Giacomo Oberto

 

Mandatory Norms on Judicial Independence

in European and International Law

 

Summary: As the most relevant mandatory norms affecting judicial independence at European level are those enshrined in Article 6 §1 (first sentence) of the European Convention on Human Rights, this chapter tries to summarize the most important judgements by the Court of Human Rights on this subject. The issue is deepened under different viewpoints, and namely: (a) Relations to the Executive; (b) Powers of the Executive to Appoint and Influence Judges; (c) Composition of Disciplinary Panels for Judges; (e) Relations to the Legislature. After a judgement published in 2018 also the European Court of Justice could have a say on the question whether in EU member states a given legal system concretely complies with the principles of independence and impartiality of the judiciary. Finally a brief view is provided over some international non-European mandatory norms on the independence of the judiciary.

 

Table of Contents: 1. Article 6 § 1 of the European Convention on Human Rights and its Interpretation by the European Court of Human Rights: Relations to the Executive. – 2. Article 6 § 1 of the European Convention on Human Rights and its Interpretation by the European Court of Human Rights: Powers of the Executive to Appoint and Influence Judges. – 3. Article 6 § 1 of the European Convention on Human Rights and its Interpretation by the European Court of Human Rights: Assessing the Independence of Disciplinary Panels for Judges. – 4. Article 6 § 1 of the European Convention on Human Rights and its Interpretation by the European Court of Human Rights: Relations to the Legislature. – 5. Protection of Judicial Independence through EU Mandatory Norms. – 6. International Non-European Mandatory Norms on the Independence of the Judiciary.

 

1. Article 6 § 1 of the European Convention on Human Rights and its Interpretation by the European Court of Human Rights: Relations to the Executive.

 

The most relevant binding rules affecting judicial independence at European law level are those enshrined in Article 6 §1 (first sentence) of the European Convention on Human Rights [1] , according to which “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Unfortunately, no provisions of the said Convention describe what an “independent tribunal” should look like. For this reason, the European Association of Judges, the Regional Group of the International Association of Judges (I.A.J.) [2] , is currently trying to persuade the Council of Europe of the need to adopt a protocol to the said Convention, or at least to launch a new international agreement or convention, which defines in a binding way the minimum acceptable standards of judicial independence in member States, on the basis of the rich panoply of soft-law international documents currently available inside and outside Europe [3] .

        Whilst judges and scholars around Europe are eagerly waiting for a binding definition of the rules concerning judicial independence, a crucial role is played by the European Court of Human Rights [4] , which actually has been called several times to decide whether, in a given case, a violation of the Convention had occurred on the basis of a judgment having been rendered by an allegedly non independent judge [5] .

        First of all we have to point out that the Court has always underlined the role of the principles of judicial independence, and of the separation of power, as pillars of the rule of law [6] . In this framework it has stated that judges must be fundamentally independent from any kind of external influence from the Executive [7] , Parliament [8] or the parties to a given case [9] . Generally speaking, we can say that the principle of judicial independence has been affirmed by the Strasbourg Court in relation to the possible interference from the other two powers of the State (so called “external” independence), whereas—at least so far—no case appears to refer to the question of “internal” independence [10] .

We shall therefore deal first with cases concerning relations to the executive, and will deal secondly with the cases concerning the legislative powers.

In the first category of cases we see that special attention was given by the Court to the independence of the judicial activity in its function of interpretation of the law and its application and rejected claims that the government may dictate binding rules on how the law is to be read by the judge.

In Beaumartin v. France (24 November 1994) [11] a French citizen complained against a law (subsequently repealed by France) which allowed the Conseil d’Etat to rely on the official interpretation of international treaties given by the Minister for Foreign Affairs. The law had provided that the Conseil d’Etat, when dealing in its jurisdictional activity with provisions of international treaties that it considered insufficiently clear, could defer making a decision and ask the Minister for Foreign Affairs to advise on how to interpret the provisions of the treaties concerned. The Court of Human Rights observed that the law (now repealed) had provided that the minister’s involvement, which had been decisive for the outcome of the legal proceedings, was not open to challenge by an applicant. The Court of Human Rights observed that only an institution that has full jurisdiction, and which satisfies a number of requirements such as being independent from the executive and also from the parties, warrants the designation of “tribunal” within the meaning of Article 6 Para. 1 (art. 6-1), and that the Conseil d’Etat did not meet these requirements under that law.

In Chevrol v. France (13 May 2003) [12] (a similar case to the previous one) an applicant challenged the Conseil d’Etat’s practice of referring preliminary questions to the Minister for Foreign Affairs for interpretation of an international treaty. This practice meant, in the particular case, that, when the administrative court was called upon to give a ruling on the conditions governing the application of the reciprocity clause in Article 55 of the French Constitution, it was obliged to ask the Minister for Foreign Affairs to clarify whether the treaty in issue had been applied on a reciprocal basis and to draw the necessary consequences. The administrative judge had then to abide by the Minister’s interpretation in all circumstances. In this case also the Court of Human Rights noted that Article 6 § 1 had been violated.

 

 

2. Article 6 § 1 of the European Convention on Human Rights and its Interpretation by the European Court of Human Rights: Powers of the Executive to Appoint and Influence Judges.

 

According to the Court’s case-law, the way judges are appointed, or the way a panel of a given national court is composed, may also infringe the principle of judicial independence. However, even if, generally speaking, the mere circumstance that in a certain legal system judges are appointed by the Executive or the Legislature does not breach the principle of judicial independence, the Court requires that in any case, once appointed, judges do not receive any kind of pressure or instructions in the performance of their judicial tasks [13] . Having said this, we must point out that in more than one case the Court of Human Rights considered that there was infringement by the way the judicial body was composed.

In Ciraklar v. Turkey (28 October 1998) [14] the Court of Human Rights held that it was understandable that a civilian should be apprehensive about being tried by a bench of three judges which included a regular army officer who was a member of the Military Legal Service. The civilian was being prosecuted in a National Security Court for offences directed against Turkey’s territorial national integrity, the democratic order or national security. The status of military judges provided certain guarantees of independence and impartiality comparable to their civilian counterparts – but, during their term of office (which lasted four years and could be renewed), they continued to belong to the army, remained subject to military discipline and had assessment reports made on them by the army, which, together with the administrative authorities, took decisions pertaining to their appointment. The Court concluded therefore that Article 6 had been violated.

In Pohoska v. Poland (10 April 2012) [15] the Court of Human Rights pointed out that the judge in that Polish case had been an “assessor,” who in Poland was a particular kind of judge who was subject to special powers of the Minister of Justice. The Minister could confer on an assessor the authority to exercise judicial power in a district court, subject to approval by the board of judges of a regional court, and for a period not exceeding four years. The Minister could remove assessors, including those who were vested with judicial powers. The Polish Constitutional Court considered the status of assessors in its leading judgment of 24 October 2007, finding that the manner in which Poland had legislated for the status of assessors was deficient since it lacked the guarantees of independence required under Article 45 § 1 of the Constitution which are substantially identical to those under Article 6 § 1 of the Convention. As a result, the Constitutional Court set aside the regulatory framework governing the institution of assessors as laid down in the 2001 Act. The Court of Human Rights held, having had regard to the findings of the Constitutional Court, that a court composed of assessors was not independent within the meaning of Article 6 § 1 of the Convention. The reasons for that holding by the Court being that assessors could be removed by the Minister of Justice at any time during their term of office, and that there were no adequate guarantees protecting them against the arbitrary exercise of that power by the Minister (see also Henryk Urban and Ryszard Urban v. Poland). The Court thus concluded, having regard to the circumstances of the case seen as a whole, that there had been a violation of Article 6 § 1 of the Convention [16] .

 

 

3. Article 6 § 1 of the European Convention on Human Rights and its Interpretation by the European Court of Human Rights: Assessing the Independence of Disciplinary Panels for Judges.

 

The Court of Human Rights has been called upon several times to assess the compliance with Article 6 § 1 of disciplinary panels which issued sanctions against judges. The Court has affirmed many times that, in order to establish whether a tribunal can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and to their term of office, the existence of guarantees against outside pressures, and the question of whether the body has the appearance of independence [17] .

The decision of Volkov v. Ukraine (2013) is especially relevant in this context where the composition (at the time) of the High Council of Justice of Ukraine, as the disciplinary body of judges, was held as not in compliance with Article 6 § 1 of the Convention, taken into account that of the sixteen members of the Council who had determined Mr Volkov’s case, only three had been judges elected by their peers. Furthermore, the Minister of Justice and the Prosecutor General were ex officio members of the Council [18] . The Court also noted that this case disclosed serious systemic problems as regards the functioning of the Ukrainian judiciary, in particular as regards the separation of powers. It urgently recommended Ukraine to restructure the institutional basis of its legal system. Similar cases followed. In January 2017 the Court decided in the case of Kulykov and Others v. Ukraine, concerning 18 dismissed judges, and reached the same conclusions [19] .

Similarly, in Gerovska Popčevska v. the former Yugoslav Republic of Macedonia (2016) [20] , relevant parts of an opinion given by the Venice Commission of the Council of Europe, and of the Magna Carta of the Consultative Council of European Judges, were quoted in the reasoning of the judgment in deciding that the composition of a judicial disciplinary body, was in violation of said Article 6 where one of the members was the minister of justice [21] .

In Kamenos v. Cyprus (2017) [22] the Court of Human Rights said that a disciplinary sanction inflicted on a judge was contrary to Art. 6 § 1 of the Convention because the Supreme Court and the Supreme Council of the Judiciary had had the same composition and the judges who had presided over the proceedings were the same individuals who had examined the witness statements which had been against the judge subject to the disciplinary proceedings, had referred the case to trial, had formulated the charges against him and had acted as a prosecution authority in the proceedings.

In Ramos Nunes de Carvalho e Sà v. Portugal [23] the Court emphasised that “with respect to disciplinary proceedings against judges, the need for substantial representation of judges on the relevant disciplinary body has been recognised by the European Charter on the statute for judges (…) and by the opinions of the Venice Commission.” The Court noted also “that Recommendation CM/Rec(2010)12 of the Committee of Ministers to member States, adopted by the Committee of Ministers on 17 November 2010, recommends that the authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers (…). In addition, Recommendation no. 6 of the evaluation report on Portugal by the Group of States against Corruption (GRECO), adopted on 4 December 2015, recommends providing in law that not less than half the members of the High Council of the Judiciary should be judges chosen by their peers (…). The Consultative Council of European Judges, at its 11th plenary meeting (17-19 November 2010), adopted a Magna Carta of Judges which provides, inter alia, that the Council should be composed either of judges exclusively or of a substantial majority of judges elected by their peers.” Therefore, the Court concluded that the independence and impartiality of the Portuguese High Council of the Judiciary “may be open to doubt” observing that, in that case, the disciplinary proceedings had been tried by a panel composed in the majority by non-judicial members.

 

 

4. Article 6 § 1 of the European Convention on Human Rights and its Interpretation by the European Court of Human Rights: Relations to the Legislature.

 

Coming now to the relations between the judiciary and the legislature, we may cite Zielinski, Pradal, Gonzales and others v. France (28 October 1999 (GC [24] , where the Court of Human Rights held that France had violated the Convention, by retrospectively establishing or altering the law so as to influence the judicial determination of a judicial dispute. The only exception permitted for the retrospective alteration of the law applicable to an existing dispute was cases in which such an intervention could be justified on compelling grounds of the general interest. The Court therefore confirmed all of its decisions in earlier cases, in which initially the principle was laid down that the legislature must not interfere with the administration of justice (Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B, and Papageorgiou v. Greece judgment of 22 October 1997, Reports of Judgments and Decisions 1997-VI), but introduced the possibility that such interference could be justified on compelling grounds of general interest (judgment of 23 October 1997 in the National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom case, Reports 1997-VII).

In this case the reason for the legislature’s intervention (section 85 of the Act of 18 January 1994) was primarily, if not exclusively, the fact that there was a conflict of case-law, on a question of fact, between two trial courts, the Colmar and Besançon courts of appeal. The latter court had ruled on a case referred to it after a judgment of the Metz Court of Appeal had been quashed. However, the European Court did not accept that such a conflict constitute a compelling ground of general interest which justified the intervention of the legislature. The same Court admitted that there can be very cogent reasons for accepting such an intervention where, in certain temporal and geographical circumstances, the conflicting decisions in practice lead to a denial of justice, for example where the execution of irreconcilable decisions is physically impossible or, if not impossible, would immediately create an intolerable inequality of position between the parties concerned. However, this was not the case in the relevant situation. Therefore the European Court concluded that there had been a violation of Article 6.

 

 

5. Protection of Judicial Independence through EU Mandatory Norms.

 

The recent judgment of the EU Court of Justice in Associação Sindical dos Juízes Portugueses [25] has raised the problem of a possible protection of judicial independence through EU mandatory laws. The Court applied, as a justiciable rule of law, a clause in Art. 19, Para. 1, TEU [26] , which enshrines the principle of effective judicial protection before national courts. This provision makes more straightforward the enforcement of rule of law standards as between the Member States in contrast to the enforcement of Art. 47 of the Charter of Fundamental Rights of the EU. This means that, in the future, Art. 19, Para. 1, TEU could be enforced by means of infringement proceedings under Art. 268 TFEU to counteract the undermining of judicial independence at the national level [27] .

The case originated by the fact that the Portuguese legislature had temporarily reduced the remuneration of certain categories of civil servants. Under implementing administrative measures, the remuneration of the Court of Auditors’ judges was also reduced. The ASJP, an association of Portuguese judges, acting on behalf of the Court of Auditors’ judges, brought an action in the Supreme Administrative Court for annulment of the implementing measures. The ASJP alleged that there had been a breach of the principle of judicial independence, enshrined in Art. 19, Para. 1, TEU and Art. 47 of the Charter. The Supreme Administrative Court agreed that the independence of judicial bodies depends on the guarantees that are attached to their members’ status, including the terms of remuneration. Hence, it referred to the Court of Justice the question of whether Art. 19, Para. 1, TEU and Art. 47 of the Charter precluded the Portuguese measures which reduced judicial remuneration.

The Court agreed with the Advocate General regarding both the admissibility of the preliminary reference and the scope of application of Art. 19, Para. 1, TEU. It highlighted that Art. 19 TEU operationalises the value of the rule of law enshrined in Art. 2 TEU. However, unlike the opinion of the Advocate General, the Court held that Art. 19, Para. 1, TEU entails also an obligation to ensure that national courts adjudicating in the fields covered by EU law meet the requirements of independence. Also in contrast to the opinion of the Advocate General, the Court did not examine separately the applicability of Art. 47 of the Charter and based its reasoning mostly on Art. 19, Para. 1, TEU. In particular, the Court of Justice held that an independent court is one that exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint and without taking orders from any body, enjoying protection against external interventions and pressures. The Court of Justice accepted that the receipt by judges of a level of remuneration commensurate with the importance of their function constitutes a guarantee essential to judicial independence. Nonetheless, since the impugned measures applied to various groups of civil servants, were temporary, and aimed at Portugal’s excessive budget deficit, they could not be considered to impair judicial independence.

 

 

6. International Non-European Mandatory Norms on the Independence of the Judiciary.

 

In relation to countries other than those in Europe, we may mention the American Convention on Human Rights (Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969), in which Article 8 § 1 provides that “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal, or any other nature.” Infringements against judicial independence can be brought before the Inter-American Court of Human Rights [28] , which is an autonomous judicial institution based in the city of San José, Costa Rica. Together with the Inter-American Commission on Human Rights, it makes up the human rights protection system of the Organization of American States (OAS), which serves to uphold and promote basic rights and freedoms in the Americas.

In Africa, the African Charter on Human and Peoples’ Rights [29] does not make any reference to the independence of the judiciary, having regard only to the requisite of impartiality: see Article 7, containing the right “…to be tried within a reasonable time by an impartial court or tribunal.” [30] .

At the worldwide level we may refer to Article 10 of the Universal Declaration of Human Rights (UDHR). Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations [31] . Building on the achievements of the UDHR, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights entered into force in 1976. The two Covenants have developed most of the rights already enshrined in the UDHR, making them effectively binding on States that have ratified them.

States that have ratified or acceded to the First Optional Protocol (currently 116 countries) have agreed to allow persons within their jurisdiction to submit complaints to the Committee requesting a determination whether provisions of the Covenant have been violated. For those countries, the Human Rights Committee functions as a mechanism for the international redress of human rights abuses, similar to the regional mechanisms afforded by the Inter-American Court of Human Rights or the European Court of Human Rights. The binding character of the above mentioned instruments allows the UN Human Rights Committee to issue decisions, which may be retrieved on the UN’s web site [32] . In particular, accessing the special data base [33] and using the search expression “independent and impartial tribunal”, all the materials and decisions on this subject can be easily viewed and retrieved.

 

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 [2]  The official website of the I.A.J. is available under the following URL: http://www.iaj-uim.org.

 [3]  For a review of them see Oberto, Judicial Independence and Judicial Impartiality: International Basic Principles and the Case-Law of the European Court of Human Rights, Riv. dir. priv., 2006, 485-547. On the subject of judicial independence see Rodriguez-Arribas, Sgroi, Abravanel, et al., L’indipendenza della giustizia, oggi. Judicial Independence, Today, Liber amicorum in onore di Giovanni E. Longo, Milano, 1999; Guarnieri and Pederzoli, La magistratura nelle democrazie contemporanee, Roma-Bari, 2002; Volpi, I consigli di giustizia in Europa: un quadro comparativo, in Albamonte and Filippi (ed.), Ordinamento giudiziario: leggi, regolamenti e procedimenti, Torino, 2009, 3-15; Piana, Judicial Accountabilities in New Europe, London, 2010, 49-69; Piana and Vauchez, Il Consiglio Superiore della Magistratura, Bologna, 2012; Gass, Kiener and Stadelmann (ed.), Standards on Judicial Independence, Bern, 2012; Oberto, Judicial Independence in its Various Aspects: International Basic Principles and the Italian Experience, 2013, http://giacomooberto.com/reportkiev2013.htm; Engstad, Lærdal Frøseth and Tønder (ed.), The Independence of Judges, The Hague, 2014; Sobrino, Il ministro della giustizia e i poteri dello Stato. Vicende e prospettive di una collocazione problematica, Napoli, 2015, 53-150.

 [4]  The Court’s case-law data base is available under the following URL: https://hudoc.echr.coe.int/eng#.

 [5]  A list of cases concerning this peculiar aspect is available in Laffranque, Judicial Independence in Europe: Principles and Reality, in Engstad, Lærdal Frøseth and Tønder (ed.), The Independence of Judges, 144-155. See also Oberto, Judicial Independence and Judicial Impartiality: International Basic Principles and the Case-Law of the European Court of Human Rights (Turin – 2012), https://www.giacomooberto.com/munich2012/independence.htm.

 [6]  Stafford v. the United Kingdom [GC], no. 46295/99, 28 May 2002.

 [7]  Mosteanu and Others v. Romania, no. 33176/96, 26 November 2002.

 [8]  Sacilor-Lormines v. France, no. 65411/01, 9 November 2006.

 [9]  Sramek v. Austria, no. 8790/79, 22 October 1984; see also Ettl and others v. Austria, no. 9273/81, 23 April 1987.

 [10]  On the difference between “external” and “internal” independence, and in particular on possible violations of the latter by organs of the judiciary (High Council of Justice, heads of courts, etc.) or by lawyers (especially when they are too close to some heads of courts), see Oberto, The Universal Charter of the Judge Approved in 2017 by the International Association of Judges, http://www.iaj-uim.org/iuw/wp-content/uploads/2018/01/Oberto_The_Universal_Charter_of_the_Judge_2017.pdf, 6-10; Oberto, Un nuovo statuto per un nuovo giudice, 2017, http://www.iaj-uim.org/iuw/wp-content/uploads/2017/12/Oberto_Un_nuovo_statuto_per_un_nuovo_giudice_2017.pdf.

 [13]  Campbell and Fell v. the United Kingdom, 28 June 1984, Series A no. 80; Loyen v. France (dec.), no. 46022/99, 27 April 2000; Filippini v. San Marino (dec.), no. 10526/02, 26 August 2003; Majorana v. Italy (dec.), no. 75117/01, 26 May 2005; Flux v. Moldova, no. 31001/03, 3 July 2007

 [16]  Worth mentioning are the following points of this Polish case: “34. The Court recalls that in determining whether a body can be considered as “independent” – notably of the executive and of the parties to the case – regard must be had, inter alia, to the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 78, Series A no. 80; Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997‑I; Incal v. Turkey, 9 June 1998, § 65, Reports 1998‑IV; Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005‑II; and Luka v. Romania, no. 34197/02, § 37, 21 July 2009). Furthermore, the irremovability of judges by the executive during their term of office must in general be considered as a corollary of their independence and thus included in the guarantees of Article 6 § 1 (see Campbell and Fell, cited above, § 80). The Court further recalls that the requisite guarantees of independence apply not only to a “tribunal” within the meaning of Article 6 § 1 of the Convention, but also extend to “the judge or other officer authorised by law to exercise  judicial  power” referred to in Article 5 § 3 of the Convention (see McKay v. the United Kingdom [GC], no. 543/03, § 35, ECHR 2006‑X). 35.  The Court further reiterates that it is of fundamental importance in a democratic society that the courts inspire confidence in the public. To that end, Article 6 requires a tribunal falling within its scope to be impartial. Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. The Court has thus distinguished between a subjective approach – that is, endeavouring to ascertain the personal conviction or interest of a given judge in a particular case – and an objective approach – that is, determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect (see Piersack v. Belgium, 1 October 1982, § 30, Series A no. 53, and Grieves v. the United Kingdom [GC], no. 57067/00, § 69, ECHR 2003‑XII (extracts . 36.  In applying the subjective test, the Court has consistently held that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989, § 47, Series A no. 154). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will or has arranged to have a case assigned to himself for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86). The principle that a tribunal shall be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see, for example, Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 58, Series A no. 43). 37.  Although in some cases it may be difficult to procure evidence with which to rebut the presumption, it must be remembered that the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996‑III). In other words, the Court has recognised the difficulty of establishing a breach of Article 6 on account of subjective partiality and for this reason has, in the vast majority of cases raising impartiality issues, focused on the objective test. However, there is no watertight division between the two notions, since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (the objective test) but may also go to the issue of his or her personal conviction (the subjective test) (see Kyprianou v. Cyprus, [GC], no. 73797/01, § 119, ECHR 2005‑XIII). 38.  As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect, even appearances may be of some importance (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998‑VIII; Morel v. France, no. 34130/96, § 42, ECHR 2000‑VI and Kyprianou v. Cyprus [GC], cited above, § 118, ECHR 2005‑XIII). When it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996‑III, and Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000‑XII).”

 [17]  See Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997-I, and Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005-II). The Court also noted that the notion of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV, and Saghatelyan v. Armenia, no. 7984/06, § 43, 20 October 2015). However, neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 193, ECHR 2003-VI).

 [18]  The reasoning of this judgement is available under the following URL: http://hudoc.echr.coe.int/eng?i=001-115871 (see in partic. page 21).

 [19]  The reasoning of this judgement is available under the following URL: Kulykov and Others v. Ukraine, nos. 5114 and others, 19 January 2017; see also Denisov v. Ukraine, no. 76639/11.

 [20]  The reasoning of this judgement is available under the following URL: http://hudoc.echr.coe.int/eng?i=001-159769 (see in particular the part of the reasoning under the title: “international materials”).

 [21]  On the role of the Court of Human Rights in the protection of judicial independence in such cases see Oberto, Judicial Independence and Judicial Impartiality: International Basic Principles and the Case-Law of the European Court of Human Rights (Turin – 2012), https://www.giacomooberto.com/munich2012/independence.htm.

 [22]  Kamenos v. Cyprus, no. 147/07, 31 October 2017.

 [23]  Ramos Nunes de Carvalho e Sà v. Portugal, nos. 55391/13, 57728/13 and 74041/13, 22 March 2017.

 [25]  Judgment of 27 February 2018, case C-64/16.

 [26]  “Article 19

1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”

 [27]  See Krajewski, Associação Sindical dos Juízes Portugueses: The Court of Justice and Athena’s Dilemma, European Papers, http://europeanpapers.eu/en/europeanforum/associacao-sindical-dos-juizes-portugueses-court-of-justice-and-athena-dilemma.

 [30]  On the differences between the concepts of independence and impartiality see Oberto, Judicial Independence and Judicial Impartiality: International Basic Principles and the Case-Law of the European Court of Human Rights, in Riv. dir. priv., 2006, 485-547.

 [31]  See in particular Art. 10: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” The text of the Universal Declaration is available under the following URL: http://www.un.org/en/universal-declaration-human-rights/index.html.