Everyone shall have the right to be tried by ordinary courts or tribunals
using established legal procedures. Tribunals that do not use the duly
established procedures of the legal process shall not be created to
displace the jurisdiction belonging to the ordinary courts or judicial
tribunals.
The principle of the independence of the judiciary entitles and requires
the judiciary to ensure that judicial proceedings are conducted fairly
and that the rights of the parties are respected.
It is the duty of each Member State to provide adequate resources to
enable the judiciary to properly perform its functions.
80. Independence of judges and lawyers is now considered to be a principle of
customary international law and a general principle of international law. 647 It is
an absolute principle and ‘a prerequisite to the rule of law’. 648 The principle
presumes the following:
Freedom from direct or indirect influence from other branches of power,
including the executive and legislature.649 This also includes the need
for the independence from other actors.650
This independence must be ‘guaranteed by the state and enshrined in
the constitution or law of the country’.651
81. Particularly important in this context is the independence of the prosecutor.652
The UN Guidelines on the Role of Prosecutors provide that office of the
prosecutor should be ‘strictly separated from judicial functions’ and that
prosecutors should carry out their functions ‘impartially and avoid all political,
social, religious, racial, cultural, sexual or any other kind of discrimination’.653
The Inter-American Commission on Human Rights has held that prosecutors
‘must be an organ independent of the executive branch and must have the
attributes of irremovability and other constitutional guarantees afforded to
members of the judicial branch’.654
82. How the members of the judiciary are appointed is also relevant to their
independence.655 Appointment by the executive will not necessarily violate the
requirement of independence,656 provided appointees are free from influence
or pressure when carrying out their adjudicatory role. Independence does not
647
Report of the Special Rapporteur on the independence of judges and lawyers, 24 March 2009,
A/HRC/11/41, para 14.
648
Bangalore Principles of Judicial Conduct.
649
Human Rights Committee, CCPR/C/GC/32, para 19.
650
Human Rights Committee, General Comment No.32, para 25; UN Basic Principles on the
Independence of the Judiciary, UN GA Res.40/32, 40/146, 1985, para 4.
651
Basic Principles; see also Beijing Statement of Principles of the Independence of the Judiciary in the
LAWAISA Region, principle 4.
652
Special Rapporteur on the Independence of judges and lawyers, E/CN.4/2006/52/Add.4, para 86.
653
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, Cuba, 27 August to 7 September 1990, paras 10 and 13(a) respectively.
654
Inter-American Commission of Human Rights, Report on the Situation of Human Rights in Mexico,
OEA/Ser.L/V/II.100, Doc. 7 rev. 1, para. 372.
655
General Comment No.32, CCPR/C/GC/32 (2007), para 19.
656
Campbell v Fell v UK, [1984] ECHR 8, para 79.
114
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