April 01, 2021
Mathieu Leloup, PhD researcher in constitutional and administrative law at the University of Antwerp, Belgium, research group Government and Law
The protection of domestic judges has become something of a leitmotif in the European case law over the last few years. Hardly a month goes by without a judgment in which the ECtHR or the ECJ was asked to rule on something that pertained to the safeguarding of the domestic judiciary. Most often, the issue in question relates to the broader principle of judicial independence – ranging from appointment of judges, over judicial discipline, to judicial tenure. But it may just as well address more factual issues, like the detention of judges (for example, in Baş). In other cases still, the question is not so much a substantive issue, but rather relates to the procedural protection that judges may enjoy.
The cases that will be discussed here fall within the latter category. In two cases against Turkey, Eminağaoğlu and Bilgen, the Strasbourg Court has adopted a very flexible interpretation of the so-called Eskelinen-criteria and has expanded the right of access to a court that domestic judges enjoy under Article 6(1) ECHR. In doing so, this judgment can be seen as marking another step in an evolution that has been going on for a little bit over a decade now.
Facts of the cases and judgments of the Court
Though both cases have a different factual background, the relevant facts for the purposes of this post are rather similar. Eminağaoğlu and Bilgen, both judges in Turkey, wanted to challenge a measure, taken by the Turkish High Council for Judges and Prosecutors, that negatively affected them. For the former it was a disciplinary sanction (a transfer, lowered to a reprimand after an internal review), for the latter it was the decision to transfer him to a different and lower-ranking judicial district against his will. However, Article 159 of the Turkish Constitution clearly stated that decisions by the High Council were not amenable to judicial review. Both judges complained that this state of affairs violated their right of access to a court under Article 6(1) ECHR.
Essentially, the Court was asked to rule whether the inability to have recourse to judicial review against the decision of the Turkish High Council was in violation of the right of access to a court, enshrined in Article 6(1) ECHR. According to long-standing case law, that Convention provision applies when there is a genuine and serious dispute about a right that is of a civil nature.
As far as the question as to whether there was a right, the Court was rather brief in Eminağaoğlu. It has been consistent case law that disciplinary proceedings concerning the right to continue practicing a profession are always regarded as involving a dispute about a right. Since the disciplinary proceedings against him could have resulted in his dismissal, there was thus clearly a dispute about a right (§66). In the case of Bilgen, the Court was a bit more creative. It recalled the special role that the judiciary, as guarantor of justice, plays in a state governed by the rule of law. Given this prominent place, and the growing importance that is being attached to the separation of powers and the necessity of safeguarding the independence of the judiciary, the Court held that it should be particularly attentive to the protection of members of the judiciary against measures affecting their status or career that can threaten their independence and autonomy (§58). Furthermore, the Court regarded several international instruments which all stressed the importance of the right of judges to appeal before an independent authority when a transfer decision had been taken against their will. Against that background, the Court observed that the right of a member of the judiciary to protection against an arbitrary transfer or appointment is supported by international norms as a corollary of judicial independence (§63).
The Court then turned to the issue of whether these rights were of a civil nature. In employment disputes concerning civil servants, including judges, the Court has established a two-tier test to decide whether the dispute is civil in nature, the so-called Eskelinen-test. This test dictates that an employment dispute concerning a civil servant is civil in nature, unless two cumulative conditions are met: 1) a national law must expressly exclude the access to a court for the post or category of staff in question; and 2) this exclusion must be justified on objective grounds in the state’s interest.
The Court then applied the Eskelinen-test to the two cases at hand. As far as the first criterion – the express legislative exclusion of access to a court – was concerned, the Court was rather brief in Eminağaoğlu. Seeing as the Constitution, after a 2010 amendment, allowed for judicial review for dismissal decisions, the Court said that it could no longer be claimed that disciplinary proceedings concerning judges are completely excluded from any judicial review. However, it did not find it necessary to decide whether the first Eskelinen-criterion was fulfilled, since, in any case, the second was not (§71). In Bilgen, by contrast, the Court’s approach was more substantive. For the Court, the fact that Article 159 of the Turkish Constitution expressly excluded any form of judicial review against decisions by the High Council did not suffice. Rather, it verified whether the High Council itself could be seen as performing the role of a court or tribunal. If this was the case, then it could not be said that there was an express exclusion of the right of access to a court, thereby failing the first criterion under the Eskelinen-test. This, in turn, would mean that Article 6(1) ECHR applied. After taking stock of the structure and functioning of the High Council, the Court concluded that it could not be seen as a tribunal. For this conclusion it relied mostly on the fact that the High Council did not provide for sufficient procedural safeguards, did not allow for adversarial proceedings, and delivered its decisions with no reasoning (Bilgen, §74). As such, the High Council did not qualify as a court and the first Eskelinen-criterion had been satisfied.
The Court then turned to the second criterion, the question whether this exclusion could be justified on objective grounds in the state’s interest. Here, the Court again referred to the special position of courts in the domestic constitutional framework. Given their crucial task of acting as a check on the rest of the government, their independence must be protected. Their employment relationship with the state must therefore be understood in the light of the specific guarantees essential for judicial independence. According to the Court, it would be wrong to assume that judges can uphold the rule of law and give effect to the Convention if domestic law deprives them of the guarantees of the Articles of the Convention. This especially holds true for matters that directly touch upon their individual independence and impartiality. Judges should enjoy protection from arbitrariness from the executive power. Only oversight by an independent judicial body, on the legality of the decisions which touch upon their independence, is able to render such a right effective. As such, the Court concluded that there could not be an objective justification for the exclusion of judicial review in these cases (Eminağaoğlu, §§77-80; Bilgen,§§76-81). This meant that the second Eskelinen-criterion had not been met and that the right of access to a court enshrined in Article 6(1) ECHR should be taken to apply to the cases at hand.
Turning then to the merits, the Court did little more in Bilgen than reiterate its findings under the first Eskelinen-criterion that the transfer decision had not been open to review by a tribunal within the sense of Article 6(1) ECHR. Given the importance of the judiciary, there should be very weighty reasons for such an absence, which the Turkish government had not provided (§§91-97). In Eminağaoğlu, the Court’s approach was somewhat more extensive. Similar to what the Court had done in Bilgen under the application of the first Eskelinen-criterion, it referred to the lack of pre-established procedure, absence of procedural guarantees, and failure of reasoned decision-making, to conclude that the High Council could not be seen as a tribunal within the sense of Article 6(1) ECHR (§§95-105). Since neither judge had had the possibility of bringing their case before a court, the essence of this right had been impaired in both cases and Article 6(1) ECHR had thus been violated.
The eventual finding of a violation of Article 6(1) ECHR is, all things considered, not the most important aspect of these cases. Much more interesting is the Court’s reasoning in finding this Convention provision applicable. It is evidentiary of the Court’s willingness to provide protection to domestic judges. This willingness is clear from the Court’s flexible position in Bilgen, where it concluded that there was a right against transfer decisions against a judge’s will, but also, and perhaps even more so, from the way in which it applies the Eskelinen-criteria in both Eminağaoğlu and Bilgen. In this regard, these judgments may be seen as another – and perhaps even conclusive – step in an evolution that has been going on for a little over a decade now, in which it has understood the Eskelinen-test increasingly flexibly when judges are concerned.
As was mentioned, for the Eskelinen-test to be met, the domestic legislation must expressly exclude access to a court and justify this exclusion on grounds of the state’s interest. Yet, as far as this first requirement is concerned, the Court does not take the domestic legislation at face value. In fact, this already became clear in Olujić, the very first case in which the Court applied the Eskelinen-test to disciplinary proceedings against a judge. Even though the Croatian legislation excluded judicial protection in connection with disciplinary proceedings against judges, the Court looked at the procedures and competences surrounding the National Judicial Council, which was the body that had imposed the disciplinary sanction, and came to the conclusion that it had all the hallmarks of a tribunal. Because of this, the Court concluded that the first Eskelinen-criterion had been met, despite what the legislation said. It adopted a similar approach in an array of later cases, like Oleksandr Volkov, Di Giovanni, Sturua, Kamenos, and recently Xhoxhaj. Such an approach is also clearly visible in the Bilgen judgment, where the express exclusion in Article 159 of the Constitution did not prevent the Court from assessing whether the High Council could itself not be seen as a tribunal.
This substantive, instead of formal, assessment of the first Eskelinen-criterion will often already suffice to find that Article 6(1) ECHR applies in cases where judges are concerned. Especially when it comes to disciplinary sanctions, these measures are traditionally imposed after some form of adversarial proceedings, allowing for the submission of evidence and perhaps hearing the judge in question, leading to a reasoned decision. For the Court, that already suffices to conclude that there was access to a tribunal, thereby failing the first condition under the Eskelinen-test.
Yet, even when this is not the case, for example because the body that imposes the measure in question does not fulfil the Court’s requirements for a tribunal, the two Turkish cases have now made clear that the second Eskelinen-criterion is also applied very flexibly. As became apparent in these cases, it would seem difficult for a state to convince the Court that the exclusion of judges of their access to a court can be objectively justified. The Court grounds its reasoning on the importance that it attaches to the position of judges in the domestic system of checks and balances and the requirement of judicial independence in this regard, Essentially, when it comes to judges, the Court’s interpretation of the Eskelinen-criteria has now proven to be so flexible, that it is difficult to imagine a scenario in which they will still both be met.
The consequences of this really should not be underestimated. An important effect is that judges can now be understood as enjoying a right to judicial review for a wide array of measures that affect them. That is the case even if domestic legislation expressly excludes such access. The two Turkish cases concerned a disciplinary sanction and a decision to transfer a judge to another jurisdiction, but there is little reason to believe that the same would not equally apply for other measures that affect judges. In this regard, appointment decisions seem like a fairly safe bet. But, one could equally think of less evident measures such as decisions about promotion, decisions by a court president about case assignment, or decisions about the designation of a judge to a certain chamber within a court. All of these decisions may, to use the Court’s words from the Bilgen judgment, ‘affect the status and career of judges’ and ‘threaten their judicial independence and autonomy’ (§58). It has, moreover, indicated that it is ‘imperative that there exists procedural safeguards in order to ensure that their judicial autonomy is not jeopardised, by undue external or internal influence’ (§96). One can expect that the precise boundaries of the Court’s principles regarding the second Eskelinen-criterion that were set out in these two cases will still be demarcated more clearly in future case law. Nonetheless, it is clear that these two judgments have considerably widened the access to judicial review for judges and may have provided the Court with an avenue to venture more boldly into issues of judicial self-governance.
This broadening of the scope of Article 6(1) ECHR for judges has, in turn, consequences of another, more institutional nature. As the Court stressed in Eminağaoğlu (§94), those domestic bodies that take measures that fall within the scope of Article 6(1) ECHR, will either have to fulfil the requirements under that provision themselves, or will have to be amenable for review by a body that does. This simple premise is especially impactful for those countries that have a judicial council which is competent for issues concerning the status and career of judges. Since it now seems almost impossible for countries to keep such councils outside of the scope of Article 6(1) ECHR, these bodies should either fulfil the requirements of Article 6(1) ECHR themselves, or domestic legislation should allow for a review by a court with full jurisdiction. Since, like Turkey, some countries have clearly chosen a system in which their judicial council takes decisions in first and final instance, for them the most likely path will be to conform their judicial council to the norms of the Strasbourg Court. This may have rather extensive consequences since the Court has, in Oleksandr Volkov, indicated that a judicial council should be composed of at least a majority of judges when it decides in disciplinary cases in order to be seen as independent. As such, the broadened scope of Article 6(1) ECHR may require institutional changes in several Contracting Parties, either in the composition of certain bodies, or by submitting them to judicial review.
All things considered, the Court’s judgments in Eminağaoğlu and Bilgen are clearly indicative of its continuous efforts to strengthen the protection that domestic judges enjoy. The principles that have been set out in these cases lead to a situation in which measures that may affect domestic judges are taken by an independent and impartial body, or, when they are not, can be reviewed by such a body. As such, and depending on how broad they will be applied in later cases, this means that the Convention grants judges a decisive say in the areas that affect their career and status.