A/HRC/11/41
page 17
56. The Special Rapporteur also notes that probationary periods for judges are used by some
Member States. Specific safeguards need to be established in order to prevent that such short
initial appointments turn into a risk for the independence of the judiciary.69 In the Special
Rapporteur’s view, a short, non-extendable, probationary period may be employed, provided that
life appointment or fixed tenure is automatically granted afterwards, except for probationary
judges who were dismissed as a consequence of disciplinary measures or the decision of an
independent body following a specialized procedure that determined that a certain individual is
not capable of fulfilling the role of a judge.70 In any case, the Special Rapporteur is concerned
that the requirement of re-appointment following a probationary period runs counter to the
principle of the independence of judges.71
57. Independently of whether the mandate of the judge is for life or for a limited period of
time, it is crucial that tenure be guaranteed through the irremovability of the judge for the period
he/she has been appointed. The irremovability of judges is one of the main pillars guaranteeing
the independence of the judiciary. Only in exceptional circumstances may the principle of
irremovability be transgressed. One of these exceptions is the application of disciplinary
measures, including suspension and removal. As the Special Rapporteur noted in one of his
country mission reports, the law must give detailed guidance on the infractions by judges
triggering disciplinary measures, including the gravity of the infraction which determines the
kind of disciplinary measure to be applied in the case at hand.72 This requirement is also
reflected on Recommendation N. R (94) 12, principle VI (2).
58. In this connection, the Special Rapporteur recalls that disciplinary measures to be adopted
must be in proportionality to the gravity of the infraction committed by the judge. Therefore, he
calls for the adoption of a well-defined scheme of available disciplinary measures.73 In this
context, the Special Rapporteur underscores that judges must not be removed from office
because of errors in judicial decisions or because their decision has been overturned on appeal or
review by a higher judicial body. This has also been confirmed by the Human Rights Committee
on several occasions.74
69
CCPR/CO/75/MDA, para. 12.
70
A/HRC/11/41/Add.2, para. 99.
71
Ibid., para. 57.
72
Ibid., para. 99.
73
See for examples of different disciplinary measures, see Recommendation No. R (94) 12
(footnote 14), principle VI (1).
74
CCPR/CO/75/VNM, para. 10; CCPR/CO/71/UZB, para. 14.
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