EU: New Report on Strategic Litigation of Judicial Independence

Jan 15, 2025 | Advocacy, News, Reports

The new report, Justice Under Pressure: Strategic Litigation of Judicial Independence in Europe, published by the International Commission of Jurists (ICJ) and Human Rights in Practice, provides a comprehensive overview of standards and practices on strategic litigation to defend judicial independence and accountability in Europe. It highlights the many forms of attacks on judicial independence across the EU, and the essential role that strategic litigation, including at international level, plays in countering rule of law backsliding. Drawing on the growing body of practice in the recent years, the report reflects on lessons learned, obstacles encountered, and good practices for future litigation efforts. 

“Judicial independence is a cornerstone rule of law principle and a fundamental requirement for the effective protection of human rights for everyone. Yet across the globe, attacks on judicial independence are undermining the rule of law and human rights, and the European Union (EU) is no exception” said Prof. Helen Duffy, Director of Human Rights in Practice. “One of the ways in which legal communities are pushing back is through the use of strategic litigation. While naturally challenging when courts are undermined, the report shows it can be impactful as one part of a strategy to protect the rule of law,” 

While using the courts to defend judicial independence is a complex endeavour, there is today an inspiring array of practice of strategic litigation to protect and strengthen judicial independence in Europe.” said Karolína Babická, Senior Legal Adviser of the ICJ. “Lawyers, civil society actors, judges and other actors are resorting to the courts as part of a strategy to uphold judicial independence. This report provides a comprehensive overview of such litigation and its impact as well as further guidance for future litigators.”

The Mapping Report identifies a significant number of leading cases which have challenged violations of judicial independence and related judges’ human rights, including: 

  • arbitrary and unjustified dismissals of judges and sanctions adopted as reprisals for judicial conduct or the exercise of judicial independence;  
  • abusive criminal investigations and/or prosecutions against individual judges;  
  • judicial appointment procedures that give undue control or influence and potential for abuse to political actors;   
  • encroachments on judges’ freedom of expression and other fundamental freedoms, including the freedom of assembly, association and opinion; and 
  • systemic reorganization of courts, and limits placed on the role of judges undermining the authority of the judicial branch. 

While the challenges and strategies of judicial independence litigation are deeply context-specific, many of the obstacles arising in the EU today are cross-cutting. Similarly, the experiences and lessons learnt from strategic litigation in one context can directly influence the success of and inform parallel efforts in other countries. The  Report therefore highlights common challenges, such as ensuring access to justice before national courts, the independence of which has been undermined; standing to bring cases; the sometimes systematic non-implementation of judgements; challenges concerning the capacity of and attacks on CSOs defending judicial independence; and the need for and challenges of litigation as a preventative, rather than a purely responsive, tool.  

To harness the power of domestic and international courts and enable advocates to meet challenges, the report identifies practical strategies for lawyers and other actors involved in strategic litigation, such as: 

  • seeking creative and underutilized legal arguments and fora, to contextualize the case and to build convincing arguments and evidence showing systemic violations; 
  • building alliances, mobilizing support, and integrating communication and activism for long-term legal and social change; 
  • seeking early intervention, to allow litigation to act as a preventative and not purely responsive tool; 
  • engaging in ongoing experience sharing and strategic support among legal practitioners engaged in strategic litigation; and 
  • prioritizing the implementation of judgements throughout litigation and beyond. 

 

Background 

This Report is the culmination of the two-year “Rule Of Law for Lawyers (ROLL)” project, led by the International Commission of Jurists – European Institutions (ICJ-EI) in close cooperation with Helen Duffy from Human Rights in Practice and in collaboration with national partner organizations: aditus (Malta), Forum for Human Rights (Czechia and Slovakia), and Free Courts (Poland), supported by the Romanian Institute for Human Rights. The project aims to promote independent and effective judicial systems to protect fundamental rights by strengthening the knowledge and ability of lawyers and civil society organizations in national and European strategic litigation, focusing on eight EU Member States – Poland, Hungary, Romania, Bulgaria, Slovakia, the Czech Republic, Malta and Spain.  

 

Download 

Justice Under Pressure: Strategic Litigation of Judicial Independence in Europe report 

 

Podcast episode  

Listen to Episode 10 of the Judicial Independence Podcast on YouTube or Spotify, exploring the report’s findings.

 

Contact 

Karolína Babická, ICJ Senior Legal Adviser, karolina.babicka@icj.org   

Laura Duchamp, ICJ Legal Researcher, laura.duchamp@icj.org 

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