therefore, in order to understand how judicial appointments function in the

United Kingdom, and support judicial independence, one must look not only to
statute but also to delegated legislation, non-statutory instruments and practice.
35
Constitutional Reform Act 2005, ss. 70, 75B, 80.
36
The Judicial Appointments Commission Regulations 2013, Article 4. There are to be 15
members: a lay Chair, seven judicial members, five lay members and two legal practitioners. The
Judicial Appointments Board for Scotland has a lay majority: see https://www.
judicialappointments.scot/about/meet-our-team/board-members, accessed 1 April 2019.
37
Constitutional Reform Act 2005, ss. 25–27B, as amended by the Crime and Courts Act 2013,
Schedule 13. Promotions fall outside the ambit of the 2005 Act. Promotions within the judiciary
are shrouded in relative secrecy, in no small part because ‘[t]here is currently no comprehensive
system for appraisal for courts or tribunals’: Shetreet and Turenne 2013, p 137.
38
Stephens 2018, p 25.
39
Lady Hale 2018, p 309.
40
See, e.g., ‘Information Pack – Vacancies for Appointment as Deputy President of the Supreme
Court and Justice of the Supreme Court’, pp 5–7 (https://www.supremecourt.uk/docs/judicial-
vacancies-2018-information-pack.pdf, accessed 1 April 2019).
41
Gee 2018.
42
See, e.g., The Judicial Appointments Regulations 2013, Articles 9(3), 15(3), 21(3) and 27(3)
(powers not to follow recommendations, but coupled with obligations to provide reasons).
43
Gee et al. 2015, p 164.
7.2.2 Financial Security
It is (again) to the Act of Settlement 1701 that we can trace the principle that
judicial salaries should be ‘ascertained and established’ by statute. In modern times,
judicial salaries are ‘determined by the Lord Chancellor with the concurrence of the
Minister for the Civil Service’44 and ‘charged on and paid out of the Consolidated
Fund’,45 the significance of which ‘is to prevent any routine or frivolous discussion
of the conduct of judges by Parliament in financial debate’.46 Once more, flesh is
put on the bones of the skeleton of the statute by non-statutory means, with the Lord
Chancellor’s determinations heavily influenced by the recommendations of the
Review Body on Senior Salaries, an independent review body, which advises the
government on remuneration for senior public servants.
Notwithstanding this generally rosy picture, there is no entrenched protection for
judicial salaries. They could be reduced by Act of Parliament. Indeed, orthodox
British constitutional theory holds that Parliament cannot bind its successors and so
would be incapable of entrenching a statutory provision preventing the reduction of
judicial salaries.47 It is relevant, however, that judicial independence is a recognised
constitutional principle. Indeed, s. 3(1) of the Constitutional Reform Act 2005
provides:
The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters
relating to the judiciary or otherwise to the administration of justice must uphold the
continued independence of the judiciary.
A minister who introduced or supported legislation providing for a reduction in

judicial salaries would be in breach of this principle. Even though such a principle
is likely to be non-justiciable in a court of law,48 it imposes an important political
restraint on what political actors may legitimately do: in light of s. 3(1), an attempt
44
Senior Courts Act 1981, s. 12(1).
45
Senior Courts Act 1981, s. 12(5). This can be traced to 1 Geo. III, c. 23 (1760). The
Consolidated Fund: ‘is the Government’s general bank account at the Bank of England. Payments
from this account must be authorised in advance by the House of Commons. The Government
presents its “requests” to use this money in the form of Consolidated Fund Bills.’ https://www.
parliament.uk/site-information/glossary/consolidated-fund/, accessed 1 April 2019.
46
Lederman 1956, p 792.
47
See UKHL, Jackson v Attorney General, [2006] 1 A.C. 262, [113], per Lord Hope of
Craighead: ‘[I]t is a fundamental aspect of the rule of sovereignty that no Parliament can bind its
successors. There are no means by whereby, even with the assistance of the most skilful draftsman,
it can entrench an Act of Parliament. It is impossible for Parliament to enact something which a
subsequent statute dealing with the same subject matter cannot repeal.’
48
See, e.g., UKSC, Miller v Secretary of State for Exiting the European Union, 24 January 2017,
UKSC 5; [2017] 2 WLR 583, at [145], describing the Sewel Convention – a constitutional
convention relating to the need for the Westminster Parliament to seek the consent of the devolved
legislatures in Northern Ireland, Scotland and Wales before legislating on certain matters – as
non-justiciable notwithstanding the fact that it had been put on a statutory basis in the Scotland Act
2016.
152 P. Daly
by ministers to reduce judicial salaries would be unconstitutional, as would legis-

lation to that effect (though not necessarily illegalities which a court of law could
invalidate).49
In summary, the financial security of British judges is protected by statute,
non-statutory means, constitutional principle and shared understandings about what
it is appropriate for political actors to do vis-à-vis judicial salaries.
However, the efficacy of these arrangements, which relies heavily on members
of the political branches actively ensuring that judges are adequately remunerated,
has been called into serious question by recent developments. Judicial salaries were
not always especially handsome:50 in previous times, they were often supplemented
by various other sources of income, many derived from judicial office.51 Although
English judges ‘are among the highest paid public officials’,52 judicial salaries are
rarely as attractive as the income high-flying barristers or solicitors can earn in
private practice, which may have had an impact on the recruitment of judges.53 In
recent recruitment exercises run by the JAC, there have been ‘shortfalls’ in judicial
appointments: for instance, in 2016–2017, it was possible only to fill eight of 14
vacant positions in the High Court.54 Indeed, ‘[t]he percentage of candidates
assessed as outstanding or strong compared to the number of selections in key
salaried roles has been decreasing overall since 2012–2013’.55 In short, a career in
the judiciary has become less attractive to qualified candidates.56 Moreover,
according to the Lord Chief Justice of England and Wales, there is ‘undoubtedly a
growing phenomenon of judges retiring a little earlier than they need’.57
The background is a ‘serious loss of morale across the judiciary and continuing
dissatisfaction over (1) working conditions, (2) the volume of work, and (3) pay and
49
For the distinction between illegality and unconstitutionality in the British constitutional tra-
dition, see JCPC, Madzimbamuto v Lardner-Burke and George [1969] 1 AC 645, at p 723, per
Lord Reid: ‘It is often said that it would be unconstitutional for the United Kingdom Parliament to
do certain things, meaning that the moral, political and other reasons against doing them are so
strong that most people would regard it as highly improper if Parliament did these things. But that
does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to
do any of them the courts could not hold the Act of Parliament invalid.’
50
Beloff 2006.
51
See, e.g., Poser 2013.
52
53
See, e.g., Review Board on Senior Salaries 2017, noting at para 6.91 the ‘low morale’ in the
judiciary and recommending that ‘the government should carefully explore the scope for pay and
pension flexibilities, as found in the private sector, in order to support recruitment and retention
within the judicial workforce’.
54
Judicial Appointments Commission 2018a, paras 26–27.
55
Judicial Appointments Commission 2018b, p 1.
56
‘LCJ warns of “lasting damage” to High Court through judge shortage’, Law Society Gazette, 5
July 2018.
57
House of Lords Select Committee on the Constitution 2018, p 6.
pensions’.58 Pensions has been a particular flashpoint.59 On foot of a government

review of public sector pensions in the wake of the financial crisis of the 2000s, the
existing scheme of judicial pensions was phased out and replaced by a new
scheme,60 which is ‘considerably less valuable’ to its members.61 In addition, a
reform to the taxation treatment of judicial pensions in 2015 had a ‘very, very
serious unintended effect on the judiciary’;62 post-2015 judges are treated much less
favourably than their pre-2015 counterparts, and, in practice, much less favourably
than other public servants.63 Indeed, newly appointed judges found themselves
‘forced into’ a much less favourable pension scheme than they had anticipated
when accepting their appointment, which in the view of the House of Lords Select
Committee on the Constitution constituted ‘a breach of the principle of security of
tenure’.64 Litigation before the Employment Tribunal ensued, with younger judges
claiming they were directly discriminated against on the basis of age and indirectly
discriminated against on other grounds (on the basis that younger judges are more
likely to come from vulnerable social groups). At first instance and on appeal, the
judges were successful.65 A further appeal to the Court of Appeal is pending.66
The lesson of this controversy is that the financial security of British judges
depends to a very great extent on the willingness of government to fund adequate
pay and pensions. In times of fiscal hardship, it is unlikely that an elite group, such
as judges, will be excluded from a general government policy of austerity. Despite
warnings from the Review Body on Senior Salaries, and senior members of the
judiciary, no measures have been taken to counter the effects of recent reforms.
A major review of judicial salaries is being conducted by the Board, but it expressly
excludes the issue of ‘levels of pay’.67 Whilst the barriers to reductions in judicial
pay are relatively robust (though perhaps also liable to come under strain in
straitened economic times), there is no mechanism to ensure that British judges’ pay
and pensions increase in line with the needs and expectations of prospective new
judges. This can only hurt the financial security of the judiciary.
58
Judiciary of England and Wales 2017, p 12.
59
Review Body on Senior Salaries 2017, p 85.
60
See generally Ministry of Justice 2017.
61
The Lord Chancellor v McCloud and others [2018] UKEAT /0071/17/LA, [21] (Employment
Appeal Tribunal).
62
House of Lords Select Committee on the Constitution 2016, p 1.
63
64
House of Lords Select Committee on the Constitution 2017a, p 10.
65
The Lord Chancellor v McCloud and others [2018] UKEAT /0071/17/LA, para 21
(Employment Appeal Tribunal), holding in particular at para 167 that the first-instance
decision-maker was justified in concluding that ‘the extremely severe impact of the transitional
provisions on the Claimants far outweighed the public benefit of applying the policy consistently
across the whole public service pension sector’.
66
‘Government continues to fight judges’ pension case’, Financial Times Adviser, 1 February
2018.
67
154 P. Daly
7.2.3 Institutional Independence
Prior to the constitutional tumult of the 17th century, there was little or no mean-
ingful separation of functions in the British Constitution. What comparative con-
stitutional lawyers now tend to describe as legislative, executive and judicial
functions were concentrated in the monarch:68 ‘the hallmarks of the sixteenth
century were a strong monarch, a subservient parliament and a non-interventionist
judiciary’.69 Judges were ‘servants of the king’, who held their offices at pleasure
and, as such, were ‘no more secure in office than government ministers’.70
Even after the tumult had subsided and an identifiably distinctive judicial
function emerged, it was not separated from politics: ‘Lord Mansfield CJ was, for a
time, a highly influential cabinet Minister. Lord Ellenborough CJ was a member of
the Cabinet in 1806. Sir John Trevor was simultaneously Master of the Rolls and
Speaker of the House of Commons at the end of the seventeenth century’.71 Until
the late 20th century, the law lords, who sat in the United Kingdom’s apex court,
actively contributed to parliamentary debates.72
Emblematic of the British approach to separation of powers was the Lord
Chancellor,73 simultaneously Speaker of the House of Lords, a member of the
cabinet and the head of the judiciary.74 Having regard to the dignity of the office,
the Lord Chancellor was expected to be ‘of the highest standing and eminence in
the profession’.75 In his capacity as head of the judiciary, the Lord Chancellor had
significant responsibilities for the administration of justice:
The Lord Chancellor’s role was central. The initiative lay with him. He would have had
ready access to the judiciary, and particularly the senior judiciary. He could take soundings
from them as to the need for reform. If the need for action became apparent, the Lord
Chancellor could act and make an appointment to carry out a review or chair a Royal
Commission. Equally, he might not.76
As a leading member of the legal profession, the Lord Chancellor’s views

carried great weight with cabinet colleagues, helping to ensure the smooth operation
of the machinery of the administration of justice. He was both a link and a buffer
between the judges and the politicians.77
68
See generally Cane 2016.
69
Brooke 2015, p 449.
70
Baker 2002, p 166.
71
Lord Thomas of Cwmgiedd 2015, para 11.
72
See generally Blom-Cooper and Drewry 1972, chapter 7; Hope 2011.
73
See generally Woodhouse 2001.
74
The latter expression is a convenient shorthand for: ‘President of the Supreme Court, ex officio
member of the Court of Appeal, and President of the Chancery Division of the High Court’: Oliver
2011, p 98.
75
Heuston 1964, p xxi.
76
Lord Thomas of Cwmgiedd 2015, para 13.
77
Oliver 2011, pp 106–108.
There was thus a concentration of power in the hands of the Lord Chancellor,
who was responsible not only for appointing judges, but also for managing them.78
As the judicial system grew, the Lord Chancellor’s Department also grew.
Increased professionalisation and centralisation79 of an expanding system unsettled
the previously cosy relationship between the appointer and his appointees.80 There
were tensions in the 1980s, indeed, ‘mutual suspicion between the judges and the
Lord Chancellor’s Department’.81 The Department was not untouched by the rise of
the New Public Management,82 which sharpened the focus on the achievement of
efficiencies in government and more effective means of service delivery; in 1995,
the Department’s management responsibilities were vested in the Courts Service, an
executive agency within the Department.83
Although the manner of the announcement left much to be desired,84 it was not
especially surprising that abolition of the office of Lord Chancellor was mooted in a
2003 White Paper, with a view to modernising the relationship between the
branches of government.85
Subsequent to the White Paper, the then Lord Chief Justice, Lord Woolf M.R.,
negotiated a ‘Concordat’ with the Lord Chancellor.86 This document of ‘great
constitutional importance’87 though evidently non statutory in nature has come to
shape the relations between the executive and the judiciary.88 Indeed, it reads
almost as an embryonic Constitutional Reform Act 2005, with many of its key
provisions reproduced in that statute. However, given that the management of the
judiciary in England and Wales has evolved as much by non-statutory means as by
statutory means, it is unsurprising that one central commitment agreed in the
Concordat – that the Secretary of State would create a ‘Unified Courts Agency’89 –
has no statutory basis.
The 2005 Act makes the Lord Chief Justice of England and Wales the ‘head of
the judiciary’.90 Various functions, especially in relation to the making of rules and
78
79
See the Courts Act 1971, which vested significant administrative responsibilities in the Lord
Chancellor’s Department, following the recommendations in Lord Beeching’s Report of the Royal
Commission on Assizes and Quarter Sessions (Cmd. 4153, 1969).
80
On the scale of the expansion, see Lord Thomas of Cwmgiedd 2017, paras 18–19.
81
Browne-Wilkinson 1988, p 50.
82
See generally Hood 1991.
83
For background, see Freedland 1996.
84
See generally Lord Windlesham 2005.
85
Department for Constitutional Affairs 2003.
86
Department for Constitutional Affairs 2004.
87
House of Lords Constitution Committee 2007, para 13.
88
See especially Concordat, para 4, setting out the respective responsibilities of the Secretary of
State for Constitutional Affairs and the Lord Chief Justice.
89
Concordat, para 20.
90
Constitutional Reform Act 2005, s. 7(1).
156 P. Daly
the giving of directions, are vested in the Lord Chief Justice,91 but the 2005 Act has
little or nothing to say on how the Lord Chief Justice should exercise these func-
tions. Non-statutory administrative arrangements have filled the legislative silence
in the 2005 Act on the management of the judiciary (much of which had been, in
any event, a matter of practice within the Lord Chancellor’s Department). The
judiciary has developed its ‘own leadership and governance’.92 Indeed, ‘[t]he
intention was to enable the judiciary to devise and, when necessary, reform its own
internal governance structure without recourse to Parliament’.93
The constitutional tumult of the 2000s did not end with the enactment of the
2005 Act.94 Just two years later the Department of Constitutional Affairs, which had
negotiated the Concordat and the passage of the legislation, was abolished, its
functions to be assumed by a new Ministry of Justice. This new Ministry, presided
over by the Lord Chancellor, was responsible ‘not only for constitutional issues,
civil and administrative justice, the courts and legal aid, but for criminal justice
policy as well’.95 But the expanding remit of the Lord Chancellor prompted con-
cerns on the part of the judiciary that the Lord Chancellor’s responsibilities for the
implementation of criminal justice policy might come into conflict with his
responsibilities for management of the courts system. These concerns led to the
negotiation of yet another non-statutory agreement, the HM Courts Framework
Document, concluded in 2008 and updated in 2011 and 2014 to take account of the
91
Constitutional Reform Act 2005, ss. 12–15; Scheds. 1–4.
92
See Lord Thomas of Cwmgiedd 2015, para 33.
93
Lord Thomas of Cwmgiedd 2017, para 26. Management of the judiciary of England and Wales
is accomplished through three bodies: the Judicial Executive Board; the Judicial Office for England
and Wales; and the Judges’ Council. Of the Board, whose members are for the most part the heads
of division of the courts of England and Wales, it is said (on the Board’s website): ‘The Lord Chief
Justice exercises executive and leadership responsibilities through, and with the support of, the
Judicial Executive Board (JEB)’. https://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-
the-government-and-the-constitution/how-the-judiciary-is-governed/judicial-executive-board/,
accessed 1 April 2019. The raison d’être of the Office is to ‘support the judiciary in upholding the
rule of law and in delivering justice impartially, speedily and efficiently’, a task to which it brings
‘a range of skills and experience – the team includes professional trainers, legal advisers, HR and
communication experts, policy makers and administrators’. https://www.judiciary.gov.uk/about-
the-judiciary/training-support/jo-index/, accessed 1 April 2019. Meanwhile, ‘[t]hough the English
judiciary lacks any union activity, the Judges’ Council traditionally transmits the collective views
of the judiciary’. Shetreet and Turenne 2013, p 71. It was initially a legislative creation, under the
Judicature Act 1873, but the relevant provisions were repealed by the Supreme Court Act 1981. Its
subsequent and current instantiations are non-statutory. On the antecedents to the Council, see
Lord Justice Thomas 2005. According to its website, ‘The primary function of the present Judges’
Council is to be a body broadly representative of the judiciary as a whole which will inform and
advise the Lord Chief Justice on matters as requested from time to time’. https://www.judiciary.
gov.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/how-the-judiciary-
is-governed/judges-council/, accessed 1 April 2019.
94
For a useful overview, see Gee et al. 2015, pp 41–45.
95
Ibid., p 45.
creation of a unified tribunals system.96 The most recent version, ‘reflects an

agreement reached by the Lord Chancellor, the Lord Chief Justice and the Senior
President of Tribunals on a partnership between them in relation to the effective
governance, financing and operation of HM Courts & Tribunals Service’.97 So far,
relations have proved harmonious.98 For instance, the Office worked closely with
HMCTS on a £700m overhaul of the court and tribunal system, whilst the Board
and Council were also involved.99
Therefore, we can say, the institutional independence of the British judiciary is
secured in part by a statutory framework but also by non-statutory agreements.100
Going slightly beyond the third Valente factor, it is useful to have regard in
considering institutional independence to the general legal and political culture of a
given jurisdiction. Of course, there is a risk in ascribing a particular spirit to the
members of a particular political community that one’s analysis will be ‘oversim-
plified and overstated’.101 Nonetheless, the judiciary does not exist in a hermetically
sealed container, separate and apart from the other organs of government and wider
society, and its institutional independence depends at least to some extent on its
protection from outside influence from political actors, the media, civil society and
members of the public. At the very least, in terms of protecting judicial indepen-
dence there is an ‘interdependency’ between the judiciary and the other organs of
government,102 as well as other outside actors. Again, constitutional conventions, or
simply understandings, are very important. For instance, criticism of judges in
Parliament is thought to be improper, Erskine May (the (non-statutory) bible for
parliamentarians) providing that ‘reflections must not be cast on the conduct of […]
judges of the superior courts […]’103 In this respect, changes in the wider envi-
ronment, especially in the media, have provoked new challenges:
96
See Tribunals, Courts and Enforcement Act 2007.
97
HM Courts and Tribunals Service 2014, para 1.5.
98
See also Judicial Executive Board 2016, especially at para 4: ‘Engagement between the
judiciary and the Executive can be beneficial to both branches of the State, whilst permissible
comment on proposed policy and legislation can be in both the interests of the public and the
administration of justice. However, it is crucial that the constitutional conventions are adhered to.
Identifying the constitutionally appropriate boundaries or “red lines” will need to be carefully
considered by the Lord Chief Justice and senior leadership judges before agreeing to engagement.
Whilst the judiciary will strive to assist the Executive, there will nonetheless be some areas where
they simply cannot comment.’
99
See Lord Thomas of Cwmgiedd 2015, paras 29–32, 36–37.
100
It is useful to mention, for the sake of completeness, that the administration of justice in
Scotland is entirely in the hands of the judges: see Judiciary and Courts (Scotland) Act 2008, Part
4, establishing the Scottish Courts and Tribunals Service.
101
Dicey 2013, p xxv.
102
Lord Thomas of Cwmgiedd 2017.
103
Quoted in Le Sueur 2013, p 220. See also ibid., pp 220–221.
158 P. Daly
[…] one of the most dramatic changes that has taken place over the past thirty years or so
has been the increasing freedom felt by newspapers, in particular, to attack judges with a
vigour […] that was formerly quite unknown.104
Effective discharge of the responsibility to ‘uphold the continued independence

of the judiciary’ imposed on ministers by s. 3(1) of the Constitutional Reform Act
has, as far as relations between the judiciary and the media are concerned, been
secured in part by parliamentary scrutiny. For instance, shortly after the coming into
force of the 2005 Act, the House of Lords Constitution Committee expressed
concern about ministerial comment on judicial decisions adverse to the govern-
ment’s political interests,105 which had a salutary effect on ministers’ perception of
the appropriate scope of comment on judicial decisions.106
However, the recent changes to the office of Lord Chancellor seem to have had
the effect of weakening a bulwark against media attacks on the judiciary. A recent
vigorous attack, of some notoriety, occurred in the wake of the Divisional Court’s
decision in Miller v Secretary of State for Exiting the European Union to the effect
that the royal prerogative could not be used to trigger article 50 of the Treaty on
European Union and thereby precipitate Britain’s exit from the European Union.107
‘Enemies of the People’, trumpeted the Daily Mail the following day, whilst the
Daily Telegraph led with ‘The judges versus the people’ and the Sun asked, ‘Who
Do EU Think You Are?’108 The message of these headlines was clear: the judges
were acting to thwart the will of the people as expressed in the 2016 referendum on
Britain’s membership of the EU. Such a charge could have the effect of under-
mining public confidence in the judiciary’s even-handedness in disputes between
citizens and government officials. The day after the decision had been released, the
Secretary of State for Communities, Sajid Javid M.P. described the case as ‘an
attempt to frustrate the will of the British people and it is unacceptable’.109
Although Javid’s comments were aimed at those who initiated the court challenge
and not the judges themselves, they highlight the febrile contemporary atmosphere.
There was, accordingly, an expectation that the Lord Chancellor, Elizabeth
Truss MP would intervene to call for calm.
Yet instead of delivering a measured statement in support of the independence of
the judiciary, the Lord Chancellor remained silent. Her silence was condemned by
the Bar Council, one of England and Wales’ legal regulatory bodies, which publicly
expressed its regret at ‘the lack of public statement by the Lord Chancellor
104
Sir Derek Oulton, former Permanent Secretary to the Lord Chancellor’s Department, quoted in
Lord Bingham 1996, p 7.
105
House of Lords Select Committee on the Constitution (2007).
106
House of Lords Select Committee on the Constitution (2008).
107
[2016] HRLR 23.
108
See generally The Guardian (2016) ‘British newspapers react to judges’ Brexit ruling:
“Enemies of the people”’, 4 November 2016, https://www.theguardian.com/politics/2016/nov/04/
enemies-of-the-people-british-newspapers-react-judges-brexit-ruling, accessed 1 April 2019.
109
BBC News (2019) ‘Brexit case “attempt to block will of people” says Sajid Javid’, https://
www.bbc.co.uk/news/uk-politics-37866411, accessed 1 April 2019.
condemning these attacks’ and called for a supportive statement to be released ‘as a
matter of urgency’.110 She finally broke her silence on the weekend following the
decision:
The independence of the judiciary is the foundation upon which our rule of law is built and
our judiciary is rightly respected the world over for its independence and impartiality. In
relation to the case heard in the high court, the government has made it clear it will appeal
to the supreme court. Legal process must be followed.111
Plainly, the Lord Chancellor did not seek, in her remarks, to condemn in any
way the sensationalist coverage of the decision – even the implication that the
judges had been engaged in an act of treason went unchallenged. Subsequently, the
Lord Chancellor has, in evidence to the House of Lords Constitution Committee,
attempted to justify her position by reference to the importance of defending the
freedom of the press.112 Her justification drew a sharp response from the outgoing
Lord Chief Justice of England and Wales, who described her view as ‘completely
and utterly wrong’.113 I favour the latter view:114 the question for the judges was
one of law; and the Lord Chancellor’s statutory obligation to uphold judicial
independence does not make any exception for freedom of the press which, in any
event, hardly extends to insinuations of treason against judges adjudicating on the
merits of an important point of constitutional law.
According to a journalistic account of the event, produced by the reputable
Sunday Times political editor, Tim Shipman, the Lord Chancellor wrote to her
fellow ministers the morning after the decision to remind them of their obligation to
uphold judicial independence. But she was dissuaded from releasing a statement by
the Prime Minister’s office, where staff were especially concerned about further
provoking the media. By the weekend, feeling the pressure of public criticism, the
Lord Chancellor proposed issuing a ‘bland quote defending the integrity of the Lord
110
The Bar Council (2016) Bar Council calls on Lord Chancellor to condemn attacks on the
judiciary”. https://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/november/
bar-council-calls-on-lord-chancellor-to-condemn-attacks-on-judiciary/, accessed 1 April 2019.
111
The Guardian (2016) ‘Liz Truss defends judiciary after Brexit ruling criticism’. https://www.
theguardian.com/law/2016/nov/05/barristers-urge-liz-truss-to-condemn-attacks-on-brexit-ruling-
judges, accessed 6 November 2016.
112
House of Lords Select Committee on the Constitution 2017b, p 5: ‘I will always speak out and
say how important having an independent judiciary is. I have also said that the individuals
involved in both cases – the High Court and the Supreme Court – are people of integrity and
impartiality, and that is very important. Where perhaps I might respectfully disagree with some
who have asked me to condemn what the press are writing, is that I think it is dangerous for a
government Minister to say this is an acceptable headline and this is not. I am a huge believer in
the independence of the judiciary; I am also a very strong believer in a free press and the value it
has in our society. In defending the judiciary, it is very important that I speak out about the
valuable work it does. I want to work with the judiciary so that we have more from the judiciary
explaining to the public the work that it does and the process of appointment, but I draw the line in
saying what is acceptable for the press to print or not. For me, that goes too far.’
113
House of Lords Select Committee on the Constitution 2017c, p 6.
114
Contrast Gee 2016.
160 P. Daly
Chief Justice’.115 Even this was too much for the Prime Minister’s political offi-
cials. They only relented when the Lord Chancellor revealed that she had already
told the Lord Chief Justice that a statement was coming. One doubts that Truss’s
predecessors would have been so pusillanimous in the face of such venom from the
media and intransigence from political officials. One can attribute this unfortunate
event to the reforms to the office of Lord Chancellor.116
Under the Constitutional Reform Act 2005, there is no obligation to appoint a
lawyer as Lord Chancellor. Section 2(1) of the 2005 Act provides that the Prime
Minister may only recommend for appointment a person who is ‘qualified by
experience’.117
Although the first incumbents of the reformed office of Lord Chancellor were
lawyers (Charles Falconer MP, Jack Straw MP and Kenneth Clarke MP), in 2012
the first non-lawyer was appointed (Chris Grayling MP) and subsequent holders of
the office have also not had a legal background.
It is true that a non-lawyer political heavyweight might be a very effective Lord
Chancellor, especially if they ‘have a high rank in cabinet and sufficient authority
and seniority amongst his or her ministerial colleagues to carry out this duty
effectively and impartially’.118 With the expanding range of functions discharged by
the Lord Chancellor, political heft can be as valuable an asset as legal acumen. But
the existence of political heft is, as the ‘Enemies of the People’ row indicates,
insufficient; it must actually be used. Where the Lord Chancellor has hopes of
higher ministerial office in the future, however, they may be cowed by the media or
political officials, as Truss clearly was.
There has, then, been a sea change in the office of Lord Chancellor. Only twenty
years ago it was expected that the Lord Chancellor would be a distinguished lawyer,
responsible for the smooth administration of justice and for maintaining good
relations between the judges and the political branches of government. This
115
Shipman 2017, p 52.
116
In a thoughtful contribution, Professor Gee has defended Truss’s discharge of her duties: Gee
2016. Gee observes that the 2005 Act creates a ‘post-2005 Lord Chancellor [which] is not the same
office as the pre-2005 Lord Chancellor’. Having laid out the attributes of the post-2005 office, Gee
suggests: ‘Truss could reasonabl[y] conclude that her statutory duty was not engaged, or that the
duty was best discharged by taking action behind the scenes, or even that the most prudent course
was to take action at a later date once the heat of the moment has passed…’ Shipman’s account of
Truss’s actions in the wake of the Divisional Court decision undermines Gee’s defence of the Lord
Chancellor, however. Far from thinking that her statutory duty was not engaged, or that she could
best take action behind the scenes, it is clear that Truss herself believed it was necessary to release
a statement supportive of the Lord Chief Justice but was dissuaded from doing so by the Prime
Minister’s Office. This supports my argument that the reaction to the Divisional Court decision
demonstrates a weakening of a bulwark against media attacks on the judiciary.
117
The Prime Minister is to bear in mind the factors laid out in s. 2(2) of the Constitutional
Reform Act 2005: (a)experience as a Minister of the Crown; (b)experience as a member of either
House of Parliament; (c)experience as a qualifying practitioner; (d)experience as a teacher of law
in a university; (e)other experience that the Prime Minister considers relevant.
118
House of Lords Select Committee on the Constitution 2014, para 117.
functions as a reminder of how quickly fundamental constitutional change can

occur in the British Constitution: a legal system which was not so long ago in the
hands of a distinguished lawyer/politician who took ‘soundings’ from the judges is
now managed by the judiciary in partnership with Whitehall, under the auspices of
a hotchpotch of statutory provisions, non-statutory instruments, constitutional
principles and various practices. This is a vivid illustration of how constitutional
change occurs in the United Kingdom, but also of the risks of rapid, informal
constitutional change. In the space of a decade, one of the norms that the Lord
Chancellor protected (independence of judges from personal criticism) has been
eroded; the norm is now subject to being traded off against political considerations.
7.3 Accountability
Although accountability ‘is a central value of modern constitutions’,119 the term has
an elusive, ‘catch-all’ quality,120 ‘one of those evocative political words that can be
used to patch up a rambling argument, to evoke an image of trustworthiness, fidelity
and justice, or to hold critics at bay’.121 Nonetheless, there is a well-known dis-
tinction between two different senses of accountability, between accountability in
the sense of ‘giving an account’ and accountability in the sense of ‘taking
responsibility’, sometimes described as the distinction between explanatory
accountability and sacrificial accountability.
In this section, I will focus on the first, explanatory, sense of accountability:
‘giving an account’. The second, sacrificial, sense has, for the most part, been
addressed in the previous section, in relation to security of tenure. Grave failures of
judicial ethics would have to occur for a judge to be formally removed from office.
Beyond removal from office, however, it is difficult to see how judges otherwise
‘take responsibility’ for their judgments.122 Judicial error is not a resigning matter:
the appropriate mechanism for correcting mistakes is provided, in the British sys-
tem, by appellate review.123 When a High Court judge errs, he or she may be
corrected by the Court of Appeal, which in turn is subject to review by the Supreme
Court.124 It is true that there is no higher authority than the Supreme Court – which,
to borrow Robert Jackson’s quip, is not final because it is infallible but infallible
119
Davies 2008, p 92.
120
Harlow 2002, p 23.
121
Bovens 2007, p 449.
122
Bogdanor 2009, p 85.
123
See, e.g., Hansard HC vol 416, col 1448, January 22, 2004 (Chris Leslie MP): ‘Judicial
decisions are taken and explained in public (save where the circumstances of a case demand
confidentiality) and any decision which a judge makes is liable to be scrutinised, and if necessary
overturned, on appeal, which is also a public process. Judges are therefore fully accountable for
their judicial decisions through the appeal system.’
124
See, e.g., R v Bentley (2001) 1 Criminal Appeal Reports 307.
162 P. Daly
because it is final125 – but this does not detract from the general point that errors of
law, and even manifestly unreasonable findings of fact, are not grounds for
resignation.
Accordingly, my focus will be on the ‘giving an account’ sense of account-
ability. At this point, a further nuance is necessary. As far as judicial accountability
is concerned, there are two further senses in which ‘giving an account’ can be
understood, which Mark Tushnet labels ‘political accountability’ and ‘account-
ability to “the law”’.126 In the first, political accountability, sense, judges in Britain
now do ‘give an account’ of their activities.127 Annual reports are filed128 and
judges make appearances before parliamentary committees.129 With ‘radical
reforms to the office of Lord Chancellor […] the traditional notions of ministerial
responsibility are no longer adequate to secure accountability for leadership roles,
budgets, and decision-making powers that have been transferred or shared beyond
the government department responsible for the legal system’.130 Indeed, parlia-
mentary committees ‘can play an important role in holding the judiciary to account
by questioning the judges in public’.131 Interactions between judges and parlia-
mentary committees are regulated by non-statutory guidance.132 Beyond giving an
account to Parliament, some judges even give press conferences.133 The obvious
effect of these developments is to make the courts more visible, ‘giving an account’
of their activities in public. In summary, the political accountability of British
judges is secured through non-statutory means: appearances in select public venues,
regulated by non-statutory guidance.
In another sense, judges ‘give an account’ of their activities in their reasons for
judgment, explaining their accountability to the law. Contemporary British judges
have considerable power to shape the laws governing relationships between private
individuals and between individuals and the state; their accountability for this
considerable power lies in the reasons they give to justify its exercise. To put it
bluntly, there is a ‘democratic deficit that confronts us’,134 for the judges cannot be
125
Brown v Allen, 344 US 443 (9 February 1953), p 540. Though one should mention the
possibility that a subsequent panel of the Supreme Court might well depart from a decision of a
previous panel.
126
Tushnet 2013.
127
See, e.g., Lord Thomas of Cwmgiedd 2017, paras 20–33.
128
See, e.g., Judiciary of England and Wales 2017; Constitutional Reform Act 2005, s. 5(1).
129
Turenne 2016, pp 52–55.
130
Le Sueur 2013, p 203.
131
House of Lords Select Committee on the Constitution 2007, para 124.
132
Judicial Executive Board 2012.
133
See, e.g., Lord Burnett of Maldon 2017.
134
Paterson 2013, p 306. See similarly Malleson 1999, p 37: ‘A dominant feature of the current
developments in the judiciary is the increasing pressure for increased accountability. This trend is
not unique to England and Wales but is evident in many other judiciaries around the world. As the
role of judges has expanded in liberal democracies in consequence of their increasing numbers and
voted out of office should they encroach too far on the territory of the political
branches or take decisions that run counter to the desires of the electorate.
Both in the areas of private law and public law British judges in setting out the
‘limits of the judicial role’ have been influenced by – or, at least, can be understood
as having been influenced by – the concepts of institutional and constitutional
competence.135 In terms of constitutional competence, sometimes the judiciary will
not possess as much democratic legitimacy relative to the other organs of gov-
ernment in respect of a particular type of decision (to legislate or not to legislate; to
take a particular type of executive action, or not to take it). On other occasions,
judges will lack institutional competence relative to other organs of government:
[Judges] do not have the resources of the Law Commissions to study an area of law in the
round, to consult interested parties, and reach decisions with the benefit of that consultation,
having had regard to the knock-on effects of the changes which they recommend. They are
required to focus on the particular legal problem that parties have brought to the court. Nor
do they have the resources of the elected branches of government to develop policy and
obtain through the democratic process a form of public consent for their proposals.136
The ‘declaratory theory’ – that judges find the law and never make the law; as
Blackstone put it, ‘the decisions of courts are the evidence of what is the common
law’137 – reigned supreme for many centuries. But judges ‘do not believe in fairy
tales any more’138 and now follow a ‘more realistic approach’, because ‘we all
know that in reality, in the common law as in equity, the law is the subject of
development by the judges – normally, of course, by appellate judges’.139
Institutional competence has exercised the minds of judges considering whether to
change the common law.140 Sometimes, judges will feel that they are competent to
make a particular change: ‘The common law is moulded by the judges and it is still
their province to adapt it from time to time so as to make it serve the interests of
those it binds. Particularly is this so in the field of procedural law’.141 Lord Reid
referred similarly to a distinction between ‘“lawyer’s law” and matters which
directly affect the lives and interests of large sections of the community’.142 Here,
however, the implication is that the former can be left to lawyers but the latter is
best addressed by elected representatives. Sure enough, one finds references in the
decided cases to the understanding that some types of change in the law would call
influence on policy-making, the demands for greater social and political accountability have
grown.’
135
Jowell 1999, p 451.
136
Lord Hodge 2015, p 479.
137
Blackstone 1775, pp 88–9.
138
Lord Reid 1972, p 22.
139
Kleinwort Benson v Lincoln City Council [1999] 2 AC 349, p 377, per Lord Goff of
Chieveley.
140
A power formally recognised by the House of Lords in 1966: Practice Statement (Judicial
Precedent) [1966] 3 All ER 77.
141
Myers v Director of Public Prosecutions [1965] AC 1001, p 1047, per Lord Donovan.
142
Pettitt v Pettitt [1970] AC 777, pp 794–795.
164 P. Daly
‘for social, financial, economic and administrative decisions which only the legis-
lature can take’.143 Constitutional competence also exercises the judicial mind. In
some areas of law, raising sensitive moral and political issues, the role of the judges
‘should be to apply the principles which society, through the democratic process,
adopts, not to impose their standards on society’.144 More generally, whilst judges
may ‘adopt and modernise the common law’, any such judicial developments ‘must
be consistent with legislative policy’: ‘The courts may proceed in harmony with
Parliament but there should be no discord’.145
In the field of public law, judicial power has become greater still in recent
decades.146 Under the European Communities Act 1972, judges can disapply leg-
islation that is inconsistent with European Union law norms.147 With the advent of
the Human Rights Act 1998, judges have been asked to opine on controversial areas
of public policy.148 And judges have asserted an increasingly more intensive review
jurisdiction over an ever-larger area of public (and sometimes private) adminis-
tration.149 Accordingly, it ‘is incumbent on judges to see with clarity the limits of
the judicial role’.150
Here, institutional competence and constitutional competence have purchase in
determining the degree of deference to be accorded by the courts to decisions of
elected officials. In terms of constitutional competence, the identity of the
decision-maker might have an effect on the degree of deference due, because ‘in a
democracy a person charged with making assessments of [a political] kind should
be politically responsible for them. Ministers are politically responsible for the
143
Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174, p 183, per
Lord Scarman. As Lord Pearce put it in a case involving vicarious liability: ‘It seems to me that
these innovations, whether or not they may be desirable, are not suitable to be introduced by
judicial decision. They raise difficult questions of policy, as well as involving the introduction of
new legal principles rather than extension of some principle already recognised and operating. The
questions of policy need consideration by the government and Parliament, using the resources at
their command for making wide inquiries and gathering evidence and opinions as to the practical
effects of the proposed innovations.’ Morgans v Launchbury [1973] AC 127, pp 142–143. See also
Gregg v Scott [2005] 2 AC 176, para 90, per Lord Hoffmann.
144
Airedale NHS Trust v Bland [1993] AC 789, p 880, per Lord Browne-Wilkinson.
145
Johnson v Unisys [2003] 1 AC 518, [37], per Lord Hoffmann.
146
See, e.g., Masterman 2010.
147
See, e.g., Wade 1996.
148
Of course, judges have long been opining on matters of public policy. See generally Griffith
1997. Nonetheless, it is important in the present context that the 1998 Act has given the judges an
even more prominent role in such matters: ‘as the role of the judiciary expands in the field of
human rights the scope for reaching controversial or political judgments which incur the disap-
proval of one group or another will increase significantly’ (Malleson 1999, p 73).
149
See generally Forsyth 2000; Varuhas 2016; Heydon 2018. For vigorous defences, see Craig
2015; Daly 2018; Elliott 2001.
150
Lord Hodge 2016, para 28.
consequences of their decision. Judges are not’.151 Thus, ‘[t]he formulation and the
implementation of national economic policy are matters depending essentially on
political judgment’ such that the relevant decisions ‘are for politicians to take’ and
to be debated ‘in the political forum of the House of Commons’.152 In terms of
institutional competence, elected officials often have greater expertise relative to
courts in respect of the subject matter falling within their jurisdiction. A minister
has access to the ‘collective knowledge, experience and expertise of all those who
serve the Crown in the department’,153 which helps to explain why ministerial
decisions on matters within departmental expertise are typically accorded signifi-
cant deference by the courts. Polycentricity,154 according to which problems
‘cannot be resolved independently and sequentially’ but are ‘interdependent and a
choice from one set of alternatives has implications for preferences within other sets
of alternatives’,155 will also call for deference,156 as will complex situations that
require evaluative judgement on the part of decision-makers.157
Institutional competence and constitutional competence influence how British
judges exercise the considerable powers they possess in respect of private law and
public law. These concepts form part of judges’ understanding of their role in the
British Constitution, justifying judicial restraint in areas where caution is appro-
priate. They are not written down in statute law, still less in a written constitution,
but perform nonetheless an important accountability function, allowing judges to
‘give an account’ of their decisions in order to justify their exercise of the con-
siderable power they now possess and ensure they remain – in Tushnet’s terms –
‘accountable to “the law”’.
However, the efficacy of these means of ensuring judicial accountability may be
doubted. British judges have been accused, since before the advent of the Human
Rights Act 1998, of taking decisions motivated by political considerations158 and
personal values about public administration.159 Of the decision of the House of
Lords in Roberts v Hopwood,160 for instance, it was said that the judges’ speeches
151
R (Lord Carlile) v Secretary of State for the Home Department [2015] AC 945, [32] [Lord
Carlile].
152
R v Environment Secretary, ex parte Hammersmith and Fulham London Borough Council
[1991] 1 AC 521, p 597, per Lord Bridge of Harwich.
153
Bushell v Environment Secretary [1981] AC 75, p 95, per Lord Diplock.
154
Fuller 1978.
155
Ogus 1994, p 117.
156
See, e.g., R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898, p 906.
157
See, e.g., (Lord Carlile) at [32]; Youssef v Secretary of State for Foreign and Commonwealth
Affairs [2016] 2 WLR 509, [50].
158
See generally Griffith 1997.
159
See, e.g., Feldman 1990.
160
[1925] AC 578.
166 P. Daly
‘were loaded with class assumptions’.161 In the modern era the role of the judiciary
has become even more hotly disputed, with commentators warning of a ‘legitimacy
crisis’162 as judges allegedly stray into the domain of politics and various ‘myths’
being developed by the media and politicians about the operation of the Human
Rights Act163 to drive a campaign to repeal it.164
The persistent controversy about the judicial role in the British Constitution and
the ease with which political actors have been able to whip up dissatisfaction with
judges’ exercise of their powers under the Human Rights Act suggest that reliance
on institutional and constitutional competence is not sufficient to shield judges from
accusations of improper use of their powers. In some ways, British judges have the
worst of both worlds. With only their sense of constitutional and institutional
competence to guide them, the judges often end up in controversial territory, just
like their counterparts in jurisdictions with codified, supreme, entrenched consti-
tutions. Yet they lack a basis in a written constitutional document to which they can
refer as the source of and limit on their powers. Britain’s constitutional arrange-
ments for securing judicial accountability seem thus destined to produce persistent
controversy about the limits of the judicial role.
7.4 Conclusion
In Sect. 7.2, I described the current state of judicial independence in Britain before
turning in Sect. 7.3 to judicial accountability, with the focus in both sections on the
judiciary of England and Wales. Running through these descriptions is a broader
theme about the nature of the British Constitution, namely that it consists of a body
of norms, written and unwritten, developed as pragmatic responses to different
challenges that have occurred from time to time. Significant constitutional change
can happen very quickly – as with the transformation of the office of Lord
Chancellor.
As we have seen, in the British Constitution, judicial independence and
accountability are secured by a variety of means: statute law, such as the Act of
Settlement 1701 and the Constitutional Reform Act 2005; delegated legislation,
such as the 2014 regulations relating to judicial discipline; non-statutory instru-
ments, such as the 2004 Concordat, the Framework Agreements between the
judiciary and HMTCS and the guidance documents on judicial interactions with
Parliament and the executive; constitutional conventions, such as the norms in
161
Stevens 2005, p 23; ‘It is an easy step from [this] judgment to the conclusion that the House of
Lords is, in entire good faith, the unconscious servant of a single class in the community’ (Harold
Laski, cited in Stevens, ibid.)
162
Varuhas 2016.
163
Department for Constitutional Affairs 2006, chapter 4.
164
Conservative Party 2010, p 79.
respect of the exercise of prerogative powers; constitutional principles, such as

judicial independence; day-to-day practice, such as the setting of judicial salaries;
and understandings, such as judicial reliance on the concepts of institutional
competence and constitutional competence in deciding private law and public law
cases. All of the items on the foregoing list, despite their sometimes modest
provenance, are constitutional in nature. Taken together, they secure judicial
independence and accountability in the British Constitution.
We have also seen, however, that the lack of a codified, supreme, entrenched
constitutional document can make British judges vulnerable to changes in the
political climate. Judicial pay and pensions (and thus recruitment to the bench) have
been hit by a policy of government austerity. Changes to the role of the Lord
Chancellor seem to have weakened a bulwark against personalised political and
media criticism of individual judges. And the limits on the judicial role in the
British Constitution are so ill defined as to invite persistent controversy about the
scope of the judges’ power. A written constitution would not necessarily solve or
avoid these problems, which have of course arisen in many jurisdictions, but they
need to be taken into account in any comparative assessment of the strengths and
weaknesses of the means used in different constitutional traditions for securing
judicial independence and accountability.
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Stevens R (2005) The English Judges: Their Role in the Changing Constitution. Hart Publishing,
Oxford
Turenne S (2016) Judicial Independence and Judicial Accountability: Two Sides of the Same
Coin. In: Shetreet S, McCormack W (eds) The Culture of Judicial Independence in a
Globalised World. Brill Nijhoff, Leiden
Tushnet M (2013) Judicial Accountability in Comparative Perspective. In: Bamforth N, Leyland P
(eds) Accountability in the Contemporary Constitution. Oxford University Press, Oxford
Varuhas J (2016) Judicial Capture of Political Accountability. Policy Exchange, London
Wade W (1996) Sovereignty: Evolution or Revolution? Law Quarterly Review 112:568–575
Walters M (2008) Written Constitutions and Unwritten Constitutionalism. In: Huscroft G
(ed) Expounding the Constitution: Essays in Constitutional Theory. Cambridge University
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Woodhouse D (2001) The Office of the Lord Chancellor. Hart Publishing, Oxford
Paul Daly is Senior Lecturer in Public Law at the University of Cambridge. His scholarship in the
broad field of public law, especially administrative law, has appeared in journals in Britain, Canada
and Ireland and has been cited by courts and tribunals including the Supreme Court of Canada and
the Irish Supreme Court. He is the author of A Theory of Deference in Administrative Law: Basis,
Application and Scope (Cambridge University Press, 2012) and maintains the internationally read,
award-winning blog Administrative Law Matters.
Chapter 8
Independence and Accountability
of the South African Judiciary
Francois Venter
Contents
8.1 Introduction........................................................................................................................ 172

8.2 Constitutional and Statutory Foundations......................................................................... 173
8.2.1 History .................................................................................................................... 173
8.2.2 The Constitution ..................................................................................................... 175
8.2.3 Legislation .............................................................................................................. 178
8.3 Challenges to Judicial Independence ................................................................................ 179
8.3.1 Political Challenges ................................................................................................ 179
8.3.2 Non-compliance...................................................................................................... 182
8.3.3 ‘Transformation’ ..................................................................................................... 185
8.4 Development and Direction: An Assessment ................................................................... 186
8.4.1 Accountability......................................................................................................... 186
8.4.2 Separation of Powers and the Rule of Law........................................................... 190
8.4.3 Impact of Constitutional Judgments....................................................................... 192
8.5 Some Comparative Observations ...................................................................................... 194
8.6 Concluding Remarks ......................................................................................................... 194
References .................................................................................................................................. 195
Abstract The history of the South African judiciary reaches back over centuries to
colonial times. Until 1994, South African courts did not have clear or influential
constitutional jurisdiction. The constitutional renewal of the country in the early
1990s brought about dramatic changes in the structure, operation and constitutional
influence of the courts. The newly established Constitutional Court has played a
F. Venter (&)
North-West University, Potchefstroom, South Africa
e-mail: francois.venter@nwu.ac.za

https://doi.org/10.1007/978-94-6265-359-7_8
172 F. Venter
particularly important role in this process that amounted to the reconfiguration of

the legal order as a whole. The constitutional work of the courts has not been free of
challenges, including political interference or attempts at such interference and
non-compliance with adverse judgments against state institutions. The judiciary
needed to establish new principles of adjudication and accountability, in the process
developing constitutional doctrine regarding essential elements such as the sepa-
ration of powers, the rule of law and constitutionalism. Not surprisingly, progress
has not always been smooth, but much has been achieved. In fact, the role of
constitutional adjudication in the concretisation of South African constitutionalism
can hardly be underestimated, but it seems likely that the challenges to the inde-
pendence of the judiciary will increase, rather than abate.

Keywords accountability Constitutional Court of South Africa constitution-

alism corruption rule of law separation of powers transformation
8.1 Introduction
The history of the South African judiciary weaves through some three centuries of
Dutch and British colonial, 19th century republican, British Commonwealth,
pre-constitutional 20th century republican and post-constitutional routes. Over time
unique and admirable mores and institutions were established, great judicial minds
(and some others) were at work, occasional instances of dubious integrity relieved
by incidents of brilliance and creativity came and went, and the courts survived
political onslaughts, moral battles and reconfigurations. Before 1994, the courts’
constitutional jurisdiction was the subject of a few landmark decisions and con-
troversial political responses. Since the historical entrenchment a quarter of a
century ago of the constitutional status of the judiciary as a pillar of constitution-
alism, remarkable progress has been made – but not without challenges and set-
backs along the way.
In the next section, the history and the constitutional and statutory foundations of
the judiciary, primarily focused on the Constitutional Court, are described, followed
by a discussion in the third section of the challenges to the independence of the
judicial branch with reference to politics, non-compliance with judgments and
‘transformation’. In the fourth section, the direction of development is addressed in
the context of accountability, separation of powers and the rule of law, the impact of
constitutional judgments and the need for the courts to deal with corruption. Some
comparative observations are made in the fifth section before concluding remarks
are offered in the last section.
8 Independence and Accountability of the South African Judiciary 173
8.2 Constitutional and Statutory Foundations
8.2.1 History
8.2.1.1 Colonial Times
In the build-up to the establishment of South Africa as a distinct state in 1910, the
sources of influence on the development of the judiciary were various. The era of
Dutch colonial rule (1652–1795; 1803–1806) ensured the founding of South
African (private) law on the Roman-Dutch law. This was not fundamentally
changed during the period of British colonialism (1795–1803; 1806–1910).
Inevitably, with the political and economic control of the country came the intro-
duction of British colonial constitutional law and elements of English commercial
and procedural law. The nature of the legal order required judicial knowledge and
skills suited to it. In the second half of the 19th century the constitutional juris-
diction of the courts of the Orange Free State and Transvaal republics was based on
republican constitutions, but the influence that lawyers, judges, administrators and
leading politicians with backgrounds in the forensic practice of the Cape Colony
exerted in the republics, was significant.
8.2.1.2 From Union to Constitutionalism
The Supreme Court of South Africa, composed of the Appellate Division, the
Provincial and Local Divisions, was established in 1910 in terms of the first con-
stitution of the country.1 Until 1994, the Supreme Court structure remained
essentially the same. The tenets of British colonial constitutional law regarding
jurisdiction survived the transition from (nominal ex-colonial) monarchy to republic
in 1961. The implications were that the courts produced profound jurisprudence in
many areas of the law, but very little of a constitutional nature. The impediment was
the colonial heritage of parliamentary sovereignty.
Until 1994, the courts were constitutionally precluded from reviewing legislation
for constitutionality, which gave the executive free rein to legitimise conduct that
contravened the ordinary demands of Western constitutionalism for accountability.
After a brief, and eventually unsuccessful attempt by the judiciary to assert a degree
of constitutional authority in the 1950s,2 the judges were left with little more than
making critical obiter remarks, or to take refuge in literalism and positivism in
judgments involving the legality of government conduct.
1
See The South Africa Act 1909, pp 95–98.
2
See Harris v Minister of the Interior 1952 (2) SA 428 (AD), Minister of the Interior v Harris
1952 (4) SA 769 (AD) and Collins v Minister of the Interior 1957 (1) SA 552 (AD).
174 F. Venter
8.2.1.3 1994 Onward
The advent of constitutionalism in 1994 removed the Common Law notion of

parliamentary sovereignty completely. The introduction of a constitution elevated
to the level of ‘supreme law of the Republic’ gave powerful transformational
meaning to the provision that the ‘judiciary shall be independent, impartial and
subject only to this Constitution and the law’.3
Initially the court structure was retained unchanged, with the addition only of the
newly established Constitutional Court. Although the other divisions of the
Supreme Court were also given constitutional jurisdiction under the new arrange-
ments,4 the Constitutional Court, headed by its ‘President’,5 was awarded exclusive
jurisdiction on some constitutional matters,6 and final jurisdiction on all other
matters of a constitutional nature.7
In terms of the 1993 Constitution, the Supreme Court of Appeal, still led by the
Chief Justice, retained final jurisdiction in all non-constitutional matters, but all
matters within the jurisdiction of the Constitutional Court were excluded.8
Significantly, Johannesburg, 400 km from Bloemfontein where the Appellate
Division has been situated since 1910, was made the seat of the Constitutional
Court.9
The dualism of two final appeal courts was obviously not sustainable, nor was it
intended to be. In a few steps taken between 1997 and 2013, the configuration of
the courts was adapted and consolidated. The first step was taken in 1997 when the
‘final’ (current) Constitution of the Republic of South Africa 1996 (the
Constitution) came into effect. Since then the Supreme Court of Appeal could also
exercise constitutional jurisdiction, subject however to appeals to the Constitutional
Court.
In 2001, the head of the Constitutional Court became the Chief Justice and the
designation of the head of the Supreme Court of Appeal was changed to ‘President’.
This step signified a shift from the pre-constitutional concept of a non-constitutional
judicial hierarchy to the re-aligned primacy of constitution-based adjudication. It
was also significant in the sense that the concept of two parallel, potentially con-
current jurisdictions was replaced with a clear move towards the elevation of the
Constitutional Court to the pinnacle position. This was finally achieved in 2013
when the restructuring was completed by constitutional amendment,10 thus bringing
about the consolidation of the historical court structure with one which was better
3
S 2 and 96(2) of the Constitution of the Republic of South Africa, 1993 (the 1993 Constitution).
4
S 101(3) of the 1993 Constitution.
5
S 97(2)(a) of the 1993 Constitution.
6
S 98(3) of the 1993 Constitution.
7
S 98 of the 1993 Constitution.
8
S 101(2) and (5) of the 1993 Constitution.
9
10
Constitution Seventeenth Amendment Act, 2012.
suited to the transition to a constitutional state. The Chief Justice now became ‘the
head of the judiciary’ to exercise ‘responsibility over the establishment and mon-
itoring of norms and standards for the exercise of the judicial functions of all
courts.’11
8.2.2 The Constitution
8.2.2.1 Jurisdiction
When the current court structure was finalised in 2013 the limitation of the juris-
diction of the Constitutional Court to ‘constitutional matters’ was removed by
rendering it ‘the highest court of the Republic’.12
The Constitution is unequivocal when it comes to the constitutional jurisdiction
of the courts. In addition to the provision in section 2 that law or conduct incon-
sistent with the Constitution is invalid, section 172(1) explicitly requires courts
deciding constitutional matters within its jurisdiction to declare that any law or
conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency.
All divisions of the High Court have constitutional jurisdiction. Such jurisdiction
may be curtailed by the Constitutional Court by agreeing, on application, to hear a
matter directly ‘in the interests of justice’.
Currently judgments on constitutional matters by a High Court may, if not
appealed, be final, except in cases where the court makes an order declaring
national or provincial legislation or conduct of the President to be constitutionally
invalid. Such orders must be confirmed by the Constitutional Court, but the High
Court may grant temporary relief pending the final decision of the Constitutional
Court.13
The jurisdiction of the Constitutional Court is primarily, but not exclusively, to
adjudicate on constitutional matters. Since 2013 the Constitutional Court may (as
pinnacle court) decide any matter if it grants leave to appeal ‘on the grounds that the
matter raises an arguable point of law of general public importance which ought to
be considered by that Court.’14 The Court may also grant direct access to itself as
first and last instance or a direct appeal from any other court.15 Thus, the posi-
tioning of the Constitutional Court at the top of the judicial hierarchy has had the
11
S 165(6) of the Constitution
12
S 167(3)(a) of the Constitution as amended by the Constitution Seventeenth Amendment Act,
2012.
13
S 169(1) and 172 of the Constitution.
14
S 167(3)(b) and (c) of the Constitution.
15
S 167(6) of the Constitution.
176 F. Venter
effect of allowing it to select causes on the basis of the impact that their resolution
may have on the development of the law in general.
8.2.2.2 Composition and Appointment of Judges
The Constitutional Court is composed of eleven judges, including the Chief Justice
and the Deputy Chief Justice. In the event of a vacancy on the bench or the absence
of a judge from the Court, the President of the Republic may, on the recommen-
dation of the Minister of Justice and with the concurrence of the Chief Justice
appoint an acting judge to fill the vacancy temporarily.16
The 1993 Constitution provided for the establishment of the Judicial Service
Commission (JSC) to make recommendations regarding the appointment of judges
and to render advice on all matters relating to the judiciary and the administration of
justice.17 The current Constitution continued this arrangement with some necessary
changes.18
The JSC is presided over by the Chief Justice, and the other members are the
President of the Supreme Court of Appeal, a Judge President designated by the
Judges President of the Provincial Divisions of the High Court, the Minister of
Justice, two practising advocates and two practicing attorneys nominated by the
professions for appointment by the President, one teacher of law designated by
teachers of law at South African universities, six persons designated by the National
Assembly from among its members, at least three of whom must be members of
opposition parties represented in the Assembly, four permanent delegates to the
National Council of Provinces designated by the Council, four persons designated
by the President after consulting the leaders of all the parties in the National
Assembly, and, when considering matters relating to a specific Division of the High
Court, the Judge President of that Division and the Premier of the province con-
cerned. The six members of the National Assembly and the four members of the
National Council of Provinces participate in the proceedings of the JSC only when
the appointment of judges is considered.19
The appointment of the Chief Justice and the Deputy Chief Justice is entrusted to
the President as head of the national executive. The President must, before making
the appointment, consult the JSC and the leaders of political parties represented in
the National Assembly.20 In practice, the President nominates a person for
appointment, after which the JSC interviews the candidate, sometimes quite rig-
orously, before making a recommendation. Although the involvement of the JSC
ostensibly allows for objective considerations to come in play, the influence of
16
S 175(1) of the Constitution
17
18
S 178 of the Constitution.
19
20
politicians evident in the composition of the JSC dominates the recommendations

for appointment to the bench. Since 1994, the JSC has consistently endorsed every
nominee put forward by the President.
Judges of the Constitutional Court must be South African citizens, and at all
times at least four of the eleven must have been judges prior to their appointment.21
Although the President also appoints the other nine judges on the bench, the
Constitution provides for a framework for the procedure whereby political influence
is rendered less obvious than when a Chief Justice or Deputy Chief Justice must be
appointed, but it is still present.22 Where vacancies occur, the JSC must prepare a
list of nominees with three names more than the number of appointments to be
made. Preparation of such a list involves calling for nominations and shortlisting
nominated candidates, followed by public interviews of the candidates. This list is
then submitted to the President, who makes the appointments from the list after
consulting the Chief Justice and the leaders of parties represented in the National
Assembly. The President may however find nominees to be ‘unacceptable’ and
must then inform the JSC accordingly, providing reasons. The JSC must then
supplement the list, after which the President must make the required appointments
from it.
8.2.2.3 Independence
The Constitution seeks to ensure the independence and authority of the judiciary as
a whole by means of the unambiguous provisions of section 165(2)–(5).
Sub-section (2) states that ‘the courts are independent and subject only to the
Constitution and the law, which they must apply impartially and without fear,
favour or prejudice.’ This is supported by the wording of judicial officers’ oath of
office, in that they are required, before beginning to perform their judicial functions,
to swear or solemnly affirm that they ‘will be faithful to the Republic of South
Africa, will uphold and protect the Constitution and the human rights entrenched in
it, and will administer justice to all persons alike without fear, favour or prejudice,
in accordance with the Constitution and the law.’23
Section 165(3) prohibits any interference with the functioning of the courts,
sub-section (4) requires all organs of state to take measures to ‘assist and protect the
courts to ensure the independence, impartiality, dignity, accessibility and effec-
tiveness of the courts’. In sub-section (5) all orders and decisions issued by the
courts are rendered binding on everyone and every organ of state.
21
S 174(1) and (5) of the Constitution.
22
23
Item 6 of Schedule 2 to the Constitution.
178 F. Venter
8.2.3 Legislation
8.2.3.1 Superior Courts
The Superior Courts Act 1994 replaced the key pre-constitutional legislation reg-
ulating the superior courts, such as the Supreme Court Act 1959, in order, in terms
of its long title ‘[t]o rationalise, consolidate and amend the laws relating to the
Constitutional Court, the Supreme Court of Appeal and the High Court of South
Africa; to make provision for the administration of the judicial functions of all
courts; [and] to make provision for administrative and budgetary matters relating to
the Superior Courts.’ Significantly, in the opening statement of the preamble,
Parliament ‘noted’ that ‘section 1 of the Constitution of the Republic of South
Africa, 1996, provides that the supremacy of the Constitution and the rule of law
form part of the founding values of the Republic’.
The Act regulates, consonant with the provisions of the Constitution concerning
the judiciary, a range of matters such as the composition and seats of the various
superior courts, the management of judicial functions, access to the courts, the
appointment of executive officers of the courts, the manner of arriving at decisions
and resolving conflicting decisions in different divisions of the High Court, the
making of rules of court, some evidentiary and procedural matters, etc.
8.2.3.2 Office of the Chief Justice
As part of the process of restructuring the superior courts and ensuring the inde-
pendence of the judiciary, the need for administrative support for the Chief Justice
to perform the duties as head of the judiciary, and the desirability of removing court
administration from the executive and placing it in the hands of the judiciary itself,
provision was made in 2010 for the establishment of the Office of the Chief Justice
(OCJ). This was done by proclaiming the OCJ to be a ‘department’ in terms of the
Public Service Act 1994.24
Various other pieces of legislation govern the extra-forensic work of the Chief
Justice assisted by the OCJ. In terms of the Superior Courts Act, 2013 the Chief
Justice is responsible for the establishment and monitoring of norms and standards
of judicial functions for all courts and may issue written protocols, directives,
guidance and advice regarding the implementation of such norms and standards.
This Act also stipulates that the Secretary-General of the OCJ is its accounting
officer, indicating where the responsibility for the management of especially the
24
A national department is established by presidential proclamation in terms of which the name
of the department and its head is listed in Schedule 1 of the Public Service Act. Most departments
are placed under the political authority of members of cabinet, with directors-general as their
administrative heads. The head of the OCJ has the designation of ‘Secretary-General: Office of the
Chief Justice’.
financial resources is vested. As all departments of state, the OCJ is operated

subject to the provisions of the Public Finance Management Act 1999.
For the performance of a range of other functions of the Chief Justice, the OCJ
must provide support. These functions include chairing the council of the South
African Judicial Education Institution,25 the Judicial Service Commission26 and to
convene and chair a panel to process nominations for the Electoral Commission
Board.27
8.3 Challenges to Judicial Independence
As final arbitrators of disputes between a government and the citizenry, courts will
inevitably be exposed to close scrutiny of their compliance with the constitutional
requirements of objectivity and independence. It is also to be expected that a
powerful national executive whose actions and conduct are frequently scrutinised
by the judiciary, causing it political discomfort, will tend to attempt to circumvent
or decrease the risk of being constrained in pursuing its political agenda. Over the
past two decades, executive office bearers have indeed often resisted the authority
of the courts.
8.3.1 Political Challenges
8.3.1.1 ‘Transformation’ of the Judiciary
‘Transformation’ has been developed by the ANC government into an important

and pervasive rallying call for the shaping of policies, legislation and practices in all
aspects of state governance. Due to its generality and vagueness, the manner in
which the notion is utilised, justified and interpreted, varies. Regarding the
‘transformation’ of the judiciary, much has been written,28 but pinning down a
single purpose and intent of the campaign is difficult. That it is heavily burdened
with veiled ideological motivations, is nevertheless clear.29
25
In terms of the South African Judicial Education Institute Act 2008.
26
In terms of the Judicial Service Commission Act 1994.
27
In terms of the Electoral Commission Act 1996.
28
See, e.g., Klaaren 2015. It is evident that the racial composition of institutions such as the
judiciary is a key consideration of the ‘transformation’ project. Thus, e.g., one finds the following
government assessment of March 2017 at https://www.gov.za/about-government/judicial-
system#transform. Accessed 24 April 2018: ‘The department has made significant strides in its
quest to transform the judiciary. (…) Regarding racial demographics, there were 39 black judges,
11 coloured judges, 11 Indian judges and 25 white judges.’
29
See, e.g., Venter 2018b.
180 F. Venter
The basic political philosophy of the ANC is known as the ‘National Democratic
Revolution’ (NDR) whose core purpose is expressed as ‘the liberation of Africans
in particular and Blacks in general from political and socioeconomic bondage’ and
‘liberating the white community from the false ideology of racial superiority and the
insecurity attached to oppressing others’.30 Although a clear definition of ‘trans-
formation’ is not to be found in the Constitution or legislation, one may assume that
it is founded on the ethos of the NDR.
As an indication of the importance of the notion of transformation in political
thinking, the transformation of the judiciary has often been the subject of political
and policy documents generated by the ANC and the government. The National
Development Plan (NDP)31 for instance states:
Although the Constitution stipulates general criteria for the appointment of judicial officers;
it is important for the JSC to elaborate further guiding principles to build consensus on the
qualities and attributes of the “ideal South African judge”. The criteria should include a
progressive philosophy and an understanding of the socioeconomic context in which the
law is interpreted and enforced. While the JSC published a broad list of criteria for judicial
appointments in September 2010, they require further development and a clear under-
standing of their meaning and application.32
In a recent policy document of the ANC, it was indicated that the ANC must
influence the development of a criteria (sic) for the appointment of judicial officers with
progressive credentials and transformative judicial philosophy and expertise as required by
the NDP and ensure that adequate steps are taken to eliminate the risk of appointing
candidates who are not loyal to the Constitution and are beholden to racial and oppressive
policies of the past regime to the bench.33
The desired criteria ‘progressive philosophy’, ‘progressive credentials’ and

‘transformative judicial philosophy’ for appointment to the bench are vague enough
to allow for subjective and ideologically prejudiced choices to be made by the JSC.
That a degree of apprehension in this regard is justified is borne out by various
occurrences regarding the restructuring of the judiciary and actions surrounding the
JSC.
8.3.1.2 Executive Interference
Following behind the scenes discussions over a number of years between the
judiciary and the executive, the government published a draft Bill shortly before the
Christmas holidays of 2005 for public comment within the inordinately short period
30
ANC (2013) 24, para 39.
31
The NDP was compiled between 2010 and 2012 by an official National Planning Commission
appointed by the President.
32
National Planning Commission 2012, p 453.
33
ANC 2017, para 137.
of thirty days.34 This draft generated strong reaction from the public, the judiciary
and the legal profession, especially due to the impression that it created that the
intention was to allow the executive to interfere in the affairs of the judiciary. This
was to be achieved by inter alia empowering the Minister of Justice to exercise
authority over the administration and finances of all courts, the removal of the
courts’ jurisdiction to hear a matter dealing with, and to order the suspension of the
commencement of, an Act of Parliament or provincial Acts, and the weakening of
the role of the Chief Justice in the appointment of acting judges by requiring mere
consultation instead of concurrence in such appointments.35
At a conference organized by the Human Rights Committee of the General
Council of the Bar held in Johannesburg on 17 February 2006 former Chief Justice
Chaskalson (who had retired the previous year) and the newly appointed Chief
Justice Langa made their and the rest of the judiciary’s surprise over and opposition
to the government’s proposed incursions very clear.36 Fortunately, the public
response led to the withdrawal of the draft Bill, and eventually to the milder
constitutional amendments and the establishment of the OCJ discussed above. This
may indeed be seen as a victory at the time over an overbearing executive, but no
guarantee against similar attempts in future.
There have been many instances where politicians expressed their opposition to
judicial restraints on government conduct. In the run-up to the adoption of the
Constitution Seventeenth Amendment Act, 2012, for instance the following state-
ments were reported:37
– The then Deputy Minister of Correctional Services said, ‘In the past 17 years
(…) we have witnessed sustained and relentless efforts to immigrate the little
power left with the executive and the legislature to civil society and the judi-
ciary. Power (is) systematically taken out of the legislature and the executive to
curtail efforts and initiatives aimed at inducing fundamental changes.’
– The then ANC Secretary General was of the opinion that the judiciary was
becoming a form of opposition and said, ‘You can’t have a judiciary that seeks
to arrest the functioning of government.’
– The then President Zuma said in an interview: ‘We don’t want to review the
Constitutional Court, we want to review its powers.’
– The then ANC national spokesperson stated that ‘It is clear that democracy can
be undermined by simply approaching courts to reverse any decision arrived at
by a qualified organ of state.’
34
The draft was named the Constitution of the Republic of South Africa Fourteenth Amendment
Bill and was published in General Notice 2023 Government Gazette 28334 of 14 December 2005.
Some elements of this Bill eventually emerged in the Constitution Seventeenth Amendment Act of
2012.
35
For a thorough discussion of the draft Bill and the issues surrounding it, see Albertyn 2006.
36
See, e.g., Spilg 2006.
37
Tumukamoyo 2012.
182 F. Venter
– The then ANC Chief Whip said that the organisation would do everything in its
power, ‘to prevent government’s attempts to deliver services to the people’
being derailed by the courts.
In an analysis of the Constitutional Court’s ‘position of relative institutional
security’ in 2009, Roux found that the Court had not been in a position to concern
itself much with public opinion because ‘the ANC political elite has shielded the
Court from the political repercussions of its most unpopular decisions, allowing it to
build its legal legitimacy through principled decision making’, and that this was
achieved by ‘lending considerable legitimacy to the ANC’s social transformation
policies’.38 Since then however, the Court has been confronted with increased
government challenges of its authority amidst growing private appeals for the
protection of constitutional propriety and fundamental rights.
8.3.2 Non-compliance
The most evident form of political and executive challenge to the authority of the
courts is the frequent refusal of state institutions to give effect to negative outcomes
against them in the cases in which they are parties.
Where the fulfilment of the ideals of constitutionalism becomes a matter for
concern, an essential consideration is whether the public administration, the leg-
islature and executive consistently fulfil their constitutional obligations, including
those brought about by section 165(5) of the Constitution in terms of which all
orders and decisions issued by the courts bind everyone, including the organs of
state. This has been a concern for some time against which the courts, including the
Constitutional Court, have waged an enduring battle. It has been the subject of
numerous cases and academic commentary.39
8.3.2.1 Enforcing Orders Against the State
Circumstances under which this problem has arisen have typically been where
courts issued orders against the state for payments to be made to private applicants
sounding in money, findings that legislation was unconstitutional warranting an
order for rectification of the legislation within a set period of time, and determi-
nation of executive or administrative laxity or default requiring corrective steps to
be taken.
38
Roux 2009, p 138.
39
See, e.g., Roos 2006; De Vos 2009 and Malherbe and Van Eck 2009 for analyses of many of
the relevant cases.
The judgments of the Constitutional Court in 2008 and 2009 in the Nyati cases40
may be considered to represent an important beacon in this process. In 2008,
Madala J remarked:
In more recent years, and in particular the period from 2002 onwards, courts have been
inundated with situations where court orders have been flouted by state functionaries, who,
on being handed such court orders, have given very flimsy excuses which in the end only
point to their dilatoriness. The public officials seem not to understand the integral role that
they play in our constitutional state, as the right of access to courts entails a duty not only
on the courts to ensure access but also on the state to bring about the enforceability of court
orders.41
At stake in these cases was the validity of a provision of the pre-constitutional

State Liability Act of 1957 (fashioned on the English Crown Liabilities Act) which
placed mere moral obligations on the state to satisfy debts incurred by judgments
made against it. The Court declared the relevant section of the Act to be incon-
sistent with the Constitution to the extent that it does not allow for execution or
attachment against the State and that it does not provide for an express procedure
for the satisfaction of judgment debts. The declaration of invalidity was suspended
for a period of 12 months to allow Parliament to pass legislation providing for the
effective enforcement of court orders.
One day before the expiry of the 12-month period allowed for the rectification, a
draft of the required amending legislation was officially published for public
comment, and the responsible minister urgently applied to the Court for an
extension of the suspension of invalidity for another year. The Court granted the
request for extension but made an order to remedy the shortcomings of the old law
in the interim. The Court ruled that, if a final order against a national or provincial
department for the payment of money is not satisfied within thirty days of the date
of the judgment, the judgment creditor may serve the court order on the relevant
national or provincial treasury, the state attorney, the accounting officer of the
relevant national or provincial department, as well as the executive authority of the
department concerned who had to cause the judgment debt to be settled within
fourteen days of service of the order, failing which movable property of the state
could be attached, removed and sold in execution of the judgment debt.
8.3.2.2 Executive and Administrative Procrastination
An amendment to the 1957 Act was eventually adopted in 2011 to conform to the
requirements of the Constitution as indicated by the Constitutional Court. More
40
Nyati v Member of the Executive Council for the Department of Health, Gauteng 2008 (5) SA
94 (CC) and Nyathi v Minister for Justice and Constitutional Development 2010 (4) SA 567 (CC).
41
Nyati v Member of the Executive Council for the Department of Health, Gauteng 2008 (5) SA
94 (CC), para 60.
184 F. Venter
recently, the Court however found it necessary to deal with executive negligence
not only judicially, but also administratively.
In accordance with government policy a massive scheme for the provision of
financial support to indigent persons was developed, involving the monthly dis-
bursement of social welfare grants to seventeen million beneficiaries. Initially the
grants were paid out by the nine provincial governments, but due to their ineffi-
ciency, the task was centralised. For this purpose, the South African Social Security
Agency (SASSA) was established in 2005 to administer the payment of social
security grants. Lacking the capacity to do the actual disbursement, SASSA
awarded a tender to a private company (Cash Paymaster) to undertake the task. In
2013, the Constitutional Court determined that the tender was invalidly awarded but
suspended the order of invalidity pending determination of a just and equitable
remedy.42
In a follow-up case, the Court found that SASSA’s contract with Cash Paymaster
was invalid, but, in order not to interrupt the distribution of the grants essential for
the subsistence of many recipients, the invalidity was suspended to allow for the
tender process to be conducted properly. The Court issued a structural (supervisory)
order requiring regular reports at each stage of the new tender process to be sub-
mitted to the Court itself to ensure effective monitoring, accountability and
impartiality.43
It soon emerged that the new tender process was also flawed, causing the Court
to intervene again.44 SASSA indicated late in 2015 that it would undertake the
distribution of the grants itself when the Cash Paymaster was to stop its services on
31 March 2017, but the SASSA officials soon discovered that the agency would not
be up to the task. The matter again came before the Constitutional Court, where the
responsible Minister stated that the officials told her of SASSA’s inability to per-
form the function only by October 2016. Neither SASSA nor the Minister did
anything to rectify the situation and confronted the Court with their opinion that
Cash Paymaster was the only entity capable of administering the disbursement of
the grants. Various NGO’s approached the Court to intervene, and in its judgment
severe judicial frustration was expressed:
This Court and the country as a whole are now confronted with a situation where the
executive arm of government admits that it is not able to fulfil its constitutional and
statutory obligations to provide for the social assistance of its people. Moreover, in the
deepest and most shaming of ironies, it now seeks to rely on a private corporate entity, with
no discernible commitment to transformative empowerment in its own management
structures, to get it out of this predicament.45
42
AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African
Social Security Agency 2014 (1) SA 604 (CC) (AllPay 1).
43
AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African
Social Security Agency 2014 (4) SA 179 (CC) (AllPay 2).
44
AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South
African Social Security Agency 2015 (6) BCLR 653 (CC).
45
Black Sash Trust v Minister of Social Development 2017 (3) SA 335 (CC), para 8.
At the time of writing (April 2018), it would appear that a portion of the grant
payments will in future be undertaken through the South African Post Office, but
the process for the due award of the tender to deal with the rest has not been
concluded.
8.3.3 ‘Transformation’
The degree of independence of the judiciary is closely related to the nature and
quality of the legal professions serving the courts. The structure of the legal pro-
fessions in South Africa has its roots in the English tradition introduced in the
colonial era of the 19th century. Although the English designations of ‘barrister’ and
‘solicitor’ have long since been replaced by ‘advocate’ and ‘attorney’, the split
nature of the broad profession has survived. Both the advocates and the attorneys
have for many years been self-regulating professions with strict ethical standards
enforced in the case of the advocacy by voluntary associations known as ‘bar
councils’, and for the attorneys, regional societies of attorneys known in the ver-
nacular as ‘law societies’.
Over a period of more than a decade, politically driven planning for the ‘re-
structuring’ of the legal professions has been afoot. The development of a system of
centralisation of control over the professions and direct executive involvement as a
means of restructuring the existing legal professions, has ominous implications for
the independence of the legal profession and by strong implication also for the
judiciary. A brief review of the history of the process is necessary to illuminate its
implications.
In 1999 the bar councils approached the courts for a review of the Competition
Commission’s refusal to grant advocates exemption from certain statutory
requirements concerning restrictive horizontal practices. When the matter reached
the Supreme Court of Appeal, it became clear that the government wished to take
steps to radically ‘transform’ the legal professions and the judiciary. In the judg-
ment of the Supreme Court of Appeal the Commission’s explanation of its refusal
was strongly criticised because not the relevant statutory grounds were proffered,
but the fact that the government was preparing legislation to effect the desired
‘transformation’.46
When the Legal Practice Act, 2014 was passed twelve years later, the preamble
stated the primary purpose to be ‘[t]o provide a legislative framework for the
transformation and restructuring of the legal profession in line with constitutional
imperatives so as to facilitate and enhance an independent legal profession that
broadly reflects the diversity and demographics of the Republic’. A key feature of
the Act is the dissolution of the self-regulating associations and societies of the
46
Commissioner, Competition Commission v General Council of the Bar of South Africa 2002
(6) SA 606 (SCA), para 11 at 616.
186 F. Venter
advocates and attorneys and their replacement with a ‘Legal Practice Council’,
which is to report to and render advice to the Minister of Justice.
Significantly, the explanatory memorandum attached to the Bill when it was
introduced in Parliament stated that ‘[t]raining is recognised in the Bill as a key
transformational imperative, as legal practitioners are the main source of candidates
for the judiciary, the transformation of which is of paramount importance.’47 The
Act purports to be founded on the need to ‘embrace the values underpinning the
Constitution’48 and requires the Council to create a mechanism to ‘provide
appropriate legal education and training, having due regard to our inherited legacy
and new constitutional dispensation.’49 The Act is however silent on the meaning
that should be attached to the expressions ‘constitutional imperatives’ linked to
‘transformational imperatives’, which leaves ample room for arbitrary influence of
legal education and training aimed at achieving the government-prescribed goals of
‘transformation’. The gradual implementation of the Legal Practice Act is currently
underway.
8.4 Development and Direction: An Assessment
Given the constitutional and legislative foundations on which the Constitutional

Court is built, its history since 1995 and the body of jurisprudence produced over
this period by the apex court and other South African courts with constitutional
jurisdiction, there is sufficient data on which an assessment can be made of the
accountability of the judiciary, its positioning in the scheme of separated state
powers and the impact of its judgments.
8.4.1 Accountability
8.4.1.1 Political Predilection
Against the background of the constitutional arrangements regarding the indepen-

dence and binding judicial authority of the courts, their primary accountability is to
the ‘Constitution and the law.’ This standard may be understood to justify and
provide the overall measure for the system of review and appeal from the lowest
courts through the full hierarchy up to the Constitutional Court. When cases are
adjudicated by the apex court, accountability to the Constitution and the law can
become abstract, because the judgments of the Constitutional Court are final and
47
Legal Practice Bill [B 20D-2012] 3.5.8 of the Memorandum on page 65.
48
S 3(a).
49
S 6(5)(f)(i).
they bind all, in effect implying that the law and the Constitution means what the
Constitutional Court says it means, subject only to the possibility of parliamentary
amendment of legislation or of the Constitution itself in accordance with the pro-
cedural requirements entrenched in the Constitution itself.50
Very early in the career of the Constitutional Court it was established that it was
not appropriate for the Court to be guided by popular sentiment or opinion. In the
iconical death penalty case, actually the very first case heard by the new court in
February 1995, the President of the Court made this point in the following dictum
poignantly providing direction for the future, therefore warranting full citation here:
Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for
the duty vested in the Courts to interpret the Constitution and to uphold its provisions
without fear or favour. If public opinion were to be decisive, there would be no need for
constitutional adjudication. The protection of rights could then be left to Parliament, which
has a mandate from the public, and is answerable to the public for the way its mandate is
exercised, but this would be a return to parliamentary sovereignty, and a retreat from the
new legal order established by the 1993 Constitution. By the same token the issue of the
constitutionality of capital punishment cannot be referred to a referendum, in which a
majority view would prevail over the wishes of any minority. The very reason for estab-
lishing the new legal order, and for vesting the power of judicial review of all legislation in
the courts, was to protect the rights of minorities and others who cannot protect their rights
adequately through the democratic process.51
The positioning of public opinion below the courts’ understanding of the

demands of the Constitution is more readily justifiable where it concerns opinions
on the death penalty than in cases where political dogma comes into play. It would
appear that judges have lately become less restrained in giving expression in their
judgments to their personal predilections regarding sensitive social issues such as
racial equality. Thus, in a judgment that condoned the non-appointment of a white
police officer to a position for which she was better qualified than any of the other
applicants, the Constitutional Court cited a judgment of the Supreme Court of
Appeal that described the Constitution as a generous gift of the majority to the
minority to justify its findings:
It was because the majority of South Africans had experienced the humiliating legal effect
of repressive colonial conceptions of race and gender that they determined that henceforth
the role of the law would be different for all South Africans. Having themselves experi-
enced the indignity and pain of legally regulated subordination, and the injustice of
exclusion and humiliation through law, the majority committed this country to particularly
generous constitutional protection for all South Africans52
50
Sections 73–82 of the Constitution provide for these procedures in minute detail. Compliance
with these procedures is subject to adjudication by the Constitutional Court in terms of section 167
(4) and (5).
51
S v Makwanyane 1995 (3) SA 391 (CC), para 88.
52
Dictum of the Supreme Court of Appeal in Fourie v Minister of Home Affairs 2005 (3) SA 429
(SCA) cited in South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC), para
31.
188 F. Venter
More recently profound differences in dogmatic preference was alarmingly

demonstrated in acrimonious exchanges between judges in their formal judgments
in a case concerning the changing of street names in Pretoria. Two judges on the
Constitutional Court bench took the position that ‘[i]t is not consonant with the
values of the Constitution to deny constitutional protections to people because of
the content of their beliefs, views and aspirations’53 to which another judge retal-
iated with the following heated statement:54
How can that unquestionably transformative Constitution be expected to recognise cultural
traditions rooted in the racist past? The answer must be, if there is such expectation, that it
is misplaced. The fact that the oppressive racist history exists at the level of fact does not
mean that it deserves any recognition in the Constitution.55
These examples of increasing variation in the dogmatic stances among the

justices (more of which have occurred recently)56 raise the concern that some
judges of the apex court are developing a penchant for interpreting the Constitution,
especially in certain types of cases, more in accordance with the policies of the
government than with the dictates of the Constitution. Such a tendency may suggest
a shift in the courts’ understanding of accountability.
8.4.1.2 Formal Censure
On a formal level, judges may be held accountable by the JSC for their conduct.
The Judicial Service Commission Act 1994 provides for the establishment of the
Judicial Conduct Committee, composed of the Chief Justice, the Deputy Chief
Justice and four judges designated by the Chief Justice in consultation with the
Minister. The Committee is tasked to deal with complaints lodged by anyone
against a judge based on grounds such as gross incapacity, misconduct and neg-
ligence. Lesser complaints may be summarily dismissed, ‘serious, non-impeachable
complaints’ may lead to reprimands, warnings, etc. by the Committee, but if the
chairperson (normally the Chief Justice) is satisfied that the complaint may lead to a
finding of serious misconduct, the Committee may decide to refer the matter to a
Judicial Conduct Tribunal.
Such a tribunal is appointed by the Chief Justice at the request of the Judicial
Conduct Committee composed of two judges and one other ‘suitable’ person. The
President of the Tribunal (designated by the Chief Justice) may arrange for a
member of the NPA to collect evidence on behalf of the Tribunal. The Tribunal
53
Tshwane City v Afriforum 2016 (6) SA 279 (CC), para 159.
54
Ibid., para 151.
55
The ‘implication’ referred to here was that ‘any reliance by white South Africans, particularly
white Afrikaner people, on a cultural tradition founded in history, finds no recognition in the
Constitution.’
56
See, e.g., the separate judgments of Mogoeng CJ and Froneman J in Economic Freedom
Fighters v Speaker of the National Assembly 2018 (2) SA 571 (CC).
reports its findings to the JSC. If the Commission finds that judge concerned is
suffering from an incapacity, is grossly incompetent or is guilty of gross miscon-
duct, the JSC (on which the ten parliamentary members do not serve for this
purpose) must submit its findings to the Speaker of the National Assembly.
The purpose of reporting the findings against a judge to the National Assembly
is for that democratically elected body to consider, in terms of section 177(1) of the
Constitution the removal of the judge. Section 177(1)(b) requires a resolution
supported by at least two-thirds of the members of the National Assembly for a
judge to be removed (‘impeached’57), where after the President is bound to formally
remove the judge.
The JSC’s record regarding judicial discipline has, to say the least, been mot-
tled.58 It is significant that many of the activities of the JSC relating to judicial
discipline and accountability have led to litigation in which the courts consistently
called the Commission to order.59 Commenting on the manner in which the serious
allegations against the Judge President of the Western Cape High Court have been
dealt with by the JSC, Corder concluded that
[p]erhaps the most striking point of this long-running saga is that the courts’ repeated
reversal of the JSC’s decisions, as well as the manner in which the JSC attempted to justify
its actions, has betrayed a degree of incompetence as well as an arrogant pursuit of political
interests by the majority in the JSC rather than the fulfilment of its constitutional duty to
ensure judicial accountability.60
At the time of writing it would however appear that the JSC may soon take
decisions that can lead to ‘impeachment’ procedures being launched. In the Hlope
matter a tribunal was set up in 2013, and after much prevarication and litigation, it
has been announced that the Tribunal will sit early July 2018.61 In a report of the
Judicial Conduct Tribunal dated 17 April 2018 ‘in re: Judge NJ Motata’ it was
concluded that the impugned conduct of the judge was ‘racist and that they impinge
on and are prejudicial to the impartiality and dignity of the courts’, that ‘the lack of
integrity in the manner in which Judge Motata allowed his defence to be conducted
at his trial, in our view is incompatible with or unbecoming of the holding of
judicial office’ and it was suggested that, if the judge was to retain his position as
judicial officer, it would ‘negatively affect the public confidence in the judicial
57
Although the Judicial Service Commission Act 1994 uses the term ‘impeachable complaints’ in
ss 16 and 17, the term ‘impeachment’ does not occur in the Constitution.
58
See, e.g., Corder 2014, pp 212–221.
59
Cf., e.g., Langa CJ v Hlope 2009 (4) SA 382 (SCA), Motata v Nair 2009 (1) SACR 263 (T),
Acting Chairperson, Judicial Service Commission v Premier, Western Cape 2011 (3) SA 538
(SCA), Freedom Under Law v Acting Chairperson, Judicial Service Commission 2011 (3) SA 549
(SCA) and Hlope v Premier of the Western Cape Province; Hlope v Freedom Under Law 2012
(6) SA 13 (CC).
60
Corder 2014, p 219.
61
See https://city-press.news24.com/News/john-hlophe-faces-risk-of-impeachment-20180415.
Accessed 25 April 2018.
190 F. Venter
system.’ The Tribunal recommended the institution of the constitutional procedure

for the removal (‘impeachment’) of the judge.62
In April 2018, the Constitutional Court handed down a judgment pertaining to
the transparency of the proceedings of the JSC.63 The case concerned ‘private
deliberations’ held by the JSC in 2012 regarding recommendations for the
appointment of judges to the Western Cape Division of the High Court. The
appellant in the case wished the decision on the recommendations to be declared
unlawful and irrational. The JSC withheld the recordings of its deliberations from
the courts and both the provincial High Court and the Supreme Court of Appeal
held that the JSC was entitled to withhold the recordings. The Constitutional Court
however set aside this holding, ordering that the recordings and transcripts of the
relevant proceedings be delivered to the appellant. In the majority judgment, the
Court stated:
If a public functionary can withhold information relevant to the decision, there is always a
risk that possible illegalities remain uncovered and are thus insulated from scrutiny and
review. That is at variance with the rule of law and our paramount values of accountability,
responsiveness and openness. This affects not only the individual litigant, but also the
public interest in the exercise of public power in accordance with the Constitution.64
8.4.2 Separation of Powers and the Rule of Law
The introduction of constitutional review jurisdiction to South African constitu-

tional law inevitably required the judiciary to attend to issues relating to the trias
politica and the rule of law. References to this doctrine abound in the judgments of
the Constitutional Court. Thus, for instance, the Court stated in 1998 that the right
not to be detained without trial was ‘the pre-eminent, if not the only, guarantee
against arbitrary administrative detention and is indispensable for the upholding of
the rule of law and the separation of powers in a constitutional state.’65
In a case concerning the extension of the term of office of the Chief Justice by
the President in 2011, the Court reiterated that ‘[t]he principles of the rule of law,
the separation of powers and judicial independence, underscored by international
law, are indispensable cornerstones of our constitutional democracy.’66
62
Published online at http://www.politicsweb.co.za/documents/nkola-motata-should-be-impeached–
judicial-conduct. Accessed 25 April 2018, paras 58–60.
63
Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8.
64
Ibid., para 67.
65
De Lange v Smuts 1998 (3) SA 785 (CC), para 89.
66
Justice Alliance of South Africa v President of Republic of South Africa 2011 (5) SA 388 (CC),
para 40.
The frail position of the judiciary in relation to the executive and the legislature
was expressed by a judge given to flowery language in a judgment of 2008:
In our constitutional order, the judiciary is an independent pillar of state, constitutionally
mandated to exercise the judicial authority of the state fearlessly and impartially. Under the
doctrine of separation of powers, it stands on an equal footing with the executive and the
legislative pillars of state; but in terms of political, financial or military power, it cannot
hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest
independence and authority are essential. Having no constituency, no purse and no sword,
the judiciary must rely on moral authority. Without such authority it cannot perform its vital
function as the interpreter of the Constitution, the arbiter in disputes between organs of state
and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against
the state.67
The progressive inclusion in the Bill of Rights of socio-economic rights

enforceable against the state has particularly caused the judiciary to test the
boundaries of the separation of powers. The basic justification adhered to by the
Constitutional Court to intervene in the exercise of legislative and executive powers
has been that ‘the courts are the ultimate guardians of the Constitution’.68 That the
doctrine will always be theoretically vague, has also been acknowledged: ‘that
although there are no bright lines that separate the roles of the legislature, the
executive and the courts from one another, there are certain matters that are
pre-eminently within the domain of one or other of the arms of government and not
the others’.69
In quite a few instances, especially in recent years during the Zuma presidency,
the Constitutional Court was called upon to resolve hotly contested political issues
involving the constitutional delinquency of the executive and the
executive-dominated Parliament. In a judgment in which the Court found that the
failure by the National Assembly to make rules regulating the removal of a
President was a violation of the Constitution and ordered the making of such rules
without delay, the separation of powers inevitably came up again. The Court set out
its position as follows:
The order proposed does not involve the exercise by this Court of the Assembly’s powers.
On the contrary, it requires the Assembly itself to exercise those powers and perform its
constitutional functions without delay. This cannot be and is not a breach of the principle of
separation of powers but consists in no more than the Court fulfilling its constitutionally
assigned duty.70
67
S v Mamabolo 2001 (3) SA 409 (CC), para 16.
68
See, e.g., Glenister v President of the Republic of South Africa 2009 (1) SA 287 (CC), para 33.
69
See Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), paras 98–99.
70
Economic Freedom Fighters v Speaker of the National Assembly 2018 (2) SA 571 (CC), para
220.
192 F. Venter
8.4.3 Impact of Constitutional Judgments
8.4.3.1 Concurrence and Dissent
A key element in the nature (and success) of the Constitutional Court is the
arrangement that it has only one bench. In principle, this means that when the Court
sits to hear and decide every case that comes before it, all the judges sit together.
For various reasons, such as being on leave, temporary illness or legitimate absence
from the Court, it is not always possible for all eleven justices to attend all the
sittings of the Court. A quorum consists of eight judges.71
As may be expected, en banc judgments are not always unanimous, and minority
judgments either supporting or dissenting from the judgment of the majority, which
is binding on all, often occur. The requirement implied by the configuration of the
Court that at least a majority of the members of the Court must agree on its
decisions has a constructive consequence: prior to the delivery of a judgment the
judges must discuss, and debate if necessary, and therefore carefully consider its
outcome and justification.72
Minority judgments are not always dissenting in nature but intended to add the
minority judges’ perspectives and reasons for the Court’s findings. As in all
judgments of the Constitutional Court dissenting minority judgments are consis-
tently supported by judges’ justificatory arguments. These arguments may be useful
for the Court and counsel in future cases to assist in the justification of arguments in
similar or related matters. It stands to reason that minority judgments in support of
the majority will be more persuasive, but the arguments and justifications found in
minority judgments may also carry weight in the process of the judicial develop-
ment of the law.
8.4.3.2 Precedent
The pre-constitutional judge-made doctrine of stare decisis survived the constitu-

tional transition of 1994, although it is not regulated constitutionally or statutorily.
The Constitutional Court has, however clearly confirmed it in the following terms:
[P]recedents must be respected in order to ensure legal certainty and equality before the law.
This is essential for the rule of law. Law cannot “rule” unless it is reasonably predictable.
A highest court of appeal – and this Court in particular – has to be especially cautious as far as
adherence to or deviation from its own previous decisions is concerned. It is the upper
guardian of the letter, spirit and values of the Constitution. The Constitution is the supreme
law and has had a major impact on the entire South African legal order – as it was intended to
do. But it is young; so is the legislation following from it. As a jurisprudence develops,
understanding may increase and interpretations may change. At the same time though, a
71
72
See, e.g., O’Regan 2014, pp 409–11.
single source of consistent, authoritative and binding decisions is essential for the develop-
ment of a stable constitutional jurisprudence and for the effective protection of fundamental
rights. This Court must not easily and without coherent and compelling reason deviate from its
own previous decisions or be seen to have done so. One exceptional instance where this
principle may be invoked is when this Court’s earlier decisions have given rise to controversy
or uncertainty, leading to conflicting decisions in the lower courts.73
8.4.3.3 Confronting Corruption
Over time, but especially during the Zuma presidency (2009–2018) constitutional
adjudication of matters concerning the stemming of corrupt practices and abuse of
government powers have taken much time and judicial energy. An exposition and
analysis of the resulting jurisprudence requires extensive discussion.74 For present
purposes, the citation of a few dicta should suffice to obtain an impression of the
flavour of the judicial attitude in this regard:
There can be no gainsaying that corruption threatens to fell at the knees virtually everything
we hold dear and precious in our hard-won constitutional order. It blatantly undermines the
democratic ethos, the institutions of democracy, the rule of law and the foundational values
of our nascent constitutional project. It fuels maladministration and public fraudulence and
imperils the capacity of the state to fulfil its obligations to respect, protect, promote and
fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime
flourish, sustainable development and economic growth are stunted. And in turn, the sta-
bility and security of society is put at risk.75
All South Africans across the racial, religious, class and political divide are in broad
agreement that corruption is rife in this country and that stringent measures are required to
contain this malady before it graduates into something terminal.76
(…) public-office bearers ignore their constitutional obligations at their peril. This is so
because constitutionalism, accountability and the rule of law constitute the sharp and
mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.77
Taking all the circumstances sketched and the considerations made we are of the view that
the President was ill advised and reckless in launching the challenge against the remedial
action of the Public Protector. He is aware that since allegations of “State Capture” initially
surfaced and more so, after the Public Protector’s report the matter remains in the public
domain and requires decisive action and resolution. His Court challenge has resulted in
further delaying the resolution of the “State Capture” allegations.78
73
Gcaba v Minister for Safety and Security 2010 (1) SA 232 (CC), para 62.
74
See, e.g., Venter 2018a and 2018b.
75
Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC), para 166.
76
Helen Suzman Foundation v President of the Republic of South Africa 2015 (2) SA 1 (CC),
para 1.
77
Economic Freedom Fighters v Speaker, National Assembly 2016 (3) SA 580 (CC), para 1. For
an analysis of the judgment, see Venter 2017.
78
President of the Republic of South Africa v Office of the Public Protector 2018 (2) SA 100
(GP), para 189.
194 F. Venter
8.5 Some Comparative Observations
At least in Sub-Saharan Africa South African constitutional law and jurisprudence

are regularly cited. The draftsmanship of the Constitutions of Kenya of 201079 and
of Zimbabwe of 201380 show clear signs of the influence of the South African
Constitution of 1996, and the courts of countries such as Botswana, Kenya and
Namibia regularly cite the South African Constitutional Court in their judgments.
This may in general terms be ascribed to the impact that the global precepts of
constitutional democracy have had on African constitution-writing and jurispru-
dence in recent decades.81
Because of the influence that the German and Canadian constitutions had on the
drafting of the South African Constitution, it is not surprising that the Constitutional
Court has, especially in its early years, made extensive use of the jurisprudence of
those countries,82 but authority from a wide range of other jurisdictions, including
the USA, the EU, the UK and India have also been sourced by constitutional
judges.83
8.6 Concluding Remarks
The South African judiciary, and specifically the Constitutional Court has estab-
lished itself as the most important and effective institution capable and able to
develop and protect the precepts of constitutionalism expressed in the Constitution.
Especially in its first decade the Constitutional Court took the responsibility
essentially to reconfigure the South African legal order as a whole and excelled in
breaking new ground in which the values and principles of the new dispensation
could sprout.
In time, the Court has undergone a number of severe challenges and has survived
them by consistently providing well-reasoned and accessible judgments. Inevitably
the courts have been embroiled in a number of distasteful and even alarming
political struggles between champions of and aggressors against constitutionalism,
and there is an ongoing executive-led programme to ‘transform’ the judiciary in
79
See, e.g., Kaguongo 2018, p 6.
80
See, e.g., Banda 2014, p 491.
81
Cf., e.g., the tenor of the preamble to the African Charter on Democracy, Elections and
Governance adopted by the African Union in 2007, including phrases such as ‘to deepen and
consolidate the rule of law, peace, security and development in our countries’; ‘to strengthen and
consolidate institutions for good governance, continental unity and solidarity’ and ‘committed to
promote the universal values and principles of democracy, good governance, human rights and the
right to development’.
82
See, e.g., Rautenbach and Du Plessis 2013.
83
See, e.g., Lollini 2007.
order to secure a larger degree of judicial amenability to majority politics. That this
programme is having consequences is apparent from judgments providing legiti-
macy to the ANC’s policies aimed at ‘social transformation’ and in the ongoing
process of obtaining executive control over the legal professions.
Despite these indications that there may be cause for concern, the momentum of
the judicial culture that was developed independently in the first years following the
introduction of constitutional supremacy still prevails. The legitimacy of the
judgments of especially the Constitutional Court continues to be buttressed by
mechanisms such as en banc adjudication, comprehensive (sometimes exhaustive)
justificatory argumentation and commitment to the defence of the integrity of the
Constitution.
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Kaguongo W (2018) Introductory Note on Kenya. http://www.icla.up.ac.za/images/country_
reports/kenya_country_report.pdf Accessed 26 April 2018
Klaaren J (2015) Transformation of the Judicial System in South Africa, 2012–2013. The George
Washington International Law Review 47:481–508
Lollini A (2007) Legal argumentation based on foreign law: An example from case law of the
South African Constitutional Court. Utrecht Law Review 3:60–74
Malherbe R, Van Eck M (2009) State Non-compliance with Legal Duties: The Constitutional
Court Finally Cracks the Whip. TSAR 191–198
National Planning Commission (2012) Our future: Make it work. National Development Plan
2030. https://nationalplanningcommission.files.wordpress.com/2015/02/ndp-2030-our-future-
make-it-work_0.pdf Accessed 18 April 2018 Accessed 19 April 2018
O’Regan K (2014) The Constitutional Court: A Judge’s Perspective. In: Hoexter C, Olivier M
(eds) The Judiciary in South Africa. Juta, Cape Town, pp 403–413
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SALJ 123:744–766
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7:106–138
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Tumukamoyo H (2012) Double Speak About Judicial Reform In South Africa Raises Alarm Bells.
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in-south-africa-raises-alarm-bells Accessed 18 April 2018
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Francois Venter is a constitutional scholar who was closely involved in the drafting of the South
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(Potchefstoom Electronic Law Journal), served as dean of the Faculty of Law in Potchefstroom
between 1990 and 2012, and has published widely on constitutional comparison and constitu-
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regular visitor and alumnus of the Max Planck Institute for Comparative Public Law and
International Law in Heidelberg.
Chapter 9
Judicial Independence
and Accountability in the Council
of Europe and the European Court
of Human Rights
Jörg Luther
Contents
9.1 The Relevance of the Common European Constitutional Heritage ............................... 198
9.2 Why the History of European Constitutionalism Matters .............................................. 201
9.3 How Judicial Independence and Accountability Were Developed Within the Council
of Europe ......................................................................................................................... 203
9.4 On the Autopoietic Value of the ECtHR Case Law ...................................................... 206
9.5 How Rights and Duties Safeguard Personal Independence ........................................... 208
9.6 Mechanisms that Grant Personal Accountability............................................................ 210
9.7 How the Court’s Powers Grant Institutional Independence from the Council of Europe
and Member States .......................................................................................................... 212
9.8 Whether Institutional Accountability in Europe Can Avoid National Veto
Plays................................................................................................................................. 213
9.9 How ECtHR Judges Get (S)elected ................................................................................ 215
9.10 Conclusions...................................................................................................................... 218
References .................................................................................................................................. 219
Abstract This chapter assesses various aspects of judicial independence, judicial

accountability and the election and selection of judges as reflected by the experi-
ences of the European Court of Human Rights (ECtHR). History shows that
independence is a common principle and tradition of European constitutionalism. It
has been implemented and balanced with accountability through reforms condi-
tioned by standards of soft law from the Council of Europe and by case law of the
ECtHR. The puzzle of rules that frame personal and institutional independence and
accountability shows remaining problems and differences between international and
constitutional judges. Election procedures balance personal independence with
J. Luther (&)
University of Eastern Piedmont Amedeo Avogadro, Alessandria, Italy
e-mail: joerg.luther@uniupo.it

https://doi.org/10.1007/978-94-6265-359-7_9
198 J. Luther
institutional accountability, but the supporting European consensus suffers populist

threats to human rights protection.

Keywords accountability comparative law constitutionalism European Court

of Human Rights independence selection of judges
9.1 The Relevance of the Common European

Constitutional Heritage
The design of judicial power in a democratic society might have been improved by
the European models of constitutional and international jurisdiction. European
constitutional and international judges worked on principles and rules of inde-
pendence and accountability, two polysemous and potentially antithetic topics that
need to be accurately contextualised in different legal and political cultures. This
chapter focusses on the Council of Europe and the European Court of Human
Rights (ECtHR), institutions where the contexts are frequently compared and both
the construction of ideals of a common constitutionalism and the maintenance of
cultural differentiation are performed.
The Council of Europe is ‘safeguarding and realising the ideals and principles
which are their common heritage’ (Article 1a, 3 Statute), including the common
European constitutional heritage of the rule of law and ‘genuine democracy’
(preamble).1 Generally spoken, judicial independence and legal or political
accountability are principles necessary for the ‘maintenance and further realisation
of human rights and fundamental freedoms’ (Article 1b) and for the separation of
powers, a fundamental principle common to the law of the member states of the
Council of Europe. The Council of Europe’s Statute did not establish a judiciary,
but the European Convention of Human Rights (ECHR) created the Court for
inter-state litigation and applications from any person, non-governmental organi-
sation or group of individuals who claim to be victims of a violation of the con-
ventional rights, including the entitlement to ‘a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law’
(Article 6(1) ECHR).
This source of European human rights law is binding for States as national and
international lawmakers for a democratic society. The normative value and the
concrete rules may vary within the relevant legal orders, but in a comparative
perspective judicial independence seems to be a consolidated common constitu-
tional tradition. Meanwhile, common features of judicial accountability are still in
fieri (1) and the transfer of both principles to constitutional and international courts,
especially the ECtHR, needs further comparative analysis (2).
1
Pizzorusso 2002, p 144 ff.
(1) Judicial accountability has a common law background and is translated in

different ways. It is used less in Council of Europe sources and more in economic
management and political theory.2 For purposes of comparative analysis, a broad
concept could include all mechanisms of personal responsibility and liability of
judges as well as of control over efficient performance of the institution, including
the mechanisms of judge selection.
A general constitutional idea might be that all powers can be independent and
accountable through mechanisms of ‘checks and balance’ as well as of electoral
accountability. All powerholders need to be ensured against violence, threats and
corruption and to be held accountable for crimes, torts and lack of discipline. Their
institutions need to respect the rule of law, but public powers in a democratic
society also need control through public opinion framed by differentiated media.
Administrations need control by a government accountable to the lawmakers and by
judges accessed by the people. Judges, even of last resort, need to be independent
from governmental control and mechanisms of political confidence, but subject to
impartial law-making and to judicial remedies and responsibilities. Democratic
discontinuity of parliaments and governments justifies forms of sacrificial
accountability to the electors; the continuity of administrations and jurisdictions
could require more forms of explanatory accountability.3
(2) The principles of independence and accountability could be applied also to
constitutional and international judges, but there are relevant structural and func-
tional differences regarding the different but interdependent legal orders and the
national and transnational contexts of democracy. Unlike the EU, the Council of
Europe is more rarely identified with a European society and might be expected to
pay still more attention to the nation state than to popular sovereignty. National
constitutional courts and the ECtHR rely on different but complementary value
communities:4 on the one hand on a national consensus on principles of democratic
constitutionalism, on the other hand on a European consensus over universal values
of a human-rights-civilization and peacebuilding principles of the international rule
of law. While constitutional judges have to fear more the hegemony of political
parties, the tyranny of populist leaders and clashes within national societies, the
principle ‘one state, one judge’ makes the ECtHR more vulnerable for national
pressure and international tensions not (counter-)balanced by international institu-
tions, especially in countries and moments of authoritarian involution.
2
Von Bogdandy and Venzke 2014, p 191. For a political concept, see Tushnet 2013 and
Schmitter 2007, p 3: ‘Accountability is first a relationship between two sets of actors (actually,
most of it is played out not between individuals, but between organizations) in which the former
accepts to inform the other, explain or justify his or her actions and submit to any pre-determined
sanctions that the latter may impose’.
3
Bogdanor as quoted by official UK documents under: https://www.judiciary.uk/wp-content/
uploads/JCO/Documents/Consultations/accountability.pdf Accessed 1 April 2019.
4
Von Bogdandy and Venzke 2014, p 85 ff.
200 J. Luther
ECtHR-judges are empowered by international parliamentary elections, but their

work faces more governments than parliaments and a public sphere hardly able to
represent humanity as a whole. Further democratic legitimacy of the institution
could nevertheless be derived from increased popular and global demand for human
rights justice and un-fragmented law-making, but depends upon the conjuncture of
rights discourses and leads to conflicts with national constitutional and other
international courts.5 Constitutional courts decide more on constitutional review of
legislation and inter-branch litigation and give not necessarily direct access to rights
holders. By contrast, the ECtHR is designed for subsidiary adjudication of human
rights and related interstate litigation.6 The ECtHR cannot declare null and void acts
of state legislation and administration or Council of Europe treaties and decisions of
the Council of Europe-administration. Furthermore, the execution of the judgments
is entrusted to the Committee of Ministers (CoM), making it sometimes subject to
threats of noncompliance and Court reform attempts.
The Brighton and the Copenhagen Declarations on the reform of the
ECHR-system adopted by High Level Conferences in 2012 and 20187 stressed a
new concept of ‘shared responsibility’ for effective human rights protection.
Sharing requires dialogues that might favour cooperation more than conflict, but
can produce informal dependence that is something less than full independence and
complicates accountability. Synthetizing all these comparative aspects, prima facie
the independence of the ECtHR seems to be de jure less protected8 and/or de facto
more endangered than constitutional courts.
In order to analyse how the ECtHR deals with principles of judicial indepen-
dence and accountability within the Council of Europe, this chapter first explores
their historical roots in European constitutionalism (Sect. 9.2) and their gradual
implementation within the Council of Europe (Sect. 9.3). Special attention is drawn
to the interaction of the ECtHR-case law with ECHR-amendments and Council of
Europe-soft law, because of the auto-poietic value of judgments that favour the
search for a rational system of rules ensuring independence and accountability
(Sect. 9.4). A more analytical approach therefore distinguishes between the per-
sonal and institutional aspects of both. The former are related to individual rights
(Sect. 9.5) and duties (Sect. 9.6), the latter to the power relations of the ECtHR to
the Council of Europe and member states (Sect. 9.7) and a weak European public
opinion threatened by national veto plays (Sect. 9.8). The main balance between
independence and accountability is made in the judge-(s)election procedures
(Sect. 9.9). A final conclusion is that public confidence in judicial independence and
accountability is endangered (Sect. 9.10).
5
Benvenisti and Downs 2017, p 105 ff.
6
Guarnieri 2013, p 356. Andenas 2007, p 12 distinguishes the ‘judicial culture’ of European
judges from the ‘diplomatic culture’ of other international judges.
7
https://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf; https://www.
echr.coe.int/Documents/Copenhagen_Declaration_ENG.pdf. Accessed 1 April 2019.
8
Posner and Yoo 2005, p 66 praise a higher dependence and efficiency of international judges.
9.2 Why the History of European Constitutionalism

Matters
Judicial independence is a classical ideal of European constitutionalism that was

prepared, over the long run of history, through the transformation of political into
legal accountability. Plato’s Nomoi designed justice to be participated by the people,
with judges of a court of last resort to be elected by the highest officers for short terms
‘in the most incorruptible form of which human things admit’.9 A judge that decided
wrong intentionally was held accountable by the guardians of the laws. 10
The corrupted judge was harshly punished also in ancient Rome,11 but a separation of
jurisdictio from gubernaculum was prepared by the republican praetor. Justinian
codified the principle that no one can be judge of himself.12
In premodern times, Henry II created a distinct judicial council ‘to do right’ and
hear all complaints (1178), but medieval pluralism supported feudal, ecclesiastical
and corporate bounds of judges with disciplinary forms of accountability favoured
by professionalization. Jean Bodin recommended kings to do no more the job of a
judge (‘faire mestier d’estre juges’) and to prefer officers to commissioners. The
Sacred Roman Empire’s Kammergerichtsordnung (1521) provided sanctions for
corruption and incompetence and proceedings for the removal of judges that never
applied. Edward Coke was dismissed when he refused to stop or delay a proceeding
as requested by the king (1616). Under proposition 12 (1642), independence ren-
dered accountability of judges exceptional: ‘That all the Judges, and all the officers
placed by approbation of both Houses of Parliament, may hold their places quam
diu bene se gesserint’ (during good behaviour).13
The Enlightenment promoted further the ideals of the rule of law and meekness,
with judicial independence construed as an additional guarantee of impartiality and
of the subjective right to have rights and freedoms ensured even against the State.14
As Montesquieu pointed out, any form of royal ‘justice retenue’ was despotism, but
the power of judging, being so ‘terrible among man’, should be zero and just the
‘mouth of the laws’, otherwise freedoms could be threatened by the fear of judicial
tyranny.15 While the US Constitution conserved the impeachment for judges, the
parliament of Paris vindicated security of tenure (‘inamovibilité’), the power to not
9
Plato, Laws, VI, 13, 767–768.
10
Ibid.
11
Tabula IX, 2: ‘Duram esse legem putas, quae iudicem arbitrumve iure datum, qui ob rem [iu]
dic[a]ndam pecuniam accepisse convictus est, capite poenitur?’
12
C. 3.5.1.: ‘Generali lege decernimus neminem sibi esse iudicem vel ius sibi dicere debere.’
13
Act of Settlement 1701: ‘That after the said Limitation shall take Effect as aforesaid Judges
Commissions be made Quam diu se bene Gesserint and their Salaries ascertained and established
but upon the Address of both Houses of Parliament it may be lawfull to remove them.’
14
Grove 2018, p 465; Zimmermann 2014, p 56 ff; Pasquino 2010, p 195.
15
Spirit of the Laws (1748), XI, 6: ‘… one fears the magistracy, not the magistrates?’
202 J. Luther
take into account a royal will contrary to the fundamental laws of the State and the
right of citizens to have ‘natural judges designed by the law’ (1788).16
Article 19 of the first short French constitution of 1789 implemented the
insurance of rights and separation of powers promised by Article 16 of the
Declaration through a symbolic delegation: ‘Le pouvoir judiciare ne pourra, en
aucun cas, être exercéee par le Roi, ni par le Corps législatif; mais la Justice sera
administrée au nom du Roi par les seuls Tribunaux établis par la Loi, suivant les
principes de la Constitution, et selon les formes déterminées par la Loi.’17 The law
of 16–24 August 1790 adapted the ancient ‘référé législatif (relatio ad principem)’
to the new law-making mechanism, but promised that ‘those to be judged may not
be distracted from their natural judge by any commission, nor by competences or
call back different from those established by law’. The constitution of 1791 created
a ‘tribunal de cassation, établi auprès du corps législatif’ (Article XIX) and the
constitutional charter of 1815 determined that no judges can be removed (Article
58) and nobody should be removed from natural judges (Article 62). The senates’
proposal in 1814 to declare ‘the independence of the judicial power guaranteed’
was realised only in 1958 (Article 64).
Until 1848, judicial independence did not enter into European constitutional
texts, but practices of political accountability became inconvenient.18 A failed
German constitution (1849) declared jurisdiction and administration separated and
independent from each other (§ 181), the Prussian constitution (1850) promised
‘independent courts’ (Article 86) and the Austrian Staatsgrundgesetz on judicial
power (1867) ensured judges to ‘stand for themselves and to be independent’
(Article 6), while it also was a starting point for the idea of the constitutional
court.19 The ideal of judicial independence could prevail over political account-
ability only in the last century when constitutional and international justices were
institutionalised. A new international judicial power was created in the Permanent
Arbitration Court (1899) and the Permanent International Court of Justice (1922) as
a ‘body of independent judges, elected regardless of their nationality from amongst
persons of high moral character’.
The experiences of dictatorial despotism and totalitarianism in the twentieth
century pushed for a general recognition of judicial independence as a fundamental
principle of the European constitutional heritage and of the international law of
‘civilised nations’.20 The constitutions of France (1946) and Italy (1947) consti-
tutionalized the Higher Council of the Judiciary and the German Basic Law (1949)
16
Quoted by Alvazzi dal Frate 1999, p 124.
17
‘The judicial power can in no case be exercised neither by the king, nor by the legislature, but
justice will be administrated in the name of the King by the sole tribunals established by law,
respecting the principles of the Constitution and the forms determined by the law.’
18
Article 102 Constitution Belgium 1831 added that remunerations shall be defined by law.
19
Hayo and Voigt 2014, p 189: ‘countries with a British legal origin and a Scandinavian legal
origin are less likely to have implemented [judicial independence] in their constitutions.’
20
Kotuby and Sobota 2017, p 163 ff. For the relevance of general principles see Golder v. United
Kingdom (1975).
echoed Article 10 of the Universal Declaration of Human Rights (UDHR) of 1948:

‘Everyone is entitled in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him.’21 Article 6(1) ECHR (1950) restricted this to civil
rights, but added a requirement of legality (‘established by law’) and a guarantee
against iustitia denegata vel protracta (‘within a reasonable time’).
The ECtHR developed an international human rights jurisdiction that can impact
on or be impacted by constitutional justice and qualified the ECHR as ‘a consti-
tutional instrument of European public order’.22 The Council of Europe-Secretary
denied that the convention could be intended as a European Constitution, but the
ECtHR president prospected a ‘European quasi-constitutional court’ working on
minimal common standards of constitutionalism.23 Scholars might still disagree on
whether the ECtHR is de facto or has to be similar to a constitutional court,24 but
they can recognize that the Council of Europe-law synthesizes common legal
principles of judicial independence and legal accountability even for constitutional
and ECtHR-judges.
9.3 How Judicial Independence and Accountability Were

Developed Within the Council of Europe
Since 1945, the constitutionalisation and internationalisation of law worked hand in

hand for constitutional and international courts. Independence and impartiality were
transformed from professional and institutional duties into justiciable rights.
Judicial independence was extended from the person of the judge to the institution
of the court and balanced by accountability. The principles were implemented and
strengthened by national reforms and ECHR amendments supported both by the
ECtHR case law and the soft law produced within the Council of Europe.
In the original design, the ECtHR was a non-permanent institution separated
from the Council of Europe. The duration of office was nine years, re-election
allowed and no provisions for removal of judges provided. Article 21(3) ECHR
required that during their terms of office judges shall not engage in activities ‘in-
compatible with their independence, impartiality or with the demands of a full-time
office.’ To exercise the ‘functions as a judge honourably, independently and
impartially’ became part of the oath of the judges of the ECHR (rule 3). The ECtHR
did not get a formal statute, but the Plenary Court was empowered to elect (vice-)
presidents and (deputy-)registrars, to ‘draw up its own rules’ and to ‘determine its
21
Similar Article 14 Covenant of Civil and Political Rights (CCPR) 1996. Article 26
OAS-Declaration 1948: just impartiality.
22
Loizidou 1995, para 75.
23
Wildhaber 2007, p. 521 ff; Greer and Wildhaber 2012, p. 655 ff.
24
Favoreu 2002, p 35 ff.
204 J. Luther
own procedure’ (Article 55 original version). Advisory opinions could be asked in

non-jurisdictional procedures under protocol n. 2 (1963).
The academic question of whether the ECtHR has become a de facto organ of
the Council of Europe or a judicial institution common to the member states25 can
be left open, because it was subject to powers of both the Council of Europe and
state institutions that agreed various amendments to the ECHR. The Steering
Committee for Human Rights (CDDH) established in 1976 was assisted by the
ECtHR – without vote – when preparing the amendments to the control machinery
under protocols n. 5 (packaging elections), 8 (criteria of office, chambers), 9 (in-
dividual complaints), 11 (abolition of the Commission (EComHR),26 terms of
office), 14 (judicial formations, criteria of admissibility) and 15 (age limits). The
increasing acceptation of the ECtHR-jurisdiction by member states, the raising
demand for judicial human rights protection and the enlargement from 22 to 47
member states after 1989 accelerated the growth of its powers and independence.
Under protocol 11, the Plenary Court received a competence for procedures of
dismissal and adopted a resolution on judicial ethics (2008). For the explanatory
report, the reform was made ‘in order to ensure the independence of the Court’,
moving perhaps from distrust in the judges of the new member states to an element
of trust. The term of duration of judges was reduced without any explanation to six
years, but the original term was re-established in 2009 and re-election was exclu-
ded. High rates of inadmissibility and threats of noncompliance pushed the
Brighton Declaration of 2012 for further structural reforms and a shared respon-
sibility for efficiency that seems to be less driven by the ECtHR.
These changes were conditioned by a general context of standard setting and
institution building within the Council of Europe for judicial reforms all over
Europe. CoM Recommendation Rec (1994) 12 to member states ‘on the indepen-
dence, efficiency and role of judges’ was followed by Rec (2010) 12 on ‘inde-
pendence, efficiency and responsibilities of judges’ that is ‘applicable to all persons
exercising judicial functions, including those dealing with constitutional matters’.
The CoM created an ad hoc Consultative Council of European Judges (CCJE,
2000) and a European Commission for the Efficiency of Justice (CEPEJ, 2002).27
CEPEJ has a Statute that allows the ECtHR to ask for opinions. The CCJE’s
website does not publish rules of composition, but informs that national judicial
members are ‘chosen in contact, where such authorities exist, with the national
authorities responsible for ensuring the independence and impartiality of judges and
with the national administration responsible for managing the judiciary.’ Upon
25
Zimmermann 2014, p 449 ff.
26
The Commissioner for Human Rights was admitted to third party intervention ex Article 36
(3) ECHR.
27
The Directorate of Legal Affairs launched a multilateral conference with the European
Association of Judges (EAJ) and the European Association of Judges for Democracy and Freedom
(MEDEL) adopting a ‘European Charter on the Statute of Judges’ (1998).
proposal of the Secretary, the CCJE drafted a ‘Report on judicial independence and
impartiality in the Council of Europe member States in 2017’.28 The standards of
judicial independence were translated in guidelines of the CoM and resolutions of
the Parliamentary Assembly (PACE) for the recruitment of judges.29
The Council of Europe recruited further ‘independent experts’ inter alia for the
Committee ex Article 25 of the European Social Charter (1961), the European
Committee for the Prevention of Torture (ECPT 1987), the European Commission
against Racism and Intolerance (ECRI 1993), the European Commission for
Democracy through Law under the Statute of 2002 (Venice Commission), the
Group of experts on action against violence against women and domestic violence
(GREVIO) under the Istanbul Convention (2011), the ‘Group of Independent
Experts’ for the Congress of Local and Regional Authorities (2017), et cetera. They
can deliver opinions in matters relevant for the ECtHR-jurisdiction to be presented
through the Human Rights Commissioner.
The Venice Commission included judicial independence in the ‘Report on the
Rule of Law’30 and delivered a ‘Report on the Independence of Judicial Systems’
(2010)31 that makes reference to the ECtHR-case law, but not to the ECtHR as a case.
The ECtHR has an observer status in the European Conference of Constitutional
Courts as one of the ‘supranational European Courts’ (5 of Regulations) and partic-
ipates in all World Conferences on Constitutional Justice, both hosted by the Venice
Commission. The ECtHR itself launched a ‘Superior Courts Network’, today
including 67 courts of 35 states, but not yet participated by the constitutional courts of
Austria, Germany and Italy.
In conclusion, the Council of Europe increased independence of national judi-
ciaries and of the ECtHR, building a European consensus on independence bal-
anced by accountability for efficiency supported by soft-law standards,
supranational monitoring institutions and networks. Legal positivists will warn that
soft law is not legally binding,32 while political realists have to acknowledge that
the consensus is not merely judge-self-made but also based on overlapping cultural
and economic interests.33 The ongoing dialogues allow weak forms of informal
peer support and self-coordination between courts. This does not lead to global
juristocracy, but implies a shift from judicial independence to judicial
interdependence.
28
See the appendix of the ‘Framework global action plan for judges in Europe’ https://www.coe.
int/fr/web/ccje/-/report-on-judicial-independence-and-impartiality-in-the-council-of-europe-
member-states-in-2017 Accessed 1 April 2019.
29
Resolutions 1082 (1996), 1295 (1996), 1200 (1999), 1646 (2009), 2002 (2014), recomenda-
tions 1429 (1996), 1649 (2009).
30
CDL-AL (2001)003-rev, par. 41.
31
CDL-AD (2010)004.
32
Wittreck 2015, p 148 ff.
33
Voigt 2017, p 51.
206 J. Luther
9.4 On the Autopoietic Value of the ECtHR Case Law
The ECtHR is a court for applications based on the entitlement to be heard by an

independent, impartial and lawful judge ex Article 6(1) ECHR. One could argue
that the Court itself is bound by this rule, but impartiality implies also a ‘nemo judex
in causa sua’ principle. Nevertheless, these international judges selected by
democratic states produce judgments to be implemented under constitutions that
protect judicial independence. Therefore the consistent case law of the ECtHR34
regarding even supreme and constitutional courts of the Council of Europe-states
could also apply at least indirectly to the ECtHR itself. It would be unrealistic to say
that this case law was irrelevant for the amendments and has no value for the
authority and legitimacy of the ECtHR itself.
Independence, impartiality and lawfulness under Article 6(1) ECHR indicate
different principles and aspects distinguished by theory, but integrated in practice.
Independence was first referred both to the parties of the case and to the executive
power (Neumeister 1968, Ringeisen 1971) and based on a public confidence that
‘justice must not only be done; it must also be seen to be done’ (Delcourt 1971).35
In order to distinguish judicial from administrative powers, independence associ-
ated even to legal rules defining terms of office, procedural guarantees and the
power to determine rights and obligations are as elements constitutive for a func-
tional concept of judiciary.
In Crociani (1980), the Commission (EComHR) decided ‘that the same inde-
pendence must be established in respect of the Legislature, i.e. Parliament.’ The
applications concerned a decision of the Italian Constitutional Court in a criminal
jurisdiction over former ministers accused by a parliamentary committee of enquiry,
taken with additional judges elected by the parliament and appointed for a fixed
period with guarantees of ineligibility and immunity. They were ‘subject to no
authority and (could) exercise the power conferred on them without any interfer-
ence by the Executive or Parliament’.36 In an unpublished decision of 1981, the
Commission considered parliamentary election of judges a common feature of
various Council of Europe member states.37 The election mechanism of the ECtHR
was justified when Le Compte (1981) held that a term of office of six years was a
sufficient ‘further guarantee’ of independence. In Sramek (1984), even a term of
34
Neumeister 1968, Delcourt 1970, Ringeisen 1971, De Wilde 1971, H. v. Belgium 1979,
Schiesser 1980, Le Compte 1981, Piersack 1982, Sramek 1984, Campbell 1984, Benthem 1985,
Ettl 1987, Belilos 1988, Langborger 1989, Padovani 1993, Bryan 1995, Findlay 1997, Lauko
1998, Incal 1998, Wille 1999, Silfirdingur 1999, Kyprianou 2001, Morris 2002, Kleyn 2003,
Meznaric 2005, Flux 2007, Micallef 2009, Urban 2010, Maktouf 2013, Baka 2016.
35
Overruled in Borgers (1991), the participation without vote of the Belgian Procurateur Général
to a deliberation of the Cour de Cassation was only criticised as ‘unusual’ and compared with the
better system of the Court of Justice of the European Union. On impartiality, see Steinfatt 2012.
36
EComHR, application no. 8603/79, 8722/79, 8723/79, 8729/79, 18 December 1980.
37
EComHR, application no. 8866/80, 5 October 1981, quoted by Schermers and Kuijer 2005,
application no. 12952/87, 6 November 1990.
three years was justified, at least if the judge was not remunerated. Such shorter
terms were provided by Article 40 ECHR for the first composition of the ECtHR.
In Piersack (1982), judges needed a ‘shield from outside pressures’. The con-
fidence in independence and impartiality was compromised by acts of internal
organisation that allowed a public prosecutor to sit as a judge when his department
dealt with the case. Sramek (1984) added that ‘appearances may also be of
importance’ and strengthened disciplinary accountability.
In contrast to the Austrian Constitutional Court, the ECtHR denied the inde-
pendence of a civil servant acting as judge ‘who is in a subordinate position, in
terms of his duties and of the organisation of his service, vis-à-vis one of the
parties’. That was the case of most judges who held only an additional office in the
Court (until 1998). Campbell & Fell (1984) upheld the appointment by the exec-
utive of judges of a board that performed both adjudicatory and supervisory
functions: ‘to hold otherwise would mean that judges appointed by or on the advice
of a Minister having responsibilities in the field of the administration of the courts
were also not independent’. Self-administration became an indicator for judicial
independence.
Independence required judicial discretion and neutrality when judges exercise
freedom of expression. In E. v. Switzerland (1984), the Commission held ‘for
maintaining the authority and impartiality of the judiciary’ in a democratic society
necessitates a disciplinary sanction for political opinions on pending criminal
proceedings expressed by a judge who claimed that ‘for a party member to be
elected judge and re-elected to the same office after six years, he must be politically
active within the party to which he belongs’.38 In H. v. Belgium (1987), the ECtHR
accepted the appointment of lay judges by peers in disciplinary proceedings, but in
De Moor (1993), the EComHR held that the French Conseil de l’Ordre did not offer
sufficient impartiality as a judge on the admission to the bar.
The ECtHR was initially reluctant to face questions regarding independence and
impartiality of constitutional and international judges. During the negotiations of
the 11th protocol, the EComHR found in Ruiz-Mateos (1990) ‘that it is not part of
its function to exercise general scrutiny over the system for electing members of the
Spanish Constitutional Court.’ In Wille (1999), the ECtHR censured a letter of the
prince of Liechtenstein that announced to the President of the Administrative Court
the intention to not appoint him again to a public office because of his opinions
expressed in a conference on the constitutional court’s powers. Kleyn (2003) added
that ‘although the notion of the separation of powers between the political organs of
government and the judiciary has assumed growing importance in the Court’s case
law […] neither Article 6 nor any other provision of the Convention requires States
to comply with any theoretical constitutional concepts regarding the permissible
limits of the powers’ interaction’.
In Meznaric (2005), the prior involvement of a constitutional judge as a counsel
in civil law litigation raised legitimate doubts in respect of its impartiality in the
38
EComHR, application no. 10279/83, 7 May 1984.
208 J. Luther
constitutional review of the judgment. In Steck-Risch (2005), a member of the

Constitutional Court of Liechtenstein could decide on an application against a
judgment of the Administrative Court in which his law-office colleague acted as
presiding judge, because no evidence for a specific friendship and for any form of
dependence, be it professional, financial or hierarchical was offered. In Maktouf
(2013), the ECtHR shared the view of the Constitutional Court of
Bosnia-Herzegovina that the international judges in war crime chambers appointed
by the High Representative were sufficiently independent, being recommended by
‘the highest judicial figures in Bosnia and Herzegovina’ and being required to
perform their judicial duties in accordance with national law and rules of profes-
sional conduct.
In Ivanovski (2016), the applicant was President of the Constitutional Court of
the former Yugoslav Republic of Macedonia when he was dismissed from office in
lustration proceedings brought against him. The Court stated that an open letter of
the Prime Minister accusing the applicant of having been a collaborator of the secret
police of the former regime was detrimental for the appearance of impartiality. In
Baka (2016), the ECtHR decided finally that the premature termination of the
applicant’s mandate as President of the Supreme Court of Hungary through a
legislative act violated his freedom of expression and a principle of the rule of law
that requires ‘intervention of an authority independent of the executive and leg-
islative powers in respect of every decision affecting the termination of office of a
judge’.
This ECtHR case law has auto-poietic value and shows that the general prin-
ciples of increasing judicial independence can be applied also to constitutional and
international judges, but it cannot surrogate a rational system of rules defining
independence and accountability compatible to the ECHR.
9.5 How Rights and Duties Safeguard Personal

Independence
From an analytical legal point of view, independence and accountability can be

construed as an individual status of personal rights and duties of service of the
judge and as institutional positions of the court, aspects that are intertwined but
shall be well distinguished. The independence of the tribunal (Article 6(1)) is a
necessary condition for the independence of the judge (Article 21(3)), but not a
sufficient one, it being possible that internal interferences and hegemonies and
external pressures more easily bear on single judges than on the Court.39
39
European Network of Councils for the Judiciary, ‘Independence, Accountability and Quality of
the Judiciary’, available at http://njb.nl/Uploads/2017/6/encj-report-ia-2017-adopted-ga.pdf
Accessed 1 April 2019.
Individual independence is in the interest of the functioning of the Court and a

service related duty declared in the resolution on judicial ethics of 2008,40 but the
judge is always personally entitled to all rights and freedoms of the ECHR and
granted by the national legal order including habeas corpus, privacy, freedom of
conscience, free speech, travel and association (status negativus), health care, work,
salary and pension (status positivus), the right to access selection procedures, jus ad
officium of the elected judge and access to justice in the relevant legal order (status
activus). Personal rights need to be defended personally, but legal defence could
allow other judges to investigate and collide with the duty of the court to protect the
judge’s and the institution’s independence.
Personal independence shall be a cultural outcome of the ‘high moral character’
and acknowledged qualifications and competence (Article 21(1) ECHR). Sitting in
the court ‘in their individual capacity’ (Article 21(2)), judges do neither represent
the governments that advanced their candidature nor the state that is claimed to
violate human rights.41 Earlier empirical studies found that ECtHR-judges do not
necessarily, but more frequently vote in favour of the fatherland, but at that time
re-election was still not excluded.42 A specific incompatibility was introduced for
single-judge formations to examine applications against the State in respect of
which that judge has been elected (Article 26(3)), but ad hoc judges are still
allowed (Article 26(4), 28(3) ECHR).
Qualifications and competences are presumed for the whole term. The fixed
retirement age of 70 years (Article 23(2)) is a synthesis of most domestic rules that
distinguish judges from other public servants, not a permission to exclude candi-
dates over 61 years43 or to prefer more ambitious younger candidates. If ‘senior’ is
also sanior pars, the age could be on the contrary an indicator for better qualifi-
cation and more competence and offer some Presbyterian charisma to the Court.
The 15th protocol preferred fixed retirement, a requirement that judges be aged less
than 65 at the time of the call for nominations by PACE. Raising life expectations in
the ageing societies and a gradual evolution of retirement rules could oblige to
revise and adapt these rules from time to time in order to avoid discrimination based
on age.
Incompatibilities protect both independence and full-time office of the judge
(Article 21(3)). Rule 4 specifies that judges cannot engage ‘in any political or
administrative activity or any professional activity which is incompatible’, but
leaves the decision on what is effectively incompatible to the President and, only in
40
‘In the exercise of their judicial functions, judges shall be independent of all external authority
or influence. They shall refrain from any activity or membership of an association, and avoid any
situation, that may affect confidence in their independence.’ Similar ‘The Burgh House Principles
on the Independence of the International Judiciary’, available at https://www.ucl.ac.uk/
international-courts/sites/international-courts/files/burgh_final_21204.pdf Accessed 1 April 2019.
41
AS/Jur (2014) 17 ‘Reinforcement of the independence of the European Court of Human
Rights’.
42
Voeten 2009 and 2011, p 70 ff.
43
210 J. Luther
cases of disagreement, to the Court.44 The judge has the duty to give notice to the
President of facts relevant for disqualifications provided by Rule 28(2) – amended
in 2002, 2004 and 2006 – in situations of personal interest or prior involvement in
the case, public expression of opinions ‘objectively capable of adversely affecting’
impartiality, or when ‘independence or impartiality may legitimately be called into
doubt’. The Judicial Ethics explain that confidence in independence and impartiality
could be compromised by conflicts of interest, gifts and honours and additional
activities such as individual advisory opinions rendered extra moenia, the exercise
of academic powers in examinations, recruitment procedures and peer review.
A strict interpretation could exclude statements in parliaments or public celebrations
managed by governments unless the authorisation is not justified through a specific
mandate of representation of the Court for purposes of institutional accountability.
9.6 Mechanisms that Grant Personal Accountability
ECtHR judges shall be entitled during their term to the privileges and immunities
provided for in Article 40 of the Statute of Council of Europe (Article 51 ECHR) as
defined by the Sixth Protocol to the General Agreement on Privileges and
Immunities of the Council of Europe (1996). This international immunity is ‘not for
the personal benefit of the individuals themselves but in order to safeguard the
independent exercise of their functions’. Even if minor compared to the immunity
of a judge of the International Court of Justice, it is extended to spouses and minor
children (Article 1) and beyond the expiration of the term (Article 2). Diplomatic
passports should be issued. Post-term immunity was at stake in the case of the
Moldavian judge Tudor Pantiru (2001) who refused to justify in a separate vote the
position of the government and was put under a criminal proceeding regarding the
property of his house in order to exclude re-election. The President granted first an
administrative job in the ECtHR and later a nomination for constitutional judge in
Bosnia-Herzegovina and Kosovo.45
The aforementioned protocol allows the plenary court to waive the immunity of
judges. The Court is under a duty to waive it in any case where, in its opinion, the
immunity would impede the course of justice, and where it can be waived without
prejudice to the purpose for which the immunity is accorded. No procedural rule
has been established whether a waiver can be requested directly by national judges,
by the ECtHR judge involved or only by the national government to the General
44
Article 4 amended in 2010 precludes representation in ECtHR proceedings for a period of two
years from expiration.
45
Engel 2003, p 130. Pantiru became President of the Constitutional Court of Moldavia.
Secretary. In a precedent, the Court requested a national government ‘to indicate

whether they have grounds for asking the Court to waive a judge’s immunity.’46
The judge can decide at any time to resign (Rule 6) or withdraw from taking part
in sittings until an official request of waiver has been decided. A procedure of
removal under Article 23(4) ECHR can be started internally and a majority of
two-thirds can decide that the judge ‘has ceased to fulfil the required conditions.’
All procedures regarding the request of waiver, the temporary withdrawal and the
removal have to respect the conventional rights, including the right of the judge to
be heard (Rule 7) and to have a fair trial by the plenary Court as an independent and
impartial judge. Similar proceedings of self-purification exist also in national
constitutional courts and provide a limited personal accountability to the benefit of
the Court.
Could this happen if the judge does not work enough or with sufficient dili-
gence? Full employment is a required condition, but the new management strategies
of the Court do not provide any quantitative and qualitative standards for individual
work. The rapporteur of the registry supervised by the President and the colleagues
in the committee could help, but create internal dependencies and asymmetries
between more and less efficient judges.47 The case allocation power of the President
aims at a ‘fair distribution’ of workload (Article 52) and allows to take into account
specific personal shortcomings, but cannot avoid peer pressure and reputation
stress. ‘Judicial ethics’ could justify further peer pressure and presidential investi-
gation mechanisms.
In any case, judges are accountable to the Court, but could also give account to
their governments, for example through separate opinions and criticising the Court
at least at the end of the mandate. Personal independence does not need golden
pensions and privileges, but adequate social security. The ECtHR welcomed the
Resolution ‘On the status and conditions of service of judges of the ECtHR’48 that
provided their affiliation to the contribution based pension, medical and social
insurance schemes for staff members of the Council of Europe.49 The CoM called
upon States ‘to address appropriately’ the situation of judges after expiration of the
term of office. Social rights to work and social protection – family included – have
to be respected and any perception should be avoided that the social security or
career of former ECtHR judges could be conditioned by their judgments. A report
of the Committee on Legal Affairs and Human Rights (2014) urged for more
flexible solutions and recommended the sending state to assist former judges in
finding employment upon the expiration of their mandate.
46
Statement of the ECtHR President 19 October 2011.
47
Follesdal 2017, p 500.
48
CoM Res (2009) 5.
49
Engel 2010, p 148 ff.
212 J. Luther
9.7 How the Court’s Powers Grant Institutional

Independence from the Council of Europe
and Member States
The institutional independence of the ECtHR as a permanent court requires further

structural guarantees against interferences of institutions of the Council of Europe
and member States, counterbalanced by forms of public accountability. The insti-
tutional foundations and the subjection of the ECtHR to law have stable conven-
tional sources that can be changed only by unanimity of (majorities in) Council in
Europe states in coherence with supreme constitutional principles, even without
referenda. The legal framework has been frequently changed, but leaves a modest
normative autonomy to the Court.50
All discretionary powers of the plenary Court under Article 25 ECHR can be
functional to independence, including those of internal rulemaking, (re-)electing
(vice-)presidents for the representation and direction of works and
Court-administration (Rule 9), setting up Chambers (sections) and electing their
Presidents and the (Deputy) Registrars.
By virtue of the obligatory participation of the national judge, the competence of
the judicial formations is sufficiently pre-determined by law, but the rules of allo-
cation of the cases are not sufficiently transparent and explained and the CoM
decides at the request of the ECtHR whether to reduce exceptionally to five the
number of chamber members (Article 26). The Court rules define further details of
organisation and procedure, including the calculation of term of office, incompatible
activities, resignation and dismissal and the election of the Court’s president. The
President can give further general practice directions binding for the judges (Rule
32). The Court can fix general criteria for the determination of the order of dealing
with cases that have been laid down in a priority catalogue (Rule 41).
Independence is limited through administrative powers directed by the Secretary
General. There have been tensions between Secretary Schwimmer and President
Wildhaber regarding the power over the administrative staff of the court.51
Interferences can be mitigated by the president’s co-decision power on the
appointment of the officials of the Registry (Rule 18(3)) and the plenary court’s
power to dismiss the Registrar (Rule 15(2)). A PACE-document observed that the
policy of non-renewability of the B-lawyers contracts in the registry could generate
further risks of dependency for the Court.52 The court could not avoid to be subject
to the jurisdiction of the administrative tribunal of the CoE and to be represented in
this jurisdiction by the Secretary. Finally, the Secretary may request a member State
to ‘furnish an explanation of the manner in which its internal law ensures the
effective implementation of the provisions of the Convention’ (Article 52). This
50
Lambert Abdelgawad 2017a, p 246 ff.
51
Engel 2003; De Boer-Buquicchio 2003.
52
AS/Jur (2014) 17.
discretionary power could defend judicial independence, but interfere with pending
proceedings or adopted judgments.
The most critical issues to be considered are the financial aspects. The expen-
diture of the Court, legal aid included, shall be borne by the Council of Europe
(Article 50). Only costs for translations (Rule 34(3)) and for witnesses, experts or
persons under detention (Rule A 5) can be transferred to others. The ECtHR does
not have its own budget like some constitutional court and no specific provision in
the financial regulations of the CoM allows it to make proposals for additional
funds.53 Financial independence is safeguarded only by informal consultations in a
Liaison Committee of the CoM and good customs in budgeting practices.
The ECtHR is subject to the internal and external auditing system of the Council
of Europe with an internal auditor appointed by the Secretary General – whose
reports are reviewed by national parliaments – and an external report of a national
audit office chosen by the CoM. The auditing through independent authorities
favours quantitative evaluation over qualitative criteria for the court’s performance
and shows how independence can be combined with accountability.54
9.8 Whether Institutional Accountability in Europe Can

Avoid National Veto Plays
What happens if countries like Turkey or Russia threaten to stop financing the
Council of Europe and executing judgments? The Copenhagen Declaration (2018)
stresses ‘the importance of retaining a sufficient budget for the Court, as well as the
Department for the Execution of Judgments, to solve present and future challenges’
(para 52) and calls upon the States Parties to ‘consider making voluntary contri-
butions to the Human Rights Trust Fund and to the Court’s special account’ (para
53), but the ECtHR does not have equal distance from unwilling and voluntary
contributors. In the long run, the original idea that recourses need to be costless for
all, not just in cases of (risk of) poverty but even for legal persons, could be revised
at least in favour of a punitive tax for abuse of the right to make applications.
The mechanisms of institutional accountability designed by the law of the
Council of Europe seem to prefer weak forms of explanatory accountability towards
a European public opinion to the aforesaid stronger forms of national resistance.
They are based first of all on the rule of publicity of hearings. Publicity can be
excluded only for interests of public order and justice or national security, to be
verified by the Court (Rule 63). The representation of applicants and Contracting
parties as well as the interlocution of third party interventions even from civil
society (Rule 44) produce not always a well-informed European public opinion.
53
54
Critical Lamber Abdelgawad 2017b.
214 J. Luther
Nevertheless, the judgments have to answer all of them in order to prevent repet-
itive applications and to improve legitimacy.
‘Answerability’ inspires the duty to give reasons for judgments and decisions on
admissibility (Article 45(1)). The customary rituals of annual reports presented in
press conferences, press releases and on the website produce practices that allow
supervision and critics at least within a special professional and academic public
sphere. The separate opinion is a special form of accountability similar to ‘peer
review’ that safeguards not only the freedom of conscience and personal inde-
pendence of single judges (Article 45(2)). If supported not only by academic
comments, the dissenting opinion could condition judge selection and become a
future majority opinion of the Court.
Another weak form of transnational accountability derives from the standard
setting and monitoring powers of PACE. Resolution 1685/2009 encourages the
ECtHR ‘to consider giving priority to applications pertaining to alleged violations
of the independence of judges and politically motivated abuses of the criminal
justice system’, a friendly interference in the power of case management. Assembly
members should not be allowed to submit written questions on pending procedures
of the ECtHR, but all committees shall ‘follow the activities of, and maintain
working relations’ with the ECtHR. The terms of reference of the Committee on
Legal Affairs and Human Rights refer to ‘all matters concerning the human rights
treaties and mechanisms of the CoE’, ‘the state of human rights and fundamental
freedoms and the rule of law in Europe’ and the ‘functioning of national and
international judicial institutions’.55 A ‘Sub-Committee on the implementation of
judgments of the ECtHR’ has been set up. The Court’s President can be invited as a
guest speaker and held recently an ‘exchange of views’ with the standing com-
mittees, suggesting new forms of mediation with national parliaments in order to
prevent conflicts over subsidiarity: ‘To fulfil its mission, the Court needs your
Assembly’.
National mechanisms of accountability could lead to a refusal of Contracting
Parties to implement judgments like Greens and MT on the right to vote for serving
prisoners in UK. Like some constitutional court, the ECtHR has no power to
command or use coercion and must respect the principle of subsidiarity when
indicating individual or general measures to be taken, but risks to face repetitive
applications and noncompliance under the principle of subsidiarity. The supervision
power of the CoM (Article 46 ECHR) as revised by protocol 14 includes now the
faculty to refer with a majority of two thirds questions of ‘interpretation of the
judgment’ or of ‘failure to fulfil’ the obligations deriving from a final judgment. But
when a simple majority finds a violation and a third of the members of the CoM
decide that no question of failure should be referred to the ECtHR, is it not ‘con-
demned’ to a silent loss of authority and a trumping state sovereignty? In such a
scenario, the confidence not only in the unaccountable State, but even in the
independence of the ECtHR and in European accountability could suffer.
55
Resolutions 1842 (2011) and 2002 (2014).
The accounts of former judges addressed to the public sphere of a member state
can accompany initiatives for amendments and threats of exit through denunciation
(Article 58), if not incompatible with existing constitutional commitments to human
rights protection. National legislators and constitutional courts can also try to
strengthen subsidiarity and sustain the primacy of fundamental principles of the
national constitution.56
In order to avoid shortcomings, the Brighton Declaration (2012) encouraged ‘the
States parties, the CoM and the Court to work together to find ways to resolve the
large numbers of applications arising from systemic issues identified by the Court’.
The recent Court’s Bureaus observation on the draft Copenhagen declaration
highlights ‘the need for dialogue and participation’, expecting them to be intensified
through the new advisory opinion procedures and warning that dialogues at the
political level should respect the Court’s independence and the binding character of
its judgments. Dialogue remains a concept open for transnational forms of
accountability and consensus building, but the judicial dialogues favoured by the
last protocols and the dialogues with politicians have a different nature and impact
on judicial independence. At the moment, the accountability of the ECtHR towards
the member states has been institutionalised mainly in the procedure of judge
(s)election.
9.9 How ECtHR Judges Get (S)elected
The parliamentary election of ECtHR judges under the ‘one state one judge’ rule
(Article 20 ECHR) is a ritual that symbolizes the will of the States to be bound by
the judgments and serves both expectations of personal independence and of a
quasi-democratic accountability of the institution. The prohibition of re-election
excludes any personal political responsibility, but the performance of a leaving
judge and the Court can be evaluated and compared with elements of the qualifi-
cation of the successor. And the governmental power over the presentation of
candidates is still perceived as a risk to get less independent judges and as a chance
to influence the Court’s performance.
From a comparative point of view, the legal mechanism of the election of
ECtHR judges is a mix between traditions of international judge selection by
governments and constitutional judge election by parliaments. The advisory panel
offers a third model of technocratic co-optation characteristic for most common
judges in Europe and for the ECJ.57 The mix aims to combine advantages, but risks
to sum their disadvantages.
The aim of the mechanism is to find judges ‘of high moral character’ that ‘either
possess the qualifications required for appointment to high judicial office or be
56
Lopez Guerra 2017, p 401 ff.
57
Bobek 2015, p 281 ff.
216 J. Luther
jurisconsults of recognised competence’ (Article 21). These concise but open

concepts can neither be observed and measured in nature, nor presumed through
sacralising rituals, but need to lead an international culture based on the pluralism of
values, traditions and creativity in human rights. The promotion of judges and
politicians could favour activism, the recruitment of diplomats and government
advisers restraint. The Strasburg culture of selection and election of judges shows
reasonable balancing, but was criticised for lack of transparency and
accountability.58
The election being a competence of the Assembly (Article 22 ECHR), the
aforesaid soft law documents developed standards and customs, including criteria
for gender balance.59 An advisory opinion of the ECtHR held in 2008 that ‘the task
of electing judges to the Court necessarily entails the ability to assess the candi-
dates’. For this purpose the Assembly may devise ‘a standard curriculum vitae for
candidates, whom it also invites to take part in personal interviews before an ad hoc
sub-committee set up for that purpose’ and ‘take account of additional criteria
which it considers relevant for the purposes of choosing between the candidates put
forward by a Contracting Party and may, as it has done in a bid to ensure trans-
parency and foreseeability, incorporate those criteria in its resolutions and recom-
mendations’. The opinion accepted as the required ‘sufficient knowledge of at least
one of the two official languages’ – not yet specified by reference to the European
Framework of Reference for Languages – but demanded for the gender-balance
some exception if ‘a Contracting Party has taken all the necessary and appropriate
steps with a view to ensuring that the list contains a candidate of the
under-represented sex, but without success, and especially where it has followed the
Assembly’s recommendations advocating an open and transparent procedure
involving a call for candidatures’.
The criteria listed for the CV do not require certification, but reflect aspects of
the court’s performance and legitimacy. The ‘knowledge and awareness of
European Convention jurisprudence’ could be derived from prior professional
experience or from a training under the ‘European Programme for human rights
education for law professionals’ (HELP Programme). The ‘general legal knowledge
and experience’ refers to both national and international law, proved in temporal
dimensions congruent to the standards of judges of last resort. Experiences as
international human rights expert or constitutional judge should be privileged.
‘Intellectual and analytical ability, decisiveness and authority’, ‘communication and
listening skills’, ‘maturity and soundness of judgments’ relating to preceding
judicial activity should be evaluated only by structures that fully respect judicial
independence. ‘Understanding of people and society, courtesy and humanity,
commitment to public service, conscientiousness and diligence’ refers not only to
national culture and society, but includes political and intercultural sensibility and
58
Limbach 2003; Voeten 2009 and 2011; Schabas 2015, pp 658 ff; Lemmens 2015, pp 95 ff;
Kosar 2015, pp 161 ff; Baade 2017, pp 481 ff.
59
Resolution 1366 (2004), modified by resolutions 1426 (2005), 1627 (2008) and 1841 (2011).
competences in comparative legal and political sciences. The future judges’ con-
science has finally to interiorize ‘integrity and independence, fairness and
impartiality’.
All skills need to be assessed in a rational and fair election procedure with four
sub-proceedings: (1) the nomination of candidates, (2) the examination of the
advisory panel and the committee (3) the vote and (4) the taking up of office. At
least one year before the term of a judge ends, the Secretary General calls the State
affected to submit a list of three candidates and their curricula vitae within four
months. The CoM-guidelines on selection of candidates (CM(2012)40) recommend
sub-procedures of eliciting, interviews carried out by a national selection body and
publication of the final list, but the selection procedure is governed only by national
rules that could prescribe participation of a judicial council in order to prevent
governmental interference in judicial structures. The CoM has few weeks for
considering the list and sending it back if not fully complying with the require-
ments. Since 2011, an Advisory Panel60 deciding by consensus or qualified
majority (5 of 7) shall inform the national government whether candidates meet the
criteria stipulated in Article 21 and can ask additional information and clarifications,
also on facts spontaneously delivered by third parties. In case of negative advice (7
of 67 cases), the government is expected to submit new ones and always provided
so. If the final list is submitted to PACE, it will be examined by the Committee on
the Election of Judges to the ECtHR. Its 20 members shall have appropriate
knowledge or practical experience in the legal field, interview all candidates and
make a report with a recommendation decided by majority in secret ballot.
A decision to reject a list of candidates or to admit a single-sex list of candidates
requires a two-thirds majority of votes cast. In the light of the Committee’s rec-
ommendations, the Assembly elects the judge with the absolute majority of votes
cast, otherwise in a second ballot with relative majority. The office is taken up with
the oath.
A significant exception is the appointment of ad-hoc judges when the elected
judge is unable to sit or exempted has been delegated by the 14th protocol to the
President of the Court, but a study of the Committee on Legal Affairs and Human
Rights in 2011 criticized that the lists submitted by the States Parties are not
controlled by PACE. The representation of the same list and a reappointment seem
to be not precluded.
A ‘Report on the Process of Selection and Election of Judges of the ECtHR’
presented recently by the CDDH and welcomed by the Copenhagen Declaration
(2018) has criticised a sensible lack of interaction between panel and committee.
The panel-members should be allowed to be present at the interviews and illustrate
their views in order to raise the quality of the reasons that support the recom-
mendation. The interviews are too short (30 min), need better preparation and
60
Members are geographically and gender balanced chosen by the CoM among members of the
highest national courts, former judges of international courts and other lawyers of recognised
competence.
218 J. Luther
effective presence of Committee members, with a composition undersized and

unable to promote democratic legitimacy. If the Committee would be enabled to
restrict the list to two candidates, a revision of Article 22 ECHR would be nec-
essary. The Report does not offer a solution for the problem of small states to find
three good candidates. Even the possible impact of EU accession on the judge
selection has not yet been addressed. A participation of national parliaments as
keepers of democratic accountability is not encouraged and the report does not
mention other problems well known for parliamentary elections in constitutional
courts. What happens if the time constraints do not work or more time for political
compromise is needed? And what if a presidential government prefers to promote
just friends? If criminal proceedings or media campaigns are started against can-
didates? If committee members transfer the discussion on social media? The
Court’s legitimacy is still ensured by the simple fact that judges get elected for
interest of state reputation and can take care of their independence, giving account
through fair and reasonable decisions. The best accountability could be realized de
facto if they would be selected and their judgments be rendered in the name of a
European humanity, but this is still a utopia.61
9.10 Conclusions
The general principles of judicial independence and legal accountability apply to

international as well as to constitutional judges, but are concretised and balanced in
different interdependent contexts. In the history of European constitutionalism, the
ideal of independence prevailed over political accountability, but was implemented
and shared only in the last century when constitutional and international courts were
institutionalized. Judicial independence was gradually implemented through con-
ventional and soft law of the Council of Europe and an ECtHR case law having an
autopoietic value. Personal independence and accountability of ECtHR judges have
been strengthened, but after expiration of their mandate they appear still less pro-
tected than constitutional judges. Institutional independence of the ECtHR is under
pressure, because the increasing demand for human rights justice requires more
cooperation with Council of Europe administration and member states. The dia-
logues envisaged by the last protocols and by the EU accession to the ECHR could
lead from independence to interdependence. The rules of explanatory accountability
of the ECtHR are devoted to ideals of a European public opinion, but national veto
players have not yet been domesticated. Not yet sufficiently transparent procedures
of (s)election of judges are balancing expectations of personal independence and
institutional accountability. The legitimacy of the ECtHR derives still from a strong
demand for subsidiary international human rights protection for all and from the
61
Häberle 2016, p 95.
need of States to have a good reputation.62 Nevertheless, the European consensus

on stronger judicial independence balanced by weaker forms of accountability and
the public confidence in European judges might not be eternal when populism
threatens the future of rights universalism and ignores the need for reputation.
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Chapter 10
Accountability Through Transparency
and the Role of the Court of Justice
of the European Union
Marios Costa
Contents
10.1 Introduction...................................................................................................................... 222

10.2 Accountability.................................................................................................................. 222
10.3 Historical Overview of the Legislative Background ...................................................... 225
10.3.1 The Pre-Regulation Regime: The Code of Conduct ......................................... 227
10.4 The Transparency Regulation and the Relevant Case Law ........................................... 229
10.4.1 Sensitive Documents: The Sison Case............................................................... 232
10.4.2 Legislative Documents Relating to Legal Advice: The Turco Case................. 234
10.5 Conclusion ....................................................................................................................... 239
References .................................................................................................................................. 240
Abstract It is often alleged that the EU’s decision-making is insufficiently trans-

parent and that accountability deficits are even growing, something which com-
promises the Union’s overall legitimacy. In this regard, the EU’s access to
documents regime can be considered as an on-going process capable of securing,
through a set of binding rules, open performance of the decision-making process. It
is here that the role of the Court of Justice of the EU (CJEU) comes into play.
Tasked with interpreting the access regime, the CJEU imposed boundaries on the
broad derogations to the right. Yet, in terms of accountability, the transparency
friendly line of case law has creatively been interpreted in a way that now restricts
the access right per se. On the whole, the chapter concludes that the CJEU, with all
due respect, contributed to the accountability deficit of the EU’s access to
documents regime.
M. Costa (&)
City, University of London, London, UK
e-mail: marios.costa.1@city.ac.uk

https://doi.org/10.1007/978-94-6265-359-7_10
222 M. Costa

Keywords access to documents accountability deficit Court of Justice of the

European Union EU law Regulation 1049/2001 transparency
10.1 Introduction
This chapter examines the EU access to documents regime from the point of
accountability. It argues that the latest judicial tendency creates a substantial
accountability gap in the area. To substantiate this, the first part of the chapter
examines whether the judicial process before the CJEU qualifies as a fully-fledged
accountability relation whereas the EU organs can be held accountable by the CJEU
on how they implemented the Transparency Regulation.1 The chapter then outlines
the EU’s transparency framework and examines whether the contribution of the
CJEU strengthens public accountability. The chapter adopts a historical perspective
by examining the Code of Conduct of access to EU documents introduced in 1993
and considers the initial contribution of the EU Courts with regards to transparency.
Additionally, the chapter examines the developments introduced by the
Transparency Regulation. Finally, the chapter argues that as regards non-legislative
documents, the net effect of judicial developments is to reduce the standards for
public accountability.
10.2 Accountability
This section focuses on whether the judicial process before the Court can qualify as
an accountability relation. Observing the contribution of the CJEU with regards to
transparency, as well as assessing whether the EU’s access to documents regime
suffers from accountability deficits, along with examining alternatives on how to
mitigate these deficits, presupposes a clear understanding of the meaning of
accountability. This section therefore begins by explaining accountability to
understand what is, and what is not, meant by the concept. The definition adopted
and explained here is used to measure accountability (deficits) in relation to the
EU’s access to documents rules and conversely highlights why more accountability
is being called for in this area.
Accountability is a term frequently used in EU documents: ‘we live in the age of
accountability, wherever one looks there is a discussion and debate over account-
ability’;2 the word ‘crops up everywhere performing all manner of analytical and
1
Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and
Commission documents [2001] OJ L145/43. See also: Adamski 2009, 2012; Alemanno and Stefan
2014; Rossi and Silva 2017.
2
Fisher 2004, p 495. See also: Arnull and Wincott 2002; Broberg 2002; Curtin 2000, 2013;
Curtin and Hart 2010.
10 Accountability Through Transparency and the Role of the Court … 223
rhetorical tasks and carrying most of the burdens of democratic “governance.”’3 In

its fundamental sense, accountability means being answerable for one’s actions to
some authority and, if necessary, having to suffer sanctions for actions not in
accordance with the mandate granted by that authority. This form of accountability
can be broken down into four major elements: the setting of standards, the obtaining
of an account, the judging of such an account and a decision about the conse-
quences that arise from such a judgment.4 A suitable definition of the term is
provided by Bovens where he describes accountability as a ‘relationship between an
actor and a forum, in which the actor has an obligation to explain and to justify his
or her conduct, the forum can pose questions and pass judgment, and the actor may
face consequences.’5 In other words: ‘A is accountable to B when A is obliged to
inform B about A’s (past or future) actions and decisions, to justify them, and to
suffer punishment in the case of eventual misconduct.’6
Accountability is also closely related with the notion of independence. Indeed,
most commentators focus on the challenge of finding the fine balance between
accountability and independence. In doing so, the literature considers independence
as a factor or rather as a threat which may have a negative impact upon account-
ability. The apparent consensus is that accountability cannot co-exist with inde-
pendence and that independence overload leads to a non-accountable agent.7
Similarly, when the accountability forum is constantly steering the behaviour of the
agent the accountability gap is drastically diminished. Yet, the autonomy of the
agent under these circumstances is equally reduced and the outcome is to have an
‘accountable’ but rather dependent agent. I therefore argue for the contrary and I
consider that the person or the body under scrutiny, the actor, needs to be
accountable and simultaneously independent throughout the decision-making pro-
cess. Following from this, the accountability relationship can be effective so long as
the delegator does not directly interfere in the decentralized decision-making pro-
cess. After all, accountability can be meaningful if the agent takes decisions by
relying on highly complicated and technical scientific knowledge and expertise.8
When the actions of the agent are directed by the delegator, the raison d’être of
delegation defeats its purpose. In consequence, I consider that conceptually
accountability and independence are interrelated terms and not mutually exclusive.
Overall, the whole essence of accountability calls for independence from politics
while the actor executes the delegated tasks.
What role do the EU Courts play to the state of accountability in the EU? To
address this, we need to focus on the field of access to documents since account-
ability’s alter ego, transparency, ensures and requires accessibility of all the relevant
3
Mulgan 2000, p 555.
4
Davies 2001. See also: Mulgan 2003; Schedler 1997; Tomkins 1999; Vesterdorf 1998.
5
Bovens 2007, p 447.
6
Schedler 1997, p 17.
7
Geradin 2005, p 231; Busuioc 2009; Costa and Peers 2012, 2016; Costa 2017.
8
Busuioc 2013.
224 M. Costa
information by taking decisions out of the backroom.9 In consequence, access to

documents rules become a pre-requisite of the accountability relationship.10 It has
been argued, rightly, that ‘no society can be considered truly democratic if its
citizens are denied the possibility of vindicating their legal rights in judicial pro-
ceedings, whether against the oppressive acts of a powerful legislature – even a
democratically elected one – or against the unlawful practices of an overweening
administration.’11 As a consequence, the EU Courts can play a crucial role in public
accountability by bringing transparency cases to public attention. It has been noted
that:
The fact that the citizens are aware of what the administration is doing is a guarantee that it
will operate properly. Supervision by those who confer legitimacy on the public authorities
encourages them to be effective in adhering to their [citizens’] initial will and can thereby
inspire their confidence, which is a guarantee of public content as well as the proper
functioning of the democratic system.12
Overall, I consider that the status of accountability in the EU can only be

properly understood through the lens of the access to documents rules. The public’s
right to hold decision-makers into account, by assessing the impact of the activities
of the EU and by commenting upon those activities, can only effectively be exer-
cised if there are rules in place which allow people to access the relevant infor-
mation. ‘After all, without information on what decisions are being taken and by
whom, it will not be possible for various accountability forums to hold actors to
account’.13 In this way, transparency enhances awareness and understanding of the
ultimate objectives that the decision-making processes aim to achieve.14 ‘Without
maximum access to government information, citizens have no way effectively to
evaluate and monitor the process by which laws and policies get made and
enforced’.15 In the words of the judiciary, ‘the widest possible access to documents
(…) is essential to enable citizens to carry out genuine and efficient monitoring of
the exercise of the powers vested in the [Union] institutions (…)’.16 Accountability
is now clearly set out in the second recital in the preamble of the Transparency
Regulation which states that ‘openness (…) guarantees that the administration
enjoys greater legitimacy and is more effective and more accountable to the citizen
in a democratic system’. Consequently, the constitutional role of the Court to
interpret the access to documents rules has a significant impact upon the status of
9
Fisher 2004, p 503.
10
Frost 2003, p 87; Curtin and Leino 2017; Curtin and Meijer 1995; Davis 1999, 2000.
11
Mancini and Keeling 1994, p 181.
12
Court of Justice (hereafter: ECJ), Hautala v Council, 10 July 2001, case C-353/99, ECLI:EU:
C:2001:392, opinion of Advocate-General Leger at 52.
13
Brandsma et al. 2008, p 819.
14
Harden 2001, p 165.
15
Kierkegaard 2009, pp 3–4.
16
ECJ, Interporc v Commission, 7 December 1999, case T-92/98, ECLI:EU:T:1999:308, para 39.
accountability in the EU legal order since the access regime is used as a tool to
assess and strengthen the EU’s legitimacy and accountability.
The duty of the CJEU is to rule on whether the legal requirements stipulated in
the Transparency Regulation have been respected and to issue binding judgments
settling the dispute. The adjudication is based on a legal debate amongst the liti-
gants. The Court, as the stereotypical accountability forum, assesses the perfor-
mance of the litigants, the actors. The assessment also involves the giving of an
account of the defendant’s prior conduct on how they applied the Transparency
Regulation. In the end, the Court has discretion to impose sanctions that take the
form of the annulment of the contested measure and rule on the legal costs. This is
consistent with the legislative framework which provides for a mere annulment of
the contested decision rather than for a substantive entitlement of the citizenry to
access official documents.
Pursuant to the accountability requirements, the actor is liable for giving an
explanation for their actions and to suffer the consequences where appropriate. In
that regard, the role of the Court is often understood as a process that operates
retrospectively in the sense that it assesses the prior conduct of the actor, and as
such it meets perfectly the accountability requirements which mainly deal with past
wrongdoings. This is the core meaning of the accountability relationship: the lia-
bility to give an account or explanation of actions and, where appropriate, to suffer
the consequences, take the blame or undertake to put matters right if it should
appear that errors have been made. That is essentially the role of the Court in the
access to documents litigation. In order for the Court to comply with the
accountability requirements, it needs to ensure public awareness and participation
in the decision-making process. To see whether this is the case, the remaining of the
chapter outlines the EU’s access to documents regime and assesses the role of the
EU Courts in interpreting that regime.
10.3 Historical Overview of the Legislative Background
The main problems that occurred during the process of ratification of the Treaty of
Maastricht17 and particularly the negative response from Danish public opinion
confirmed the widespread notion that the Union’s decision-making process lacked
accountability and legitimacy. In consequence, accountability was placed high on
the political agenda and forced the Heads of States and Government as well the
other EU institutions to find alternatives that would bring the Union closer to the
citizens. Access to documents was believed to be the solution to the problem.
17
The Danes rejected the ratification of the Maastricht Treaty in a referendum, while the French
only voted to approve the treaty by a narrow majority. Lengthy discussions occurred in the UK
Parliament and in Germany ratification was challenged before the Constitutional Court.
226 M. Costa
Declaration No 17 attached to the Final Act of the Maastricht Treaty stated that:
The Conference considers that transparency of the decision-making process strengthens the
democratic nature of the institutions and the public’s confidence in the administration. The
conference accordingly recommends that the Commission submit to the Council no later
than 1993 a report on measures designed to improve public access to the information
available to the institutions.
Declaration No 17, quoted above, illustrated the willingness for the establishment
of a general ‘right’ of access to information. This non-binding political statement
constitutes a type of soft law and not a rule of law of higher order which the previous
rules would be invalid for not complying with.18 Rightly, the Advocate General
Maduro opined that declarations attached to the Treaties can be used as a basis in
order to clarify Treaty provisions so long as they do not amend explicit stipulations
provided in the Treaties.19 This approach is in line with the case law which confirms
that declarations can be used as a basis for interpretation of Treaty provisions.20
In response to Declaration No 17, the Commission first surveyed national law on
access to documents and then released a communication on the issue.21 These
endeavours constitute the early steps that the EU has taken as an attempt for more
openness and transparency in the decision-making process. Amongst these, clearly
the most important was the Code of Conduct on access to documents which was
later implemented by the Council22 and the Commission.23
The accession of Austria, Finland, and Sweden in 1995 and the appointment of
the first European Ombudsman, Mr. Jacob Soderman, also increased the state of
transparency in the EU. In 1996, the Ombudsman began an own initiative inquiry
regarding the adoption of access rules by the other EU institutions, bodies, offices
and agencies and argued that as long as the Union legislature had not adopted
general rules on access to documents, the institutions and bodies were obliged to
adopt access rules as part of their internal organisation. This inquiry resulted in a
draft recommendation that the other institutions and bodies should follow the
example of the Council and the Commission and adopt their own internal rules on
public access considering that failure to do so could be maladministration. The
outcome of this attempt was that all the Union institutions, bodies, offices and
agencies introduced rules regarding public access to their documents.24
18
Peers 2002b.
19
ECJ, Kingdom of Sweden v Commission of the European Communities and Others, 18 July
2007, case C 64/05 P, ECLI:EU:C:2007:433, opinion of Advocate-General Maduro, para 7.
20
ECJ, Agrana Zucker und Stärke v Commission, 7 June 2001, case T-187/99, ECLI:EU:
T:2001:149 and order of the Court in ECJ, Agrana Zucker und Stärke v Commission, 5 November
2002, case C-321/01 P, ECLI:EU:C:2002:635.
21
[1993] OJ L 156/5 and [1993] OJ L 166/4.
22
Decision 93/731 [1993] OJ L 340/43.
23
Decision 94/90 [1994] OJ L 340/41.
24
OJ 1998 C295/1 (Court of Auditors); OJ 1997 C243/13 (European Investment Bank); OJ 1999
L110/30 (European Central Bank); the European Agency for Health and Safety at work;
Europol; OJ 1997 L339/18 (Economic and Social Committee); OJ 1997 351/70 (Committee of the
10.3.1 The Pre-Regulation Regime: The Code of Conduct
The basic principle enshrined in the joint Code of Conduct governing access to the
Commission and the Council was the ‘widest possible access to documents’ and
also the narrowest interpretation of the exceptions since the latter is a corollary of
the former.25 However, this did not mean that the Code guaranteed an absolute
right. On the contrary, it provided for documents to be refused where disclosure
‘could’ undermine the protection of certain public and private interests. Although
the Code started with the assurance that ‘the public will have the widest possible
access to documents held by the Commission and the Council’ the openness cri-
terion was not the rule. Rather paradoxically, the Code’s exceptions were defined
broadly with the effect of changing the presumption of disclosure from positive
rights with negative exceptions to a text which treated access as the exception.26
The Code contained a non-exhaustive list of mandatory exceptions,27 which
meant that the institutions must refuse access to documents that came within one of
the exceptions, if the relevant circumstances were shown to exist. The rules pro-
vided for a radical change into the hitherto situation which was secrecy, thus the
grounds for refusing access were drafted generously. The Code exceptions that
were covered:
– The protection of the public interest (exemplified by public security, interna-
tional relations, monetary stability, court proceedings, inspections, and
investigations);
– The protection of the individual and of privacy;
– The protection of industrial and commercial secrecy;
– The protection of the Union’s financial interests; and
– The protection of confidentiality as requested by the natural or legal persons that
supplied the information or as required by the legislation of the Member State
that supplied the information.
Additionally, the institutions could refuse access to protect confidentiality of
their proceedings.28
Regions); OJ 1998 L90/43 (European Monetary Institute); European Centre for the Development
of Vocational Training (cadefop); OJ 1997 C282/5 (European Environment Agency); OJ 1998
C46/5 (Translation Centre for Bodies of the European Union); European Monetary Centre for
Drugs and Drug Addiction; European Agency for the Evaluation of Medicinal Products.
25
Peers 2002b.
26
De Leeuw 2003.
27
ECJ, Carlsen v Council, 3 March 1998, case T-610/97 R, ECLI:EU:T:1998:48. The President
of the Court ruled that the mandatory exceptions regarding the protection of the public interest
were not exhaustive and that an exception relating to the stability of the Community legal order
which covers also the legal advice given by the legal service of the institutions existed.
28
ECJ, Carvel v Council, 19 October 1995, case T-194/94, ECLI:EU:T:1995:183.
228 M. Costa
Even after the enactment of the Code, the institutions were reluctant to interpret
the code in favour of transparency.29 This attitude led to the refusal of access
repeatedly. The Code’s exceptions were indeed dangerously restrictive and in a
Court case the legal basis of the Code was challenged.30 It was argued that
transparency constitutes an essential aspect of democracy and as such cannot be
regulated by measures of internal organisation. The Court of Justice, however,
dismissed the challenge on the grounds that the institutions could adopt those
measures as part of their internal organisation.31 At that time the Treaty of
Amsterdam was not in force and thus the institutions were entitled to have access
rules governing citizens’ rights based solely on internal procedural rules.32
The Court of Justice and the Court of First Instance handed down several
judgments interpreting the Council and the Commission decisions denying access.
The Courts held, for example, that the institutions after having adopted their
internal rules on access were abiding by them and any exceptions to the principle of
the widest access must be justified on objective grounds and be applied strictly.33 In
addition to this, the Court ruled that the institutions were obliged to carry out a
concrete and individual assessment of each of the requested document before
deciding whether or not to release.34 Also, as already explained above, if the
institutions were relying on a discretionary exception they were required to balance
the interest of the applicant against their interest in protecting confidentiality.
Access should be granted if the applicant’s interest outweighed institution’s inter-
est.35 Finally, the institutions had to disclose the part of the documents not covered
29
Harlow 2002. See also the open letter addressed to the Secretary General of the Council by the
European Federation of Journalists dated 30 April 1996 mentioning ‘grave reservations about the
Council’s interpretation and practice of the code of conduct concerning access to documents’.
30
The Netherlands, Denmark, Sweden, and Finland have consistently hard-pressed for greater
openness within the Union gaining strong inspiration from their national laws where the notion of
citizens’ rights is underscored.
31
ECJ, Netherlands v Council, 30 April 1996, case C-58/94, ECLI:EU:C:1996:171.
32
It must be noted here that it was only in 1997 that the EP adopted rules regarding access to its
documents.
33
ECJ, WWF v Commission, 5 March 1997, case T-105/95, ECLI:EU:T:1997:26. This was the
first judgment on access to documents rules concerning the Commission. It established that the
internal institutional rules on access to documents are capable of conferring rights on citizens and
imposing obligations on the Commission. The CFI also ruled for the first time on the public
interest exception concerning inspections and investigations and ruled that the documents relating
to investigations which may lead to an infringement procedure according to Article 226 of the EC
Treaty, now Art 258 TFEU, satisfy the conditions that must be met by the Commission in order to
rely on the public interest exception according to Article 4(1) of the Code of Conduct.
34
ECJ, Svenska Journalistforbundet v Council, 17 June 1998, case T-174/95 ECLI:EU:
T:1998:127.
35
ECJ, Carvel v Council, 19 October 1995, case T-194/94, ECLI:EU:T:1995:183 and ECJ, WWF
v Commission, 5 March 1997, case T-105/95 ECLI:EU:T:1997:26.
by the exceptions. This is known as the principle of partial access which was firstly
developed by the Courts as this possibility was not provided by the Code.36
Under the Code, there is consistent jurisprudence that ‘the legal rule is that the
public is to have access to the documents of the institutions and the power to refuse
access is the exception’.37 At the same time, the exceptions needed to be interpreted
and applied restrictively so as not to defeat the general principle of the widest
possible access found in the Code.38 To implement this, the institutions were
required to examine concretely and individually the documents and to state reasons
if access was to be refused.39 The risk of the public or private interest being
undermined must be reasonably foreseeable and not purely hypothetical.40 This
exercise was aimed to help the applicant to assess the reasons on which access was
denied and to enable the Court to exercise its power of review. The Court ruled that
in exceptional cases the requirement of concrete and individual examination could
be limited under the ‘administrative burden rule’.41 Pursuant to that rule, the
document by document examination could be abandoned. The institutions were
allowed to balance the work that they will have to bear against the public interest in
gaining access. In other words, excessive administrative work could allow an
institution to derogate from the access requirement.42
10.4 The Transparency Regulation and the Relevant Case

Law
The Transparency Regulation governs, at the time of writing, the right of citizens
and residents in the EU to access, in principle, all the documents drawn or held by
the EP, Council and the Commission.43 The pre-Regulation case law has, to a large
36
ECJ, Hautala v Council, 6 December 2001, case C-353/99 P, ECLI:EU:C:2001:661.
37
ECJ, Kuijer (II) v Council, 7 February 2002, case T-211/00, ECLI:EU:T:2002:30, para 55.
38
ECJ, Svenska Journalistforbundet v Council, 17 June 1998, case T-174/95, ECLI:EU:
T:1998:127; ECJ, WWF v Commission, 5 March 1997, case T-105/95, ECLI:EU:T:1997:26; ECJ,
Interporc (I) v Commission, 6 February 1998, case T-124/96, ECLI:EU:T:1998:25.
39
ECJ, Van der Wal v Commission, 19 March 1998, case T-83/96, ECLI:EU:T:1998:59; ECJ,
Interporc (I) v Commission, 6 February 1998, case T-124/96, ECLI:EU:T:1998:25.
40
ECJ, Kuijer (II) v Council, 7 February 2002, case T-211/00, ECLI:EU:T:2002:30.
41
ECJ, Hautala v Council, 6 December 2001, case C-353/99 P, ECLI:EU:C:2001:661; ECJ,
Hautala v Council, 19 July 1999, case T-14/98, ECLI:EU:T:1999:157.
42
Heliskoski and Leino 2006. See also: Diamandouros 2008; Guggenbuhl 1998; Flanagan 2007;
Leino 2011; Osterdahl 1998.
43
Although in principle the beneficiaries of the right of access to documents are EU citizens and
residents, Article 2(2) of the Regulation grants discretion to the EU institutions bound by it to grant
access to any natural or legal person not residing or not having its registered office in a Member
State. The institutions responded positively to this option. See Decision 2001/840 of the
Council OJ 2001, L313/40, Decision 2001/937 of the Commission OJ 2001, L 345/94 and the
Decision of the EP OJ 2001, L 374 /I.
230 M. Costa
extent, been incorporated into this Regulation and the interpretation of the old rules
is still applicable unless clearly stated otherwise.44 This is justified by Recital 3 of
the Regulation’s Preamble, which states that the Regulation ‘consolidates the ini-
tiatives which the institutions have already taken’.
As already explained above, pursuant to settled case law and in view of the
objectives of the Regulation, the exceptions set out in Article 4 of the Regulation
must be interpreted and applied strictly. Thus, when the institution decides to rely
on any of the exceptions mentioned in Article 4 ‘it must explain how access to that
documents could specifically and effectively undermine the interest protected by an
exception’.45 The purpose of the Regulation as set out in its Article 1 is ‘to define
the principles, conditions, and limits on grounds of public or private interest gov-
erning the right of access to EP, Council, and Commission documents (…) in such a
way as to ensure the widest possible access to documents (…) to establish rules
ensuring the easiest possible exercise of this right (…) and to promote good
administrative practice on access to documents’. For this purpose, any European
citizen and any natural or legal person residing or having its registered office in any
of the Member States can apply to access any documents.46
The Regulation reflects the overall intention specified in the second subpara-
graph of ex Article 1 TEU, currently Article 1 of the TEU, to mark a new stage in
the process of creating an even closer union amongst the peoples of Europe, in
which decisions are taken as openly as possible and as closely as possible to the
citizen. Similarly, as it is noted in the recital 2 of the Regulation’s Preamble there is
a direct link of the fundamental right of European citizens and residents to have
access to documents held by the EU institutions with the democratic nature of those
institutions.
Article 2 of the Regulation sets out the basic provisions and its wording is
analogous to the wording of ex Article 255(1) of the EC Treaty whereas Article 2(3)
defines the scope of the Regulation and reads as follows: ‘This Regulation shall
apply to all documents held by an institution, that is to say, documents drawn up or
received by it and in its possession, in all areas of activities of the EU.’ The
provision marks a significant change to the pre-Regulation regime. Article 2(3)
provides that documents drawn or received by the institutions fall within the scope
of the Regulation. This broader access constitutes an important obvious step for-
ward in respect of the former situation, which covered only access to documents
drawn up by the institutions.47 As explained already, according to the authorship
rule, access requests were directed to the authors. Yet, this welcome abolition does
not mean that the right of access to documents is an absolute right. The institutions
may still rely on Article 4 to justify denial to grant access.
44
Peers 2002b; Kranenborg 2006.
45
ECJ, Borax v Commission, 11 March 2009, caseT-121/05, ECLI:EU:T:2009:64.
46
Article 2(2) of Regulation 1049/2001 [2001] OJ L 145/43.
47
Peers 2002b; De Leeuw 2003.
There are four types of exceptions: mandatory, ‘discretionary’, the protection of

the decision-making process and, finally, documents originating from third parties
and Member States. Article 4(1) is written in mandatory terms and provides that:
‘the institutions shall refuse access to a document where disclosure would under-
mine the protection of:
(a) the public interest as regards:
– public security;
– defence and military matters;
– international relations;
– the financial, monetary or economic policy of the Community or a Member
State;
(b) privacy and the integrity of the individual, in particular in accordance with the
Community legislation regarding the protection of personal data’.
The first category of exceptions precludes access to any of the documents falling
within it and calls for no balancing of interests at stake. If the institutions can prove
that the documents fall into this category, refusal is automatically justified.48 As
regards the privacy exception, the personal data legislation provides for limits.
The CFI, now the General Court, was called to interpret the relationship between
Regulation 1049/2001 and Regulation 45/2001and ruled that disclosure can only be
denied if the privacy or the integrity of the person would be undermined.49 In
consequence, the CFI carried out a balancing exercise between the two fundamental
rights at stake: public access and data protection. It highlighted the importance of
the access right and reiterated that any limitations must be construed and applied
restrictively so as not to defeat the general principle enshrined in Regulation 1049/
2001. At the same time, the right to data protection must be protected. As a result,
the Court ruled that names, titles and functions of public office holders, civil ser-
vants and interest representatives in relation with their professional activities shall
be disclosed because disclosure does not lead to an interference with the private life
of the persons, nor would those persons have any ground to believe that they
enjoyed confidential treatment.50
Unfortunately, from an openness point of view, the Court of Justice set aside the
judgment of the General Court on the grounds that the assessment of whether the
protection of privacy and the integrity of the individual protected by Article 4(1)(b)
of the Regulation should not be confined to Article 8 of the European Convention
on Human Rights (ECHR) but must take into account the EU legislation on data
protection. Under Regulation 45/2001, the Bavarian Lager did not provide any
justification in favour of obtaining the requested data and therefore the Commission
and the Court were not in a position to assess whether the applicant’s interest
48
Peers 2002b; De Leeuw 2003.
49
ECJ, Bavarian Lager v Commission, 8 November 2007, case T-194/04, ECLI:EU:T:2007:334.
50
Ibid.
232 M. Costa
outweighed the ‘data subject’s legitimate interest and to examine whether the lat-
ter’s interest might be prejudiced, as required by Article 8(b) of 45/2001’.51
The Article 4.1 case law consistently applies the marginal review standard, since
judicial review is ‘limited to verifying whether the procedural rules have been
complied with, the contested decision is properly reasoned, and the facts have been
accurately stated, and whether there has been a manifest error of assessment of the
facts or misuse of powers’.52 Yet, the exceptions set out in Article 4 must be
interpreted and applied strictly to secure the effet utile of the access right. It follows
from this, that when the institution decides to rely on any of the exceptions ‘it must
explain how access to that document could specifically and effectively undermine
the interest protected by an exception’.53 This delicate balancing task has been
deemed essential and access cannot be denied without firstly appraising the
requested documents on a case-by-case basis. The application of the exceptions
regarding sensitive, legislative, administrative and judicial documents, as per settled
case law, is discussed below.
10.4.1 Sensitive Documents: The Sison Case
Sison54 was the first case whereas the Court examined the mandatory exceptions
relating to public security and international relations under the Regulation. As
explained already, in principle, the Regulation covers all the documents drawn or
held by the EP, Council and the Commission. Pragmatically, however, certain
documents are subject to special procedural rules before they can be released. In
this regard, Article 2(5) provides that ‘sensitive documents as defined in Article 9
(1) shall be subject to special treatment’. The pre-Regulation understanding of the
nature of the discretion related to the mandatory exceptions55 has played a key role
in Sison and led the Court to adopt a conservative interpretation of the public
security and international relations exceptions. Pursuant to the reasoning of the
Court, the power to review the legality of the institutions’ decisions regarding
Article 4(1)(a) is ‘limited to verifying whether the procedural rules and the duty to
state reasons have been complied with, the facts have been accurately stated, and
51
ECJ, Commission v Bavarian Lager, 29 June 2010, case C-28/08 P, ECLI:EU:C:2010:378.
52
ECJ, Hautala v Council, 19 July 1999, case T-14/98, ECLI:EU:T:1999:157. This has been
confirmed as regards the Regulation, see ECJ, Sison v Council, 1 February 2007, case C-266/05 P
ECLI:EU:C:2007:75.
53
ECJ, Borax v Commission, 11 March 2009, case T-121/05, ECLI:EU:T:2009:64.
54
ECJ, Sison v Council, 26 April 2005, joined cases T-110/03, T-150/03 and T-405/03, ECLI:
EU:T:2005:143.
55
According to settled case-law, the institutions enjoy wide discretion in the context of a decision
denying access based on the protection of public interest regarding international relations.
See ECJ, Hautala v Council, 19 July 1999, case T-14/98, ECLI:EU:T:1999:157.
whether there has been a manifest error of assessment of the facts or a misuse of
powers’.56
In Sison, the applicant, based on the short and formulaic response, argued that
the Council, contrary to the settled case law, had never conducted a concrete and
individual examination of the documents requested. As a result, the applicant was
unable to ascertain the reasons put forward by the Council and the Court was unable
to exercise its power of review. The Council, however, argued that the existence of
a specific procedure dealing with the request for sensitive documents shows that
concrete examination had taken place. The Court agreed with the Council and
adopted a very conservative interpretation of the public security and international
relations exception. On appeal, Mr Sison tried to set aside the CFI’s judgment,
though the Court of Justice reiterated that the Union institutions enjoy wide dis-
cretion in the areas covered by Article 4(1)57 and thus dismissed the appeal.
The second category, set out in Article 4(2), is not really discretionary, since it is
written in the same mandatory way (‘shall refuse’) as the exceptions in Article 4(1)
but is subject to a public interest override in favour of disclosure. The
decision-making exception provided by Article 4(3) is the equivalent of the con-
fidentiality exception under the Code of Conduct. The former imposes with a higher
threshold to non-disclosure. Specifically, it requires that the disclosure ‘significantly
undermines’ the decision-making. Accordingly, the balance is tipped towards dis-
closure. Article 4(2) reads as follows:
[t]he institutions shall refuse access to documents where disclosure would undermine the
protection of:
– commercial interests of natural or legal person, including intellectual property;
– court proceedings and legal advice;
– the purpose of inspections, investigations and audits;
Unless there is an overriding public interest in disclosure.
The latter clause constitutes an ‘exception to the exception’58 and if applicable

the requested documents need to be released. However, the CFI interpreted this
provision strictly and held in Turco59 and in other cases60 that the overriding public
interest provided by Article 4(2) must be additional to the public’s right to be
informed. This case law, however, cannot be considered as good law any longer
after the ruling of the Court of Justice’s in the Turco’s appeal.61
56
ECJ, Sison v Council, 26 April 2005, joined cases T-110/03, T-150/03 and T-405/03, ECLI:
EU:T:2005:143, para 47.
57
ECJ, Sison v Council, 1 February 2007, case C-266/05 P, ECLI:EU:C:2007:75.
58
Kranenborg and Voermans 2005. See also: Peers 2002a; Kranenborg 2008.
59
ECJ, Turco v Council, 23 November 2004, case T-84/03, ECLI:EU:T:2004:339.
60
ECJ, Association de la presse internationale asbl (API) v Commission, 12 September 2007,
case T-36/04, ECLI:EU:T:2007:258.
61
ECJ, Sweden and Turco v Council, 1 July 2008, joined cases C-39/05 P and C-52/05 P, ECLI:
EU:C:2008:374.
234 M. Costa
10.4.2 Legislative Documents Relating to Legal Advice: The

Turco Case62
The applicant, Mr Turco, requested access to an opinion of the Council’s legal

service relating to a proposal for a Council Directive laying down minimum
standards for the reception of applicants for asylum in Member States. He was
refused access on the basis that the release of the opinion would undermine the
protection of legal advice regulated by the second indent of Article 4(2) of the
Regulation. The Council argued that its interest in protecting internal legal advice
outweighed the public interest in disclosure. In addition to this, the Council argued
that the mere fact that the release of the document would be in the general interest
of increasing openness and transparency of the institutions decision-making process
is irrelevant. This criterion, according to the Council, would apply to all written
opinions of the Council’s legal service. Finally, the Council argued that the release
of the opinion concerned would give rise to uncertainty of the validity of the
legislative act adopted following such advice.
The applicant and one of the intervening governments,63 Finland, argued that
denial of access should be based on a concrete and individual examination of the
documents requested and not relate to all legal advice on legislative acts in gen-
eral.64 The Court ruled that, in principle, denial of access must be based on concrete
and individual examination but, however, the Council’s generality was justified by
the fact that giving additional information would deprive the exception relied upon
of its effect.65 The CFI ruled also that the rationale behind the legal advice
exception is to avoid uncertainty, by raising doubts, over the legality of EU leg-
islation66 along with securing independence of the opinions of the institutions legal
service.67 As far as the public interest override is concerned, the Court found that
the legal advice can derogate from the established duty, incumbent on the institu-
tions, to carry out a concrete assessment of the requested documents. By doing so,
the CFI placed the burden of proof regarding the override upon the applicants. What
is more surprisingly, however, was the outcome of the Court that the override could
not be invoked in the general interest of transparency, openness, democracy and
citizens participation in the decision-making process. These principles, according to
the Court, have already been implemented and underlie the transparency
Regulation.
The judicial reasoning is hardly convincing. The CFI here says that the purpose
of the exception is to prevent disclosure of the underlying legal advice in order to
62
63
The other two intervening governments were Denmark and Sweden.
64
ECJ, Turco v Council, 23 November 2004, case T-84/03, ECLI:EU:T:2004:339, para 36.
65
Ibid., para 57.
66
Ibid., para 74.
67
Ibid., para 79.
avoid uncertainty as to the legality of the acts adopted following such advice and
that any reference in the statement of reasons to the content of the opinion would
deprive the exception of its effect. To paraphrase, the CFI is of the view that a way
to protect legal certainty is to prevent the public from finding out that acts of
uncertain legality have being issued and are maintained.
The approach followed by the CFI in this case is in a direct contradiction with
the settled case law which sets out the principles governing the access to documents
regime. As already explained, the widest possible access enhances citizens’ par-
ticipation in the decision-making process. In fact, the same Court has ruled that ‘the
widest possible access to documents (…) is essential to enable citizens to carry out
genuine and efficient monitoring of the exercise of the powers vested in the
Community institutions (…)’.68 How can citizens exercise these rights when access
to legal advice is refused as a matter of principle? Can any legal system be based on
principles which prevent citizens from scrutinising the legality of any acts? On the
contrary, there is a strong public interest override as regards the right to seek for the
annulment of measures of uncertain legality. To that end, protecting legal certainty
cannot be considered as a panacea for an act which might very well be invalid.
The applicant also argued that the correct exception for the protection of the
Council’s legal advice is Article 4(3) which aims to protect the institution’s
decision-making process.69 The CFI had rejected the application of Article 4(3) to
the case of legal advice relating to legislative acts on the basis that to do so would
empty Article 4(2) of relevancy. The CFI ruled that Article 4(2) does not relate to
legal advice taken for the purpose of court proceedings but was designed to cover
both situations. However, such an argument contradicts the fact that in Article 4(2)
legal advice and court proceedings are mentioned separately. It is worth mentioning
that the Code of Conduct, examined thoroughly previously, was only referring to
the court proceedings exception, legal advice was inserted by the Regulation. Had
the legislature wanted to protect court proceedings alone it would have had every
opportunity to do so by choosing not to include an exception relating to legal
advice. In any event, there can be legal advice not related to legislative proceedings,
even legal advice given by in-house lawyers to companies and obtained by the
Commission under competition proceedings, as long as such advice is not protected
as privileged under EU law.
The second ground put forward by the CFI appears no less problematic. The CFI
found that the disclosure of the introductory paragraph of the Council’s legal ser-
vice opinion confirms that concrete and individual examination has taken place.70 If
the reasoning adopted here by the CFI becomes the accepted norm then the access
right will be drastically diminished of any substance in the sense that any partial
access would always constitute evidence that an individual and concrete assessment
had taken place. Finally, the CFI placed the burden of proof regarding the public
68
ECJ, Interporc v Commission, 7 December 1999, case T-92/98, ECLI:EU:T:1999:308, para 39.
69
70
Ibid., para 75.
236 M. Costa
interest override on the applicants by ruling that the override could not be invoked
in the general interest of transparency, openness, democracy and citizens’ partici-
pation in the decision-making process. These principles, according to the Court,
have already been implemented and underlie the transparency Regulation. Thus, the
overriding interest capable of justifying disclosure must be distinct from those
principles.
For the abovementioned reasons, it seems unfortunate that the reasoning of the
Court was framed in such a general language especially because the Court in Turco
ruled for the first time on the legal advice exception as well as on the public interest
override provided by the Regulation in a number of exceptions. One would have
wished the Court to confirm in a more explicit manner that not all the legal advice
should escape the duty incumbent on the institutions to carry out a concrete
assessment of documents of this kind.
Fortunately and in the interests of transparency, the Court of Justice, in the
joined cases of Sweden and Turco v. Council,71 set aside the CFI’s judgment and
upheld the appeal. The Court highlighted the importance of the principle of
transparency in the decision-making process. The Court of Justice addressed how
the EU institutions should deal with disclosure requests relating to legal advice laid
down in the second indent of 4(2) of the transparency Regulation. It was held that
when the institutions are asked to disclose such a document must carry out a
specific three-staged procedure that corresponds to the three criteria outlined in that
provision.72 Firstly, the institution must consider and satisfy itself that the requested
document does indeed relate to legal advice and whether any parts of the requested
documents are covered by the exception.73 The second stage is the requirement to
consider whether disclosure of any parts of the document would undermine the
protection of such an advice.74 Regarding the latter requirement, the Court, using a
teleological interpretation, ruled that the term legal advice must be understood in
the light of the purpose of the Regulation. Under this purpose, the exception ‘must
be construed as aiming to protect an institution’s interest in seeking legal advice and
receiving frank, objective and comprehensive advice’.75 The assessment of the risk
of that interest being undermined should consider what is reasonably foreseeable
and not purely hypothetical. Finally, if the outcome of the above assessment is that
disclosure of the document would undermine the ability of the institution to receive
frank and objective legal advice, it is incumbent on the institution to balance the
interest in non-disclosure against any possible overriding interest, bearing in mind
71
EU:C:2008:374. Arnull 2009.
72
Ibid., para 37.
73
Ibid., para 38.
74
Ibid., para 40.
75
Ibid., para 42.
the purpose of the transparency legislation to secure the widest possible access to
documents, giving a reasoned judgment for its decision.76
The Court of Justice, in the Turco appeal, held that the CFI was erred in law by
finding that the raison d’être of the legal advice exception is not to fuel doubts over
the legality of legislation. In fact, the Court of Justice has ruled that preventing
disclosure can lead to the contrary and raise doubts in the citizens’ minds over the
legality of the decision-making process. Pursuant to the wording of the judiciary ‘it
is in fact rather a lack of information and debate which is capable of giving rise to
doubts in the minds of citizens, not only as regards the lawfulness of an isolated act,
but also as regards the legitimacy of the decision-making process as a whole’.77 By
upholding this appeal, the Court of Justice highlighted the importance of the access
to documents rules and reintroduced the cornerstone of this regime which is based
on the ability of the public to assess the impact, comment upon and influence the
development of policies, an activity which cannot take place without maximum
access to information.
Nevertheless, regarding the protection of the institutions’ interest in seeking and
receiving frank, objective and comprehensive legal advice, the Court of Justice’s
justification appears to be particularly problematic. It is difficult to understand how
the public’s access to legal advice can affect the objectiveness of it. Anyone
studying accountability will argue that disclosure of this kind of documents can
only lead to professional behaviour because of the fact that the drafters of the legal
advice will always have in mind that the advice will be accessible. Arguably, it may
even make more sense to interpret the legal advice exception more strictly, on a
case by case basis, and limit it for the very sensitive cases.
More interestingly, the Court of Justice ruled that the overriding public interest
pressing for disclosure of the legal advice needs to be no different from the principle
of openness, transparency, democracy and civil participation in the decision-making
process which already underlie the Regulation.78
The approach taken in Turco was indeed promising in terms of transparency. It
clearly provided the foundations to disclose legal advice given also in the remit of
the executive action of the EU institutions. This was upheld by the General Court
and recently confirmed by the Court of Justice in In ’t Veld.79 Yet, it is deemed
necessary to revisit the wider contribution of Turco. A further and detailed
examination indicates significant shortcomings of the judgment. In particular, the
‘general presumptions’ line of reasoning as introduced by Turco raises significant
questions as to the fundamental nature of the access right. In this regard, the court
established that ‘[i]t is in principle, open to the Council to base its decisions (…) on
general presumptions which apply to certain categories of documents, as
76
Ibid., para 44.
77
Ibid., para 59.
78
Ibid., para 74.
79
ECJ, Sophie in ’t Veld v Commission, 19 March 2013, case T-301/10, ECLI:EU:T:2013:135;
ECJ, Council v Sophie in ’t Veld, 3 July 2014, case C-350/12 P ECLI:EU:C:2014:2039.
238 M. Costa
considerations of a generally similar kind are likely to apply to requests for dis-
closure relating to documents of the same nature.’80
The Court ruled effectively that the Council, and arguably by analogy all the
other institutions, can deny access based on general considerations as opposed to
the well-established duty for a specific and detailed examination. In consequence,
post Turco there was every possibility that the institutions, the Commission in
particular, would rely on general considerations in order to avoid carrying out a
concrete appraisal of the requested documents. The Court, with great respect, set the
foundations to depart from the principle of transparency and to disregard almost
two decades of jurisprudence. Indeed, the later developments, examined further
below, provide with sufficient evidence to question the validity of the early finding
that the judgment was spectacularly progressive.
Similarly in 2010, TGI81 concerned a request for access to certain large state aid
files held by the Commission. The Court of Justice by citing Turco this time
confirmed the ‘settled case law’ as regards the existence of a general presumption
against disclosure.82 TGI upheld the validity of the presumption and established that
administrative documents are now essentially exempted from the
document-by-document appraisal and that the public interest override will never
apply unless particularly pertinent.
The validity of the general presumption was upheld in LPN.83 Citing this time
TGI and Turco, LPN confirmed the existence of the presumption in the adminis-
trative file, in what appears to be a new development, to cover infringement pro-
ceedings.84 On appeal, the applicants, LPN and Finland, argued that the
Commission denied access without carrying out, in violation of settled case law, a
concrete and individual assessment of the requested documents.85 The Court ruled
‘that it can be presumed (emphasis added) that the disclosure of the documents
concerning the infringement proceedings during the pre-litigation stage risks
altering the nature of that procedure and changing the way it proceeds and,
accordingly, that disclosure would in principle undermine the protection of the
80
EU:C:2008:374, para 50.
81
ECJ, Commission v Technische Glaswerke Ilmenau, 29 June 2010, case C-139/07 P, ECLI:EU:
C:2010:376; ECJ, Commission v Agrofert Holding a.s., 28 June 2012, case C-477/10 P ECLI:EU:
C:2012:394; ECJ, Commission v Editions Odile Jacob SAS, 28 June 2012, case C-404/10 P, ECLI:
EU:C:2012:393; ECJ, Guido Strack v Commission, 15 January 2013, case T-392/07, ECLI:EU:
T:2013:8.
82
ECJ, Commission v Technische Glaswerke Ilmenau, 29 June 2010, case C-139/07 P, ECLI:EU:
C:2010:376, para 61.
83
ECJ, LPN and Finland v Commission, 14 November 2013, case C-514/11, ECLI:EU:
C:2013:738.
84
ECJ, LPN v Commission, 9 September 2011, case T-29/08, ECLI:EU:T:2011:448, para 126.
85
ECJ, LPN and Finland v Commission, 14 November 2013, case C-514/11, ECLI:EU:
C:2013:738, para 35.
purpose of investigations, within the meaning of the third indent of Article 4(2) of
Regulation No 1049/2001’.86
The presumptions case law, upheld in LPN, is fairly vague and in direct contrast
with the Treaty framework, in particular with the requirements to take decisions as
openly as possible pursuant to Article 1 TEU as well as with the overall wording of
the Regulation. The Regulation provides with no basis for the establishment of
general presumptions. The Court of Justice’s position regarding the administrative
functions imposes significant constitutional ramifications on the fundamental aspect
of the access right and incorporates limitations without the required level of
explanation and clarity. The Court also did not take into account the overriding
public interest as regards the infringement proceedings. As a result, the judgment
makes one to wonder if such an override cannot be established in an area where
possible violations of EU law by Member States might take place, then it remains
difficult to conceive a scenario where the override would ever be accepted by the
court.
Interestingly, LPN treats in a rather paradoxical way a respectable
non-governmental organisation as a mere ‘busybody’ unable to invoke successfully
the override. This latest jurisprudence reveals the existence of a paradox. We saw
the court to confirm categorically through the last 20 years that openness secures
public oversight of the EU’s decision-making describing it as one of the funda-
mental credentials of the Union’s democratic society. Yet, we have evidence that
the court provides little or no contribution in relation to the opening up the func-
tioning of the institutions. The judgment significantly decreases public access and
leaves intact the possibility of the Commission, and by analogy the other institu-
tions, to refuse access as regards to the entire administrative file without even
looking at the individual documents.
10.5 Conclusion
There is no doubt that the EU has taken important steps to ensure transparency of
the decision-making process. If one compares the pre-Regulation rules whereas the
then CFI held for example that transparency did not require the adoption of sec-
ondary legislation and that decisions on access to documents could properly be
based purely on the institution’s Rules of Procedure with the current situation, it can
be safely argued that progress has been made. Currently, it is obvious that ‘we have
gone from a situation of a mere favour being granted to the individual by the
institutions in the exercise of their discretionary power to one of a true subjective
fundamental right granted to the individual’.87
86
Ibid., para 65.
87
ECJ, Sweden v Commission, 18 July 2007, case C-64/05 P, ECLI:EU:C:2007:433, opinion of
Advocate-General Maduro, para 40.
240 M. Costa
The Transparency Regulation has improved the position governing access in

several aspects. The most significant developments introduced by the Regulation
are the abolishment of the authorship rule. The judiciary contributed to the
development of transparency to a more or a lesser extent. In a more limited way, the
extent to which the jurisprudence acknowledges the existence of general pre-
sumptions is fundamentally wrong. In practice, the presumptions case law estab-
lishes a clear distinction between legislative and non-legislative documents and
confirms, contrary to the wording of the Regulation, the widest possible access with
regards to the former category.
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european-democracy-goes-to-die-european-parliament/ Accessed 12 July 2016
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passepartout? CMLRev 37:7–41
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Curtin D, Hart P (2010) The Real World of EU Accountability, What Deficit? Oxford University
Press, Oxford
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dawn. CMLRev 54:1673–1712
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ELRev 25:303–309
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in the European Union: Are citizens better off? ELRev 28:324–348
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revision of Regulation 1049/2001 on public access to documents. www.statewatch.org/news/
2008/jun/eu-ep-ombudsman-on-com-proposals-speech.pdf Accessed 9 June 2008
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public nature of personal data. CMLRev 45:1079–1114
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Marios Costa is Senior Lecturer at the Institute for the Study of European Law (ISEL), City Law
School, City, University of London, United Kingdom. He was previously a visiting scholar at the
Centre for European Legal Studies (CELS, University of Cambridge). Marios’ principal research
interests lie in the area of accountability and transparency at the EU level of governance. In his
latest monograph entitled The Accountability Gap in EU Law (Routledge, 2017), he argues that
currently the EU institutions along with the Member States are not in a position to control the
actions or omissions of the so-called independent agencies as well as the various committees and
expert groups. Despite recent progress, the EU needs to put forward an acceptable constitutional
framework to secure accountability of the decision-making process.
Chapter 11
The Last Soldier Standing? Courts
Versus Politicians and the Rule of Law
Crisis in the New Member States
of the EU
Dimitry Kochenov and Petra Bárd
Contents
11.1 Introduction...................................................................................................................... 244

11.2 European Values: From High Expectations to Jeopardy?.............................................. 251
11.3 The Four Elements of the Autocrats’ Playbook ............................................................. 254
11.3.1 Invocation of National Sovereignty to Capture the Judiciary, and Beyond ..... 255
11.3.2 Appeals to Constitutional Identity to Undermine the Institutions..................... 257
11.3.3 Invocation of National Security to Undermine Checks on the Government .... 258
11.3.4 Disinformation Campaigns at the Service of the Backsliding Regimes ........... 259
11.4 The Role of the Judiciary and that of Political Institutions ........................................... 260
11.5 The Place of Values in the System of EU Law: A Focus on Infringement
Proceedings...................................................................................................................... 264
11.6 How to Approach the Rule of Law in the Current Context? ........................................ 266
11.7 Supranational Law and the Effective Instrumentalisation of Values ............................. 268
11.8 Mutual-Recognition-Supranationalism: Powerless, But the Court? ............................... 271
11.9 Enforcement Through Subtle Gradualism? As a Conclusion ........................................ 276
References .................................................................................................................................. 277
D. Kochenov (&)
University of Groningen, Groningen, The Netherlands
e-mail: d.kochenov@rug.nl
P. Bárd
Eötvös Loránd University, Budapest, Hungary
e-mail: bardp@ceu.edu
P. Bárd
Legal Studies Department, Central European University, Budapest, Hungary

https://doi.org/10.1007/978-94-6265-359-7_11
244 D. Kochenov and P. Bárd
Abstract The rule of law backsliding in Hungary and Poland revealed the EU’s
significant vulnerabilities in the face of the need to uphold the values that the whole
system of EU integration presumes are in place. The lessons are revealing:
respecting the acquis does not guarantee continuing adherence to Article 2 TEU
values; economic success in the Union does not necessarily entrench democracy
and the rule of law; the tools available to preserve the rule of law are largely
inadequate, as they could go against the key assumptions of the internal market.
Consequently, the lack of political will to deal with the values’ crisis is not at all
irrational, which makes it even more worrisome. What stands out from the grim
picture is the revolutionary case law of the Court of Justice on judicial indepen-
dence and mutual trust, which bridges the available infringement procedures with
the outstanding problems and offers horizontal and vertical empowerment to the
EU’s decentralised judiciaries – now able to intervene – while also resolving the
competences conundrum through a broad reading of the principle of judicial
independence as a key element of the rule of law. However inspiring, recent case
law developments are insufficient, we argue, to deal with the sociological legiti-
macy crisis in tackling illiberal democracies plaguing the EU: autocratic legalism
cannot be fought with legalism alone. Designing a long-term systemic approach to a
complex re-articulation of EU values is indispensable, as enforcement is not a
panacea per se.

Keywords Democracy EU law rule of law Hungary judicial dialogue

judicial independence Poland values enforcement
11.1 Introduction
The European Union (EU) and the Member States seem to be doing as little as they
can to combat rule of law backsliding in some of the EU’s constituent parts. Each of
the EU institutions came up with their own plan on what to do, inventing ever more
soft law of questionable quality. All that is being done appears to reveal one and
only one point: there is a total disagreement among all the actors involved as to how
to sort out the current impasse, revealing the soft underbelly of the EU in the face of
the ‘constitutional coups’, deeply undermining both its day-to-day functioning and
its grand promise.1 This inaction unquestionably assists the powers of the back-
sliding Member States in consolidating their assault upon the EU’s values even
further. At least four key legal-political techniques are used to consolidate the
undermining of the rule of law and democracy, as the present chapter shall
demonstrate. All of them can be found in all the backsliding jurisdictions: a
1
Scheppele 2017.
11 The Last Soldier Standing? … 245
veritable template of assaulting the rule of law has emerged.2 Step-by-step guides
could be drawn on the basis of the Hungarian and Polish stories.3
There are also positive developments: the crisis allowed the judiciaries of the EU
to shine, bringing the inter-court dialogue to a vital new level, upgrading its sub-
stance.4 At the core of this dialogue are now also the fundamental principles of EU
law, even those not confined in their entirety to the EU scope of powers,5 in
particular the independence of the judiciary – interpreted by the Court of Justice
(ECJ) as an EU law principle and a vital element of the rule of law,6 as opposed to
merely the issues of validity and the interpretation of EU law per se, however
broadly conceived.7 Such interpretation – a spectacular innovation reshaping the
constitutional system of the Union as we speak – gave voice to vertical concerns
related to the independence of the judiciary,8 as well as horizontal rule of law
concerns, leading to a significant refinement of the principle of mutual recognition.9
This allowed the Court to learn from its past mistakes in dealing with the assaults on
the rule of law.10 The presumption that the strict enforcement of the acquis is
sufficient to guarantee adherence to the values is clearly no longer valid.11 Together
with the endowment of Article 19(1) TEU with new significance, the ongoing crisis
in the rule of law helped open a new chapter of European constitutionalism: the
very fact that the current concerns arose – rather than being strictly confined to the
national legal orders – demonstrates the actual maturity of the level of supranational
law and integration, or at least of its aspirations.12
As a crucial element of the ongoing fight for the rule of law, the principle of the
independence of the judiciary is derived at EU level from Article 19(1) TEU, and is
2
Pech and Scheppele 2017.
3
Cf. Krygier 2006, p 129, who anticipated the emergence of such templates long before the
backsliding began.
4
CMLRev: editorial comment 2019; Dawson 2013, p 371.
5
On the shift of Article 2 TEU principles from ‘principles’ to ‘values’ without undermining the
essence of the former, see Pech 2010.
6
Court of Justice (hereafter: ECJ), Associação Sindical dos Juízes Portugueses, 27 February
2018, case C-64/16, ECLI:EU:C:2018:117; Pech and Platon 2018; Ciampi 2018; Krajewski 2018;
Parodi 2018.
7
For the criticism of the classical inter-court dialogue before the most recent case law, see, e.g.,
Kochenov and van Wolferen 2018.
8
This allowed the national courts under threat to deploy the preliminary ruling procedure in an
innovative way in order to guarantee the preservation of their own independence: Biernat and
Kawczyńska 2018; cf. Broberg 2017.
9
E.g. ECJ, Minister for Justice and Equality v LM, 25 July 2018, case C-216/18 PPU, ECLI:EU:
C:2018:586; Rizcallah 2018; cf. Lenaerts 2017.
10
Compare ECJ, Commission v. Hungary, 6 November 2012, case C-286/12, ECLI:EU:
C:2012:687 with ECJ, Commission v. Poland, case C-619/18 R, Order ex parte of 19 October
2018, EU:C:2018:852 and Order of 17 December 2018, EU:C:2018:1021.
11
On the difference, see Kochenov 2017a.
12
Even though numerous international organisations around the world face similar crises and are
designed to resolve these with a varying degree of success: Closa 2017.
regarded as a vital part of the value of the rule of law.13 Judicial independence thus
emerged as a crucial connector between EU law and the enforcement of Article 2
TEU values outside the scope of the acquis sensu stricto,14 which explains the
relative silence on the Charter of Fundamental Rights (CFR) among those who are
busy trying to deal with the ongoing rule of law concerns in practice:15 Article 51
CFR still stands, all the literature on the need to move on from this competence
block notwithstanding.16 After all, we are learning that 19(1) TEU is good
enough.17 A range of tools from pecuniary18 to interim measures with backfiring
force19 can now be deployed to freeze at least some of the attempts of backsliding
governments to undermine the independence of their judiciaries even further. This
new, more thoughtful approach could definitely have a significant impact in other
areas of EU law too.
Such fundamentally important developments notwithstanding, the fact remains
that democratic and rule of law backsliding runs much deeper than the hijacking of
the courts: Blokker has been absolutely correct in constantly reminding us of the
need to deal with the deeper roots of soft totalitarianism and populist convulsions.20
At issue is the phenomenon characterised by Scheppele as ‘autocratic legalism’,
which has deep implications for the very fabric of the societies in question,
potentially making the return to liberal democracy difficult.21 Moreover, the
problem of ‘democratic decay’, ‘backsliding’ and populism seems to be a global
one,22 rather than confined to some EU Member States per se. In the EU, just as
elsewhere in the world – from Venezuela to Turkey – ‘sociological legitimacy’23 is
crucially important and cannot be ignored. The core issue, ultimately, cannot
consist in the perfecting of judicial cooperation in the hope of saving some courts in
the EU’s periphery.24 It is much broader: how to ensure that the EU’s own rule of
law is meticulously and consistently upheld, while crucially enjoying solid
13
ECJ, Associação Sindical dos Juízes Portugueses, 27 February 2018, case C-64/16, ECLI:EU:
C:2018:117, paras 36, 37 and 41.
14
Christophe Hillion predicted this development: Hillion 2016.
15
Pech and Platon 2018, pp 1833–1836.
16
Jakab 2016; Jakab 2017. Cf. von Bogdandy et al. 2017.
17
The connection with the Charter is however obvious: ECJ, Commission v. Poland, case C-619/
18 R, Order ex parte of 19 October 2018, EU:C:2018:852 and Order of 17 December 2018, EU:
C:2018:1021.
18
Especially when the backsliding Member States attempt to openly defy the Court: ECJ,
Commission v. Poland, 17 April 2018, case C-441/17, ECLI:EU:C:2018:255.
19
ECJ, Commission v. Poland, case C-619/18 R, Order ex parte of 19 October 2018, EU:
C:2018:852 and Order of 17 December 2018, EU:C:2018:1021.
20
Blokker 2016, 2018.
21
Scheppele 2018.
22
Daly 2019; Anselmi 2018.
23
Blokker 2019.
24
Kukovec 2015.
legitimacy? The issue of societal internalisation of the core principles of Article 2

TEU in the face of the populist wave is fundamental here.
We argue that the most mature answer to the problems at hand necessarily
requires a long-term perspective and beyond reforming the existing enforcement
mechanisms, also involves reform of the Union as such, as well as responding to
Blokker’s concerns: ‘autocratic legalism’ impacts societies to a great degree and
cannot be fought with legalism alone. Supranational law should be made more
aware of the values it is obliged by the Treaties to respect and protect, both at the
national and supranational levels. EU law should embrace the rule of law as an
institutional ideal,25 which inter alia implies eventual substantive limitations on the
acquis of the Union, as well as sincerely implementing EU values in the context of
the day-to-day functioning of the Union, thus elevating them above the maladroit
instrumentalism – and all its effectiveness leaving so much to be desired – marking
them today. The outcome of such instrumentalism is crystal clear: a national
economy can be distinctly successful in the internal market even when the core
values of the Union are being undermined in the country in question. Poland
provides a remarkable example of this, having become the first ‘developed market’
in Central and Eastern Europe26 in a context where it is also soon to join Hungary –
recently designated by Freedom House as the first ‘partly free’ regime in the history
of the EU27 – given recent developments. Economically successful EU membership
is thus free of any ‘natural’ requirement that democracy and the rule of law should
be sincerely felt,28 which is a very worrisome reality, one which must be borne in
mind at all times when dealing with the Union’s remaining rule of law problems.
What is the situation with the rule of law in the EU today? On the basis of the
most dramatic examples, the number of the Member States where the rule of law is
not safeguarded doubled as Poland29 has now joined Hungary.30 While more states
could follow, the Union’s position apparently continues to be very weak: new soft
law of questionable quality has been produced by each institution.31 The picture is
grim, notwithstanding even the belated activation of the Article 7(1) Treaty on
25
Cf. Roy 2015.
26
Day M (2018) Poland Becomes the First Country from Former Soviet Bloc to Be Ranked a
‘Developed Market’. www.telegraph.co.uk/business/2018/09/24/poland-becomes-first-country-
former-soviet-bloc-ranked-developed/ Accessed 14 February 2019.
27
Simon Z (2019) Hungary Becomes First ‘Partly Free’ EU Nation in Democracy Gauge www.
bloomberg.com/news/articles/2019-02-05/hungary-becomes-first-partly-free-eu-nation-in-
democracy-gauge Accessed 14 February 2019.
28
Kochenov 2017b.
29
European Commission 2017a. Cf., most importantly: Sadurski 2018; Bodnar 2018; Koncewicz
2018a; Koncewicz 2016. See also The Venice Commission for Democracy through Law 2016a, b.
30
European Parliament 2018. Cf., most importantly, Szente 2017; Scheppele 2015; Sólyom 2015;
Bánkuti et al. 2012.
31
Council of the European Union 2014a, pp 20–21; European Commission 2014; European
Parliament 2016. Cf. on all these instruments, Waelbroeck and Oliver 2017; Kochenov et al. 2016.
Kochenov and Pech 2016; Oliver and Stefanelli 2016; but also see Hirsch Ballin 2016.
European Union (hereinafter: TEU) mechanism.32 The particular instance of this

activation is obviously somewhat misplaced, since Article 7(1) TEU is about
‘threats’ to values and the assault on the values in Poland and Hungary is well
beyond the ‘threat’ point, thus begging the question of how appropriate the chosen
legal basis actually is.33 Indeed, the situation would seem to be evolving extremely
fast and mainly – almost uniquely – in the direction of the deterioration of the rule
of law and an increase in the abuse of the independent institutions by the execu-
tive.34 It would appear that there is a total disagreement among essentially all the
actors involved concerning what should be done, and the political will to sort out
the current impasse is lacking at the Member State level as well.
The Council is the firmest of all the institutions in terms of downplaying the
problem, even going as far as to present the main actions taken by the other
institutions to solve it as potentially illegal. The Council Legal Service has been
negative – with no solid arguments for its position35 – about the Commission’s
‘pre-Article 7 proposal’.36 It similarly dismissed the attempts to cut EU funding of
the backsliding states.37 Topping the list, however, are the flimsy reasons put
forward by the Council Legal Service for its refusal to permit Judith
Sargentini MEP to present her report, which triggered the request from the
Parliament to start the Article 7(1) procedure against Hungary, in the Council: the
Council does not want to hear Ms Sargentini in person based on legal advice which
was only given ‘orally’ and with the arguments not disclosed, which does not shield
the Council’s position from criticism. The only more absurd avenue open to it was
to support Hungary before the Court, where it now argues – not convincingly – that
the Parliament managed to violate its own rules of procedure in adopting the
Sargentini Report.38
The explanation behind the unwillingness to act could be obvious: since the
Internal Market is an emanation of deep economic interpenetration aimed, precisely,
at making outright hostilities between the Member States impossible – precisely the
reason for choosing economic tools to achieve the goal of peace39 – it is clear that the
very logic of Article 7 TEU deeply contradicts the logic of the Internal Market and
the rich Member States potentially stand to lose a great deal as a result of taking a
principled, value-laden position on rule of law backsliding. This is why expecting
too much of the Council – and by extension, of Article 7 TEU – would be naïve,
32
European Parliament 2017; European Commission 2017a; Scheppele and Pech 2017.
33
Kochenov 2019a, p 88.
34
Sedelmeier 2014; Müller 2014; von Bogdandy and Sonnevend 2015; Closa and Kochenov
2016; Jakab and Kochenov 2017; Pech and Scheppele 2017.
35
Kochenov and Pech 2015.
36
Council of the European Union 2014b, especially para 28.
37
Kelemen et al. 2018.
38
ECJ, Hungary v European Parliament, case C-650/18 (pending at time of writing). Cf.
Kochenov 2019b, p 2082.
39
This is exactly why the objective of peace has proven to be unexportable: Williams 2010. Cf.
Kochenov and Basheska 2016.
unless something truly terrible happens in a backsliding Member State:40 the Internal
Market, after all, functions as designed.41
When the Council is naturally disinclined and other EU institutions are pro-
foundly ineffective, the ECJ, as in Andersen’s tale, de facto plays the role of the last
soldier standing. It stands by gradually learning from its own mistakes and the
Commission’s significant missteps: especially in the ‘age-discrimination’ cases,
where the hijacking of the Hungarian judiciary went unnoticed,42 while a radically
more robust result was achieved in Commission v. Poland on virtually identical
facts in the context of the attempted assault on the Supreme Court.43
The Court cannot solve these outstanding problems alone, even when helped by
the national judiciaries. A much more concerted effort is required from all the actors
involved to get the EU out of this impasse. While it remains the case, the supra-
national political party groups, instead of helping, seem to be aggravating the
situation.44 This inaction – or attempts to hinder positive change – on the part of the
political institutions helps the powers of the backsliding Member States consolidate
their assault upon the EU’s values even further, undermining the truly heroic efforts
of the Court of Justice and the national courts in Poland,45 Ireland46 and elsewhere
in the Union. The ECJ’s ‘stone-by-stone’ approach,47 although unable to solve the
outstanding problems by itself, nevertheless gives space for optimism and could
amount to one of the key legacies of the Lenaerts court.
The inventiveness of the autocrats, populist voting and the weakness of the EU’s
track record and current position on values, are among a no doubt huge variety of
other factors which have brought about a previously unimaginable situation,
whereby the EU harbours Member States which – besides obviously not qualifying
for Union membership were they to apply today, even given the EU’s usual
‘window dressing’ of rule of law conditionality48 – are working hard to undermine
the key principles the EU was created to safeguard and promote: democracy, the
rule of law and the protection of fundamental rights.49 The underlying issue is the
40
But see Hirsch Ballin 2016.
41
See, for a number of divergent perspectives, Amtenbrink et al. 2019.
42
ECJ, Commission v. Hungary, 6 November 2012, case C-286/12, ECLI:EU:C:2012:687; cf.
Belavusau 2013.
43
ECJ, Commission v. Poland, case C-619/18, R Order ex parte of 19 October 2018, ECLI:EU:
C:2018:852 and Order of 17 December 2018, ECLI:EU:C:2018:1021; cf. CMLRev: editorial
comment 2019.
44
Kelemen 2017; Kelemen and Pech 2018.
45
Biernat and Kawczyńska 2018.
46
See the whole saga surrounding ECJ, Minister for Justice and Equality v LM, 25 July 2018,
case C-216/18 PPU, ECLI:EU:C:2018:586.
47
As explained by President Lenaerts in the context of the EU citizenship law field: Lenaerts
2015.
48
De Ridder and Kochenov 2011.
49
As well as other values expressed in Article 2 TEU; Pech 2010; Kochenov 2017a, b, c, d;
Magen and Pech 2018.
creation of a modus vivendi where the EU’s own instrumentalist understanding of

the rule of law, including principles such as mutual trust or the autonomy of EU
law, reinforces, instead of jeopardises, respect for the values enshrined in Article 2
TEU.50
This chapter starts out by defining the problem, focusing on the nature and
gravity of the rule of law backsliding in Hungary and Poland, in order to outline
four key techniques deployed by autocratic regimes in order to consolidate the
constitutional capture and massive assault on European values (Sect. 11.2). The
techniques to achieve, legitimise and consolidate the destruction of the rule of law
include: appeals to untamed national sovereignty emanating directly from ‘the
people’; fetishisation of ‘constitutional identity’ taken out of context; appeals to
national security complete with the harassment of the media, NGOs and the
independent educational institutions; and international disinformation campaigns
(Sect. 11.3). We proceed by discussing the role of institutions, with special regard
to the room for manœuvre and the responsibility of the judiciary in upholding the
rule of law, now taken seriously by the Court of Justice (Sect. 11.4). Next, the state
of the art with regard to values in the EU legal system will be discussed (Sect. 11.5),
followed by a normative assessment of how these values should preferably be
approached (Sect. 11.6). Looking at supranational law, we argue that a failure to
upgrade the role played by values – including the rule of law – sufficiently when the
Union transformed from an ordinary treaty organisation into a constitutional system
lies at the root of the problem (Sect. 11.7). The EU’s powerlessness is among the
root causes of letting Member States slide into authoritarianism and the courts alone
will not be able to solve the puzzles currently outstanding (Sect. 11.8). We conclude
that beyond praising the ECJ’s immense forward-looking efforts, shifting the focus
of the discussion from the enforcement of the rule of law to the reform of the Union
as such is needed as a long-term solution (Sect. 11.9). There is time: illiberal
regimes seem to be there to stay, and the options with regard to changing this
reality, either supranationally or from a grass-roots level, are limited if not
non-existent: we might need to wait two years, ten years – or thirty, for that matter –
before Hungary and Poland are back on track. In the meantime, the EU institutions
should arrive at a more subtle realisation of the EU’s constitutional role and should
not insist on the specificities of EU law trumping all other considerations, including
respect for the values the EU and the Member States are supposed to share, but
should instead acknowledge the possibility of potential limitations so as to let the
foundations of the EU evolve, as provided for by the Lisbon Treaty. This could
definitely be achieved in the context of a soft quarantine of Poland, Hungary and
any other backsliding states, cutting the funding received by these countries from
the EU, as well as designing and implementing more effective ways of combating
fraud involving EU funds, while the ECJ’s control over the independence of the
judiciary, as well as the dialogue between the courts in the EU, is extended.
50
Klamert and Kochenov 2019.
11.2 European Values: From High Expectations

to Jeopardy?
Whereas all Member States suffer from deficiencies in at least some elements of the
rule of law, in light of the emerging pattern of constitutional capture we focus
exclusively on rule of law backsliders and follow the definition proposed by Pech
and Scheppele, according to which rule of law backsliding is a ‘process through
which elected public authorities deliberately implement governmental blueprints
which aim to systematically weaken, annihilate or capture internal checks on power
with the view of dismantling the liberal democratic state and entrenching the
long-term rule of the dominant party’.51 In what follows, we shall focus on the two
Member States which currently satisfy these definitional elements: Hungary and
Poland.
Even though countries acceding to the EU in 2004 had high hopes of joining the
democratic world after decades of totalitarian rule, the enthusiasm for European
values on the part of some Central Eastern European Member States vanished on
the way – a phenomenon which was all but unthinkable during the 1989 Eastern
European ‘velvet revolutions’.52 During the democratic transition in all these
countries, a separation of powers had been realised, where parliamentary
law-making procedure required extensive consultation with both civil society and
opposition parties and crucial issues of constitutional concern required a super-
majority vote in Parliament. Independent self-governing judicial power ensured that
the laws were applied fairly. Constitutional scrutiny played a special role in tran-
sitioning democracies. The Commission, having supervised the transition on behalf
of the EU while focusing on all the core values,53 has wrongly assured EU citizens
and governments that the newcomers would not represent a danger of backsliding –
precisely what we are witnessing today.54
After the regime change, Hungary was the first ‘post-communist’ country to join
the Council of Europe and abide by the European Convention on Human Rights
and Fundamental Freedoms (ECHR or Convention) in 1990. Poland gained
membership in the Council of Europe in 1991 and became party to the ECHR in
1993. Hungary and Poland established official relations with the North Atlantic
Treaty Organization (NATO) already in the early 1990s and became NATO
members in 1999. They also signed EU Association Agreements in the early 1990s,
which paved the way for accession negotiations and EU membership.55 The Treaty
of Accession to the European Union was signed in 2003. Hungary, Poland, six
51
Pech and Scheppele 2017, p 8.
52
Vachudova 2005.
53
Kochenov 2004. This focus had a profound impact on EU constitutionalism, informing both the
doctrine and the law on EU values: Sadurski 2012.
54
For an analysis of why there have always been strong reasons not to believe the Commission’s
assurances, see Kochenov 2008.
55
Inglis 2000.
other Central and Eastern European countries and two Mediterranean islands
became members of the European Union on 1 May 2004 as part of the biggest
enlargement in the Union’s history.56 The European Union played an important role
in the transformation of all the Eastern European states and in the context of their
democratisation.57 The principle of conditionality was used to achieve this, coupled
with the presumption that any democratic or rule of law ‘backsliding’ would not be
possible once the transformation was in place.58 Alongside the Europe Agreements,
the Union applied the Copenhagen criteria adopted by the 1993 Copenhagen
European Council.59 Clearly going beyond the scope of the Europe Agreements,60
these criteria became the cornerstone of Hungary’s and Poland’s transformations
throughout the first decade of this century, also reshaping the core of EU consti-
tutionalism in the process.61 The shocking rate at which the deconstruction of the
rule of law occurs in Poland and Hungary today demonstrates the importance of a
constitutional culture beyond black letter law, including constitutions, institutions
and procedures.
The shift came rather abruptly when in April 2010, in a free and fair election, the
centre-right political parties, Fidesz Hungarian Civic Union (Fidesz) and the
Christian-Democratic People’s Party (in Hungarian: Kereszténydemokrata Néppárt,
KDNP)62 got 53% of the votes, which translated into more than two-thirds of the
seats in the unicameral Hungarian Parliament under the election law then in force.63
The ruling party did not tolerate any internal dissent, and after forming the second
Fidesz government64 it eliminated – at least in the domestic setting – all sources of
criticism by both voters and state institutions, effectively disposing of any effective
checks and balances. Should a discontent electorate now wish to correct deficien-
cies, it would be difficult for it to do so due to the novel rules of the national ballot,
which fundamentally bring into question the fairness of future elections. Judicial
oversight and most importantly, the Hungarian Constitutional Court’s power to
correct the failures of a majoritarian government have been considerably impaired,
along the powers of other fora designed to serve as checks on government powers.
Distortions of the media and a lack of public information lead to the impossibility of
56
Ott and Inglis 2002.
57
Cf. Vachudova 2005.
58
Kochenov 2008.
59
Hillion 2004.
60
Müller-Graff 1997, p 42; Maresceau 2001.
61
Sadurski 2012.
62
The cooperation between Fidesz and KDNP should not be regarded as a coalition, rather as a
party alliance already in existence before the elections. According to their self-perception, their
relationship is similar to the party alliance between CDU and CSU in the Federal Republic of
Germany. KDNP is a tiny party which would probably not get into Parliament on its own. The
insignificance of KDNP allows us to abbreviate for the sake of brevity: whenever the term ‘Fidesz
government’ is used, the Fidesz-KDNP political alliance is meant.
63
Act C of 1997 on the Election Procedure.
64
Fidesz first governed between 1998 and 2002.
a meaningful public debate and weaken the chances of restoring deliberative

democracy. Support by the electorate is enhanced through emotionalism, revolu-
tionary rhetoric, catchphrases such as ‘law and order’, ‘family’, ‘tradition’, ‘nation’,
symbolic law-making, and identity politics in general. The friend/foe dichotomy is
artificially created through punitive populism and scapegoating, partially by
building on pre-existing prejudices, and partially by creating new enemies such as
multinational companies or persons challenging Hungarian unorthodoxy on the
international scene. Legally-speaking, the Hungarian ‘reforms’ are very
well-designed, combining elements of different legal approaches present in different
jurisdictions around the world in such a way that the outcome is a ‘Frankenstate’, an
apt turn of phrase coined by Kim Scheppele.65 As a result of the government in
power’s concerted effort to destroy the checks and balances which used to restrain it
and capture the state, Hungary, the poster child of transition, emerges as the first
‘partly free’ political regime in the EU.
The changes can be traced back to the government’s ideological roots, but unlike
in Poland, government ideology is chosen by way of political convenience. Turning
towards illiberalism was a necessity for a government wishing to retain political and
economic power at all costs, and capture the state to this end. It could not reconcile
its ideological stance with the concept of liberal democracy. So Fidesz had to search
for other role models than the democratic world, and found its allies in countries
such as Turkey and most importantly Russia. Even though illiberalism was rela-
belled as ‘Christian democracy’ after Fidesz was re-elected in April 2018, the same
form of governance remains.66 Representing radically opposing views within a
short period never hurt Fidesz politicians, who are brilliant at explaining their
reasons for a volte-face. The party, originally professing strong anti-Russian sen-
timents, became pro-Putin – and still managed to retain public support, while
rebuilding the state machinery in such a way that alteration of power became if not
impossible, then extremely difficult, thus effectively capturing the Hungarian state.
Poland followed the path of illiberalism when the Law and Justice party (Prawo i
Sprawiedliwość, PiS) entered government in 2015.67 The country experienced a
very serious departure from liberal democratic principles and is going through the
reversal of the rule of law in various fields.
The tools employed and the outcomes are very similar to those in Hungary, but
certain elements of the Polish case also make it distinct, illustrating that there was
no Central Eastern European or even Visegrád pattern. First, unlike Hungary, the
Polish government does not have a constitution-making nor amending majority,
65
Scheppele 2013. Cf. Uitz 2015.
66
After Fidesz won the April 2018 elections and secured a 2/3 majority in the Parliament for the
party, PM Orbán declared the end of the era of liberal democracy and stated that it was replaced by
Christian democracy. Dostal et al. 2018, p 22. Instead of substantive changes, the new terminology
can rather be explained by the recognition that the term ‘illiberal democracy’ ‘in English sounds
like blood libel’. HVG, (2015) Orbán: Az illiberális demokrácia magyarul jól cseng. www.hvg.hu/
itthon/20150519_orban_fekete_barany Accessed 14 February 2019.
67
See, for the best analysis to date, Sadurski 2018.
therefore – for the time being – it engages in the dismantlement of the rule of law by
way of curbing ordinary laws and directly ignoring the constitution. As Ewa
Łętowska put it, the government has been ‘trying to change the system through the
back door’.68 Second, Hungary is essentially a kleptocracy,69 where the govern-
ment may pick any ideology available on the political spectrum to acquire and
retain economic and political power. By contrast, the Polish government and
especially PiS leader Jarosław Kaczyński, the de facto ruler of Poland, are more
likely to truly believe in what they are preaching in terms of national interests.
When justifying its rule of law backsliding, a whole new worldview is developed,
rewriting the democratic transition and the post-1989 Polish history as something
fundamentally corrupted and shaped by foreign interests, in opposition to national
ones.70 For him, post-1989 Polish history, including the roundtable talks in 1989, is
the result of an indecent compromise between the individuals and movements
bringing about regime change and the outgoing Communist forces. Along these
lines, he sees all democratic institutions as a ‘sham’; for him, ‘the Third Republic is
not a real state but a phantom state built on the intellectual corruption of political
elites, bribery, dysfunctional government caving in to Brussels and selling off
Poland to strangers for peanuts’.71 The war on history plays a key role in the project
of constitutional capture.72 For PiS ‘repolonisation’ means taking over power,
banks, land and other property, and means reclaiming Poland from both foreigners
and the corrupt political elites so as to bring about true regime change.73 Any means
are apparently allowed, and any checks or controls on power are seen as unnec-
essary burdens the state shall be freed from, so as to accomplish this purgative
exercise.
11.3 The Four Elements of the Autocrats’ Playbook
Illiberal governments are very well aware of the irreconcilability of their politics
with European values. The states in question therefore lobby for exemptions and
recognition of their Frankenstates in the EU context by relying mostly on four
techniques which have proved to be effective and which include four key elements.
68
Pacula 2017. Taking the President’s announcement of a 2018 constitutional referendum into
account, this might change in the future: Kelly L (2017) Polish President Wants Referendum on
Constitution in Nov 2018. www.reuters.com/article/poland-politics-president-constitution-
idUSL8N1IQ6P0 Accessed 14 February 2019. For an immediate analysis, see Matczak 2017.
69
Cf. Magyar 2016.
70
Davies C (2016) The Conspiracy Theorists Who Have Taken over Poland. www.theguardian.
com/world/2016/feb/16/conspiracy-theorists-who-have-taken-over-poland Accessed 14 February
2019. Conelly and Koncewicz 2016.
71
Ibid.
72
Koncewicz 2018b. In Hungary the situation is similar: Könczöl 2018, p 246.
73
Freedom House 2017.
Firstly, the backsliding states resort to the invocation of national sovereignty as

their absolute right to ‘reform’ the state in a way which leads to the dismantlement
of democratic and rule of law structures of checks and balances, so that placing the
state at the service of a de facto one-party regime goes undisturbed. Secondly,
backsliding states deploy the rhetoric of constitutional identity, claiming a measure
of legal exceptionalism and specificity to shield the destruction of the rule of law
from criticism. Thirdly, security concerns are showcased as a reason to diminish the
level of checks on the government. Finally, backsliding states’ governments capture
the media and research institutions and conduct large-scale disinformation cam-
paigns to undermine free speech, destroy the public debate and silence dissent. Let
us look at some examples of the deployment of these four key strategies.
11.3.1 Invocation of National Sovereignty to Capture

the Judiciary, and Beyond
The first technique is the invocation of national sovereignty through the promotion of
a false opposition between ‘democracy’ and the legal structures in place to tame
majoritarian government with a view to preserving, precisely, the alternation in
power and the continuation of democratic government. For the populists, the division
of powers and the system of checks and balances stand for the taming of ‘democracy’.
The Polish capture of the Constitutional Tribunal, the Supreme Court, the National
Council of the Judiciary, and the ordinary courts happened under the pretext of
‘reform’ of the judiciary and was presented as a sovereign matter for the Member
State, implying that the EU would be acting ultra vires if it interfered.74 The worst
nightmare is evolving before our eyes: the democratic Polish state, which was
motivated to join the Union as Sadurski rightly explained, partly as a way to protect
itself against the possible destruction of democracy and the rule of law,75 is being
dismantled by PiS in plain sight, with the EU doing virtually nothing to stop this.
The Polish Constitutional Tribunal was the first institution to fall victim to state
capture in late 2016.76 Its powers have been considerably cut, changes were
introduced to its structure and proceedings, its budget was cut, and three justices
elected constitutionally by the seventh Sejm (the lower chamber of the Polish
Parliament) were not permitted to take their oath, while three justices elected
unconstitutionally by the eighth Sejm after PiS had won the elections were per-
mitted to do so. Having rendered the Constitutional Tribunal irrelevant in upholding
the rule of law, the government has done the same with the Supreme Court, the
National Council for the Judiciary and the ordinary courts. The changes concerned
the reorganisation of the Supreme Court to empower the executive to: prematurely
74
Grabowska-Moroz et al. 2018.
75
Sadurski 2012.
76
Koncewicz 2016.
end the tenure of judges, meaning forcefully retire them; determine the conditions
and procedure for becoming a Supreme Court judge; control disciplinary proce-
dures, amending the rules of procedure of the Supreme Court; change the total
number of judges serving on the Supreme Court; reorganise the chambers in which
Supreme Court justices serve; and restructure their case allocation.77 Ordinary court
capture was effected by subordinating all the Presidents and Directors of courts, i.e.
the persons who decide on administrative and financial issues, to the Minister of
Justice.78 Even this short enumeration of government intrusions into the powers of
the courts highlights only some of the milestones in judicial capture and shows, in
the words of the Venice Commission – the most authoritative body in Europe on the
issues of the rule of law and judicial independence – that ‘the constitutionality of
Polish laws can no longer be guaranteed’.79
In Hungary, we witnessed a similarly vicious attack against the judiciary,
starting in 2011. The judicial retirement age of 70 was lowered to 62 with imme-
diate effect, on the pretext of a labour law issue, where Hungary claimed sole
power. This resulted in the removal and replacement of about 8% of all judges, 27%
of Supreme Court judges and more than 50% of appeal court presidents. Towards
the end of 2012, responding to pressure from various national and international
fora,80 the government agreed to rehire retired judges aged between 62 and 70, if
they wished to continue to work. However, the judges’ return was obstructed by
two factors. First, court president positions and other functions had already been
filled by new judges, meaning that the compulsorily retired judges who wished to
return were offered lower court places with less prestige. Second, the judges who
made to retire prematurely received considerable compensation for the period of
their forced retirement, and a compensation equalling their previous year’s salary, if
they opted to remain in retirement. As a result, once the compensation scheme was
introduced, most judges preferred it to returning to work. The matter became
essentially moot. In theory, Hungary was condemned for its early retirement law by
the ECJ, but in practice, the most experienced judges were removed from the
judiciary: the Commission won a Pyrrhic victory.81
Another example in the same vein is the dispute related to the felling of trees in
the Białowieża Forest, a UNESCO World Heritage Site. Pending the judgment in
77
In disregard of national and international criticism, on 8 December 2017, the laws on the
Supreme Court and the Council were adopted by the Sejm, and on 15 December 2017 they were
approved by the Senate.
78
Ustawa z dnia 23 marca 2017 r. o zmianie ustawy – Prawo o ustroju sądów
powszechnych [Law amending the act on the organization of common courts system], OJ
2017, item 803, www.dziennikustaw.gov.pl/DU/2017/803 (in Polish) Accessed 14 February
2019.
79
The Venice Commission for Democracy through Law 2016a, b; European Commission 2017b,
para 10.
80
Hungarian Constitutional Court (HCC) Decision 33/2012. (VII. 17.), Decision 45/2012. (XII.
29.), The Venice Commission for Democracy through Law 2012.
81
ECJ, Commission v. Hungary, 6 November 2012, case C-286/12, ECLI:EU:C:2012:687.
the main proceedings in Białowieża, the Court of Justice ordered Poland to stop the
forest management operations under challenge.82 The Polish response was inten-
sified logging, and Poland even asked to remove the forest in question from the
UNESCO World Heritage List.83 Reference to national sovereignty was frequently
made without any further justification. As the above controversy shows, by ques-
tioning the powers of the EU, the Polish government did not aim to initiate a
legitimate discussion about the delineation between national and EU powers. It
rather preferred ‘to break free from the supranational machinery of control and
enforcement. Following the trajectory from the “exit in values” to the “exit in
legality” reveals an inescapable logic. All institutions, domestic and supranational,
are seen to be standing in the way, and their rejection is part of the comprehensive
constitutional doctrine – the politics of resentment’.84
11.3.2 Appeals to Constitutional Identity to Undermine

the Institutions
The second and more sophisticated technique is the attempt to package departures
from the rule of law in the name of constitutional identity.85 Back in 2017, the
Hungarian Parliament failed to acquire the necessary quorum to constitutionally
entrench the concept of constitutional identity, but after Fidesz and its tiny coalition
partner the Christian Democratic People’s Party acquired a two-thirds i.e.
constitution-amending majority, a modification to Article R) of the Fundamental
Law referring to ‘Hungarian cultural and Christian identity’ has again been tabled.
However, the amendment is somewhat redundant, since the already captured
Hungarian Constitutional Court came to rescue the government, and developed its
own theory of constitutional identity after the previous failed attempt to incorporate
the concept into the Fundamental Law. When delivering its abstract constitutional
interpretation in relation to European Council decision 2015/1601 of 22 September
2015 establishing provisional measures benefitting Italy and Greece, to support
them in better coping with an emergency situation characterised by a sudden inflow
of third country nationals in those Member States, the Constitutional Court invoked
constitutional identity.86 However tautological this may sound, according to the
Constitutional Court ‘constitutional identity equals the constitutional (self-) identity
82
ECJ, Commission v. Poland, case C-441/17 R, Order of 20 November 2017, ECLI:EU:
C:2017:877.
83
In ECJ, Commission v. Poland, 17 April 2018, case C-441/17, ECLI:EU:C:2018:255 the Court
ruled that by carrying on with the logging in the Białowieża Forest, Poland failed to fulfil its
obligations under EU law. Cf. Coutron 2018; European Papers Editorial 2017.
84
Koncewicz 2018c.
85
Halmai 2018, pp 23–42; Kelemen and Pech 2018. For the best general treatment of the concept,
see, Cloots 2015.
86
HCC decision 22/2016. (XII. 5.).
of Hungary’.87 Its content is to be determined by the Constitutional Court on a

case-by-case basis based on the interpretation of the Fundamental Law, its pur-
poses, the National Avowal contained therein, and the achievements of the
Hungarian historical constitution. This definition is so vague that it can be con-
sidered as an attempt to grant a carte blanche type of derogation to the executive
and the legislature from Hungary’s obligations under EU law.88 Once Fidesz
acquired a two-thirds majority again in the 2018 parliamentary elections, it finally
incorporated the constitutional identity into the Fundamental Law by way of the
so-called seventh constitutional amendment.89 Questioning claims of constitutional
identity might well be criticised by those concerned as being ignorant or lacking
respect, but European supervisory mechanisms should be able and confident
enough to distinguish bluff from genuine claims of constitutional identity.90
11.3.3 Invocation of National Security to Undermine

Checks on the Government
The third technique is reference to national security. Labelling virtually anyone still
capable of formulating dissent as a foreign agent is a long used technique, but in
Hungary it was taken to a whole new level in 2017 with the adoption of Lex CEU
and Lex NGO,91 targeting a private university and foreign-funded civil society
organisations independent of government funds and thus able to express criticism of
the government. The explanations of the laws attempting to force the CEU out of
the country and to limit the public space for NGOs attempt to delegitimise these
entities by claiming that they pose national security threats. The phenomenon of a
shrinking space for civil society can be traced in both Hungary and Poland. The
public narrative regarding NGOs has become very hostile. We are witnessing
orchestrated smear campaigns against members of civil society who criticise the
87
Ibid.
88
For English language analyses, see Halmai 2017.
89
See inserted Article R) Fundamental Law. For the official government position, see Trócsányi
2018.
90
Kelemen 2018; Perju 2018; Halmai 2018.
91
Act XXV of 2017 on the Modifications of Act CCIV of 20011 on National Higher Education
and Act LXXVI of 2017 on the transparency of foreign-funded organisations. According to the law
on NGOs, any association or foundation receiving foreign support above the amount of 23.200
EUR per year will have to notify the courts about this fact. EU money is exempted, but only if
distributed by the Hungarian state through a budgetary institution. The respective organisation will
be labelled as a so-called ‘organization supported from abroad’, which will need to be indicated at
the entity’s website, press releases, publications, etc. The law is disturbing in many aspects: it
mimics Russian worst practices, which have been condemned by international organisations as
violations of freedom of association and free speech.
government or simply do not fit its ideological agenda.92 In some cases, the smear
campaigns are followed by investigations undertaken by law enforcement or tax
authorities, which may create an even more hostile environment for NGOs.93
Governments can deprive civil society of effective functioning by limiting their
access to funding, including state but also foreign private funding, as the Hungarian
law obliges NGOs to indicate that they are ‘organisations receiving support from
abroad’, and to display this stigmatising label on all their published materials.94
This verges closely on demonising dissenters as terrorists, and indeed the gov-
ernment claims that NGOs receiving foreign support – i.e. often the most profes-
sional ones – help asylum seekers, including terrorists, enter the country.
A modification of the Hungarian Criminal Code ensures that criminal sanctions can
be imposed on NGOs and individuals which provide legal or other types of aid to
migrants arriving at Hungary’s borders.95 National security claims not only fit into
the ruling party’s nationalistic, exclusionary rhetoric and scapegoating, but can also
serve (i.e. be abused) as the basis for lobbying for exemptions from European
standards. As Uitz points out, reference to national security, which is the sole
responsibility of the Member States according to Article 4(2) TEU ‘can be a much
stronger centrifugal force in Europe than cries of constitutional identity could ever
be. […] Therefore, it is all the more important that European constitutional and
political actors realize: The carefully crafted new Hungarian laws use the cloak of
national security to stab the rule of law, as understood in Europe, in the heart’.96
11.3.4 Disinformation Campaigns at the Service

of the Backsliding Regimes
The fourth technique the autocrats use to undermine the rule of law is disinfor-
mation or misinterpretation of the laws and policies of the government. Again
Hungary took the lead in 2011 when they sent a wrong translation to Brussels of
their controversial new constitution, the Fundamental Law, which made it appear to
92
Associated Press in Warsaw (2017) Police Raid Offices of Women’s Groups in Poland After
Protests www.theguardian.com/world/2017/oct/05/police-raid-offices-of-womens-groups-in-
poland Accessed 14 February 2019.
93
The Hungarian Helsinki Committee et al. 2017.
94
For more details, see Szuleka 2018.
95
Article 353/ of Act C of 2012 on the Hungarian Criminal Code. For the official government
position, see Website of the Hungarian Government (2018) Strong Action is Required Against the
Organisers of Migration. www.kormany.hu/en/news/strong-action-is-required-against-the-
organisers-of-migration Accessed 14 February 2019. The Commission has recently started
infringement proceedings against Hungary regarding this law.
96
Uitz 2017.
conform better to EU laws and values than the actual Hungarian original.97 From a
more substantive view, the Polish98 and Hungarian99 responses to the
Commission’s100 and the European Parliament’s101 invitations for a Council
Decision on the determination of a clear risk of a serious breach by Poland and
Hungary of values enshrined in Article 2 TEU also contain factual mistakes and
deliberate deceit.102 Up-to-date information following the rapid legislative changes
which sometimes happen literally overnight and solid legal research may decon-
struct the fake information these texts contain and challenge the contention that
these political forces engage in a dialogue, when all they do is produce documents
or make some cosmetic changes to gain time and press on with their illiberal
agendas.
11.4 The Role of the Judiciary and that of Political

Institutions
The ‘Anti-Member States’ described above abuse their laws and constitutions to
create autocracies, yet they take full part in governing the Union, benefiting from
unprecedented direct financial support, and abusing the international prestige which
is associated with membership of the EU,103 while obviously undermining its image
– an organisation obliged by its own law to actively promote values abroad which
are not found at home.104 In addition to prestige and to deriving tangible benefits
from the integration of the national economy into the internal market, huge sums of
money coming from the EU are direct transfers to the autocrats.105 Poland will have
received EUR 86 billion under the current budgetary framework by 2020 and
Hungary 24 billion, which is an unprecedented transfer of resources from democ-
racies to illiberal regimes after the end of the Cold War, and which unquestionably
97
For a detailed enumeration of the discrepancies see The Hungarian Helsinki Committee et al.
2011. This technique is also employed the other way around: when the Venice Commission
delivered its highly critical opinion of the Fundamental Law, it was interpreted by the
Government, as if the Hungarian constitution was being praised. See The Hungarian Helsinki
Committee 2011.
98
See Chancellery of the Prime Minister 2018.
99
See, as made public by MEP Ujhelyi, Ujhelyi 2018.
100
European Commission 2017a.
101
Committee on Civil Liberties, Justice and Home Affairs 2017.
102
For an assessment of the Polish White Paper by the Polish Judges Association ‘Iustitia’,
together with a team of experts, see Iustitia 2018. For an assessment of the Hungarian information
sheet, see the lengthy criticism by Labanino and Nagy 2018.
103
Closa 2016, p 13.
104
Pech 2013.
105
Consequently, the debates about how best to block the inflow of EU funds to the backsliding
Member States have been very vivid over the last years. E.g. Halmai 2019.
contributes to the entrenchment of the regimes in power. This is especially true in a

context where the kleptocratic elites having captured the state and channel EU
money through the networks of their clients and party associates in the direct
interest of furthering harmful political agendas in direct contradiction with the
values that the Union paying for them purports to stand for. Further research is
needed to see how harmful exactly the Union’s financial involvement in the
backsliding Member States has been.
The international reactions to the current situation underline one thing: the Union
is either content with the current situation or entirely powerless. The former is
hardly convincing given both the size of direct economic transfers to Hungary and
Poland as well as the dangers that these Member States bring into the Union, as
fully expressed in the numerous public statements of the members of the College of
Commissioners and heard during European Parliament debates. If a Member State
breaches the EU’s fundamental values, this is likely to undermine the very foun-
dations of the Union and the trust between its Member States, regardless of the field
in which the breach occurs.106 Beyond harming the nationals of that Member State,
other Union citizens residing in that state will also be detrimentally affected.
Moreover, the lack of limitations on ‘illiberal practices’107 may encourage other
Member State governments to follow suit and subject other countries’ citizens to an
abuse of their rights. In other words, violations of the rule of law may become
contagious if there are no consequences.108 Finally, all EU citizens will to some
extent suffer due to the given state’s participation in the EU’s decision-making
mechanisms. At the very least, the legitimacy of the Union’s decision-making
process will be jeopardised. Therefore, the latter explanation, i.e. the EU’s pow-
erlessness, seems to be the core of the matter. Such powerlessness is a consequence
of a combination of the real difficulties, conceptual and practical, related to the
enforcement of EU values,109 but also, equally importantly, to the systematic
misrepresentation of the Union’s capacities through the unwillingness of its
Member States and institutions to act, as a clear consensus on dealing with rule of
law backsliding forcefully is apparently lacking. Lastly, the Monnet method
underlying the Union, where economic interpenetration has always played a central
role to achieving the goal of peace through shaping an environment where thor-
oughgoing political – and especially military – conflict becomes too costly to
remain an option. This is exactly why a miracle is needed for the Council to treat
Article 7 TEU seriously: the provision, at its core, goes against the very rationale of
European integration as designed.
106
European Commission 2003, p 5.
107
The term ‘illiberal democracy’ was coined long ago, but it gained practical relevance in the EU
after the Hungarian Prime Minister praised the concept in his speech given in Bălie Tuşnad on 25
July 2014. Cf. Frans Timmermans’ speech to the European Parliament: ‘There is no such thing as
an illiberal democracy’ (Timmermans 2015a).
108
Politico 2015, p 15.
109
Cf. Itzcovich 2017; Avbelj 2017.
The claims that little to nothing can be done under the current legal framework –
which are heard with remarkable regularity – are entirely baseless, as Hillion,
Besselink and other scholars have consistently pointed out.110 Now that the Article
7(1) TEU procedure has been triggered against Poland111 and Hungary,112 the
opposite preoccupation comes to the fore, namely the inefficiency of the proce-
dure,113 which leads to the reinvention of other available tools. For instance,
Articles 258 TFEU and 259 TFEU have been given a broader appeal in the
backsliding context, as evidenced by the infringement proceedings pursued against
Poland in relation to its destruction of its Supreme Court, which builds on the
newly-found effet utile and EU law scope-shaping significance of Article 19(1)
TEU (as well as Article 47 CFR, read in conjunction with the former),114 in contrast
to the Pyrrhic victories achieved in the otherwise similar Hungarian context.115
Scholars anticipated this development,116 which infuses Article 258 TFEU with
clear new potential, all the necessary caution about interpreting it too broadly
notwithstanding. Some necessary changes are technical and easily enforceable, such
as treating all infringement cases with a rule of law element as rule of law cases,
which the Commission has already done by requesting the reversal of attempted
harmful ‘reforms’ through an accelerated procedure to prevent the packing of the
Supreme Court of Poland with government stooges, which was being attempted
following the Hungarian template precisely.117 The Hungarian judicial capture case
described above should be a warning for all future disputes: it was misconstrued as
an age discrimination case, albeit the controversy was ultimately about judicial
independence, and thus the rule of law.118 The rule of law infringement was
finalised during the 10 months the proceedings continued before the EU institu-
tions. Had the case not been misinterpreted as a discrimination case, the govern-
ment could not have proposed individual compensation as a remedy. Both in terms
of the remedies sought and the timing of the action, Commission v. Poland shows a
spectacular learning curve on behalf of the Commission and the Court in terms of
the increased effectiveness of the deployment of Article 258 TFEU in the context of
rule of law backsliding. Kim Scheppele is absolutely right, asserting that systemic
110
Hillion 2016; Besselink 2017; Kochenov 2017c.
111
European Commission 2017a.
112
European Parliament 2018.
113
As a consequence, the institutions see the solution in the power of the purse to provide
disincentives for rule of law violations. See European Commission 2018.
114
ECJ, Associação Sindical dos Juízes Portugueses, 27 February 2018, case C-64/16, ECLI:EU:
C:2018:117; Krajewski 2018; Pech and Platon 2018.
115
ECJ, Commission v. Hungary, 6 November 2012, case C-286/12, ECLI:EU:C:2012:687.
116
Hillion 2016.
117
E.g. ECJ, Commission v. Poland, case C-619/18 R, Order ex parte of 19 October 2018,
EU:C:2018:852 and Order of 17 December 2018, EU:C:2018:1021.
118
It is impossible to argue that the Court was not aware of what was going on on the ground: AG
Kokott outlined the relevance of the on-going ‘reform’ for the Rule of Law quite clearly in her
Opinion in the case, see paras 54–55.
infringements require systemic compliance119 – and Article 279 TFEU offers a lot
of room here to prevent a situation from deteriorating by blocking any harmful
‘reforms’. Crucially, a mere observance of the letter of the acquis, as was the case
with the Hungarian judicial retirement age case, without however taking to heart its
spirit and the essential promises of Article 2 TEU, coupled with an array of other
provisions,120 is not the right way forward, as is now abundantly clear.121
In addition to the substance for construing an infringement, the time element
should also be considered: institutions including the ECJ should automatically take
into account the gravity of the possible consequences of rule of law violations, the
scale of their effects, and the fact that time is on the side of those violating the rule
of law, to expedite or give priority to such cases. Often however, even an accel-
erated infringement procedure will not be prompt enough to prevent the irreparable
harm that rule of law violations or backsliding can cause. Therefore, where an
infringement procedure involving a rule of law element is pending, interim mea-
sures should be awarded, just as happened in the proceedings before the ECJ over
the Polish judicial capture case. Other changes, such as a new approach by the
Commission in bundling rule of law violations to show their systemic nature, or
allocating more responsibility to democratic Member States in the enforcement of
the rule of law, have long been proposed by scholars in the field.122
Some, like First Vice President Timmermans, compare the present situation to
that of the Austrian crisis at the turn of the millennium and fear that triggering
Article 7 TEU would similarly backfire.123 The parallel drawn between the Austrian
and the current situations is entirely misleading, however, for numerous reasons.
The most obvious is that the institutions could not have made use of the then
non-existent preventive limb of Article 7 – currently Article 7(1) TEU – at the time
the Freiheitliche Partei Österreichs (FPÖ) entered government, and there was no
reason to make use of the provision as it then stood, i.e. to invoke the sanctioning
limb.124 Given the lack of a legally predefined preventive procedure, a course of
political action was opted for that need not – but very importantly could – be taken
vis-à-vis Hungary or Poland in light of Article 7. The political quarantine of Austria
started right after the formation of the government, before those in power could
have eroded European values, and once the situation had been thoroughly inves-
tigated, the Three Wise Men commissioned with this task did not find a violation of
EU values and accordingly suggested lifting the political sanctions.125 EU Member
States’ hostile intervention against Austria was backed neither by a proper legal
119
Scheppele 2016.
120
On the variety of approaches open to the Commission and the Court of Justice, see the general
overview in Hillion 2016. Cf. Closa et al. 2014.
121
Kochenov 2017a.
122
Scheppele 2016; Kochenov 2015a.
123
Timmermans 2015b.
124
Lachmayer 2017.
125
Ahtisaari et al. 2001.
basis nor political necessity: an illegal ad hoc action triggered by a democratic

election result. In teaching us, ironically, that the EU does not need any law or a
formal legal basis to take action in this domain, should the political will be
available: so much for supranational rule of law – an issue we return to infra. The
current Hungarian and Polish situations cannot be compared to the former Austrian
one, since the former have already progressed far down the route towards consti-
tutional capture, which is well documented both by European institutions and in the
academic literature.
11.5 The Place of Values in the System of EU Law:

A Focus on Infringement Proceedings
Article 2 TEU, which makes reference to democracy, the rule of law and a series of
other interrelated Union values, is somewhat different in nature from the rest of the
acquis. The same unquestionably applies to the violations of values: Article 2 TEU
violations are not the same as ordinary acquis violations. Such differences are
particularly acute in the context of one specific type of chronically non-compliant
state, where, as in Hungary, non-compliance is ideological and cannot be explained
by reference to lacking capacity – ‘simple’ corruption and outright sloppiness126 –
characterisations one might deploy in the context of some South East European
countries.127 Where chronic non-compliance is ideological, Articles 260 TFEU,
permitting striking at the non-compliant states financially, and 279 TFEU, autho-
rising interim measures aimed at preventing the further deterioration of the situation
on the ground,128 become the crux of the whole story, as simple restatements of a
breach under Article 258 TFEU (or Article 259 TFEU, for that matter)129 will
presumably not be enough,130 even if the recent innovations mentioned in the
previous sections would probably allow for some even in the context of the most
cautious reading of these provisions’ potential.131 The question of the effectiveness
of the ideological choice favouring non-compliance made by the relevant Member
States will remain open for the years to come, as the Court in consort with other
institutions is in search of more effective means to deploy the current instruments in
the context of rule of law backsliding. Although the Court obviously offers room for
126
Uitz 2015.
127
E.g. Ioannidis 2017.
128
This provision has been deployed both against the logging in the Polish UNESCO-designated
forest (case C-441/17 R) and in the context of the attempted ‘reform’ of the Supreme Court in the
country, aimed at depriving it of independence (case C-619/18 R).
129
See, e.g., Kochenov 2015a.
130
On the main deficiencies of the system, see, most importantly, Jack 2013; Wennerås 2012;
Wennerås 2017.
131
See, most importantly, Schmidt and Bogdanowicz 2018, p 1061; cf. Gormley 2017.
optimism, as explained above, alone, it will not be able to solve all the outstanding
problems: other institutions and the Member States will have to step in.
While the literature has focused on restating the EU’s presumed rule of
law-based character,132 as well as the issue of the enforcement of EU rule of law
and other values in the defiant Member States,133 it is crucial to realise that
Europe’s structural constitutional vulnerability stretches far beyond enforcement
issues per se. Instead, it is rooted in the discrepancies between the EU’s proclaimed
constitutional structure as we find it in the Treaties and the reality marking the
development of EU integration, as outlined above, which fosters doubt as to
whether the Union is actually abiding by the rule of law.134 In light of this structural
deficiency, one can argue that the much-analysed systemic deficiency135 in the area
of values and especially the rule of law was bound to emerge sooner or later as the
Union matured, whether in Hungary, Poland or elsewhere.136 Dealing with it will
necessarily require moving beyond a preoccupation with enforcement, which has
engulfed all the recent literature on the subject – quite understandably, given the
astonishing speed of the constitutional deterioration in both Hungary and Poland –
towards reforming the integration project at its core,137 ensuring that democracy
and the rule of law are endowed with a more important role in the context of the
supranational law of the Union.
In this general context, where the acquis and values are not synonymous, the
application of the Copenhagen criteria in the context of the recent enlargement
rounds teaches a particularly cautionary lesson: the Commission has emerged as an
institution which, when given all responsibility regarding the preparedness of the
new Member States for accession (values compliance outside the scope of the
acquis included) failed the exercise.138 Here, to the void of substance was added the
lack of the capability to generate such a substance, the lack of virtually any limi-
tations emerging from the scope of the law notwithstanding. Besides illustrating the
EU’s built-in limitations with regard to its ability to generate the substance of
Article 2 TEU rules, the pre-accession context also sounds an alarm bell on insti-
tutional capacity: the Commission is probably not the best actor to entrust with the
internal monitoring of Member States’ compliance with Article 2 TEU.
132
Fernández Esteban 1999; Pech 2016.
133
E.g. the contributions in Closa and Kochenov 2016; Jakab and Kochenov 2017; von
Bogdandy and Sonnevend 2015; Müller 2013.
134
Palombella 2009; Palombella 2016; Kochenov 2015b.
135
von Bogdandy and Ioannidis 2014.
136
See, for a broad discussion, Kochenov et al. 2015.
137
For a much more critical restatement of this particular argument, see Kochenov 2016; Weiler
2016.
138
Kochenov 2008.
11.6 How to Approach the Rule of Law in the Current

Context?
The necessary question which emerges is how to outline the essence of the rule of
law with the potential specificity of the supranational integration context in mind,
while distinguishing this concept from democracy, fundamental rights and the other
values of Article 2 TEU. Palombella’s writing is extremely helpful in this regard,
we suggest.139 The essence of the rule of law – which distinguishes it from legality,
democracy and other wonderful things – is that the law is constantly in tension with
and controlled by other law – how the EU falls short of this institutional ideal will
be demonstrated. Palombella’s rule of law, which is dialogical in essence since it
presupposes and constantly relies on a constant taming of law with law, ‘amounts to
preventing one dominant source of law and its unconstrained whim, from absorbing
all the available normativity’.140 According to this account the rule of law implies
that the law – gubernaculum – should always be controlled by other law – juris-
dictio – lying outwith the sovereign’s reach.141 The tension is necessarily dialogical
in nature since the absolute domination of either gubernaculum or jurisdictio
necessarily destroys the core of the rule of law, which is the tension between the
two. It goes without saying that making use of such a definition should necessarily
be qualified by Krygier’s sage observation: ‘whatever one might propose as the echt
meaning of the rule of law is precisely that: a proposal’.142 The rule of law is a
classic example of an essentially contested concept:143 the EU is seemingly as
hopeless at defining what it means as its Member States and the broad academic
doctrine.144 The debate is constantly ongoing,145 but the last available definition,146
inspired by the Venice Commission’s guidelines,147 could provide a solid illus-
tration of the current state of the definitional debate. Whether one agrees with the
Commission’s approach or not, it seems to be beyond any doubt what the rule of
law is not. It is not democracy, the protection of human rights, nor similar delightful
139
Please consult Kochenov 2015b, on which this and the following sections are based, for the
full picture.
140
Palombella 2014, p 18. Similarly, see Georgiev 1993, p 4.
141
For an analysis of this perspective, see, ibid.; Palombella 2012; Palombella 2009, p 17. See
also Palombella 2016.
142
Krygier 2014, p 78.
143
For a brilliant outline of the history of contestation, see Waldron 2002.
144
For a multi-disciplinary overview, see, e.g., Hadfield and Weingast 2014; cf. Levrat 2018,
p 157; Pech 2009 and the literature cited therein. See also Pech 2013 on the ‘holistic under-
standing’ of the rule of law. For a special ‘Eastern-European’ perspective, which is particularly
important in the context of the ongoing developments in the EU, see Přibáň 2009.
145
For key contributions, see Pech 2016; Morlino and Palombella 2010; Palombella and Walker
2009.
146
European Commission 2014.
147
The Venice Commission for Democracy through Law 2016b, as well as in the earlier version
thereof: The Venice Commission for Democracy through Law 2011.
things, each of them definitely boasting its own sound claim to existence as a notion
independent of the rule of law.148 And it is not mere legality, which is adherence to
the law.
Once the rule of law and legality are distinguished, the basic meaning of the rule
of law comes down to the idea of the subordination of the law to another kind of
law, which is not up to the sovereign to change at will.149 This idea, traceable back
to mediaeval England,150 is described with recourse to two key notions to reflect the
fundamental duality of the law’s fabric, indispensable for the operation of the rule
of law as a principle of law:151 jurisdictio – the law untouchable for the day-to-day
rules running the legal system and removed from the ambit of the purview of the
sovereign – and gubernaculum, which is the use of the general rule-making
power.152 As Krygier put it in his commentary on Palombella’s work, ‘the king was
subject to the law that he had not made, indeed that made him king. For the king –
for anyone – to ignore or override that law was to violate the rule of law’.153 Even
in the contemporary age of popular sovereignty, this statement is obviously true,
since democracy should not be capable of annihilating the law. Indeed, this is one
of the key points made by the defenders of judicial review.154
Unlike despotic or totalitarian regimes, where the ruler is free to do anything he
pleases; or problematic EU Member States such as Hungary, where the constitution
is a political tool; or Poland, where the executive ignores the constitution to
undermine the separation of powers; or pre-constitutional democracies, which
equate the law with legislation,155 the majority of constitutional democracies in the
world today recognise the distinction between jurisdictio and gubernaculum, thus
achieving a sound approximation of Palombella’s rule of law as an institutional
ideal, in terms of maintaining and fostering the constant tension between these two
facets of the law. The authority should be itself bound by clear legal norms which
are outside of its control. Indeed, this is the key feature of post-war constitution-
alism. The jurisdictio–gubernaculum distinction, lying at the core of what the rule
of law is about, can be policed either by courts or even by the structure of the
148
One should not forget the wise words of Joseph Raz: ‘We have no need to be converted into
the rule of law just in order to believe […] that good should triumph’: Raz 1979, p 21.
149
Palombella 2016.
150
Reid 2004.
151
Palombella 2012.
152
For a detailed exposé, see Palombella 2016. See also Palombella 2009, p 30, emphasising that
this duality should not be disturbed by democratic outcomes and ethical choices.
153
Krygier 2014, p 84.
154
Cf. Kumm 2010.
155
In a pre-constitutional state, the Rechtsstaat shapes a reality, in the words of Gianfranco Poggi,
where ‘there is a relation of near-identity between the state and its law’: Poggi 1978, p 238 (as
cited in Krygier 2014, p 84).
constitution itself, through removing certain domains from gubernaculum’s

scope.156 The ideology of human rights is of huge significance in this context.157
Furthermore, the existence of international law,158 and of course supranational legal
orders,159 definitely contributes to the policing of the aforementioned duality.160
The policing of the jurisdictio–gubernaculum divide is thus possible both through
means internal and external to a given legal system.
11.7 Supranational Law and the Effective

Instrumentalisation of Values
From Lord Mackenzie Stuart161 to Les Verts, which characterises the Treaties as ‘a
constitutional charter based on the rule of law’,162 what we have been hearing about
on the subject of the rule of law in the EU actually amounts to internal legal
compliance.163 This is an established understanding of legality.164 Legality is not
enough to ensure that the EU behaves like – and is – a true rule of law-based
constitutional system. If we were to argue that equating the rule of law and legality
is legitimate, then, as Palombella correctly notes, our thinking ‘shifts the issue from
the rule of law to the […] respect for the laws of a legal system’.165 Yet ‘the rule of
law cannot mean just the self-referentiality of a legal order’,166 which is the reason
why contemporary constitutionalism is usually understood as implying, among
156
Roznai 2017, pp 179–196.
157
Frankenberg 2013.
158
Dworkin 2013.
159
For an argument that numerous Central and Eastern European states were actually motivated
by the desire for external legal checks on their laws – a jurisdictio – when joining the Council of
Europe, see Sadurski 2012.
160
Palombella 2012, chapter 2.
161
Mackenzie Stuart 1977. See also Bebr 1965. Cf. Levrat 2018.
162
ECJ, Partie Ecologiste ‘Les Verts’ v Parliament, 23 April 1986, case 294/83, ECLI:EU:
C:1986:166, para 23. See also ECJ, EEA Agreement, Opinion 1/91, ECLI:EU:C:1991:490.
163
Fernandez Esteban 1999; also Everling 2010, p 701; Zuleeg 2010, pp 772–779. EU institu-
tions’ own accounts of what is meant by the rule of law beyond the tautology of ‘being bound by
law’ present a most diverse account, which found an expression in the EU’s external action: Pech
2013, p 108; Burlyuk 2015, p 509.
164
E.g. the contributions in Besselink et al. 2010.
165
Palombella 2016.
166
Ibid. Compare with M Krygier: ‘To try to capture this elusive phenomenon by focusing on
characteristics of laws and legal institutions is, I believe, to start in the wrong place and move in
the wrong direction’: Krygier 2006. See also Tamanaha 2006.
other things, additional restraints through law:167 restraints which are crucially not
simply democratic or political.168
By and large, the re-articulation of the Union from an ordinary treaty organi-
sation into a constitutional system was not accompanied by a sufficient upgrade of
the role played by the core values it is said to build upon.169 These values do not
inform the day-to-day functioning of EU law, neither internally170 nor externally.171
Let us not forget that the promotion of its values, including the rule of law, is an
obligation lying on the Union in accordance with the Treaties.172 Indeed, unless we
take the Commission’s scribbles for granted, the EU’s steering of countless issues
directly related to the values at hand is more problematic than not. The EU is not
about the values Article 2 TEU preaches, which any student of EU law and politics
will readily confirm.173 The EU’s very self-definition is not about human rights, the
rule of law or democracy.174 EU law functions differently: there is a whole other set
of principles which actually matter and which are held dear: supremacy, direct
effect and autonomy are the key trio which spring to mind.175 Operating together,
they can set aside both national constitutional176 and international human rights,177
as well as UN law constraints.178 In the current crisis-rich environment,179 the
Union frequently stars as part of the problem, rather than part of the solution.
167
For a clear discussion of the relationship between constitutionalism and the rule of law, see
Krygier 2017.
168
Naturally, this is not to say that we should do away with the political restraints. Indeed, the
virtually complete depoliticisation of the law has been one of the key criticisms of the EU legal
order: Přibáň 2015, p 193 and Wilkinson 2015.
169
Williams 2009.
170
Weiler 2009, p 51; Williams 2010.
171
For critical engagements, see Cremona 2011, p 275; Leino and Petrov 2009.
172
Article 3(5) TEU.
173
The crucial argument in this vein has been made, most powerfully, by Andrew Williams:
Williams 2009. See, also, Weiler 2010.
174
See most recently ECJ, ECHR, Accession II, 18 December 2014, Opinion 2/13, ECLI:EU:
C:2014:2454, para 170, which states that the fundamental rights in the EU are ‘interpret[ed] […]
within the framework of the structure and objectives of the EU’.
175
Procedural principles cannot possibly replace the lack of substantive attention to the core
values encompassed by Article 2 TEU, including the rule of law, threatening to cause a justice
deficit of the Union: Kochenov et al. 2015. Cf. Halberstam 2015 and Eeckhout 2015; Kochenov
2010.
176
ECJ, Melloni, 26 February 2013, case C-399/11, ECLI:EU:C:2013:107.
177
ECJ, ECHR, Accession II, 18 December 2014, Opinion 2/13, ECLI:EU:C:2014:2454;
Kochenov 2015b.
178
On the Kadi saga, see de Búrca 2010, p 1. See also, of course, ECJ, Kadi II, 18 July 2013, case
C-584/10, ECLI:EU:C:2013:518.
179
Three equally important facets of the current crisis can be outlined: values; justice; and
economic and monetary. On the crisis of values, see, e.g., Williams 2009 and Weiler 2010. On the
crisis of justice: Kochenov et al. 2015. On the economic side of the crisis, see, e.g., Menéndez
2013; Adams et al. 2014.
The problem is, it behaves like a constitutional system endowed with authority
relying on the ECJ to police this claim – a natural expectation of any legal order180
– while failing at the same time to boast the necessary ABC of constitutionalism:
when push comes to shove, its values play a foundational role in outlining neither
the scope nor the substance of the law.181
Bringing the values back in is indispensable to infusing the EU’s constitutional
claims with credibility. In practice, this would mean a return to the promise of EU
integration made in the days of the Union’s inception.182 A fédération européenne
(the one mentioned in the Schuman Declaration) to be brought about through the
creation of the internal market, stood for a line of developments significantly more
far-reaching than the idea of economic integration as such. The former is
values-based – while the latter is probably not (at least, not based on the values of
Article 2), as Andrew Williams explained in his seminal work.183
Not the whole story was negative, however. Although the Union’s ambition has
gradually been scaled down to the market – call it a hijacking of the ends by the
means184 – the Union started de facto to play the role of the promoter of liberal and
tolerant nationhood, as rightly characterised by Kymlicka, mostly through negative
integration and advancing a very clear idea of constitutionalism based on propor-
tionality, tolerance and the taming of nationalism.185 Furthermore, at the core of the
Union there lay basic mutual respect among the Member States: the Union would
become impossible if they began to obstruct the principle of mutual recognition.186
This came down to frowning upon the ideology of ‘thick’ national identities,
however glorified in some schoolbooks. The ultimate result is that the EU, sub-
consciously as it were, emerged as a promoter of one particular type of constitu-
tionalism,187 which is based on the rule of law understood through national
democracy and the culture of justification which implies human rights protection
and strong judicial review. To be a Member State of the EU in the context of these
developments came to signify one thing: to stick to this particular type of consti-
tutionalism, which is now reflected in Article 2 TEU and which also represents the
most important condition to be fulfilled before joining the EU, as hinted at in
Article 49 TEU.188
The EU thus emerged as a vehicle of the negative market-based approach to the
‘values’ question. Clearly, creating a market and questioning the state is not
180
Lindeboom 2018.
181
Peebles 1998; Kochenov 2017d.
182
On the key aspects of the dynamics of the EU’s legal history, see Davies and Rasmussen 2012.
183
Williams 2010.
184
Kochenov 2013.
185
Kymlicka 2006, p 134. See also Davies 2010.
186
Poiares Maduro 2007. For a very sophisticated analysis of the Union’s effects on the Member
States, see Somek 2010a and Somek 2010b.
187
Perju 2012b.
188
See, e.g., Kochenov 2008, chapter 2.
sufficient as a basis for a mature constitutional system, potentially creating a system

of justice rendered nugatory at the supranational level189 and perpetuating the
Union’s inability to help the Member States labouring to inflict a justice void on
themselves, either through an outright embrace of Putin-style ‘illiberal democracy’
– proclaimed as an ideal to strive for by the Hungarian Prime Minister Orbán190 –
an attack on the judiciary and the media – as in contemporary Poland191 – or
through failing to build a well-ordered and functioning modern state – as it the case
in Greece192 and Romania,193 for instance. Outright defiance is thus not required to
fall out of adherence to Article 2 TEU aspirations.
11.8 Mutual-Recognition-Supranationalism: Powerless,

But the Court?
The Union is thus generally powerless concerning the enforcement of values and
more importantly, is also indecisive as to their content. The very fact that we are
now concerned with enforcing them seriously amounts to nothing else but a con-
cession that the presumption that there is a level playing field among all Member
States in terms of the rule of law etc. – i.e. the fact that all of them actually adhere to
the specific type of constitutionalism the EU set out to promote – does not hold (any
more). This is something the European Court of Human Rights (ECtHR) has
already clearly hinted at in M.S.S. v. Belgium and Greece.194 Acknowledging this
alongside the EU’s obvious powerlessness as far as values are concerned is a
potentially explosive combination in a Union built on Member State equality and
the principle of mutual recognition. In a situation where the core values are not
respected by Hungary, for instance, we are not dealing with a Member State that is
revolting for one reason or another against a binding norm of European law. At the
189
Douglas-Scott 2015.
190
For the full text of the speech, see Tóth C (2014) The full text of Viktor Orbán’s speech at Băile
Tuşnad (Tusnádfürdő) of 26 July 2014: www.budapestbeacon.com/public-policy/full-text-of-
viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/10592 Accessed 14 February
2019. In 2018 it was renamed as ‘Christian democracy’, but there is no substantive change behind the
shift in terminology (see Sect. 11.2)
191
Cf. Venice Commission 2016.
192
Ioannidis 2017.
193
Perju 2012a, p 246.
194
ECtHR, MSS v Belgium and Greece, 21 January 2011, application no. 30696/09, ECLI:CE:
ECHR:2011:0121JUD003069609. But see also the Bosphorus presumption of equivalent pro-
tection ECtHR, Bosphorus v Ireland, 30 June 2005, application no. 45036/98, ECLI:CE:
ECHR:2005:0630JUD004503698 and ECtHR, Michaud v France, 6 December 2012, application
no. 12323/11, ECLI:CE:ECHR:2012:1206JUD001232311, which survived even after Opinion 2/
13 had been rendered: ECtHR, Avotiņš v Latvia, 23 May 2016, application no. 17502/07, ECLI:
CE:ECHR:2016:0523JUD001750207.
level of values, we are dealing with a principally different Member State, with the
Belarusisation of the EU from the inside.195
Once the values of Article 2 TEU are not observed, the essential presumptions
behind the core of the Union no longer hold, undermining the very essence of the
integration exercise: mutual recognition becomes an untenable fiction, which the
Member States are nevertheless bound by EU law to adhere to. This is the core of
what the autonomy of EU law stands for, as confirmed by the Court in its infamous
Opinion 2/13 which vetoed the EU’s accession to the ECHR.196 In this Opinion on
the draft accession agreement of the EU to ECHR, the Court of Justice highlighted
the principle of mutual trust between Member States, which forms the cornerstone
of the area of freedom, security and justice. In the Court of Justice’s interpretation,
this means that a Member State must presume all other Member States to be in
compliance with EU law, including their respect for fundamental rights. To be fair,
it should be mentioned that the Court also referred to ‘exceptional circumstances’,
which would warrant departure from the mutual trust principle,197 but the exact
nature of these exceptional circumstances was left open. In Aranyosi and
Căldăraru198 and in a later case discussed infra,199 the Court made clear that it will
not accept a clear risk of a serious breach of EU values (Article 7(1) TEU) as a
benchmark for suspending mutual trust in general. Rather, it holds that the appli-
cation of mutual recognition based instruments – or at least the European Arrest
Warrant200 at issue in the case – may only be suspended if the sanctioning prong of
Article 7 TEU (current Article 7(2)–(3) TEU) is invoked and the Council deter-
mines a breach of EU values.201 Absent the completion of an Article 7(2)–(3)
procedure, only individual surrenders may be suspended on a case-by-case basis,
provided a two-prong test is followed.202 The Court clarified that the executing
judicial authority must assess whether there are fundamental rights deficiencies in
general. Once a risk of a rights violation is established, as a second step, the
executing judicial authority must determine, specifically and precisely, whether
there are substantial grounds to believe that the person concerned by a European
Arrest Warrant will be exposed to a real risk of human rights violations, in the event
of his surrender to that Member State. If the risk of a human rights infringement in
195
Belavusau 2013, p 1145.
196
This point has been forcefully restated in the ECJ’s Opinion 2/13. See, e.g., para 192.
197
Ibid.
198
ECJ, Aranyosi and Căldăraru, 5 April 2016, joined cases C-404/15 and C-659/15 PPU, ECLI:
EU:C:2016:198.
199
ECJ, Minister for Justice and Equality v LM, 25 July 2018, case C-216/18 PPU, ECLI:EU:
C:2018:586.
200
Council of the European Union 2002.
201
C:2018:586, para 70.
202
Ibid., para 73.
general and in the specific case are established, the execution of the warrant must be
postponed.203
The Court left a number of issues unclear, two of which deserve greater attention
as they might have detrimental consequences for the rule of law as it shall be
understood in the EU, and might contribute to the proliferation of rule of law
backsliding across borders. First, Aranyosi placed too much of an emphasis on
external fora in determining the state of values in the Member States. The judgment
in Aranyosi heavily depended on a pilot judgment issued by the ECtHR,204 holding
that prison conditions in Hungary violated Article 4 EU Charter (Article 3 ECHR).
But after the judgment in Aranyosi had been rendered, Hungary adopted a new
law,205 which provided a combination of preventive and compensatory remedies,
guaranteeing in theory genuine redress for human rights violations originating from
cramped prisons and other unsuitable detention conditions. In light of this new law,
in Domján v. Hungary206 the ECtHR declared another Hungarian detainee’s
application – and all others’ in his position – complaining about prison conditions
premature and therefore inadmissible, saying that Mr. Domján should make use of
the remedies introduced by the new Hungarian law before turning to the Strasbourg
court. The ECtHR’s decision in Domján led the AG believe in the ML case that
surrender cannot be postponed any longer on the grounds of poor prison conditions
in Hungary.207 The ECJ adopted a more refined approach:208 it realised that pro-
cedures enabling authorities to grant redress for fundamental rights violations
cannot rule out the existence of a real risk of a violation, and that the Domján case
law should not automatically make Member States’ courts dismiss claims from
persons requested. Nevertheless, it implied that ‘in the absence of minimum stan-
dards under EU law regarding detention conditions’209 the ultimate bar for deter-
mining the potentiality of human rights violations remains to be determined by the
Strasbourg court. It means that the Court is not yet ready to develop higher stan-
dards or review the values’ situation on the ground in a Member State, but con-
tinues to ‘contract it out’ to the Council of Europe, at least where human rights are
at stake.
203
In Aranyosi and Căldăraru, the Court of Justice had an opportunity to clarify what those
exceptional circumstances might be and it made an attempt to do so, but ultimately this led to more
questions than it answered: see ECJ, Aranyosi and Căldăraru, 5 April 2016, joined cases C-404/15
and C-659/15 PPU, ECLI:EU:C:2016:198. For an analysis, see van Ballegooij and Bárd 2016.
204
ECtHR, Varga and others v. Hungary, 10 March 2015, application nos. 14097/12 etc., ECLI:
CE:ECHR:2015:0310JUD001409712.
205
Act No. CX of 2016 amending Act No. CCXL of 2013 on the enforcement of punishments,
measures, certain coercive measures and confinement for regulatory offences.
206
ECtHR, Domján v. Hungary, 14 November 2017, application no. 5433/17, ECLI:CE:
ECHR:2017:1114DEC000543317.
207
ECJ, ML, 25 July 2018, case C-220/18 PPU, ECLI:EU:C:2018:547, Opinion of AG Campos
Sánchez-Bordona, paras 51–54.
208
ECJ, ML, 25 July 2018, case C-220/18 PPU, ECLI:EU:C:2018:589, para 117.
209
Ibid. at para 90. Cf. van Ballegooij 2017.
Second, the Court left it unclear whether and to what extent the Aranyosi case
law would be applicable where a case did not exclusively concern a human rights
violation, but also included an element of the rule of law being threatened in the
issuing state. In the case of LM, the ECJ got a chance to answer the question.210 The
issue was whether a suspect of a crime should be surrendered from Ireland to
Poland when the executing judicial authority had serious doubts as to whether the
suspect would receive a fair trial in the issuing state, due to the lack of indepen-
dence of the judiciary resulting from changes to the Polish judicial system.211
The ECJ could have gone – and scholars have previously argued212 for doing so –
beyond its case law and framed the case primarily as a rule of law problem.
The ECJ however constructed the case as a possible violation of a fundamental
right, namely the right to a fair trial as protected by Article 47 EU Charter, which
presupposes that tribunals are independent and impartial.213 The ECJ ruled that the
two-step test in Aranyosi needs to be followed by the executing judicial authority
when making decisions on surrenders. The second prong however makes the sus-
pension of surrender almost impossible. It seems to be a disproportionate burden on
the individual to show how a systemic breach in the rule of law effects his or her
case individually. Elsewhere we have argued that once the first step of the test was
satisfied, the burden should shift to the stronger party, i.e. the issuing state.214 The
Court’s insistence that the issuing and executing authorities engage in a ‘dialogue’
about the latter’s independence,215 presupposes the unlikely scenario that a cap-
tured court will admit that it was captured.
Applying the test in LM, both the High Court of England and Wales216 and the
Irish High Court surrendered suspects to Poland. Both cases illustrate how difficult
it is for the defence to prove that the wanted person will be individually affected by
the current threats to the independence of the Polish judiciary to the extent that this
would pose a real risk of a breach of their fair trial rights, and more specifically their
rights to an independent tribunal.
210
C:2018:586; cf. Dorociak and Lewandowski 2017.
211
High Court of Ireland decision of 12 March 2018, Minister for Justice and Equality v Celmer
[2018] IEHC 119. For the final version of the preliminary reference, see High Court of Ireland
decision of 23 March 2018, Minister for Justice and Equality v Celmer [2018] IEHC 119.
212
Bárd and van Ballegooij 2018a, b, c; van Ballegooij and Bárd 2018.
213
C:2018:586, paras 47–48.
214
van Ballegooij and Bárd 2016, based on Bárd et al. 2016.
215
C:2018:586, paras 76–77.
216
High Court of Justice in England, Pawel Lis et al., 31 October 2018, [2018] EWHC 2848
(Admin).
Summing up the relevant case law on mutual recognition, the Court insisted that
autonomy considerations in the context of EU law will usually tend to prevail over
human rights and other values – including the rule of law – cherished on the one
hand in the national constitutional systems of the Member States, and on the other
by Article 6 TEU, the Charter of Fundamental Rights and also Article 67(1) TFEU,
according to which fundamental rights are supposed to be the cornerstones of the
area of freedom, security and justice. Indeed, it would probably not be incorrect to
argue that this would be the shortest possible summary of Opinion 2/13, which
itself summarised EU law as it stands. The consequences for the rule of law are
drastic: all the principles invoked by the ECJ to justify giving EU law the upper
hand in Opinion 2/13 are procedural, while the problems that the reliance on the
ECHR is there to solve are substantive. Curing substantive deficiencies of the EU
legal order with the remedies confined to autonomy and direct effect is a logical
flaw plaguing the EU legal system, which puzzles the most renowned commenta-
tors.217 One cannot quarrel about the roses when the forests are burning. To agree
with Eleanor Sharpston and Daniel Sarmiento, ‘in the balance between individual
rights and primacy, the Court in Opinion 2/13 has fairly clearly sided with the latter.
The losers under Opinion 2/13 are not the Member States of the signatory States of
the Council of Europe, but the individual citizens of the European Union’.218 This
is so, we must add, not only because of the potential reduction of the level of human
rights protection. Rather, it is due to the fact that the EU, as Opinion 2/13 made
clear, boasts the overwhelming potential to undermine the rule of law at the national
level and this potential impact is not an empty threat.219
In the light of the above it appears that the ensuring of mutual trust – an topic
much discussed in the context of the safeguarding of the rule of law in the EU –
takes the back seat in the context where infringement proceedings initiated by the
Commission created a veritable boost in the creative reading of the values in
cumulation with Article 19(1) TEU and the Charter in the recent Commission v.
Poland cases, as analysed at the very beginning of this contribution. While both the
horizontal ‘questioning mutual trust’ route and the vertical infringement proceed-
ings / preliminary references route are obviously deployable against democratic and
rule of law backsliding, the latter emerges as the preferred option in the light of the
most recent case law pertaining to both routes discussed. The ECJ’s role has been
both significant and tricky and so far it has played ideally, without offering room for
any possible reproach. Which route – the vertical, or the horizontal – will appear
most usable is not as important, in the end, compared with the very masterful
articulation of both options, which are bound to be the core legacies of the Lenaerts
Court.
217
E.g. Eeckhout 2015; Halberstam 2015.
218
Sarmiento and Sharpston 2017.
219
See, further, Kochenov 2016
11.9 Enforcement Through Subtle Gradualism? As

a Conclusion
The rule of law backsliding in Hungary and Poland revealed the EU’s significant
vulnerabilities in the face of the need to uphold the values the whole system of EU
integration presumes to have in place. The lessons are revealing: respecting the
acquis does not guarantee continuing adherence to Article 2 TEU values; economic
success in the Union does not necessarily entrench democracy and the rule of law;
the tools available to preserve the rule of law are largely inadequate, as they could
go against the key assumptions of the internal market. Consequently, the lack of
political will to deal with the values’ crisis is not at all irrational, which makes it
even more worrisome. What stands out from this grim picture is the revolutionary
case law of the Court of Justice on judicial independence and mutual trust, which
bridges the available infringement procedures with the outstanding problems and
offers horizontal and vertical empowerment to the EU’s decentralised judiciaries –
now able to intervene – while also resolving the competences conundrum through a
broad reading of the principle of judicial independence as a key element of the rule
of law. However inspiring, recent case law developments are insufficient, we argue,
to deal with the sociological legitimacy crisis in tackling illiberal democracies
plaguing the EU: autocratic legalism cannot be fought with legalism alone.
Designing a long-term systemic approach leading to a complex re-articulation of
EU values is indispensable, as enforcement per se is not a panacea.
The core question which emerges in the light of the above discussion, is how to
ensure that the EU’s own approach to the rule of law does not undermine, if not destroy,
adherence to the principle of the rule of law in the Member States, which are, in fact,
compliant with the values listed in Article 2 TEU. We submit that such an under-
standing of the rule of law cannot possibly lead to the much-needed solution of the
outstanding problems. Instead, the most mature answer to the problems should nec-
essarily involve not only the reform of the enforcement mechanisms, but the reform of
the Union as such, as the supranational law should be made more aware of the values it
is obliged by the Treaties to respect and also, crucially, to aspire to protect at both the
national and supranational levels. Instead of hiding behind the veil of the procedural
purity banners of autonomy, supremacy and the like, EU law should embrace the rule
of law as an institutional ideal.220 This implies, inter alia, eventual substantive limi-
tations on the acquis of the Union as well as taking Article 2 TEU values to heart in the
context of the day-to-day functioning of the Union, elevating the values above the
instrumentalism marking them today. The result would be the emergence of a supra-
national constitutional system at the EU level, which would be truer to the glorious
‘constitutional’ label, and which would play a significantly more productive role in
solving the backsliding challenges in Hungary, Poland, and any other Member States
following suit, where the war against all what we believe in is currently ongoing.
220
Cf. Palombella 2012.
Acknowledgement This chapter was prepared under the auspices of the EU’s Horizon 2020
research and innovation programme as part of the RECONNECT project under Grant Agreement
no. 770142. The first draft appeared as a contribution to a collective Robert Schuman Centre for
Advanced Studies paper (EUI Florence) and a RECONNECT paper. The authors are grateful to
Barbara Grabowska-Moroz, Nina Havig Bredvold, Harry Panagopoulos, Flips Schøyen and
Jacquelyn Veraldi for their help and assistance. The usual disclaimer applies.
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Dimitry Kochenov graduated from Central European University in Budapest in 2002. His
scholarship focuses on EU constitutional law most broadly conceived. Among his recent
(co-edited) volumes are The Internal Market and the Future of European Integration (CUP, 2019,
with Amtenbrink, Davies and Lindeboom); EU Citizenship and Federalism (CUP, 2017); The
Enforcement of EU Law and Values (OUP, 2017, with Jakab); Reinforcing Rule of Law Oversight
in the EU (CUP 2016, with Closa) and Europe’s Justice Deficit? (Hart, 2015, with de Búrca and
Williams). He has held visiting fellowships and professorships worldwide, including at Princeton
(LAPA, Woodrow Wilson School), NYU Law (Émile Noël), Basel (Institute of Global Studies),
Turin (Scuola dei Studi Superiori) and numerous others. He consults governments and
international organizations on the subjects of his interest. His newest monograph is Citizenship
(MIT Press, 2019).
Petra Bárd graduated from Central European University in Budapest in 2001 (LLM) and in 2008
(SJD). She is Associate Professor at Eötvös Loránd University, Faculty of Law and teaches EU
human rights and criminal justice, criminal policy, and criminology. She is Visiting Professor and
Researcher at the Central European University’s Legal Studies Department and teaches courses on
EU law, EU constitutional law, and criminal justice at other universities across Europe including
Belgrade, Frankfurt and Vienna. In her research and publications – including several monographs
– she deals with issues at the intersection of the rule of law, human rights, EU criminal
cooperation, mutual recognition and mutual trust. She regularly authors studies on the rule of law
and EU criminal justice for the European Parliament, and other EU institutions or agencies.
Chapter 12
A Stress Test for Europe’s Judiciaries
Eirik Holmøyvik and Anne Sanders
Contents
12.1 Introduction...................................................................................................................... 290

12.2 The Problem: A European Rule of Law Crisis and the Limited Effectiveness
of European Institutions .................................................................................................. 291
12.2.1 Judicial Independence in a European Rule of Law Crisis ................................ 291
12.2.2 Limited Effectiveness of European Institutions and the Need for National
Responses ........................................................................................................... 296
12.3 The Three Stages of the Stress Test ............................................................................... 299
12.3.1 Introduction: What Are the Standards and What is the Methodology?............ 299
12.3.2 Stage 1: Mapping Threats to Judicial Independence......................................... 302
12.3.3 Stage 2: Stress Testing Judiciaries..................................................................... 302
12.3.4 Stage 3: Considering Measures.......................................................................... 303
12.4 The Counter Argument: Is it Really About Law, Or About Culture?........................... 306
12.5 Concluding Remarks ....................................................................................................... 309
References .................................................................................................................................. 310
Abstract The rule of law, judicial independence and separation of powers are
values guaranteed in constitutions of member states of the Council of Europe.
Nevertheless, in recent years, a number of challenges to these accepted values have
emerged in different countries all over Europe. The legal responses from European
institutions against systemic rule of law threats has yet to prove effective. In this
This chapter builds on the ideas first discussed by the authors in Holmøyvik and Sanders 2017.
The text was last revised on 7 July 2018. Subsequent developments in legislation, case law and
doctrine have only been incorporated to a limited extent.
E. Holmøyvik (&)
University of Bergen, Bergen, Norway
e-mail: eirik.holmoyvik@jur.uib.no
A. Sanders
University of Bielefeld, Bielefeld, Germany
e-mail: anne.sanders@uni-bielefeld.de

https://doi.org/10.1007/978-94-6265-359-7_12
290 E. Holmøyvik and A. Sanders
chapter we propose a national approach to protect European rule of law standards.

To facilitate this process, we suggest stress-testing Europe’s judiciaries. This should
be done by means of structured thought experiments in which the likely effects of
adverse developments (such as the ones to be witnessed in some European countries
today) should be predicted to identify and remedy weak points in the constitutional
and legal framework.

Keywords Council of Europe judicial independence rule of law separation of

powers stress test for judicial systems
12.1 Introduction
The rule of law, judicial independence and separation of powers are values guar-
anteed in constitutions of member states of the Council of Europe.1 According to
Article 2 TEU, the rule of law is one of the common values upon which the EU is
built. Nevertheless, in recent years, a number of challenges to these accepted values
have emerged in different countries all over Europe in the form of threats to judicial
independence. Events in EU member states such as Hungary, Poland, and Slovakia,
as well as countries like Ukraine and Turkey should be mentioned in this context.2
Commentators speak of a rule of law crisis and backsliding in Europe.3
The different challenges to judicial independence all over Europe in recent years,
demand a discussion of proper reactions. As we shall discuss, European institutions
face some difficulties in addressing systemic rule of law issues in the member states
(see Sect. 12.2 below). Therefore, despite its importance for European integration
and cooperation, the protection of the rule of law and judicial independence remains
at present predominantly a national responsibility. In this essay we discuss how the
European perspective can be applied on the national level to prevent rule of law
backsliding. We suggest a national approach, not to remedy existing rule of law
challenges like in Poland, but to review the existing legal framework in other
European countries according to European standards as a preventive measure. We
1
For a comparative overview, see Summary Report on the responses by the CCJE member states
to the questionnaire for the preparation of CCJE Opinion No. 18 (2015).
2
See for a list of recent Opinions of the Venice Commission on judicial reforms: https://www.
venice.coe.int/webforms/documents/?topic=27&year=all. Accessed 1 March 2019. See also the
Joint report of the CCJE and CCPE Challenges for judicial independence and impartiality in the
member states of the Council of Europe 2016; CCJE/CCPE, SG/Inf(2016)3rev; CCJE, Report on
judicial independence and impartiality in the Council of Europe member states 2017 (CCJE(2017)
5Prov5); see also the various Opinions of the CCJE on recent developments in Bulgaria, Poland,
Slovakia, Turkey, and Ukraine
https://www.coe.int/en/web/ccje/status-and-situation-of-judges-in-member-states. Accessed 1
March 2019.
3
See inter alia Pech and Scheppele 2017; Černič and Avbelj 2018; and Sanders and Von Danwitz
2018a.
12 A Stress Test for Europe’s Judiciaries 291
argue that states should ‘stress test’ their judiciaries according to European rule of
law standards. The purpose of such a judicial stress test is to reveal weaknesses in
and subsequently take measures to strengthen the constitutional and legal frame-
work for the protection of judicial independence as well as increasing the public’s
trust in the judiciary.
Since a stress test for judicial systems is a new concept, we offer no empirical
evidence for its effectiveness.4 However, given the serious nature of the threats to
the rule of law in several European countries, and the apparent lack of effective
legal remedies, we suggest that new approaches must be discussed. The main
question this essay wishes to address, is according to which standards and which
methodology such a judicial stress test could be performed at the national level (see
Sect. 12.3 below). Finally, we discuss the limits of the stress test concept, especially
in established democracies (see Sect. 12.4 below).
Stress tests are well known from the financial sector, in particular as a response
to the 2007–2008 global financial crisis. Especially the IMF imposes them as part of
the FSAP (Financial Sector Assessment Program) on financial institutions in order
to identify vulnerability that could undermine the stability of a country’s financial
system.5 In order to do this, the FSAP takes not only a broad view at the main
structural, institutional, and market features and activities of the financial sector, but
also takes into account the financial policy framework within which the financial
sector operates.6 We believe a European legal community facing its own judicial
crisis can learn from the financial sector’s response to the financial crisis. The stress
test concept we discuss in this essay can be applied by governments and parlia-
ments, judicial councils or court administrations, ombudsmen institutions as well as
non-governmental organisations such as judges’ associations and academics.
12.2 The Problem: A European Rule of Law Crisis

and the Limited Effectiveness of European
Institutions
12.2.1 Judicial Independence in a European Rule of Law

Crisis
Without judicial independence, courts cannot fulfil their social function to institu-
tionalise conflicts and bring them to a peaceful solution.7 The ECtHR and the CJEU
have therefore recognized judicial independence and impartiality as part of the very
4
See Follesdal 2017 for the stress test concept applied at the international level to the ECtHR.
5
Moretti et al. 2008, p 3.
6
Moretti et al. 2008, p 4.
7
Luhmann 1983, pp 100–106.
definition of a judiciary.8 Moreover, without independent judges, there is no rule of

law,9 and no judiciary as the third power in a system based on the separation of
powers.10 Especially in parliamentary democracies, where the government is
formed on the basis of and can be removed by a majority in parliament, the
incentive of the legislature and executive to keep each other in check, might be
limited. In such a system, the courts are particularly important for the enforcement
of constitutional rules and to prevent the abuse of power by the executive and
legislative powers.11
While judicial independence is at the centre of this essay, we shall not discuss
the contents of this important concept,12 but only refer to the standards expressed in
the Venice Commission’s Rule of Law Checklist,13 the Opinions of the
Consultative Council of European Judges (CCJE),14 as well as the case law of the
ECtHR. We also acknowledge that we discuss primarily European issues, leaving
aside important questions outside Europe. Moreover, we focus on the protection of
judicial independence as an important element of the rule of law. Accountability15
and competence are recognised as indispensable prerequisites for a high quality
judiciary,16 but will not be discussed in this essay.
In recent years, a number of challenges against the rule of law and judicial
independence have emerged in a number of European states, as evidenced by
numerous opinions of the Venice Commission, the CCJE and CCPE, and more
8
See inter alia European Court of Human Rights, Stafford v. the United Kingdom, 28 May 2002,
ECLI:CE:ECHR:2002:0528JUD004629599, para 78; Court of Justice of the European Union, De
Coster, 29 November 2001, ECLI:EU:C:2001:651, para 10; Court of Justice of the European
Union, El Hassani, 13 December 2017, ECLI:EU:C:2017:960, para 40.
9
Stein 2009, p 302.
10
CCJE Opinion 18 (2015), para 11; see for example Federal Constitutional Court of Germany,
Gerichtsbezirke, 10 June 1953, BVerfGE 2, 307 and Federal Constitutional Court of Germany,
Soforthilfegesetz, 9 November 1955, BVerfGE 4, 331, paras 49–50; Hillgruber 2017, Article 97,
para 1.
11
Gardbaum 2014, p 613.
12
On the contents of judicial independence, see Venice Commission, (CDL-AD(2010)004,
Report on the Independence of the Judicial System Part I: The Independence of Judges; Venice
Commission, (CDL-AD(2016)007, Rule of Law Checklist, p 20; CCJE, Magna Charta of
Judges; CCJE Opinion No 1 (2001); Kiener 2001; Jackson 2012; Di Federico 2012; Engstad et al.
2014; Gee et al. 2015.
13
Venice Commission, CDL-AD(2016)007 Rule of Law Checklist.
14
CCJE Opinions and Magna Carta. See https://www.coe.int/en/web/ccje/ccje-opinions-and-
magna-carta. Accessed 1 March 2019.
15
See on accountability only: CCJE Opinion No. 18 (2015), paras 20–33; ENCJ Report 2013–
2014.
16
See especially the projects of the ENCJ on Independence and accountability 2016, 2017:
https://www.encj.eu/articles/71. Accessed 1 March 2019.
recently by the European Commission acting under the Rule of Law Framework.
We will mention nine issues that appear particularly timely in Europe today.17
(1) Taking over constitutional courts. Constitutional courts found in many
European countries are particularly exposed for political interference in being veto
players in the political system. Veto players are in political science literature defined
as individual or collective actors that have to agree on a proposed legislative or
policy change.18 Constitutional courts are veto players due to their power to block
laws and administrative decisions that the court finds contrary to the constitution or
other superior norms (i.e. human rights treaties). From a political actor’s perspec-
tive, constitutional courts can therefore be considered an obstacle for fundamental
political and societal reforms which may run counter to constitutional norms or
international obligations. Therefore it may be politically desirable to first neutralise
the constitutional court, either by appointments or other means, in order to provide a
‘friendly’ interpretation of the constitution and other superior norms. This sequence
of events can be observed in Poland, where the ruling Law and Justice Party
adopted legislation reforming the procedures of the Constitutional Tribunal shortly
after gaining a majority in parliament and forming a government in 2015.19 The
growing tendency of undue interference in the work of constitutional courts has
been recognised by the Venice Commission by a declaration of concern in 2016.20
(2) Politicisation of the appointments of judges. Appointments of constitutional
court judges have been the subject of major political controversy not only in
Poland, but also in other EU member states like Croatia21 and Slovakia.22 Another
example is Romania, where a study concludes that the transfer of judicial
appointments and oversight from the Ministry of Justice to an independent judicial
council has led to a greater sense of security and independence among judges.23
17
For an in-depth overview of recurrent issues with examples of incidents across Europe, see the
CCJE and CCPE 2016 Report SG/Inf(2016)3rev Challenges for judicial independence and
impartiality in the member states of the Council of Europe, part D. See also the Bureau of the
Consultative Council of European Judges (CCJE) CCJE-BU(2017)11 Report on judicial inde-
pendence and impartiality in the Council of Europe member States in 2017.
18
On veto players, see Tsebelis 2002, p 2; and Tsebelis 1995, pp 289–325.
19
See CCJE/CCPE SG/Inf(2016)3rev, paras 176–178; Venice Commission CDL-AD(2016)001.
20
See the Declaration by the Venice Commission on undue interference in the work of
Constitutional Courts in its member States, adopted by the plenary on 16 March 2016, http://www.
venice.coe.int/webforms/events/?id=2193. Accessed 1 March 2019.
21
Bureau of the Consultative Council of European Judges (CCJE) CCJE-BU(2017)11 Report on
judicial independence and impartiality in the Council of Europe member States in 2017, paras 56–
61.
22
In Slovakia, seats on the Constitutional Court were vacant for three years (2014–2017) due to
the president refusing to appoint candidates elected by parliament. On the background and current
political controversies concerning judicial appointments in Slovakia, see Ovádek 2018.
23
See Johnson and Radu 2013, p 35.
(3) Taking over councils for the judiciary. A number of European states have
followed Council of Europe recommendations24 and introduced judicial councils for
the appointment of judges and other decisions concerning their careers. While the
effect of judicial councils is debated by scholars,25 the recommendations say that
decisions of appointment and promotion of judges should be taken by an independent
authority with a substantial representation of judges (ideally the majority, elected by
their peers).26 What we see in some states is a de facto politicisation of the judicial
councils. Poland has reorganised its judicial council so that its members from the
judiciary, forming a majority in the council, are to be appointed by parliament.27
Likewise in Turkey, the 2017 constitutional revision allows the President to appoint 6
out of 13 members of the judicial council, while the remaining members will be
appointed by Parliament, which due to the same constitutional amendments will most
likely be controlled by the president’s party.28 In 2012 Hungary was also criticised
for leaving too much discretion concerning judicial appointments to the politically
elected president of the National Judicial Office and thus weakening the National
Judicial Council. Much of this criticism has later been addressed.29
(4) Interference with judges’ tenure and work environment. For judges already
in position, the regulation of tenure is vital for their independence. The introduction
of age or term limits with retroactive effect, as in Hungary30 and in Poland,31 can be
used to purge the judiciary of judges appointed under previous political regimes and
to replace them with judges of their own choosing.32 Such measures may encourage
24
CCJE, Opinion n° 10 (2007); Venice Commission, CDL-AD(2010)004, paras 28–32; ENCJ,
Councils for the Judiciary Report 2010–2011 (2011).
25
See Kosar 2018.
26
CCJE, Opinion n° 10 (2007), paras 15–20.
27
See the Venice Commission CDL-AD(2017)031 Poland - Opinion on the Draft Act amending
the Act on the National Council of the Judiciary; on the Draft Act amending the Act on the
Supreme Court, proposed by the President of Poland, and on the Act on the Organisation of
Ordinary Courts, paras 19–27. There are a number of cases pending at the CJEU concerning this
question: C-487/19; C 824/18; C-625/18; C-624/18; C-585/18.
28
See the Venice Commission CDL-AD(2017)005 Turkey - Opinion on the amendments to the
Constitution adopted by the Grand National Assembly on 21 January 2017 and to be submitted to
a National Referendum on 16 April 2017, paras 114–119; see also Sanders and Von Danwitz
2018a.
29
See the Venice Commission CDL-AD(2012)020 Opinion on the Cardinal Acts on the Judiciary
that were amended following the adoption of Opinion CDL-AD(2012)001 on Hungary paras 38–
45 and 88.
30
CCJE/CCPE SG/Inf(2016)3rev, para 166.
31
Venice Commission CDL-AD(2017)031-e, paras 44–52. The CJEU was addressed in relation to
this issue: see European Court of Justice, Commission v. Poland, order of 17 December 2018, ECLI:
EU:C:2018:1021 by which the positions of the judges of the Supreme Court including the president’s
were secured. See also the Opinion of AG Tanchev of 11 April 2019 and the judgement of 20 June
2019. See for the pending case C-192/18 the Opinion of AG Tanchev of 20 June 2019.
32
A recent example is the introduction of retirement schemes for judges in Armenia after the
2018 political revolution, see Venice Commission CDL-AD 2019(030), Armenia, Joint opinion on
the amendment to the judicial code and some other laws.
loyalty to political authorities incompatible with judicial independence, and may

have a chilling effect on the remaining judges. Another measure with similar effects
can be the transfer of judges against their will, which has been reported as a
recurrent problem in Turkey.33
(5) Another avenue to interference with judicial independence goes through
judicial administration. In many countries the executive exercises a strong influ-
ence on judicial administration,34 which brings along the risk of political interfer-
ence with the judicial function. In the case of Kinský v. The Czech Republic, the
ECtHR found that an order by the Ministry of Justice requiring the courts to report
on the proceedings in a number of politically controversial cases violated the
impartiality of the court.35 In the case of Baka v. Hungary, the ECtHR found a
violation of Article 6 of the ECHR due to the absence of judicial remedies fol-
lowing the dismissal of a chief judge.36 Another example is the recent Polish
judicial reforms, where the Minister of Justice’s power to appoint, dismiss and
sanction court leaders has raised particular concerns over the internal independence
of Polish judges.37
(6) The application of disciplinary procedures against judges or even strong
public criticism undermining public trust in the judiciary may also infringe on
judicial independence.38 Political statements and criticism of on-going judicial
proceedings was a continuing factor for the ECtHR finding a violation of Article 6
of the ECHR in the above-mentioned Kinský case. Another example is Romania,
where judges claim that the other branches of government use the media to discredit
and to put pressure on how judges decide cases.39 In Poland, a foundation close to
the government allegedly initiated a campaign on billboards and the internet in
autumn 2017 in support of the controversial judicial reforms.40
(7) Non-enforcement of court decisions remains a problem in a number of
states.41 Non-enforcement of court decisions may undermine the credibility and
authority of the judiciary as well as its effectiveness. Of particular concern is
non-enforcement of court decisions on constitutional issues. In the recent case of
Poland, the government refused to publish decisions of the Constitutional Tribunal
33
CCJE/CCPE SG/Inf(2016)3rev, paras 182–183.
34
See with further references CCJE/CCPE SG/Inf(2016)3rev, paras 99–113.
35
See European Court of Human Rights, Kinský v. The Czech Republic, 9 February 2012, ECLI:
CE:ECHR:2012:0209JUD004285606, paras 95–98.
36
See European Court of Human Rights, Baka v. Hungary, 23 June 2016, ECLI:CE:
ECHR:2016:0623JUD002026112.
37
See the Venice Commission CDL-AD(2017)031 Poland - Opinion on the Draft Act amending
the Act on the National Council of the Judiciary; on the Draft Act amending the Act on the
Supreme Court, proposed by the President of Poland, and on the Act on the Organisation of
Ordinary Courts, paras 100–108.
38
See Sanders and Von Danwitz 2017b and 2018b.
39
See Johnson and Radu 2013, p 38.
40
See Sanders and Von Danwitz 2017b and 2018a.
41
See the CCJE/CCPE SG/Inf(2016)3rev, paras 206–212.
on the constitutionality of legislation concerning the Constitutional Tribunal itself,

and which it found to be an unconstitutional interference with judicial
independence.42
(8) Procedural changes negatively affecting the effectiveness of the courts. In
Poland, amendments to the law on the Constitutional Tribunal have introduced a
number of procedural measures, concerning inter alia the sequencing of cases and
increased jurisdiction for the plenary, and which according to the criticism from
both the Venice Commission and the EU Commission, may prevent the court to
function properly.43 Similar procedural measures were also hastily introduced for
the Constitutional Court of Georgia in 2016.44
(9) The independence of the prosecution service is also an important point to be
kept in mind as an important factor in a state based on the rule of law.45 As the
CCPE has pointed out, without the non-interference of the executive in the pros-
ecution service, certain criminal cases might not reach the courts at all.46 Insofar,
the Polish reform which made the Minister of Justice also the Prosecutor General, is
highly problematic.47
12.2.2 Limited Effectiveness of European Institutions

and the Need for National Responses
The serious threats depicted above raise the question of proper reactions. Given that
such problems may arise all over Europe and challenge the fundamental values
expressed in Article 2 TEU, EU responses come into view first. For the member
states of the EU there is the Article 7 TEU procedure, which was launched by the
European Commission and Parliament in 2017 against Poland after extensive dis-
cussions between the European Commission and Poland.48 In 2018, the same
42
See the Venice Commission CDL-AD(2016)026-e, para 75.
43
See the Venice Commission CDL-AD(2016)026 Poland - Opinion on the Act on the
Constitutional Tribunal, para 123, and Commission Recommendation (EU) 2016/1374 of 21 July
2016 regarding the rule of law in Poland, para 41.
44
See the Venice Commission CDL-AD(2016)017 Georgia - Opinion on the Amendments to the
Organic Law on the Constitutional Court and to the Law on Constitutional Legal Proceedings.
45
See CCJE/CCPE SG/Inf(2016)3rev, paras 118–152. See for this point also: Court of Justice of
the European Union, judgements of 27 May 2019 (OG, - C 508/18 - and PI C-82/19, ECLI:EU:
C:2019:456) and (PF - C 509/18, ECLI:EU:C:2019:457).
46
See CCPE Opinion No. 9 (2014) ‘Rome Charter’.
47
Venice Commission CDL-AD(2017)028.
48
See the press release with a link to further information, especially the Reasoned proposal under
Article 7(1) for a Council decision http://europa.eu/rapid/press-release_IP-17-5367_en.htm.
Accessed 1 March 2019.
procedure was also launched against Hungary.49 However, while the importance of
the Article 7 procedure shall not be denied, severe measures against a member state
demand unanimity among all other member states in the Council, which questions
the applicability of the procedure.50
Short of the Article 7 procedure, the EU legal toolbox does not appear well
stocked to deal with systemic threats to the rule of law in member states. The
Commission has launched an infringement procedure under Article 258 TFEU
against Poland because of the change of retirement ages of judges.51 Yet this
procedure does only address very particular issues such as a particular law regu-
lating retirement ages rather than the broader systemic threat to the rule of law in
Poland, of which the fusion of the Minister of Justice and the Prosecutor General,
the reforms of the High Judicial Council, the Ministry of Justice influence over the
selection of court presidents are just examples.52 Scheppele has suggested that the
Commission could ‘bundle’ a set of distinct complaints into systemic infringement
actions under Article 258 TFEU, but this has yet to happen.53 Other legal means,
for example an infringement procedure for violation of Article 19 TEU at the CJEU,
are in their early stages of development,54 but has been used against Poland for its
reform of the Supreme Court.55 While these recent decisions show how important
the rule of law is for the Court of Justice of the European Union as a fundamental
European value and basis for European cooperation, such decisions can - again -
only address specific cases brought to the court. Legal means by the member states
within the European context, as for example denying the execution of a European
Arrest Warrant, are also just emerging.56 A less explored but quite dramatic option,
suggested by Kochenov, is for member states under Article 259 TFEU to bring
direct actions against other member states for systemic rule of law violations.57
49
See the press release: http://www.europarl.europa.eu/news/en/press-room/20180906IPR12104/
rule-of-law-in-hungary-parliament-calls-on-the-eu-to-act. Accessed 12 October 2019.
50
See Von Bogdandy et al. 2012, pp 496–507; Greer and Williams 2009, p 474.
51
Court of Justice of the European Union, Commission v. Poland, action brought on 21
December 2017 (case pending), case C-715/17
52
See for a detailed analysis: COM(2017) 835 final Reasoned Proposal in Accordance with
Article 7(1) of the Treaty on the European Union Regarding the Rule of Law in Poland.
53
See Scheppele 2016; see also Pech and Scheppele 2017, pp 38–44.
54
See Court of Justice of the European Union, Associação Sindical dos Juízes Portugueses, 27
February 2018, ECLI:EU:C:2018:117, paras 41–43; see also Closa et al. 2014/2015, p 9 ff, and
Sanders and Von Danwitz 2018a.
55
See Court of Justice of the European Union, Commission v. Poland, preliminary order of 17
December 2018, ECLI:EU:C:2018:1021, by which the positions of the judges of the Supreme
Court including the president’s were secured. See the judgement in the same case of 20 June 2019,
ECLI:EU:C:2019:531. See for another important decision concerning the rule of law: Court of
Justice of the European Union judgement, OG -C 508/18 and PF - C 509/18, 27 May 2019, ECLI:
EU:C:2019:456.
56
Court of Justice of the European Union, LM, 25 July 2018, ECLI:EU:C:2018:586. See also:
Wendel 2019.
57
See Kochenov 2016.
Time will tell if any of these mechanisms will prove effective against systemic
threats to the rule of law.58
On the level of the Council of Europe, effective legal tools against violations of
judicial independence are even more limited. Beyond decisions of the ECtHR in
particular issues, there is not much the Council of Europe can do.59 Still, the
importance of Council of Europe institutions such as opinions of the Venice
Commission must not be underestimated. On the one hand, such opinions entail the
current standards for judicial independence. Such standards are not legally binding
for the member states. Nevertheless, they do have considerable influence on
institutions such as the European Union, the ECtHR, the CJEU, the other member
states and the opinion of an increasingly internationally interested public. While the
current development of these tools is important, their effectiveness has yet to be
proven.
The lack of effective European rule of law enforcement mechanisms means that,
for the time being, judiciaries remain a national responsibility, not only in relation
to their financial basis but also in relation to their legal and constitutional frame-
work. This suggests that attempts to strengthen and preserve judicial independence
and the rule of law should also be made at the national level. Consequently, the
stress test concept addresses the problem by introducing a tool for assessing the
national situation of judicial independence which is not currently experiencing a
rule of law crisis, for identifying possible threats and hopefully for strengthening
legal (especially constitutional), political and social safeguards. This way, the stress
test concept is an attempt to sidestep Jon Elster’s paradox: while constitutions often
are written in times of crisis, they ought to be adopted in maximally calm and
undisturbed conditions.60
As a side note, while the stress test has a primarily national focus, we suggest
that its results may also be relevant for European institutions. European institutions
can use the results to refine their own standards and also to give member states
advise on future reforms. This is in line with the interdependent way in which
European rule of law standards are developed and applied. Such standards are
drafted explicitly or implicitly on the basis of current developments in the member
states. In case of the Venice Commission, for example, specific events in Council of
Europe member states trigger a request for an opinion which leads to the application
and sometimes development of existing rule of law standards. Moreover, it is also
conceivable that European institutions can use the results of national stress tests to
question the effectiveness of their own legal tools by means of a stress test on a
European level.
58
For a pessimistic view, see Kochenov 2015.
59
The Council of Europe has denied Russia voting rights, which, however, together with the
payment cuts from Turkey, might lead to a financial crisis of the institution. See http://www.dw.
com/en/russia-withholds-payments-to-the-council-of-europe/a-42792673. Accessed 1 March
2019.
60
See Elster 1995, p 394.
12.3 The Three Stages of the Stress Test
12.3.1 Introduction: What Are the Standards and What is

the Methodology?
In this section we will discuss the standards and methodology of a stress test for
European judiciaries. The methodology we propose is partly deductive and partly
inductive. The deductive element comes from the European standards for what
should count as an independent exercise of the judicial function. The inductive
element comes from the fact that European judiciaries operate within different legal
frameworks and political contexts. This means that measures taken in order to align
national institutions with common European standards must be tailored to the
national legal and political context. Consequently, the specific measures may differ
from state to state.
Considering first the standards, we will argue that when assessing judicial
independence on the national level within the framework of a stress test, states
should adopt a European standard. As mentioned above, judicial independence is a
key component in what is sometimes called a European constitutional heritage,
though this term obfuscates the fact that for most of the 20th century many
European states were dictatorships with little judicial independence. Today how-
ever, all 47 member states of the Council of Europe have entrenched at least a
declaration of judicial independence in their constitutions.
More important still is the fact that in European public law, judicial indepen-
dence is enshrined in Article 6 of the ECHR, which as interpreted by the ECtHR
sets a binding minimum standard common for all the member states of the Council
of Europe. For the member states of the European Union, maintaining independent
judiciaries is also a legal obligation flowing from the EU treaties and the case law of
the CJEU (see Sect. 12.2.1 above). While states are sovereign and may in theory
adopt and interpret national law that does not meet the minimum standards of its
treaty obligations, membership in the ECHR means that states are no longer
completely free to organise their judiciaries unless they accept to violate their
international obligations and suffer the political and legal consequences that
follow.61
A more practical consideration for applying a European standard when assessing
national legislation is that European standards can be more developed than national
ones. This is not to say that national constitutions or the literature on rule of law
indicators cannot provide useful guidance for national rule of law questions, quite
the opposite. However, the aim of the stress test is to complement the national
discourse with a European perspective in order to avoid national biases. In addition
to Council of Europe and EU treaty obligations, states should also consider the
61
See Article 46(1) of the ECHR as interpreted in European Court of Human Rights, Scozzari
and Giunta v. Italy, 13 July 2000, ECLI:CE:ECHR:2000:0713JUD003922198. On the interrela-
tion between national constitutions and European law, see Grimm 2016, pp 271–294.
standards for judicial independence developed in the opinions and recommenda-

tions issued by the Council of Europe’s Venice Commission. While these are
non-binding advisory opinions (soft law), they do approach the issue in a more
systematic and comprehensive way than the ECtHR and national courts can do on a
case-by-case basis.
In its opinions on constitutional and legislative reforms in individual countries,
the Venice Commission relies on a wide range of sources.62 In addition to hard law
sources in the form of the ECHR and ECtHR case law and other international
treaties, it also makes use of soft law standards, such as recommendations of the
Committee of Ministers of the Council of Europe or best practices among its
member states.63 Particularly useful for the evaluation of national judiciaries are the
Commission’s so-called reference documents.64 These documents contain a com-
pressed and systematic overview of European standards and requirements per-
taining to specific issues. A particularly relevant reference document for a stress test
is the Venice Commission’s 2010 Report on the Independence of the Judicial
System.65 Similar reference documents discussing contemporary standards for
judicial independence have also been adopted by the Council of Europe’s
Consultative Council of European Judges.66
For the purpose of a stress test, it is important not to confuse standards with
implementation. Neither the standards developed by the Venice Commission, nor
the case law of the ECtHR requires states to adopt specific institutions, procedures
or models to safeguard judicial independence.67 While it might be criticised that
this leaves the standards open for multiple interpretations and is too uncertain, it
should be kept in mind that these standards cannot and do not aim at a harmo-
nization of the judiciaries in European states. The standards are output oriented:
62
For an overview of the Venice Commission’s opinions concerning the judiciary until 2015, see
CDL-PI(2015)001 Compilation of Venice Commission Opinions and Reports Concerning Courts
and Judges.
63
On the working methods of the Venice Commission, see Buquicchio and Granata-Menghini
2013, p 244.
64
The Venice Commission’s reference documents are available on the Commission’s website:
http://www.venice.coe.int/WebForms/pages/default.aspx?p=01_main_reference_
documents&lang=EN. Accessed 1 March 2019.
65
See the Venice Commission, CDL-AD(2010)004 Report on the Independence of the Judicial
System Part 1: The Independence of Judges. See also CDL-AD(2016)007 Rule of Law Checklist.
66
See in particular CCJE Opinion no. 1 (2001) on standards concerning the independence of the
judiciary and the irremovability of judges, CCJE Opinion no. 17 (2014) on the evaluation of
judges’ work, the quality of justice and respect for judicial independence and CCJE Opinion no.
18 (2015) on the position of the judiciary and its relation with the other powers of state in a modern
democracy.
67
This point has been emphasized by the ECtHR in inter alia European Court of Human Rights,
Kleyn and Others v. the Netherlands, 6 May 2003, ECLI:CE:ECHR:2003:0506JUD003934398
para 193. The Venice Commission too has repeatedly stressed the states’ margin of appreciation
when deciding on which measures to take in order to comply with European standards, see
Buqicchio and Granata-Menghini 2013, pp 244–246 and Craig 2017, pp 78–79.
They only describe the conditions for an independent exercise of the judicial
function. The states are free to adopt whatever measures required to meet these
conditions. This margin of appreciation is important to recognise as judiciaries in
Europe operate in different institutional, legal, political and cultural contexts, which
means that measures to meet the standards should be tailor-made for each national
context (see Sect. 12.3.4 below).
To illustrate the point just made, the Venice Commission considers as a standard
that ‘[a]ll decisions concerning appointment and the professional career of judges
should be based on merit applying objective criteria within the framework of the
law.’68 To meet this standard, and to prevent politically motivated appointments,
the Venice Commission recommends that states establish independent judicial
councils in which judges have a decisive influence on decisions on the appointment
and career of judges. At the same time, the Venice Commission acknowledges that
there is no single model which applies to all countries. In countries where judicial
appointments lies with the executive power or in parliament, legal culture, political
traditions or stringent qualification requirements may have a restraining effect that
allows the standard to be met without the recommended judicial council. The
introduction of councils for the judiciary may serve as an example. Such institutions
are recommended by European standards and also guaranteed in the Polish
Constitution.69 However, the German legal system do not provide for such councils
neither on the federal nor on the level of the states (Länder). Consequently, a reform
of its council will have a different effect on the Polish system than would the
introduction of the same Council in Germany.70
As the example and the discussion above show, the stress test concept presup-
poses an interdependency between the national level and the European level.
European standards of judicial independence are used to evaluate the measures
taken at the national level. Yet these standards must be considered with due regard
to the national context. Like the standards discussed above, the stress test on the
national level is output oriented. The aim of the stress test is not a European
standardisation of institutions and procedures, but rather judiciaries which, what-
ever their organisation, competences and function within each legal system, can
exercise the judicial function independently in accordance with the European
standards. The interdependency between the European and the national level is
further reflected in the three stages of the stress test, which we will discuss below.
68
See the Venice Commission CDL-AD(2010)004 Report on the Independence of the Judicial
System Part 1: The Independence of Judges, para 82(2) and paras 28–32.
69
There is a discussion whether Judicial Councils are really effective in achieving their goals of
securing judicial independence and impartiality, see Bobek and Kosar 2015.
70
This is not to say, however, that nothing could be improved on the German system. German
Judges Associations have demanded the introduction of a Judicial Council for decades. See
Sanders and Von Danwitz 2018a.
12.3.2 Stage 1: Mapping Threats to Judicial Independence
The first stage in the stress test should be to map potential threats to judicial
independence. Thus, the list of nine challenges to judicial independence in Europe
provided in Sect. 12.2.1 above can provide a useful starting point. Recent experi-
ences in Europe show that interferences with judicial independence come in a
number of forms and methods. It might also be assumed, that such interferences
evolve over time. Therefore, the list above is by no means exhaustive, but should be
constantly revised and updated.
We will argue that states should approach potential threats to judicial indepen-
dence from a European perspective. While the national context is obviously relevant
and important when considering potential threats, it can be difficult to anticipate
potential threats to judicial independence based only on national experiences since
they can be few and limited. A European perspective on the other hand will provide
stress testers with more cases and examples of threats to judicial independence. From
the cases and experiences in other countries, stress testers can identify a number of
characteristics of methods and techniques used to subvert judicial independence as
well as which institutions, rules and procedures are particularly contested.
The purpose of this first stage of the test should be to provide a broad factual basis for
testing judicial independence in the national context under hypothetical scenarios
(stage 2) and finally to propose measures to remedy weaknesses (stage 3).
12.3.3 Stage 2: Stress Testing Judiciaries
Stage two of the stress test is about envisaging certain scenarios in which the
judiciary comes under the attack of political forces trying to wrestle the courts under
their control. The test is to see whether or not, or to what degree and on which
terms, constitutional and legislative safeguards can withstand different forms of
interference.
The point of departure for a stress test should be the list of techniques and
approaches employed for subverting judicial independence based on the experi-
ences from a number of European countries and compiled in stage one. The stress
test should be undertaken by way of a careful analysis of how the political and legal
framework in the tested country would - most likely - react to the previously
identified threats. Could similar approaches be successful in other countries? Are
changes to the constitutional and legal framework needed to prevent these
approaches to be successful? Possible scenarios can be anything from subtle and
limited manipulation of judicial appointments to a full scale political takeover of the
judiciary like the one we are witnessing in Poland these days. While legal safe-
guards such as judicial review and constitutional guarantees are of the utmost
importance, such tests should also take into account the effects of the media, NGOs,
the international community and other relevant factors.
Another aspect to be kept in mind is that the scope of judicial independence is

not necessarily clear and this must be kept in mind when performing the stress
test.71 What constitutes courts of law, judges and judicial power may vary between
legal systems. If it is the exercise of the judicial function that is to be protected from
interference, the stress test must take into account that not all tasks performed by
courts and judges involve judicial adjudication. Moreover, decisions that in some
countries are considered judicial adjudication and made by judges, can in other
countries be administrative decisions. Therefore, in order to be effective, the term
‘judiciary’ should not be understood in too narrow a sense when it comes to the
stress test.72
It should also be noted that neither legal safeguards nor the political climate are
necessarily static. Therefore, the stress test should be undertaken in different stages,
taking into account the possible development of the political climate and the effects
of previous attacks against the judiciary. It is likely, that at some stage, the rule of
law in every state will crumble once the stress is high enough. The stress test should
help identify critical points where attacks on judicial independence can be initiated
easiest.
12.3.4 Stage 3: Considering Measures
The third and final stage of the stress test is to consider and propose remedies to the
flaws and weaknesses in the protection of judicial independence identified in stage
two. Before considering measures to be taken, the plausibility of potential threats to
judicial independence identified in stage two should be assessed. Not any imagined
scenario of adverse conditions to the judiciary is conceivable within a specific
national context. Thus a risk assessment involving both the probability and the
damage potential of a possible threat should be carried out before considering
concrete measures.
If the risk assessment concludes that measures should be taken to counter a
specific threat, the question is what measures are appropriate. The answer to this
question is of course context dependent, and a general discussion of measures goes
beyond the remit of this essay. Instead we will make some general remarks on
institutional (1) and non-institutional measures (2).
(1) First we do not underestimate the difficulties in responding with concrete
measures to hypothetical scenarios produced by a stress test. However, as pointed
out above, most legislation is both a reaction to past experiences and a prognosis on
future developments. Uncertainties in the effectiveness of measures or the best
71
For a discussion on the ambiguity in the concept of judicial independence, see Macdonald and
Kong 2012, pp 832–833.
72
This approach was also taken in the joint CCJE/CCPE Report SG/Inf(2016)3rev; see also
Shetreet 2011, p 17.
response to specific threats can in any case be mitigated by drawing on experiences

and best practices from other countries. For example, one of the lessons learned
from the controversial reform of the Polish Constitutional Tribunal in 2015–2016 is
that changes to procedural rules can undermine the effective functioning of a court
to the extent that it cannot function properly.73 In such a scenario, a possible
measure can be to entrench key procedural rules in the constitution, for which
amendments are usually more time consuming and requires a large majority in
parliament as for example in Hungary after the 2010 elections.
Empirical and qualitative research on courts can also provide valuable insights
into the functioning of specific mechanisms and procedures. For example, a
quantitative study by Ginsburg and Melton based on data from 192 countries
between 1960 and 2008 suggests that rules governing the selection and removal of
judges are the most important safeguards for judicial independence in authoritarian
regimes and new democracies.74 Their findings also suggest that that constitutional
safeguards for judicial independence are most effective when they establish a
political machinery of checks and balances, rather than relying solely on the nor-
mative effect of declarative rules saying judges shall be independent.75 Such
‘mechanical’ safeguards in the form of additional veto players or clear boundaries
for legislation may be particularly relevant in typical European parliamentary
systems where the majority in parliament and the executive usually belong to the
same political party or block. Turning again to the Polish judicial reforms since
2015 as an example, they have been implemented with relative speed and ease by a
scant majority in the Polish parliament working in conjunction with a President
from the same party.
Another question is on which level in the hierarchy of norms safeguards for
judicial independence are to be regulated. The answer will to a large extent depend
on where the threat comes from. If for example individual judges’ independence in
deciding cases vis-à-vis their court presidents is at risk, appropriate measures can be
regulated in law, as the law is beyond the powers of court presidents. If however the
threat comes from parliament, which in parliamentary systems is likely to act in
concert with the executive, legislative measures may be inadequate. In such a
scenario, only the constitution or other norms with more rigorous amendment
procedures (so-called ‘organic laws’) may provide adequate protection.76
73
See the reports of the Venice Commission CDL-AD(2016)001-e Opinion on amendments to
the Act of 25 June 2015 on the Constitutional Tribunal of Poland, para 88, and CDL-AD(2016)
026-e Poland - Opinion on the Act on the Constitutional Tribunal, para 123. See also the Venice
Commission CDL-AD(2016)017 Georgia - Opinion on the Amendments to the Organic Law on
the Constitutional Court and to the Law on Constitutional Legal Proceedings, para 64.
74
See Ginsburg and Melton 2014, pp 209.
75
On the distinction between the constitution as a machinery and a norm, see Troper 2001,
pp 147–162.
76
See for example the suggestions made in the Council of Europe Plan of Action on
Strengthening Judicial Independence and Impartiality, CM(2016)36 final.
As illustrated above, deciding on institutional measures raises a number of

questions. A final issue to keep in mind is the potential negative effects of measures
to protect judicial independence. Consider for example that judges are found to be
vulnerable to pressure by threats of disciplinary sanctions from the executive or the
court administration. In this case, the criteria for disciplinary sanctions can be
clarified and restricted in the law or the competence to initiate disciplinary proce-
dures can be reallocated to a different body. However, such measures must be
balanced against the equally legitimate interest in holding judges accountable for
errors and abuse of powers. The aim should be to render judges independent in the
exercise of the judicial function, not to render them unaccountable.
(2) Not all potential threats to judicial independence can be met by simply
introducing institutional mechanisms or procedures to insulate the courts from
undue interference. We will mention three types of non-institutional measures to be
considered.
First of all, there is ample research and experience to suggest that building a
‘culture of judicial independence’ in society and among political actors is at least as
important as institutional safeguards.77 One example is the above-mentioned study
by Ginsburg and Melton, which suggests that in established democracies, many
with old constitutions with relatively weak formal safeguards, judicial indepen-
dence is established by practice rather than by law alone.78 Within the context of a
stress test, it is a particular challenge to identify cultural preconditions for judicial
independence and to suggest effective measures to build and maintain such a
culture.
Second, threats to judicial independence can be met with non-institutional pre-
ventive measures by strengthening courts’ and judges’ capacity to offer off-bench
resistance to interference.79 Research on judges in hybrid regimes suggest that
judges’ social networks with political elites, organisation of judges associations and
cooperation with bar associations can help mobilise legal professionals to protect
judges against both blatant interference or the chilling effect of strong formal
powers vested in the executive. A recent example from an established democracy is
the Norwegian Judges Association’s successful interference with the Norwegian
government’s attempt in 2017 to cut short the term of its newly appointed judge on
the EFTA Court.80 Courts and judges can also seek international support. Within
the Council of Europe, constitutional courts or equivalent apex courts can request
the Venice Commission for amicus curiae opinions on comparative constitutional
77
For a discussion and overview of relevant contexts for judicial independence, see Macdonald
and Kong 2012, pp 846–852.
78
See Ginsburg and Melton 2014, pp 206–209.
79
In the following we draw on the discussion and summary of scholarship in Trochev and Ellett
2014, pp 67–91.
80
See https://www.politico.eu/article/norway-accused-of-meddling-with-judicial-independence-
per-christiansen-efta/. Accessed 1 March 2019.
and international law issues pertaining to judicial independence.81 Judges can also
rally international support by engaging in transnational networks of judges and
lawyers, though recent experiences in Hungary and Poland suggest that the inter-
national critique of judicial reforms may have limited effect.
Third, problems with illegitimate interferences in the judiciary are not always
due to a flawed institutional framework. In a study on the reforms of the justice
system in Guatemala, Rachel Sieder found that too much attention has been paid to
institutional design in order to strengthen the rule of law at the expense of
addressing underlying causes for the lack of judicial independence.82 Despite
institutional advances in appointment procedures, the judicial system in Guatemala
remained corrupt and under the influence of powerful individuals and groups,
leading to a deep mistrust of the justice system among citizens. According to
Sieder, corruption explains much of the weakness of the Guatemalan judicial
system.83 In such a scenario, strengthening disciplinary procedures and oversight
mechanisms may alleviate the problem. However, it is likely that judges will remain
susceptible to corruption without higher salaries, better training to increase their
standing and adequate protection against intimidation and threats.84
12.4 The Counter Argument: Is it Really About Law,

Or About Culture?
While we have just mentioned three types of non-institutional measures, the stress
test concept we propose in this essay presupposes that threats to judicial inde-
pendence can at least to some extent be prevented by measures improving the legal
and institutional framework. However, the way in which de jure judicial inde-
pendence, in particular constitutional guarantees, actually enhance de facto judicial
independence, is a point of debate.85
The above-mentioned study conducted by Ginsburg and Melton finds that in
established democracies, there seems to be no statistically relevant relationship
between de jure and de facto judicial independence.86 In fact, older democracies,
which may have the oldest constitutions with the weakest guarantees of judicial
independence, tend to have high levels of de facto judicial independence. Ginsburg
81
See CDL-AD(2016)015 Republic of Moldova – Amicus Curiae Brief for the Constitutional
Court on the Right of Recourse by the State against Judges, CDL-AD(2017)002 Republic of
Moldova – Amicus Curiae Brief for the Constitutional Court on the Criminal liability of judges,
and CDL-AD(2016)036 Albania – Amicus Curiae Brief for the Constitutional Court on the Law on
the Transitional Re-evaluation of Judges and Prosecutors (the Vetting Law).
82
Sieder 2004, p 111.
83
Sieder 2004, p 105.
84
See also CCJE/CCPE Report SG/Inf(2016)3rev, paras 284–288, 291–302.
85
See with references to the discussion: Ginsburg and Melton 2014, p 188.
86
Ginsburg and Melton 2014, p 205.
and Melton ponder whether such democracies might have developed alternative
mechanisms of protecting judicial independence.87 The experiences from these
countries suggest indeed that judicial independence, observance of the rule of law
and separation of powers is not only a matter of legal and constitutional guarantees,
but also of something else, possibly a matter of tradition and political culture.88
In relation to Germany, for example, Gärditz has argued that the position and
actual independence of the German Federal Constitutional Court was due to ‘in-
stitutional respect’ between the court and the other branches of the German gov-
ernment rather than the text of the German Constitution, which is quite weak
regarding formal safeguards of the Federal Constitutional Court.89 The experiences
of many established European democracies suggest that such a ‘culture of judicial
independence’ may very well be the most important factor for maintaining judi-
ciaries free from political interference.90 By ‘culture’ in this context, we mean
informal rules on acceptable behaviour and respect of other powers of state towards
the judiciary. While the basis for such a ‘culture of independence’ are yet uncertain,
it can reinforce formal legal safeguards, as well as substitute such safeguards.
Indeed, the importance of non-legal factors for maintaining the rule of law is
recognized by the Venice Commission, which does not limit its assessments to legal
factors only, but also considers contextual elements: ‘The presence (or absence) of a
shared political and legal culture within a society, and the relationship between that
culture and the legal order help to determine to what extent and at what level of
concreteness the various elements of the Rule of Law have to be explicitly
expressed in written law.’91
Nevertheless, while some – especially Western – European countries rely
heavily on such a culture of independence as safeguards for the rule of law, formal
legal safeguards are not irrelevant. Culture can change. The resilience of a culture of
judicial independence becomes particularly questionable when established political
forces are being replaced by new ones and with increasing polarisation of politics. It
would be naïve to assume that the judiciaries in established European democracies
are immune to the techniques employed to subvert judicial independence as for
example in Poland.92
87
Ginsburg and Melton 2014, p 208.
88
Ginsburg and Melton 2014, pp 194, 208. See for a similar argument in respect to the Swiss
judiciary: Meyer 2019.
89
Gärditz 2018. Gärditz suggests including more safeguards in the constitution now, which could
protect the constitutional court against an attack from a new government.
90
See for the ‘culture of judicial independence’: CCJE/CCPE, SG/Inf(2016)3rev, para 6; Sanders
and Von Danwitz 2017a. See also Shetreet 2011, who, however, sees the culture of judicial
independence as a general element of political culture. See for the importance of unwritten rules
for the functioning of democracies: Levitsky and Ziblat 2018.
91
Venice Commission, Rule of Law Checklist CDL-AD(2016)007, para 42.
92
See for example an interview with Professor Gärditz of Bonn University, Germany: https://
verfassungsblog.de/die-meisten-dinge-die-in-polen-und-ungarn-gelaufen-sind-koennten-ohne-
weiteres-hier-auch-passieren/. Accessed 1 March 2019.
One example is the above-mentioned attempt by the Norwegian government to

cut short the term of its judge on the EFTA Court by applying the national
retirement age on an international court without a fixed retirement age.93 There is a
clear resemblance to Hungary’s and Poland’s much criticised application of rules on
retirement age. Only after fierce criticism in the press and from the Norwegian
Judges Association, as well as from the EFTA Court itself, did the government back
down. In a future and different political context, such non-legal factors may not be
as effective as they are today.
In another recent example from Germany, a town denied the extreme right wing
NDP party to rent a hall of the town even though it had been ordered to do so by the
Federal Constitutional Court.94 This situation raised the fundamental problem that
the judiciary has no power to enforce its own decisions.95 The serious tone in which
the court demanded that the situation was investigated by the government of the
respective federal state (Land) showed that it was aware of the danger a disregard of
its decisions could pose. The state’s government replied that the town had not been
aware that it had no discretion to follow the court’s decision.96 However, com-
mentators have questioned this statement, hinting that the town might not have
wanted to be seen as hosting the unpopular party and arguing that not enforcing a
decision of the Constitutional Court would be an unprecedented denial of justice,
comparable to events in Turkey.97 If, in the future, the enforcement of court
decisions should become a question of political popularity more regularly, the rule
of law would be in grave danger.
In our view, Ginsburg and Melton’s finding that formal legal safeguards do not
statistically correlate with de facto judicial independence in established democracies
but only in transitional democracies and autocratic regimes, does not mean that
legal safeguards are irrelevant. Quite the opposite, it suggests that improving de
jure judicial independence is important in the event of a backsliding of democracy.
It is precisely such situations which the stress test concept is intended to anticipate.
And in these situations legal safeguards appear to be effective.
To be clear, we are not suggesting that stress tests alone can work wonders in
protecting judicial independence. Moreover, we appreciate that considerable dif-
ferences between European countries exist and that some systems might react
differently than others to threats. However, we believe that a critical public review
of the judiciary’s independence under adverse scenarios may not only improve
formal legal safeguards, but also raise the awareness in society of the importance of
independent judiciaries for modern democracies under the rule of law. This way, a
stress test may also contribute to building and maintaining a political culture which
93
See https://www.politico.eu/article/norway-accused-of-meddling-with-judicial-independence-
per-christiansen-efta. Accessed 1 March 2019.
94
Federal Constitutional Court of Germany, 24 March 2018, 1 BvQ 18/18.
95
Breyer 2010, pp 3–68.
96
Podolski 2018b.
97
Podolski 2018a, b.
serves as the necessary basis and most resilient protection of judicial independence.
In the financial sector, stress tests of financial institutions have the aim of reducing
uncertainty in the markets.98 For the judiciary too, stress tests may be employed to
increase the public’s trust in the judiciary.
12.5 Concluding Remarks
We have argued that European states should learn from the challenges to the rule of
law in different European states and critically review the constitutional and legal
framework of their own national judiciaries. This should be done by means of a
stress test which assesses the robustness of national judiciaries against the adverse
developments of the constitutional and legal framework as well as in the political
culture. Such a stress test is important for both newer and established democracies.
While the latter often rely on a culture of independence rather than on detailed
constitutional and legal safeguards (de jure judicial independence) in order to
achieve de facto judicial independence, political cultures can change.
The stress test shall use European standards and be performed in three stages.
Stage one requires a detailed analysis of the different techniques used in attacks
against the rule of law and judicial independence. We have focussed on nine
potential threats as examples ranging from the takeover of constitutional courts,
infringements of judges’ tenure to measures against court administrations and
prosecution services. On stage two, judiciaries should be stress tested by envisaging
scenarios in which the techniques analysed on stage one are applied against the
judiciary in another country. This way, weaknesses can be identified. On stage
three, institutional and non-institutional measures shall be considered by which
identified weaknesses can be improved or remedied.
Finally, we envisage a stress test for European judiciaries to be a fundamentally
comparative exercise. In a time of rising nationalism in Europe, we should not
forget that the history of European constitutionalism is not one of isolated national
developments, but one of increasing diffusion and learning across borders.99 In
addition to treaty obligations, the last decades have also seen a burgeoning
transnationalisation of constitutional law through soft law instruments.100 European
rule of law standards develop in an interdependent dialogue between member states
and European institutions. Within this tradition and emerging framework, the stress
test serves as a cross borders communicative tool of rule of law values.
98
See Geithner 2014, p 312.
99
See Elkins 2010.
100
See Bartole 2017.
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Law Journal 19(4):769–815
Sanders A, von Danwitz L (2018b) Zulässigkeit und Grenzen von Kritik an der Justiz. Justice –
Justiz – Giustizia 2018/2
Scheppele K L (2016) Enforcing the Basic Principles of EU Law through Systemic Infringement
Actions. In: Closa C, Kochenov D (eds) Reinforcing Rule of Law Oversight in the European
Union. Cambridge University Press, Cambridge, pp 105–132
Shetreet S (2011) The Culture of Judicial Independence. Brill, Leiden
Sieder R (2004) Renegotiating ‘Law and Order’: Judicial Reform and Citizen Responses in
Post-war Guatemala. In: Gargarella A et al (eds) Democratization and the Judiciary: The
Accountability Function of Courts in New Democracies. Frank Cass Publishers, London,
pp 99–116
Stein R (2009) Rule of Law: What does it Mean? Minnesota Journal of International Law 18:
293–303
Trochev A, Ellett R (2014) Judges and Their Allies. Rethinking Judicial Autonomy Through the
Prism of Off-Bench Resistance. Journal of Law and Courts 1:67–92
Troper M (2001) La Théorie du Droit, le Droit, l’État. Presses Universitaires de France, Paris
Tsebelis G (1995) Decision Making in Political Systems: Veto Players in Presidentialism,
Parliamentarism, Multicameralism and Multipartyism. British Journal of Political Science
25:289–325
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Princeton
Von Bogdandy A, Kottman M, Antpöhler C, Dickschen J, Hentrei S, Smrkolj M (2012) Reverse
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Law Review 15:17–47
Eirik Holmøyvik is Professor of Constitutional Law at the University of Bergen since 2014. Since
2016 he is the Norwegian substitute member to the Venice Commission. He has published widely
on Norwegian constitutional law and history, in particular on topics such as the separation of
powers, judicial review, transfer of sovereignty, and constitutional amendment. Recent publica-
tions include ‘On the Parliament’s competence to instruct the government with legally binding
effect’ (in Tidsskrift for rettsvitenskap, 2018, in Norwegian) and ‘Constituent Power and
Constitutionalism in 19th Century Norway’ (in Reconsidering Constitutional Formation II,
Springer, 2018).
Anne Sanders is Professor of Civil Law, Company Law, the Law of Family Businesses and
Comparative Judicial Studies at the University of Bielefeld. She regularly works as an expert for
the Council of Europe on projects concerning the quality of judges’ work and judicial
independence. At the moment, she is serving as expert for the Consultative Council of European
Judges, this time on Opinion No. 22 on the role of judicial assistants. Before becoming a professor,
Anne Sanders worked as a law clerk/judicial assistant at the Federal Constitutional Court of
Germany (Bundesverfassungsgericht).
Part II
Comments and Opinions
Chapter 13
The Strasbourg Court: Judges Without
Borders
Marc Bossuyt
Contents
13.1 Introduction...................................................................................................................... 315

13.2 The Attribution of Positive Obligations to Civil Rights ................................................ 316
13.3 The Case Law of the Court Concerning Asylum Seekers ............................................. 318
13.4 Conclusion ....................................................................................................................... 321
References .................................................................................................................................. 322
13.1 Introduction
In 2010, I wrote that ‘in the name of a dynamic and teleological interpretation, the
European Court of Human Rights progresses on the road to an ever greater
“juridisation” of European society, without caring very much what the States had in
mind when they accepted to become parties to the Convention.’1 I criticised several
judgments of the Court out of the conviction that ‘a critical analysis of the case law
of the Court may have a salutary effect on its development and may contribute to a
1
Bossuyt 2010a, p 103. On that so-called ‘dynamic’ interpretation, see Bossuyt 2015a, pp 31–56.
Intervention made at the Parliamentary Seminar on ‘The European Court of Human Rights: the
Way Forward, Achievements and Challenges’, organized by the Committee on Legal Affairs and
Human Rights of the Parliamentary Assembly of the Council of Europe in Strasbourg on 27
June 2017.
M. Bossuyt (&)
University of Antwerp, Antwerp, Belgium
e-mail: marc.bossuyt1@gmail.com

https://doi.org/10.1007/978-94-6265-359-7_13
316 M. Bossuyt
refinement of its future stands.’2 Criticising the Strasbourg Court is a risky enter-
prise because – as has been written by Paul Mahoney, the former British Judge in
the Court – ‘[those who dare to criticise the Court] are regarded almost as renegades
or traitors; they are not true human rights “patriots”’.3 I have been particularly
critical of the attribution of positive obligations to civil rights when it results in
transforming those rights into social rights, and of the case law concerning asylum
seekers.
13.2 The Attribution of Positive Obligations to Civil

Rights
Already from 1968 on, the Court has attributed positive obligations to the rights and
freedoms set forth in the Convention.4 Later on, mainly based on the ‘Protection of
property’ guaranteed by Article 1 of Protocol I to the Convention, the Court
extended its jurisdiction to social rights.5 Many of those extensions are based on the
famous dicta of the Court that ‘the Convention is a living instrument which (…)
must be interpreted in the light of the present day conditions’6 and that ‘the
Convention is intended to guarantee not rights that are theoretical or illusory but
rights that are practical and effective’.7 According to the British Law Lord
Hoffmann, it is ‘the banner under which the Strasbourg court has assumed power to
legislate what they consider to be required by “European public order”’.8
Personally, I believe that the Court exceeds the limits of its jurisdiction when it
transforms civil rights into social rights. This happens when the positive obligations
attributed to civil rights require resources not all States possess as well as choices to
2
Ibid., p 104.
3
In his Preface to Bossuyt 2016a, pp ix–x. He recognises moreover that ‘by spreading wider and
yet wider the net of human rights protection [the case-law of the Court results in] over-intervention
into the normal workings of democratic processes at national level and over-expansion of the
Convention rights and freedoms into domain not covered by the text of the treaty’.
4
In the third case before the Court: European Court of Human Rights (hereafter: ECtHR), case
‘relating to certain aspects of the laws on the use of languages in Belgium’ v. Belgium, 23 July
1968, ECLI:CE:ECHR:1968:0723JUD000147462. This despite the negative formulation of
Article 2 of Protocol I to the Convention (‘No person shall be denied the right to education’).
5
In the judgments ECtHR, Gaygusuz v. Austria, 16 September 1996, ECLI:CE:
ECHR:1996:0916JUD001737190 and ECtHR, Koua Poirrez v. France, 30 September 2003,
ECLI:CE:ECHR:2003:0930JUD004089298 and in the decision ECtHR, Stec and Others v. the
United Kingdom, 12 April 2006, ECLI:CE:ECHR:2006:0412JUD006573101. This despite the
negative formulation of the Article: ‘No one shall be deprived of his possessions (…)’. See
Bossuyt 2007 and Bossuyt 2009–2010.
6
ECtHR, Tyrer v. the United Kingdom, 25 April 1978, ECLI:CE:
ECHR:1978:0425JUD000585672.
7
ECtHR, Airey v. Ireland, 9 October 1979, ECLI:CE:ECHR:1979:1009JUD000628973.
8
Hoffmann 2009, para 27.
13 The Strasbourg Court: Judges Without Borders 317
be made and priorities to be established at the expense of other rights or other

categories of persons.9
Some aspects of the creation of new positive obligations are particularly
problematic:10
– In conformity with the separation of powers principle, it is up to political organs
to create new rules and to the Court to interpret them but not to extend its own
jurisdiction by creating such rules;
– An international court, composed overwhelmingly by non-nationals, should – in
the absence of legislative checks and balances11 – exercise its jurisdiction with
even greater restraint than domestic judges;
– In matters of economic and social rights, there are no universal human rights
standards but at best only regional standards unattainable by many countries;
– The concomitant enlargement of the jurisdictional control of the prohibition of
discrimination amounts to relinquishing a greater degree of sovereignty from the
national legislator to the international judge than is the case with civil rights;
– The reliance on EU law to define the extent of positive obligations is highly
questionable because the Court may not rely ‘on [EU] regulations and directives
to interpret the Convention with respect to the 19 States parties which are not
Members of the European Union. And the Court may neither interpret the extent
of the obligations applicable to the 28 Member States of the European Union
differently from those applicable to the 19 other States parties to the Convention.
– Finally, it is not up to the Court of Strasbourg – but to the Court of Justice in
Luxembourg – to interpret the extent of the EU regulations and directives and to
impose sanctions when they are not respected’.12
Wondering what the natural limits of the growth of the Convention beyond the
original expectations of its framers might be, Baroness Hale of Richmond of the
Supreme Court of the United Kingdom concluded, in speeches delivered in 2011,
that in any case ‘there should be some limits’.13 Unfortunately, the Court appears to
accept only self-imposed limitations to its jurisdiction.14 In my view, ‘[since t]
reaties are only binding because – and to the extent that – States have expressed
9
Bossuyt 2016a, p 142.
10
Ibid., pp 142–145.
11
Cf. the judgment of the Irish Court in X.X. v. Minister for Justice and Equality of 24 June 2016,
quoted by Judge Siofra O’Leary (Ireland) in her concurring opinion in ECtHR, J.K. and Others v.
Sweden, 23 August 2016, ECLI:CE:ECHR:2016:0823JUD005916612.
12
Bossuyt 2016a, p 145; see also Bossuyt 2015b, p 587: ‘Even when an EU directive imposes
higher requirements than the European Convention, it cannot expand the obligations under that
Convention since such requirements cannot be imposed on the 19 States parties to the Convention
which are not EU-Members and the obligations under the Convention cannot be more demanding
for EU Members than for non-EU-Members’.
13
At the opening of the judicial year of the Strasbourg Court on 28 January 2011 and at the
Barnard’s Inn Reading on 16 June 2011 (Hale 2011, p 543). See also Bossuyt 2014.
14
Bossuyt 2007, p 328.
318 M. Bossuyt
their will to be bound by them (, …) international judicial organs – even more than
national judicial organs – should exercise their competence with caution and cir-
cumspection, with restraint and reservation. To disregard, willingly and knowingly,
the intentions of the authors of a treaty amounts to a limitation of State sovereignty
without democratic legitimacy’.15
13.3 The Case Law of the Court Concerning Asylum

Seekers
Most judgments concerning asylum seekers have two specific characteristics: first,
the violations found are indirect because States parties are held responsible for
actions committed by other States, very often States that are non-parties to the
Convention; second, those violations are potential or virtual, since in most of the
cases the prohibited acts have not yet taken place but could take place if a foreigner
is compelled to leave the territory of the State party. Instead of evaluating facts that
did happen in States parties to the Convention, the Court speculates about events
that could happen in non-States parties to the Convention. In its Grand Chamber
judgment Mamatkulov and Askarov v. Turkey (4 February 2005), the Court decided
that its interim measures had become binding.16 Since then, the number of interim
measures requested by applicants increased from 112 in 2006 to 4,768 in 2010.
Before that judgment, the Court found only four indirect violations of Article 3 of
the Convention (‘The prohibition of torture’).17 Since that judgment, the Court
already found more than 120 such violations. Two of those judgments are very
important: M.S.S. and Hirsi Jamaa and Others.
In M.S.S. v. Belgium and Greece (21 January 2011), the Grand Chamber,
considering unacceptable the conditions of detention and the living conditions of an
asylum seeker18 after his transferral by Belgium to Greece under the Dublin
15
Ibid., p 330.
16
Overturning its judgment in ECtHR, Cruz Varas and Others v. Sweden, 20 March 1991, ECLI:
CE:ECHR:1991:0320JUD001557689 and its decision in ECtHR, Čonka and Others v. Belgium,
13 March 2001, ECLI:CE:ECHR:2002:0205JUD005156499; in their dissenting opinion (para 16)
on that issue, Judges Lucius Caflisch (on behalf Liechtenstein), Riza Türmen (Turkey) and
Anatoly Kovler (Russia) state that the Court ‘ceases to interpret and assumes legislative functions’.
See also Caflisch 2006 and Bossuyt 2010b, pp 14–21.
17
In its judgments ECtHR, Chahal v. the United Kingdom, 15 November 1996, ECLI:CE:
ECHR:1996:1115JUD002241493, ECtHR, Ahmed v. Austria, 17 December 1996, ECLI:CE:
ECHR:1996:1217JUD002596494, ECtHR, D. v. the United Kingdom, 2 May 1997, ECLI:CE:
ECHR:1997:0502JUD003024096, and ECtHR, Jabari v. Turkey, 11 July 2000, ECLI:CE:
ECHR:2000:0711JUD004003598.
18
Overturning its decisions ECtHR, T.I. v. the United Kingdom, 7 March 2000, ECLI:CE:
ECHR:2000:0307DEC004384498 and ECtHR, K.R.S. v. the United Kingdom, 2 December 2008,
ECLI:CE:ECHR:2008:1202DEC003273308. The applicant, an Afghan interpreter, had paid his
smuggler $12,000; on that judgment, see Bossuyt 2011, pp 582–597.
Regulation,19 condemned Greece to pay 1,000 euros to the applicant in respect of

non-pecuniary damage for a direct violation of Article 3 and Belgium 24,900 euros
for an indirect violation of the same Article. In transforming the sovereignty clause
and the humanitarian clause of the Dublin Regulation which allow a Member State
to deal with an asylum application instead of another Member State, if it wishes to
do so, into an obligation, when it does not wish to do so, the Court has given to
those clauses a meaning radically different from the one intended by its drafters.
Other developments in this judgment raising concern are:
– The continuously lowering of the threshold of Article 3: from 17 months
detention in unacceptable conditions (Dougoz v. Greece, 6 March 2001) – over
several months in other cases20 – down to four days in M.S.S.;
– The expansion of the list of ‘particularly vulnerable groups’,21 such as ‘the
Roma population’22 and ‘mentally disabled persons’,23 with asylum seekers, a
self-elected category;
– The extension of the applicability of Article 3 to the living conditions of asylum
seekers, transforming a civil right into a social right.
Despite the M.S.S. judgment, which seriously undermined the Dublin
Regulation, it took more than six years before the situation in Greece improved to
the point of allowing the transferal of asylum seekers to that country. If it is
considered that it is the application of the Dublin Regulation that led to unac-
ceptable conditions for asylum seekers in Greece,24 the asylum crisis in the
Mediterranean showed that its non-application led to unacceptable conditions on
the Western Balkan route in several of the States parties concerned by that route.
19
The Dublin [II] Regulation N°. 343/2003 of 18 February 2003 determines the EU Member
State responsible for examining an asylum application. That Regulation, which replaced the
Dublin [I] Convention of 15 June 1990, has been replaced by the Dublin [III] Regulation N°. 604/
2013 of 26 June 2013.
20
Three months in ECtHR, Tabesh v. Greece, 26 November 2009, ECLI:CE:
ECHR:2009:1126JUD000825607; three years and five months in ECtHR, Al-Agha v. Romania, 12
January 2010, ECLI:CE:ECHR:2010:0112JUD004093302; 20 months in ECtHR, Charahili v.
Turkey, 13 April 2010, ECLI:CE:ECHR:2010:0413JUD004660507; three months in ECtHR, A.A.
v. Greece, 22 July 2010, ECLI:CE:ECHR:2010:0722JUD001218608; and two months in ECtHR,
R.U. v. Greece, 7 June 2011, ECLI:CE:ECHR:2011:0607JUD000223708 (Bossuyt 2012, pp 227–
228).
21
See Bossuyt 2016b.
22
ECtHR, Oršuš and Others v. Croatia, 16 March 2010, ECLI:CE:
ECHR:2010:0316JUD001576603.
23
ECtHR, Alajos Kiss v. Hungary, 20 May 2010, ECLI:CE:ECHR:2010:0520JUD003883206.
24
When M.S.S. was transferred to Greece in 2009, Belgium (with 20.15%) ranked 5th and
Greece (with 14.15%) 8th in percentage of registered asylum seekers per million of inhabitants
(Migration magazine, Summer 2010, pp 12–13). In relation to the number of its inhabitants,
Belgium registered more asylum seekers than Greece. Even in 2015, only 11,370 (0.9%) asylum
applications - out of 1,255,640 submitted in the 28 EU Member States - were submitted in Greece
(Eurostat Newsrelease 44/2016 of 4 March 2016).
320 M. Bossuyt
The greatest pull factor on asylum seekers has been the judgment Hirsi Jamaa
and Others v. Italy (23 February 2012).25 In that judgment, the Grand Chamber
found an indirect violation of Article 3 of the Convention by Italy. It awarded
15,000 euros in respect of non-pecuniary damage to 11 Eritreans and 13 Somalis
each who had tried to reach Lampedusa by boat and were sent back to Libya by the
Italian Coastguard. As a consequence, the maritime external borders of all Member
States of the Council of Europe are wide open for anyone applying for asylum, even
on high seas. That judgment did not tend to discourage migrants to undertake a
perilous journey at the risks of their lives, nor did it contribute to diminish the
number of persons drowned in the Mediterranean.
Progressively, by referring to Article 13 of the Convention (‘The right to an
effective remedy’) combined with Article 3 of the Convention, the Court has also
become more and more demanding as far as the asylum procedure is concerned.26
Recently, in its Grand Chamber judgment F.G. v. Sweden (23 March 2016),27 the
Court developed its views on that matter in several paras (119–127) bearing the
sub-heading ‘The procedural duties in the examination of applications for asylum’.
In its Grand Chamber judgment Paposhvili v. Belgium (13 December 2016),28 the
Court recommended the establishment of ‘appropriate procedures’ to verify whe-
ther the medical care available in the countries of origin of aliens residing irregu-
larly in States parties to the Convention is sufficient and appropriate. Overturning its
25
ECtHR, Hirsi Jamaa and Others v. Italy, 23 February 2012, ECLI:CE:
ECHR:2012:0223JUD002776509.
26
Bossuyt 2016a, pp 155–157.
27
Overturning its Chamber judgment of 16 January 2014; see also the recent Grand Chamber
judgment ECtHR, J.K. and Others v. Sweden, 23 August 2016, ECLI:CE:
ECHR:2016:0823JUD005916612 (overturning the Chamber judgment of 4 June 2015); see
Bossuyt 2016c, pp 327–333.
28
The Grand Chamber overturned the Chamber judgment of 17 April 2014. The applicant, a
Georgian national who had been staying in Belgium since 25 November 1998 without having been
regularised nor expelled, had died on 7 June 2016: ‘Pendant tout son séjour en Belgique, à
l’exception des périodes durant lesquelles il se trouvait en prison, en centre fermé pour illégaux ou
à l’hôpital, il s’est rendu coupable d’un nombre impressionnant de délits de droit commun. Pour
ces délits, il a été condamné, en deux fois, à un total de 21 mois d’emprisonnement avec sursis,
sauf pour les périodes de sa détention préventive, et puis à trois ans de prison ferme. Son épouse a
été condamnée à quatre mois d’emprisonnement ferme. Il a été soigné pour différentes maladies,
notamment une leucémie lymphoïde chronique qui a connu des développements multiples, ainsi
que d’autres affectations, à savoir une tuberculose pulmonaire active, une hépatite C, une
broncho-pneumopathie chronique obstructive et un accident cardio-vasculaire. Son séjour en
Belgique occasionna des frais énormes. Outre le coût des procédures juridictionnelles (Conseil du
contentieux des étrangers, Conseil d’Etat, tribunaux correctionnels et Cour d’appel), en ce compris
l’assistance juridique à la charge de l’Etat pour toutes ces procédures, ainsi que le coût de différents
séjours en prison totalisant plus de trois ans, il y a lieu de se référer surtout au coût des multiples
consultations médicales et de son hospitalisation fréquente accompagnée de thérapies et de
médicaments extrêmement onéreux.’ (Bossuyt 2017, pp 659–660).
Grand Chamber judgment N. v. the United Kingdom (27 May 2008),29 the Court
extended in Paposhvili the applicability of Article 3 by prohibiting the removal of
seriously ill aliens when, on account of the absence of appropriate treatment in the
receiving country, they face a risk of an irreversible decline in their state of health,
without requiring an imminent risk of dying.
Despite the absence of any right to asylum in the Convention, the Court acts as if
it were a legislature competent to determine as well an asylum procedure as a
medical asylum procedure in 47 Member States of the Council of Europe. Even
when the asylum seeker has not invoked Article 3 of the Convention before the
national authorities, they have to examine a possible violation of that Article ‘of
their own motion’.30 In doing so, the Court behaves as a self-appointed ‘Asylum
Court’, without giving due attention to the differences, as far as the framework, the
conditions and the procedure are concerned, between refugee determination and
protection against a violation of Article 3 of the Convention.
Despite its own denials,31 the Court frequently acts as ‘a Court of fourth
instance’32 by substituting its own appreciation to that of the specialised national
authorities. When the Court takes into account new elements which have not been
brought before those national authorities, it even acts as the first instance without
giving them the opportunity to examine those elements and without having their
level of specialisation. The Court should do what it says: ‘the Court does not itself
examine the actual asylum applications or verify how the States honour their
obligations under the Geneva Convention relating to the status of refugees [or under
EU directives]’.33 Therefore, it should be more hesitant to substitute its own
assessment of the facts for that of the domestic courts and it should leave the
assessment of the credibility of the asylum seekers to the specialised national
authorities who had the opportunity to see and to hear them.
13.4 Conclusion
In conclusion: the judgments mentioned above are typical of the present tendency
of ‘systematically favouring interpretations benefitting to the applicants, while
overlooking too easily the far reaching implications [those] judgments may have for
the society as a whole. Continuously tilting the balance in favour of individual
applicants, without taking fully into account the difficulties democratic
29
On that judgment, see Bossuyt 2010a, pp 140–143.
30
ECtHR, F.G. v. Sweden, 23 March 2016, ECLI:CE:ECHR:2016:0323JUD004361111, paras
126–127.
31
See ibid., para 117.
32
At the Izmir Conference in April 2011, the Member States of the Council of Europe had
recalled that ‘the Court is not an immigration Appeals Tribunal or a Court of fourth instance’.
33
See supra, note 31.
322 M. Bossuyt
governments experience in coping with the challenges of our present times,

divorces human rights protection too much from the pressing needs of the realities
of today’s world.’34
References
Bossuyt M (2007) Should the Strasbourg Court exercise more self-restraint? On the extension of
the jurisdiction of the European Court of Human Rights to social security regulations. Human
Rights Law Journal 28:321–332
Bossuyt M (2009–2010) L’extension de la compétence de la Cour de Strasbourg aux prestations
sociales: sur l’interprétation de l’article 14 de la Convention combiné avec l’article 1er du
Protocole n° 1 dans les affaires Gaygusuz, Koua Poirrez, Stec et autres, Burden et Andrejeva.
Revue de droit monégasque 10:91–130
Bossuyt M (2010) Judges on Thin Ice: the European Court on Human Rights and the Treatment of
Asylum Seekers. Inter-American and European Human Rights Journal 3(1):3–48
Bossuyt M (2010) Strasbourg et les demandeurs d’asile: des juges sur un terrain glissant. Bruylant,
Brussels
Bossuyt M (2011) Belgium condemned for inhuman or degrading treatment due to violations by
Greece of EU Asylum Law, M.S.S. v. Belgium and Greece, Grand Chamber, European Court
of Human Rights, 21 January 2011. European Human Rights Law Review 5:582–597
Bossuyt M (2012) The Court of Strasbourg acting as an Asylum Court. European Constitutional
Law Review 8(2):203–245
Bossuyt M (2014) Des limites à la juridiction de la Cour de Strasbourg? In L’homme et le droit (en
hommage au Professeur Jean-François Flauss). Pedone, Paris, pp 117–127
Bossuyt M (2015) Judicial Activism in Strasbourg. In: Wellens K (ed) International Law in Silver
Perspective: Challenges Ahead. Brill-Nijhoff, Leiden, pp 31–56
Bossuyt M (2015) The European Union Confronted with an Asylum Crisis in the Mediterranean:
Reflections on Refugees and Human Rights Issues. European Journal of Human Rights 32
(5):581–605
Bossuyt M (2016) Categorical Rights and Vulnerable Groups: Moving Away from the Universal
Human Being. The George Washington International Law Review 48:717–742
Bossuyt M (2016) Unduly Harsh Treatment of Sweden in Asylum Cases in Strasbourg? Human
Rights Law Journal 36:323–334
Bossuyt M (2016) International Human Rights Protection: Balanced, Critical, Realistic.
Intersentia, Antwerp/Cambridge
Bossuyt M (2017) La Cour de Strasbourg souhaite que les Etats parties instaurent une procédure
d’‘asile médical’. Revue trimestrielle des droits de l’homme 111:651–668
Caflisch L (2006) Provisional Measures in the International Protection of Human Rights: The
Mamatkulov Case. In: Dupuy P M et al (eds) Common Values in International Law: Essays in
Honour of Christian Tomuschat. Engel, Kehl-am-Rhein, pp 493–515
Hale B (2011) Common Law and Convention Law: The Limits to Interpretation. European Human
Rights Law Review 5:534–543
Hoffmann L (2009) The Universality of Human Rights (Judicial Studies Board Annual Lecture, 19
March 2009). Law Quarterly Review 125:416–432
34
Bossuyt 2016a, p xii.
Marc Bossuyt is Emeritus President of the Constitutional Court of Belgium, Emeritus Professor of
the University of Antwerp, Honorary Commissioner-General for Refugees and Stateless Persons,
former Chairperson of the UN Commission on Human Rights and of the UN Sub-Commission on
the Promotion and the Protection of Human Rights, member of the UN Committee on the
Elimination of Racial Discrimination, and author of International Human Rights Protection:
Balanced, Critical, Realistic (Intersentia, 2016).
Chapter 14
The Strasbourg Court: Acting Within
Its Limits
Egbert Myjer
Contents
14.1 Introduction...................................................................................................................... 325

14.2 The Mandate of the Court............................................................................................... 326
14.3 The Case Law of the Court ............................................................................................ 330
14.4 Conclusion ....................................................................................................................... 332
Reference.................................................................................................................................... 332
14.1 Introduction
It is always a mixed pleasure to take note of the points of view of my dear and
learned friend and former colleague Marc Bossuyt. In the last 10 years, he started a
remarkable and sometimes rather courageous crusade against the European Court of
Human Rights, which, in his opinion, should exercise more self-restraint and should
not act as a European Asylum Court. In the liber amicorum for Marc Bossuyt, I had
the opportunity to contradict him in writing: The European Court of Human Rights
is no European Asylum Court.1 In this short reaction to Marc Bossuyt, The
Strasbourg Court: Judges Without Borders, I will try to elaborate a little bit further
that the Strasbourg Court is (almost always) acting within its limits.
1
Myjer 2013.
E. Myjer (&)
Leiden, The Netherlands
e-mail: myjer@wxs.nl

https://doi.org/10.1007/978-94-6265-359-7_14
326 E. Myjer
14.2 The Mandate of the Court
The Court has been set up ‘to ensure the observance of the engagements undertaken
by the High Contracting Parties’ (HCP). The jurisdiction of the Court extends to all
matters concerning the interpretation and application of the Convention, which are
referred to it (Article 32). That is the basic task of the Court, as laid down in the
Convention and acknowledged ever since by the HCP, through additional proto-
cols, official Resolutions and Declarations and through the activities of the
Committee of Ministers of the Council of Europe when exercising its supervisory
task of the execution of judgments (Article 46).
It goes without saying that the European Court should not interpret the ‘origi-
nalist’ way, as was promoted in the US Supreme Court by the late Justice Antonin
Scalia. Scalia defined that approach as follows: ‘The Constitution that I interpret
and apply is not living but dead, or as I prefer to call it, enduring. It means today not
what current society, much less the court, thinks it ought to mean, but what it meant
when it was adopted.’2 The Court has always emphasised (and this was never
criticised by the HCP in doing so) that the Convention is a living instrument, which
must be interpreted in the light of present day conditions.
That does not mean however that the Court has a blank permission to interpret
the Convention as widely as it seems fit. In interpreting the Convention, the Court
is, for instance, bound by the general interpretation rules, as laid down in the
Vienna Convention on the Law of Treaties (1969). I quote the most relevant pro-
visions of Section 3 (Interpretation of Treaties) of the Vienna Convention:
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition
to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in con-
nexion with the conclusion of the treaty;
(b) Any instrument, which was made by one or more parties in connexion with the con-
clusion of the treaty and accepted by the other parties as an instrument related to the
treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of the treaty
or the application of its provisions;
(b) Any subsequent practice in the application of the treaty, which establishes the agree-
ment of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
2
See https://www.npr.org/2016/02/15/466783882/supreme-court-justice-antonin-scalia-was-
know-for-his-acerbic-dissidents (transcript of recording). Accessed 1 March 2019.
14 The Strasbourg Court: Acting Within Its Limits 327
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the meaning when the inter-
pretation according to article 31:
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable.3
In its judgment of 12 November 2008 in the case of Demir and Baykara v.

Turkey, the Court gave an interesting summing-up of what the Vienna Convention
may mean for the practice of interpreting the Convention:
3. The practice of interpreting Convention provisions in the light of other international
texts and instruments
(…)
65. In order to determine the meaning of the terms and phrases used in the Convention, the
Court is guided mainly by the rules of interpretation provided for in Articles 31 to 33 of the
Vienna Convention (…). In accordance with the Vienna Convention, the Court is required
to ascertain the ordinary meaning to be given to the words in their context and in the light of
the object and purpose of the provision from which they are drawn (…). Recourse may also
be had to supplementary means of interpretation, either to confirm a meaning determined in
accordance with the above steps, or to establish the meaning where it would otherwise be
ambiguous, obscure, or manifestly absurd or unreasonable (…).
66. Since the Convention is first and foremost a system for the protection of human rights,
the Court must interpret and apply it in a manner which renders its rights practical and
effective, not theoretical and illusory. The Convention must also be read as a whole, and
interpreted in such a way as to promote internal consistency and harmony between its
various provisions (…).
67. In addition, the Court has never considered the provisions of the Convention as the sole
framework of reference for the interpretation of the rights and freedoms enshrined therein.
On the contrary, it must also take into account any relevant rules and principles of inter-
national law applicable in relations between the Contracting Parties (…).
68. The Court further observes that it has always referred to the “living” nature of the
Convention, which must be interpreted in the light of present-day conditions, and that it has
taken account of evolving norms of national and international law in its interpretation of
Convention provisions (…)’4
It then continued at length on the diversity of international texts and instruments

used (in the past) for the interpretation of the Convention and concluded:
85. The Court, in defining the meaning of terms and notions in the text of the Convention,
can and must take into account elements of international law other than the Convention, the
interpretation of such elements by competent organs, and the practice of European States
3
Vienna Convention on the Law of Treaties (1969), available at https://treaties.un.org/doc/
publication/unts/volume%201155/volume-1155-i-18232-english.pdf. Accessed 1 March 2019.
4
European Court of Human Rights, Demir and Baykara v. Turkey, 12 November 2008, ECLI:
CE:ECHR:2008:1112JUD003450397, paras 65–68.
328 E. Myjer
reflecting their common values. The consensus emerging from specialised international
instruments and from the practice of Contracting States may constitute a relevant consid-
eration for the Court when it interprets the provisions of the Convention in specific cases.
86. In this context, it is not necessary for the respondent State to have ratified the entire
collection of instruments that are applicable in respect of the precise subject matter of the
case concerned. It will be sufficient for the Court that the relevant international instruments
denote a continuous evolution in the norms and principles applied in international law or in
the domestic law of the majority of member States of the Council of Europe and show, in a
precise area, that there is common ground in modern societies (...)5
Since 2010 the HCP have organised several high level conferences on the future
of the Convention system. In the Declarations of Interlaken (2010), Izmir (2011),
Brighton (2012), Brussels (2015) and Copenhagen (2018) the HCP have always
emphasised the importance of the case law of the Court. They have never criticised
the Court for interpreting the Convention ‘without borders’. In the latest
Declaration (2018), the HCP declared for instance:
1. The States Parties to the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) reaffirm their deep and abiding commitment to
the Convention, and to the fulfilment of their obligation under the Convention to secure to
everyone within their jurisdiction the rights and freedoms defined in the Convention. They
also reaffirm their strong attachment to the right of individual application to the European
Court of Human Rights (“the Court”) as a cornerstone of the system for protecting the
rights and freedoms set forth in the Convention.
2. The Convention system has made an extraordinary contribution to the protection and
promotion of human rights and the rule of law in Europe since its establishment and today it
plays a central role in maintaining democratic security and improving good governance
across the Continent.
3. The reform process, initiated in Interlaken in 2010 and continued through further High
Level Conferences in Izmir, Brighton and Brussels, has provided an important opportunity
to set the future direction of the Convention system and ensure its viability. The States
Parties have underlined the need to secure an effective, focused and balanced Convention
system, where they effectively implement the Convention at national level, and where the
Court can focus its efforts on identifying serious or widespread violations, systemic and
structural problems, and important questions of interpretation and application of the
Convention.
4. The reform process has been a positive exercise that has led to significant developments
in the Convention system. Important results have been achieved, in particular by addressing
the need for more effective national implementation, improving the efficiency of the Court
and strengthening subsidiarity. Nonetheless, the Convention system still faces challenges.
The States Parties remain committed to reviewing the effectiveness of the Convention
system and taking all necessary steps to ensure its effective functioning, including by
ensuring adequate funding.
(…)
European supervision – the role of the Court
26. The Court provides a safeguard for violations that have not been remedied at national
level and authoritatively interprets the Convention in accordance with relevant norms and
5
Ibid., paras 85–86.
principles of public international law, and, in particular, in the light of the Vienna
Convention on the Law of Treaties, giving appropriate consideration to present-day
conditions.
27. The quality and in particular the clarity and consistency of the Court’s judgments are
important for the authority and effectiveness of the Convention system. They provide a
framework for national authorities to effectively apply and enforce Convention standards at
domestic level.
28. The principle of subsidiarity, which continues to develop and evolve in the Court’s
jurisprudence, guides the way in which the Court conducts its review.
a. The Court, acting as a safeguard for individuals whose rights and freedoms are not
secured at the national level, may deal with a case only after all domestic remedies have
been exhausted. It does not act as a court of fourth instance.
b. The jurisprudence of the Court makes clear that States Parties enjoy a margin of
appreciation in how they apply and implement the Convention, depending on the
circumstances of the case and the rights and freedoms engaged. This reflects that the
Convention system is subsidiary to the safeguarding of human rights at national level
and that national authorities are in principle better placed than an international court to
evaluate local needs and conditions.
c. The Court’s jurisprudence on the margin of appreciation recognises that in applying
certain Convention provisions, such as Articles 8–11, there may be a range of different
but legitimate solutions, which could each be compatible with the Convention
depending on the context. This may be relevant when assessing the proportionality of
measures restricting the exercise of rights or freedoms under the Convention. Where a
balancing exercise has been undertaken at the national level in conformity with the
criteria laid down in the Court’s jurisprudence, the Court has generally indicated that it
will not substitute its own assessment for that of the domestic courts, unless there are
strong reasons for doing so.
d. The margin of appreciation goes hand in hand with supervision under the Convention
system, and the decision as to whether there has been a violation of the Convention
ultimately rests with the Court. The Conference therefore:
29. Welcomes efforts taken by the Court to enhance the clarity and consistency of its
judgments.
30. Appreciates the Court’s efforts to ensure that the interpretation of the Convention
proceeds in a careful and balanced manner.
31. Welcomes the further development of the principle of subsidiarity and the doctrine of
the margin of appreciation by the Court in its jurisprudence.
32. Welcomes the Court’s continued strict and consistent application of the criteria con-
cerning admissibility and jurisdiction, including by requiring applicants to be more diligent
in raising their Convention complaints domestically, and making full use of the opportunity
to declare applications inadmissible where applicants have not suffered a significant dis-
advantage (…).6
The only action the HCP have undertaken so far to emphasise the subsidiary
character of the Court’s supervision and the importance of the margin of appreci-
ation was to propose a new Protocol 15, Article 1 of which reads:
6
Council of Europe, ‘Copenhagen Declaration’, available at https://rm.coe.int/copenhagen-
declaration/16807b915c. Accessed 1 March 2019.
330 E. Myjer
Article 1
At the end of the preamble to the Convention, a new recital shall be added, which shall read
as follows:
Affirming that the High Contracting Parties, in accordance with the principle of sub-
sidiarity, have the primary responsibility to secure the rights and freedoms defined in this
Convention and the Protocols thereto, and that in doing so they enjoy a margin of
appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights
established by this Convention,7
It will enter into force as soon as all the States Parties to the Convention have
signed and ratified it.
One other aspect must be mentioned. The judges of the European Court are
elected by the Parliamentary Assembly of the Council of Europe from a list of
candidates nominated by the HCP (Article 22). So it is the HCP which nominates. If
the HCP indeed nominates a list of three candidates, which meet the criteria for
office as laid down in Article 21 (the judges shall be of high moral character and
must either possess the qualifications required for appointment to high judicial
office or be jurisconsults of recognised competence) but all of three are well known
human rights activists who have no judicial experience whatsoever, the HCP must
not afterwards complain that the newly elected judge is judging in a too activist
way. Or to put it another way: the HCP have a responsibility to indeed nominate the
candidates who are best suited for this international job. To my knowledge, no HCP
has ever afterwards complained that the candidate they nominated themselves was
not meeting the standards. Having said that: what has regrettably happened is that
some judges elected in respect of some former communist countries, did indeed
meet serious difficulties in their own country after they had finished their term.
14.3 The Case Law of the Court
Statistics reveal that in more than 94% of the cases, the application will be declared
inadmissible. Of the total number of applications submitted and decided between
1949 and 2018 (841,371), 792,438 were declared inadmissible. Requests for
interim measures (Rule 39 Rules of Court) are strictly scrutinised: in 2018, for
instance the total number of decisions on interim measures (1,540) decreased by
34% compared with 2016 (2,286). The Court granted requests for interim measures
in 143 cases (an increase of 14% compared to 129 in 2016) and refused them in 486
cases (54% less than the 1,103 in 2016). The remainder fell outside the scope of
Rule 39 of the Rules of Court. 70% of the requests granted concern expulsion or
immigration cases. In practice, interim measures are applied only in a limited
number of areas and most concern expulsion and extradition. They usually consist
7
Council of Europe, ‘Protocol No. 15 amending the Convention on the Protection of Human
Rights and Fundamental Freedoms’, available at https://www.echr.coe.int/Documents/Protocol_
15_ENG.pdf. Accessed 1 March 2019.
in a suspension of the applicant’s expulsion or extradition for as long as the

application is being examined. The most typical cases are those where, if the
expulsion or extradition takes place, the applicants would fear for their lives (thus
engaging Article 2 of the Convention, the right to life) or would face ill-treatment
prohibited by Article 3 (prohibition of torture or inhuman or degrading treatment)
of the Convention. So in fact interim measures are mainly applied to prevent
irreparable harm to the applicants’ life or limbs. More exceptionally, such measures
may be indicated in response to certain requests concerning the right to a fair trial
(Article 6 of the Convention) and the right to respect for private and family life
(Article 8 of the Convention). In the Court’s case law as it currently stands, Rule 39
of the Rules of Court is not applied, for example, in the following cases: to prevent
the imminent demolition of property, imminent insolvency, or the enforcement of
an obligation to do military service; to obtain the release of an applicant who is in
prison pending the Court’s decision as to the fairness of the proceedings; to ensure
the holding of a referendum; or to prevent the dissolution of a political party.
Indeed the Court has enriched its case law by also formulating procedural and
positive obligations. But they are always fully connected to the right at stake.
As far as positive obligations are concerned, the Court has for instance ruled that
Article 2(1) enjoins the State not only to refrain from the intentional and unlawful
taking of life but also to take appropriate steps to safeguard the lives of those within
its jurisdiction. In broad terms, this positive obligation has two aspects: (a) the duty
to provide a regulatory framework; and (b) the obligation to take preventive
operational measures.
The procedural obligations of the State were first formulated in the context of the
use of lethal force by State agents where the Court held that a general legal pro-
hibition of arbitrary killing by the agents of the State would be ineffective, in
practice, if there existed no procedure for reviewing the lawfulness of the use of
lethal force by State authorities. The Court underlined that the obligation to protect
the right to life under this provision, read in conjunction with the State’s general
duty under Article 1 of the Convention to ‘secure to everyone within their juris-
diction the rights and freedoms defined in the Convention’, requires by implication
that there should be some form of effective official investigation when individuals
have been killed as a result of the use of force by, inter alia, agents of the State.
Since then the Court has accepted that this obligation arises in a variety of situations
where an individual has sustained life-threatening injuries, died or has disappeared
in violent or suspicious circumstances, irrespective of whether those allegedly
responsible are State agents or private persons. This stems from Article 2, which
imposes a duty on that State to secure the right to life by putting in place effective
criminal-law provisions to deter the commission of offences against the person,
backed up by law-enforcement machinery for the prevention, suppression and
punishment of breaches of such provisions. This obligation requires by implication
that there should be some form of effective official investigation when there is
reason to believe that an individual has sustained life-threatening injuries in sus-
picious circumstances, even where the presumed perpetrator of the fatal attack is
not a State agent. The Court has further extended the scope of this obligation to
332 E. Myjer
circumstances where an individual has sustained life-threatening injuries or where

lives have been lost in circumstances potentially engaging the responsibility of the
State due to alleged negligence. In such cases, the Court has held that Article 2 of
the Convention must also be considered to require the State to have in place an
effective independent judicial system so as to secure legal means capable of
establishing the facts, holding accountable those at fault and providing appropriate
redress to the victim. Similar positive obligations have been formulated in respect
of other provisions.
One final remark: especially in Grand Chamber cases, it is clear that the Court is
not always unanimous. There are many judgments where the Court is hopelessly
divided in its interpretation. That proves that not all cases are clear-cut. And from
my own experience I can assure the reader that discussions during deliberations can
be very heavy. Still, once there is a majority judgment of the Grand Chamber that
will be the standard case law for the near future.
14.4 Conclusion
To conclude: the task of the Court is to interpret and apply the Convention. In doing
so, the Court is bound by general interpretation rules as laid down in the Vienna
Convention. So far, the HCP in their official statements have always emphasised the
importance of the subsidiarity principle and the need to keep a margin of appre-
ciation. They made it once and again clear that the Court provides a safeguard for
violations that have not been remedied at national level and authoritatively inter-
prets the Convention in accordance with relevant norms and principles of public
international law, and, in particular, in the light of the Vienna Convention on the
Law of Treaties, giving appropriate consideration to present-day conditions. In
doing so, the HCP also made it clear that the Court should not use the originalist
approach. As far as migrant cases are concerned: when life and limb are at stake, the
Court has a duty to protect that person within its jurisdiction. And where sub-
stantive provisions can better be protected by formulating general positive obli-
gations or procedural obligations, the Court acts within its limits to do so. After all,
the Court deals with human rights and fundamental freedoms.
Reference
Myjer E (2013) The European Court of Human Rights is no European Asylum Court. In: Alen A
et al (eds) Liberae Cogitationes: Liber Amicorum Marc Bossuyt. Intersentia, Cambridge,
Antwerp/Portland, pp 419–444
Egbert Myjer is a former judge of the European Court of Human Rights, elected in respect of The
Netherlands. He studied law at Utrecht University. He was an assistant professor in criminal law at
Leiden University, judge and vice-president of the Zutphen District Court, advocate-general at the
The Hague Court of Appeal, chief advocate-general at the Amsterdam Court of Appeal and
professor of criminal law and human rights at VU University Amsterdam. He was (founding)
editor of the NJCM-bulletin (Netherlands Review of Human Rights) and wrote books, articles,
reports and annotations on criminal law and human rights.

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European Yearbook of Constitutional Law Volume 1

Ernst Hirsch Ballin

More information about this series at http://www.springer.com/series/16431

ISSN 2405-6111 ISSN 2405-612X (electronic)

© T.M.C. ASSER PRESS and the authors 2020

This is the inaugural issue of the European Yearbook of Constitutional Law

Tilburg, The Netherlands Ernst Hirsch Ballin

9 Judicial Independence and Accountability in the Council

Part II Comments and Opinions

About the Editors

Ernst Hirsch Ballin is Distinguished University Professor at Tilburg University

Maarten Stremler is Researcher and Lecturer in Constitutional Law in the

Geerten Boogaard Leiden University, Leiden, The Netherlands

1.1 Judicial Power and Judicial Independence ....................................................................... 3

1.1 Judicial Power and Judicial Independence

E. Hirsch Ballin (&) G. van der Schyff M. Stremler

© T.M.C. ASSER PRESS and the authors 2020 3

post-conflict societies, or processes of integration and constitutionalization such as

instability with regard to fundamental characteristics, such as judicial indepen-

1.2 Judges in a Democratic Society

A constitutional democracy is the organizational framework for opinion-forming

1.3 Varieties of Safeguards and Limits

Constitutional jurisdiction, whether as a separate discipline or otherwise, occupies a

entrenchment of its existence, competences and composition and by its normative,

1.4 Deliberative Constitutionalism

Achterberg N (1969) Antinomien verfassunggestaltender Grundentscheidungen. Der Staat 8:159–

Abstract The independence of a constitutional court depends on the independence

© T.M.C. ASSER PRESS and the authors 2020 13

ditures, regardless of the consequences on its functioning. Secondly, the House of

In a Rechtsstaat (état de droit, a democracy governed by the rule of law), the

2.2 The Independence of a Constitutional Court

2.2.1 Threatening the Independence of Constitutional

2.2.2 The Rule of Law and the Independence

The abovementioned examples show that the independence of a constitutional court

composition of a constitutional court, illegally appointing new constitutional jud-

framework to guarantee the independence of constitutional courts. Therefore, in this

2.3 The Institutional Independence of the Belgian

Having in mind the possible threats to the independence of a constitutional court, I

2.3.1 The Conditions for Independence of the Institution

2.3.1.1 The Legal Foundations of the Belgian Constitutional Court

Having in mind the abovementioned examples of threats to the independence of

2.3.1.2 The Autonomy of the Belgian Constitutional Court

Next to entrenched legislation that safeguards the independence of the constitutional

The Belgian Constitutional Court enjoys a certain normative autonomy.

The power of the Chamber of Representatives to approve the funding of the

Finally, a serious change of the ﬁnancial autonomy is only possible by amending

2.4 The Independence of the Judges

The independence of an institution is not only determined by the entrenchment of

2.4.1 The Appointment Procedure

The appointment procedure of a constitutional judge is a very important factor to

countries, the Venice Committee has distinguished three kinds of nominations:58

conﬁrmation of its judges by Parliament is a crucial element in the balance of power

Taking this recommendation into consideration, in Belgium, it is possible to ask

No hearings are organized if the Senate proposes members of parliament as judges

2.4.2 The Mandate and its Incompatibilities

2.4.3 Discipline and Dismissal

2.5 No Dissenting Opinions by Constitutional Judges

Henneuse R, Rosoux G (2006) L’indépendance des juges constitutionnels en Belgique: aspects

Abstract This chapter examines the legitimation of the German Federal