Fair Trial Guarantees for Judges in the Practice of the European Court of Human Rights and in Other International Instruments

This article describes international standards regulating access of judges to the courts in questions related to their appointment, career and dismissal. It is primarily focused on the case-law of the European Court of Human Rights, which originally was reluctant to recognize the right of judges to have access to justice in those matters. However, in the past two decades, the ECtHR has departed from its earlier position and adopted a more liberal approach which extended applicability of Article 6 of the Convention (which guarantees inter alia the right of access to court) to nearly all disputes related to the judge’s professional life. Nevertheless, despite its desire to make the caselaw simpler, the test developed by the ECtHR to define applicability of Article 6 remains quite intricate. This article also analyses other international sources, such as the documents of the UN bodies, instruments of the Council of Europe and recommendations of the Venice Commission. The main conclusion of the article is that, on the one hand, there is a clear tendency of giving the judges universal judicial protection of their rights in the professional sphere. On the other hand, this tendency has its natural limits: for example, appointment of judges of the highest courts may be influenced by the “constitutional prerogative” of other highest State authorities participating in this process; so, this prerogative may potentially justify exclusion of such decisions from the judicial review. By contrast, imposing disciplinary liability on judges certainly requires proceedings of judicial character.

About the authors: Olga Chernishova – Candidate of Sciences (Ph.D.) in Law, Head of Legal Division, Registry, European Court of Human Rights; Grigory Dikov – Lawyer, Registry, Venice Commission, Council of Europe.

References

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Citation: Chernishova O., Dikov G. (2016) Garantii sudebnoy zashchity dlya sudey v praktike Evropeyskogo Suda po pravam cheloveka i v drugikh mezhdunarodno-pravovykh instrumentakh [Fair Trial Guarantees for Judges in the Practice of the European Court of Human Rights and in Other International Instruments] Sravnitel'noe konstitutsionnoe obozrenie, no. 2, pp. 152–170. (In Russian).