A/HRC/30/42
strengthening judicial independence; and (c) strengthening judicial competencies in
areas specifically important for preventive purposes.
54.
If judiciaries virtually everywhere can at times be subjects of mistrust, in
contexts of past mass violations, some are so tainted with complicity that it is
virtually impossible for them to gain trust without a major vetting or screening of
their personnel, from the top down. Particularly in places in which higher court
judges have responsibilities for the administration of courts, including case
allotment, judicial career and disciplinary procedures, as well as a voice in decisions
about judicial reforms, a judiciary entirely appointed by a predecessor regime, seen
as complicit in past mass violation, will stand in need of major personnel review.
55.
The vetting of judges poses particular challenges because procedures need to
respect the separation of powers, judicial autonomy, due process guarantees and, if it
exists, the general principle of the irremovability of judges, which may only be
transgressed in exceptional cases. 33 Furthermore, even a judiciary dependent on the
executive power is, in most cases, far from being a powerless branch. Some
countries under quite difficult circumstances have managed to vet the judiciary,
showing respect for the relevant principles, including due process. The latest country
to embark in such a project has been Kenya. 34
56.
Continuing judicial training should include information about the role of the
judiciary in past violations; the capacity to self-criticize needs to be exemplified by
the judiciary above all branches of government.
57.
Changes in personnel are insufficient to turn ineffective or complicit
judiciaries into trustworthy arbiters and reliable guarantors of rights. Prospectively,
structural changes are necessary, including means to strengthen judicial
independence, as many truth commissions have reco mmended. 35 Without such
reforms, the likelihood that courts will (at least) dare to check executive powers will
not increase significantly, and will be entirely dependent on the virtue of particular
individuals.
58.
There is no single reform that can guarantee that judges will act
independently. However, opportunities for individuals to exercise judg ement
independently are increased if they are offered certain protections , including
recruitment on the basis of merit and objective criteria; security of tenure; adequate
terms of service, for example, remuneration and predictable conditions of retirement;
and transparent, reliable disciplinary processes, for example, fair procedures,
proportionate sanctions, promotions, dismissals and transfers, so that the fears of
losing their jobs, not being promoted or being arbitrarily transferred to an
undesirable location do not influence their opinions.
59.
Guaranteeing the physical safety of judges is a decisive condition of the
exercise of independent judgement.
33
34
35
14
See Updated Set of principles for the protection and promotion of human rights through action to
combat impunity, principle 30.
For an overview of the vetting structures and procedures, see International Commission of Jurists,
Kenya Section, available from www.icj-kenya.org/index.php/resources/publications/papers-dl.
For El Salvador, S/25500 (1993), pp. 172ff; Guatemala see
www.derechoshumanos.net/lesahumanidad/informes/guatemala/informeCEH.htm, vol. 3, ch.16; for
Chile, see www.usip.org/sites/default/files/resources/collections/truth_commissions/Chile90Report/Chile90-Report.pdf; and for Sierra Leone, see www.sierraleonetrc.org/index.php/view-thefinal-report/table-of-contents, vol. 2, chap. 3, paras. 39, 104-106 and 132-163.
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