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Judicial and Prosecution Systems

Judges have the ultimate responsibility for decisions regarding freedoms, rights and duties of natural and legal persons within their jurisdiction. The independence of each individual judge safeguards every person’s right to have their case decided solely on the basis of the law, the evidence and facts, without any improper influence. A well-functioning, efficient and independent judiciary is an essential requirement for a fair, consistent and neutral administration of justice. Consequently, judicial independence is an indispensable element of the right to due process, the rule of law and democracy.

The separation of powers is a fundamental guarantee of the independence of the judiciary. In the decision-making process, judges should have freedom to decide cases impartially, in accordance with their interpretation of the law and the facts. They should be able to act without any restriction or improper influence. Direct or indirect pressure, threats or interferences, should not come from any quarter or for any reason.

The principle of independence of the judiciary has been laid down in various human rights instruments, including the Universal Declaration of Human Rights (Article 10) and the International Covenant on Civil and Political Rights (Article 14). There are also a number of UN standards, in particular the Basic Principles on the Independence of the Judiciary endorsed by the United Nations General Assembly in 1985 and the Bangalore Principles of Judicial Conduct of 2002.

Within the European framework, the right to an independent and impartial tribunal is guaranteed by Article 6 of the European Convention on Human Rights (ECHR). Apart from the ECHR, there exist a number of more detailed texts, among them the Council of Europe Recommendation on Judges: Independence, Efficiency and Responsibilities adopted by the Committee of Ministers in 2010.

In the broader OSCE region, participating States have committed themselves to ensuring the independence of the judiciary in the Copenhagen Document (1990), the Moscow Document (1991) and the Istanbul Document (1999). These Commitments were recalled and specified in the Brussels Declaration on Criminal Justice Systems and in the Ministerial Council’s Brussels Decision on Organized Crime. At the Ministerial Council meeting in Helsinki in 2008, OSCE participating States were encouraged to enhance their efforts to strengthen this aspect of the rule of law. The OSCE/ODIHR’s Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia were elaborated against the background of the above-mentioned international standards.

The basic principles ensuring the independence of the judiciary should be set out in the constitution. Judges are subject only to the law and their decisions should not be revised outside the appeals procedure. All decisions regarding the appointment and the professional career of judges should be based on merit, by means of the application of objective criteria. The evaluation of judges should never be based on the content of their decisions and, in particular, acquittals should in no way be considered as a sign of failure.

One of the most important standards underpinning the autonomy of the judiciary is irremovability. That is, for ordinary judges to be appointed permanently until retirement. The irremovability of judges, including protection from involuntary transfers, as well as adequate remuneration in conformity with the dignity of the office are other factors that constitute the backbone of genuine independence.

Furthermore, it is important to strike the appropriate balance between judges’ accountability and their independence in adjudication. Disciplinary responsibility of judges shall not extend to the content of their verdicts or to judicial mistakes. Also, the body that initiates cases of judicial discipline should not be the one that adjudicates them. Judges facing these bodies should enjoy procedural safeguards and disciplinary hearings must be fully transparent.

It is axiomatic that a judge deciding a case should not act on any order or instruction of any third party, inside or outside the judiciary. A hierarchical organization of the judiciary which would amount to subordination of the judges to the court chairpersons or to higher instances in their judicial decision-making activities would be a clear infringement of this principle. In order for freedom from external influence to be ensured, the law should provide sanctions against outside actors seeking to influence judges in any manner. 


Summary provided by: Mikolaj Wrzecionkowski, Legal Consultant
Posted in January 2012.

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