Justice Under Pressure: Strategic Litigation of Judicial Independence in Europe

[Helen Duffy runs Human Rights in Practice and is a professor of human rights and humanitarian law at the University of Leiden.

Karolína Babická is a Senior Legal Adviser at the International Commission of Jurists]

Human Rights in Practice and the International Commission of Jurists have earlier this year published a report, Justice Under Pressure: Strategic Litigation of Judicial Independence in Europe, that maps the existing standards and practices on strategic litigation to defend judicial independence and accountability in Europe. It is intended as a resource to litigators, legal experts and practitioners working to protect judicial independence across the EU and beyond.

Judicial independence is a cornerstone of the rule of law (RoL) and a prerequisite for the effective protection of human rights for everyone. It is also a ‘fundamental value’ upon which the European Union (EU) is built. Yet, across the globe, attacks on judicial independence are increasing seriously undermining RoL and human rights, and the EU is no exception.  

One way in which legal communities are pushing back is through the use of strategic litigation. In a recent report (Justice Under Pressure: Strategic Litigation of Judicial Independence in Europe), the authors of this blog have examined how, across the EU, courts and legal processes are being used to defend judicial independence. The report followed a two-year process of consultation with lawyers, judges, and civil society engaged in this litigation across 8 EU Member States. It maps myriad ways in which judicial independence is under attack, but also the remarkable array of litigation that has been employed in response. Unsurprisingly, practice reveals many obstacles that impede resort to the courts to protect the courts, but also determination and creative resort to legal tools and strategies, which have led to a rich body of experience and jurisprudence upon which others can draw. 

This blog highlights some of the key features of burgeoning practice in this field. It illustrates the diverse forms national and international litigation has taken, and the array of direct and indirect threats to judicial independence it exposes and seeks to address. Challenges arising recurrently when litigating on this issue are noted, alongside some strategic approaches employed in response. The blog reflects on how we might view the impact of this work, and its significance in the future. 

Litigating Judicial Independence in the EU 

Contemporary attacks on and risks to judicial independence take many forms and derive from many sources – most obviously an executive intent on minimising oversight, but also from within the judiciary itself, private parties or the public. The diversity of litigation on this topic in recent years, national and international, brought by and against a range of actors, have exposed a wide array of ways in which judicial independence has been, or is being, eroded across the EU. 

Illustrating the Range of Judicial Independence Issues Adjudicated

Litigation has commonly responded to frontal attacks on judges’ independence, such as arbitrary dismissals, unfounded disciplinary sanctions, or even the growing criminalization of the judicial role, often as reprisals against judges exercising independence or opposing powerful actors abuse of power. Many cases involving Poland, such as Dolińska-Ficek and Ozimekf v Poland, challenged the arbitrary removal of Polish judges and their replacement by ‘neo judges’ on the judicial council, which meant there was then no ‘independent’ tribunal before which they could challenge the lawfulness of their removal. In the Garzon v Spain case, the UN Human Rights Committee (UNHRC) found violations to result from the criminal prosecution of a judge by the Spanish Surpreme Court, in respect of his judicial interpretations of the law with implications for powerful political actors. While criminalizing the judicial role is still rare in Europe, broad crimes of “judicial malfeasance” (prevaricación) in Spain are reflected in for example the new criminal offence in Slovakia of “bending the law,” which leave judges vulnerable to prosecution for allegedly arbitrary decisions. In certain cases, prosecutions has been triggered by disaffected private parties (as well as the judiciary or the state), with obvious implications for the judicial role. This was the case in Spain where the right-wing Manos Limpias organization, which prompted, among others, the proceedings against Judge Garzon, has been investigated for the commission of the offence of false accusation (denúncia falsa) due to complaints against judges.

Several cases have challenged encroachments into judges’ fundamental freedoms, including the freedom of expression, assembly, association, and opinion. While not absolute rights, cases such as Zurek v Poland or Baka v Hungary, confirmed the importance of the right to freedom of expression of judges, going so far as to clarify that it is a duty of judges to speak out to defend the rule of law.

Some litigation disputes have centred around issues that are facially somewhat banal, such as retirement ages, pay conditions, and tenure, that may not at first glance appear as pressing rights priorities. But, as Pająk and Others v Poland and  European Commission v. Poland show, changing retirement ages, can be a key control mechanism. Changing judges’ qualifications in Slovakia was challenged at the national level and found to breach the substantive core of the Constitution in PL US. 21/2014 (2019); whereas salary reductions were addressed in, for instance, the Portuguese Judges case where the Court of Justice of the EU (CJEU) found that effective judicial protection mandates a minimum standard of judicial independence.

Invoking National and Supranational Fora

In recent years, the litigation challenging these diverse attacks on judicial independence on the national level have involved varied areas of domestic law, procedures, and national courts, ranging from compensation claims presented by wronged judges, to challenges to appointment procedures including appointment of Judicial Councils members in a case against a Prime Minister (e.g. CJEU, Repubblika v Il-Prim Ministru case; Supreme Court of Spain, Manos Limpias case). Leading cases have also proceeded supranationally. Regional and international human rights cases brought by victims – including often judges themselves –to the European Court of Human Rights or UN Human Rights Committee, has led to a rich body of jurisprudence on how of rights under ECHR are implicated when judicial independence is undermined. 

The CJEU has been another major human rights forum on this issues. Through exceptional “infringement proceedings” brought for persistent violations of EU standards on judicial independence, or as “preliminary questions” from national judges, the CJEU has found for instance, that lowering the retirement age interferes with judges tenure, or that changes in the composition of Judicial Councils can adversely impact judicial independence (e.g. Commission v Republic of Poland (I), (II); AK v Krajowa Rada Sadownictwa).

Bespoke Challenges and Responses to Litigating Judicial Independence

Human rights litigation is often challenging, but there are peculiarities of litigating to protect judicial independence that exacerbate the difficulties and tensions that arise, as our report explores.  

Judicial independence sits alongside judicial accountability. A balanced and principled approach to identifying wrongs is essential. Practically, litigation alleging violations requires careful analysis and sufficient evidence to prove that the measures taken against judges were, in all the facts and circumstances of the case, violations. Indeed, many of the most notorious attacks on judicial independence have been presented as ‘reform’ of the administration of justice, ‘accountability’ measures including in respect of corruption, judicial ethics or integrity. Curtailing and reducing judicial oversight has been framed as more ‘democratic’ decision-making or legal sovereignty by limiting resort to international law. This makes more essential that litigation expose and challenge encroachments, including the more subtle legal, policy or institutional changes that appear facially neutral, or even advantageous for RoL, but which have insidious effects.  

Another obvious challenge arises from the heart of the underlying lack of judicial independence. Relying on a national judiciary whose independence is compromised, may seem paradoxical. While this is the case in many instances, the judiciary is rarely, if ever, monolithic, and creative opportunities may yet arise. National judiciaries that are under pressure may be more reticent to decide against the governments on political matters, but may for example be willing to engage with facially more innocuous issues, or to refer cases or ask questions of international judicial partners. Undoubtedly, judges have faced reprisals for doing so. The national level limitations enhances the importance of regional and international remedies and venues. 

Internationally, one challenge is the common reluctance by supranational courts and bodies to condemn systemic failures by their national counterparts. Given the undoubtedly essential role of national courts primary in human rights protection, the emphasis on enabling national systems through positive complementarity and cooperation is perhaps understandable. Regional courts must however retain meaningful and essential oversight, and they have been willing to use it in the face of the evisceration of judicial independence, as series of cases in Hungary and Poland attest. 

A key challenge requiring more attention is how to ensure timely interventions. Delays in legal proceedings are a persistent challenge. In this context, timely justice is needed to prevent the erosion of RoL getting to the critical points we have seen in those countries in recent years. Litigation is almost always inherently reactive, and only rarely preventive. In judicial independence cases, a delay of several years may mean it is too late to prevent the incremental erosion of the justice system or protect the careers and rights of individual judges. The challenge to ensure timely justice may involve tackling some of the less apparently grave encroachments noted above, that are harbingers of further violations down the line. Evolving approaches to interim measures also provide tools to be invoked, although the threshold in the European system is stringent. 

The requirement to exhaust (effective) domestic remedies before turning to international venues is a general rule in most international jurisdictions and is strictly applied in the European human rights system. However, it can impose a significant burden, and raise uncertainties and excessive delays, in the face of compromised national judiciaries. Particularly where domestic laws and court processes create an illusion of administering justice, it can be both essential and extremely challenging to show they lack independence in practice. 

The non-implementation of judgements is another pervasive problem, raised recurrently as a critical threat to the effectiveness of justice systems and strategic human rights litigation in general. Examples across the report show how judicial independence cases in recent decades, which were undoubtedly groundbreaking in many ways, from CJEU, ECHR and UNHRC, are ultimately not being implemented. This is itself a key rule of law challenge.

Various specific issues arise around victim status in this context. Considering there is no right to be an independent judge as such, and no right to actio popularis in the European or UNHRC processes, framing the nature of the violations was one challenge to overcome. Judges may be reluctant victims and claimants, preferring to remain on the other side of the bench. Judicial formation, training and cultures may lead judges, and judicial associations, to shirk from an advocacy role or being perceived as activist judges. Sensitivity to protect and be seen to protect the judicial role, integrity and reputation, means that speaking out and, where necessary, litigating, is often controversial and sensitive, even if, as the ECHR has noted, it may well be essential that judges assume this role in face of attacks to their judicial independence and generalized RoL backsliding. 

Attacks on judicial independence do not arise in a vacuum. Political and cultural contexts can impose further challenges. They are often rendered more difficult by broader RoL and democratic backsliding, and its impact on essential actors and allies in the litigation process. The positive role of NGOs in Strategic Human Rights Litigation (SHRL) is widely acknowledged, but civil society is itself subject to increasing pressures, that make supporting RoL litigation increasingly difficult. Allies willing to support such litigation can greatly enhance litigation’s prospects and impact, but rule of law is not always an issue that garners broad-based political and social support at this time. The public may see the issue as remote and lack sympathy for or connection with the judiciary, impeding the ability to mobilise for change on this issue, enhancing the importance of education and mobilisation. 

Public or political vilification of the judicial role, or of individual judges, including those bringing claims against the state depicted as ‘enemies of the state’, exacerbates the negative implications that ensue for those that take a stand on this issue. The reality is that, as so often in strategic rights litigation, the remarkable litigation to date has depended on willingness and determination of justice actors to bring action despite the uncertain – but potentially heavy – personal cost.

Finally, litigation can of course be used ‘strategically by many, for and against judicial independence.’ Judicialized attacks on judges, as well as lawyers, prosecutors, NGOs, and human rights defenders, are an increasingly common and troubling feature of the human rights landscape, in Europe and globally. Various initiatives seeking to counter the so-called strategic lawsuits against public participation (“SLAPPs”) within the EU and elsewhere are an indication that this problem is at least becoming more widely recognized. 

The Existing Impact of Strategic Litigation

While assessing the impact of litigation is always fraught, research suggests a range of ways in which this litigation made a difference, despite the challenges and limitations. 

While cases have often been framed around the rights of individual judges, much of this litigation has either directly or indirectly exposed and challenged systemic problems. Some cases have challenged structural issues concerning the composition of the judiciary, and judicial councils charged with maintaining and supporting independence, and helped explain their significance. Cases against one judge can, as ECHR the CoE Commissioner for Human Rights noted, have a ‘chilling effect’ on others, and litigation may seek to counter this – clarifying the law and embolden resistance. 

Key cases in this category are those that challenged judicial council composition and appointment, including Grzęda v Poland illustrating how interference with the judicial council undermines judicial independence or, Repubblika v Il-Prim Ministru, in which a Maltese NGO challenged the role of the Prime Minister in the appointment of judges, triggering the request a CJEU preliminary ruling.

Moreover, some cases have resulted in direct actions and improvements in law, policy and/or practice. For example, after the Kolevi v Bulgaria case, reforms to the powers of the Prosecutor General and Supreme Judicial Council took place. Similarly, the case of Baka v Hungary influenced the adoption of the code of judicial ethics in the country. The case may not have had the immediate outcome desired, still less ‘solved’ the problem, but indirectly they have triggered concrete improvements.

Together, the considerable body of litigation has helped develop and clarify legal standards on judicial independence and their application, providing tools and pathways for other cases.  Numerous cases clarified that the rights of judges to, for example, strict safeguards of access to independent justice in the determination of their civil rights, to private (and professional) life, to free expression, assembly, political participation or equality and protection against misapplication of power, among others, may all be implicated. Cases such as Kudeshkina v Russia contributed to the delimitation of the scope of certain judges’ rights.  

Litigation has certainly raised the profile of the issues, drawing attention to critical problems concerning the administration of justice, and fostering debate. As colleagues from Poland, the Czech Republic, Hungary, Slovakia, Romania, Bulgaria, Spain and Malta noted, beyond winning, losing or implementing a case, this has enhanced public perceptions around RoL. It has helped clarify the significance of what may seem abstract and remote issues, or ones that benefit an elite judicial sector, as issues affecting the rights of us all. 

A key lesson of strategic human rights litigation in this area is that it often has the greatest impact when it is combined with other forms of legal, political and social action. Despite inherent challenges to engaging the public on issues of judicial independence, there are examples of the iteractive relationship between litigation and mobilization. One might think of the powerful symbolism of Polish marches involving judges, and the cross-sectoral involvement of the polish society, supported by international solidarity and foreign judges, illustrating how increased visibility has helped engage influential actors in the search for solutions. Some lawyers have suggested that at times litigation has given a ‘human face’ to the issues, or the judiciary, making judges more relatable and enhancing public confidence and RoL commitment. Experience to date speaks to the importance of alliance-building, mobilization, communication and activism to support and complement litigation for long-term legal and social change to strengthen rule of law.

The recognition and vindication of affected individuals must always be kept centre-stage in human rights litigation. In this context, it has played a crucial restorative role for example for judges wrongly accused as basis for the measures in question. In this and other ways, even litigation that is unsuccessful, or not ultimately implemented, has had a significant impact on victims and society at large.

Concluding Remarks

Despite years of struggle to counter attacks on judicial independence, the current global reactionary threat to the institutions and social processes characterizing democratic societies, present a bleak landscape. There is growing recognition of the need to be attentive to seemingly neutral reforms that can and have led to systemic erosion of judicial independence. These realities underscore the pressing need to continue efforts to prevent and react in front of RoL backsliding. 

The above discussion has just skimmed the surface of how challenging strategic litigation on this topic is. But it also highlights its potential as one tool, alongside other forms of advocacy and mobilization. Rule of law coalitions of judges, lawyers and civil society, refusing to sit idly as hard fought values have been undermined, have brought a plethora of cases with diverse effects, contributing to the normative toolkit with which others can continue to fight for judicial independence across Europe and beyond.