The European Court of Human Rights is a high-independence judicial body, because the judges are elected by a democratic assembly (the Parliamentary Assembly of the Council of Europe) for a long, non-renewable nine year mandate and benefit from functional immunity for speech and acts while discharging their duties. In terms of their legitimacy, the judges enjoy a broad European-wide political legitimacy, since the members of the Parliamentary Assembly are representatives of the 47 national Parliaments of the Contracting Parties to the Statute of the Council of Europe. This indirect political legitimacy of the Strasbourg judges is often forgotten. 

Yet both the internal and the external independence of the judges can be improved. As in many Constitutional and Supreme Courts, there should be a rotation of the presidency of the Sections of the Court, combined with a reduction of the term of section presidents. Article 25(c) of the Convention provides that the plenary Court shall “elect the Presidents of the Chambers of the Court” (who may be re-elected). In fact, the Court’s 47 judges are divided into five sections, within each of which three to four chambers are formed. The plenary elects the presidents of the five sections. The present Convention framework does not hinder the election of section presidents in accordance with a seniority based system of voluntary rotation. Such system would avoid the inconveniences of campaigning and lobbying for electoral posts and therefore better protect the internal independence of the judges. 

This new electoral philosophy should be articulated with a new voting philosophy. Pending cases should only be discussed by the judges in the court room, and not externally. Rules 22(1) of the Rules of Court states: ‘The Court shall deliberate in private. Its deliberations shall remain secret’. Rule 28(2)(d) provides that: ‘A judge may not take part in the consideration of any case if he or she has expressed opinions publicly, through the communications media, in writing, through his or her public actions or otherwise, that are objectively capable of adversely affecting his or her impartiality’. These rules should be reinforced by the adoption of a strict ‘rule of silence’ outside the courtroom.

The independence of the judges could be further strengthened with some fundamental ineligibility rules. Judges should be ineligible to apply for posts within the Court Registry (which provides legal and administrative support to the Court) for a period of five years after their mandate has ended; an equivalent rule should apply to Registry staff as regards applying for judicial posts at the European Court.

Judges should also be ineligible to apply for certain state positions for a period of five years after their mandate has ended; an equivalent rule should apply to the holders of those state positions as regards applying for judicial posts at the European Court. These “cooling-off period” rules would put an end to any risk of a “revolving door” between the Court and Government-dependent posts.  
The Court is a high-transparency judicial body, because the Convention secures the right of judges to join separate opinions to Grand Chamber and Chamber judgments and advisory opinions. Nevertheless, the Court’s transparency could be further enhanced. 

The transparency of the Court relates essentially to the mode of constitution of the Chamber and the Grand Chamber for each case. With regard to the Grand Chamber, Article 26(4) and 26(5) of the Convention is complemented by Rule 24 of the Rules of Court. Rule 24(e) provides: ‘(e) The judges and substitute judges who are to complete the Grand Chamber in each case referred to it shall be designated from among the remaining judges by a drawing of lots by the President of the Court in the presence of the Registrar. The modalities for the drawing of lots shall be laid down by the Plenary Court, having due regard to the need for a geographically balanced composition reflecting the different legal systems among the Contracting Parties’. The practice has been that six “regional” groups are organized for the constitution of the Grand Chamber for each case, these “regional” groups are reviewed from time to time and the individual judges are chosen from these “regional” groups by manual drawing of lots.

With regard to the chambers and the sections, Rule 25(3) of the Convention is complemented by Rules 25 and 26 of the Rules of Court. Rule 25 of the Rules of Court on the “Setting-up of Sections” states: ‘The composition of the Sections shall be geographically and gender balanced and shall reflect the different legal systems among the Contracting Parties’ [the term ‘Section’ is used instead of ‘Chamber’]. Rule 26 of the Rules of Court on the “Constitution of the Chambers” states: “1 (b) The other members of the Chamber shall be designated by the president of the section in rotation from among the members of the relevant section.” The practice has been that, after consultation with the individual judges, the President of the Court proposes and the plenary ratifies the composition of sections. The constitution of the Chamber for each case depends ultimately on the section president.

These rules should be reviewed with a view to avoid any element of chance or discretion in the composition of judicial formations. Instead, there should be predictability and certainty, eliminating any room for doubt. The constitution of the Chamber and the Grand Chamber for each case should be determined in accordance with strictly objective criteria and a fully automated, publicly available procedure.

In accordance with a long-standing practice, Judge Rapporteurs are assigned anonymously to preside over the processing of each case. It is an open secret that the practice follows an internal rule according to which the national judge is the judge rapporteur in Chamber cases from his or her own country, save when the section president decides differently. In Grand Chamber cases, the President of the Court has total discretion in appointing the judge rapporteur. This practice should be changed. 
Firstly, the Convention does not hinder that the Judge Rapporteur be identified. Secondly, Rules 48-50 of the Rules of Court are manifestly insufficient to ensure the needed institutional transparency, in view of the utmost importance of the Judge Rapporteur’s input into the processing of cases. Thirdly, the applicants, the Governments, the lawyers and the general public have a right to know the identity of the Judge Rapporteur, in accordance with the overarching principle of transparency of the Council of Europe. Hence, Judges Rapporteurs should be publicly named and their appointment should be based on strictly objective criteria and a publicly available procedure.

The single judge may declare inadmissible or strike out of the Court’s list of cases an application under Article 34 of the Convention. The single judge is assisted by a non-judicial rapporteur who shall function under the authority of the President of the Court. In practice, both the single judge and the non-judicial rapporteur are appointed by the President of the Court. Other than the restriction that a single judge shall not examine any application against a country in respect of which he or she has been elected, the President of the Court has full discretion in the appointment of the single judge and the non-judicial rapporteur. This should not be the case. The criteria for designating single judges and non-judicial rapporteurs to particular countries should be objective and public. The mere fact that the single judge decisions are non-appealable, final decisions warrants such objectivity and transparency. The additional fact that they represent the vast majority of the Court’s output only shores up the argument for increased objectivity and transparency.   
The transparency of the Court’s output still leaves much to be desired. Separate opinions are a major, but still underestimated tool to guarantee the Court’s transparency and promote the development of its case law. Article 45 of the Convention does not hinder the identification of the majority and the minority in decisions. Judges who form the majority and minority in decisions should be identified in order to clarify the position of each individual judge. 

The practice of the Court has been open to separate opinions (on inadmissibility issues) joined to merits judgments which also incorporate inadmissibility decisions. Indeed, there is no reason why this practice should not extend to decisions as such. The omission in Article 45(2) of the Convention of a reference to decisions is a mere historical accident, given the original competence of the Convention organs, where admissibility was essentially a matter for the Commission. Furthermore, Rule 74(2) of the Rules of Court has already gone praeter legem, by including the possibility of a “bare statement of dissent”. Most importantly, decisions on inadmissibility occasionally deal with complex, crucial issues which relate to the Court’s jurisdiction and the interpretation of the Convention and the Protocols thereto. It is simply nonsensical that judges cannot express their individual views on issues of this magnitude in decisions on applications under Articles 33 and 34 of the Convention while decisions rejecting requests for advisory opinions may be accompanied by separate opinions or statements of dissent.

Article 46(3), (4) and (5) of the Convention do not rule out separate opinions in interpretation and infringement judgments. Yet Rule 93 of the Rules of Court prohibits such opinions in interpretation judgments while Rule 99 does not prohibit them in infringement judgments. This groundless difference of treatment should be solved by bringing the erroneous Rule 93 into line with the open rule enshrined in Article 46(4) of the Convention, read in conjunction with Article 45(2).

Sufficient reasoning (which is not ‘stereotypical’) should be provided for single judge decisions on inadmissibility and for the decisions of the Grand Chamber panels that reject a case to the Grand Chamber and these decisions should be published. These were crystal-clear demands of the Governments in the 2015 Brussels Declaration, after the criticism expressed by other national and international authorities.  Following the same logic, and since it deprives the parties of one degree of jurisdiction, any decision to relinquish in favour of the Grand Chamber should be reasoned.

All the sources of information relied on by the Court for the drafting of a judgment or decision should be made public, including information provided by the Court’s Jurisconsult, international and comparative law reports of the Court’s Research Division and third-party interventions. One essential element for the motivation of the Court’s judgments is its internal guidelines on just satisfaction. There is no reason why these guidelines should remain secret. The parties to the case have a right to know how the awarded just satisfaction was calculated.

Scholarly research shows that normally there is an inverse relation between independence and accountability of judicial bodies: more independence comes at the expense of less accountability. The Court is a low-accountability judicial body. Save for dismissal procedures when the judge no longer fulfills the “required conditions” and the prohibition of engaging in “any activity which is incompatible with their independence, impartiality or with the demands of a full-time office”, there is no other accountability mechanism for judges. With regard to the members of the Registry, the general disciplinary rules of the Council of Europe apply. But more could be done to make the Court accountable. 

The Court’s plenary is responsible for the most important decisions regarding the Court’s administrative and managerial policy. The Bureau, which does not have a Convention footing, is an advisory body to the President of the Court and does not have any decision-making power of its own. All judicial matters lay outside the scope of the advisory competence of the Bureau, which can only pronounce itself on administrative and extra-judicial matters which fall within the competence of the Court’s President. Hence, the Bureau’s task of facilitating coordination between the Court’s sections only contemplates matters of administrative and extra-judicial nature. Any pronouncement of the Bureau on judicial matters, including case law consistency, would be ultra vires.

Prior to the adoption of the Council of Europe’s budget each year, a detailed annual report approved by the Court’s plenary should be presented to the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, with information on the past results and future, expected results, in accordance with the Court’s administrative and managerial policy. Most importantly, the Contracting Parties should be given more input into the adoption of the Rules of Court.

In line with the nature of the Convention as a “constitutional instrument of European public order”, the focus of the Court’s administrative and managerial policy should be on inter-state cases and pilot-judgment procedures. Special human and financial resources should be allocated to these types of cases. Among other strategic options to be taken, a ‘situation room’ should be established within the Court to provide centralized, internal supervision of the development and follow up to these cases.  This should be a high-ranking executive department that enables the Court to assess more efficiently the development of such cases and the impact of the respective judgments in cooperation with the Committee of Ministers own supervisory mechanism. 

More generally, the further judicialization of the execution of the Court’s judgments, namely by means of the increased use of the infringement procedure, is a crucial strategic step that both the Court and the Committee of Ministers should envisage in order to be fully responsive to recalcitrant States. 

An accountability-based culture focused on producing a high-quality output, and not just statistical results, should pervade the Court’s administration and management. This is evidently only possible with a highly authoritative judicial body and a fully motivated and increasingly specialized Registry. The election of judges should involve an intensive public vetting process. A European-wide uniform vetting process should improve the already existing standards, both at the national and the international stages, including public interviews by the Parliamentary Assembly Committee on the Election of Judges to the European Court of Human Rights. After been elected, judges have an accountability obligation also with regard to their private lives. There should be full publicity about the ‘off-the-bench’ engagements of judges, including details about events sponsored by the member states.

The Registry is the backbone of the Court’s structure and contributes importantly to the quality of its output. Article 25(e) of the Convention provides that the plenary Court shall elect the Registrar and Deputy Registrar. This responsibility of the judges should be expanded to other positions of the Registry. Judges should have decisive input into the recruitment and career progression policy within the Court Registry.

The above-mentioned reform proposals should be perceived as a shared responsibility of the Court and the other bodies of the Council of Europe. Now more than ever, the Court as the jewel of the crown of the Council of Europe needs the unequivocal and unbaiting support of the other bodies of the Council. The obvious sometimes needs stating. There should be no doubt that, if the Court falls, the Council will also fall.