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Legal Digest of International Fair Trial Rights
judges during their term of office as a corollary of the independence of judges.208 This does
not mean that judges must be appointed for life. Judicial appointments for fixed terms, with
or without possibilities of reappointment, have been treated as consistent with judicial independence.209 The European Court of Human Rights has refrained from setting up a minimum term of appointment that would satisfy the requirement of independence. Clearly,
however, the longer the term the more likely it is that the European Court would find a tribunal to have been established in compliance with Article 6(1) of ECHR. In Campbell and
Fell v the United Kingdom, the European Court found that the appointment of members
of a prison disciplinary body for terms of three years as “relatively short” but acceptable in
view of the unpaid character of the assignment.210 Considerations of security of tenure also
involve the conditions governing the promotion, adequate remuneration, pension, transfer,
suspension or termination of office, or other conditions of service of a judge, which must all
be adequately secured by law.211 The Human Rights Committee has explained that the dismissal of a judge by the executive prior to the expiry of a judge’s term of office may only be
contemplated “on serious grounds of misconduct or incompetence, in accordance with fair
procedures ensuring objectivity and impartiality set out in the constitution or the law”.212
The third feature of independence – adequate guarantees against outside pressures – will
normally be met by virtue of the existence of mechanisms and procedures aimed at minimizing the risk of undue influence. If, however, the treatment of individual judicial officers
is subject to executive control without measures in place to protect the judicial officers from
being influenced, this will amount to a violation of the requirements of independence.213 The
Human Rights Committee has explained, in this regard, that the functions and competencies of the judiciary and the executive must be clearly distinguishable.214 A situation where
the executive is able to control or direct the judiciary is incompatible with the notion of an
independent tribunal.215 For the distribution of cases among judges, for instance, proper
rules and procedures will render external interference more difficult. The assignment (or
re-assignment) of a case to a particular judge or court has been treated as falling within
a State’s margin of appreciation. When assigning a case, authorities are entitled to take into
account a wide range of factors, including available resources, the qualification of judges,
208 Campbell and Fell v the United Kingdom [1984] ECHR 8, para 80.
209 Le Compte, Van Leuven and De Meyere v Belgium [1981] ECHR 3, paras 26, 57.
210 Campbell and Fell v the United Kingdom [1984] ECHR 8, para 80.
211 UN Human Rights Committee, CCPR General Comment 32 (2007), para 19.
212 UN Human Rights Committee, CCPR General Comment 32 (2007), para 20. See, for example: Pastukhov
v Belarus, HRC Communication 814/1998, UN Doc CCPR/C/78/D/814/1998 (2003), para 7.3; Mundyo Busyo
et al. v Democratic Republic of Congo, HRC Communication 933/2000, UN Doc CCPR/C/78/D/933/2000
(2003), para 5.2; and Bandaranayake v Sri Lanka, HRC Communication 1376/2005, UN Doc CCPR/
C/93/D/1376/2005 (2008), para 7.3.
213 UN Human Rights Committee, Concluding Observations: Slovakia, UN Doc CCPR/C/79/Add.79 (1997),
para 18; and Kadubec v Slovakia [1998] ECHR 81, paras 56–57.
214 UN Human Rights Committee, CCPR General Comment 32 (2007), para 19.
215 Oló Bahamonde v Equatorial Guinea, HRC Communication 468/1991, UN Doc CCPR/C/49/D/468/1991
(1993), para 9.4.
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