5: Independence of the Judiciary

Question 1

judicial independence in Article 6, ECHR

Answer 1

right to have your call be heard by an independent/impartial tribunal established by law

Question 2

independence, separation of powers and appearance in the ECHR

Answer 2

independent vis-à-is other powers and vis-à-vis parties

question of whether the body presents an appearance of independence is also relevant

court looks at whether the tribunal is deemed to be independent, impartial and established

Question 3

criteria for assessing independence in the ECHR

Answer 3

manner of appointment

term duration

existence of guarantees against outside pressures

whether there is an appearance of independence
- justice must not only be done, but it also must be seen to be done

Question 4

independence of the judiciary in the US: appointment power

Answer 4

Article II, Section 2

appointment power belongs to the president when it comes to principle officers
- most judges

when it comes to inferior officers, congress can decide that they are appointed by the president alone, in the courts of law or heads of departments

no mention of regular employees of the federal government who are not subject to the appointment clause

Question 5

removal power in the US

Answer 5

can the president remove any officer they want?

congress can limit the removal power of officers in quasi-legislative or quasi-judicial positions but not purely executive officers

extent of removal power depends on the function of the officer

congress cannot create removal restrictions that impede the president’s ability to perform their constitutional duty

Question 6

judicial impeachment in the US

Answer 6

judges can be impeached just like the president since they are officers of the US
- very rare

power belongs to congress

• house of representatives as the prosecutor deciding if there is trial or not
• senate convicts them with a 2/3 majority

Question 7

independence of the judiciary in France

Answer 7

enshrined in Article 65 in the constitution

- provided for

Question 8

independence of administrative judges in France

Answer 8

not provided for in the constitution but in case law of the CC

independence is guaranteed and so is the specific nature of their functions upon which neither the legislative nor the government can infringe