A/HRC/11/41
page 16
B. Independence of judges: elements having
an impact on the status of judges
52. In this section, the Special Rapporteur analyses elements having an impact on the
individual independence of judges. The Human Rights Committee, in its general comment
No. 32, stated that the requirement of independence refers, in addition to the procedure and
qualifications for the appointment of judges, to the guarantees relating to their security of tenure
until a mandatory retirement age or the expiry of their term of office, where such exist, the
conditions governing promotion, transfer, suspension and cessation of their functions, and the
actual independence of the judiciary from political interference by the executive branch and
legislature.63
1. Tenure and irremovability
53. Principle 12 of the Basic Principles on the Independence of the Judiciary, principle I.3 of
the Recommendation N. R (94) 12 and principle A 4 (l) of the Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa require guaranteed tenures of judges until
mandatory retirement age or the expiry of their term of office, where such exist.
54. The Human Rights Committee has repeatedly expressed concern at the lack of security of
tenure.64 Particularly, it raised concern about short terms of office65 and requirements for regular
review of judges’ appointments by the executive.66 The Special Rapporteur concluded that a
short term for judges weakens the judiciary, affects their independence and their professional
development.67
55. When reforming judicial systems, specific attention should be given to the issue of judges’
tenure of office. In this connection, the Special Rapporteur recommended to some Member
States, which were in situations of transition from an authoritarian to a democratic system, that
reforms be directed at gradually extending tenures of judges so as to progressively introduce life
tenures.68
63
CCPR/C/GC/32 (footnote 1), para. 19.
64
CCPR/CO/73/AZE, para. 14; CCPR/CO/74/GEO, para. 12; CCPR/CO/75/VNM, para. 10.
65
CCPR/CO/71/UZB, para. 8; CCPR/CO/75/VNM, para. 10; CCPR/CO/72/PRK, para. 8;
CCPR/CO/71/SYR, para. 15.
66
CCPR/CO/83/UZB, para. 16; CCPR/C/79/Add.87, para. 16.
67
Press release on the Special Rapporteur’s visit to Guatemala (footnote 26), para. 8.
68
E/CN.4/2006/52/Add.3, para. 84; E/CN.4/2006/52/Add.4, para. 92.
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