Can a judge be held personally responsible for a human rights violation? Does refusing to comply with a binding ECtHR judgment expose a judge to designation? And where, exactly, does judicial independence stop protecting a judge and start protecting the violation?
By Anagnostakis Law Team
Judicial independence is usually invoked as a shield. It protects the judge who convicts an unpopular defendant, who releases one the state wanted held, who applies a statute the government dislikes. That is precisely why it exists, and precisely why any suggestion that a judge might be personally sanctioned for a ruling tends to provoke an immediate, almost reflexive objection from the legal profession: you cannot punish a judge for judging.
The trouble is that the same three words — “for judging” — can describe two entirely different situations. One is a judge weighing evidence and applying law within a system that gives her genuine room to get it wrong, subject to appeal, review, and correction. The other is a judge who signs a detention order dictated in substance by someone else, inside a system with no real prospect of internal correction, in a case where the outcome was never actually in doubt. Both produce the same piece of paper. They are not the same act, and international law increasingly does not treat them the same way.
I. Whose act is it? State responsibility versus individual responsibility
Start with the orthodox position. Under the customary rules on state responsibility, reflected in the International Law Commission’s Articles on State Responsibility, the conduct of any organ of a state — including its judiciary — is attributable to the state, regardless of the organ’s function or its position in the state hierarchy. When a court unlawfully detains someone, it is, first and foremost, the state that has committed an internationally wrongful act. This is the framework the European Court of Human Rights itself applies: an Article 5 violation is found against the respondent government, never against the individual judge who signed the order.
That framework was never designed to answer a different question, which is now live in ways it was not fifteen years ago: can an individual official — not the state, but the named person who acted — face a personal, targeted consequence for the same conduct? The EU’s Global Human Rights Sanctions Regime (Council Regulation (EU) 2020/1998), the UK’s equivalent regime, and the US Global Magnitsky Act all answer yes, and all name arbitrary detention as a qualifying act. None of them require that the state itself first be found in breach by an international court; the sanctioning authority makes its own factual assessment, addressed to the individual, entirely independently of the state-responsibility question.
This is a genuinely new layer of accountability, not a substitute for the old one. A judge can, in principle, be both an organ whose act is attributed to the state for the purposes of an ECtHR judgment, and a designated individual under a sanctions regime for the same underlying conduct. The two tracks do not compete; they simply ask different questions of the same set of facts.
II. Judicial immunity does not mean what people assume it means
The reflexive objection usually rests on an unspoken assumption that judges are simply immune — that whatever a judge does from the bench cannot follow them personally. That assumption is only half right, and the half that is right is narrower than it sounds.
The UN Basic Principles on the Independence of the Judiciary (1985) are explicit on this point. Principle 16 provides that judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions committed in the exercise of their judicial functions — and even that immunity is stated to be without prejudice to any disciplinary procedure. It is not a blanket immunity from every consequence; it is a functional immunity from a specific kind of proceeding (a civil damages claim), tied to a specific condition (that the act was a genuine exercise of judicial function). The Council of Europe’s own standards, developed through the Venice Commission and the Consultative Council of European Judges, say the same thing more bluntly: judicial immunity “should be only functional, i.e. linked to their judicial duties.”
Two consequences follow, both of them important for the sanctions question.
First, immunity attaches to the function, not the office. A person who holds the title of judge but is, in the specific act under scrutiny, executing instructions rather than exercising independent legal judgment is not performing a judicial function in the sense the immunity doctrine protects. The doctrine was built to protect the deliberative, evaluative act of judging — not to launder any act performed by someone wearing robes.
Second, and more simply: an asset freeze and travel ban imposed by a foreign sovereign or the EU under a CFSP instrument is not a civil suit for damages. It is not a domestic legal proceeding at all. Judicial immunity, as formulated in every international instrument that defines it, was never framed as a shield against that. Whatever the objection to sanctioning a judge amounts to, it is not, properly speaking, an immunity objection. It is an independence objection — a different argument, and one that has to be examined on its own terms.
III. What judicial independence actually protects
Judicial independence protects the decision-making process from improper external pressure — from a government, a party, a media campaign, or a foreign state — so that the outcome tracks the law and the facts rather than someone’s preference. It is, in that sense, a procedural guarantee. It says nothing about whether the outcome, once reached independently, was correct, and it certainly was never designed to guarantee that an outcome reached without independence — because the process was captured from the start — should nonetheless be treated as if it had been.
This is the distinction the Brazilian case of 2025 put under an unusually bright light. In July 2025, the United States designated a sitting Justice of Brazil’s Supreme Federal Court under its Global Magnitsky authority, in what critics — including the New York City Bar Association — characterised as retaliation for judicial rulings in the prosecution of a former president, rather than a response to any genuine abuse of the judicial function. The Bar’s statement drew exactly the distinction this article is making, and drew it against the same sanctions tool: it noted that the Magnitsky Act had previously been used against a Russian judge and two Ugandan judges, in states where “the judiciary does not operate as a truly independent branch, but rather as an extension of the state apparatus itself” — and argued that the Brazilian case was different in kind, because it targeted a judge inside a functioning, independent judicial system for the ordinary exercise of that independence.
Whether or not one agrees with that assessment of the Brazilian facts, the structure of the argument is the right one, and it supplies a workable test. The question is never simply “did a judge detain someone arbitrarily, as a matter of outcome.” It is whether the judge’s role in that outcome was an exercise of independent judgment inside a system genuinely capable of correcting error — in which case sanctioning the judge personally is an attack on judicial independence, indistinguishable from punishing an unpopular verdict — or whether the judicial function was itself the instrument of a predetermined result, in a system with no realistic prospect of internal correction, in which case the “judge” in the transaction is functioning as an administrative extension of the detaining authority, and judicial independence was never actually engaged.
IV. Non-compliance with Strasbourg: a sharper case
The hardest cases sit between those poles, and the sharpest of them concerns non-compliance with a binding ECtHR judgment. Two cases illustrate the point precisely, because both triggered the Convention system’s own rarely-used enforcement mechanism, Article 46(4), which allows the Committee of Ministers to refer a state back to the Court where it refuses to comply with a final judgment.
In Ilgar Mammadov v. Azerbaijan, the Court had found the applicant’s pre-trial detention politically motivated and ordered his release; Azerbaijan not only failed to release him but kept him detained and later convicted, prompting the first-ever Article 46(4) infringement proceedings and a Grand Chamber finding that Azerbaijan had failed in its obligation under Article 46(1). Kavala v. Türkiye followed the same path: the Court found the applicant’s detention pursued an ulterior purpose of silencing him, ordered his immediate release, domestic courts declined to release him, and the Committee of Ministers referred the case back to the Court a second time.
In both cases, the state’s non-compliance was not an abstract legislative failure of the kind Article 46 usually addresses — a law left unamended, a compensation scheme left unbuilt. It was implemented, case by case, by named judges who had every reason to know, from a binding, published, Grand Chamber-level finding, that the detention they were being asked to extend had already been characterised by an international court as arbitrary and politically motivated — and who extended it anyway. That is a materially different posture from a first-instance judge making a good-faith, appealable assessment of pre-trial necessity. It looks much closer to what Part III above described as the judicial function operating as an instrument of a predetermined result: the independent evaluative act that immunity and independence exist to protect has, on the facts the Court itself found, already been supplanted.
Neither case has, to date, produced an individual EU or US sanctions designation against the domestic judges involved, and this article is not asserting one is warranted on the published facts alone — that would require the individualised evidentiary file the Council of Justice’s own case law demands, tying the specific judge to the specific decision to continue detention post-judgment. But the doctrinal path is now visibly open. A judge who personally extends a detention that a binding international judgment has already found arbitrary is not obviously entitled to characterise that act as the kind of independent judicial function the immunity and independence doctrines were built to shield. If anything, that is close to the paradigm case the drafters of the EU regime had in mind when they listed arbitrary detention as a standalone, first-tier ground for individual designation.
V. A working distinction, not a bright line
None of this yields a mechanical test, and legal writing that promises one in this area should be read with suspicion. But the material surveyed above does yield a coherent set of questions, and they are the ones a Council legal service, a defence team resisting a designation, or an NGO building a sanctions dossier should all be asking of the same facts:
- Was there a real, adversarial, appealable process, or was the outcome effectively fixed before the hearing began?
- Does the broader judicial system retain a genuine capacity for internal correction — appellate review, disciplinary oversight, constitutional challenge — or is the judiciary, as an institution, functioning as an “extension of the state apparatus,” to borrow the NYC Bar’s phrase?
- Did the judge act with knowledge of a binding international finding that the detention, or its legal basis, was already unlawful, and proceed regardless?
- Is the underlying legal basis pretextual — a charge, offence, or procedural device deployed because of who the detainee is, rather than what they did?
Where the answers point toward captured process, known non-compliance, and pretext, the case for individual responsibility — and for designation as a targeted, non-punitive, preventive measure rather than a criminal sanction — is strong, and judicial independence is not actually in tension with it, because independence was never genuinely exercised. Where the answers point the other way — a real process, a corrigible system, a good-faith if contested legal judgment — sanctioning the judge is not accountability. It is the thing judicial independence was built to prevent, wearing the sanctions regime’s clothing.
That is an uncomfortable distinction to draw in the individual case, and it will not always be drawn correctly — the same asymmetry that lets a listing reach a captured judge in a captured system lets it reach an inconvenient judge in a functioning one, if the sponsoring state’s motive is political rather than protective. But the distinction itself is not new to law; it is the ordinary line between accountability and interference that every domestic system of judicial discipline already has to draw. What is new is that, for arbitrary detention specifically, that line can now be drawn by an external actor, with real and immediate consequences, and largely outside the reach of any court the affected judge would recognise as their own.
This article is offered as a general overview and does not constitute legal advice on any specific designation, case, or judicial officer. It does not take a position on the facts of any named case referenced above beyond what is publicly reported.
