The European Court of Human Rights and Rule of Law Backsliding
The rule of law has been badly damaged in some EU Member States, and a central feature of this has been the weakening of the independence of the judiciary. In this European Policy Analysis, Iain Cameron, Professor of Public International Law at Uppsala University, examines the case law of the European Court of Human Rights on judicial independence and describes how it can interact with the EU’s work to defend the rule of law.
The work of the European Union to foster rule of law compliance has received a lot of attention in scholarly literature, and there has been extensive work on the judgements of the European Court of Justice (ECJ). Less attention has been paid to the case law on judicial independence of the European Court of Human Rights (ECtHR), the ‘Strasbourg Court’ which interprets the European Convention on Human Rights. The present European Policy Analysis aims to fill this gap.
In it, Iain Cameron provides a thought-provoking analysis of ECtHR case law on judicial independence, which mainly concerns Poland. In Poland, the problems with judicial independence started in 2015, when the Polish PiS led government introduced a major reform on the judiciary. Four and a half years later, the ECtHR presented its judgement in the first case to raise issues concerning the independence of the judiciary (Xero Flor). The present European Policy Analysis covers all the relevant judgements delivered from then until 1 January 2023, going through the relevant cases chronologically.
The analysis also discusses how the case law of the ECtHR can help to solve problems with the rule of law in Poland and other EU Member States. It finds that the case law of the ECtHR on judicial independence can interact with the rule of law of the EU in several different ways. National courts can use the ECtHR judgements as part of the basis for submitting a question to the ECJ, the so-called preliminary rulings procedure. The European Commission can use the ECtHR judgements to initiate an infringement procedure. And the ECJ can use the ECtHR case law to legitimize its interventions and to back up its factual and legal conclusions.