A/HRC/11/41
page 19
disciplinary body is paramount.81 In cases of dismissal by political bodies, it is even more
important that their decision be subject to judicial review. This requirement is also reflected in
international and regional standards.82
62. The Special Rapporteur considers that temporary or provisional judges, which exist in a
few Member States, must have the same guarantees as those with a life or fixed-term tenure,
given that they perform judicial tasks. He highlighted that the discretional dismissal of temporary
judges puts the independence of the judiciary at stake.83 Therefore, temporary judges can only be
dismissed by disciplinary procedures that respect fair trial guarantees and are conducted by an
independent body.
63. In order to enhance transparency, it is recommended that decisions related to disciplinary
measures be made public.84
64. As a second exception, one may refer to situations of transition from an authoritarian to a
democratic system, in which the objective of limitations to the principle of irremovability would
be to end impunity and to prevent the reoccurrence of serious human rights violations. The
Special Rapporteur has analysed these issues in more detail in previous reports.85 In the current
context, he wishes to reiterate that while judicial renewal may be approached in different ways,
in all cases compliance with the Basic Principles on the Independence of the Judiciary must be
ensured. Furthermore, the Special Rapporteur highlights that an individualized analysis
(“review”) together with the possibility to appeal the decision with a view to obtaining an
independent review in compliance with the Basic Principles on the Independence of the
Judiciary86 is the preferable approach for judicial renewal.87 Thus, in such cases, it would be
81
Basic Principles on the Independence of the Judiciary, principle 20; Beijing Statement
(footnote 8), principle 26; Principles and Guidelines in Africa (footnote 8), A (4) (q).
82
Basic Principles on the Independence of the Judiciary, principle 17; Recommendation
No. R (94) 12 (footnote 14), principles VI (3); Statute of the Ibero-American Judge, art. 20;
Beijing Statement (footnote 8), principle 26; Principles and Guidelines in Africa (footnote 8),
A (4) (q).
83
A/HRC/11/41/Add.1, Venezuela (footnote 78); see also Inter-American Court of Human
Rights, Apitz Barbera et al. v. Venezuela, paras. 42-46.
84
Beijing Statement (footnote 8), principle 28.
85
E/CN.4/2006/52, paras. 40-55; E/CN.4/2005/50, paras. 43-56.
86
Principle 20.
87
See E/CN.4/2006/52, para. 54.
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