chapter 1. the role of judiciary and npms in the prevention of ill-treatment 1.1. the role of the judiciary in the prevention of ill-treatment Although the precise role of judges, and the particularities of legal systems may vary from Member State to Member State, the adoption and interpretation of EU law must be harmonious to be effective. In addition, while in some instances judges are tasked with implementing each of the Framework Decisions under discussion, in some EU Member States the Ministry of Justice is the responsible authority to apply it, while the judiciary act as an oversight mechanism. In such situations an individual can bring an application to the courts to review the decision of the Ministry. Specifically, while the practical application of the FD EAW and the FD ESO across the EU remains with a judge either at District or High Court level, the FD TOP is implemented largely on the executive level, with judicial oversight. Therefore, when we speak generally of judiciary in the framework of this project, all responsible implementation authorities within the national contexts are taken into consideration. When we speak of judges throughout the Study we refer to judges in the traditional sense, but qualify it if it is the Ministry that is tasked with executing a decision, or implementing a measure. Notwithstanding the varying criminal justice systems, principles relating to the task of judges including the administration of justice with independence and impartiality applies across the board and right of access to an impartial court or tribunal is an absolute one, and central to due process.240 As the UN noted, “judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens.”241 Where the decision of the Court will entail a custodial sanction, and in light of the far-reaching and significant remit of the Court in such cases, any deprivation of liberty can only be administered in accordance with law.242 Article 5 ECHR provides for the limitations on the right to liberty, and it notes that once detained a person from the outset should be brought before a judge within a reasonable amount of time.243 It follows that the deprivation of liberty and all that it entails, as one of the most powerful tools of the state against individuals, must adhere to due process requirements, and be subjected to the full rigors of judicial scrutiny. Equally, the differences in the systems as noted above, whether rooted in civil or common law, adversarial or inquisitorial in nature, share the absolute prohibition of torture and ill-treatment: “While legal systems vary in some respects in different parts of the world, the legal prohibition of torture is universal.”244 240 Article 47 CFREU, Article 6 ECHR, Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007) General Remarks Paragraph 1. available at http:// hrlibrary.umn.edu/gencomm/hrcom32.html. 241 Taken from the Basic Principles on the Independence of the Judiciary Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. 242 Article 9(1) ICCPR, Article 5(1)(b) ECHR. 243 Article 5(3)ECHR, See also Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 11, and also UNODC Handbook on Criminal Justice Responses to Terrorism available at https://www. unodc.org/documents/terrorism/Handbook_on_Criminal_Justice_Responses_to_Terrorism_en.pdf. 244 Foley, Conor, Combating Torture: A Manual for judges and prosecutors, available at https://www.essex.ac.uk/combatingtorturehandbook/manual/3_content.htm#2 at paragraph 3.6. 64