Rule of Law and Judicial Independence in the Light of CJEU and ECtHR Case Law

Abstract

Judicial independence is a cornerstone of the rule of law. This notion is gaining relevance as a result of the judiciary reforms implemented in many non-liberal democracies. Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have often addressed judicial independence. However, only recently have they tied judicial independence with the rule of law. The CJEU has moved from a specific vision tied to the EU notion of national court or tribunal to a constitutional dimension whereby, through a creative interpretation of the second subparagraph of Article 19(1) TEU, considers that the principle of judicial independence is inherent to this provision. As for the ECtHR, some individual complaints arising from measures adopted by states signatories of the ECHR where there are systemic deficiencies in the rule of law related to judicial independence have resulted in interesting decisions. Nevertheless, the ECtHR’s individual right-oriented approach, and the fact that judicial review is implemented by means of individual complaints, narrow the ECtHR’s scope of action to tackle potential systemic risks entailed by the violations of judicial independence. In any case, the protection of judicial independence as an inherent element of the rule of law should not be dealt with in comparative terms, but rather in terms of cooperation. To this date, the contributions of both courts have proven the importance of the judicial dimension to counter the threats to the independence of the judiciary.