A/HRC/41/48 functions that would be found inappropriate for judges, and should avoid public activities that would conflict with the principle of their impartiality. 53 71. This means that, in general terms, a judge or a prosecutor is expected to leave behind and put aside political affiliations or partisan interests when he or she takes the judicial oath or affirmation to perform judicial duties with independence and impartiality. While membership in a political party is not as such incompatible with their office, partisan political activity or out-of-court statements concerning issues of public controversy may undermine the impartiality of judges or prosecutors and lead to public confusion about the nature of the relationship between the judiciary and the executive or the legislative branches. Where a judge’s spouse is an active politician, the judge must remain sufficiently detached from the activities of his or her spouse to ensure that there is not a public perception that he or she is endorsing a political candidate.54 72. The involvement of judges and, to a lesser extent, prosecutors in certain political activities within the legislative or executive branches of power poses a particular problem. At the core of the concept of judicial independence is the theory of the separation of powers, that is, the idea that in a modern democratic State the judiciary should function independently of the legislature and the executive branches of power. For this reason, a judge’s duties are deemed to be “incompatible with certain political activities, such as membership of the national parliament or local council”. 55 Consequently, a judge or a prosecutor cannot accept full-time employment at a high, policymaking level in the executive or legislative branch while on active service. He or she would have to resign from the judiciary before taking up new functions in the executive or legislative branch of power. 73. In the majority of countries that responded to the questionnaire, judges cannot openly express their political views, be members of political parties, participate in political gatherings or undertake any political activity that may undermine their independence or affect the public trust in the judiciary. 56 In some cases, constitutional or legislative provisions expressly provide that judges cannot become members of legislative or executive bodies at the national or local level.57 Similar restrictions apply to prosecutors. 58 74. In other countries, however, judges have the right to engage in politics and stand as candidates in political elections. In Slovenia, for example, judges can be members of political parties and stand as candidates for certain political offices; in the event of being elected or appointed to such office, the rights and duties deriving from their judicial office are suspended. The Venice Commission, in its report on the freedom of expression of judges (paras. 29 and 47–48), offers additional examples of countries (i.e., Austria, Germany and Sweden) where judges can actively engage in politics and stand as candidates in political elections. 75. In some submissions respondents provided specific examples of disciplinary proceedings against judges for their views and opinions expressed on issues of a political nature.59 The Helsinki Foundation for Human Rights and the Open Dialogue Foundation referred to several cases where judges and prosecutors expressing critical views on the reform of the judiciary in Poland or on the situation of the judiciary in the Republic of Moldova had been subjected to disciplinary proceedings. 53 54 55 56 57 58 59 14 “Report on European standards as regards the independence of the judicial system: part II – the prosecution service”, March 2010, para. 62. UNODC, Commentary on the Bangalore Principles, para. 38 (c). Ibid., para. 135. Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Burundi, Colombia, Costa Rica, Croatia, El Salvador, Hungary, Ireland, Latvia, Lithuania, Montenegro, Poland, Republic of Korea, Romania, Serbia, Turkey and United Kingdom. Hungary, Ireland, Lithuania, Montenegro, Republic of Korea, Serbia, Slovenia, Turkey and United Kingdom (Northern Ireland only). Azerbaijan, Bosnia and Herzegovina, Bulgaria, Honduras, Hungary, Latvia and Serbia. Bulgaria, Costa Rica and Poland.