One-sidedly Staffed Courts

In Poland, the new parliamentary majority elected on October 15 is confronted not only with a president brought into office by the PiS party but also with a constitutional court made up exclusively of judges elected under the aegis of PiS. Any effort to restore the rule of law in the Polish judiciary is likely to meet resistance from these veto players. The difficulties to be expected for the new majority in dealing with the rule of law deficiencies that have piled up in the Polish justice system, and especially in the Polish Constitutional Tribunal since 2010 (on these difficulties here, pp. 227 ff., and here) draw attention to an underlying problem to be witnessed not only in Poland, and not only in other countries where democracy and the rule of law have deteriorated or never existed: the problem of courts, and in particular constitutional courts, with a blatant lack of political balance in their composition. This is a little-noticed but very serious problem – as long as the political and regulatory conditions on which the one-sided composition is based persist, and, as the Polish case now makes clear, even after these political conditions have changed.

Individual and systemic impartiality

This problem is usually – if at all – discussed in somewhat misconceived terms, as a problem of judicial independence (see below). As a consequence, the appointment of justices by parliament and/or other political organs attracts criticism as being in itself detrimental to the independence of judges. However, as can be observed in many constitutional courts (including supreme courts with constitutional review powers) around the world, the appointment of judges by political bodies is by no means incompatible with judicial independence. Some forms of political appointment may pose a specific risk to independence. This is notably true for unchecked appointments of judges and court presidents by heads of state, which are prone to result in the appointment of cronies or even people with skeletons in the closet who are, therefore, susceptible to pressure. Nevertheless, there is no problem with political appointments per se. Politically one-sided court compositions, by contrast, are a bad thing per se. The problem with them is not a problem of independence. A one-sidedly composed court may as a matter of fact be insufficiently independent, as well, but that is far from being a necessary consequence of its judges being politically appointed, or of its unbalanced composition. What one-sidedly composed courts lack per se is not independence but structural or systemic impartiality. The issue here is not the presence or absence of particular biases of individual judges, i.e. the question of individual judicial impartiality, but the fact that the panel as a whole lacks the balance that is necessary to ensure that the values, prejudices, selective attentions, etc. that each individual judge brings to the table do not, by virtue of numerical preponderance or even a complete lack of competing views, result in a jurisprudence predictably swinging in favour of or against certain sides of the political spectrum.

A court that lacks systemic impartiality may, over and beyond that, be staffed with judges who are individually biased and do not maintain the distance from political actors that is to be expected of independent judges, as was and is at least partially the case with the Polish Constitutional Court.¹⁾ But that’s another matter. These deficits must first be distinguished from one another. There are connections between the two: dependence always impairs impartiality (as the Consultative Council of European Judges rightly points out here, pp. 4 f.). Conversely, however, completely independent judges can nevertheless be individually biased, and a panel of completely independent judges may lack systemic impartiality due to its unbalanced composition.

Independence and impartiality – abstract explanations in the case-law of the ECJ and the ECtHR

In the case-law of the European courts, systemic impartiality has not, so far, been explicitly identified as such and as a violation of the impartiality requirement of the European Convention on Human Rights or the European Treaties.

According to the ECJ, judicial independence “has two aspects to it”, an external and an internal one. Impartiality is presented as the internal aspect of independence: “The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law”.²⁾ The juxtaposition of external and internal aspects seems unfortunate – after all, both independence and impartiality are about the relationship to outsiders and their perception of the court, but also have an intrapersonal “aspect”. Treating impartiality as an “aspect” of independence is not conducive to insight, either, because it does not shed light on the – asymmetrical – connection between independence and impartiality described above. Instead, it obscures the possibility of partiality existing despite full independence. This possibility is inappropriately excluded by definition: If impartiality is to be an “aspect”, i.e. an element or sub-category, of independence, then partiality by definition impairs independence, and conversely, finding a court independent in this conceptual framework implies that it is also impartial.

Whether the ECJ’s cited abstract explanation of the concept of impartiality covers systemic impartiality is not quite clear. A clue is provided in the court’s finding that “Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it”.³⁾ This standard has not yet been specified with regard to the problem of systemic impartiality in the case-law of the court, although there would have been proper occasions. Accordingly, one might assume that in postulating rules for the composition of a court apt to dispel any doubts as to neutrality, the ECJ did not intentionally address systemic impartiality. Nevertheless, whether intentionally or not, systemic impartiality is obviously covered by that standard, objectively. It can hardly be denied that a constitutional court made up exclusively of exponents of a certain political colour may give rise to “reasonable doubts” about its “neutrality with respect to the interests before it”.

According to the ECtHR, the impartiality required by Article 6(1) ECHR is to be determined on the basis of a subjective and an objective test. The subjective one concerns the possible bias of a particular judge in a given case, while the objective one is to ascertain “whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality”.⁴⁾ According to explanations of the so-called objective test, this test is supposed to be about objective facts that raise doubts about the impartiality of an individual judge, and it usually concerns hierarchical connections between the judge and other protagonists in the proceedings.⁵⁾ Whatever the shortcomings of these attempts at conceptual clarification – the explicit statement that the composition of the court is relevant to the question of impartiality should nevertheless qualify to be taken seriously.

In the case-law of both courts, however, there is a lack of clear, imperative standards for what is required in this respect, and that is no coincidence.

Precautions against systemically biased court compositions

The state of affairs at the national level is an impediment to the evolution, in international and supranational law, of a strict and concrete postulate that courts must be structurally impartial in the sense described above. At the national level, institutional precautions against systemically biased courts are often absent, even in many democratic, rule-of-law-abiding states. It is one of the problems of many constitutional courts – worldwide, including in Europe, and also in the EU – and one of the causes of frequent dysfunctions and political conflicts over constitutional jurisdiction, that their country has no provisions, or no reasonably reliable ones, even against grossly one-sided appointments. Besides instances of complete absence of plurality safeguards, there are various institutional designs which tend to promote a certain political plurality in court appointments. In some of these, one can see an expression of normative convictions, at least the expression of a sense that complete party-political or other ideological homogeneity should be avoided. However, all these precautions are only effective to a limited extent and only under certain conditions that do not necessarily prevail in practice.

Limited judicial terms of office, for instance, may help to avoid long-lasting one-sided court compositions by allowing new appointments at shorter intervals. Compared with, say, lifetime appointments without an age limit, as for the US Supreme Court, they make it more likely that democratic change, resulting in varying political colours of heads of state, parliamentary majorities etc., will bring about plural appointments. Involving different constitutional organs, be it in a split model (with different organs each appointing part of the judges) or in a cooperation model (each candidate needs the support of at least two organs), or in various combinations of the two (details here, p 162 ff.), also increases the chance of getting at politically plural court compositions. Arrangements of this type may originally have served the purpose of ensuring a balance with respect to the representation of interests of different organs (“powers”) of the state, but they also make it more likely that exponents of different political parties will play a part in the selection of judges. However, it is also possible that the various organs with a say in the appointment process are staffed or dominated by the same party or party coalition, and this may remain so for a longer period, even up to the point of a complete or almost complete renewal of the bench in question. Pierre Joxe, for example, reported that during his entire nine-year term of office (until 2010) at the French Conseil Constitutionnel, he was the only one of the appointed judges who had not been brought into office by former president of the republic Jaques Chirac or his political comrades heading the two chambers of parliament.⁶⁾ Attempts to produce sufficient political pluralism on the bench by means of staggered appointments often fail because there is no sufficient political change in the composition of the appointing constitutional bodies over time and/or because no sufficient precautions have been taken against a collapse of the envisaged rhythm of reappointments due to premature terminations of terms of office (death, resignation etc.) or as a consequence of blockages in the appointment procedure (more details here, pp. 173 ff.). Sometimes, the rules are even designed to have judicial terms of office run parallel and thus to have the entire court composition renewed simultaneously at term’s length intervals (examples here, pp. 172, 179), and sometimes, this is at least an effect of the relevant design. In the Czech Republic, for example, the entire bench of the Constitutional Court has long been renewed mostly in the same year at ten-year-intervals, with few exceptions only, and to this day, new appointments come concentrated in few, mostly neighbouring years (see appointment data of incumbent and emeriti justices on the court’s website, here and here).

That is, of course, not conducive to politically pluralist appointments unless, in the case of Czechia, the President of the Republic, who is entitled to nominate, and the Senate, which must confirm the nomination by a simple majority, happen to exercise their powers in a distinctly non-partisan manner.⁷⁾ Thirteen of the fifteen Czech seats on the Czech Constitutional Court are or were up for reappointment this year and next year. The incumbent President of the Republic, who was elected this year, has established an advisory body to recommend candidates to him and, among other things, to ensure diversity of opinions. He has also invited various institutions to submit proposals. It remains to be seen whether this change, which apparently increases transparency and entails certain informal self-commitments but is nevertheless controversial (see here), will result in a balanced composition of the Court.

A more or less far-reaching shift of selection competencies to recommending, exclusively proposing or even conclusively selecting bodies such as judicial councils and the like can also be found in many other countries. Involving a council or board, preferably one with a dominant share of members from the judiciary, in the selection process is propagated as an instrument for the depoliticisation of the selection of judges and an associated increase in the independence of judges, and it may of course also contribute to political pluralisation. However, it is anything but a reliable means to these ends. It often disguises political influences – which, incidentally, can emanate not only from political organs but also from judicial and other actors –, and it exacerbates dependencies within the judiciary. Moreover, the more binding the influence of such bodies is, the more it raises problems of democratic legitimacy, especially in the case of constitutional courts (for more details, see here, pp. 210 ff.).

Qualified majority requirements for the election of judges, as provided for in Germany (two-thirds majority requirement, Sect. 6 II 2, Sect. 7 FedConstCtAct) and many other countries – sometimes only for a portion of the judges elected by multi-member bodies –, are probably the most helpful devices. But even they can fail to secure balance, be it because the qualified majority requirement relates to too small a proportion of the judges, be it due to blockades to which it may lead in the absence of a sufficient fallback mechanism, or be it because a dominant party or ruling party coalition is able to fulfil an applicable qualified majority requirement without involving the opposition, as has, for instance, repeatedly been the case in Hungary due to an electoral law allowing compositions of parliament which poorly reflect voters’ preferences. Norms aiming to have the political composition of parliament reflected in the judiciary, as they exist in Switzerland in some cantons and, as a respected convention, on the federal level, have a sufficiently pluralising effect only in a multi-party system without large political coalition bloc formations, not to mention the fact that in the current phase of increasing political polarisation, mere conventions are increasingly coming under pressure.

Soft law and the – not just soft – prohibition of regression

International practice thus reveals a widespread sense of the need for political plurality in the composition of the highest courts. However, even higher-quality constitutional democracies (for rankings/categorisations see, e.g., here, and here, pp. 10 f.) do not share strict abstract standards with respect to this, let alone more detailed standards for the relevant institutional design. For the time being, such standards and designs can therefore hardly be developed by international and supranational courts, which cannot at will decouple their interpretation of abstract rule of law norms from the legal convictions prevailing in the respective member states or contracting states. Moreover, the above examples show that the appropriateness of legal frameworks to ensure a balanced composition of constitutional courts is highly context-dependent. Strict and uniform detailed standards, therefore, don’t make sense.

What is discernible, however, is 1) an emerging soft law which identifies the balanced composition of apex courts deciding constitutional issues as a desideratum of constitutional court organisation and 2) a ban on regressions in this regard, especially where an overall assessment indicates that these are aimed at political capture of the respective court.

The Venice Commission, a Council of Europe institution which advises member states on constitutional issues and is ascribed the function of developing soft law (see Grabenwarter, in this book pp. 527 ff., 540), advocates institutional precautions “reducing the risk of one faction dominating the CC” (here, par. 24, regarding staggered appointments). It welcomes regulatory devices “ensuring to achieve a degree of heterogeneity and pluralism and greater balance in representation” (sic, here, par. 35, regarding term limits; for a more general discussion of the balance desideratum, see here, pp. 156 ff.) and preventing even appearances of dependence which may arise where such balance is absent (“so that the judges are seen as being more than the instrument of one or the other political force”, here, sect. 4.3.1, regarding qualified majority requirements for the election of judges).

Following the “velvet revolution” in Armenia, the Venice Commission even found the legislative aims of securing “pluralism and greater balance in representation” and a better reflection “of the changing political and societal views of the society” (sic the analysis of the advantages of term limits) by way of introducing retroactive term limits for constitutional judges (who had formerly been appointed for lifetime up to retirement age) important enough to justify certain departures from the principle of irremovability of judges. The Commission therefore did not altogether reject a reform which introduced a twelve-year term limit and shortened the tenure of incumbent judges of the Constitutional court accordingly. Under the given circumstances, where the introduction of term limits would otherwise have taken a long time to become fully effective, the Commission did not rule out any shortening of terms of office but only demanded a transitional period that would allow balance between the principle of irremovability against the legitimate aims of the reform (see in more detail here, par. 27 ff., 52 f.). This was an amazingly generous concession to the interest voiced by the Armenian government in having the reform take effect soon, because it lacked context-sensitivity. The Venice Commission made no effort to investigate whether the situation in Armenia was such as to make the reform urgent enough to justify some putting aside of a principle as important as that of the irremovability of judges. In fact, the composition of the Armenian Constitutional court had been one-sided, but – here I have to differentiate my presentation of the matter in the German version of this blog post, following a valuable commentary added by Ashot Poghosyan – possibly only in the sense that the new parliamentary majority that had come to power with the “velvet revolution” was not yet represented on the court, and the Venice Commission never analysed whether and why this was unacceptable, nor how much time it would have taken to reach an acceptable balance without encroaching upon the principle of irremovability, nor whether the new rules were likely to produce more acceptable results in the given situation.

In a yet more amazing decision of 21 November 2023 in the case of Alvina Gyulumyan and Others, the ECtHR has driven the licence to discard the principle of irremovability even further, finding nothing reprehensible in the shortening of judicial terms of sitting Armenian constitutional judges although Armenia had not even abided by the Venice Commission’s recommendation to pay respect to the irremovability principle by providing for a period of transition balancing that principle against the legitimate reform interest. Armenia had instead decided to leave it at ending the terms of all sitting judges after twelve years in office. Again, context does not seem to have mattered: The court quotes the Venice Commission’s praise of limited terms as a means to “achieve a degree of heterogeneity and pluralism and greater balance in representation” (par. 55 of the decision, with par. 35 of the Venice Commission’s opinion) as well as its praise of the introduction of a three-fifths majority requirement for the election of constitutional judges (ibid., with par. 45 of the VC opinion), and it emphasises the legitimacy of the aim “that the high democratic standards concerning the independence of the Constitutional Court … produced their effects as soon as possible” (par. 77) without either explaining why and how shorter terms of office contribute to enhancing judicial independence (of all things!)⁸⁾ or considering reasons for a need to make the reform immediately effective. Instead, the ECtHR contents itself with the “concern for achieving the right balance” which the Armenian authorities had manifested by asking “questions to the Venice Commission”, although no heed was paid to the answer (par. 78). Following the guidelines to be reaped from this decision, a new parliamentary majority might as well “reform” the lifetime appointment (until retirement at 70) of constitutional judges in Austria in favour of a twelve-year term to the immediate effect that more than half of them would have to clear the bench because they have been in office for more than twelve years. Had the Court properly addressed the issue of systemic impartiality, it might have occurred to it that, considering the specific context, it is by no means clear that the Armenian reforms have improved the situation in that respect. While the welcomed three-fifths majority requirement could do nothing to secure pluralism on the Constitutional court, given that the new parliamentary majority of Nikol Pashinyan’s “Civil Contract” that had come to power in the wake of the velvet revolution has from the outset, i.e. from the election of 9 December 2018 on, been larger than three fifths (see here and here), the immediate entering into force of the shortened judicial terms, without a transition period, has by now enabled the new majority to elect six of the nine judges of the Constitutional court (see judicial bios on the court’s website). Whether this can be counted as progress towards impartiality that justifies the sacrifice of tenure stability remains to be discussed, to say the least. At any rate, the ECtHR decision in the Gyulumyan case can certainly not count as progress towards clarification of the systemic impartiality issue.

A requirement that constitutional courts should not be politically one-sided and that the framework conditions should counteract one-sided appointments in a reasonably reliable manner has not yet become established to the extent that it can be identified as a hard normative standard of the ECHR or EU law. However, where legal convictions are developing in a certain direction, they can at least gain legal significance as standards concerning the direction of change. And in view of complexities and context dependencies that make uniform, context-free hard standards appear appropriate only within narrow limits, an assessment of the overall situation can at least make it possible to identify certain manoeuvers as clearly contrary to the rule of law in a given context.⁹⁾ Context-sensitivity and directional control are also adequate ways to take account of the fact that balance in the composition of courts is a question of degree and that the ideal, let alone the institutional means to achieve it, can hardly be determined with any degree of precision.

With regard to the Disciplinary Chamber (now renamed and restructured, see here, with further references) of the Polish Supreme Court, for instance, the ECJ found that the fact that the National Judicial Council, which is involved in the appointment the members of this chamber, “is, for the most part, made up of members chosen by the legislature cannot, in itself, give rise to any doubt as to the independence” (which, in the terminology of the EJC, includes the impartiality) of the judges appointed, but that it may raise such doubts in combination with other circumstances, such as, inter alia, the fact that the rules on the composition of the Judicial Council had recently been changed to the effect that the 15 members previously elected by their peers were now elected by a legislative body, and that the Council in its new composition therefore consisted almost exclusively (23 out of 25 members) of persons appointed by the Polish executive and legislature whereas formerly the majority of its members had been elected by the judiciary (ECJ, judgment of 15/7/2021, C-791/19, par. 103 f., with further references). Shortened terms of office for Council members were also identified as contributing to the negative overall picture (ibid., par. 105 f.). In an overall assessment taking these and other changes into account, the Court did not consider the independence and impartiality of the Disciplinary Chamber preserved (ibid. para. 112, 147). Legal classifications might have been more distinct and more differentiated in this judgment, especially with regard to impartiality and, in particular, systemic impartiality, and regrettably, the court did not explicitly address the most obvious problem, i.e. the complete lack of precautions against politically one-sided appointments. As a consequence, it also failed to take note of the fact that precisely this problem was exacerbated by the shortening of terms of office. Nevertheless, it is obvious that the significant deterioration in the framework conditions for a politically balanced composition was one of the reasons why the Court was not convinced of the “neutrality” of the Disciplinary Chamber “in relation to the conflicting interests” (ibid. par. 112; on the overall assessment of circumstances, including their changes, in relation to the Judicial Council and the Disciplinary Chamber, see also ECJ, judgment of 22/3/2022, C-508/19, par. 74 ff.; judgment of 19/11/2019, C-585/18 et al., par. 142 ff.; for the relevance of the direction of change cf. also judgment of 5/6/2023, C-204/21, par. 286).

In a similar vein, the ECtHR found that the Disciplinary Chamber of the Polish Supreme Court does not meet the requirement of an independent and impartial court within the meaning of Article 6 I 1 ECHR (judgment of 22/7/2021, no. 43447/19, par. 270 ff., 284; see also judgment of 6/10/2022, no. 35599/20, par. 192 ff. 215, and judgment of 6/7/2023, no. 21181/19 and 51751/20, par. 340). All in all, the ECtHR has focused more one-sidedly on the independence of the Polish Judicial Council from political influence as the underlying deficit and, in contrast to the abstract definitions discussed above, remains less productive in concreto with regard to the question of systemic impartiality. Like the ECJ, however, the ECtHR also takes into account contexts and directions of development in complex matters and where not clear, hard standards have as yet evolved (see above text with fn. 9).

With regard to the justice system, the ECJ has attached an even more decisive relevance to the direction of change. To quote Advocate General Collins’ opinion of 15/12/2022 in joined Cases C-181/21 and C-269/21: “It is settled case-law that Article 19(1) TEU precludes national provisions relating to the organisation of justice which reduce, in the Member State concerned, the protection of the value of the rule of law, in particular guarantees of judicial independence“ (par. 54; cf. ECJ, judgment of 20/4/2021, C-896/19, par. 65, with further references). Misleading paraphrases¹⁰⁾ notwithstanding, this prohibition of regression obviously includes regressions to a state that does not in itself run counter to judicial independence or other “values of the rule of law”. If it were otherwise, the prohibition of regression would be superfluous because in every case of its applicability a violation of the relevant value of the rule of law could be established regardless of the direction of change.

Ban on regressions concerning systemic impartiality

Without any doubt, the postulated prohibition of regression also applies to safeguards of judicial impartiality, which is one of the central “values of the rule of law”. Therefore, it seems reasonable to assume that it is not necessary to write the German two-thirds majority requirement for the election of constitutional judges into the Basic Law, as has often been demanded in order to protect it against backlash in case of a populist takeover. The abolition of this requirement, at least if it were carried out without replacement by equally effective other precautions to avoid systemic bias on the Federal Constitutional Court, would be contrary to the prohibition of cutting back the protection of this European constitutional value.

This is an English update of the German version published on 30 November. Minor changes relate mainly to the situation in Armenia and to assessments of that situation by the Venice Commission and by a decision of the ECtHR that was published on 7 December (see section “Soft law and the – not just soft – prohibition of regresssion“ below).