Author: Angelika Nussberger
DOI: 10.21128/1812-7126-2026-1-18-29
Keywords: judicial independence; the rule of law; jurisprudence of the European Court of Human Rights; Venice Commission; rule-of-law-checklist; judicial councils.
This article, written to commemorate Tamara Morshchakova’s ninetieth birthday, delves into the problem of judicial independence — the cause that Morshchakova herself championed throughout her professional life. The author postulates that while a lack of judicial independence is usually obvious, as reflected in negative public opinion, there is no consensus on the structural conditions necessary to ensure judicial independence. Moreover, implementing the necessary standards in practice poses an even greater challenge. Although judicial independence is widely recognised as a fundamental prerequisite for the realisation of human rights in a state based on the rule of law, best practices and common standards remain a subject of debate. There are rules in place at many different levels, with the Venice Commission being one of the most active players in this field. The Venice Commission has emphasized that there is no single model for the appointment of judges which could ideally comply with the principle of the separation of powers and secure full independence of the judiciary. It indicates that all systems should strive for a depoliticisation of judicial appointments and promote appointments based on the objective merits of the candidates. It is even accepted that the requirements for “old democracies” with a long tradition of the rule of law, may differ from those for “new democracies”, which are in a transitional phase after a regime change from autocracy to democracy. Confronted with complaints from judges about their independence and from applicants about the lack of a “tribunal established by law”, especially in Poland following far-reaching reforms, the European Court of Justice and the European Court of Human Rights were tasked with deriving standards from the European Convention on Human Rights and the Charter of Fundamental Rights. The article focuses on key issues in this context, such as the classification of the “right to judicial independence” as a subjective human right, best practices for judicial appointments, and the safeguards in case of judges’ dismissals.
About the author: Angelika Nussberger – Dr. jur., Professor at the University of Cologne, Director of the Academy of European Human Rights Protection, member of the Venice Commission of the Council of Europe, International Judge at the Constitutional Court of Bosnia and Herzegovina, Cologne, Germany.
Citation: Nußberger A. (2026) Judicial independence as a foundation of a state based on rule of law. Sravnitel'noe konstitutsionnoe obozrenie, vol. 35, no. 1, pp. 18–29.
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