Résumé en langue française
Vingt ans se sont écoulés depuis que la Grande Chambre de la Cour européenne des droits de l’homme a affirmé que « la notion de séparation des pouvoirs exécutif et judiciaire, (…) a pris une importance grandissante dans la jurisprudence de la Cour». Les dernières années ont impliqué un nouveau tournant quant à l’importance de ce principe dans le corpus jurisprudentiel de la Cour. On pourrait même aller jusqu’à suggérer que son importance a finalement … « grandi ». Pour autant, est-il légitime de suggérer que l’importance de la séparation des pouvoirs dans la jurisprudence de la Cour a atteint son âge de maturité ?
Twenty years have just lapsed since the Grand Chamber of the European Court of Human Rights (ECtHR/Court) affirmed that “the notion of separation of powers between the executive and the judiciary […] has assumed growing importance in the case law of the Court” (Stafford v United Kingdom, 2002, para 78). For the biggest part of these two decades, the observer of the ECtHR case-law had to patiently contemplate the importance of the separation of powers “growing” (A). The past few years, however, implied a new turn on the importance of this principle in the jurisprudential corpus of the Court. One could even go as far to suggest that its importance finally … “grew up” (B). Even so, though, is it legitimate to suggest that the importance of the separation of powers in the ECtHR case-law reached its age of maturity (C)?
A. A separation of powers of “growing importance”
It wouldn’t be an exaggeration to claim that the separation of powers has always been of pertinence for the ECtHR. Both in Stafford and, shortly right after, in Benjamin and Wilson v the United Kingdom (2002), where the Court referred to the “fundamental principle of separation of powers” (para 36), the Court simply inaugurated an era where it would explicitly invoke the principle and acknowledge its relevance. Stafford, an Article 5 case, would after all invoke Incal v Turkey, a 1998 Grand Chamber judgment, which dealt with the notion of “independent and impartial tribunal” under Article 6 of the European Convention on Human Rights (ECHR) without, however, explicitly referring to the notion of separation of powers.
Since 2002, the Court continued to refer to the importance of the notion of separation of powers in two big categories of cases. First, the Court did so in cases pertaining to the separation of powers between the executive and the judiciary, with a view to protect the independence of the judiciary. Second, the Court invoked the principle in cases related to the separation of powers between the legislative and the judiciary, with a view to protect the independence of the Parliament. It comes thus as no surprise that in 2016, the Court referred to the “generally recognised principles of parliamentary autonomy and the separation of powers” (Karácsony and Others v Hungary, para 157).
As a general rule, the reference to the importance of separation of powers would qualify of “declaratory” nature. More than anything, it appeared like a leitmotiv in the relevant cases, without the Court feeling the urge to further discuss or enhance the role of the principle in its case-law. The Court made certain to clarify that the principle of separation of powers “is not decisive in the abstract” (Pabla Ky v Finland, 2004, para 35), emphasising that what is crucial in every case is whether the requirements of the ECHR are met. The Court rather felt compelled to highlight that the ECHR system does not impose on States “any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction” (Kleyn and Others v the Netherlands, 2003, para 193).
B. A separation of powers of … grown importance?
Without arguing that the abovementioned principles have changed, it would be an omission not to acknowledge the shift that occurred on the pertinence of separation of powers in the case-law of the Court the past recent years. In very recent cases, the Court did not refer anymore to the “growing importance” of separation of powers but rather to its “importance” as such (Grzęda v Poland, 2022, para 302; Gloveli v Georgia, 2022, para 49). While this shift in the rhetoric is not necessarily meant to be intentional or consistent – this is left to be seen – and one could possibly claim that it carries relative weight, it cannot be disregarded that the Court has become more straightforward about the role of the principle in its case-law in a number of ways.
In 2019, already, the Court upheld that the declaration of a state of emergency does not alter the protection required by the judiciary against interference by the executive, implying thus the continued and unabated relevance of the separation of powers in times of crisis (Alparslan Altan v Turkey, para 102). Even earlier, in Ramos Nunes De Carvalho E Sá v Portugal, the Court examined the system of judicial discipline in Portugal in globo and through the repetitive references to the separation of powers, it connected the Article 6 ECHR requirement for “full jurisdiction” to the separation of powers between the judiciary and the other branches of government (2018, para 196).
The most dramatic shift in the pertinence of the principle was yet to come. In Guðmundur Andri Ástráðsson, the Grand Chamber introduced a purely “institutional” language, explicitly referring to the “institutional requirements of Article 6 § 1” – the requirements of “independence”, “impartiality” and “tribunal established by law” – that “are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers” (2020, para 233). The preservation of the separation of powers became inherent part of the new test introduced by the Court for the assessment of whether the irregularities in a given judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law (para 246). The Court explicitly referred to the separation of powers as the object and purpose of the requirement of a tribunal established by law on an equal footing to the very rule of law (ibid). This cannot go unnoticed. While the rule of law, one of the Council of Europe pillars, is explicitly mentioned in the ECHR, this is not the case for the separation of powers. Yet, the principle becomes focal for the interpretation of Article 6 ECHR.
The Polish cases pertaining to the judicial reform in the country, reiterated (e.g. Xero Flor w Polsce sp. z o.o. v Poland, 2021) and further consolidated the pertinence of separation of powers in the case-law of the Court. In Reczkowicz v Poland, the Court openly scrutinized the interpretation of separation of powers by the Polish Constitutional Court, noting that “while formally relying on the constitutional principles of the separation of powers and the independence of the judiciary, [it] refrained from any meaningful analysis of the Supreme Court’s resolution in the light of these principles” (2021, para 261). In Advance Pharma Sp. Z O.O V. Poland, the Court even referred to the non-compliance with the separation of powers, concluding that “the breaches of the domestic law that it has established above, arising from non-compliance with the rule of law, the principle of the separation of powers and the independence of the judiciary, inherently tarnished the impugned appointment procedure” (2022, para 345). In the meantime, it came as no surprise, that in Dolińska-Ficek and Ozimek v Poland, the separation of powers found for the first time ever its way to Article 46 ECHR. The Court connected the measures required on the part of the Polish State for the implementation of the judgment to the separation of powers: “In this situation and in the interests of the rule of law and the principles of the separation of powers and the independence of the judiciary, a rapid remedial action on the part of the Polish State is required” (2021, para 368).
C. Separation of powers: an importance that reached its maturity age?
The aforementioned observations are meant to present a very brief overview on the evolved pertinence of the separation of powers in the case-law of the ECtHR. It would be legitimate to claim that the importance of the principle is not anymore a “growing” but rather a “grown” one.
Many questions remain open for a lengthier analysis, though. It would be an exaggeration to claim that the importance of the separation of powers reached its maturity age. More opportunities but also challenges are ahead. The place that the separation of powers claimed and occupied in the case-law of the Court seems to be connected to the pragmatic exigencies of the current times. The persisting rule of law/separation of powers crisis in Europe brought the separation of powers on the front line. The ECtHR acknowledged that the requirements of the ECHR cannot be met within a system of powers that is not based on separation of powers. This principle though is not an easy one to tame. One can get easily lost in a “jumbled portmanteau” (Geoffrey Marshall, Constitutional Theory, 1971) like the one of the separation of powers. In his separate concurring opinion in Reczkowicz v Poland, Judge Wojtyczek wondered what legal rule(s) was (were) breached on the part of the State, “ (…) Article 6 of the Convention? The principle of the separation of powers and the independence of the judiciary (…))? If so, is this the separation of powers and the independence of the judiciary as laid down in the Polish Constitution or as understood under the Convention or other international instruments? (…)” (para 1.9). Such questions will continue to occur. And they will not be the only ones. Separation of powers is a principle with many implications. The ECHR system has embraced a number of them especially under Article 6 ECHR in times where the pressures on the judicial systems of Europe are noticeable and urgent. There are more miles to walk, however. The separation of powers in its checks and balances version implies different opportunities and challenges for the ECtHR that are yet to be explored. As we saw, in a number of cases, the Court addressed the separation of powers without really distinguishing it from the rule of law principle on which the ECHR system is premised. It is not an exaggeration to claim that the ECHR system is also premised on the separation of powers. In this context, the exploration of such fundamental principles require time. It seems that we just got started…