The rule of law as the lodestar of the European Convention on Human Rights: The Strasbourg Court and the independence of the judiciary

• Published date: 01 January 2021
• Author: Robert Spano
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12377

KALEIDOSCOPE: ON THE INDEPENDENCE

OF THE JUDICIARY

The rule of law as the lodestar of the European

Convention on Human Rights: The Strasbourg

Court and the independence of the judiciary

Robert Spano

*

Abstract

The rule of law is a constitutional principle under the European Convention on Human Rights.

Throughout its history, the rule of law has beenthe lodestar guiding the development of the case-law

of the European Court of Human Rights. In recent years, the normative impact of this principle has

been increasing in the case-law of the Court, in particular in cases dealing with the independence of

the judiciary. Thearticle discusses the conceptualcore of the rule of law under the Conventionsystem

as a fundamental component of “European publicorder”. Subsequently, the three-dimensional norma-

tive status of the rule of law is explored as well as the Court's statement that the principle is “inherent

in all the Articles of the Convention”. On this basis, an in-depth analysis is undertaken of the applica-

tion in recent Strasbourg case-law of theindependence of the judiciary as a fundamental organic com-

ponent of the rule of law. Finally, the author reflects on the “symbiotic”relationship in the field of

judicial independence between the Strasbourg Court and the Court of Justiceof the European Union.

Lodestar: a star that is used to guide the course of a ship, especially the pole star; a person or thing that

serves as an inspiration or guide.

1|INTRODUCTION

The rule of law

1

is a constitutional principle in the system of human rights protection within the legal space of the

Council of Europe. Throughout the history of the European Convention for the Protection of Human Rights and

*

President of the European Court of Human Rights, Judge elected in respect of Iceland. I would like to thank my legal stagiaire, Ms Ingunn Elísabet

Markúsdóttir, for her excellent research assistance in preparing this article. All views expressed herein are my own.

1

This article will not explore the wider historical origins of the rule of law (l'État de droit (prééminence de droit), Rechtsstaat); for a comprehensive

discussion, see B.Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004), chs 1–4. Although the focus of this

article is thus the principle of the rule of law under the Convention, it is important to immediately make clear that its interdependence with the other

fundamental principles of democracy and the protection of human rights is of course of great significance for the Convention system, as transpires from

its Preamble and the case-law of the Strasbourg Court; see, for example, in the context of Article 3 of Protocol No. 1, most recently Selahattin

Demirtas¸v. Turkey (No. 2) [GC] (no. 14305/17), 22 December 2020, para. 382: ‘The Court reiterates that democracy constitutes a fundamental element

of the “European public order”, and the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations

of an effective and meaningful democracy governed by the rule of law’. See, also, Mugemangango v. Belgium [GC] (no. 310/15), 10 July 2020, para. 67.

Received: 7 January 2021 Accepted: 7 January 2021

DOI: 10.1111/eulj.12377

Eur Law J. 2021;27:211–227. wileyonlinelibrary.com/journal/eulj © 2021 John Wiley & Sons, Ltd. 211

Fundamental Freedoms (“the Convention”), the rule of law has been the lodestar guiding the development of the

case-law of the European Court of Human Rights (“the Court”,“the Strasbourg Court”). In recent years the norma-

tive impact of the rule of law has been increasing in the case-law of the Court, in particular in cases dealing with the

independence and impartiality of the judiciary. However, judicial independence is only one of the prominent manifes-

tations of a broader development towards a more robust enforcement of the rule of law which is now permeating

the Court's jurisprudence. It is, and will continue to be, an important function of the Strasbourg Court to give

concrete and effective expression to the principle of the rule of law under the Convention.

I will begin by reflecting on certain conceptual elements which lie at the core of the rule of law within the Con-

vention system drawing from its origins in the Preamble to the Universal Declaration of Human Rights of 1948. The

nexus between the rule of law and the notion of a “European public order”, identified by the Court, will also be

explored. Subsequently, the normative status of the rule of law within the Convention system will be analysed by

focusing on one of the Court's statements of principle which is that the rule of law is “inherent in all the Articles of

the Convention”.

2

Finally, an in-depth analysis will be undertaken of the application in recent Strasbourg case-law of

the rule of law as a fundamental element of judicial independence. This final section will include some observations

on the “symbiotic relationship”between the current status of Convention law and the important case-law of the

Court of Justice of the European Union (“the CJEU”,“the Luxembourg Court”).

2|THE CONCEPTUAL CORE OF THE RULE OF LAW: A “FUNDAMENTAL

COMPONENT OF EUROPEAN PUBLIC ORDER”

The principle of the rule of law seems simple at first glance, but, when one attempts to explore its conceptual scope and

content, things become quite complex.

3

Indeed, much academic ink has been spilled on attempting to explain its constitu-

ent elements and jurisprudential nature.

4

However, in the landmark judgment in Golder v. the United Kingdom of 1975,

the Strasbourg Court made clear that the rule of law under the Convention is “one of the features of the common spiri-

tual heritage of the member States of the Council of Europe”.

5

Itisfromtheruleoflaw“which the whole Convention

draws inspiration.”

6

It is a principle “underlying the Convention”along with the “avoidance of arbitrary power”.

7

Nowhere in the provisions of the Convention or its protocols is the principle of the rule of law stated. However,

it is expressly enshrined in the text of its Preamble, as follows:

Being resolved, as the governments of European countries which are like-minded and have a common

heritage of political traditions, ideals, freedom and the rule of law,

8

to take the first steps for the col-

lective enforcement of certain of the rights stated in the Universal Declaration …

The Preamble to the Convention thus explicitly refers at the outset to the Universal Declaration of Human Rights,

proclaimed by the General Assembly of the United Nations on 10 December 1948.

9

It is safe to assume that the

2

See Section 3below and the references therein.

3

Some have argued that the “rule of law should not be the touchstone for all elements in the juristic landscape”; see W. Lucy, ‘Access to Justice and the

Rule of Law’, (2020) 40(2) Oxford Journal of Legal Studies, 377, at 402.

4

The seminal pieces are: L. Fuller, The Morality of Law (Yale University Press, 1964); J. Raz, ‘The Rule of Law and Its Virtue’,inTheAuthority of Law: Essays

On Law and Morality (Clarendon Press, 1979), 210; and also by Raz, ‘The Law's Own Virtue’, (2019) 39(1) Oxford Journal of Legal Studies, 1. See, also, Lord

Bingham, The Rule of Law (Allen Lane, 2010). Within the Convention system, see G. Lautenbach, The Concept of the Rule of Law and The European Court of

Human Rights (Oxford University Press, 2013).

5

Golder v. the United Kingdom [PL] (no. 4451/70), 21 February 1975, Series A 18, para. 3.

6

Rozkhov v. Russia (no. 2) (no. 38898/04), 31 January 2017, para. 76.

7

Ramda v. France (no. 78477/11), 19 December 2017, para. 60.

8

Emphasis added.

9

General Assembly Resolution 217 A, 10 December 1,048. The first two recitals of the Preamble state as follows: “Considering the Universal Declaration of

Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948; Considering that this Declaration aims at securing the

universal and effective recognition and observance of the Rights therein declared …’.

212 SPANO