Assessing the Appearances of Independence of the CJEU and ECtHR

My PhD analyses the threats to the independence of the CJEU and ECtHR and the tools these two Courts have at their disposal to combat them. My definition of judicial independence consists of the four elements identified in the ECtHR judgment Luka v Romania, namely judicial appointments, term in office, guarantees against outside pressure and appearances of independence. It is the last element that I would like to concentrate on in this paper, as it is closely linked to the trust in the courts. There is no definition of the appearances of independence as such, neither is there a single test for it. The essence of what the appearances of independence are can be summarised with the quotation from the ECtHR’s judgment that “justice must not only be done, but must also be seen to be done” (Originally a sentence by Lord Hewart, in Rex v. Sussex Justices, [1924] 1 KB 256, [1923] All ER 233). The test for appearances of independence at domestic courts has been to some extent developed by the European-level Courts – both in the judgments (eg. ECtHR: Case 22678/93, CJEU C-175/11) and in the AGs’ opinions (eg. AG Tanchev in Celmer case). It has been summarised as a question whether “a reasonable observer or a party to proceedings (…) have objectively justified grounds to doubt that her or his case will be decided exclusively on the basis of the court’s best understanding of applicable law? Or does she or he have reasonable grounds to suspect that the court’s decision may be influenced by some factors external to law, for instance political preferences of the legislative or executive, even without the latter’s direct interferences, just due to the ‘freezing effect’?” (Krajewski 2018). Hence, within the framework of my PhD I analyse the appearances of independence of CJEU and ECtHR, based on the perception of the Courts’ users. I do so by interviewing the judges of domestic courts from the countries-member states of the Courts and domestic lawyers representing the parties. I do not conduct interviews with representatives of the general public due to the poor awareness these two Courts have among the general public. I ask the Courts users whether they trust the CJEU and ECtHR, i.e. whether the two Courts appear independent to them. In particular, I ask about the appointment process to the Courts, at national and European level. I also discuss with my interviewees the procedures leading up to issuing the judgments and the tools the Courts rely upon when rendering them (argumentative strategies, relying on third parties’ interventions, publishing or not the splits of votes or separate opinions). In addition to the interviews, I also conduct my own judgment analysis of the sample of the case law of both Courts, aimed at identifying the challenges to the appearances of independence. Based on these methods I try to determine what increases the appearances of independence of these courts as well as what makes the Courts less trustworthy in the eyes of their users.