A/HRC/11/41
page 12
of terrorism related cases.39 In this respect, the Special Rapporteur refers to the joint report on
the situation of detainees at Guantánamo Bay, in which violations to the principle of the lawful
judge and the right to fair trial were found.40 The Special Rapporteur further points to the Draft
Principles on the Administration of Justice by Military Tribunals which set out the principle that
military courts should have no jurisdiction to try civilians.
5. Judicial budget
37. The Basic Principles and some regional standards state that it is the duty of each Member
State to provide adequate resources to enable the judiciary to properly perform its functions.41
Furthermore, the Beijing Statement stipulates explicitly that executive powers affecting judges in
their resources must not be used so as to threaten or bring pressure upon a particular judge or
judges.42 The Special Rapporteur, following several country visits, recommended that the
respective Member States revisit the budget allocated to the judiciary with a view to
progressively increasing it. He advocated that a fixed percentage of the GDP be established.43 In
one of his reports, he indicated a base line of 2 to 6 per cent of the national budget to be allocated
to the judiciary.44 In this connection, the Special Rapporteur points to Principle 42 of the Beijing
Statement, which stipulates that, under important domestic economic constraints, the needs of
the judiciary and the court system be accorded a high level of priority in the allocation of
resources. The Special Rapporteur would like to point to good practices by some Member States
that dispose either of a constitutional provision guaranteeing a fixed minimum percentage of the
annual national budget to be allocated to the judiciary or who have otherwise achieved a decision
in this regard.45
38. With regard to ensuring the independence of the judiciary, two different issues deserve
analysis in relation to the judicial budget. First, the question is how to ensure that the allocation
of funds to the courts be taken with the strictest respect for judicial independence. A second
question arises with respect to the administration of funds allocated to the judiciary.
39
E/CN.4/2006/120; A/61/384, paras. 48-57; E/CN.4/2005/60, paras. 20-24.
40
E/CN.4/2006/120, paras. 30-40.
41
See also Principles and Guidelines in Africa (footnote 8), A (4) (v); Beijing Statement
(footnote 8), principle 41; Statute of the Ibero American Judge, art. 6.
42
Principle 38; see also Latimer House Guidelines for the Commonwealth on Parliamentary
Supremacy and Judicial Independence, Guideline 2.
43
A/HRC/4/25/Add.2, para. 77.
44
A/HRC/8/4/Add.2, para. 76.
45
For example, Costa Rica and El Salvador were able to achieve a 6 per cent fixed amount.
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