A/HRC/38/38
guarantee a plural and balanced composition (see A/HRC/11/41, paras. 24–30 and 97).
Similar considerations have been included in previous reports on judicial accountability
(see A/HRC/26/32, paras. 88–93 and 125–126) and continuing education for judges (see
A/HRC/14/26, para. 53), as well as in a number of country mission reports (e.g.
A/HRC/35/31/Add.1, A/HRC/32/34/Add.1, A/HRC/23/43/Add.3 and A/HRC/23/43/
Add.1).
18.
However, the creation of a judicial council is not in itself sufficient to ensure judicial
independence and promote judicial accountability. In order to enable a council to play its
role of guarantor of judicial independence, it is important to ensure that it is granted
extensive powers in all aspects relating to judicial careers, and that its institutional structure
and composition contribute to the insulation of the judiciary and judicial career processes
from external political pressure.
19.
In a number of mission reports, the Special Rapporteur and his predecessors
identified serious flaws in the structure, composition and responsibilities of judicial
councils that undermined their ability to promote judicial independence (see, for example,
the reports on Poland (A/HRC/38/38/Add.1, paras. 63–70 and 85); Guinea Bissau
(A/HRC/32/34/Add.1, paras. 11, 35–36 and 110); Maldives (A/HRC/23/43/Add.3, paras.
44–47 and 99); and El Salvador (A/HRC/23/43/Add.1, paras. 49, 51–55, 61–63, 113 and
119)). In these and other cases, the creation of a judicial council has not led to substantial
improvements in the insulation of the judiciary from political control and interferences.
20.
In the present report, the Special Rapporteur assesses existing international and
regional standards relating to judicial councils or equivalent independent and autonomous
bodies established at the national level to promote and strengthen the independence of the
judiciary. The aim is not to identify an “ideal model” of judicial council or to provide a
comprehensive analysis of the effectiveness of these institutions in securing judicial
independence and accountability. Based on the contributions received, the report seeks to
define common principles for ensuring the independence of such bodies, where they exist,
and to identify good practices relating to their mission, composition and functions.
III. Legal standards
A.
International standards
21.
The Basic Principles on the Independence of the Judiciary list the measures that
States are required to adopt to guarantee the independence of the judiciary at the national
level. They require that the independence of the judiciary be guaranteed by the State and
enshrined in the Constitution or the law of the country, and reaffirm that it is the duty of all
governmental and other institutions to respect and observe the independence of the
judiciary (principle 1). They also include specific provisions concerning the status of
judges, including their independence and impartiality (principles 2 and 4), qualification and
appointment (principle 10), conditions of service and remuneration (principle 11), security
of tenure (principle 12), promotion (principle 13), assignment of cases (principle 14) and
disciplinary proceedings against judges (principles 17 to 20). However, the Basic Principles
do not include any specific provision concerning the establishment of judicial councils.
22.
At the global level, only the revised Universal Charter of the Judge provides for the
establishment of “a Council for the Judiciary, or another equivalent body … save in
countries where this independence is traditionally ensured by other means” and includes
specific provisions relating to the composition and competences of this body in the fields of
recruitment, training, appointment, promotion and discipline of judges.4
4
Universal Charter of the Judge, approved by the Central Council of the International Association of
Judges in Taipei, Taiwan Province of China on 17 November 1999 and updated in Santiago on 14
November 2017.
5
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