A/HRC/35/31
30.
It has been established that the desire to restrict or even suspend judicial review (or
its equivalent) of the constitutionality or legality of executive decisions and administrative
acts and laws would be tantamount to impairing the independence of justice (see
E/CN.4/2004/60, para. 29).
31.
In a 2016 report, the Special Rapporteur underscored that legislative activity lacks
effectiveness if there is no commitment to respect and enforce it. Moreover, whenever
Governments, political and economic actors, judges, lawyers and prosecutors do not behave
according to the specific roles they have to play in a democratic society, the prerequisites of
independence become difficult to fulfil (see A/HRC/32/34, para. 39).
Institutional safeguards
32.
In a comprehensive report submitted in 2009 (A/HRC/11/41), the Special
Rapporteur highlighted the features having an impact on the independence of the judiciary
as an institution: the separation of the judicial function from other branches of power as
prerequisite; the guarantee of independence at the constitutional level; the selection and
appointment process; the prohibition of ex post facto tribunals; judicial budget; freedom of
association and expression; the assignment of court cases; independence within the
judiciary and investigations into allegations of improper interference.
33.
The Special Rapporteur established early on that the independence and impartiality
of the judiciary can be effectively secured if there is in the State a well-entrenched
independent mechanism responsible for the appointment, promotion, transfer and dismissal
of judges (see E/CN.4/1995/39, para. 65).
34.
The Special Rapporteur has also underlined that it is important for the judiciary to
have a sufficient operating budget and financial autonomy vis-à-vis the executive and
legislative powers, and that budgetary independence had to be accompanied by an effective
external audit (see E/CN.4/1996/37, para. 32).
Individual conditions
35.
In a 2009 report, the Special Rapporteur also identified important parameters to
effectively guarantee the individual independence of judges: tenure and irremovability;
immunity; promotion and conditions of service, including judicial salary; human and
material resources and security and training. The Special Rapporteur had also noted earlier
that, in addition to the traditional safeguards necessary to secure judicial independence, the
character, qualifications and independence of the individual appointee make an important
difference (see E/CN.4/1996/37, para. 92).
36.
In several thematic reports, concerns were expressed regarding the problem of
judges appointed on a provisional basis without security of tenure. As was noted, such
appointments could become a serious threat to the independence of the judiciary, as
provisional or temporary judges are vulnerable to executive interference and even tensions
within the judiciary (see E/CN.4/1998/39, para. 183).
Justice and the judiciary in a period of transition
37.
From the beginning of the mandate, the Special Rapporteur has paid special
attention to countries undergoing transition to democracy, since their needs were generally
considerable and positive steps early in their transition would contribute significantly to
achievement of the rule of law, respect for human rights and peace and prosperity (see
E/CN.4/1995/39, para. 12). Special mention was made, in particular, of the understanding
and respect for the principle of separation of powers as a sine qua non ingredient for
democratic States and which is, therefore, of cardinal importance for countries in transition
to democracy (ibid., para. 55).
38.
In previous reports the Special Rapporteur has expressed concern about the
problems faced by countries in transition in providing an independent and impartial justice
system, in particular the lack of financial resources, the lack of human resources and of
infrastructure (E/CN.4/1998/39, para. 184).
7
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