A/HRC/38/38
38.
In most countries that responded to the questionnaire, the judicial council has its
own budget and dedicated personnel. In a few cases, human and financial resources
necessary to the judicial council to perform its functions are provided by the court
administration31 or the Ministry of Justice.32
C.
Establishment
39.
A number of human rights mechanisms and bodies — including the Special
Rapporteur on the independence of judges and lawyers and the Inter-American Commission
on Human Rights (see paras. 17 and 26 above) — have recommended the establishment of
an independent judicial council.
40.
The position of the European Commission for Democracy through Law (Venice
Commission) is more nuanced. In an opinion on judicial appointments, the Commission
noted that a variety of different systems for judicial appointment exists in Europe, and that
there is not a single model that would apply to all countries. In older democracies, the
executive power has sometimes a decisive influence on judicial appointments. These
systems have worked well in practice and have allowed for an independent judiciary
because the executive is restrained by legal culture and traditions. New democracies,
however, have not had a chance to develop these traditions. At least in these countries, the
Commission recommends that States that have not yet done so consider the establishment
of an independent judicial council to prevent political abuse in the appointment of the
judiciary.33
41.
In order to guarantee their independence from the executive and legislative powers
and ensure effective self-governance to the judiciary, some — but not all — regional
standards recommend that judicial councils “be positioned at the constitutional level in
those countries having a written Constitution, or in the equivalent basic law or
constitutional instrument in other countries”.34
42.
Establishing a judicial council through a constitutional provision emphasizes the
vital role that such a council plays as a guarantor of judicial independence, especially in
countries that are in the process of consolidating democratic institutions. A constitutional
provision would grant the newly-created institution “the legitimacy of constitutional
recognition and may help insulate it from interferences from the executive, legislative or
judiciary through legislation, decrees or rulings”. 35 The Constitution should include
provisions relating to the setting up of such body, its composition and the definition of its
functions, as well as its autonomy vis-à-vis the executive and legislative branches of power.
Considering that judicial councils do not belong to the hierarchy of the court system and
cannot as such decide on the merits of the cases, the Constitution should also regulate
relations with the courts, and especially with judges.36
43.
In the majority of States that responded to the questionnaire, the Constitution
contains specific provisions concerning the establishment of a judicial council.37 In some
cases, the composition, powers and autonomy of the council are regulated by ordinary
law.38
31
32
33
34
35
36
37
38
Norway.
Mauritania.
See Venice Commission, opinion No. 403/2006 on judicial appointments, 22 June 2007, paras. 44–
48.
See opinion No. 10 of the Consultative Council of European Judges, para. 11.
Autheman and Elena, Global Best Practices, p. 7.
See opinion No. 10 of the Consultative Council of European Judges, para. 13.
Argentina, Bahrain, El Salvador, Mauritania, Mongolia, Nepal, Poland, Slovenia and Turkey.
Belgium, Jordan, Montenegro, Norway, Paraguay and Sweden.
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