Judicial independence and impartiality : tenure changes at the European Court of human rights

Abstract

Judges should be impartial and independent, judging based solely on the law. Current constitutional literature suggests an important factor in securing this may be the length of tenure. The assumption is that judges with non-renewable terms are more independent than judges with renewable terms since they do not have to worry about reappointment, but proving this assumption empirically is not straightforward. Obstacles include difficulties in comparing different courts and the fact that there is often no obvious case outcome that proves independence. This article aims to overcome these obstacles with a mixed-methods study on the European Court of Human Rights during a time when the tenure rules changed. The study goes beyond the counting of votes and analyses the arguments used in separate opinions as indicators of independence. Our main findings are that, after the introduction of non-renewable terms, judges write more opinions overall, and more of them criticize the judges’ appointing states, while fewer defend it. We also find that judges on non-renewable terms are on average more likely to write opinions addressing violations as systemic problems and to use their opinions to provide guidance for their appointing states on implementing judgments and improving human rights protection.