JUDGE: INTERNATIONAL PRINCIPALS AND ACCOUNTABILITY

The judicial system in a country is central to the protection of human rights and freedoms. Courts play a major role in ensuring that victims or potential victims of human rights violations obtain effective remedies and protection, that perpetrators of human rights violations are brought to justice and that anyone suspected of a criminal offence receives a fair trial according to international standards. The judicial system is an essential check and balance on the other branches of government, ensuring that laws of the legislative and the acts of the executive comply with international human rights and the rule of law.

This crucial role has been highlighted by all inter-governmental human rights systems. The united Nations General Assembly has repeatedly stated that “the rule of law and the proper administration of justice […] play a central role in the promotion and protection of human rights” and that “the administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to democratization processes and sustainable development”.

The Inter-American Court of Human Rights has said that “[g]uaranteeing rights involves the existence of suitable legal means to define and protect them, with intervention by a competent, independent, and impartial judicial body, which must strictly adhere to the law, where the scope of the regulated authority of discretionary powers will be set in accordance with criteria of opportunity, legitimacy, and rationality”.Similarly, the Inter-American Commission on Human Rights has pointed out that “the independence of the judiciary is an essential requisite for the practical observance of human rights”. The Commission also considered that “[t]he right to a fair trial is one of the fundamental pillars of a democratic society. This right is a basic guarantee of respect for the other rights recognized in the Convention, because it limits abuse of power by the State”.

The International Covenant on Civil and Political Rights (ICCPR), signed and ratified by 160 States, stipulates in article 14(1) that “all persons shall be equal before the courts and tribunals” and that “in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The Human Rights Committee, the body in charge of monitoring State compliance with the Covenant, has unequivocally stated that the right to be tried by an independent and impartial tribunal “is an absolute right that may suffer no exception”.The Committee has also specified that even in time of war or during a state of emergency, “only a court of law may try and convict a person for a criminal offence”. It is thus a right that is applicable in all circumstances and to all courts, whether ordinary or special.

Similarly, article 18 (1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states that “[m]igrant workers and members of their families […] shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.

On a regional level, article 8 (1) of the American Convention on Human Rights pro- vides that “every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal, or any other nature”.

with different wording but in similar terms, article 7(1) of the African Charter on Human and Peoples’ Rights provides that “every individual shall have the right to have his cause heard”, a right that comprises “the right to be presumed innocent until proved guilty by a competent court or tribunal” and “the right to be tried within a reasonable time by an impartial court or tribunal”. This article must be read in conjunction with article 26 of the Charter, which establishes that the States parties “shall have the duty to guarantee the independence of the Courts”. The African Commission on Human and Peoples’ Rights has said that article 7 “should be considered non-derogable” since it provides “minimum protection to citizens”.

Article 6 (1) of the European Convention on Human Rights specifies that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

The right to receive a fair trial is also recognised in international humanitarian law. Article 75 (4) of the First Protocol to the Geneva Conventions stipulates that “No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure”.

A number of declaratory instruments contain provisions on the right to a fair trial before an independent and impartial tribunal. The Universal Declaration on Human Rights, adopted by the uN General Assembly in 1948, recognises that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. Guideline IX of the Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism stipulates that “[a] person accused of terrorist activities has the right to a […] hearing […] by an independent, impartial tribunal established by law”. Article 47 of the Charter of Fundamental Rights of the European Union states that “[e]veryone is entitled to a […] hearing […] by an independent and impartial tribunal previously established by law”. Article XXVI of the American Declaration of the Rights and Duties of Man lays down that “[…] Every person accused of an offence has the right […] to be tried by courts previously established in accordance with pre-existing laws”.

For a trial to be fair, the judge or judges sitting on the case must be independent. All international human rights instruments refer to a fair trial by “an independent and impartial tribunal”. The Human Rights Committee has repeatedly taken the view that the right to an independent and impartial tribunal is “an absolute right that may suffer no exception”.

Even though a person’s right to a fair trial may be respected in a particular case when a judge is independent, a State would be in breach of its international obligations if the judiciary were not an independent branch of power. Therefore, in this context, independence refers both to the individual judge as well as to the judiciary as a whole.

The UN Basic Principles on the Independence of the Judiciary lay out the requisite of independence in the first Principle: “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary”.

The Council of Europe’s Recommendation on the Independence of Judges states that the independence of judges must be guaranteed by inserting specific provisions in constitutions or other legislation and that “[t]he executive and legislative powers should ensure that judges are independent and that steps are not taken which could endanger the independence of judges”.

The independence of the judiciary is also specifically recognised in other regional contexts, namely Africa and Asia-Pacific. In the case of Africa, it is worth highlighting the resolution on the respect and strengthening of the independence of the judiciary, adopted in 1999 by the African Commission on Human and People’s Rights. In Asia- Pacific, the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region (the Beijing Principles) stipulate that the “Independence of the Judiciary requires that [it] decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source”.

The Universal Charter of the Judge, an instrument approved by judges from all regions of the world, establishes that “[t]he independence of the judge is indispensable to impartial justice under the law. It is indivisible. All institutions and authorities, whether national or international, must respect, protect and defend that independence.” 

The principle of an independent judiciary derives from the basic principles of the rule of law, in particular the principle of separation of powers. The Human Rights Committee has said that the principle of legality and the rule of law are inherent in the ICCPR. The Inter-American Court of Human Rights has also stressed that “there exists an inseparable bond between the principle of legality, democratic institutions and the rule of law”. According to this principle, the executive, the legislature and the judiciary constitute three separate and independent branches of government. different organs of the State have exclusive and specific responsibilities. By virtue of this separation, it is not permissible for any branch of power to interfere into the others’ sphere.

The Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the independence of judges and lawyers have concluded that “[t]he separation of power[s] and executive respect for such separation is a sine qua non(Means a thing that is absolutely necessary.) for an independent and impartial judiciary to function effectively”.

The Special Rapporteur on the independence of judges and lawyers has underscored that “the principle of the separation of powers […] is the bedrock upon which the requirements of judicial independence and impartiality are founded. understanding of, and respect for, the principle of the separation of powers is a sine qua non for a democratic State […].” 60 In a similar vein, he said that “the requirements of independent and impartial justice are universal and are rooted in both natural and positive law. At the international level, the sources of this law are to be found in conventional undertakings, customary obligations and general principles of law. […] [T]he underlying concepts of judicial independence and impartiality […] are ‘general principles of law recognized by civilized nations’ in the sense of Article 38 (1) (c) of the Statute of the International Court of Justice.” 

The Inter-American Court of Human Rights, in its judgment on the Constitutional Court (Peru) case, said that “one of the principal purposes of the separation of public powers is to guarantee the independence of judges”. The Court therefore considered that “under the rule of law, the independence of all judges must be guaranteed […]”.

The Human Rights Committee has also referred to the principle of separation of powers when it noted that “lack of clarity in the delimitation of the respective competences of the executive, legislative and judicial authorities may endanger the implementation of the rule of law and a consistent human rights policy”. The Committee has repeatedly recommended that States adopt legislation and measures to ensure that there is a clear distinction between the executive and judicial branches of government so that the former cannot interfere in matters for which the judiciary is responsible.

For its part, the European Court of Human Rights has reaffirmed that respect for the principle of the separation of powers is an essential principle of a functioning democracy which cannot be called into doubt.

under international law, the State is obliged to organise its apparatus in such a way that internationally protected rights and freedoms are guaranteed and their enjoyment is assured. In this connection, the Inter-American Court of Human Rights has said that “the protection of human rights must necessarily comprise the concept of the restriction of the exercise of state power”. The State apparatus must be organised in such a way that it is compatible with the State’s international obligations, whether they be explicit or implicit. On this matter, the Inter-American Court of Human Rights has stated that “[t]he obligation to respect and guarantee such rights, which Article 1(1) [of the American Convention on Human Rights] imposes on the States Parties, implies […] the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights”.

The principle of the separation of powers is an essential requirement of the proper administration of justice. In fact, having a judiciary that is independent of the other branches of government is a necessary condition for the fair administration of justice as well as intrinsic to the rule of law.

Independence and impartiality are closely linked, and in many instances tribunals have dealt with them jointly. However, each concept has its own distinct meaning. In general terms, “independence” refers to the autonomy of a given judge or tribunal to decide cases applying the law to the facts.

The notion of institutional independence is set out in the second sentence of Principle 1 of the UN Basic Principles, wherein the duty of all institutions to respect and observe that independence is guaranteed. This notion means that the judiciary has to be independent of the other branches of government, namely the executive and parliament, which, like all other State institutions, have a duty to respect and abide by the judgments and decisions of the judiciary. This constitutes a safeguard against disagreements over rulings by other institutions and their potential refusal to comply with them. Such independence as to decision-making is essential for upholding the rule of law and human rights.

The European Court of Human Rights. has stated that a court must be independent both of the executive branch of government as well as of the parties to the proceedings.

While it constitutes a vital safeguard, institutional independence is not sufficient for the right to a fair trial to be respected on every occasion. unless individual judges are free from unwarranted interferences when they decide a particular case, the individual right to receive a fair trial is violated.

Every State has the duty to put in place the necessary safeguards so that judges can decide cases in an independent manner. The independence of the judiciary must be upheld by refraining from interfering in its work and by complying with its rulings. The judiciary must be independent as an institution and individual judges must enjoy personal independence within the judiciary and in relation to other institutions.

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