CONCURRING OPINION OF JUDGE SICILIANOS

(Translation)

1. I share both the conclusion and the reasoning in the present judgment. However, given this case ’ s more general importance from the perspective of the independence of the judiciary, I should like to make the following observations with regard, more specifically, to the scope of this principle under Article 6 § 1 of the Convention.

Judicial independence in the Court ’ s case-law under Article 6 § 1 of the Convention: the right of persons involved in court proceedings to an independent judge

2. It is well known that the Court has repeatedly insisted, for more than thirty years, that a court must be independent both of the parties and of the executive. The judgment in Campbell and Fell v. the United Kingdom (28 June 1984, § 78, Series A no. 80) contains the now classic wording:

“In determining whether a body can be considered to be ‘ independent ’ – notably of the executive and of the parties to the case (see, inter alia , the Le Compte, Van Leuven and De Meyere [ v. Belgium ] judgment of 23 June 1981, Series A no. 43, § 55) –, the Court has had regard to the manner of appointment of its members and the duration of their term of office (ibid., § 57), the existence of guarantees against outside pressures (see the Piersack [ v. Belgium ] judgment of 1 October 1982, Series A no. 53, § 27) and the question whether the body presents an appearance of independence (see the Delcourt [ v. Belgium ] judgment of 17 January 1970, Series A no. 11, § 31).”

The Court has added in this regard that what is at stake is “the confidence which such tribunals must inspire in the public” (see Clarke v. the United Kingdom (dec.), no. 23695/02 , ECHR 2005 ‑ X).

3. Similarly, the Court has also emphasised the judiciary ’ s necessary independence from the legislative. Thus, in Stran Greek Refineries and Stratis Andreadis v. Greece (9 December 1994, § 49, Series A no. 301 ‑ B), it noted in general terms that

“[t]he principle of the rule of law and the notion of fair trial enshrined in Article 6 ... preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute”.

The formula in question, frequently repeated since (see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom , 23 October 1997, § 112, Reports of Judgments and Decisions 1997 ‑ VII; Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 9 others, § 57, ECHR 1999 ‑ VII; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 126, ECHR 2006 ‑ V ; and Tarbuk v. Croatia , no. 31360/10 , § 49, 11 December 2012 ), conveys the idea of the separation of powers.

4. The principle of the independence of the judiciary is not simply a matter of its relations with the executive and the legislative branches. It also concerns judicial independence within the system of the administration of justice itself. Judges must be free, in their individual capacity, not only from any external influence, but also from any “inside” influence. This “internal judicial independence” implies that judges do not receive instructions and are not subjected to pressure from their colleagues or from persons exercising administrative responsibilities in a court, such as the president of a court or the president of a court ’ s section (see Parlov-Tkalčić v. Croatia , no. 24810/06 , § 86, 22 December 2009, and Agrokompleks v. Ukraine , no. 23465/03 , § 137, 6 October 2011 ; see also Moiseyev v. Russia , no. 62936/00, § 182, 9 October 2008). The absence of sufficient guarantees ensuring judges ’ independence within the judicial branch, and especially vis-à-vis their superiors within the judicial hierarchy, could lead the Court to conclude that an applicant ’ s doubts as to the independence and impartiality of a court may be said to have been objectively justified (see Parlov-Tkalčić , cited above, § 86; Agrokompleks , cited above, § 137; Moiseyev , cited above, § 184; and Daktaras v. Lithuania , no. 42095/98, §§ 36 and 38, ECHR 2000 ‑ X).

5. Thus, the Court ’ s case-law has addressed several aspects of the principle of judicial independence: independence vis-à-vis the parties, independence from the executive and legislative powers, and internal judicial independence. However, all these aspects of judicial independence have been assessed from the perspective of the right of “everyone ... to a fair and public hearing ... by an independent and impartial tribunal established by law ...”. In other words, the letter of Article 6 § 1 of the Convention has led the Court to analyse the issue of judicial independence from the perspective of the rights of persons involved in court proceedings and not from that of judges ’ subjective right to have their own independence guaranteed and respected by the State.

6. The present case lent itself, a priori , to an examination of this latter aspect. However, under Article 6 the applicant relied solely on the more traditional aspect of the right to a fair hearing, namely the right of access to a court. In those circumstances, the Court, quite rightly, restricted its assessment to the right relied upon. Nonetheless, the principle of judicial independence is omnipresent in the judgment. In the Facts part, the Court quotes numerous international, universal and regional texts, including case-law examples concerning judicial independence and the related principle of the irremovability of judges (see paragraphs 72-87 of the judgment). In the Law part, these principles are examined in extenso from the perspective of the applicant ’ s right to freedom of expression.

The non-binding international texts: judicial independence includes the judge ’ s subjective right to independence

7. Of the non-binding texts quoted in the judgment, several emphasise the judge ’ s subjective right to his or her independence. Thus, after having asserted that “[j] udicial independence and impartiality are essential prerequisites for the operation of justice” , the Magna Carta of Judges (Fundamental Principles), adopted by the CCJE in November 2010, adds (as quoted in paragraph 81 of the judgment, with italics added) that

“[j]udicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level ...”

Similarly, the Venice Commission has considered that “the interest of maintaining the independence of the judiciary and the good administration of justice requires that the judiciary be protected against arbitrary dismissal and interference in the exercise of the functions” (Opinion quoted in paragraph 82 of the judgment; see also paragraph 97 of the Joint Opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and the Rule of Law (DGI) of the Council of Europe, quoted in paragraph 83 of the judgment).

The International Covenant on Civil and Political Rights and the American Convention on Human Rights: essentially the same wording as the European Convention

8. Beyond these non-binding texts and opinions, the interpretation of conventions and agreements containing similar or even identical wording to that of Article 6 of the Convention with regard to the right to an “independent tribunal” is of even greater importance. It should be noted that Article 14 § 1 of the International Covenant on Civil and Political Rights (ICCPR) states that

“everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ...”.

Article 8 § 1 of the American Convention on Human Rights also contains a similar provision:

“Every person has the right to a hearing, with due guarantees ... by a competent, independent, and impartial tribunal, previously established by law ...”

In other words, the wording of these two binding instruments, like that of the Convention, approaches the issue of judicial independence in terms of the rights of persons involved in court proceedings, and not from the perspective of the judge ’ s subjective right to have his or her own independence guaranteed and respected by the State (including within the judiciary).

The case-law of the Human Rights Committee: highlighting the judge ’ s right to independence

9. In spite of the above-cited wording of Article 14 § 1 of the ICCPR, the Human Rights Committee has nonetheless on several occasions approached the issue from the perspective of the rights of judges themselves, and of the State ’ s obligations towards them in safeguarding their independence. Here, we would refer primarily to General Comment No. 32 on Article 14 of the ICCPR (right to equality before courts and tribunals and to a fair trial). This General Comment emphasises the various aspects of the guarantee of independence from the perspective of the judges themselves (appointment, qualifications, security of tenure, remuneration, promotion, transfers, suspensions, dismissal, disciplinary measures, etc.), and the measures that the States should take to guarantee judges ’ effective independence and their protection from “any form of political influence in their decision-making”, and from conflicts of interest and intimidation (see the passages quoted in paragraph 73 of the judgment).

10. This General Comment codifies, as it were, the Committee ’ s practice, including with regard to “individual communications” concerning the right to a fair hearing. Thus, we note that the Committee has received various communications from judges themselves, alleging, in particular, that they were dismissed (or that their mandates were ended prematurely) in breach of the established procedures and safeguards. In these cases it has found that “those dismissals constitute[d] an attack on the independence of the judiciary protected by Article 14, paragraph 1, of the [ICCPR]” (see Mundyo Busyo et al. v. Democratic Republic of Congo , Communication No. 933/2000, 19 September 2003, passage quoted in paragraph 75 of the present judgment). Admittedly, in this case, as in others, it dealt with this type of communication under a combination of Article 14 § 1 of the ICCPR and Article 25 (c), which recognises the right of every citizen to have access, “on general terms of equality, to public service in his country”. It is also true that the right of access to public office is not, as such, expressly protected by the Convention. [42] However, as is clear from the above-cited wording in the Mundyo Busyo et al. case, the Committee in that case examined the impugned dismissal not only under Article 14 § 1 of the ICCPR in combination with Article 25 (c), but also from the perspective of judicial independence as protected on an autonomous basis by Article 14. This approach was confirmed i n the decision of the UN Human Rights Committee (CCPR) in Bandaranayake v. Sri Lanka , Communication No. 1376/2005, UN Doc. CCPR/C/93/D/1376/2005 (2008) , where the Committee found, inter alia , that “the dismissal procedure [had] not respect[ed] the requirements of basic procedural fairness and failed to ensure that the author benefited from the necessary guarantees to which he was entitled in his capacity as a judge, thus constituting an attack on the independence of the judiciary” (see paragraph 76 of the present judgment).

The case-law of the Inter-American Court of Human Rights: from the right to an independent judge to the judge ’ s right to independence

11. Similar observations apply, mutatis mutandis , with regard to the recent case-law of the Inter-American Court of Human Rights on the same subject, quoted in paragraphs 84 and 85 of the present judgment. In this connection, it is significant that the Inter-American Court in its judgment in Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (preliminary objection, merits, reparations and costs), judgment of 23 August 2013, Series C No. 266, on the removal by parliamentary resolution of twenty-seven judges of the Supreme Court of Justice of Ecuador, built on its earlier case-law on the right to an independent judge, guaranteed by Article 8 § 1 of the American Convention in terms, as we have seen, that are practically identical to those used in Article 6 § 1 of the Convention. The text in paragraph 153 of that judgment (quoted in paragraph 84 of the present judgment) is particularly enlightening in this regard.

“ The foregoing serves to clarify some aspects of the Court ’ s jurisprudence. Indeed, in the case of Reverón Trujillo v. Venezuela , the Court concluded that the right to be heard by an independent tribunal, enshrined in Article 8(1) of the Convention, only implied that a citizen has a right to be judged by an independent judge. However, it is important to point out that judicial independence should not only be analyzed in relation to justiciable matters, given that the judge must have a series of guarantees that allow for judicial independence. The Court considers it pertinent to specify that the violation of the guarantee of judicial independence, as it relates to a judge ’ s tenure and stability in his position, must be examined in light of the conventional rights of a judge who is affected by a State decision that arbitrarily affects the term of his appointment. In that sense, the institutional guarantee of judicial independence is directly related to a judge ’ s right to remain in his post, as a consequence of the guarantee of tenure in office .”

12. This case-law was confirmed in two judgments, namely Constitutional Tribunal (Camba Campos et al.) v. Ecuador (preliminary objections, merits, reparations and costs), 28 August 2013, Series C No. 268, and López Lone et al. v. Honduras (preliminary objection, merits, reparations and costs), 5 October 2015, Series C No. 302. Thus, in the view of the Inter-American Court, it now appears established that Article 8 § 1 of the American Convention recognises not only the right of persons appearing before a court to an independent judge, but also the right of judges themselves to have their independence safeguarded and respected by the State.

Towards a subjective right to judicial independence, protected by the Convention?

13. The above considerations give rise to the question of whether Article 6 § 1 of the Convention can be interpreted in such a way as to recognise, in parallel to the right of persons involved in court proceedings to have their cases heard by an impartial court, a subjective right for judges to have their individual independence safeguarded and respected by the State. A positive response to this question would indicate that the judges themselves could rely on Article 6, without necessarily having to prove that an interference with their independence had simultaneously amounted to an unjustified interference in the exercise of their right to freedom of expression or another right enshrined in the Convention. In other words, such an interpretation would strengthen the protection granted to judicial independence under the Convention.

14. It is well known that in Golder v. the United Kingdom (21 February 1975, Series A no. 18) the Court interpreted the Convention teleologically, for the purpose of identifying the right of access to a court in Article 6 § 1. After noting that the provision in question “does not state a right of access to the courts or tribunals in express terms” (ibid., § 28), it referred to all of the principles of interpretation contained in Article 31 of the Vienna Convention on the Law of Treaties, including the importance of the preamble, which is “very useful for the determination of the ‘ object ’ and ‘ purpose ’ of the instrument to be construed” (ibid., § 34). In a similar vein, it drew attention to the “profound belief” of the signatory Governments in the rule of law, referred to in the preamble, and the key role of this concept in the Convention system. It concluded in this regard that “in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts” (ibid.). It also reiterated the terms of Article 31 § 1 (c) of the Vienna Convention, which indicates that account is to be taken also of “any relevant rules of international law applicable in the relations between the parties”, including the “general principles of law recognized by civilized nations” within the meaning of Article 38 § 1 (c) of the Statute of the International Court of Justice. It noted that one of those principles forbids the denial of justice. Taking all of these aspects into consideration, it reached the still renowned conclusion that “[i]t would be inconceivable ... that Article 6 § 1 should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court ... the right of access constitutes an element which is inherent in the right stated by Article 6 § 1” (ibid., §§ 35 ‑ 36).

15. The Court has since reiterated on numerous occasions the importance of the principle of the rule of law in the context of Article 6 of the Convention (see, purely by way of indication, Siegle v. Romania , no. 23456/04 , § 32, 16 April 2013; Varnienė v. Lithuania , no. 42916/04 , § 37, 12 November 2013 ; Solomun v. Croatia , no. 679/11 , § 46, 2 April 2015 ; Ustimenko v. Ukraine , no. 32053/13 , § 46, 29 October 2015 ; and Amirkhanyan v. Armenia , no. 22343/08 , § 33, 3 December 2015 ), and also of the need to take account of the relevant rules of international law in interpreting and applying the Convention (see, among many other authorities, Hassan v. the United Kingdom [GC], no. 29750/09, §§ 100 and 102, ECHR 2014). In my opinion, however, the rule of law is hardly imaginable without an obligation on the State to offer safeguards for the protection of judicial independence and, hence, without the corresponding right of judges themselves to independence. Moreover, as is clear from the entirety of the international-law materials cited in the present judgment, judicial independence is today an integral part of the general principles of international law which must be taken into account in interpreting the Convention. Equally, an interpretation of Article 6 § 1 which finds that it protects the judge ’ s subjective right to independence would be perfectly compatible with that provision ’ s object and purpose. In this connection, I subscribe to the idea, set out in the Magna Carta of Judges, to the effect that “[j] udicial independence and impartiality are essential prerequisites for the operation of justice” (text quoted in paragraph 7 above). Indeed, how can one hope that persons involved in court proceedings will enjoy the right to an independent judge if judges themselves are not afforded safeguards capable of ensuring that independence? In my opinion, a subjective right of this sort for judges is inherent in the safeguards of the first paragraph of Article 6, and in the concept of a fair hearing. I believe that this approach is borne out by the above-mentioned case-law of the Human Rights Committee and of the Inter-American Court of Human Rights.