A/HRC/26/32
C.
Forms of judicial accountability
47.
The notion of accountability is intrinsic to the rule of law and is often used in
international and regional instruments to encompass the concepts of responsiveness,
responsibility, liability, controllability and transparency in the justice system. Owing to its
comprehensiveness, the term “accountability” is used generically in the title of any
mechanism that aims to make institutions responsive to their respective public. In its
practical sense, accountability is, in essence, a mechanism to secure the control of public
power.
48.
Based on that understanding, the implementation of judicial accountability
mechanisms implies that certain parties can and should exercise power of supervision and
control over others. Thus, in order to prevent abuses of power and improper influence by
the supervising parties, a clear set of standards must be established so that justice operators
and institutions are not held to account in an arbitrary way. Accountability presupposes the
recognition of the legitimacy of established standards, clear mechanisms and procedures
established by law, and clear rules on the authority of the supervising parties.
49.
In order for judicial accountability mechanisms to be put into practice, the
relationship between the justice operator to be held accountable and the forum, body or
institution to which he or she must respond also needs to be clearly defined. The justice
operator to be held accountable must have the means to properly explain and justify any
conduct or action deemed inadequate, inappropriate or illegal through due process. The
forum, body or institution exercising judicial accountability must be entitled to pose
questions and assess whether the justice operator should face sanctions or not. There is
therefore a close connection between accountability, which involves the possibility of
imposing sanctions, and the concept of answerability, which entails non-committal
provision of information.
50.
In that regard, it is paramount that States undertake efforts to enact specific
legislation establishing a comprehensive system of judicial accountability that is effective,
objective and transparent with a view to strengthening the rule of law and improving the
administration of justice.
51.
While the Special Rapporteur supports the view that judicial independence and
accountability are two complementary dimensions of an effective justice system, she also
observes that tensions exist between the two principles. The tensions result mainly from the
lack of an established, but widely needed, concept of judicial accountability. Indeed, in
general, priority has been given to developing and strengthening the independence of the
judiciary to the detriment of the establishment and proper functioning of accountability
mechanisms, as it was thought that reinforcing independence would have more direct
influence on ensuring the protection of human rights and the rule of law.2
52.
Against that background, it is important to balance the concepts of judicial
immunity, one of the guarantees of judicial independence, and accountability. Judicial
immunity aims at protecting justice operators from the harassment of personal litigation
against them in respect of their judicial functions, allowing them to be sued or prosecuted
only with the authorization of an appropriate judicial authority. While it is important that
justice operators be granted some degree of criminal immunity in relation to the exercise of
their professional functions in order to protect them from unwarranted prosecution,
immunity should never be applied to cases of serious crime, including accusations of
corruption. Judicial immunity needs to be limited and serve its purpose of protecting the
2
Transparency International, Global Corruption Report 2007: Corruption and Judicial Systems, p. 41.
9
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents