'TRIBUNAL ESTABLISHED BY LAW'*

by Martin Kuijer1

Chapters *** 6 and 7 *** will deal with the question what, according to the case law of the European Court of Human Rights, is meant by an independent judiciary and what is meant by an impartial judiciary. First, however, it is necessary to dwell upon the question which national authorities fulfil the notion of ‘tribunal’. The phrase ‘tribunal established by law’, as laid down in Article 6 of the Convention, is relevant in this regard. This chapter will therefore focus on the interpretation given by the Court (and the Commission) of that phrase in its case-law. However, Strasbourg case-law on this particular requirement is rare. Therefore, similar case-law of the Court of Justice of the European Communities (ECJ) on the notion ‘tribunal’ will also be examined. Hopefully the case-law of the ECJ can serve as a useful interpretation tool when examining the Convention.

Paragraph 1 The notion 'tribunal'

The Convention uses the concept of a ‘tribunal’ in various provisions.2 The drafters were not very consistent in their formulation. Several phrases are used; see inter alia 'competent court' (Article 5 §1 sub a), 'court' (Article 5 §§1 sub b and 4), 'competent legal authority' (Article 5 §1 sub c and d), 'judge or other officer authorised by law to exercise judicial power' (Article 5 §3), 'tribunal established by law' (Article 6 §1), 'judiciary' (Article 10 §2), 'tribunal' (Article 2 of Protocol No. 7). It is unlikely, however, that these various notions imply distinct meanings.3 Matscher has given a useful synopsis of what the various terms imply for Convention purposes:

"[...] un organe, établi par la loi, indépendant et impartial qui, en suivant une procédure de caractère judiciaire, est habilité et obligé à rendre des décisions contraignantes au sujet des controverses ou des affaires qui lui ont été soumises" 4

* This material was provided by the National Institute of Justice with the author’s approval. It is included in the current data base in the frames of the project ‘Promoting Efficiency of Bulgarian Judiciary in the Area of Human Rights Protection’, accomplished by BLHR Foundation from November 2005 to August 2006.

1 Prof. Dr. Martin Kuijer is Professor in human rights law at the Free University of Amsterdam. The author is head of the human rights department of the Dutch Ministry of Justice and is responsible for the representation of the Netherlands before the European Court of Human Rights. This article is a chapter of his doctoral thesis “The Blindfold of Lady Justice - Judicial Independence and Impartiality in Light of the Requirements of Article 6 ECHR”, Wolf Legal Publishers 2004.

2 See M. Eisen, "Le droit à un tribunal dans la jurisprudence de la Commission", in: Miscellanea W.J. Ganshof van der Meersch: studia ab discipulis amisque in honorem egregii professoris edita, Bruxelles: Bruylant, 1972, Volume I, p. 433.

3 See for example ECHR, 18 June 1971, De Wilde, Ooms & Versyp - Belgium (Series A-12), §78.

4 See F. Matscher, “La notion de 'tribunal' au sens de la Convention européenne des droits de l'homme”, in: R. Koering-Joulin, Les nouveaux développements du procès équitable au sens de

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Matscher’s synopsis describes an independent and impartial organ established by law to decide disputes on the basis of a judicial procedure. This chapter will focus more elaborately on the meaning of the phrase 'tribunal established by law' as used in Article 6 §1 ECHR. The travaux préparatoires, in which the historical development of the Convention has been laid down, do not contain clear indications concerning the further interpretation of the notion 'tribunal'.5 Therefore, the emphasis will be on an analysis of the Court's case law concerning Article 6. Some references are also made to the interpretation given by the Court of similar concepts used in other provisions of the Convention (see also *** paragraph 3 of Chapter 4 ***).

1.1 Autonomous interpretation

The concept 'tribunal' is interpreted by the Court in an autonomous manner. The classification in the domestic legal system is not decisive for the qualification of a certain authority as a 'tribunal' within the meaning of Article 6. In the case of Ringeisen the Court had to decide whether Article 6 was applicable in an Austrian dispute concerning the purchase of some property. The proceedings took place before an administrative authority (Grundverkehrsbehörde). The Court held that the character of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc.) is of little consequence, so it concluded that the body was a 'tribunal'.6

In the subsequent case of Belilos the Court took a slightly more nuanced approach. The relevant body was described in national legislation as being 'a municipal authority':

"Even if such terms ['a municipal authority', MK] do not appear to be decisive, they provide an important indication as to the nature of the body in question." 7

Overall, however, Matscher rightly observes that the Court's requirements with regard to the concept 'tribunal' are relatively strict, so that the margin of appreciation is strongly reduced to almost being non-existent.8

1.2 The substantive requirements

The Court has developed its own substantive requirements of a 'tribunal'. According to the jurisprudence of the Court, a 'tribunal' is

la Convention européenne des droits de l'homme, Brussels: Bruylant, 1996, p. 29.

5 H. Miehsler & T. Vogler, "Article 6 EMRK", in: Internationaler Kommentar zur Europäischen Menschenrechtskonvention, Köln: Heymanns, 1986, nos. 283-284.

6 ECHR, 16 July 1971, Ringeisen - Austria (Series A-16), §§94 and 95.

7 ECHR, 29 April 1988, Belilos - Switzerland (Series A-132), §65.

8 F. Matscher, “La notion de 'tribunal' au sens de la Convention européenne des droits de l'homme”, in: R. Koering-Joulin, Les nouveaux développements du procès équitable au sens de la Convention européenne des droits de l'homme, Brussels: Bruylant, 1996, p. 33.

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"[...] characterized in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner [...] It must also satisfy a series of further requirements - independence, in particular of the executive; impartiality; duration of its members' terms of office; guarantees afforded by its procedure - several of which appear in the text of Article 6 §1 itself." 9

Several elements are contained in these substantive requirements10: Firstly, a 'power of decision'.11 The Commission in the Sramek case formulated this

requirement in a slightly more clear manner: "[...] a tribunal, being an authority with power to decide legal disputes with binding effects for the parties".12 Soyer and De Salvia have argued that this implies the following: “Il faut donc que le tribunal soit en mesure d’apprécier, par lui même, l’ensemble des éléments – de fait ou de droit – conduisant à la solution du litige”.13

The Court has underlined the importance of the binding nature of the judgment of the national authority in the case of Benthem - Netherlands.14 The then Afdeling contentieux of the Raad

9 ECHR, 27 August 1991, Demicoli - Malta (Series A-210), §39. See also: ECHR, 29 April 1988, Belilos - Switzerland (Series A-132), §64.

10 See for another enumeration: J. Velu, “La notion de ‘tribunal’ et les notions avoisinantes dans la Convention de sauvegarde des droits de l’homme et des libertés fondamentales”, in: R. Buetzler a.o. (eds.), Liber Amicorum F. Dumon, Antwerpen: Kluwer Rechtswetenschappen, 1983, pp. 1287-1315. Velu distinguishes the following criteria: critères matériels (“l’autorité doit être juridiquement apte à prendre des décisions obligatoires s’analysant en des actes juridictionnels par leur contenu, ce qui implique notamment qu’elle puisse dire pour droit si l’acte ou l’abstention à l’origine du litige est conforme ou non à la légalité”), critères organiques (“l’élément organique essentiel est l’indépendance”, but Velu also refers to judicial impartiality, the fact that the tribunal needs to be 'established by law', and the fact that the tribunal needs to be competent), critères formels (basically referring to the other procedural guarantees laid down in Article 6) and l’autorité de la chose jugée (a body can only be qualified as a ‘tribunal’ “si la décision qu’elle est appelée à prendre sur le litige qui lui est soumis n’a pas force de vérité légale”).

11 Such a ‘power of decision’ is also required by the Court when it interprets similar concepts in Article 5 §3 (see, for example, the case of Assenov described in *** Chapter 4 §3.1 ***), Article 5 §4 (see, for example, ECHR, 24 June 1982, Van Droogenbroeck – Belgium (Series A-50), §50 and ECHR, 26 September 2002, Benjamin and Wilson – United Kingdom (appl. no. 28212/95), §34) and in Article 13 (see *** Chapter 4 §3.3 ***).

12 EComHR, 8 December 1982, Sramek - Austria (to be found in Series A-84), §71.

13 J.-C. Soyer & M. de Salvia, “Article 6”, in: L.-E. Pettiti, E. Decaux & P.-H. Imbert, La Convention européenne des Droits de l’Homme – Commentaire article par article, Paris: Economica, 1995, p. 261. Likewise: F. Matscher, “La notion de ‘tribunal’ au sens de la Convention européenne des droits de l’homme”, in: R. Koering-Joulin, Les nouveaux développements du procès équitable au sens de la Convention européenne des droits de l’homme – Actes du colloque du 22 mars 1996 en la grande chambre de la Cour de Cassation , Bruxelles: Bruylant, 1996, p. 45. See also, for example, ECHR, 17 December 1996, Terra Woningen – Netherlands (Reports 1996, 2105), §52: “[…] it is required that the ‘tribunal’ in question have jurisdiction to examine all questions of fact and law relevant to the dispute before it”. A similar approach was discussed in *** Chapter 4 §4.5.2 ***.

14 ECHR, 23 October 1985, Benthem - Netherlands (Series A-97), §40.

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van State (the judicial division of the Dutch Conseil d'Etat) was merely able to give a non-binding advice to the Crown (the executive). The Crown would virtually always follow the advice of the judicial division of the Raad van State, but theoretically it was free to reach a different decision. The Crown, in the Court's opinion, did not itself comply with all the intrinsic requirements of Article 6 ECHR since it could not be regarded as being independent. The Afdeling contentieux, however, could not be considered as a 'tribunal' in the sense of Article 6 ECHR since this judicial division of the Raad van State did not possess the necessary 'power of decision'. In another judgment the Court added in this regard that a decision "may not be altered by a non-judicial authority to the detriment of an individual party".15 This aspect, the immunity from external influences, has been reconfirmed by the Committee of Ministers in Recommendation R (94) 12: "[...] decisions of judges should not be the subject of any revision outside any appeals procedures as provided for by law".16

Secondly, the body needs to operate "on the basis of rules of law and after proceedings conducted in a prescribed manner".17 Once again, the Commission in the Sramek case formulated this element in more elaborate terms:

"Although the exercise of certain discretionary powers is not entirely extraneous to its functions it is nevertheless characteristic of a tribunal that its decisions are not primarily left to its discretion, but must be arrived at in orderly proceedings conducted on the basis of the rule of law, i.e. proceedings enabling it to establish the legally relevant facts, and to apply pre-existing legal regulations or principles to these facts." 18

Thirdly, the body needs to determine "matters within its competence". This both comprises material and territorial jurisdiction. This issue was at the heart of the applicant’s complaint in the Mort case.19 The applicant complained that the magistrates’ court had not been a ‘tribunal established by law’ because it had acted outside its competences in the fine enforcement procedures against the applicant. The Court in its admissibility decision was not persuaded that the national court had exceeded its competences. Despite the fact that there was no express power, the Court held that the practice of the national court did not go beyond the legitimate exercise of the magistrates’ discretion. Paragraph *** §2.3 *** of this chapter will deal more elaborately with this issue.

15 ECHR, 19 April 1994, Van de Hurk - Netherlands (Series A-288), §45.

16 Recommendation R (94) 12 on the independence, efficiency and role of judges (adopted on 13 October 1994), Principle I, sub 2, under a), reproduced in: NJCM-Bulletin 1995, pp. 620-623.

17 A similar criterion is used when interpreting the notion ‘officer authorised by law to exercise judicial power’ used in Article 5 §3 ECHR. In the Schiesser case the Court stated that the officer should decide “by reference to legal criteria” (discussed in *** Chapter 4 §3.1 ***).

18 EComHR, 8 December 1982, Sramek - Austria (to be found in Series A-84), §71.

19 ECHR, 6 September 2001, Mort – United Kingdom (appl. no. 44564/98).

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Lastly, a reference is made to other substantive requirements of Article 6 ECHR, such as judicial independence and impartiality. In the Benthem case the Court stated:

"[...] by the word ‘tribunal’, it denotes 'bodies which exhibit [...] common fundamental features', of which the most important are independence and impartiality." 20

The (slightly bizarre) consequence thereof is that the requirements of independence and impartiality are already of some importance within the framework of the determination whether or not a national authority is a 'tribunal' within the meaning of Article 6 ECHR. The same link is made by the Court when interpreting similar notions in other provisions of the Convention. With regard to the phrase 'officer authorised by law to exercise judicial power' as used in Article 5 §3 ECHR, the Court stated in its Schiesser judgment that the first condition to be satisfied was that of “independence of the executive and of the parties” (see *** Chapter 4 §3.1 ***). In the D.N. – Switzerland case the Court stated that judicial independence was one of the most important constitutive elements of the notion of a 'court' as used in Article 5 §4 ECHR (see *** Chapter 4 §3.1 ***). And also with regard Article 13 ECHR (an effective remedy before a 'national authority') the Court has stated that a certain independence is required (see more elaborately *** Chapter 4 §3.3 ***).21

When the Court refers to judicial independence within the framework of interpreting the notion ‘tribunal’, it emphasises independence vis-à-vis the executive and the parties.22 In some cases the Court furthermore attached importance to more detailed requirements, such as the duration of the term of office of members of the ‘tribunal’.23

So, when referring to other substantive requirements of Article 6 ECHR judicial independence is in practice by far the most important. However, the Court is free to refer to other ‘core’ elements of a fair trial as well. Even though it has not done so explicitly within the framework of Article 6 ECHR, there are examples in the Court’s case-law concerning

20 ECHR, 23 October 1985, Benthem - Netherlands (Series A-97), §43. See also: ECHR, 27 June 1968, Neumeister - Austria (Series A-8), §24; ECHR, 18 June 1971, De Wilde, Ooms & Versyp - Belgium (Series A-12), §78; ECHR, 16 July 1971, Ringeisen - Austria (Series A-13), §95; ECHR, 23 June 1981, Le Compte, Van Leuven & De Meyere - Belgium (Series A-43), §55; ECHR, 1 July 1997, Gustafson - Sweden (Reports 1997, 1149), §§43-49; EComHR, 19 December 1973, X. - United Kingdom (appl. no. 5934/72; CD 45 (1973), p. 116) and EComHR, 14 September 1998, Petersen - Denmark (appl. no. 24989/94; unpublished). This case-law is also implemented by national courts. The Dutch Raad van State declared that the College van beroep voor de examens could not be regarded as a ‘tribunal’ because of a lack of independence vis-à-vis the executive (see the case-law of the Raad van State in NJB 2001, 21).

21 This also becomes apparent from the drafting history of the Convention; see Receuil des travaux préparatoires, t. II, p. 354 and p. 490.

22 This limited interpretation of judicial independence – which is at variance with the Court’s own interpretation when focussing on the material requirement of judicial independence, as will be discussed in the following chapter – can be criticised (see, for example, J. Velu, “La notion de ‘tribunal’ et les notions avoisinantes dans la Convention de sauvegarde des droits de l’homme et des libertés fondamentales”, in: R. Buetzler a.o. (eds.), Liber Amicorum F. Dumon, Antwerpen: Kluwer Rechtswetenschappen, 1983, pp. 1301-1302).

23 See, for example, ECHR, 16 July 1971, Ringeisen – Austria (Series A-13), §95 and ECHR, 23 June 1981, Le Compte, Van Leuven & De Meyere – Belgium (Series A-43), §55.

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Article 5 ECHR. One could on the basis of that case-law argue that adversarial proceedings are another constitutive element of a ‘tribunal’.24

An authority which fulfils the conditions of the above-mentioned definition, can be engaged in exercising other (non-judicial) functions. This does not in itself mean that the national authority is not a 'tribunal':

"The Council of the Ordre des avocats performs many functions - administrative, regulatory, adjudicative, advisory and disciplinary. This variety of functions provided the main ground for the Commission's conclusion that the Council was not a 'tribunal'...The Court does not share this view...This kind of plurality of powers cannot in itself preclude an institution from being a 'tribunal' in respect of some of them." 25

In my opinion, a distinction should have been made for the two other classic powers in a state governed by the Rule of Law, i.e. the executive and the legislative power. However, in the Demicoli case, the Court held that even a parliament can be considered a ‘tribunal’ in specific circumstances. Two members of the Maltese Parliament were of the opinion that an article in a satirical periodical, in which they were criticised, constituted a breach of parliamentary privilege. The Maltese parliament had the power to impose disciplinary measures against “any person, whether a Member of the House or not, guilty of any of the following acts: […] the publication of any defamatory libel on the Speaker or any Member touching anything done or said by him as Speaker or as a Member in the House” (section 11 of the Ordinance concerning the privileges of the House of Representatives). The Court held that Article 6 ECHR was violated in view of a lack of judicial impartiality (iudex in causa sua, see *** Chapter 7 §2.5 ***), but it did not find that the requirement ‘tribunal’ was violated: “In the circumstances of the present case the House of Representatives undoubtedly exercised a judicial function in determining the applicant’s guilt”.26

In my opinion, the Court should have ruled differently. Article 6 ECHR should be interpreted in light of the doctrine of the trias politica. The Court has never explicitly made this link between

24 The Court’s case-law is discussed in *** Chapter 4 §3.1 ***. With regard to the notion ‘court’ used in Article 5 §4 ECHR, the Court attached particular importance to the right to adversarial proceedings in the Sanchez-Reisse case. As will be discussed below (in ***paragraph 4 ***), the Court of Justice of the European Communities has made a reference to adversarial proceedings on several occasions as well.

25 ECHR, 30 November 1987, H. - Belgium (Series A-127-B), §50. The Commission had taken the opposite view (see the Commission's report §95).

26 ECHR, 27 August 1991, Demicoli – Malta (Series A-210), §40. Cf. the standpoint of the Commission in that case: “[…] the House of Representatives, which is a legislative body and from which is constituted the Government or executive of the day, cannot, by its very nature, be considered as a court” (to be found in Series A-210, p. 26, §41). See also the complaint in EComHR, 18 December 1974, Klass - Germany (appl. no. 5029/71; Yearbook of the ECHR 17 (1974), p. 178 at 184), in which supervision of secret surveillance measures was carried out by a parliamentary commission. The applicant stated that such supervision did not equal a trial before an impartial and independent tribunal within the meaning of Article 6 ECHR. The members of Parliament who sat on that commission were, according to the applicant, necessarily influenced by their party or the Government, if their party was represented in it. However, the Court did not examine the merits of this complaint.

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Article 6 ECHR and the trias politica, but it has held that the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in its case-law.27 In addition, one could argue that the theoretic notion of judicial independence as such is an intrinsic element of the trias politica (see Chapter 6 §1). On the basis of trias politica the (co-)legislative power should not be considered a ‘tribunal’. In my opinion, the cumulation of various state powers within the British House of Lords is questionable for similar reasons.

A more dogmatic approach was taken in the Benthem case.28 The Court ruled the Crown, as head of the executive, could not be regarded as a tribunal. The Court reiterated this standpoint in the Holding and Barnes case.29 The Court ruled that members of the executive can not be described as an independent tribunal. In the latter judgment the Court referred to its judgment in the Bryan case30, in which it held that an inspector hearing planning appeals against the decisions of a local authority was not an ‘independent and impartial tribunal’ because of the very existence of the Secretary of State’s power to revoke the power of the inspector to decide on appeal in a case where his own policies may be in issue. The Court then stated: “A fortiori, the Secretary of State him or herself, as the Government Minister responsible for developing national planning policy, cannot be described as ‘an independent and impartial tribunal’ […]”. A similar conclusion was reached in the Vasilescu case. The Court held that an institution only “merits the description ‘tribunal’ within the meaning of Article 6” if it is fully independent of the executive:

“Even where, as in the instant case, State Counsel for a county exercises powers of a judicial nature, he acts as a member of the Procurator-General’s Department, subordinated firstly to the Procurator-General and then to the Minister of Justice.” 31

Such considerations can also be found in some Slovakian cases:

"The Court considers that the Košice 2 District Office which dealt with the applicant’s claim cannot be considered as an authority satisfying the requirements of independence necessary for a tribunal within the meaning of Article 6 §1 of the Convention since it has been charged with carrying out local State administration under the control of the Government." 32

27 See, for example, ECHR, 6 May 2003, Kleyn a.o. – Netherlands (appl. nos. 39343/98 a.o.), §193. See also ECHR [GC], 28 May 2002, Stafford – United Kingdom (appl. no. 46295/99), §78.

28 ECHR, 23 October 1985, Benthem – Netherlands (Series A-970, §§41-43.

29 ECHR, 12 March 2002, Holding and Barnes – United Kingdom (appl. no. 2352/02).

30 ECHR, 22 November 1995, Bryan - United Kingdom (Series A-335-A), §§38-47.

31 ECHR, 22 May 1998, Vasilescu – Romania (Reports 1998, p. 1064), §§40-41.

32 ECHR, 12 November 2002, Baková - Slovakia (appl. no. 47227/99), §32. See, mutatis mutandis, ECHR, 2 September 1998, Kadubec - Slovakia (Reports 1998, p. 2531), §57.

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One may wonder why the Court makes this differentiation between the executive and the legislative power. This differentiation is in my mind unjustified and the ruling in the Demicoli case is erroneous.

A judicial tribunal does not necessarily have to be an ordinary court. In the Campbell & Fell case the Court has explicitly stated that judicial tasks can be assigned to specialised tribunals:

“[…] the word ‘tribunal’ in Article 6 section 1 is not necessarily to be understood as signifying a court of law of the classic kind, integrated in the standard judicial machinery of the country.” 33

Specialised tribunals of this kind could especially have an added value in case technical issues are the subject of litigation.34 Administrative or disciplinary tribunals could meet the definition of a 'tribunal' in Article 6 ECHR.35 Administrative authorities (contrary to administrative tribunals) have however generally not been accepted as being judicial 'tribunals' within the meaning of Article 6 §1.36

1.3 Arbitration tribunals

Finally, a few remarks specifically concerning the question whether an arbitral body qualifies as 'a tribunal established by law', as laid down in Article 6 §1 ECHR.37 In the case of Lithgow the Court specifically dealt with a form of compulsory arbitration:

“[...] the word ‘tribunal’ [...] may comprise a body set up to determine a limited number of specific issues, provided always that it offers the appropriate guarantees. The Court also notes that, under the statutory instruments governing the matter, the proceedings before the Arbitration Tribunal were similar to those before a court and that due provision was made for appeals.” 38

33 ECHR, 28 June 1984, Campbell & Fell – United Kingdom (Series A-80), §76. See also: ECHR, 5 November 1981, X. - United Kingdom (Series A-46), §53 and ECHR, 1 July 1997, Gustafson - Sweden (Reports 1997, 1149), §45.

34 ECHR, 20 November 1995, British-American Tobacco Company Ltd. - Netherlands (Series A-331), §77.

35 ECHR, 8 July 1986, Lithgow a.o. - United Kingdom (Series A-102), §201 and ECHR, 30 November 1987, H. - Belgium (Series A-127), §50. See also EComHR, 12 October 1982, Bramelid & Malmström - Sweden (appl. nos. 8588/79 & 8589/79; D&R 29, p. 74).

36 See for example, ECHR, 7 July 1989, Tre Traktörer AB - Sweden (Series A-159), §§47-49; ECHR, 25 October 1989, A. Jacobsson - Sweden (Series A-163), §§75-76; ECHR, 21 February 1990, Hakansson & Sturesson - Sweden (Series A-171-A), §§62-63; ECHR, 28 June 1990, Obermeier - Austria (Series A-179), §70 and ECHR, 22 May 1998, Vasilescu - Romania (Reports 1998, 1064), §§39-41.

37 See E. Krings & L. Matray, "Le juge et l'arbitre", in: Revue Droit International Comparé 1982, pp. 254-260.

38 ECHR, 8 July 1986, Lithgow a.o. - United Kingdom (Series A-102), §201.

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The Court's reasoning raises a couple of questions. In the first place, it is not quite clear what the Court means when it refers to ‘appropriate guarantees’. In general, the Court attaches importance to the question whether the body has acted on the basis of a prescribed procedure, which is in accordance with the ‘rule of law’. The phrase therefore refers, in my opinion, to the application of predetermined procedural law, which should be in accordance with the more substantive requirements of Article 6 ECHR, i.e. judicial impartiality and fairness.

Secondly, one may wonder what the Court means when it refers to the possibility of appeal proceedings. In my opinion, this underlines the need for a legal remedy in case of an allegation that the arbitral proceedings were not in conformity with elementary procedural guarantees. With regard to other elements of the proceedings (for example, the merits of the arbitral award) it should not always be necessary to allow for appellate proceedings.

Thirdly, it raises the question whether the Court's finding in the Lithgow case can also be held applicable with regard to voluntary arbitration. Matscher is of the opinion that these latter bodies cannot be regarded as ‘tribunals’.39 Jacot-Guillarmod shares his view:

“[…] l’une des caractéristiques fondamentales d’un tribunal est d’être préconstitué; alors que l’une des caractéristiques de l’arbitrage privé volontaire est de permettre aux parties de désigner elles-mêmes le ou les arbitres d’un commun accord, parfois dans une convention postérieure à la convention d’arbitrage. Dans ce dernier cas, il devient très artificiel de prétendre que la juridiction arbitrale est ‘établie’ par la loi.” 40

In my opinion, that conclusion is not correct. The Court requires that the body in question is able to take legally binding decisions without the possibility of a non-judicial body to set the decision aside. This means that a system whereby the execution of an arbitration award is dependent upon the enforcement or confirmation by a domestic court, is not problematic in the light of the Strasbourg case-law. Furthermore, vis-à-vis the requirement of pre-determined rules of law, it should not be forgotten that national law should lay down general rules concerning the framework within which those arbitration tribunals are to function (see *** Chapter 4 §4.7.2 ***). Finally, also with regard to ‘ordinary’ tribunals the European Court does not require a German system of the Gesetzliche Richter (see below §2.3). Having said that, it is likely that the Court will interpret the requirements of Article 6 in a more moderated manner (see also *** Chapter 4 §4.7 ***).

39 F. Matscher, "L'arbitrage et la Convention", in: Pettiti, Decaux & Imbert (eds.), Commentaire de la Convention européenne des droits de l'homme , Paris: Economica, 1995, p. 281.

40 O. Jacot-Guillarmod, “L'arbitrage privé face à l'Article 6, par. 1er de la Convention européenne des droits de l'homme”, in: Matscher & Petzold (eds.), Protecting human rights: the European dimension, Studies in honour of Gérard J. Wiarda, Köln: Carl Heymanns Verlag, 1988, p. 291.

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Paragraph 2 'Established by law'

2.1 Raison d’être

The travaux préparatoires of the Convention do not elaborate on the rationale of the notion ‘established by law’. Before turning to the (rare) case-law of the Court, it may be useful to explore the case-law of other international tribunals.

The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 (the ICTY) in the Tadić case stipulated that the principle that a tribunal must be established by law is a general principle of law imposing an international obligation which only applies to the administration of (criminal) justice in a municipal setting.41 In the Tadić case the ICTY had to decide on the defence’s submission that the Tribunal had not been established by law. The Tribunal gave an elaborate account of the various interpretations that can be given to the requirement 'established by law': One could argue that 'established by law' means established by a legislature. The defence had

argued that the ICTY had been the product of a “mere executive order” and not of a “decision making process under democratic control”. This interpretation is rooted on the assumption that there is a classical division of legislative, executive and judicial powers. However, it is impossible to classify the organs of the United Nations into this classical division. The ICTY therefore found that this interpretation finds no application in an international law setting and that it could only impose an obligation on States concerning the functioning of their own national systems.

A second possible interpretation is that the words 'established by law' refer to establishment of a court by a body which, although not a Parliament, has a limited power to take binding decisions. This interpretation is specifically relevant for international courts. Within the context of the United Nations, one such body could be the Security Council. The Security Council has a limited power to create international tribunals as a measure under Chapter VII of the UN Charter. In addition, it can be relevant that the ‘representative’ organ of the United Nations, the General Assembly, approves and endorses the establishment of such a tribunal.

A third possible interpretation is that the establishment of a court must be in accordance with the rule of law, meaning that it must be established in accordance with the proper international standards and that it must provide all the guarantees of fairness, justice and evenhandedness, in full conformity with internationally recognized human rights instruments.

41 ICTY, 2 October 1995, Prosecutor – Tadić (Decision on the defence motion for interlocutory appeal on jurisdiction) (Case No. IT-94-1-AR72). See also the commentaries of Th. Van Boven and H. Fischer in: A. Klip & G. Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals – Volume 1, Antwerpen/Groningen/Oxford/Vienna: Intersentia/Hart/Verlag Österreich, 1999, pp. 13-142.

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The ICTY then reached its own conclusion: “what is important is that it be set up by a competent organ in keeping with the relevant legal procedures, and that it observes the requirements of procedural fairness”.

At first sight the Strasbourg case-law seems to attach much more importance to the first possible interpretation, i.e. the guarantee is intended to ensure that the administration of justice is not a matter of executive discretion, but is regulated by laws made by the legislature. Or, as the Commission has put it:

“[...] the judicial organisation in a democratic society must not depend on the discretion of the Executive, but that it should be regulated by law emanating from Parliament." 42

However, a closer examination reveals that the Strasbourg standpoint is very similar to that of the ICTY in the Tadić case. The reference to “requirements of procedural fairness” is embodied in the definition of a 'tribunal' as laid down in Article 6 ECHR (see ***paragraph 1.2***). And the necessity of “establishment by a legislature” is mitigated in the Strasbourg case-law. This brings us to the question what exactly the meaning is of the word ‘law’ in the phrase ‘established by law’.

2.2 What kind of 'law'?

The establishment of the judicial tribunals itself should be entrenched in a formal act of the legislature.43 This formal act of the legislature does not, however, have to contain an exhaustive elaboration of the judicial organisation:

"However, Article 6 par. 1 does not require the legislature to regulate every detail in this area by formal Act of Parliament if the legislature establishes at least the organisational framework for the judicial organisation." 44

Only the ‘framework’ of the judicial organisation needs to have been regulated by a formal law. Frowein and Peukert have given their opinion on how this ‘framework’ should be defined:

42 EComHR, 12 October 1978, Zand – Austria (appl. no. 7360/76; D&R 15, p. 80). See also: EComHR, 6 September 1990, T.S. & F.S. - Italy (appl. no. 13274/87; D&R 66, p. 164) and EComHR, 10 October 1990, G. - Switzerland (appl. no. 16875/90; not published).

43 See, amongst others, ECHR, 22 September 1994, Debled - Belgium (Series A-292-B), §32; EComHR, 13 July 1970, X. - Germany (appl. no. 4124/69; CD 35 (1971), p. 132); EComHR, 12 March 1981, Barthold - Germany (appl. no. 8734/79; D&R 26, p. 145) and EComHR, 10 October 1991, Mitap & Müftüoglu - Turkey (appl. nos. 15530/89 & 15531/89; D&R 72, p. 169).

44 EComHR, 10 October 1990, G. - Switzerland (appl. no. 16875/90; not published); and earlier EComHR, 12 October 1978, Zand - Austria (appl. no. 7360/76; D&R 15, p. 70). See also EComHR, 14 December 1979, Le Compte, Van Leuven & De Meyere - Belgium (Series B-38, p. 39), §75.

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“Die gesetzliche Regelung soll zumindest durch Rahmenvorschriften den gesamten organisatorischen Aufbau, die Zuständigkeit der einzelnen Gerichtsbarkeiten, die Schaffung der jeweiligen Gerichte und ihre sachliche und örtliche Zuständigkeit festlegen.” 45

According to Frowein and Peukert, the legal framework needs to regulate, inter alia, the overall organisation of the judiciary, the establishment of the various courts and their material and territorial jurisdiction. Other particular matters may be left to the executive, for example, acting by way of delegated legislation, as long as matters of judicial organisation are not completely left to the discretion of the executive. The Strasbourg Court will ultimately check whether the powers conferred are not excessive.46

So how will the word ‘law’ be interpreted with regard to the further regulation of the judicial organisation? Relevant in this regard is that the Commission has made a connection with the word ‘law’ as used in the clause ‘prescribed by law’ (paragraph 2 of Articles 8 through 11 of the Convention and Article 2 paragraph 3 of the Fourth Protocol as one of the requirements for a legitimate limitation of the fundamental rights laid down in those Articles). In the Ginikanwa case, the Commission had to deal with the question whether a national body could be considered a ‘tribunal established by law’. It referred to the Sunday Times case, in which the Court held that the word ‘law’ in the phrase ‘prescribed by law’ as used in Article 8 §2 ECHR did not only cover statute but also unwritten law. The Commission then held that "the same principle applies to the use of the word ‘law’ in the expression ‘established by law’ in Article 6".47 At first sight therefore it seems as if the Court's case law regarding the clause ‘prescribed by law’ can be applied analogously to the interpretation of the clause ‘established by law’.48 What has the Court said with regard to the interpretation of the word ‘law’ as used in the clause ‘prescribed by law’? 49

45 J.A. Frowein & W. Peukert, Europäische MenschenRechtsKonvention – EMRK-Kommentar, Kehl – Strasbourg – Arlington: N.P. Engel Verlag, 1996, p. 249.

46 EComHR, 18 December 1980, Crociani a.o. - Italy (appl. no. 8603/79 a.o.; D&R 22, p. 147 at 219).

47 EComHR, 9 March 1988, Ginikanwa - United Kingdom (appl. no. 12502/86; D&R 55, p. 251 at 259).

48 Heringa reaches a similar conclusion in: A.W. Heringa, I. Huussen, J.G.C. Schokkenbroek & J. van der Velde (eds.), EVRM – Rechtspraak & Commentaar, Lelystad: Koninklijke Vermande, 1998, sub 3.6.5, p. 13.

49 Th.L. Bellekom, “Het Hof voor de Rechten van de Mens en de beperkingsclausules van het EVRM”, in: A.W. Heringa, J.G.C. Schokkenbroek, J. van der Velde (eds.), 40 jaar Europees Verdrag voor de Rechten van de Mens, Leiden: NJCM, 1990, pp. 59-74; R. Herzog, Grundrechtsbeschränkungen nach dem Grundgesetz und EMRK (thesis 1958); U. Hoffmann-Remy, Die Möglichkeiten der Grundrechtseinschränkung nach den Art 8-11 Abs. 2 der EMRK , 1976; M. Kuijer & R.A. Lawson, “De beperking van mensenrechten onder het IVBPR”, in: NJCM-Bulletin 1994, pp. 807-809 and L.G. Loucaides, "Restrictions or limitations on the Rights Guaranteed by the European Convention on Human Rights", in: Finnish Yearbook of International Law 1993, p. 347.

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In determining whether or not a national measure was ‘prescribed by law’ in accordance with the Convention, one has to distinguish three separate elements: ‘basis in domestic law’; ‘accessibility/foreseeability’ and ‘the rule of law’. The requirement ‘basis in domestic law’ is met if the disputed measure is based on a legal rule, originating from a competent (by virtue of attribution or delegation) legislative authority. The disputed measure can also be based on a ‘settled (administrative) practice’ or on an international rule (yet only if national legislation refers to the international rule).50 The requirement ‘domestic law’ is also met in case of national case law; a different decision "would have struck at the very roots of the United Kingdom's legal system".51 National case law can, in principle, also be a sufficient legal basis in a continental legal system.52 The possibility of case law being a sufficient legal basis necessitated the Court to explicitly put forward two further requirements, namely ‘accessibility’ and ‘foreseeability’. The source of law should be generally accessible for citizens. Closely linked with the criterion of ‘accessibility’ is the requirement of ‘foreseeability’: the law should be sufficiently clear. One should reasonably be able to ‘predict’ the legal consequences of one's behaviour.53 In subsequent judgments the Court has called for a more intrinsic examination of the national legislation. With regard to Article 8 paragraph 2 ECHR the Court has phrased the criterion ‘foreseeability’ more generally by referring to a ‘rule of law’-test.54 The Court has by doing so built in a guarantee against arbitrariness.

In conclusion, the word ‘law’ in Article 6 ECHR requires a formal act of the legislative with regard to the establishment of a ‘framework’ of the judicial machinery. With regard to the detailed elaboration of this ‘framework’ a reference has been made to the Court's case law concerning the clause ‘prescribed by law’ in the second paragraph of Articles 8 through 11 ECHR.

2.3 What aspects need to be regulated in order for the tribunal to be 'established by law'?

Once it has been established what is meant by the word ‘law’, attention can shift to the word ‘established’. What exactly needs to be regulated by law? In the Zand case the Commission considered that...

"[...] ‘established by law’ envisages both the establishment of the court as well as the determination of its material and territorial jurisdiction." 55

50 ECHR, 2 August 1984, Malone - United Kingdom (Series A-82), §69 respectively ECHR, 28 March 1990, Groppera Radio AG - Switzerland (Series A-173), §68.

51 ECHR, 26 April 1979, Sunday Times - United Kingdom (Series A-30), §47.

52 ECHR, 24 April 1990, Kruslin - France (Series A-176-A), §§28-29 and ECHR, 24 April 1990, Huvig - France (Series A-176-B), §§27-28.

53 ECHR, 26 April 1979, Sunday Times - United Kingdom (Series A-30), §49.

54 ECHR, 2 August 1984, Malone - United Kingdom (Series A-82), §79: "[...] 'in accordance with the law' does not merely refer back to domestic law but also relates to the quality of law requiring it to be compatible with the rule of law".

55 EComHR, 12 October 1978, Zand - Austria (appl. no. 7360/76; D&R 15, p. 70), §§68-69.

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This standpoint has been reiterated by the Court in the Coëme a.o. case. The criminal proceedings against the applicants had been tried by the Belgian Court of Cassation. However, neither the Belgian Constitution nor statute law gave the Court of Cassation the power to try persons other than government ministers. The Court reiterated that “organisation of the judicial system and jurisdiction in criminal cases cannot be left to the discretion of the judicial authorities”.56 As a result the Court considered that the Court of Cassation had not been a tribunal ‘established by law’ within the meaning of Article 6 to try these applicants.

So not only the institution57 but also the organisation and the functioning of the tribunal in question must have a legal basis. Van Dijk states that the provision that the tribunal must be competent guarantees that a court must be competent ratione personae, ratione materiae and ratione loci in any concrete case.58 The Strasbourg case-law does not, however, oblige states to introduce the German doctrine of the Gesetzliche Richter.59 There is a provision in the German Grundgesetz that entails that it should be clear from the outset which individual judge sits in any particular case (Article 101 Grundgesetz).60 The allocation of cases is made before the beginning of each business year by the ‘Präsidium’ of a court (a council elected by the judges of that court). The assignment of individual cases is thus determined on the basis of a strict roster. 61 The

56 ECHR, 22 June 2000, Coëme a.o. – Belgium (appl. no. 32492/96), §107.

57 See the case of Aziz in which the applicant complained that the Supreme Court of Cyprus could not be considered a court established by law, because it was illegally established by Law 33/64, contrary to the provisions of the Constitution. The Court declared the complaint manifestly ill-founded: “[…] the Supreme Constitutional Court of Cyprus had ceased to function due to the anomalous situation in Cyprus and that the Supreme Court of Cyprus took over the competence of that court by virtue of a law declared valid and constitutional by the Supreme Court, at a time when it was composed of both Greek Cypriot and Turkish Cypriot judges […] The Supreme Court of Cyprus may therefore be deemed to be a tribunal […]”. See ECHR, 23 April 2002, Aziz – Cyprus, Greece, Turkey and the United Kingdom (appl. no. 69949/01).

58 P. van Dijk, The right of the accused to a fair trial under international law , Utrecht: SIM Special No. 1, 1983, p. 40.

59 See among others: Ch. Hillgruber, "Das BverfG und der gesetzliche Richter", in: Neue Zeitschrift für Verwaltungsrecht 1999, pp. 153-154.

60 Other countries with a strong constitutional tradition have similar concepts, like Italy (Article 25 Italian Constitution; see also Corte Costituzionale, Giurisprudenza Costituzionale 1962, 959) and Spain (Article 24 II Spanish Constitution; see also Tribunal Constitucional, Boletín de Jurisprudencia Constitucional 1983, 703). Also the Court of First Instance of the European Communities has a system whereby cases are mechanically allocated to particular judges.

61 However it should be noted that also in the German case-law there is a trend towards a more flexible interpretation of the doctrine: G. Felix, "Der gesetzliche Richter", in: Zeitschrift für Recht und Wirtschaft 1995, pp. 1811-1812: "Die Kammern und Senate benötigen zur effektiven Rechtsschutzgewährung zusätzliche Richter [...] Persönliche Gründe vielfältigster Art [...] verunmöglichen nahezu die regelmäße Anwesenheit aller Mitglieder eines Spruchkörpers".

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judgment of a court whose composition has not been determined in accordance with these requirements will not be upheld on appeal, regardless of its contents. The decision which judge sits in a particular case should not depend on the discretionary decision of, for example, the President of the court.

Other countries do not have such a strict approach.62 It is difficult to find a common denominator in these approaches. Most European countries recognize the doctrine of the Gesetzliche Richter to some extent, in the sense that the legal judge is the judicial organ which on the basis of organisational laws is in advance determined as competent. It is less common that the doctrine applies to pre-determined chambers of courts. And even more unusual that the doctrine applies to individual judges dealing with specific cases.63

The Strasbourg case-law does not really focus on this ‘internal’ distribution of cases. In the Stieringer case the applicant’s case had been heard by an auxiliary criminal chamber, which had been set up by the Presiding Committee of the Berlin Regional Court for the purpose of relieving the 19th Criminal Chamber which, due to its workload, could not deal with urgent cases. The applicant complained that the auxiliary criminal chamber was not a ‘tribunal established by law’, since it had not been set up in accordance with pre-fixed rules (the strict application of the doctrine of the Gesetzliche Richter). The Commission did not share the applicant’s view. It observed that the Presiding Committee of the Court was responsible for the internal distribution of cases on the basis of the Courts Organisation Act:

“[…] namely to organise the distribution of cases and the replacement of judges or benches and, if necessary in view of the excessive workload of a bench, to change the rules governing a particular year. […] In this context, the Commission recalls that domestic courts are obliged to conduct the proceedings within a "reasonable time", and that Article 6 para. 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements.” 64

62 The Dutch Constitution does recognize the right to be tried by a lawfully competent judge: “Niemand mag tegen zijn wil worden afgehouden van de rechter die de wet hem toekent” (Article 17 Grondwet). But the assignment of individual cases is left to the President of a court. Article 8 of the Greek Constitution establishes the principle of the legal judge. The legal judge is the judicial organ, which, on the basis of the effective, organisational, procedural or other laws, is in advance generally determined as competent, due to the merits, place or other data, for a certain category or categories of cases). In the United Kingdom the doctrine of the Gesetzliche Richter is unknown. In France the 'droit au juge naturel' which is embodied in Articles 16 and 17 of the Déclaration des droits de l'homme et du citoyen of 1789 is interpreted as merely meaning equality before the law. One last interesting example can be found in Ireland. In that country there are twelve so-called ‘moveable’ judges who may be temporarily assigned to any district to deputise for a permanently assigned judge during periods of absence due to sickness or annual leave or to assist in the disposal of business (see: Council of Europe, Judicial organisation in Europe, Strasbourg: Council of Europe Publishing, 2000, p. 188).

63 R. Stotz, "Der gesetzliche Richter in Europa", in: Europäische Zeitschrift für Wirtschaftsrecht 1995, p. 749: "Während er [the content of the doctrine of the Gesetzliche Richter, MK] sich in allen Mitgliedstaaten, die dieses Prinzip anerkennen, auf das Gericht als organisatorische Einheit beziehen dürfte, ist dies im Hinblick auf den erkennenden Spruchkörper schon weniger deutlich [...] und kaum erkennbar in bezug auf den oder die Richter, die im Einzelfall zur Entscheidung berufen sind."

64 EComHR, 25 November 1996, Stieringer – Germany (appl. no. 28899/95).

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After the introduction of the 11th Protocol, the ‘new’ Court confirmed this standpoint more explicitly in the Lindner case:

"The assignment of the applicant's case to the First Chamber of the said Court and the composition of that Chamber were based on the court's internal rules on the distribution of cases. The applicant, who challenges the quality and correct application of these rules, does not deny this. However, the internal assignment of a particular case on the basis of existing rules is an administrative matter which does not as such concern the establishment of the court." 65

So, the introduction of the German system of the Gesetzliche Richter is not required by the Convention. Nonetheless, several commentators have argued that such a system would be desirable.66 In my opinion, the dogmatic approach in the German Grundgesetz is more sound from a theoretical standpoint. The flexible approach taken in, for instance, the Netherlands can be questioned on principle and could lead to abuse of powers. However, I would not be in favour of adopting a German-like system for practical reasons. It is extremely inefficient for an already overburdened judiciary to blindly assign judges to highly technical disputes that require a high level of specialised knowledge. Also, as can be seen in the above-mentioned Stieringer case, a strict application of the doctrine is hardly desirable since it leaves no room to handle the overburdening of a specific sector. I would be much more in favour of general ‘internal’ guidelines to limit the discretionary powers of the president of a tribunal when assigning cases to individual judges and chambers. Such a code of conduct will be discussed more elaborately in *** Chapter 9 ***.

Back to the Strasbourg case-law. The admissibility decision of the Commission in the Crociani case dealt with the required delimitation of the court’s jurisdiction.67 Article 134 of the Italian Constitution provided for the trial of Ministers and the President of the Republic by the Constitutional Court for offences committed in the performance of their duties. There was a discretionary power to extend the Court's jurisdiction to cover persons, other than ministers, who were charged with offences related to those with which the Ministers were charged. In the Crociani case, the decision had been taken to join the proceedings against the applicants who were not ministers. Hence the Constitutional Court's jurisdiction was widened by an optional decision taken by the Parliamentary Committee of Inquiry (Parliament at the indictment stage and the Constitutional Court itself at the trial). The Commission did not find a breach of the requirement 'established by law', but only because the powers conferred on the above-mentioned organs had not been "excessive". The Commission referred to the fact that the Act sets out an exhaustive list of the cases in which such a joinder may be ordered, while leaving it to the organs

65 ECHR, 9 March 1999, Lindner - Germany (appl. no. 32813/96).

66 See, for example, A.F.M. Brenninkmeijer in NRC Handelsblad of 9 August 2002.

67 EComHR, 18 December 1980, Crociani a.o. - Italy (appl. no. 8603/79 a.o.; D&R 22, p. 147 at 219).

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concerned, to determine whether the joinder is advisable. In other words, there were sufficient safeguards against an arbitrary use of the power conferred. In my opinion, this requirement introduces an obligation for domestic law to ensure that domestic rules concerning material and territorial jurisdiction cannot be applied in an arbitrary manner.

Dubious in this respect is the recent proposal to amend the Italian Code of Criminal Procedure, ‘Cirami’ Law. This amendment would allow for trials to be transferred to a different court on the basis of "legitimate suspicions" that a trial could be compromised by serious local circumstances. The amendment would apply to all cases, including those that are currently before the court, and could also be raised again in cases where a previous request for transfer has been rejected. The amendment has already been approved by the Chamber of Deputies. The United Nations Special Rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy, has rightly expressed his concern about this proposed procedural change in a letter to the Minister for Foreign Affairs of 2 August 2002.68

Potentially problematic could also be the Irish system whereby a judge is empowered to transfer a specific criminal trial (so not a category of trials) from one part of his circuit to another. Also, on application by the Director of Public Prosecutions or the accused person, the judge may transfer the trial, if satisfied that it would be manifestly unjust not to do so.69

In principle, the phrase 'established by law' also means 'established in accordance with law', i.e. Article 6 ECHR will be infringed if a tribunal does not function in accordance with the particular rules that govern it.70 For example, the rules concerning the composition of the tribunal:

"In principle, a court cannot be regarded as being 'established by law' if, in a particular case, the provisions as to its lawful composition have not been complied with." 71

The Court confirmed this case-law in its 2002 judgment in the Lavents case, in which the bench of a Regional Court had not been constituted in accordance with national law, and there had

68 See the United Nations Press Release "Rights expert expresses concern about amendment to Italian criminal procedure code" of 9 August 2002. See also the preliminary report on his mission to Italy (E/CN.4/2002/72/Add.3 of 26 March 2002).

69 Council of Europe, Judicial Organisation in Europe, Strasbourg: Council of Europe Publishing, 2000, p. 190.

70 EComHR, 12 October 1978, Zand - Austria (appl. no. 7360/76; D&R 15, p. 70), §§71. See also: J.-C. Soyer & M. de Salvia, “Article 6”, in: L.-E. Pettiti, E. Decaux & P.-H. Imbert, La Convention européenne des Droits de l’Homme – Commentaire article par article, Paris: Economica, 1995, p. 261.

71 EComHR, 11 October 1990, Pfeifer and Plankl - Austria (to be found in Series A-227), §63. See also: EComHR, 6 December 1989, Rossi - France (appl. no. 11879/85; D&R 63, p. 105 at 131) and EComHR, 14 December 1989, Oberschlick - Austria (to be found in Series A-204), §90. The Court itself has in these cases dealt with the applicant's complaints by using the impartiality-test (see also the Court in ECHR, 1 October 1982, Piersack - Belgium (Series A-53), §33). See also the recent complaint in the Posokhov case, in which the applicant complained that the court that convicted him could not be regarded as a ‘tribunal established by law’ because it was composed in breach of the relevant national rules. The Court declared the complaint admissible (ECHR, 9 July 2002, Posokhov – Russia (appl. no. 63486/00)).

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therefore been a violation of Article 6 §1 on that account.72 So, according to Strasbourg case-law the clause 'established by law' should not only be interpreted as meaning that the tribunal is established on the basis of legal provisions but also as meaning that the composition of that tribunal should be in accordance with the law.73 Strangely enough an exception is made with regard to trial by jury:

"Whereas the composition of the jury is an administrative matter which does not, as such, concern the 'establishment' of the court; whereas any administrative error is to be taken into account only in so far as the error caused such prejudice to the applicant as to amount to a denial of justice [...]" 74

In my opinion, this differentiation in standard between jury-trials and ordinary trials is unjustified. There is no cogent reason for making such an exception.

Paragraph 3 Establishment of special courts

The drafting history of Article 14 of the International Covenant on Civil and Political Rights is useful when examining whether the establishment of ad hoc tribunals is forbidden. The representatives of Lebanon and of Chile sought to amend Article 14, so that it would read 'pre-established' by law instead of 'established' by law. Adoption of this amendment would have prevented the establishment of all ad hoc tribunals. But at the same time, as the representative of the Philippines pointed out, it would have prevented countries to reorganise their judicial systems. The amendment was not adopted and the Human Rights Committee – when interpreting Article 14 ICCPR – has held that 'extraordinary' tribunals or 'special' courts are not incompatible with the requirement 'established by law'.75 The Human Rights Committee does in practice, however,

72 ECHR, 28 November 2002, Lavents – Latvia (appl. no. 58442/00), §§117-119. See also: ECHR, 4 March 2003, Posokhov – Russia.

73 See also P. Smits, Artikel 6 EVRM en de civiele procedure (thesis Erasmus University) , Zwolle: Tjeenk Willink, 1996, p. 255.

74 EComHR, 23 July 1963, X. - Austria (appl. no. 1476/62; CD 11 (1963), p. 31); EComHR, 16 July 1970, X. - Norway (appl. no. 3444/67; Yearbook of the ECHR 13 (1970), p. 302); EComHR, 22 March 1972, X. - Austria (appl. no. 4622/70; CD 40 (1972), p. 15); EComHR, 28 May 1973, X. - Austria (appl. no. 5481/72; CD 44 (1973), p. 127); EComHR, 8 July 1978, Ensslin, Baader & Raspe - Germany (appl. nos. 7572/76, 7586/76 & 7587/76; D&R 14, p. 64) and EComHR, 10 October 1977 (appl. no. 7748/76; not published).

75 General Comment on Article 14, adopted by the Human Rights Committee at its 43 rd

Session, Supp. No. 40, §4 (U.N. Doc. A/43/40 (1988)) and Human Rights Committee, Cariboni – Uruguay (case no. 159/83; U.N. Doc. A/39/40). See also Principle 21 of the International Bar Association Code of minimum standards of judicial independence (New Delhi, 1982) and Principle 2.06 (a) of the Universal Declaration on the Independence of Justice (Montréal, 1983).

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scrutinise closely whether such 'special' courts comply with the fair trial requirements of Article 14 ICCPR. A similar approach has been taken by the Inter-American Commission.76

Article 6 §1 ECHR does not prohibit the establishment of special courts either, as long as they have a basis in law providing adequate safeguards with regard to the other substantive requirements of Article 6 ECHR.77 For example, in 1972, due to the situation arising from the troubles in Northern Ireland, the Irish Government found it necessary to invoke the possibility ex Article 38 §3 of the Constitution of Ireland, which provides that special criminal courts (an chúirt choiriúil speisialta) may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice. The Irish Constitution also laid down that the constitution, powers, jurisdiction and procedure of such special tribunals had to be prescribed by law. This was done in part V of the Irish Offences against the State Act 1939. Under these circumstances the Commission was satisfied that this special criminal court dealing with terrorist offences was a 'tribunal established by law'.78

Neither has the establishment of a special Scottish High Court of Justiciary in the Netherlands for the purpose of the so-called 'Lockerbie-trial' caused problems in view of the requirements of Article 6 ECHR. On 21 December 1988 Pan Am flight 103 was bombed over the Scottish town of Lockerbie and 270 persons died. The two suspects had the Lybian nationality but were not extradited by Lybia, which resulted in the United Nations Security Council taking economic sanctions against Lybia for over seven years. Eventually all parties tried to reach a compromise. For political reasons it was unacceptable to Lybia that both suspects would be tried in Scotland. The United Kingdom insisted for a long time on a trial in Scotland. A trial on the basis of Scottish law in a third country (the Netherlands) was an acceptable compromise for both parties. This initiative was then endorsed by the United Nations Security Council and both the Netherlands and the United Kingdom were 'called upon' to take the necessary steps for the establishment of such a court.79 First Scottish law was changed; the 'High Court of Justiciary (Proceedings in the Netherlands) Order 1998' created the possibility of a trial in the Netherlands and entered into force on 18 September 1998.80 On that same date the Netherlands and the United Kingdom signed an agreement, which entered into force on 8 January 1999.81 Finally, the Netherlands introduced

76 Annual Report 1972, OEA/Ser. P, AG/doc. 305/73 rev. 1, 14 March 1973, p. 1 and Annual Report 1973, OEA/Ser. P, AG/doc. 409/174, 5 March 1974, pp. 2-4.

77 See also the 'Greek case' in Yearbook of the ECHR 12 (1969), p. 148. Cf. the constitutional prohibition of establishing special ad hoc courts laid down in various European countries (for example, Article 61 of the Danish Grundlov and Article 86 of the Luxembourg constitution).

78 EComHR, 10 October 1980, X. & Y. - Ireland (appl. no. 8299/78; D&R 22, p. 51), §§17-18.

79 Resolution 1192 (1998) adopted on 27 August 1998 (S/RES/1192 (1998)).

80 Statutory Instruments 1998 No. 2251.

81 Tractatenblad 1998, 237.

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legislation to implement the Agreement and to exclude the applicability of Dutch law for this specific purpose.82 The aggregate of these international and national regulations surely provides an adequate 'basis in law'. The constitution, powers and jurisdiction of the ad hoc court are defined in these regulations and as far as procedure is concerned a reference to ordinary Scots law is made.

Paragraph 4 'Tribunal' in the case-law of the Court of Justice of the European Communities

The notion 'tribunal' is also of relevance in EC law. The Court of Justice of the European Communities will have to determine whether a national authority can be considered a court or tribunal within the meaning of Article 234 EC Treaty (177 (old)), the so-called preliminary rulings procedure. The notion 'tribunal' is not defined in the EC Treaty itself. The Court of Justice therefore had to develop certain (autonomous) criteria. This paragraph draws a comparison between the case-law of the Strasbourg Court and the Court of Justice of the European Communities.

In doing so, it is important to be aware of the specific background of this part of the case-law. The concept of national court or tribunal determines whether the Court of Justice has jurisdiction to conduct proceedings ex Article 234 EC Treaty which have turned out to be essential to the gradual construction and consolidation of the Community legal order. A broader interpretation of the notion 'tribunal' will lead to more national bodies being able to ask for a preliminary ruling. As a consequence, the Court of Justice is better equipped to safeguard the uniform application of EC law. Especially in the early years of its existence the Court was keen to underline the importance of Article 177 (old). This had led to a fairly relaxed interpretation of the notion 'tribunal'. Advocate-General Mancini has once said: "The criteria by which the Community concept of a 'court or tribunal' is defined could not be wider".83

So what are these criteria? Interestingly enough, the relevant factors are very similar to those that the European Court of Human Rights uses within the framework of Article 6 ECHR. In the Vaasen-Göbbels case the ECJ set out, for the first time, five of the criteria which it considers determine whether a body constitutes a court or tribunal: statutory origin, permanence, inter partes procedure, compulsory jurisdiction, and the application of rules of law.84 Since that judgment the ECJ has refined and perfected these criteria. The requirement that

82 Staatsblad 1998, 628. The law was introduced on 23 September 1998 and entered into force on 14 November 1998.

83 ECJ, Case 14/86, 11 June 1987, Pretore di Salò - Persons Unknown [1987] ECR 2545, p. 2556.

84 ECJ, Case 61/65, Vaasen-Göbbels [1966] ECR 377. See also, for example: ECJ, Case C-54/96, Dorsch Consult - Bundesbaugesellschaft Berlin [1997] ECR I-4961, §23 and ECJ, Case C-407/98, 6 July 2000, Abrahamsson & Anderson - Fogelqvist [2000] ECR I-5539, §29.

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the body should be independent was mentioned only in 1987 in the Pretore di Salò case85 and adopted unconditionally in the Corbiau case86. That this list is not exhaustive and that each factor is not always relevant emerges clearly from the case-law.87 The casuistic approach taken by the Court has been criticised on occasion.88 However, for the purposes of this research the interpretation given to the various criteria is more interesting than this dogmatic discussion. The discussion in the Opinions of the Advocates-General and in the judgments of the ECJ, however, seems to have focussed only on some of the above-mentioned criteria:

Statutory origin (cf. the requirement 'established by law' in the case-law of the Strasbourg Court, as discussed in ***§2***)The existing case-law of the ECJ does not elaborate on this criterion. When examining the various judgments of the ECJ, it seems however that the ECJ implicitly requires a basis in a formal law. Interestingly enough, the ECJ also refers on occasion to rules governing the lawful composition of the tribunal.89 But it is unclear whether it does so within the framework of the requirements of ‘permanence’ and ‘judicial independence’.90

Consequently, there is very little inspiration to the benefit of the European Court of Human Rights when it interprets the phrase 'established by law' in Article 6 ECHR.

Permanence (cf. the establishment of special courts, as discussed in *** §3 ***)Again, this requirement is not elaborately discussed in the case-law of the ECJ. However, Advocate-General Saggio has clarified that a tribunal remains to be permanent despite the fact that its members have a limited term of office. It is generally accepted that a term of office of members of a judicial tribunal can be limited in time, as long as this duration is predetermined by law and not left to the discretionary power of the electing body.91 The

85 ECJ, Case 14/86, Pretore di Salò [1987] ECR 2545.

86 ECJ, Case C-24/92, Corbiau [1993] ECR I-1277.

87 See Advocate-General Fennelly in his Opinion delivered on 18 June 1998 in Case C-134/97, Victoria Films A/S - Riksskatteverket, §20.

88 Advocate-General Ruiz-Jarabo Colomer in his Opinion delivered on 28 June 2001 in Case C-17/00, De Coster - College van Burgemeester en Schepenen van Watermaal-Bosvoorde, §14: "The result is case-law which is too flexible and not sufficiently consistent, with the lack of legal certainty which that entails [...] The case-law is casuistic, very elastic and not very scientific". He proposes a new definition. As a general rule, references for preliminary rulings may be made only by judicial bodies (that is: all bodies forming part of the national judicial structure) in proceedings in which they must settle a dispute by exercising their power to give judgment. By way of exception, references from other bodies are admissible only where no further legal remedy is available and provided that safeguards of independence and adversarial proceedings are offered (§95).

89 ECJ, Case C-103/97, 4 February 1999, Köllensperger [1999] ECR I-551, §18.

90 ECJ, Case C-92/00, 18 June 2002, Hospital Ingenieure Krankenhaustechnik Planungs-Gesellschaft – Stadt Wien, §27 (n.y.r.).

91 Advocate-General Saggio in his Opinion delivered on 24 September 1998 in Case C-103/97, Köllensperger, §18.

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ECJ has not clarified its position on ‘special courts’ as such. It does not seem as if the Strasbourg Court could draw inspiration on this specific criterion.

Inter partes procedure (cf. the reference to other substantive requirements of Article 6 ECHR, as discussed in *** §1.2 ***)According to the criteria developed by the ECJ a body cannot be considered a tribunal if it does not take its decision following inter partes proceedings. The requirement that a decision should be taken following inter partes proceedings is closely related with the right to adversarial proceedings. This criterion is not mentioned explicitly in the case-law of the European Court of Human Rights within the framework of Article 6 ECHR. The Strasbourg Court only generally refers to other substantive requirements of Article 6 ECHR. The European Court of Human Rights emphasizes judicial independence and impartiality in this regard, but it could equally refer to other core characteristics of a judicial body, i.e. fairness of proceedings (including the right of adversarial proceedings).

In practice, it is unlikely that the case-law of the ECJ could serve as a source of inspiration for the Strasbourg Court. The importance of this criterion in the case-law of the ECJ was very soon reduced to a minimum; both with regard to the requirement that the proceedings should be inter partes as with regard to the right of adversarial proceedings.

With regard to the first element (inter partes procedure) the Court of Justice held in its judgments Politi92 and Birra Dreher93 that the fact that the proceedings in which the question arises are or are not defended is irrelevant. In the cases of Pretore di Cento94 and Pretura unificata de Torino95 there were not even any defending parties. By 1995 the ECJ had substantially altered the scope of the criterion when it stated that Article 177 (old) did not require that the proceedings before the national court “[…] during which the national court frames a question […] [be] inter partes”. However, a national body could only refer a question to the ECJ if “there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature”.96

Also with regard to the second element (right to adversarial proceedings) the Court has stated that the criterion is not absolute and that it suffices if the parties are heard 97. In the case of Gabalfrisa98 the Court of Justice considered that proceedings before the Spanish economic-administrative courts are inter partes since the parties concerned may lodge submissions and evidence in support of their claims and request a public hearing. In fact,

92 ECJ, Case 43/71, Politi [1971] ECR 1039.

93 ECJ, Case 162/73, Birra Dreher [1974] ECR 201.

94 ECJ, Case C-110/76, Pretore di Cento [1977] ECR 851.

95 ECJ, Case 228/87, Pretura unificata di Torino [1988] ECR 5099.

96 ECJ, Case C-111/94, Job Centre [1995] ECR I-3361.

97 ECJ, Case C-54/96, Dorsch Consult - Bundesbaugesellschaft Berlin [1997] ECR I-4961, §31.

98 Joined cases C-110/98 to C-147/98, Gabalfrisa a.o. [2000] ECR I-1577.

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Advocate-General Saggio rightly pointed out that only limited pleadings and evidence are admitted, and the decision as to whether a public hearing will be held is taken at the discretion of the body itself, with no subsequent appeal.

In conclusion: the fact that the ECJ refers to the right of adversarial proceedings could be interesting for the European Court of Human Rights, but the manner in which the ECJ has interpreted the scope of this criterion will not be useful for the Strasbourg Court.

Compulsory jurisdiction (cf. the discussion concerning arbitral tribunals in *** §1.3 ***)In *** §1.3 *** the Lithgow case before the European Court of Human Rights was discussed. This judgment clarified that the word 'tribunal' in Article 6 ECHR could comprise arbitration tribunals (compulsory arbitration). I argued that this ruling can also be held applicable with regard to voluntary arbitration. The ECJ however excludes voluntary arbitration from the scope of the word 'tribunal'. In the Nordsee case99 the Court of Justice held that it had no jurisdiction to give a ruling on questions referred by a German arbitration court to which the parties were under no obligation to refer their disputes. It stated that, if questions of Community law are raised in an arbitration resorted to by agreement, it is for the ordinary courts to refer a question for a preliminary ruling, if they consider it necessary, either in the context of their collaboration with the arbitration tribunals or in the course of reviewing the arbitration award.100 Like the European Court of Human Rights the ECJ does accept compulsory arbitration. In the Danfoss case101 the Court of Justice held that it accepts preliminary references as long as the jurisdiction of the arbitration tribunal does not depend on the agreement between the parties and the decision is binding on all parties to the proceedings.

Application of rules of law and the requirement that the final decision in the case should be judicial in nature (cf. the first couple of criteria discussed in *** §1.2 ***)One of the traditional criteria of the ECJ has been that the national body has to apply rules of law and not function on the basis of arbitrary and discretionary powers (cf. the - on this point more elaborate - Sramek decision by the European Commission of Human Rights discussed in *** §1.2 ***). However, this is hardly exclusive for judicial tribunals. Many administrative bodies will also act in accordance with rules of law. The ECJ has therefore concentrated more on the second element, i.e. the final decision in the case should be judicial in nature. In other words, the final decision should be binding (cf. the 'power of decision' as formulated in the Sramek decision).

In several cases the ECJ has denied national bodies the status of 'tribunal' because of a lack of 'power of decision'. In the Borker case102 the national body merely gave its opinion

99 ECJ, Case 102/81, Nordsee [1982] ECR 1095. See for a critical analysis of the Nordsee judgment: G. Bebr, “Arbitration tribunals and Article 177 of the EEC Treaty”, in: CMLRev. 1985, pp. 489-504.

100 See for example: ECJ, Case C-393/92, Almelo [1994] ECR I-1477.

101 ECJ, Case 109/88, Danfoss [1989] ECR 3199.

102 ECJ, Case 138/80, Borker [1980] ECR 1975.

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on a dispute; in the Greis Unterweger case103 the national body merely issued an opinion in administrative proceedings; and in the Victoria Film case104 the national body did not settle any dispute but merely, at the request of a taxpayer, gave a preliminary decision in relation to a tax matter. Likewise, a public prosecutor cannot be regarded as being a 'tribunal'. 105 The same has been ruled with regard to a court of auditors.106

However, the case-law of the ECJ does not always seem to be consistent. In the Garofalo case107 the ECJ held that a body may still be considered a judicial tribunal even though it only submitted an opinion in a procedure in which the decision was taken by a political authority. In fact, the opinion was usually followed. A departure from the proposed solution could only be made after deliberation within the Council of Ministers and had to be duly reasoned. The case can be compared with the Benthem and Van de Hurk judgments of the European Court of Human Rights. In my opinion, the latter judgments give evidence of a more consistent approach.108

Judicial independence and impartiality (cf. the reference to other substantive requirements of Article 6 ECHR, as discussed in *** §1.2 ***)For purposes of coherency the interpretation given by the ECJ to the concept of judicial independence and impartiality will be discussed here. It is interesting to note that both European courts describe judicial independence as one of the core characteristics of a judicial tribunal. If a national body is not independent, it cannot be considered being a tribunal. But how does the ECJ interpret judicial independence?

The first reference to judicial independence was made in the Pretore di Salò case109, but the first substantial interpretation of the notion was given in the Corbiau case110. The ECJ stated that the national body should act as a third party in relation to the authority which

103 ECJ, Case 318/85, Greis Unterweger [1986] ECR 955.

104 ECJ, Case 134/97 Victoria Film [1998] ECR I-7023.

105 The role of a prosecutor is not to rule on an issue, but to submit that issue for consideration by the competent judicial body (see Joined cases C-74/95 and C-129/95, Criminal proceedings against X [1996] ECR I-6609). The Court does make an exception for national bodies which combine the functions of an examining magistrate and a prosecutor (see Case 14/86, Pretore di Salò [1987] ECR 2545).

106 See Case C-192/98, ANAS [1999] ECR I-8583 and Case C-440/98, RAI [1999] ECR I-8597, in which the Court described the function of the Italian Court of Auditors as mainly being one of evaluation and verification of the results of administrative action.

107 Joined cases C-69/96 to C-79/96, Garofalo a.o. [1997] ECR I-5603.

108 The difference may be explained by the distinct aims of both provisions. Article 6 ECHR strives to guarantee judicial protection (in which case the power of a judicial tribunal to give a final decision is important). Article 234 EC aims to ensure a uniform interpretation of EC law.

109 ECJ, Case 14/86, Pretore di Salò [1987] ECR 2545.

110 ECJ, Case C-24/92, Corbiau [1993] ECR I-1277.

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adopts the decision forming the subject-matter of the proceedings.111 This 'third party' approach is the basic foundation of the interpretation given by the ECJ. As Advocate-General Ruiz-Jarabo Colomer has rightly pointed out, this third party approach is an essential, though not adequate, condition for independence:

"Independence is much more than that: it is equidistance from the parties to the case and from the subject-matter of the dispute; that is to say, a lack of any interest in the settlement of the dispute other than the strict application of the law, hence the need to establish the grounds for the judge to withdraw or be recused. However, it is also freedom in relation to superiors in the hierarchy and government bodies, other national authorities and social pressures. Irremovability is the basis and the reflection of judicial independence and means that judges cannot be dismissed, suspended, moved or retired except on grounds, and subject to safeguards, provided by law." 112

He then puts forward an alternative test for judicial independence:

“[the tribunal] is subject only to the law, by means of clear rules relating to appointment procedures, permanence of function, grounds for the withdrawal, objection to or dismissal of its members, which distance it from the interests at issue and make it immune from any kind of external suggestions, hints or pressures, whether obvious or veiled.” 113

Some of the above-mentioned criteria have been accepted by the ECJ in its case-law. However, this has been done in a fairly ad hoc fashion. The Court of Justice has stated that the concept of tribunal implies that the provisions governing the composition and activity of the body must strictly guarantee the independence of its members.114 The ECJ has also attached importance to the fact that national law lays down clear rules concerning the specific circumstances in which members of the body in question must withdraw or be recused115 or rules concerning dismissal116. Likewise it has held that the members of the national body may not be subjected to instructions in the performance of their duties.117

111 The consequence is that a public prosecutor cannot be regarded as 'independent' (see Joined cases C-74/95 and C-129/95, Criminal proceedings against X [1996] ECR I-6609).

112 Advocate-General Ruiz-Jarabo Colomer in his Opinion delivered on 28 June 2001 in Case C-17/00, De Coster - College van Burgemeester en Schepenen van Watermaal-Bosvoorde, §93.

113 Ibidem, §94.

114 ECJ, Case C-393/92, Almelo [1994] ECR I-1477, §21.

115 ECJ, Case C-103/97, Köllensperger and Atzwanger [1999] ECR I-551, even though the ECJ in casu acknowledged that the law governing the specific national body was rather vague in this respect. However, the independence of the body was guaranteed by the application of a general law on administrative procedure.

116 ECJ, Case C-54/96, Dorsch Consult [1997] ECR I-4961.

117 ECJ, Case C-407/98, Abrahamsson and Anderson [2000] ECR I-5539. Advocate-

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There are however also examples of a less dogmatic interpretation of the concept judicial independence in the case-law of the Court of Justice. In the Gabalfrisa case the ECJ was willing to accept the Spanish Economic-Administrative Courts as a tribunal. These bodies, however, do not form part of the judiciary but are organically linked to the Ministry of Economic Affairs and Finance (the administration responsible for the acts which these bodies have to judge). The ECJ attached crucial importance to the separation of functions between the various departments of the Ministry, even though the Advocate-General had argued that the guarantees concerning irremovability and the safeguards against undue intervention were doubtful.118

Finally, a few faits divers. The ECJ has declared that certain non-national tribunals fall within the scope of the notion ‘tribunal’. In the Parfums Christian Dior case, the ECJ held that the Benelux Court did not only have the right to make a reference for a preliminary ruling but was under an obligation to do so.119 In other cases it accepted questions from tribunals from the Isle of Man120

and Jersey121, even though they do not form part of the court system of the United Kingdom, and it accepted tribunals of overseas countries and territories which form part of the French judicial system122.

In conclusion, the criteria used by the Court of Justice of the European Communities to define the notion 'tribunal' are similar to those used by the European Court of Human Rights in the context of Article 6 ECHR. It is likely that the ECJ will be confronted with interpretation issues of the notion ‘tribunal’ more often in the future in light of the adoption of the EU Charter of Fundamental Rights. Article 47 of the Charter states that everyone is entitled to a fair hearing “by an independent and impartial tribunal previously established by law”.

Paragraph 5 Concluding remarks

General Saggio has argued that the mere fact that a civil servant acts as a member of the judicial body in question is not sufficient to question judicial independence. In arguing so, he attached importance to the existence of national regulation prohibiting the giving of instructions. See his Opinion delivered on 24 September 1998 in Case C-103/97, Köllensperger and Atzwanger, §24.

118 ECJ, Joined cases C-110/98 to C-147/98, Gabalfrisa a.o. [2000] ECR I-1577.

119 ECJ, Case 337/95, Parfums Christian Dior [1997] ECR I-6013.

120 ECJ, Case C-355/89, Barr and Montrose Holdings [1991] ECR I-3479.

121 ECJ, Case 171/96, Pereira Roque [1998] ECR I-4607.

122 ECJ, Joined cases C-100/89 and C-101/89, Kaefer and Procacci [1990] ECR I-4647 and Case 260/90, Leplat [1992] ECR I-643.

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The travaux préparatoires do not contain clear indications on how the phrase 'tribunal established by law' should be interpreted. Neither has this requirement received systematic attention in the Court's case law. The requirement is nevertheless of relevance in the field of administrative and disciplinary law and with regard to the establishment of 'special' courts (which is possible for Convention purposes). Lastly, the requirement is of special importance vis-à-vis arbitration tribunals (especially voluntary arbitration), juries and international tribunals.

The word 'tribunal' has been interpreted as an autonomous concept in the Strasbourg case-law. The qualification of a certain body under domestic law is only of limited significance. In the definition of 'tribunal' the Court has referred to several criteria: (a) a body with 'power of decision', (b) a body that operates on the basis of rules of law and after proceedings conducted in a prescribed manner, and (c) a body that fulfils certain substantive requirements, such as judicial independence (and possibly other 'core' elements of the right to a fair trial). The Court has in its judgments referred mostly to the conditions of 'independence'. The result is an odd interaction between the concepts of 'tribunal' and 'independence'. These criteria are also used by the Court when interpreting similar concepts in other provisions of the Convention, such as Article 5 and Article 10 ECHR. The criteria used by the Court of Justice of the European Communities to define the notion 'tribunal' (in the context of Article 234 EC; and in future perhaps Article 47 of the EU Charter) are very similar to those used by the European Court of Human Rights in the context of Article 6 ECHR.

The word 'law' in the clause 'established by law' requires a formal act of the legislative with regard to the establishment of a 'framework' of the judicial machinery. The elaboration of this framework does not have to be laid down in a formal act of the legislature. With regard to this more detailed elaboration of the framework a reference has been made to the Court's case law concerning the clause 'prescribed by law' (second paragraph of Articles 8 through 11 ECHR and paragraph 3 of Article 2 of the Fourth Protocol).

What exactly needs to be regulated by law is implied in the word 'established'. It envisages in any case the establishment of the court as well as the determination of its material and territorial jurisdiction. The Commission has taken the view that the composition of the tribunal in an individual case should also be in accordance with national law. A rather dubious exception has been made for the composition of juries. It has been argued that the Convention does not require the adoption of a German-style doctrine of the Gesetzliche Richter.

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