A/HRC/11/41
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usually justified on grounds of the court’s need to give particular consideration to matters of
general interest or welfare, in most cases political appointments are not appropriate means to
reach those objectives. In particular, in times of transition from an authoritarian to a democratic
system, it is crucial that the population gain confidence in a court system administering justice in
an independent and impartial manner, free from political considerations.
26. Likewise, in many other countries, the executive branch of power has a decisive say in the
selection and appointment of judges. The Committee against Torture17 and the Human Rights
Committee18 expressed several times their concern in this regard, as did also the Special
Rapporteur in several country mission reports,19 given the risk this structure implies for the
protection of the rights of individuals before the State.
27. Several regional standards, along with the Human Rights Committee in several concluding
observations, recommend the establishment of an independent authority in charge with the
selection of judges.20 That was also recommended by the Special Rapporteur in several country
visit reports.21
28. The composition of this body matters greatly to judicial independence as it is required to
act in an objective, fair and independent manner when selecting judges. While a genuinely plural
composition of this body is recommended with legislators, lawyers, academicians and other
interested parties being represented in a balanced way, in many cases it is important that judges
constitute the majority of the body so as to avoid any political or other external interference. In
the Special Rapporteur’s view, if the body is composed primarily of political representatives
there is always a risk that these “independent bodies” might become merely formal or legal
rubber-stamping organs behind which the Government exerts its influence indirectly.
29. In order to ensure that such a body is apt to select judges in an objective, fair and
independent manner, the judiciary and other parties directly linked with the justice system must
have a substantial say with respect to selecting and appointing the members of such a body.22
According to some regional standards, members of the independent body should be selected by
the judiciary.23
17
CAT/C/TJK/CO/1, para. 10; CAT/C/UZB/CO/3, para. 19; A/56/44 (Supp.), para. 45;
A/55/44, para. 74.
18
CAT/C/UZB/CO/3, para. 19; CCPR/C/79/Add.62, para. 16.
19
A/HRC/4/25/Add.2, para. 23; E/CN.4/2006/52/Add.3, para. 43.
20
See footnote 14 and CCPR/C/79/Add.79 (1997), para. 18; art. 9 of the Universal Charter of
the Judge.
21
A/HRC/8/4/Add.2, paras. 16-18, 69, 74-75; A/HRC/4/25/Add.2, para. 78;
E/CN.4/2006/52/Add.3, para. 84; E/CN.4/2006/52/Add.4, paras. 14, 50, 92.
22
23
A/HRC/11/41/Add.1, Serbia.
Recommendation No. R (94) 12 (footnote 14), principle I (2) (c); see also
CCPR/C/MDG/CO/3, para. 26.
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