Chilling effect: Turning the poison into an antidote for fundamental rights in Europe

Abstract

In the famous case of Baka v. Hungary, Judge Sicilianos proposed that the European Court of Human Rights should recognize a subjective right for judges to have their individual independence safeguarded and respected by the State. Such a reading of Article 6 of the Convention would enable national judges to claim a violation of that provision each time their individual independence is interfered with. It would also allow the Court to address one of the critical blind spots in the Convention system. However, the Court left the proposal dormant until recently. It is now put before the parties in three pending cases. This article argues that the Court should seize the opportunity to enhance the protection of judicial independence, but not by employing the proposed subjective right approach. Instead, it should rely on the better alternative: the chilling effect. Such an approach would enable the Court to fill the gaps in the Convention while remaining faithful to the text and avoiding the impression that judicial independence is a privilege of judges.

1. Introduction

The rule of law crisis has had a profound impact on European standards for safeguarding judicial independence. Both the European Court of Human Rights (the ECtHR, the Court) and the Court of Justice of the European Union (the CJEU) have invested great efforts in refining and developing their case law to offer greater protection to judges across Europe. Sadly, their efforts have been insufficient. Blind spots in European standards still result in deplorable outcomes: national judges, whose independence was violated, either cannot defend their independence at the supranational stage or their victories turn out to be Pyrrhic.

Before the ECtHR, applicant judges are currently forced to frame their complaints in terms of one of the Convention rights, mostly freedom of expression and the right to private life. However, not all infringements of judicial independence are at the same time violations of free speech or private life, and even if they can be presented as such, they miss the essence of the case: judicial independence. In Baka v. Hungary, Judge Sicilianos proposed a solution for this blind spot: under Article 6, the Court should grant judges a subjective right to independence – a right to have judicial independence respected at all times, even in cases where no link with another Convention right can be established. ¹ Some commentators have written in support of the idea, ² which was also raised by the ECtHR in three currently pending cases. ³

This article shows that relying on the chilling effect in such cases is the better alternative. According to this proposal, an applicant judge, who has been sanctioned for his or her upright (judicial) decisions or actions, could claim a violation of Article 6 of the Convention, because his or her fellow judges, who have heard legal remedies against the sanction, cannot be considered independent and impartial, since they have themselves been affected by the chilling effect – a poisonous fear that sanctioning of the applicant judge has injected into all judicial proceedings, challenging the sanction. Unlike the approach where the ECtHR would create a subjective right to judicial independence, the alternative chilling effect approach that this article proposes remains loyal to the wording of Article 6 ECHR and applies to both applicant judges and other applicants, as can be seen in Parlov-Tkalčić v. Croatia. ⁴ It thus obviates the impression that judges are a privileged caste, for whom the court has to zealously construct a brand-new fundamental right. At the same time, the chilling effect approach frees applicant judges from the ‘straitjacket’ of the material scope of the other Convention rights ⁵ and enables the ECtHR to focus on the essential aspects of the case. However, compared to the subjective right approach, it is narrower as it does not cover all the potential violations of judicial independence. This is a weakness, but can be regarded as an advantage as well.

This article, therefore, contends that the concept of the chilling effect is one of the crucial missing pieces of the puzzle of fundamental rights protection in Europe. It first sketches the limited protection of judicial independence before the ECtHR and presents the subjective right approach with its strengths and weaknesses. It then outlines the main idea of the chilling effect approach and presents its application in Biliński v. Poland – one of the cases currently pending before the ECtHR. It later shows that both the ECtHR and the CJEU have practically ignored the chilling effect in relation to judicial independence so far. It relies on the Strasbourg court's jurisprudence to assert that the Court could extend the regular application of the chilling effect from its ‘native’ field of freedom of expression (of judges) to judicial independence under Article 6 ECHR. It also zooms in on the three essential elements of the chilling effect approach that limit its scope of application, before concluding with an explanation why this is nevertheless a preferable approach to an alternative proposal for bolstering the standards of judicial independence, where the ECtHR would create a subjective right to judicial independence.

2. Blind spots and other limits of the Convention

There are two ways to defend judicial independence before the European Court of Human Rights. The first one relies on the parties to the legal proceedings. They claim that, contrary to what Article 6 of the Convention requires, ⁶ the judge that heard their case was not an independent and impartial tribunal established by law. ⁷ The problem arises when the party to the proceedings is not aware of the violation of the judge's independence. For example, if a president of the court has a personal interest in a case and pressures the deciding judge into a favourable outcome, this constitutes an interference with judicial independence, but the party might not even be aware of it. Another limit of safeguarding judicial independence through parties to judicial proceedings is that sometimes the measure does not have a sufficient connection to a concrete case to give rise to a reasonable doubt of independence or impartiality. If for example, the government reduces the salaries of judges, this constitutes an interference with material independence, but on that basis alone, the applicant will normally not be able to show that his right to an independent tribunal was violated. Such interference therefore cannot be addressed under Article 6. Such a blind spot stems from the fact that the Court does not have at its disposal an enforceable fundamental principle of judicial independence, such as that found in Article 19 of the Treaty on the European Union. ⁸ It cannot review national legislation in abstracto – without establishing a genuine connection with an interference with a Convention right in a concrete case. ⁹

This is why national judges themselves started to defend their independence by relying on their Convention rights such as the right to access to a court from Article 6, ¹⁰ the right to private life from Article 8, ¹¹ freedom of expression from Articles 10 ¹² and even the right to property from Article 1 of Protocol No. 1 to the Convention. ¹³ Although the ECtHR interprets these rights of judges broadly and thus provides important guarantees for judicial independence, ¹⁴ this second, indirect way to protect judicial independence has two major drawbacks. First, it relies on other Convention rights that are not designed to protect the independence of applicant judges. Therefore, the Court cannot properly address judicial independence concerns. In the famous case of Baka v. Hungary, the ECtHR found a violation of the right to access to a court and freedom of expression because Hungary prematurely terminated the mandate of the President of the Supreme Court. The crux of the case was the violation of the independence of the country's highest judicial official and not the lack of access to a court or the violation of his freedom of expression. ¹⁵ Second, not every case of violation of judicial independence can be presented as a violation of another Convention right. In the case of J.B. and others v. Hungary, ¹⁶ for example, 150 Hungarian judges were left without protection before the ECtHR, even though the violation of independence was obvious. Hungary lowered the mandatory retirement age for judges from 70 to 62, thus allowing the Orbán regime to ensure the early retirement of the top of the judicial pyramid, essentially ‘beheading’ the Hungarian judiciary. The ECtHR examined the case in the light of Articles 6, 8, 13 and 14 ECHR, but declared the complaints inadmissible ratione materiae or manifestly unfounded.

3. The subjective right to judicial independence as a solution?

Despite recent important developments in the field of judicial independence, blind spots and limits in the Convention framework remain. As the rule of law crisis persists, the ECtHR will have to design new ways to better safeguard independent judges. In his dissenting opinion in Baka v. Hungary, Judge Sicilianos proposed a potential solution. He argued in favour of a subjective right of every individual judge to have his independence recognized and protected by the national authorities under Article 6 of the Convention. His proposal found some support from legal scholars ¹⁷ but the Court has not yet made the decisive step in this direction. Nevertheless, in three pending cases, the Court instructed the parties to consider whether such subjective right could be read into Article 6(1) of the Convention. ¹⁸ The answer to the Court's question is not straightforward.

Article 6(1) of the Convention provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ Under this provision, every judge has the right to be tried by an independent and impartial tribunal established by law. However, a subjective right would mean that every judge also has the right to have his or her individual independence respected and protected by the State. The Convention, at least if one considers its wording, does not guarantee such a right. The question therefore arises, whether the Court should apply the ‘living instrument’ doctrine to create a subjective right to judicial independence.

Proponents of the idea have relied on the case law of the Inter-American Court of Human Rights and the UN Human Rights Council, arguing that these bodies have read subjective right to judicial independence into fair trial provisions with wordings very similar to Article 6(1) of the Convention. ¹⁹ However, in doing so, both bodies relied heavily on the right to equal access to public office, which protects public office holders from arbitrary dismissal. Before these bodies, judges enjoy individual protection or, put differently, a subjective right, but only in cases that fall within the scope of the right to equal access to public office. The comparative jurisprudence therefore supports only a limited subjective right approach, applicable only to cases concerning the right to equal access to public office. ²⁰ Such limited subjective right, dependent on another right, is far from the subjective right approach the proponents advocate. It does not free the judges from the straitjacket of material scope of a different Convention right and therefore seems to add little to nothing to the existing level of protection of judicial independence in Strasbourg. The comparative argument therefore seems to have little force.

Other arguments in support of the subjective right to independence revolve around the centrality of the rule of law and judicial independence for safeguarding human rights guaranteed by the Convention. ²¹ As the Court has held, ‘the Convention system cannot function properly without independent judges and the Contract Parties’ task of ensuring judicial independence is thus of crucial importance.’ ²² In the words of Judge Sicilianos: ‘How can one hope that persons involved in court proceedings will enjoy the right to an independent judge if judges themselves are not afforded safeguards capable of ensuring that independence?’ ²³ One can only agree. Yet these are arguments in favour of enhancing the protection of judicial independence. They support the claim that the solution is needed and not that the proposed subjective right is the preferred solution. In other words, these arguments support the subjective right approach as much as they support any other alternative approach for increasing the level of protection of judicial independence.

Before focusing on the proposed alternative, three weaknesses of the subjective right approach must be highlighted. Its main downside is the already-mentioned shaky foundation in the text of the Convention. Although the Court regularly interprets the Convention as a ‘living instrument’, it should not interpret its legal provisions contra legem – in a way that established methods of construction do not allow. Otherwise, the Court would itself infringe the rule of law, even if paradoxically out of the need to protect it, and thus extend its competences beyond the scope permitted by the Convention. It is beyond doubt that the contracting parties have a general obligation to ensure (both external and internal) independence of the judiciary. However, the crucial point is how to enforce such obligation within the limited Convention framework discussed in section 2. As other applicants, judges can claim the right to have their civil rights and obligations, or criminal charges determined by an independent and impartial tribunal established by law. However, creating the subjective right to independence would require a forced, if not a contra legem, interpretation of the Convention. Under such an interpretation, Article 6 would be substantially transformed. In the part, where it would guarantee the new subjective right to independence to judges, it would turn, first, a procedural right of fair trail into a substantive right to independence, second, the holder of the right from everyone to exclusively judges and, third, the content of the right from a right to have a dispute determined by an independent tribunal to a right to be independent. It is therefore highly questionable whether the established methods of construction allow for such an interpretation.

The second drawback of the subjective right approach is that the Court would create a brand-new fundamental right exclusively for judges. On the one hand, such special treatment of judges seems justified. Our fundamental rights depend on the independence of judges. In other words, judges enjoy special protection, because their independence is the key guarantee for the protection of our fundamental rights. On the other hand, creating a special right for judges supports the wrong perception that judicial independence is essentially a judicial privilege. Judicial independence is primarily a guarantee for the parties, not a privilege for judges. Judges are not a privileged caste with special rights, as sometimes autocrats skilfully try to convince the electorate. Judges are an independent branch of power, tasked with safeguarding the fundamental rights of the people.

The third weakness paradoxically comes from the strengths of the subjective right approach. If the Court were to recognize a subjective right to judicial independence, it would address both fundamental shortcomings in the protection of judicial independence under the Convention. It would free judges from the straitjacket of the material scope of other Convention rights thus allowing the Court to focus on the core of their complaint – the violation of their independence. It would also enable judges to bring any interference with their independence to the Court's attention. However, such broad extension of the Convention protection is a double-edged sword. Recognizing the subjective right would enable judges to claim a violation of the Convention every time they felt that their independence was violated. This could lead to excessive protection of judicial independence. It could compromise the sensitive balance between judicial independence and judicial accountability, and diminish public trust in the judiciary. ²⁴ Unfortunately, not all judges are upright. The subjective right – a powerful weapon for shielding against various measures – would be given also to the corrupted judges or judges aligned with the (authoritarian) government. ²⁵ Such an extended protection could come back as a boomerang, especially in times of the restoration of democracy and the rule of law. Instead of enhancing the protection of judicial independence, it could be (ab)used for clinging to the status quo. As we have seen, on the one hand, authoritarian governments are keen to employ the law to consolidate their power; on the other hand, they have no trouble with ignoring the law when it works against them. ²⁶ To expect a different attitude in the case of the subjective right to independence would be wishful thinking. These weaknesses therefore call for alternative solutions.

4. Chilling effect: An alternative approach for enhancing judicial independence

Relying on the concept of chilling effect is an alternative solution for enhancing the protection of judicial independence. The concept of chilling effect is based on the belief that regulating or sanctioning certain behaviour creates fear, which discourages both the subject of such behaviour and others in a similar position from engaging in the behaviour, or incentivizes them to adapt their behaviour to the social norm. ²⁷ The Court uses it in relation to different Convention rights and different applicants. Under the chilling effect approach that this article proposes, the Court would apply the chilling effect argument in cases concerning interferences with individual judicial independence. The pending case of Biliński v. Poland ²⁸ can serve as an example of how this could be done.

Between 2018 and 2019, Judge Biliński ruled on hundreds of cases of administrative offences related to freedom of association and expression. Many cases concerned demonstrations against controversial policies of the Polish government or the government's alignment to organizations supporting racism, xenophobia and homophobia. The public perceived his decisions as unfavourable to the government. As a result, he was subjected to criticism from the ruling party and attacks on social media. Moreover, he was transferred from his criminal division to the family and juvenile division without his consent, following a flawed procedure in which no reasons for such transferral were presented and the competent bodies disregarded fundamental guarantees of Article 6 of the Convention. Before the ECtHR, Judge Biliński argues that the arbitrary transfer, disregarding his specialization, constituted a reprisal for his rulings. He further submits that such reprisal could create a chilling effect on other judges adjudicating in politically sensitive cases.

The case of Biliński v. Poland clearly shows the schizophrenic nature of the current Convention protection of judicial independence. If Mr. Biliński had himself criticized the government or attended a protest rally, the Court would have no trouble in finding that the transfer constituted a reprisal for participation in a demonstration or his publicly expressed opinion in violation of Article 10 or 11 of the Convention. However, since the applicant merely protected these same rights of others in judicial proceedings, he has a much more difficult task before the Court. His transfer would probably fall short of the minimum level of severity threshold required to trigger the protection of private life, guaranteed under Article 8 of the Convention. ²⁹ He will certainly be able to convince the Court that Article 6 is applicable ³⁰ and that Poland has violated the said provision since he enjoyed no meaningful procedural guarantees in his attempt to challenge the transferal decision: there was no adversarial and public procedure, no equality of arms and no motivation of the decision of the Polish council for the judiciary, which cannot be regarded as independent and impartial. However, the core of his application – the fact that he was punished because he judged according to his conscience against the interests of the government – will not be properly addressed, at least if the Court sticks to its current practice.

Relying on the chilling effect approach would allow Judge Biliński to claim a violation of Article 6 of the Convention, but this time the violation would not stem from the procedural flaws, which occurred in the process of challenging his arbitrary transfer, but from the arbitrary transfer itself. Still, Biliński would not claim a violation of his individual independence, since this would mean he would be adopting the subjective right approach. He would rely on the right to have his case heard by an impartial tribunal. He would use the chilling effect argument to argue that the violation of his personal independence – the arbitrary transferal – adversely affected the impartiality of all the judges and officials, who heard his legal remedies against the transfer decision since they could face a similar sanction if they defied the arbitrary transfer. He would argue that as a result, he was stripped of his right to an impartial tribunal. The arbitrary transfer constituted a reprisal for his judicial decision-making. By transferring Judge Biliński, the Polish authorities are essentially threatening him and other Polish judges: ‘Adjudicate in line with the interests of the government, or you will be transferred to a department you do not like.’ ³¹ The fear created by such a threat is the central facet of the chilling effect argument since it has the potential to affect impartial adjudication in future politically sensitive cases. The sanction imposed on Biliński is thus the source of the chilling effect for him and other Polish judges and officials, including those who heard his complaints against the arbitrary transfer. It creates the chilling effect that can raise a reasonable doubt as to the impartiality of those hearing legal remedies against such a sanction. They cannot be considered impartial, since they fear they would be next if they stand in the way of Biliński's transfer. In this sense, the chilling effect approach builds on the theory of appearances, the central premise of the (objective) impartiality requirement. In other words, it does not matter whether judges are in fact impartial; what matters is that there are no elements that could raise objectively justified doubts in their impartiality. ³² The chilling effect qualifies as such an element.

The chilling effect approach comes close to the subjective right approach, albeit with a crucial difference. With both solutions, the Court would rely on a violation of individual independence of the judge in question. However, under the chilling effect approach, it would find a violation of Article 6 not because of the transfer decision itself, as in the case of the subjective right approach, but due to the lack of impartiality of those tasked with ruling on legal remedies against the transfer decision. The chilling effect approach thus relies on the concrete violation of individual independence only to ultimately argue for a violation of impartiality. In this sense, it is not a novelty. It merely involves an innovative application of the impartiality requirement to fill some of the gaps of the current Convention protection of judicial independence. Despite relying on the requirement of impartiality, it would allow the Court to enhance the protection of individual judicial independence, as will be shown in due course.

How could the Court apply the chilling effect in attain such goal? The Court would first recognize the existence of the chilling effect stemming from the transfer decision. The authorities showed that they are willing to sanction judges that do not follow the interests of the government in politically sensitive cases. Secondly, it would recognize that all proceedings challenging the arbitrary transfer of Judge Biliński constitute politically sensitive cases and that all judges and other officials hearing legal remedies against the transfer decision are therefore affected by the chilling effect – the threat with a reprisal, similar to the one imposed on Biliński – if they fail to follow the interest of the government. Thirdly, the Court would rule that judges affected by such threat cannot be considered impartial under Article 6 of the Convention unless the national law provides sufficient guarantees against such pressures. Finally, the Court would conclude that in the absence of sufficient safeguards for judicial independence, Poland has violated Judge Biliński's right from Article 6 to have his case determined by an impartial judge.

In contrast to the subjective right approach, the chilling effect approach does not privilege judges. It creates no special right. Judges rely on the right to impartial tribunal from Article 6 and argue that the chilling effect casts doubt on the impartiality of the trial, as may any other applicant. As with the subjective right approach, judges who would adopt the chilling effect approach will no longer be required to frame their case as a violation of another Convention right. They could bring before the Court any measure that infringes their judicial independence, as long as they have an arguable claim that such measure creates a chilling effect, which affects the impartiality of judges, hearing legal remedies against the measure, and that the domestic system fails to provide sufficient guarantees of judicial independence. Such an approach prohibits the contracting parties from adopting measures that could create a chilling effect on the impartiality of judges, hearing legal remedies against such measures. If such measures are nevertheless taken, the state would have to show that judges have sufficient guarantees of independence and that their fear is unjustified.

At first sight, it could appear that the proposed chilling effect approach revolves around the long-established requirement of domestic guarantees against outside pressures ³³ and thus does little to nothing to enhance judicial independence beyond the current state of case law. Such a reproach turns out to be unmerited. It is true that only when the national law fails to provide sufficient guarantees for judicial independence, the fear (of sanction) underlying the concept of chilling effect can raise an objective doubt in the impartiality of the trial. This means the chilling effect approach cannot be successfully invoked if the guarantees for judicial independence are sufficient. ³⁴ However, the Court can leverage the chilling effect argument to achieve results that cannot be attained by simply relying on the ‘sufficient guarantees’ requirement. In contrast to the latter, which only enables the Court to address systemic deficiencies of the domestic legislation, the chilling effect approach would allow the Court to also review the concrete measure, interfering with the individual independence of the applicant judge. In other words, under the chilling effect approach, the Court could review the concrete measure and require the state in question to adopt concrete steps to remedy the applicant's position, whereas this would not be possible by invoking only the ‘sufficient guarantees’ requirement. In the case of Judge Biliński, the chilling effect approach would enable the Court to find a violation of the Convention because of the arbitrary transfer and the Court could rule that the Polish authorities have to reinstate the judge to his previous department. ³⁵ This would not be possible by invoking the ‘sufficient guarantees’ requirement as the Court could only rule on systemic issues it has found to be contrary to the Convention standards in numerous previously decided Polish cases.

As the analysis provided above indicates, the chilling effect approach would enhance the protection of judicial independence in Strasbourg in an effective way. It could thus prove to be a valuable alternative solution. To understand better its potential, the article now turns to its theoretical underpinnings and its current use before the Court.

5. Extending the chilling effect from freedom of expression to judicial independence: Support from theory and practice

The chilling effect is primarily a behavioural phenomenon. It has been studied not only by legal scholars but also by social scientists. Many lament over the difficulties of empirical research of the chilling effect ³⁶ and even question its existence. ³⁷ Indeed, other factors such as context and personal characteristics, shape our behaviour ³⁸ and make measuring the chilling effect a challenging task. Nevertheless, even the most sceptical concede that what needs further academic inquest is not the existence but the strength of the chilling effect and how it varies in the presence of different factors. ³⁹ The courts seem to have bothered little about the empirical challenges of the chilling effect. The concept has featured prominently before the US Supreme Court and the ECtHR. It has led both courts to heighten the level of protection of human rights to account for the harm the chilling effect brings to society. In spite of its central role in the jurisprudence, only the US legal scholars seem to have paid sufficient attention to the chilling effect, whereas the concept has attracted very limited attention in Europe. ⁴⁰

Scholars and courts generally rely on the chilling effect concept in cases concerning freedom of expression and freedom of assembly and association. For example, more than 70% of cases where the ECtHR invoked the chilling effect concern freedom of expression. ⁴¹ Nevertheless, the theory and the case law of the ECtHR offer support for the application of the concept to cases concerning judicial independence.

In the most influential article on the chilling effect, Schauer, the leading scholar in the field, noted that the chilling effect is understood generally as a First Amendment concept. However, he added that ‘it might be possible to apply the chilling effect reasoning to any “positive” guarantee.’ ⁴² Such positive guarantees are positively advantageous in the sense that there is a societal consensus that they are desirable and should be encouraged. ⁴³ Judicial independence qualifies as such ‘positive’ guarantee. It is a prerequisite for the enjoyment of all other rights, including the freedom of expression. It is an ideal that should be encouraged. Penney, another prominent US legal scholar, never limited the chilling effect to the First Amendment. He understands it as an act of social conformity: out of fear of social sanctions, people adapt their behaviour to social norms. He warns that the scholarly discussion has neglected the productive side of the chilling effect. The chilling effect not only stifles behaviour; it may shape it. ⁴⁴ It forces people to conform to social expectations to avoid potential (social) sanctions. If the social expectation is not to discuss a certain topic, then the chilling effect will encourage self-censorship. If the social expectation is to adjudicate according to the interest of the government, then the chilling effect would encourage judgments that upheld the interest of the government. The theory, therefore, supports the application of the concept in cases concerning judicial independence.

As already mentioned, the ECtHR regularly relies on the chilling effect primarily in cases concerning freedom of expression. The Court uses the argument in relation to different groups of applicants: journalists, teachers, attorneys, judges and even random individuals, in different stages of review – from admissibility to proportionality. ⁴⁵ One of the first cases, where the Court employed the chilling effect argument, concerned the freedom of expression of a judge. ⁴⁶ The Court has relied on the chilling effect in numerous judicial free speech cases. ⁴⁷ In recent years, such jurisprudence is growing at an unprecedented pace due to the rule of law crisis. Judges are increasingly relying on the chilling effect on freedom of expression to defend their independence. For now, the Court has recognized that such a chilling effect affects the future expression of applicant judges and their colleagues. However, as Judges Pinto de Albuquerque and Dedov have argued in Baka v. Hungary, the removal of Judge Baka also had a chilling effect on the independence of the judiciary and the rule of law in Hungary. ⁴⁸ The chilling effect cannot be artificially limited to a particular Convention right or action, such as expressing an opinion. It spills over to other related conduct. It is therefore only a small step from relying on the chilling effect on the freedom of expression to essentially safeguard judicial independence to relying on the chilling effect on judicial independence.

Moreover, the Court has already relied on the chilling effect argument in judicial independence cases, in which other substantive Convention rights, such as freedom of expression or the right to private life, were not at stake. There are admittedly only a handful of decisions concerning judicial independence under Article 6, in which the Court has applied the chilling effect argument for now. ⁴⁹ Nevertheless, they show that the Court is willing to employ the chilling effect argument in relation to judicial independence.

If the Court starts applying this concept in cases concerning judicial independence more often in the future, it would not be a pioneer. Other Council of Europe bodies – the Venice Commission, the Parliamentary Assembly and GRECO – have been invoking the chilling effect in cases touching solely upon judicial independence. ⁵⁰ Among the EU institutions, the Commission has referred to the chilling effect in relation to judicial independence. ⁵¹ The CJEU has also invoked the chilling effect rationale to protect judicial independence in three cases concerning measures taken against judges for referring preliminary rulings to the CJEU. ⁵²

Nothing, therefore, seems to stand in the way of the Court applying the chilling effect argument to judicial independence more often. To the contrary, given its extensive use in relation to judicial free speech and the practice of other Council of Europe and EU bodies, the Court's modest application of the concept in judicial independence cases is surprising. The Court does not need to employ a questionable interpretation of Article 6 or privilege judges as with the subjective right approach. It may simply refer to its case law and exploit the full potential of the chilling effect.

6. The limited scope of application of the chilling effect approach

The chilling effect is a flexible concept ⁵³ that has the potential to be invoked by different applicants in different scenarios. However, in cases concerning judicial independence, its scope of application is narrower compared to the subjective right approach.

As we have seen in Biliński, judges could rely on the chilling effect when their individual independence is violated. In Parlov-Tkalčić v. Croatia ⁵⁴ the applicant was not a judge, but a party to the proceedings before the domestic courts. She claimed that the judges of the court that heard her case were partial, because the President of this court, who has previously filed a criminal complaint against her, had power over their professional careers. The Court warned against ‘latent pressures resulting in judges’ subservience to their judicial superiors or, at least, making individual judges reluctant to contradict their president's wishes, that is to say, of having “chilling” effects on the internal independence of judges.’ ⁵⁵ After examining the circumstances of the particular case and the Croatian legislation, which was found to include sufficient guarantees against the chilling effect on the independence of judges, the ECtHR found no violation of Article 6. ⁵⁶ However, in the absence of appropriate safeguards, the outcome could be different.

These two cases show essential elements for the applicability of the chilling effect approach, irrespective of whether the applicant is regular citizen or a judge. The applicant must show that a principal has an interest in the case and that there is a lack of sufficient safeguards against the principal's power. The principal is somebody with the power over the career of judges or somebody that can sanction judges for their behaviour in another way. The fact that the principal with the power to sanction judges has an interest in the case creates the chilling effect for judges hearing the case. Unless the national system ensures sufficient guarantees to shield the judges against the power of the principal, the chilling effect can arguably be considered to affect the impartiality of the judges involved.

The first element – the principal – is normally a person vested with state powers. However, the chilling effect may not originate only in state actions, but also in private actions. ⁵⁷ A recent survey conducted by the European Network of Councils for the Judiciary (the ENCJ) shows that the (social) media is the most common source of inappropriate pressure on judicial independence in Europe, far more common than other kinds of external or internal pressures. ⁵⁸ On average 19% of judges agree or strongly agree ‘that (…) decisions or actions of individual judges have, during the last three years, been inappropriately influenced by actual, or anticipated, actions of the media (i.e. press, television or radio).’ ⁵⁹ In other words, 19% of European judges believe that the chilling effect resulting from actions of the media has influenced the decisions and actions of judges.

Under Articles 8 and 10, the Court has already recognized the private chilling effect and the positive obligation, resulting from it in cases concerning journalists ⁶⁰ and university professors. ⁶¹ It has also ruled that a virulent press campaign can influence the impartiality of the trial under Article 6. In this connection, it has underlined the training and experience which allow professional judges to disregard media pressure, and the right to freedom of expression of the press. ⁶² It seems that, as a result, the Court would find a violation of impartiality in exceptional cases. Nevertheless, the Court is prepared to take seriously the parties who claim that the media have affected the impartiality of the trial. The media can thus also be a principal worth bearing in mind.

The second element – interest in the case – is challenging for the applicant, as it is hard to establish. Moreover, the Court seems reluctant to recognize the interest without sufficiently concrete elements in its support. In Parlov-Tkalčić the interest of the court President was found in the fact that he had filed a criminal complaint against the applicant, even though the Court recognized that the court President had no personal interest in the outcome of the proceedings. ⁶³ It nevertheless, found such interest, coupled with the powers of the court President, could create a potential chilling effect in the absence of guarantees of internal independence. In Biliński v. Poland, the principal – the Polish government, acting through the intermediary of the court President – had the interest to punish Judge Biliński and to ensure his punishment is ultimately upheld, as he had rendered several decisions unfavourable to the government. Such interest of the government could be established by relying on government officials’ public criticism of the applicant and smear campaigns launched against him through the notorious KastaWatch Twitter account, which had links with the government.

However, in the absence of specific grounds establishing the interest of the principal, the Court would be reluctant to find that the chilling effect sufficiently affected the impartiality of the trial, even in a situation of persistent rule of law crisis. In other words, a general interest of the principal seem to be insufficient. In Yalçinkaya v. Turkey, a recent Grand Chamber judgment, the Court heard a case of a teacher who was imprisoned due to alleged links with the so-called Fetullahist Terrorist Organization (FETÖ), allegedly responsible for the failed coup of 2016. The applicant argued that for the same reason – connections with FETÖ – the High Council of the Judiciary had dismissed 4360 judges and prosecutors – 20% of all magistrates in Turkey. Without using the exact phrase, he was essentially arguing that this creates a chilling effect on the impartiality of all judges deciding in his case, as they can reasonably be afraid for their professional career if they rule in his favour. ⁶⁴ The Court turned down his arguments by declaring that they ‘entail a criticism of the judiciary in a general manner (…) without any specific allegations (…) relating to the judges who participated in the examination of his case and producing concrete consequences in his individual trial.’ It is hard to argue that the Turkish government does not have a very clear interest in trials of alleged supporters of FETÖ. However, if the Court had followed the applicant's reasoning, it would have come to a controversial conclusion that the current situation in the Turkish judiciary cast doubt on the impartiality of every single criminal procedure linked to FETÖ. It thus seems that the interest of the principal has to be specifically linked to the concrete case and not general. ⁶⁵

The third element – the lack of sufficient guarantees – again limits the applicability of the chilling effect approach to jurisdictions in which judges enjoy an insufficient level of judicial independence. In this sense, the ‘sufficient guarantees’ element is systemic. However, it does not narrow the scope of the chilling effect to the context of rule of law crisis and turn the chilling effect approach into a crisis management measure. As shown by Parlov-Tkalčić, where ECtHR justices argued in favour of a violation of the right to an impartial tribunal, the Court would have to draw the line between intolerable risks for judicial impartiality and pressures that exist within any legal system striving to find the right balance between judicial independence and accountability. ⁶⁶ This would have to be done on a case-by-case basis. No matter where such line is drawn, the main idea would remain unchanged: when judges are sufficiently protected against sanctions or other negative repercussions, if they rule against the interest of the principal, the fear of being sanctioned in response is unmerited. Even if the principal sanctions them in an abuse of his or her powers, they can trust an independent and impartial tribunal will put the sanction aside in a procedure challenging it. ⁶⁷

Judges and other applicants can invoke the chilling effect in different scenarios, if the three essential elements are present. Compared to the subjective right approach, the chilling effect approach has a narrower scope of application. Not all interferences with judicial independence, especially outside the rule of law crisis context, can be effectively addressed through such an approach. However, in cases where the preconditions for application of the chilling effect approach are not satisfied, this might not prove to be a major drawback. In such cases, judges hearing legal remedies against the interference with judicial independence would not be pressured to give in to the interest of the principal and would thus be impartial. There is either no principal with the interest for the judges to fear, or the legal system provides sufficient judicial independence guarantees that substantially limit the chance of abuse of the principal. If it nevertheless happens, the judicial review would ensure that the abuse can be adequately addressed and put aside. The judge, whose individual independence is violated in a scenario, where the three essential elements of the chilling effect approach are absent, can thus trust that the legal system (that is, his or her colleagues) will uphold his or her individual independence. If, for example, the state decreases judicial salaries to all judges, individual judges would probably not be able to establish that the government has an interest case and is willing to sanction judges, who would oppose it. However, they can in principle trust that the national legal system will allow such measure to be evaluated by an apex court with the authority to declare it unconstitutional or otherwise invalid. If judges hearing a legal remedy against the individual act of salary decrease would stay the proceedings and refer the case to the CJEU or the national constitutional court, and they would be sanctioned in response, they could rely on the chilling effect approach. They would be able to show that the government has a specific interest for which it is prepared to sanction judges who stand in its way. ⁶⁸ As a result, cases that fall outside the scope of the chilling effect approach can be dealt with efficiently through other avenues. Therefore, they do not prove as problematic as to merit an extension of the ECtHR's protection of judicial independence beyond what this article proposes.

7. Conclusion: Chilling effect – a better alternative than the proposed subjective right to independence

The Court has not yet exhausted the full potential of the Convention. Blind spots and limits in the protection of judicial independence remain. Under continued pressure from the authoritarian governments of some European countries, they are becoming an increasingly burdensome thorn in the side of national judges.

The subjective right approach, proposed by Judge Sicilianos in 2016, would importantly enhance judicial independence safeguards in Strasbourg. It would allow judges to claim a violation of Article 6 each time a measure would affect their individual independence. This would enable the Court to focus on the core of the complaint and cover the current blind spots in the Convention framework. However, it would require an artificial interpretation of Article 6 and would leave an unpleasant impression that the Court is privileging judges compared to ordinary applicants. It could also stand in the way of the rule of law restoration. This article, therefore, presented an alternative: the chilling effect approach. National judges would rely on the right to an impartial trial under Article 6, which would not require an inventive interpretation, privileging judges. However, such an approach would have a limited scope of application. It would apply in cases where a principal, with the power to sanction judges, had a stake in the case while guarantees against abuse of his powers were missing. It would thus not capture all interferences with judicial independence. In such cases, judges would have to rely on the help of their colleagues, hearing remedies against interferences with judicial independence. This might not always lead to the desired result and the richness of life probably includes situations that the proposed approach cannot solve. However, when the chilling effect approach is applicable, this article provides solid reasons to prefer it over the subjective right approach.

In any case, adopting any of the approaches this article discusses would not singlehandedly save Europe from the rule of law crisis. The law has an important but limited role in addressing the troublesome situation and the ECtHR is only one of the many legal actors involved. Nonetheless, the chilling effect approach could add an important piece to the puzzle of judicial independence protection, while staying faithful to the Convention. If the Court recognizes the toxic influence of the chilling effect on judicial impartiality and leverages the chilling effect doctrine, it would invent a priceless legal antidote for the currently poisoned atmosphere in some European judiciaries.