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   This module is a resource for lecturers   

 

Additional teaching tools

 

This section includes links to relevant teaching aides such as PowerPoint slides, video material, case studies, and other resources that could help the lecturer teach the issues covered by the Module. The slides and other resources can be adapted by lecturers.

PowerPoint presentation

  • Presentation on Module 12:Independence of the Judiciary and the Role of Prosecutors (forthcoming)
 

Video material


Selected global and regional standards

 

1. Judicial Independence

 

Qualifications, selection and promotion

United Nations Basic Principles on the Independence of the Judiciary (GA Resolution 40/32 and 40/146, para. 10)

Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

United Nations Basic Principles on the Independence of the Judiciary (GA Resolution 40/32 and 40/146, para. 13)

Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

United Nations Human Rights Council (2013), p. 2

(...) Encourages States to promote diversity in the composition of the members of the judiciary, including by taking into account a gender perspective, and to ensure that the requirements for joining the judiciary and the selection process thereof are non-discriminatory, and provide for a public, transparent selection process, based on objective criteria, and guarantee the appointment of individuals of integrity and ability with appropriate training and qualifications in law.

Regional standards:

 

Security of tenure

United Nations Basic Principles on the Independence of the Judiciary (GA Resolution 40/32 and 40/146, para. 11 and 12)

The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

United Nations Human Rights Council (2013), p. 3

(...) Stresses that the term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement should be adequately secured by law, and that the security of tenure of judges is an essential guarantee of the independence of the judiciary and that grounds for removal must be explicit with well-defined circumstances provided by law, involving reasons of incapacity or behaviour that renders them unfit to discharge their functions, and that procedures upon which the discipline, suspension or removal of a judge are based should comply with due process.

Regional standards:

 

Standards of judicial conduct

United Nations Basic Principles on the Independence of the Judiciary (GA Resolution 40/32 and 40/146, para. 19)

All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

Bangalore Principles of Judicial Conduct (2002, preamble)

Judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge.

United Nations Convention Against Corruption (GA Resolution 58/4, Article 11.1)

Bearing in mind the independence of the judiciary and its crucial role in combating corruption, each State Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary. Such measures may include rules with respect to the conduct of members of the judiciary.

Regional standards:

 

Freedom of expression

United Nations Basic Principles on the Independence of the Judiciary (GA Resolution 40/32 and 40/146, para. 8)

In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

Regional standards:


Transparent administration of courts

United Nations Basic Principles on the Independence of the Judiciary (GA Resolution 40/32 and 40/146, para. 14)

The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.

Bangalore Principles of Judicial Conduct (2002, para. 6.2)

A judge shall devote the judge's professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court's operations.

Regional standards:

 

Adequate resources

United Nations Basic Principles on the Independence of the Judiciary (GA Resolution 40/32 and 40/146, para. 7)

It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

United Nations Economic and Social Council (1989). Procedures for the effective implementation of the Basic Principles on the Independence of the Judiciary , ECOSOC Resolution 1989/60. New York: UN, Procedure 5

(...) States shall pay particular attention to the need for adequate resources for the functioning of the judicial system, including appointing a sufficient number of judges in relation to caseloads, providing the courts with necessary support staff and equipment, and offering judges appropriate personal security, remuneration and emoluments.

Regional standards:

 

2. The Role of Public Prosecutors

 

Discretionary functions

United Nations Guidelines on the Role of Prosecutors (GA Resolution 45/166, para. 17)

In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution.

Standards of professional responsibility and Statement of the essential duties and rights of prosecutors (International Association of Prosecutors, 1999, p. 2)

The use of prosecutorial discretion, when permitted in a particular jurisdiction, should be exercised independently and be free from political interference. If non-prosecutorial authorities have the right to give general or specific instructions to prosecutors, such instructions should be: transparent; consistent with lawful authority; subject to established guidelines to safeguard the actuality and the perception of prosecutorial independence.

Regional standards:

 

Qualifications, selection and promotion

United Nations Guidelines on the Role of Prosecutors (GA Resolution 45/166, para. 1)

Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications.

United Nations Guidelines on the Role of Prosecutors (GA Resolution 45/166, para. 2)

States shall ensure that: a) Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice, excluding any discrimination against a person on the grounds of race, colour, sex, language, religion, political or other opinion, national, social or ethnic origin, property, birth, economic or other status, except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned; b) Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law.

United Nations Guidelines on the Role of Prosecutors (GA Resolution 45/166, para. 7)

Promotion of prosecutors, wherever such a system exists, shall be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures.

Standards of professional responsibility and Statement of the essential duties and rights of prosecutors (International Association of Prosecutors, 1999, 6c and d)

To ensure that prosecutors are able to carry out their professional responsibilities independently and in accordance with these standards, prosecutors should be protected against arbitrary action by governments. In general, they should be entitled: (...) e) to recruitment and promotion based on objective factors, and in particular professional qualifications, ability, integrity, performance and experience, and decided upon in accordance with fair and impartial procedures.

Regional standards:

 

Security of tenure

United Nations Guidelines on the Role of Prosecutors (GA Resolution 45/166, para. 6)

Reasonable conditions of service of prosecutors, adequate remuneration and, where applicable, tenure, pension and age of retirement shall be set out by law or published rules or regulations.

Standards of professional responsibility and Statement of the essential duties and rights of prosecutors (International Association of Prosecutors, 1999, 6c and d)

To ensure that prosecutors are able to carry out their professional responsibilities independently and in accordance with these standards, prosecutors should be protected against arbitrary action by governments. In general they should be entitled: (...) c) to reasonable conditions of service and adequate remuneration, commensurate with the crucial role performed by them and not to have their salaries or other benefits arbitrarily diminished; d) to reasonable and regulated tenure, pension and age of retirement subject to conditions of employment or election in particular cases;

Regional standards:

 

Standards of conduct

United Nations Guidelines on the Role of Prosecutors (GA Resolution 45/166, para. 22)

Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and decision. They shall be determined in accordance with the law, the code of professional conduct and other established standards and ethics and in the light of the present Guidelines.

United Nations Convention Against Corruption (GA Resolution 58/4, Article 11)

Bearing in mind the independence of the judiciary and its crucial role in combating corruption, each State Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary. Such measures may include rules with respect to the conduct of members of the judiciary.

Measures to the same effect as those taken pursuant to paragraph 1 of this article may be introduced and applied within the prosecution service in those States Parties where it does not form part of the judiciary but enjoys independence similar to that of the judicial service.

Regional standards:

 

Freedom of expression

United Nations Guidelines on the Role of Prosecutors (GA Resolution 45/166, para. 8)

Prosecutors like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional disadvantage by reason of their lawful action or their membership in a lawful organization. In exercising these rights, prosecutors shall always conduct themselves in accordance with the law and the recognized standards and ethics of their profession.

United Nations Guidelines on the Role of Prosecutors (GA Resolution 45/166, para. 13c)

They should keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise.

Regional standards:

 

Adequate resources

Council of Europe (2000). Recommendation CM/Rec (2000)19 of the Committee of Ministers to member States on the role of public prosecution in the criminal justice system. Strasbourg: Council of Europe, 4

States should take effective measures to guarantee adequate legal and organizational conditions, as well as adequate budgetary means. Such conditions should be established in close cooperation with the representatives of the prosecutors.

 
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