iii. Independent tribunal

Article 6, paragraph 1 of the ECHR requires that a tribunal must meet the requirements of independence and impartiality. An assessment of the independence of a tribunal, on the one hand, depends on the type and manner of the appointment of its members and the duration of their term of office, as well as the existence of guarantees against outside pressures. On the other hand, a tribunal must present an appearance of independence. Namely, a judicial body not only has to “govern justice” but it must ensure that justice is seen to be done. Otherwise, the confidence that the courts in a democratic society must inspire in the public may be undermined.¹¹²⁶ The independence of judges may be challenged in a case where the manner of their appointment, generally speaking, is not satisfactory, or that the composition of the particular court deciding the case was influenced by improper motives. However, the independence of judges, per se, is not endangered if they are not appointed for life, provided that they cannot be discharged in an arbitrary manner or on grounds that are not related to the specific reason for dismissal.¹¹²⁷ In a certain case, a term of three years of office may satisfy the requirement of independent tribunal.¹¹²⁸ In addition, the fact that the executive appoints members of a tribunal is not per se contrary to the principle of independence.¹¹²⁹ What is important, however, is that the tribunal must have the power to give binding decisions that cannot be altered by a non-judicial authority.¹¹³⁰

The executive may also issue guidelines to the members about the general performance of their functions, as long as any such guidelines are not in reality instructions as to how cases are to be decided.¹¹³¹ If the executive observes the work of tribunals, to which the executive is actually liable, such tribunals do not possess independence.¹¹³² Though the requirement of independence is thoroughly guaranteed where judges are appointed for life and work full-time and hold office ad vitam aut culpam, the practice of an initial appointment (e.g., on a one year probation) with the expectation of appointment for life time after this period, is not incompatible with Article 6 paragraph 1 of the ECHR. In this case, it is important that the entire process for the appointment of judges for a probationary period and for a full appointment afterwards is safeguarded against outside pressure. This also concerns the appointment of additional judges.¹¹³³ In respect of the principle of independence, account must be taken of specific circumstances, including personal, which are present in the course of the overall judicial reform process.¹¹³⁴ The appointment of judges by a political assembly is not in itself incompatible with Article 6 paragraph 1 of the ECHR, if the practice of appointment as a whole is satisfactory and where guarantees against outside pressures exist.¹¹³⁵ These requirements shall not be satisfied if members or sympathisers of the ruling party (HDZ in the relevant case) are appointed to judicial office but their work is manifestly influenced by fear that their “politically incorrect” decision might lead to their dismissal.¹¹³⁶ As to those cases, which all relate to Canton 10, the respondent party, the Federation of Bosnia and Herzegovina, in fact conceded that there was a “problem” in the judicial system in Canton 10 in respect of both “efficiency and independence”.¹¹³⁷ There is a similar problem if a judge of the military tribunal is subject to the apparent control by higher-ranking officers and his tenure as a judge is far too short to achieve a satisfactory level of independence.¹¹³⁸ On the other hand, the presence of the international monitors at court proceedings, even where the public is excluded from a hearing, in principle, does not endanger the concept of judicial independence.¹¹³⁹ The exception is the BiH Constitutional Court. When it comes to sessions closed to the public, which is more-or-less a rule, the presence of international or national monitors would endanger the independence of judges, or that of the BiH Constitutional Court. The BiH Constitutional Court provided a reasoning for such a position as follows:

“The monitoring of judicial proceedings does not require the Constitutional Court of Bosnia and Herzegovina to permit attendance of the closed-door sessions of the Constitutional Court. The Constitutional Court is not a judicial body in a classical sense of the term, although it does carry out certain judicial functions in a procedure which is specific and significantly different from the procedure carried out by the ordinary courts.

The very presence of persons coming from outside the BiH Constitutional Court, and particularly the monitoring at the sessions on deliberations and voting of the Constitutional Court, would constitute a violation of Article II.3(e) of the Constitution of Bosnia and Herzegovina, and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In other words, each and every decision that has not been adopted behind closed doors, but under someone else’s supervision, shall not be considered as being adopted in compliance with the principles of a fair trial.”¹¹⁴⁰

Not only individual judges or a court as an organ but the judiciary as a whole, the one of the three traditional “branches of government” under the principle of separation of powers, must be respected and independent. Laws on the judiciary guarantee the independence of the judiciary, exercising judicial power in accordance with the law and the Constitution. The fact that the judiciary is funded from the budget of one territorial-administrative unit (e.g., Canton) does not mean that it is dependent on the executive branch.¹¹⁴¹ The administrative and legislative branches, however, must not interfere with the work of the judicial branch, such as to vote for or to enact norms depriving the courts of their judicial authority secured by the Constitution. This is the case, for instance, where the legislative branch prohibits or suspends the enforcement of court decisions through law,¹¹⁴² or modifies enforcement decisions.¹¹⁴³