Turning point: maintaining independence of the European Court of Human Rights

von Kanstantsin Dzehtsiarou

2015 is a crucial year for the European Court of Human Rights: a new president will be elected, a major number of judges will be replaced, deputy registrar of the Court Michael O’Boyle has already retired and the Registrar will retire soon. One can argue that the Court is going through a turning point in its history. It is not the first one and hopefully not the last but it is crucial that the Court emerges from this turn stronger then ever.

It seems that now is the right moment to discuss the independence of the European Court of Human Rights. I have argued elsewhere that perceived independence of the Court is a key to its legitimacy, while proper, transparent and clear procedure of selection of judges is a basic requirement of such independence.

The selection of judges can be divided in three stages. First, the national government proposes a list of three candidates. This part is crucial for selection of independent candidates of a high calibre. At this stage, the government selects three most suitable candidates from a much broader sample of applicants. And the government should realise that they do not select their representatives on the bench but pick independent adjudicators that can enhance the reputation of the Court both in the state concerned and Europe-wide. In some countries however, loyalty to the current government is the key selection criterion. If so, instead of getting new respectable judges the Court might end up with second best candidates who might have their agenda in the cases against their home state. Having said that, the loyalty to the government is a counterproductive criterion for a number of reasons. The ‘dependent’ judges might have a very low impact on the bench as he or she might be perceived by other judges not as a colleague but almost as a representative of the party whose opinion should not be taken into account ...

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