This module is a resource for lecturers
This section contains suggestions for in-class and pre-class educational exercises, while a post-class assignment for assessing student understanding of the Module is suggested in a separate section.
A visit to a court and/or a court hearing could be arranged by lecturers. Students will directly experience the functioning of a court/hearing and the work of the different actors involved (judges, prosecutors, lawyers, court staff).
In-class exercise 1: Preliminary discussion among students
Lecturer Guidelines: Students are asked the following discussion questions: What does judicial independence mean in your opinion? Which are the main functions of the public prosecutors? The purpose is to promote the discussion in the classroom and the students' initial thoughts on such issues. Students are not required to write their impressions but only to participate in the oral discussion; this exercise works with students' existing knowledge.
In-class exercise 2: Discussion of a judgment of a national or international court or other relevant documents concerning judicial independence and the role of prosecutors
The judgement / document can be summarized by the lecturer in the class or be read by students prior the class (as pre-class exercise); students are expected to assess its impact on the judicial systems, on the values of the rule of law, and on the political systems.
Lecturer Guidelines: The following key judgements / documents can be used by lecturers for discussion (other judgments/documents can, of course, be selected by lecturers following their interests and experience):
1. European Commission (EC) Proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law
Thirteen new laws in two years have allowed the Polish Government to 'interfere significantly' in the judiciary. According to the EC, the law on the National Council for the Judiciary and the law on the Supreme Court, also in combination with the law on the National School of Judiciary, and the law on the Ordinary Courts Organization significantly increase the systemic threat to the rule of law. More specifically, serious concerns have been expressed as regards the following measures:
- 27 out of 72 Supreme Court judges face the risk of being forced to retire - more than one in every three judges - due to the fact that the new Polish law on the Supreme Court lowers the retirement age of Supreme Court judges from 70 to 65. This measure also applies to the First President of the Supreme Court, whose 6-year mandate would be prematurely terminated. According to the law, current judges are given the possibility to declare their will to have their mandate prolonged by the President of the Republic, which can be granted for a period of three years and renewed once. There are no criteria established for the President's decision and there is no possibility for a judicial review of this decision.
- All new Supreme Court judges will be appointed by the President of the Republic on the recommendation of the newly composed National Council for the Judiciary, which will be largely dominated by the political appointees. As a result, the current parliamentary majority will be able to determine, at least indirectly, the future composition of the Supreme Court;
- As regards ordinary courts, the decreasing of the retirement age of the judges; the prolongation of the judicial mandate will be made conditional upon the discretionary decision of the Minister of Justice;
- The discretionary power of the Minister of Justice to appoint and dismiss presidents of courts without being bound by concrete criteria, with no obligation to state reasons, with no possibility for the judiciary to block these decisions and with no judicial review available;
- As regards the National Council for the Judiciary, the termination of the mandate of all judges-members of the National Council for the Judiciary and the reappointment of the judges-members according to a process which allows a high degree of political influence.
- European Commission Proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law (p. 36);
- European Commission Press Release on the Rule of Law: Commission launches infringement procedure to protect the independence of the Polish Supreme Court;
- BBC News report on the Poland judiciary reforms: EU takes disciplinary measures;
- Which fundamental values are going to be infringed in the Polish case? Why?
- How could the Polish laws be amended to comply with international standards?
- How has the judiciary reacted? (students will search information online)
2. The appointment of a new Supreme Court Judge and the comments made by the Chief Justice of the Supreme Court of Canada
Canada's justice system was briefly in the international spotlight in 2014, when, in a rare move, the International Commission of Jurists (ICJ) publicly criticized the Canadian Government for interfering with the independence of the judiciary.
This came after a group of Canadian legal academics and lawyers asked the ICJ to investigate statements made by the Prime Minister and Minister of Justice regarding the conduct of the Chief Justice surrounding the appointment of Marc Nadon to the Supreme Court of Canada.
These statements, issued shortly after the Supreme Court ruled that Justice Nadon was ineligible for appointment to the Supreme Court of Canada, accused the Chief Justice of acting inappropriately by attempting to contact the Prime Minister regarding pending appointments to the court in the spring of 2013.
This public criticism of the Chief Justice led the Federation of Law Societies of Canada to issue a public statement expressing its concern that these comments risked diminishing public confidence in Canada's democratic institutions.
In a public letter dated 23 July, the ICJ called on the Prime Minister and the Minister of Justice to apologize, claiming that their comments "amounted to an encroachment upon the independence of the judiciary and the integrity of the Chief Justice". The ICJ also found that nothing in the Chief Justice's actions had violated international rules.
Specifically, the ICJ expressed its view that Chief Justice McLachlin's attempt to alert the Minister of Justice to a potential legal issue arising from the nomination of a Justice of the Federal Court did not constitute a breach of the Bangalore Principles.
- What was the problem in the case?
- Which fundamental values have been infringed?
3. Premature termination of Supreme Court President's mandate as a result of views expressed publicly in his professional capacity - European Court of Human Rights (ECtHR) (2016) case of Baka v. Hungary (No. 20261/12)
The case concerned the premature termination of Mr Baka's mandate as President of the Supreme Court of Justice of Hungary (the Supreme Court) and his lack of access to judicial review to challenge the termination.
The applicant, a former judge of the European Court of Human Rights, was elected President of the Supreme Court of Hungary for a six-year term ending in 2015. In his capacity as President of that court and of the National Council of Justice, the applicant expressed his views on various legislative reforms affecting the judiciary. In his speech, delivered on 3 November 2011, the applicant raised his concerns about the draft legislation. He said that it did not address the structural problems of the judiciary, but left them to "the discretion of the executive of an external administration (the President of the proposed National Judicial Office, which would replace the National Council of Justice in managing the courts), who [would be] assigned excessive and, in Europe, unprecedented powers, with no adequate accountability". The applicant referred to those new powers (to appoint judges and court executives, to issue normative orders and to designate the court in a given case) as "unconstitutional".
The transitional provisions of the new Constitution (Fundamental Law of Hungary of 2011) provided that the legal successor to the Supreme Court would be the Kúria (the historical Hungarian name for the Supreme Court) and that the mandate of the President of the Supreme Court would end following the entry into force of the new Constitution. As a consequence, the applicant's mandate as President of the Supreme Court ended on 1 January 2012. According to the criteria for the election of the President of the new Kúria, candidates were required to have at least five years' experience as a judge in Hungary. Time served as a judge in an international court was not counted. This led to the applicant's ineligibility for the post of President of the new Kúria.
The European Court held by fifteen votes to two, that there has been a violation of the Convention of Human rights. Mr Baka's access to court had been impeded, not by express legislative exclusion, but rather by the fact that the premature termination of his mandate had been written into the new Hungarian Constitution itself and was therefore not subject to any form of judicial review.
It also found that Mr Baka's dismissal had been due to the criticism he had publicly expressed of government policy on judicial reform when he was President of the Supreme Court, underlining that the fear of sanction, such as losing judicial office, could have a "chilling effect" on the exercise of freedom of expression and risked discouraging judges from making critical remarks about public institutions or policies.
- Which are the reasons of the premature termination of the Supreme Court President's mandate?
- Why does the premature termination infringe the Supreme Court President's right?
- Which international principles have been disregarded in the case?
4. Arrest and extended detention of opposition politician following critical blog post was unjustified - European Court of Human Rights (ECtHR) (2014), case of Ilgar Mammadov v. Azerbaijan (No. 15172/13)
The case concerned the arrest and detention pending trial of an opposition politician and blogger following his reports on street protests in the town of Ismayilli in January 2013.
On 24 January 2013, Mr Mammadov travelled to the town of Ismayilli, northwest of Baku, to report on street riots which had broken out there the previous day. According to media reports, the protests had been triggered by an incident involving V.A., the son of the Minister of Labour and nephew of a local politician. The reports claimed that after being involved in a car accident, V.A. had insulted and physically assaulted passengers of the other car, who were local residents. As a reaction, hundreds of local residents took to the streets and damaged property in Ismayilli thought to be owned by V.A.'s family, including a hotel.
In joint press statement, on 29 January 2013, the Ministry of Internal Affairs and the Prosecutor General's Office stated, among other things, that two politicians, including Mr Mammadov, had made appeals to local residents in Ismayilli aimed at social and political destabilization, and that their "illegal actions" would be investigated. Subsequently Mr Mammadov was questioned by the prosecutor about his role in the events. According to the record submitted by the Azerbaijani Government, the prosecutor held two face-to-face confrontations, in which two local residents stated that Mr Mammadov had told protesters to throw stones at the police. Mr Mammadov denied these statements as fabricated.
In February 2013, Mr Mammadov was charged with the offences of organizing or actively participating in actions causing a breach of public order. A district court ordered his remand in custody for a period of two months, stating in particular that there was a risk he would abscond or disrupt the course of the investigation. Neither the official charges nor the order for his remand in custody mentioned the face-to-face confrontations with the local residents.
In March 2014, Mr Mammadov was convicted and sentenced to seven years' imprisonment. His appeal against the conviction is pending.
The ECtHR considered that Mr Mammadov, who had a history of criticizing the Government, had been arrested and detained without any evidence to reasonably suspect him of having committed the offence with which he was charged, namely that of having organized actions leading to public disorder. The Court concluded that the actual purpose of his detention had been to silence or punish Mr Mammadov for criticizing the Government and publishing information it was trying to hide.
- ECtHR Press release in below judgement
- European Court of Human Rights (ECtHR) (2014) Ilgar Mammadov v. Azerbaijan (application no. 15172/13)
- Which international principles have been disregarded in the case?
- Why does the ECtHR complain about the press statement issued by the Prosecutor General and the Ministry of Internal Affairs?
- Which fundamental rights have been disregarded?
5. Public Prosecutor's Office had "failed to comply with its duty to investigate crimes adequately due to its lack of independence from the Executive." Inter-American Court of Human Rights (2006) La Cantuta v. Peru
On 14 February 2006, the Inter-American Commission on Human Rights (hereinafter 'the Commission' or 'the Inter-American Commission') filed an application before the Court against the State of Perú.
The application is based on the alleged violation of the human rights of Professor Hugo Muñoz-Sánchez and of several students on the grounds of the alleged kidnapping of the alleged victims from the Universidad Nacional de Educación 'Enrique Guzmán y Valle', located in La Cantuta, Lima, in the predawn hours of 18 July 1992, an operation carried out by members of the Peruvian Army, "who [allegedly] kidnapped the [alleged] victims, some of whom disappeared and were allegedly summarily executed;" as well as on the alleged impunity regarding those events as a result of the failure of the State to conduct an effective investigation into the facts. The Commission alleges that "this case shows the abuses committed by the Military, as well as the systematic practice of committing violations of human rights, among them, forced disappearances and extra-legal executions, by State agents on instructions from military and police higher officers.
More specifically, the Inter-American Commission pointed out that Peru's Truth and Reconciliation Commission found that the Public Prosecutor's Office had "failed to comply with its duty to investigate crimes adequately due to its lack of independence from the Executive." In its country reports, the Commission has observed that when the Public Prosecution Service is subordinate to the Executive and has exclusive authority to bring a criminal action, the result has often been misrepresentations, abuses and manipulation that cannot be resolved through the courts.
The Inter-America Court of Human Rights found several violations of human rights and unanimously declared, among other things, that:
The State must take without delay the necessary actions to effectively conduct and complete, within a reasonable time, the ongoing investigations and the criminal proceedings pending in the domestic courts, and to carry out, as the case may be, the necessary investigations to determine the criminal liability of the perpetrators of the violations committed to the detriment of Hugo Muñoz-Sánchez et al.;
The State must also adopt the necessary measures to train and educate prosecutors and judges, including officers of military criminal courts, on international standards related to the judicial protection of human rights. In doing so, the State must also implement, on a permanent basis and within a reasonable time, human rights-oriented programmes for the above-mentioned officers.
- Which fundamental rights have been disregarded in the case?
- What is the request of the Court to the State of Perù?
- Which are the risks associated to a non-independent Judiciary?
6. The injustice done to Senator Ted Stevens
On 7 April 2009, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia unleashed his fury before a packed courtroom. For 14 minutes, he scolded. He chastised. He fumed. "In nearly 25 years on the bench," he said, "I've never seen anything approaching the mishandling and misconduct that I've seen in this case."
It was the culmination of a disastrous prosecution: the public corruption case against former U.S. Senator Ted Stevens (R-AK). Stevens was convicted in October 2008 of violating federal ethics laws by failing to report thousands of dollars in gifts he received from friends. But a team of prosecutors from the U.S. Department of Justice is accused of failing to hand over key exculpatory evidence and knowingly presenting false evidence to the jury.
At the center of the story are real people: an old and powerful politician, a crack defense team, determined prosecutors, and their supervisors.
For months Judge Sullivan had warned U.S. prosecutors about their repeated failure to turn over evidence. Then, after the jury convicted Stevens, the Justice Department discovered previously unrevealed evidence. Meanwhile, a prosecution witness and an agent from the Federal Bureau of Investigation (FBI) came forward alleging prosecutorial misconduct. Finally, newly appointed U.S. Attorney General Eric H. Holder Jr. announced that he had had enough and recommended that the seven-count conviction against the former Alaska senator be dismissed.
On 7 April Judge Sullivan ordered an inquiry into the prosecutors' handling of the case. Judge Sullivan insisted that the misconduct allegations were "too serious and too numerous" to be left to an internal Justice Department investigation. He appointed a Washington lawyer to investigate whether members of the trial team should be prosecuted for criminal contempt.
Concerns also have been expressed about the timing of the Stevens case, with the indictment coming just months before Stevens was up for reelection in his home state. The jury verdict against Stevens came eight days before Election Day. Subsequently, he lost to Democrat Mark Begich in an extraordinarily close contest, the effects of which benefit the Democrats.
As any law student knows, prosecutors must disclose any potentially exculpatory evidence to the defendant in a case. The so-called Brady Rule stems from the U.S. Supreme Court's 1963 decision in Brady v. Maryland.
Six prosecutors were investigated. Two were suspended from their work (though those suspensions were later overturned). The lead prosecutor was found to have exercised poor judgment, and left the government. Another committed suicide before the investigation was complete. None was prosecuted.
Stevens died in a plane crash in 2010, before two investigations were completed which found corruption of the prosecutorial function that exceeded what was known when the case was dismissed. He wanted legislation passed to spare others the injustice he endured - especially those who do not have 12 lawyers representing them. The Department of Justice has implemented new "guidelines" for federal prosecutors.
- A Cautionary Tale: The Ted Stevens Prosecution;
- Recalling the Injustice Done to Sen. Ted Stevens, Commentary;
- Which is the role of prosecutors in judicial process?
- Which actions were undertaken to remedy prosecutorial misconduct?
- Which are the possible forms of accountability for prosecutors?
In-class exercise 3: Students tasked with collecting data and information on selected issues in one/more country/countries
Lecturer Guidelines: Such issues can regard for example gender-related issues, like the proportion of men/women employed in the judiciary/prosecution service and in top ranking position (advanced exercise).
See for example: Council of Europe (2018). European Judicial Systems: Efficency and Quality of Justice. Strasbourg: Council of Europe:
- tables no. 3.13-3.17 (p. 111-118) (Judges)
- tables no. 3.33-3.37 (p. 143-149) (Prosecutors)
Other issues can focus on challenging questions concerning judicial ethics and discipline, for example: the use of social media by judges or, more generally, the relationship between judges and the media. Students are asked to collect data and information on such topics, starting from the Bangalore principles of judicial conduct and their Commentary. They are also asked to check national legislation, codes of conduct, and other relevant sources of one/more country/countries.
In-class exercise 4: Moot court and Mock trials arranged by lecturers on specific topics (advanced exercise for law students)
Lecturer Guidelines: Moot court is a simulated court proceedings, usually involving drafting memorials or memoranda and participating in oral argument. It does not involve actual testimony by witnesses, cross-examination, or the presentation of evidence, but it is focused solely on the application of the law to a common set of evidentiary assumptions and facts, to which students are introduced.
Mock Trial is an innovative education programme that combines performance-based, law-related education with tournament-style. Students, working in teams under the guidance of lecturers, analyze the facts of a hypothetical criminal court case, prepare trial strategy and enact every role in the trial proceedings, as members of either the prosecution or defense. The teams present their cases in real courtrooms before sitting judges and are scored by lecturers. Mock trial programmes are offered by several law schools.
Both moot court and mock trial are intended to develop students' critical thinking, analytical reasoning, awareness of trial law, effective communication skills and teamwork. Students also learn the importance of following rules and a code of ethics.
Next: Possible class structure