Independence from whom? Judicial independence and third state interveners before the European Court of Human Rights

During the Interlaken reform process at the European Court of Human Rights (ECtHR) the court found itself on the receiving end of populist brexit-style attacks. In such an environment, maintaining judicial independence becomes particularly challenging. The question of judges’ independence from respondent states has already been the topic of scholarship (Voeten 2007; Stiansen 2022; Molbæk-Steensig and Quemy 2023), but cases against the appointing state is not the only place in which appointing states could pressure ’their’ judges towards a specific solution. The High Contracting Parties can submit third-party interventions in cases against other member states when have a legitimate interest in the outcome of the case (Art. 36(2)) such as in cases where they have similar legislation to that of the respondent state and thus a violation-judgment would in practice require them to change legislation or practice. This paper will utilise a new dataset of cases at the ECtHR where third-states have intervened and compare the wording and arguments of third-party states with the votes and any separate opinions of the judges appointed by these states to determine whether third-party interventions influence sitting judges beyond the judge from the respondent state. Care will be taken not to equate the taking into account of the perspective of third-party interveners which can legitimately address the court with the illegitimate issuance of pressure on appointed judges. This paper studies the European Court of Human Rights rather than the Court of Justice of the European Union (CJEU) because the setup of the CJEU does not allow for a similar study. Since all EU member states are also members of the ECHR however, I am confident that this study should be of interest to the standing group.