A/HRC/11/41
page 11
hearings were held at which backgrounds of the nominees could be openly scrutinized. This
experience was qualified by the United Nations as a major example of good practices.32
33. Where an organ of the executive or legislative branch is the one formally appointing
judges33 following their selection by an independent body, recommendations from such a body
should only be rejected in exceptional cases and on the basis of well established criteria that have
been made public in advance. For such cases, there should be a specific procedure by which the
executive body is required to substantiate in a written manner for which reasons it has not
followed the recommendation of the above-mentioned independent body for the appointment of
a proposed candidate. Furthermore, such written substantiation should be made accessible to the
public. Such a procedure would help enhance transparency and accountability of selection and
appointment.
34. When conducting country visits, the Special Rapporteur regularly examined the
representation of women and of ethnic minorities in the judiciary.34 In some countries, he
concluded that this representation is very low or non-existent.35 The Special Rapporteur
underlined the importance to adopt and implement temporary special measures to achieve greater
representation for both women and ethnic minorities until fair balance has been achieved.36
4. Guarantee of the “lawful” judge (prohibition of ex-post-facto tribunals)
35. The Basic Principles on the Independence of the Judiciary state that everyone shall have
the right to be tried by ordinary courts or tribunals using established legal procedures.
Furthermore, they stipulate that 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.37
36. Throughout his mandate, the Special Rapporteur has focused considerable attention on the
question of the military justice38 and the establishment of special courts, in particular for the trial
32
UN Chronicle, “Judicial independence as conflict prevention and resolution: The recent
case of Ecuador’s High Court”, available at: http://www.un.org/Pubs/chronicle/2006/
issue1/0106p21.htm.
33
See Recommendation No. R (94) 12 (footnote 14), principle I (2) (c), para. 2.
34
E/CN.4/2005/60/Add.2, paras. 27-28; E/CN.4/2006/52/Add.3, paras. 60-62;
E/CN.4/2006/52/Add.4, paras. 67-68; A/HRC/8/4/Add.2, para. 37.
35
A/HRC/4/25/Add.2, paras. 31 and 66.
36
A/HRC/4/25/Add.2, para. 80.
37
Principle 5.
38
A/61/384, paras. 19-46; E/CN.4/2005/60, paras. 38-41.
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