A/HRC/11/41
page 8
provisions that seriously endanger the independence of the judiciary pointing to the
accountability of a court to the legislature.11 In other instances, the Human Rights Committee
pronounced its concern at the practice of the judiciary seeking the opinion of a Standing
Committee of the legislature on the interpretation of laws, turning a Parliamentary Committee
into the instance responsible for setting criteria and instructions which are binding on the
judiciary.12
3. Selection and appointment
23. The Basic Principles on the Independence of the Judiciary prescribe that judges be selected
on the basis of integrity and ability and that any method of judicial selection should include
safeguards against judicial appointments for improper motives.13 This key principle is also
established by a number of regional standards.14 Furthermore, the Principles and Guidelines on
the Right to a Fair Trial and Legal Assistance in Africa highlight the importance of transparency
and accountability in the selection and appointment procedures.15
24. The Special Rapporteur takes note of the variety of existing systems for the selection and
appointment of judges worldwide. One can broadly distinguish political appointments (selection
by the legislative or executive branches of power), appointments by popular elections,
corporative appointments (by bodies composed of judges only), selection by judicial councils
with plural representation, or a variety of mixed systems where the nominating body is of one
type (e.g. judicial council) and the one in charge of appointments is of a different nature
(e.g. a political appointing body). He wishes to highlight below aspects of selection and
appointment procedures that crucially strengthen judicial independence.
25. The Special Rapporteur notes the existence of manifold constitutional provisions and
domestic legislation providing for the election of judges by the legislature. He would like to raise
the general concern that the involvement of the legislature in judicial appointments risks their
politicization.16 On many occasions and in light of situations studied by the Special Rapporteur,
it is difficult to ascertain the benefit this procedure brings, particularly to the selection of
lower-level judges. But even for higher-level courts for which the selection of nominees is
11
CCPR/CO/72/PRK, para. 8.
12
CCPR/CO/75/VNM, para. 9.
13
Principle 10.
14
Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe,
principle I (2) (c); Principles and Guidelines in Africa (footnote 8), A (4) (h); Bejing Statement
(footnote 8), principles 11, 12 and 15.
15
16
Principles and Guidelines in Africa (footnote 8), A (4) (h).
See allegation letter to the Government of Serbia of 5 November 2009, A/HRC/11/41/Add.1,
Serbia; Committee against Torture, CAT/C/SRB/CO/1, para. 9; also CCPR/C/79/Add.50,
para. 288.
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