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

Abstract

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