This module is a resource for lecturers
Topic one - Judicial independence
The main factors aimed at securing judicial independence
The previous section has briefly explained why judicial independence is important for maintaining judges' impartiality and the rule of law. This section now focuses on how judicial independence can be guaranteed in its fundamental aspects (external, internal, institutional and individual independence). Various mechanisms are possible, and a range of examples are provided to encourage debate and develop critical thinking.
Judicial independence is a multifaceted concept. There are different institutional, legal and operational arrangements that in abstracto are designed to ensure judicial independence, and they can work differently depending on the historical, political, legal and social context in which the judiciary operates. Therefore, there is not an ideal model of implementing judicial independence in the sense that one-size-fits-all. Judicial independence is - in more concrete terms - the result of a combination of different conditions, measures, checks and balances, that can vary from one country to another. Every country has to find its own balance.
In some countries, for example, judicial independence is basically secured through a self-governing body or council (composed mainly of judges) which is in charge of all the decisions concerning judges' recruitment/nomination, career, transfer and discipline. This occurs, for example, in France, Italy, Mongolia, Nigeria, Poland, Romania, Spain, and Ukraine. In other countries, such as Kenya, South Africa, India, Germany, Austria, Czech Republic, India, Kenya, South Africa, the United States, there is no equivalent body, and judicial independence is thereby secured through various other mechanisms. Therefore, what is deemed to be an essential measure in some countries may be not considered as such in others. This reveals rather different views on the institutional means needed to protect judicial independence.
The process of defining the institutional requirements of judicial independence has by no means come to an end. For example, the oldest institution of the British constitutional system, the office of Lord Chancellor, has been recently redesigned in an effort to bring about a clearer separation between the branches of the State, and to enhance the independence of the judiciary (see the UK Constitutional Reform Act, 2005; Shetreet and Turenne, 2013).
The protection of judicial independence is usually considered as including various aspects that operate on different levels: external and internal independence, and institutional and individual independence. External independence refers to the independence of the judiciary from the political branches (Executive and Legislative power), as well as any other nonjudicial actor. Although there must, of necessity, be some relations between the judiciary and the political powers (especially the Executive), as stated in the Commentary on the Bangalore Principles "such relations must not interfere with the judiciary's liberty in adjudicating individual disputes and in upholding the law and values of the Constitution" (2007, para. 26). Internal independence focuses on guarantees aimed at protecting individual judges from undue pressure from within the judiciary: from other judges and, above all, from high ranking judges. High ranking judges may, for example, exert supervising power over courts' administration (depending on the organization of the judicial system), but they must not - in any way - influence the substance of judges' decision-making.
Institutional independence pertains to the institutional and legal arrangements designed ex ante by the State to shield judges from undue pressure and influence. From this point of view, the most important factors concern the way in which judges are recruited, evaluated, and disciplined, the governance of the judiciary and courts' administration. Usually, these aspects are regulated by the Constitution or special statutes concerning the judiciary. It is, however, a matter of fact that institutional independence can work in different ways, according to the context within which it operates, and does not guarantee per se that judges do actually behave in an independent manner. It is necessary, therefore, to consider not only the institutional design, but also the concrete behaviours of judges. This question concerns the individual independence of judges, i.e. their state of mind and concrete conduct, which depends, among other things, on their professional socialization and on the way in which they have internalized professional values. Although institutional independence is a necessary condition of individual independence, the two concepts are distinct. Both dimensions are required: both the individual judge and the court must be independent and be seen to be independent. As stated in the Commentary on the Bangalore Principles: "An individual judge may possess that state of mind, but if the court over which he or she presides is not independent of the other branches of government in what is essential to its functions, the judge cannot be said to be independent" (2007, para. 23). On the other hand, it is also mentioned that "the adoption of constitutional proclamations of judicial independence does not automatically create or maintain an independent judiciary" (2007, para. 25).
How can judicial independence be implemented in concrete terms? Which are the basic arrangements that can be adopted to secure judicial independence? Various configurations of judicial independence are possible in concrete terms, and States have adopted different models and solutions. The main factors that are relevant to promote and uphold the independence of the judiciary can be identified on the basis of:
- The procedures of appointment and promotion of judges;
- Judicial councils;
- The terms and conditions of judicial tenure;
- Financial autonomy and court administration;
- Judicial conduct and discipline.
Appointment and promotion of judges
Who appoints judges and how? Appointment procedures can be unduly influenced by the political or personal considerations of the appointing authorities. To avoid this risk, it is of paramount importance to guarantee transparent, objective and non-discriminatory procedures. This applies also to election procedures, in systems where judges are elected.
It is generally agreed at international level that judicial appointments should be made on merit, based on objective criteria pre-established by law or by competent authorities, and that political considerations should be inadmissible (UNODC, 2015, para. 53-55; GA Resolution 40/32 and 40/146, para. 10 and 13). Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications. The same principles apply to judicial promotions, which should be based on objective factors, in particular: ability, integrity and experience.
Some international standards also promote diversity in the composition of the members of the judiciary, including by taking into account a gender perspective (UNHRC, 2013, p. 2). States, for example, should undertake an assessment of the structure of their judicial branch and its composition, to ensure that women are properly represented and to create the conditions necessary for the realization of gender equality within the judiciary (but also the public prosecution service and the public defender service) (IACHR, 2013, para. 70). For academic scholarship on gendered recruitment patterns, in Russia, see Volkov and Dzmitryieva (2015). For a discussion of the complexities associated with an increase in women judges in Pakistan, see Holden (2019).
Further examples of initiatives to increase the representation of women in the judiciary include:
Example: Jordan - Initiatives to promote the representation of women within the judiciary
In recent years there has been a significant increase in the number of women enrolled in the Jordanian Institute of Judicial Studies. This welcome increase is attributed, in large part, to a range of initiatives implemented by the Jordanian Ministry of Justice. Such initiatives include the establishment of minimum quotas (15 per cent) for admission of female candidates to the Institute of Judicial Studies; and the establishment of funds both to assist with the studies of female judicial students, and to support women judges' participation in judicial training and research visits ( International Commission of Jurists, 2014, p. 34)
Example: Kenyan constitutional provision to redress past gender discrimination
The Kenyan Judiciary has among the highest representation of women judges in Sub-Saharan Africa. This is largely attributable to the success of civil society advocacy, which has seen the introduction of political measures designed specifically to increase the representation of women in the judiciary. In 2010, the new Kenyan Constitution established that "not more than two-thirds" of all elective or appointive bodies, including the judiciary, shall be of the same gender, providing for affirmative action to address past discrimination. Subsequently 13 women were appointed out of 28 new High Court judges. ( International Commission of Jurists, 2014, p. 41)
Example: England and Wales provide discretionary scope to allow diversity in judicial appointments
In England and Wales, the 2013 Crime and Courts Bill provided for major changes in judicial appointments. The existing provision that judicial appointments are to be made 'solely on merit' has been changed so that 'solely' does not prevent the selecting body, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within the group of persons who hold offices for which there is selection, or a sub-group of that group. The Chair of the Judicial Appointments Commission (JAC) has welcomed the provision to allow the JAC to select the more diverse candidate.
Example: Inter-American Commission on Human Rights requires equal footing participation in the administration of justice
In South Africa, the Constitution emphasizes the need for the judiciary to reflect broadly the racial and gender composition of the country, and for this to be a consideration when judicial officers are being appointed (UNODC, 2015, para. 55; Bingham Centre, 2015, p. 6).
Accordingly, the Inter-American Commission on Human Rights has recalled that States have a duty "to adopt all measures necessary to guarantee that indigenous peoples and ethnic groups are able to participate, on an equal footing, in the administration of justice, so that they, too, can become part of the institutions and organs of the State and participate, directly and in proportion to their population, in the conduct of public affairs. They should do this from within their own institutions and according to their values, practices, customs and forms of organization, provided these are compatible with the human rights embodied in the Convention of Human Rights" (IACHR, 2013, para. 72).
Key debate: Criteria for selecting judges
Due to the increased complexity of the work of the judge, it has become quite evident that the professional qualifications now required for the proper exercise of the judicial role go far beyond the basic legal knowledge and skills of legal interpretation that once were sufficient.
In Canada, for example, the assessment of candidates for the Supreme Court should involve consideration not only of their legal expertise and general professional abilities, but also of their social awareness, sensitivity, and other personal qualities, including a sense of ethics, patience, courtesy, honesty, common sense, tact, humility, punctuality, communication skills, ability to manage time and workload, and the capacity to handle heavy workload and stress (see, for example, criteria for judicial appointments in Canada).
In some States (such as Austria, Hungary, the Netherlands and the Philippines) the selection of new judges includes psychological testing. Psychological tests comprise tests of intelligence, ability to work in teams, capacity to make decisions under stress, and other issues.
In some systems, especially where judges are selected at the beginning of their professional careers, it is not uncommon for a judicial appointment to involve a period of training or probation.
Initial (and continuous) training is an important tool to guarantee judicial independence. It is fundamental not only to build strong professional skills but also to introduce judges to the basic values and principles of judicial profession.
Probation is strictly connected to training. The purpose of probationary appointments "is to ascertain whether a judge is really able to carry out his or her functions effectively before permanent appointment" (IACHR, 2013, para. 97). During probation, judges might enjoy certain limitations in their functions, independence and immovability (they, for example, can sit only in panels and be transferred or dismissed more easily than judges appointed for life). Particular attention must be devoted to the independence of judges in probation in decision-making, since they might feel pressure to decide cases in a particular way. A balance must be found between the need to ensure high professional standards and the protection of minimum level of independence. The final decision on permanent appointment should be made according to objective criteria and with appropriate procedural safeguards.
Recruitment and promotion procedures vary considerably among States. There is however a fundamental distinction between civil service judiciary (also known as bureaucratic judiciary), to which civil law judiciaries tend to belong, and professional judiciary, typical of common law judiciaries (Guarnieri and Pederzoli, 2002). This is, of course, an 'ideal-typical' distinction, since the reality is much more scattered and many systems actually combine some features of the civil service model and the professional model.
In most civil service judiciaries judges are recruited by means of public competitions based on written and oral exams, in which the theoretical knowledge of various branches of the law is verified. As a rule, the participants in those competitions are young law graduates without professional experience or with limited professional experience (although the years of experience vary among the countries). In civil law countries, public competition is the common way to access public offices. This system of recruitment is based on the assumption that the process of professional socialization and the development of professional skills will take place primarily within the judiciary and be governed by the judiciary itself, often through specialized institutions (Judicial Schools). Moreover, newly appointed judges are expected to be functionally omni-competent, as they can be assigned to a wide range of functions associated to their rank (the recruitment has a generalist nature).
Depending on the country, the Minister of Justice plays a role in the appointment procedure (for example, he/she may be responsible for the final appointment). Such role is however often mitigated by independent or self-governance bodies (appointment commissions, courts' presidents, judicial councils, etc.) which are involved in various ways in candidates' assessment. Given appointments are based on public competition, there is limited room for political influence, and the external independence of the judiciary is preserved.
In the civil system of recruitment, Judges enter the judiciary rather young and they generally remain in service for their entire working life, following a career which formally combines seniority and professional merit. The need "to operate periodic and substantial professional evaluations of judges is closely tied to the civil service model of recruitment, as judges are recruited without having any previous professional experience" (Di Federico, 2008a). The career usually involves recurrent evaluations of professional performance, for the purpose of promotions, role assignment and transfer. Hierarchical superiors have wide discretion in determining merit. This can be problematic because the influence of hierarchical superiors can undermine internal independence. In some countries hierarchical superiors share such responsibility with other bodies or agencies including representatives of judges, ministers of justice, parliamentary commissions. The problem has been mitigated in some countries thanks to the institution of judicial councils, self-governing bodies in which judges are represented, which contribute - to varying degrees - to the management of judicial personnel.
A different system is adopted in most professional judiciaries. Judges are recruited (or elected) from among lawyers and, in some cases, law professors, usually at the end of their working career. In the United States, for example, legal academics are often appointed to the federal bench. Given that judges are recruited only after having acquired professional legal experience, the professional socialization and the development of professional skills take place before judicial appointment and within the legal/academic profession. The appointment is usually in the hands of the Executive branch and might be based also on the political affiliation of the candidate. This can be detrimental for the external independence of the judiciary. The political influence is mitigated by the fact that appointment is usually for life term, and it cannot be affected by the potential changes in the political orientation of the appointing authorities.
In recent years, steps have been taken to render the process of judicial appointment more transparent and/or more participatory, or even to severely limit the power of judicial appointment of the Executive. In England and Wales, for example, the Constitutional Reform Act of 2005 introduced a new system for judicial appointment, departing from a long-standing tradition. Hitherto, the Lord Chancellor had legislative, judicial and executive functions, including that of heading a government department with responsibility for the courts and for judicial appointments. The Constitutional Reform Act replaced this system with the establishment of a Judicial Appointment Commission (composed primarily of high-ranking judges) which limits the role of the Lord Chancellor to one of accepting or exceptionally rejecting with cause its recommendations (UNODC, 2011, p. 9; Shetreet and Turenne, 2013; Bingham Centre, 2015,, p. 44).
The most challenging systems are those in which judges are elected. "The elective system is seen as providing the judiciary a greater degree of democratic legitimacy. It may, however, lead to judges being involved in fund raising, political campaigning, and indulging in the buying or giving of favours" (UNODC, 2015, para. 56).
In the U.S. for example, the appointment of judges by popular election for a fixed number of years is practiced in some States. Such a system is based on the belief that citizens should have the right to choose their own judges and also choose someone else in the next election if they are not satisfied with their performance during their term in office. "Critics of this system of judicial selection maintain that: it does not guarantee a selection based on merit; and it does not adequately protect judicial independence, or the image of impartiality of the judicial function. The remedies adopted in some states have been to create commissions, variously composed of representatives of lawyers, jurists, and ordinary members of the community, who submit to the governor of the State a list of qualified lawyers. The governor then appoints one of them as judge and, after a term of some years in office, the judge stands for uncontested 'retention election'. Yet even those remedies leave unanswered another criticism levied against the election of the judges, i.e., that the voters do not have reliable information to make a qualified choice" (UNODC, 2011, p. 8).
Under the professional system, judges are recruited to fill specific positions in a specific court without any formal prospect of a future career or transfer from one court to another. Therefore, there are no formal provisions for advancement, although higher ranking judges often exert some influence in both the initial appointment process and the promotion of judges from the lower ranks. Since promotions are not widespread, on the whole, there are much weaker internal controls over judges by their higher-ranking colleagues. As professional judiciaries tend to employ individuals with solid legal experience outside the judiciary, there is less emphasis on internal controls and guarantees of internal independence seem to be stronger in these systems.
Both types of judiciaries (civil service judiciaries and professional judiciaries) tries to safeguard judicial independence. However, some level of political influence is possible. In common law systems this might occur largely through the recruitment process; in civil law systems through the influence on the judicial career.
In many systems in which judges are recruited at a very young age, councils of the judiciary have been introduced to manage their long professional career. In other countries, on the contrary, especially in those that follow the common law tradition, similar councils do not exist. More recent reform initiatives (see for example: Sajó, 2004, and the analysis of judicial reforms in the countries of Central and Eastern Europe) have indicated a strong preference for the appointment and promotion of judges to be made by an independent body, such as judicial council or judicial appointment commissions.
Judicial councils are self-governing bodies of the judiciary. Composed mainly of judges, these councils are independent from the executive and legislative branches, even though they maintain some connections with them. They have been introduced, primarily, in countries which shifted from an authoritarian regime to a liberal democracy, as they were considered crucial for the implementation of the independence of the judiciary from the political powers (especially the Executive). Judicial councils have also had important effects as regards the promotion of internal independence, since they have reduced the influence of hierarchical superiors.
In Romania, as in other countries of the Central and Eastern Europe (CEE), the politicization of the judiciary was a key feature of the Communist regime. Judges and courts belonged to the Executive and were subordinated to the Communist Party. Their appointment was tightly controlled through the nomenklatura system. Separation of powers existed only in name, the absolute control of the judicial, executive and legislative functions being concentrated in the hands of a private corporation: the Communist Party. 'Telephone justice' was the norm; judges were told what decisions to deliver by party apparatchiks communicating with them over the telephone. The prosecution was the dominant partner in the judiciary branch and routinely used as a tool of the Party. The Party permitted the judiciary a very circumscribed degree of independence to deal with matters the Party cared nothing about, such as street crime, divorce, probate of personal property, etc. (Parau, 2011, p. 641).
After the experience with party politics in the Communist judiciary, in Romania, as well as in other countries of the CEE region, the transfer of responsibility for judicial personnel management from the Executive was thought to be the institutional backbone to the independence of the judiciary. To this end, the management of the judiciary has been placed in the hands of national councils of judges. With some differences among the countries, these councils have gained extensive powers (Blankenburg, 2004, p. 212). The Executive was therefore deprived of most of its authority in matters concerning judicial governance; it also lost the power to influence judicial decisions.
In recent decades the number of judicial councils has significantly increased in Europe, Latin America, Africa and Middle East. Their powers, composition and the system in which their members are appointed vary considerably from one country to another.
Despite judicial councils, some influence by political branches can nonetheless take place. Judicial councils, in fact, often include also nonjudicial members, usually outstanding jurists or citizens of acknowledged reputation and experience, and elected by specific authorities (for example, Parliament, the Presidents of the two Chambers of the Parliament, Government) or by other subjects/groups involved in the administration of justice (for example, representatives from the Prosecution services). Councils solely composed of judges are very rare. As representatives of society, nonjudicial members introduce social control within the council but, at the same time, they are a channel that connect the judiciary with the political environment, especially in the countries where they are appointed by Parliament with the support of political parties. In some countries all the members of the councils (including judges) are appointed by political powers (Minister of Justice, the Cabinet of Ministers, Parliament) and in these cases the connection with politics is stronger.
Examples: Spain; France
Tendencies have emerged to reduce the political influence on councils. In Spain, for example, since 1985 all the members of the Consejo General del Poder Judicial, including judges, are elected by Parliament. According to a more recent practice, however, judicial members are elected by Parliament on the basis of lists presented by the various professional associations of judges.
In France, with a view to strengthen the independence of the judiciary, the Constitutional reform of 2008 ( Loi constitutionnelle no. 2008-724) has established that the Superior Council of the Magistracy be presided over by the President of the Supreme Court of Cassation, with the General Prosecutor acting as vice-president. Before 2008, the president and vice-president of the Council were, respectively, the President of the French Republic and the Minister of Justice. The reform, however, has also increased the number of nonjudicial members, who are appointed by political authorities (the President of the Republic, the President of the Senate and the President of the National Assembly) and now represent the majority in the Council. The purpose is to avoid that the corporate interests of the judiciary might prevail over the protection of other important values for the proper working of the judicial system such as those of efficiency and judicial accountability. Despite the political nature of appointing authorities, the selection of nonjudicial members must focus on professional experience and merits.
Additionally, the councils have also increased the role of a new significant actor, the judicial associations, since they organize the electoral participation of judges. In several countries there are various union-like associations which appear to be divided along cultural and political lines. In some countries they are very active and exert some influence on the councils' internal deliberative process.
Terms and conditions of judicial tenure
Are judges appointed for life time or until retirement age? Are grounds for removal established by law? It is a fundamental principle of judicial independence that judges' tenure, security, adequate remuneration, conditions of service, pensions and age of retirement should be adequately secured by law ( GA Resolution 40/32 and 40/146, para. 11-12). Those are the minimal requirements for security of tenure. In the majority of States, judges, whether appointed or elected, enjoy guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.
Security of tenure is intended to protect judges against interference by any external or internal subject (and first of all the appointing authorities) in a discretionary or arbitrary manner. Premature and unjustified termination of a judge's mandate is a form of improper pressure on the judge himself/herself. To this end, grounds for removal prior the retirement age or the term of office must be based on well-defined circumstances provided for by law, involving: reasons of incapacity or behaviour that renders judges unfit to discharge their function; conviction of a serious crime; gross incompetence; or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary. For example, proven acts of corruption on the part of a member of the judiciary should be considered as meeting the threshold for removal. The procedures upon which the discipline, suspension or removal of a judge are based should comply with due process of law (UNHRC, 2013, p. 3).
Accordingly, in many States, "removal of a judge can only be justified where the shortcomings of the judge are so serious as to destroy confidence in the judge's ability to properly perform the judicial function" (UNODC, 2015, para. 75).
Salaries and pensions of judges are important elements to be considered for the protection of judicial independence. It is generally accepted that salaries and pensions must be established by law, and be adequate and commensurate with the status, dignity and responsibilities of judicial office. Adequate remuneration, in fact, contributes to prevent judges from seeking extra profits or favours and better shield them from potential corruptive practices and pressures aimed at influencing their decisions or behaviour (European Charter on the Statute for Judges. Principle 6.1).
Salaries, conditions of service and pensions of judges should not be altered to their disadvantage after appointment. To this end, "legislative or executive powers that may affect judges in their office, their remuneration, conditions of service or their resources, shall not be used with the object or consequence of threatening or bringing pressure upon a particular judge or judges" (UNODC, 2015, para. 91).
In the 1990s general economic difficulties caused several Canadian provinces to reduce the salaries of provincial court judges. Some accused persons and one provincial judges' association argued that these reductions violated the constitutional guarantee of judicial independence. The Canadian Supreme Court was called upon to establish a framework for decision-making on the remuneration of provincial court judges consistent with preserving their financial security.
The Court made three key findings. First, judicial salaries can be reduced, increased, or frozen, but only with recourse to an independent, effective and objective commission. Governments are prohibited from making decisions with respect to judicial salaries before receiving the commission's report. Furthermore, governments must formally and promptly respond to the commission's report, and justify any decision not to accept its recommendations. Second, there are to be no negotiations on judicial remuneration between the judiciary and the executive or legislature. This prohibition is based on the view that such negotiations are inherently political and that they would put the courts in a conflict of interest because the Crown is often a party before them. Moreover, negotiation may lead to a perception among the public that the judiciary is open to any compromise, if the situation requires it. Third, judicial salaries may not fall below a minimum level. While the court did not set a minimum, it explained that if salaries are too low, there is a risk, whether real or perceived, that judges will adjudicate in a certain way in order to secure higher salaries from the executive or legislature or be manipulated by offers of benefits from litigants (Binnie, 2011, p. 23).
Another important question related to tenure and removal is whether - and to what extent - judges enjoy immunity from criminal or civil liability. Whereas judges' criminal liability is a key principle recognized in most States under the criminal laws of general application, civil liability is a more controversial issue. A balance has to be found between the principle of individual independence (a judge must be free to act upon his/her convictions, without fear of personal consequences) and the rights of individuals to compensation from the State for injury incurred by reason of negligence or fraudulent or malicious abuse of authority by a judge.
Many States, however, "consider it of fundamental importance for a judge to enjoy personal immunity from civil suits for monetary damages for improper acts or omissions made in the exercise of their judicial functions". In other words, judges personally enjoy absolute freedom from liability with respect to claims made directly against them relating to their exercise of their functions in good faith. In application of this principle, "the remedy for judicial errors, whether with respect to jurisdiction or procedure, in ascertaining or applying the law or in evaluating evidence, lies in an appropriate system of appeals or judicial review. Conversely, civil liability may apply with regard to injury incurred by reason of negligence or misuse of authority by the judge, but the remedy usually lies only against the State without recourse (or with limited recourse) by the State against the judge" (UNODC, 2015, para. 78-80).
General principles on civil liability have come under debate in Italy in recent years, following a set of rulings of the European Court of Justice in 2006 and 2011. The European Court specified that a national law cannot exclude, in a general manner, State liability for the infringement of EU law by the judge, by reason that such infringement results from an interpretation of law or an assessment of facts and evidence. The Court pointed out the responsibility of the Italian legislator and called for a reform in the field. The problem was that the Italian law (no. 117/1988) established State liability only in exceptional cases and only if committed with intention or gross negligence. But, more than that, the practice of Italian courts was so tolerant towards the judiciary that it resulted in a systematic dismissal of complaints brought against the Italian State. In other words, the Italian law proved to be completely inefficient in the protection of individual rights and resulted in a sort of absolute immunity of the State (and consequently of the judge) for damage caused by judicial decisions. The European Court did not challenge the traditional judge's privilege as it considered only State liability and not the personal liability of the judge. The State (and not the judge) must be held responsible for the infringement of EU law by the judge. That was the main point. This has required reforms in some EU Member States, especially where State liability for judicial wrongs was limited to criminal breaches or private activity.
Finally, some national constitutions or laws also specify that judges may not hold any other office, whether public or private, except non-remunerated positions in teaching and scientific research in the legal field.
Financial autonomy and court administration.
The funding of courts is closely linked to the issue of judicial independence, in that it determines the conditions in which the courts perform their functions. Sufficient resources are essential to ensuring judicial independence from State institutions and private parties, so that the judiciary can perform its duties with independence, integrity and efficiency.
It is the duty of each State to provide adequate resources to enable the judiciary to properly perform its functions. This also includes appointing a sufficient number of judges in relation to caseloads, providing the courts with necessary support staff and equipment (including office automation and data processing facilities), and offering judges appropriate personal security, adequate training, remuneration and emoluments. It is evident that the ability of a State to fully meet the budgetary needs of the judiciary is dependent on its economic and financial position.
There is an obvious link between the funding of courts and the management of courts. According to some international and regional standards, matters of courts' administration that relate directly to the exercise of judicial function, including for example assignment of judges and assignment of cases to judges, shall primarily vest in the judiciary or in a body subject to its direction and control. An external authority must not be in a position to interfere in matters that are directly and immediately relevant to the adjudicative functions. Nor shall the allocation of cases be influenced by the wishes of a party to the case or anyone otherwise interested in the outcome of the case. Some institutional relations with other authorities are possible, having regards to the limits required by judicial independence ( GA Resolution 40/32 and 40/146, para. 14; Council of Europe, Recommendation on Judges (2010), Chapter III, para. 24, 40 and 41).
However, the introduction into court systems, in recent decades, of a variety of management principles and practices oriented toward achieving increased productivity, improved case processing and reduced costs (following the so called new public management theory), has highlighted the need for a more professional approach to court administration. "Consequently, in many jurisdictions, a court administrator now has authority over all nonjudicial court management and administrative functions. These include long-range administrative planning, finance, budget, procurement, human resources, facilities management, court security, and employee discipline, in addition to judicial support functions. In any case, since the overall functioning of a court depends on the interplay between the judge and administrative staff, there should be a shared responsibility between the head of the court and the court administrator for the overall management of the court" (UNODC, 2015, para. 99).
To to improve courts' efficiency, some States have established specific independent agencies called Courts services. They are composed of judges, representatives of the courts' staff, members of the Bar, experts in the field of management and finance and, sometimes, the Minister of Justice. They are generally entrusted with far reaching powers in the area of court administration and court management; they are often involved in setting the budget of the justice system, monitoring expenditures, promoting automation, elaborating criteria for evaluating the overall performance of the courts; they also manage - to varying degrees - judicial personnel (training, role assignment, evaluation and promotions) to safeguard judicial independence. Court services have spread, for example, over Northern Europe and in particular in Ireland, Sweden, Norway, Denmark, The Netherlands, Estonia.
Court services usually act as intermediate bodies between the courts and the Government. Their purpose is to improve efficiency while safeguarding judicial independence. If managerial duties are exercised by the courts through their 'own' Court service, there is a fair chance to increase the courts' responsibility for their own results and to improve efficiency. Court Services usually draft annual reports about their activities.
The main challenge many countries are now confronting is how to balance the new requirements of public management with the accurate exercise of judicial activity. An excessive focus on efficiency targets, productivity, cost control, statistics and quality control policies as main priorities to improve the functioning of courts can have negative consequences.
In some countries, for example, the appeal and reversal rate is used for the professional evaluation of first instance courts' judges. This may create a pressure on judges, in the sense that their decision-making might be more oriented to please the courts of appeal rather than to impartially apply the law. Such mechanisms, encouraging potential conformism within the judiciary, can be detrimental to judicial independence. Quality policies too much oriented towards productivity and efficiency targets can have detrimental effects on other important values (such as independence) that are of paramount importance for the correct functioning of the courts.
Another important question that has gained greater importance in the last years is transparency of courts. Offering full and understandable information about court procedures can enhance legal culture, access to justice and public trust in the judiciary. Transparent procedures, in fact, can improve the citizens' knowledge of the legal remedies offered by the court system, of the basic procedural rights of the parties (such as the right to appeal against a judgment), and of the role of the different actors in the judicial process (lawyers, judges, prosecutors, etc.).
Transparency also implies free access to judicial decision. A reasonable number of judgments should be made available to the general public. In most countries, judgments are regularly published in data bases open to the public or to professionals (but also in court bulletins, websites, collections of judgments, legal commentaries, etc.). Usually they are anonymized to safeguard the privacy of the parties and the other subjects involved in the case, as well as the protection of confidential information and data. "Privacy policies actually differ from one country to another: in some countries judgments are released only to the parties to a case and their lawyers; in others, expansive privacy laws and a traditional reluctance to provide open access to court information, limit access. A situation that is potentially worse is that some countries have no policy at all on the publication of judgments and the dissemination of court information" (UNODC, 2011, p. 99 and 100). In very general terms, public scrutiny can lead to a better quality of judicial decisions. Potential criticism of judicial decisions by the media, academia or even politicians does not infringe judicial independence but rather contributes to open justice and public debate.
Transparency may also imply: granting physical access to court sessions and/or court hearings (according to the requirements prescribed by law); offering assistance in starting proceedings (through standard forms and blanks, etc.); facilitating communication with lawyers and attorneys, granting the inspection of records, protocols of court sessions etc.; inviting journalists to press conferences and releases about judicial decisions and pending trials, especially those having public relevance; organizing conferences and seminars involving judges, representatives of society, of the business community, etc.; adopting other proactive measures and strategies to improve the interaction between judges and the community they serve (in some countries, for example, court user guides provide basic information on criminal and civil procedures. They help to actively engage a court in a relationship with the community, and to demystify many of the complexities surrounding the operation of a legal system) (UNODC, 2011, p. 99, 100; UNODC, 2015).
Finally, increased transparency also contributes to the integrity and efficiency of the justice system and reduces opportunities for corruption.
Judicial conduct and discipline
Judicial conduct and discipline have been subjects of particular attention in recent decades. In many judicial systems standards of judicial conduct have been introduced to strengthen the independence of the judiciary. The observance by the judiciary of rules of conduct, and disciplinary measures for those who transgress these rules, are conditions to guarantee an independent judiciary (Lord Justice Thomas, 2007). Judicial conduct also affects the level of confidence of the general public in the courts: since the exercise of judicial power "has dramatic effects upon lives and fortunes" of the people involved, citizens "will not wish such power to be reposed in anyone whose honesty, ability or personal standards are questionable" (Lord Justice Thomas, 2008). Accordingly, standards of judicial conduct serve to both safeguard the independence of judges and to guarantee their 'quality'.
Judicial conduct and discipline are obviously connected with other aspects of judicial governance. The greater or lesser role of judicial discipline is, generally speaking, related to the system of judicial recruitment, the quality of initial and continuing education, and the thoroughness of periodic professional evaluations (where they exist). For example, the role of judicial discipline becomes more significant in countries that recruit magistrates from the ranks of young law graduates without previous professional experience (civil law countries), rather than in countries were judges are recruited from among lawyers well known for their professional experience (common law countries).
In some countries, judges are disciplined on the basis of rules formulated in rather vague terms, sometimes applicable to public servants in general. Such disciplinary systems have been the object of criticism, for several reasons, including the fact that they leave great room for discretion. The wide discretion of disciplinary authorities in applying norms formulated in vague terms could be a threat to judicial independence, insofar as the norms could be misused to sanction judges for their judicial orientations.
In Italy, until 2006, judicial discipline had been based on a vague provision that allowed the Disciplinary Commission of the Superior Council of the Magistracy the discretion to decide when and how judicial misconduct should be punished. According to that provision, disciplinary penalties could be imposed on magistrates who "fail to accomplish their duties and conduct themselves, either in or outside the office, in a way that makes them unworthy of the trust and consideration they must enjoy, or when they compromise the prestige of the judiciary". As this provision was so general, judicial misconduct had been de facto defined by the Disciplinary Commission case law. As it was not clear (to magistrates, or to the general public) what violations a magistrate might be called to account for, any behaviour could potentially be investigated.
In 2006, Italy enacted a new law comprising not only a detailed list of disciplinary violations, on and off the bench, but also indicating the kind of sanctions to be imposed for each of those violations.
In other countries judicial discipline is - in various way - based on established codes or guidelines for judicial conduct. Codes of conduct have been adopted by many countries throughout the world. Codes should be considered living documents and be reviewed periodically in light of emergent ethical challenges and the efficacy of the codes in addressing those challenges (UNODC, 2011, p. 134). A significant role in promoting the adoption of codes of judicial conduct has been played by model codes elaborated at the international level like the Bangalore Principles of Judicial Conduct (2002) and the Latin American Code of Judicial Ethics. They identify the basic values of the judicial role such as: independence, impartiality, integrity, propriety, equality, competence and diligence.
There are significant differences among the various codes, including the specificity with which principles of ethics or judicial conduct are spelled out and whether or not they are enforced by means of disciplinary proceedings. Codes for judicial conduct have important effects on the protection of judicial independence, both if they have only exhortative nature and if they contain more detailed and binding prescriptions. They are usually self-regulatory provisions generated by the judiciary itself (or its representative organs) or with its contribution.
Codes for judicial conduct are important tools not only for judicial training but also to build up a professional culture, to improve the excellence of the judicial profession and the public confidence in the administration of justice, to offer assistance on issues concerning judicial conduct, and to encourage judges to reflect on problems that may arise in their professional and extra-professional lives.
Some countries have adopted codes or guidelines which are not enforceable as such, since these are only exhortative in nature. Such codes indicate, in general terms, the behaviour expected of judges, and elaborate the best way of performing judicial functions. The common feature of these provisions is that they are not disciplinarily binding, but they consist of ethical rules, suggestions, advice, recommendations, principles, whose violation cannot per se give rise to a disciplinary action. As they are not prescriptive, the primary responsibility for deciding whether a particular activity or conduct is appropriate or not rests with the individual judge. The consultative process of developing such Codes is an important part of their acceptance by judges.
Examples: England and Wales; the Philippines
In England and Wales, following extensive consultation with the judiciary, a Guide to judicial conduct was drafted in 2004 by a working group of judges set up by the Judges' Council. It is intended "to offer assistance to judges on issues, rather than to prescribe a detailed code, and to set up principles from which judges can make their own decisions and so maintain their judicial independence" (High Council, 2008). One of the Guide's most important features is flexibility, as the responsibility and the public perception of the standards to which judges should adhere are continuously evolving. For this reason, after the publication of the Guide the Judges' Council set up a Standing Committee charged to keep the Guide under review, to deal with any points of principle that may not be considered in the Guide or may need revision, and to consider how the Guide is working in practice. A need for change may be perceived by judges whether or not a specific problem has actually arisen.
In the Philippines, the University of the Philippines Institute for Judicial Administration launched the publication of the New Code of Judicial Code of Conduct for the Philippine Judiciary (2004). Based on the Bangalore Principles, local experts wrote the annotations to the six canons providing local case law to support the implementation of the code, with the help of the U.S. Federal Court of Appeals Judge in editing and final remarks. The 2007 annotation offers a practical guide for judges that uses case law to explain the various provisions of the Code.
Other countries have opted for a different solution and have introduced detailed disciplinary rules (Disciplinary Codes) that are binding for judges. These rules are primarily intended to reduce discretionary powers in the exercise of disciplinary control. They are, however, less flexible tools, sometimes approved by law. Detailed disciplinary binding rules can better contribute to guaranteeing judicial independence from at least two perspectives: avoiding the disciplining of magistrates for vague, discretionary reasons and without knowing ex ante what is considered a violation and the penalties they can incur; improving the transparency and the effectiveness of disciplinary proceedings, by reducing the discretionary powers of disciplinary authorities.
A common topic concerning judicial conduct is freedom of expression. Can freedom of expression or the use of social media impair the independence of the judiciary? Freedom of expression is a delicate question for the judiciary, because judges must not only be independent and impartial but also appear as such. Inappropriate declarations can easily impair the image of judicial independence, in the view of the general public. For this reason, it is important that judges be extremely careful and exercise self-restraint in the relationship with the media and in the use of other means of communication.
As a general rule, "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" ( GA Resolution 40/32 and 40/146, para. 8). Judges are also bound by professional secrecy with regard to their deliberations and to confidential information; the right to information about judicial matters of public interest should be exercised having regard to the limits imposed by judicial independence.
To prevent judges from being directly engaged with the media, "a successful approach in many countries has involved establishing press and communication offices or court's spokespersons under the responsibility of the courts to facilitate media coverage of judicial proceedings. These offices liaise with media representatives, respond to and manage requests from journalists, issue press releases and generally provide accurate information about judicial decisions and legal issues. These offices can also provide schedules of upcoming cases, monitor the media for accurate reporting, and design media campaigns that promote public understanding of the judiciary" (UNODC, 2015, para. 135).
In addition to such measures, "the training of journalists organized by, or in cooperation with, the courts can help reduce ineffective reporting. Such training provides them with basic knowledge about court procedures and legal issues, and thus contribute to improving journalistic skills and ethics, and building trust between judges and journalists" (UNODC, 2015, para. 134).
Through the Global Judicial Integrity Network, which is a component of the Global Programme for the Implementation of the Doha Declaration, UNODC has brought together judges from around the world, to explore the challenges and opportunities that social media platforms present for judicial practice. Judges have shared the following insights on the complexities of judicial practice in the age of social media:
"If we are moving forward, it is obvious that guidance and training are required in order to avoid the pitfalls. The Bangalore Principles may have been developed before social media, but whatever is seen to be unbecoming conduct can still be interpreted in the world of social media. We are not going to invent new standards; they are the same standards, now digitized," Judge Kashim Zannah, Chief Judge of the Borno State, Nigeria, and Member of the Advisory Board of the Global Judicial Integrity Network.
Judge Cristi Danilet, Appeals Court in Romania, who has over 60,000 followers on his Facebook account, believes that it is acceptable to communicate with a wider circle, as long as judges followed the same criteria. "Citizens want to see more professional aspects when they look for a judge online. They are not interested in my family, but in me as an expert on law. It's good to have a code of conduct, but at the same time we should respect all the rules we already have offline."
Judge Virginia Kendall, United States District Court, is both a strong proponent of training and an active trainer herself of judges and judicial staff: "It is not intuitive, and you need to train judges on their own code of conduct. The insidious nature of social media includes that it stays forever." She advises demonstrating to judges how to use various actual social platforms (for example, showing how to tweet, how to like, or how to comment), in addition to how posts can be copied, altered or reposted.
For further information on the topic of social media and judicial integrity, see UNODC, 2018. See also:
- Global Judicial Integrity Network Podcast: Judges' Use of Social Media , in which Judge Barry Clarke, Regional Employment Judge in Wales and Deputy Chair of the UK Central Arbitration Committee, discusses judges' use of social media, including: common mistakes, best practices, and the dangers of the big data industry.
- Global Judicial Integrity Network Podcast: Training Judges on Social Media Use , in which U.S. Judge Virginia Kendall is interviewed by Roberta Solis from the Global Judicial Integrity Network on how to incorporate judges' use of social media into judicial training courses. Topics include how to structure training courses and apply existing codes of conduct to social media use.
Next: Topic two - General issues. Public Prosecutors as the 'gate keepers' of criminal justice
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