INDEPENDENCE AND IMPARTIALITY OF JUDGES

By P. Rädler*

I. Introduction

The principles of independence and impartiality of the judiciary seem to enjoy universal allegiance on the level of national law. In addition, the Covenant and the regional human rights instruments recognize the guarantee of an independent and impartial tribunal as a human right to fair trial.⁽¹⁾ On this basis, in 1995 Special Rapporteur of the Commission on Human Rights considered judicial independence and impartiality to form part of the "general principles of law recognised by civilised nations" within the meaning of art. 38 of the ICJ-Statute.⁽²⁾

Although there is general agreement in principle that judges should be independent and impartial, there seems to be little consensus of what the principles of independence and impartiality mean in practice. This proves true by the continuing litigation under national law, the jurisprudence of the organs of regional human rights instruments and by the mere fact of the appointment of three Special Rapporteurs on the topic by the Commission on Human Rights since 1985.⁽³⁾ Certainly, even in 1959 during the deliberations on the draft Covenant the issues of independence and impartiality of the judiciary brought about little, if any, debate.⁽⁴⁾ However, one might wonder whether this was due to independence and impartiality being so broad a concept that they easily cover different views on their practical implications. It is therefore decisive to break down the two principles into "sub-principles" which are more apt to guide practical resolutions of specific questions. In fact, the "Basic Principles on the Independence of the Judiciary", which were one of the major achievements of the Milan Congress of the United Nations in 1985,⁽⁵⁾ reflect this attempt to state a number of sub-principles of judicial independence. This comment is meant to reconsider and categorise those aspects of both principles which have been raised in the national reports as well as in the reports on the regional human rights instruments.

Independence and impartiality are often mentioned in the same breath. In a true construction, however, they do not form a twin principle. It was rightly stated by the Special Rapporteur Singhvi that impartiality is not only historically the earlier, but also on a doctrinal level the core principle in relation to fairness and objectivity of judicial proceedings.⁽⁶⁾ The Inter-American Court of Human Rights and the European Commission of Human Rights both considered judicial independence to be a pre-supposition of impartiality.⁽⁷⁾ Yet, the concept of independence could not be properly perceived if it was simply seen as a sub-category of the principle of impartiality; it rather provides for a separate and additional procedural safeguard. It is noteworthy in this context that in the African Charter on Human and Peoples' Rights the right to a fair trial is confined to a trial by an "impartial court or tribunal" while the guarantee of judicial independence is couched as a state obligation only.⁽⁸⁾ Thus, in the African Charter the human right to a fair trial seems not to coincide with the principle of independence, i.e. the institutional stipulations implied in the concept of judicial independence. The distinction drawn by the African Charter between individual claims/rights and state obligations, certainly, have to be respected. However, as will be seen, the extent to which procedural guarantees, commonly considered as elements of judicial independence, are covered by the right to a fair trial under the African Charter depend on the interpretation of both impartiality and the notion of a "court or tribunal".

The notions of independence and impartiality tend to have different meanings in different contexts. Generally speaking, both impartiality and independence are understood to safeguard the objectivity and fairness of judicial proceedings. As to impartiality, the UN Human Rights Committee stated that it "implies that judges must not harbour any preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties."⁽⁹⁾ In contrast, judicial independence safeguards the judiciary against any interference by state organs or private persons with the performance of judicial duties. Thus, while impartiality reflects an open-mindedness on the part of the judges, independence describes functional and structural safeguards against extraneous intrusion into the administration of justice.

In addition to impartiality and independence in their strict sense, it is essential that the judiciary inspires confidence in the public that judicial proceedings are actually carried out in conformity with these principles. The European Court of Human Rights has frequently emphasised the English maxim that "justice must not only be done, it must also be seen to be done."⁽¹⁰⁾ In this way impartiality and independence are both extended to safeguard against situations where there is legitimate doubt that the court acts in an independent and impartial manner. As will be shown later, this conceptual extension gives rise to cases where it is difficult, if not impossible, to examine the two principles separately.

II. Judicial Impartiality

The maxim that the mediator shall be open-minded to both parties is an inherent principle of procedural justice. In fact, in English law and the law of many Commonwealth countries the rule against bias is considered to be a principle of "natural justice."⁽¹¹⁾ In the context of criminal proceedings the rule against bias applies to each member on the bench (professional and lay judges) as well as to each member of the jury.⁽¹²⁾

Yet, as impartiality reflects a particular state of mind, the rule raises serious questions of evidence. Of course, judges are presumed to be partial if they adopt a disfavouring or hostile attitude towards one party or favor one over the other. For an evaluation whether or not judges are biased the standpoint of the accused person is important, but their perspective is not decisive and eventually the misgivings on the part of the accused will need objective justification. Moreover, it is for the parties to challenge the judges' impartiality on account of the particular conduct or personal attitudes of members on the bench and of the jury.⁽¹³⁾ The need to challenge subjective improprieties of judges or jurors was stressed by the UN Human Rights Committee;⁽¹⁴⁾ in addition, the European Court of Human Rights holds in long-established jurisprudence that personal impartiality of each member on the bench will be presumed until there is proof to the contrary.⁽¹⁵⁾ These difficulties obviously account for there being only very few cases where the impartiality of judges is called in question on the basis of their particular relation to either party.⁽¹⁶⁾

However, in addition to the subjective conception of impartiality, the principle is extended to cover an objective or structural conception where the circumstances of the case at stake give rise to objective doubts as to the judges' capacity to act impartially.⁽¹⁷⁾ Predominantly, from this objective point of view judges can be deprived of their impartiality because of their status or due to their present or previous non-judicial functions. National legislation in a great number of States is directed to cover those circumstances where judges are generally -- without regard to the case at stake -- taken to be partial.⁽¹⁸⁾ Generally speaking, codes of criminal procedure will exclude the participation of members on the bench who have a familial relationship to the accused or to the victim or who have already been involved in the pre-trial proceedings either as a public prosecutor or as a witness. Since the grounds of disqualification apply without regard to the personal background of judges or jurors of a particular case, this practice has to be seen as an application of the maxim mentioned before that "justice must not only be done, it must also be seen to be done". Of course, there could easily be conflicting views on whether or not a particular previous function of a member of the bench induces objective doubts as to his or her impartiality. Within the scope of international standards on fair trial, the states are to determine for themselves what they regard as an infringement of objective impartiality. International human rights organs, however, are perfectly justified to consider those states as being bound by their own national legislation.⁽¹⁹⁾

Yet, objective impartiality is by no means capable of being enlisted in a statutory enumeration. Impartiality therefore needs to be secured on a procedural basis by way of a remedy to challenge judges and jurors. In fact, the national reports show considerable support for this device.⁽²⁰⁾ In the context of criminal proceedings misgivings might easily be aroused on account of the judges' previous function as public prosecutor or due to their participation in pre-trial investigations. However, regard may be legitimately paid to the maintenance of the judicial system, and one is therefore to accept changes from the public prosecutor's department to the judiciary and -- possibly -- vice versa.⁽²¹⁾ Yet, as concerns established prior involvement in specific cases, the Draft Body of Principles on Fair Trial which is part of the Final Report of the Special Rapporteurs Chernichenko and Treat stipulates that the judges may not have acted either as public prosecutor or as the judge of a "secret preparatory investigation" or have "some other connection with the case which might bias the decision."⁽²²⁾ But, of course, although there might be general consensus in this regard, it is the niceties of national legislation that cause practical difficulties -- a problem perfectly illustrated in the case law of the European Court of Human Rights.⁽²³⁾ In the absence of detailed jurisprudence on this issue by the Human Rights Committee or organs of other regional human rights instruments, it seems convenient briefly to take up again the case law of the European Court of Human Rights. As a general rule, the European Court holds that judges must not have (nor appear to have) a "pre-conceived view on the merits."⁽²⁴⁾ In this sense, the Court decided that a judge will not only be seen to be partial if he previously acted as public prosecutor in the same case but also if he was in a position to supervise the public prosecutor in charge of the case.⁽²⁵⁾ In principle, the same considerations hold true for pre-trial investigations. The European Court objected to a judge who in proceedings for pre-trial detention was satisfied that there was "particularly confirmed suspicion"⁽²⁶⁾ of the accused person's guilt whereas the European Court accepted that a judge had ordered pre-trial detention on "prima facie evidence."⁽²⁷⁾ Obviously, this tenuous distinction hardly lends itself to offer guidance to evaluate other legal systems. However, one has to admit that the test of whether or not there is a pre-conceived view on the merits is not susceptible to being phrased in a clear-cut rule and, in fact, much will depend on the over-all legal situation of the case under evaluation.

It is suitable to finish this issue with some remarks on the procedural enforcement and the question of waiver of the right to an impartial tribunal.⁽²⁸⁾ As to objective impartiality the UN Human Rights Committee stated that it is incumbent upon the court to consider ex officio those grounds for disqualification of a judge which are laid down by law.⁽²⁹⁾ In addition, the European Court of Human Rights considers it sufficient that the right to a fair trial is claimed to be violated and that the material submitted prompts the court to call the matter into question.⁽³⁰⁾ However, both the UN Human Rights Committee⁽³¹⁾ and the European Court of Human Rights⁽³²⁾ held that accused persons can forfeit the right to challenge the court's subjective impartiality if they fail to do so before the competent national court. This accords with provisions in the national legislation that lay down time limits to raise the issue of disqualification of a member on the bench. Since subjective impartiality is based on misgivings on the part of the accused person (although they eventually need to be objectively justified), it is well-founded to require the person concerned to raise the point and to utter the doubts in due time. Yet, on a true construction, this appears to be an exception to the rule. In principle, doubts as to the court's impartiality that come to be known by the court or that manifest themselves in the files have to be examined on the court's own motion.

III. Judicial Independence

It is trite to repeat that judicial independence is based on the idea of separation of powers and that it is therefore, mainly, a characteristic of the legal institutions. But judicial independence also requires the absence of illegal attempts to interfere with the administration of justice. There are ample examples of pressure, threats and violence against the judiciary from both private people, paramilitary groups, terrorists and government officials.⁽³³⁾ In fact, as studies of the Inter-American Commission on Human Rights show, improper interference by the government and pressure and violence by private people often occur side by side and an attempt to strengthen the judiciary's safety will depend on a solution of the overall situation.⁽³⁴⁾ Irrespective of how to cope with the illegal actions themselves, the independence of the judiciary, in this regard, will depend to a large extent on criminal sanctions against pressure, threats etc. and sufficient prevention of corruption on the part of the judiciary. For the purpose of an analysis of the right to a fair trial, however, this report is confined to judicial independence as provided for in the legal framework.

Independence of the judiciary is based on the idea that the state organs are attributed with specific and exclusive competences. This entails that non-juridical bodies do not exercise power in the area of adjudication. Consequently, whether or not the judiciary is independent will be ascertainable with reference to the constitutional and statutory law under consideration.⁽³⁵⁾ In addition, so as to exclude interference by the executive or the legislature with a particular case pending before court, it is one of the basic requirements of judicial independence that the courts are "established by law", as expressly stipulated for in the Covenant and the American and European regional human rights instruments.⁽³⁶⁾ Due to this reference to the legal framework, the principle of independence of the judiciary seems capable of being phrased as a set of key requirements that a legal system must meet so as to safeguard the right to an independent court. A well-known example of such an analysis is the list of the Basic Principles formulated by the United Nations Congress in 1985.⁽³⁷⁾

As the doctrine of separation of powers can be understood in a functional and in an institutional (organizational) sense, there are as well two basic concepts of judicial independence. Independence in a functional sense excludes interference of non-judicial organs with the performance of judicial functions. In addition, maintaining the courts to work independently likewise protects the personal independence of the judges. Independence in an institutional sense, on the other hand, requires that judicial organs are composed of office-holders different from those of other branches of government and that the judiciary enjoys a certain institutional autonomy in the administration of court-related matters.

1. Functional independence

As to functional independence, the national reports demonstrate different ways of establishing this concept. Numerous constitutions, like the 1993 Constitution of South Africa, contain an explicit provision against interference with judicial functions.⁽³⁸⁾ Very often, constitutions juxtapose the principle of independence and the rule that judges are solely subject to the law.⁽³⁹⁾ Moreover, a number of constitutions do not expressly include the guarantee of an independent judiciary but stipulate -- as the Danish Constitution does -- that "in the performance of their duties the judges shall be directed solely by the law."⁽⁴⁰⁾ This stipulation that judges be subject only to the law not only excludes bias on the part of the judges but also prohibits executive orders or individual measures of the legislature interfering with (criminal) court proceedings. It is noteworthy that the Universal Islamic Declaration of Human Rights contains the right to be treated "only in accordance with the Law"⁽⁴¹⁾ and that the constitutions of states such as Algeria, Egypt and Mauritania, which recognise the Islam as religion of the state, do also include this stipulation.⁽⁴²⁾

In practical terms, the judiciary cannot be independent if in the course of the proceedings it receives binding instructions from the legislative or executive branch.⁽⁴³⁾ Moreover, interference in the administration of justice occurs if judicial rulings constitute nothing but advice for the competent Minister⁽⁴⁴⁾ or if the executive is given the power to change judgements or not to implement them.⁽⁴⁵⁾ Apart from executive measures, interference with the administration of justice can occur through legislative acts. In general, any statute which is directed to change the legal situation of a particular case pending before a court will infringe the judicial independence. This clearly holds true if the legislature changes the applicable statutory framework of a pending case to which the state is itself a party.⁽⁴⁶⁾

In fact, the exclusion of interference with the performance of judicial proceedings is so intrinsically related to the doctrine of separation of powers that the very notion of a court is based on the concept of independence in its functional sense. The European Court of Human Rights has frequently emphasised this interrelation. For instance, in the recent case Van de Hurk v. Netherlands the Court stated that "the power to give a binding decision which may not be altered by a non-judicial authority to the detriment of an individual party is inherent in the very notion of a 'tribunal'."⁽⁴⁷⁾ The Inter-American Commission on Human Rights held that "administrative tribunals subject to the Ministry of Justice" cannot be considered as "judicial courts".⁽⁴⁸⁾

If indeed the notion of a "court or tribunal" inherently implies a functional independence, the human right to a trial by an "impartial court or tribunal", as entrenched in the African Charter on Human Rights, will in itself secure the basic attributes of a tribunal, in particular the requirements of judicial independence in its functional sense.

2. Organizational Independence

Independence of the judiciary involves, first of all, that the different branches of government are given their own and exclusive competences and that their functions are exercised by different office-holders. If this very basic condition is satisfied, full independence will require sufficient institutional separation from the legislative and executive branches.⁽⁴⁹⁾ This institutional separation relates to a number of questions of which this comment will focus on the appointment of judges, the composition of the court and the security of tenure.⁽⁵⁰⁾

a) Appointment of Judges

As to the appointment of judges it is an essential requirement that the judges are not nominated on an ad hoc basis.⁽⁵¹⁾ Irrespective of the principle of independence, this could be seen to follow from the stipulation that the courts be "established by law".⁽⁵²⁾ It precludes the executive from appointing judges for particular cases and from assigning them to certain benches so as to influence the outcome of the proceedings.

With regard to statutory provisions on nomination procedures, the national reports reveal very different models.⁽⁵³⁾ Judges are either directly elected by the people,⁽⁵⁴⁾ appointed by Parliament⁽⁵⁵⁾ or solely by the government,⁽⁵⁶⁾ appointed by the government by way of an agreement with Parliament⁽⁵⁷⁾ or with a judicial service commission established for the nomination of judges,⁽⁵⁸⁾ and eventually in some states lower court judges are appointed by means of co-option by the Supreme Court or the Court of Appeals.⁽⁵⁹⁾ If there is a judicial service commission, very much will depend on its composition.⁽⁶⁰⁾ Moreover, different models might be realised within the same national legal system depending on whether professional judges or lay judges or judges of first or last instance courts are to be elected.

It is noteworthy that the Basic Principles on the Independence of the Judiciary do not include a provision on nomination procedures.⁽⁶¹⁾ In fact, what is crucial with regard to judicial independence is less the nomination procedure itself but whether or not the selected judges enjoy functional independence from the person or body that nominated them. To be sure, one might tend to prefer a nomination procedure in which the executive -- one way or the other -- depends on an agreement with a commission composed of members of the legislature and/or of the judiciary.⁽⁶²⁾ In addition, there are reasonable grounds to seek a fair participation of both genders and all relevant religious, ethnic, political and social groups within the judiciary.⁽⁶³⁾ Yet, there is no internationally recognized standard that would allow an assessment among the nomination models being extracted on a comparative basis. To the contrary, the European Commission of Human Rights held that even a nomination solely by the government does not itself affect the independence of the court.⁽⁶⁴⁾ Again, what will be decisive at the end of the day is the absence of any supervisory control by the executive or legislative branch after nomination.

Indeed, one might wonder whether what is usually seen as a matter of judicial independence (participation of different institutional bodies in the nomination process, pluralistic composition of the judiciary) should rather be considered as a matter of appearance of independence and as a matter of structural impartiality. This point can be illustrated by way of reference to the case Holm v. Sweden which was recently decided by the European Court of Human Rights.⁽⁶⁵⁾ In a nutshell, in this case five out of nine jurors were or had been active members of the very same political party that was the employer of the defendant, the author of a book against whom Mr. Holm, the applicant, had brought an action of libel. The European Court found "it difficult in this case to examine the issues of independence and impartiality separately."⁽⁶⁶⁾ While the subjective impartiality on the part of the jurors was not contested, the court held that the affiliation of both the defendants and the five jurors with the same political party could legitimately give rise to "misgivings as to the jurors' independence and impartiality."⁽⁶⁷⁾ Thus, while independence in its institutional sense is mainly directed to safeguard the appearance of independence against any doubts of extraneous influence, the concept of structural or objective impartiality is touched upon at the same time due to legitimate fears that the court's open-mindedness might be impaired. This inherent interrelatedness of independence and impartiality needs to be kept in mind if the applicable legal framework provides only for either guarantee.

b) Composition of the Court

Turning now to the composition of the court there are, as the national reports reveal, a number of constitutional or statutory provisions that lay down particular incompatibilities excluding members of the executive and legislative branch from being eligible as a judge.⁽⁶⁸⁾ These incompatibilities obviously provide a further guarantee of institutional independence. What is at stake, however, is less the absence of actual interference by the executive or the legislature but the legitimate fear that the judge, due to his additional capacity as civil servant or member of Parliament, will appear to be influenced by superiors of the department or by party leaders respectively. Here, again, one can see the intrinsic interrelation of the appearance of independence and the aspect of structural impartiality.

Absent any explicit provision on incompatibilities, the question of coexistent exercise of judicial and non-judicial duties has a direct bearing on the principle of judicial independence. There is no general rule that civil servants or members of Parliament may not act as judges. In fact, the European Court of Human Rights held with regard to private law courts that even a majority of civil servants on the bench does not affect the court's independence provided the government has not the status of a party of the case and that nobody on the bench is in a subordinate position in relation to the civil servant representing the government.⁽⁶⁹⁾ In the context of criminal proceedings, however, there is substantial state practice that members of the government and high-ranking ministerial officers are to be excluded from judicial duties. The Working Group on Arbitrary Detention of the Commission on Human Rights considered a criminal court's independence to be affected where "the majority of the judges at the trial consisted of government officials."⁽⁷⁰⁾ In addition, the African Commission held special criminal courts cannot be an impartial tribunal when members of the executive branch sitting as judges outnumber the regular judges on the bench.⁽⁷¹⁾ Similarly, the Inter-American Commission on Human Rights stated that special criminal courts in Nicaragua which were composed of members of the militia, reservists and other supporters of the political party in government seriously violated the right to an independent and impartial judiciary.⁽⁷²⁾

These cases demonstrate that different considerations apply to criminal and private law courts. While a majority of civil servants might be acceptable in private law courts if the state is not itself a party to the case, criminal proceedings do intrinsically promote the state interest. Therefore a majority of civil servants -- in particular of members of the public prosecutor's department, high-ranking ministerial officers or high party officials of the political party in government -- will deprive the court of its independence from the executive branch. In fact, the cases mentioned give rise to the further question whether a bench composed only of a minority of civil servants has to be considered as sufficiently independent of the government branch. Of course, as a matter of fact, the court is only subject to directives by the government if government officials have the majority on the bench. However, the appearance of independence will already be affected where the court includes one person whose independence can be legitimately called into question. Therefore, independence (or rather the appearance of independence) is not a matter of the court as a whole but of each of its members.⁽⁷³⁾ Eventually, whether or not a particular civil servant or politician brings about objective doubts as to the court's independence will depend on his or her general position and ranking.

c) Removal of Judges

In addition to these ways of interfering in a pending case, judicial independence is impeded if the judges have reason to fear disciplinary or other consequences due to their exercise of judicial functions. This touches upon the decisive matter of security of tenure which is one of the most important safeguards for judges, ensuring that they will not be guided by considerations of possible repercussions of their decisions.

It is generally accepted today that security of tenure does not require that judges are appointed for life or that they are irremovable in law. It is, however, essential that for a specific period of time they enjoy a certain stability. In this regard, a maximum age for judges, generally applicable, does not pose any problem. As to the duration of the term of office it is hard, if not impossible, to specify a minimal length of time. Very much will depend on the nature of the court and on the professional or lay capacity of the judges. In addition, as re-election is a form of accountability, a short-term tenure with an option for re-election is more likely to arouse misgivings as to the judges' independence than the same tenure without any possibility of re-election.

While the duration of the term of office does not itself bear on the judges' independence, transfer of judges to other courts or other functions and the dismissal of judges from their office implies a considerable risk to judicial independence.⁽⁷⁴⁾ The European Court of Human Rights was perfectly right when it considered the irremovability of judges "a necessary corollary of their independence,"⁽⁷⁵⁾ a holding later given full approval by the Inter-American Commission on Human Rights.⁽⁷⁶⁾

Strictly speaking, accountability of judges constitutes in itself a necessary safeguard against miscarriage of justice. Yet, judicial independence can only be sustained if substantive and procedural means exclude undue influence on the judges' conduct. The national reports show a fairly general agreement on substantive criteria giving rise to removal (such as misbehaviour or incapacity). As these criteria are couched in somewhat broad concepts the problem of removing judges heavily turns on the proceedings and the share different state organs have therein. In this respect a comparison of state practice reveals, again, considerable differences. Some countries, like England⁽⁷⁷⁾ and Canada,⁽⁷⁸⁾ allow the executive to remove judges following a resolution of Parliament. Other countries such as France,⁽⁷⁹⁾ Morocco,⁽⁸⁰⁾ and Uganda⁽⁸¹⁾ provide for judicial service commissions whose decisions are binding on the executive. In a third model, cases of removal of judges are decided by regular courts, as in Germany,⁽⁸²⁾ or, by special courts generally established for this issue, as laid down in Danish and Polish law.⁽⁸³⁾ Despite these differences state practice establishes a broad support for one particular basic requirement, i.e. that the procedure itself satisfies the standard of independence and impartiality.⁽⁸⁴⁾ This requirement will not lead into a vicious circle. For, first of all, it precludes that the decision to remove a judge is taken solely by the executive. While the nomination of judges by the government raises itself no direct concern as to the judiciary's independence (in its strict sense), the government would seriously affect the independence of the judiciary if the inauguration of judges could be annulled by way of a simple contrarius actus.⁽⁸⁵⁾ In addition, if a judicial service commission is competent for -- or is to participate in -- the proceedings, its impartiality is endangered if its members are appointed on an ad hoc basis. The same holds true if a statute authorises the body competent for the nomination procedure (e.g. the executive) to determine the composition of the commission.

As the principle of independence refers to the institutional framework of a national legal system one has to consider whether the right to an independent tribunal necessarily coincides with the structural stipulations of the principle of independence. Although irremovability of judges is a strict stipulation of judicial independence, the European Court of Human Rights held that non-compliance with this institutional aspect of independence need not itself imply a violation of the human right to an independent tribunal.⁽⁸⁶⁾ In a case where the Minister of Internal Affairs had the power to remove judges from office, the European Court stated that "the absence of a formal recognition of this irremovability in the law does not in itself imply lack of independence provided that it is recognised in fact and that the other necessary guarantees are present."⁽⁸⁷⁾ Certainly, this judgement has to be seen against the background of the particular constitutional framework in the United Kingdom; in addition, what applies to safeguards of institutional independence (like irremovability) does not necessarily apply to safeguards of functional independence (non-interference by other state organs).⁽⁸⁸⁾ However, as a matter of principle, one has to take into account that the potential influence by the executive easily effects the way judges carry out their duties. Moreover, if the right to a trial by an independent tribunal was to be examined not on the basis of institutional competences but on the basis of legal practice, the independence of judges could be at risk to be undermined by indirect ways of influence by the executive. More thorough attention ought to be paid to the extent to which the examination of the human right to a trial by an independent tribunal depends on an overall evaluation of and on confidence in the legal and political practice of the legal system concerned.

IV. Concluding Remarks

This comment has sought to outline the basic features underlying the principles of independence and impartiality of judges in criminal proceedings. As impartiality is very much a matter of the particular case at stake, it is hardly possible to describe the principle in terms of a limited number of criteria. However, as the national reports show, national legislation is able to set essential safeguards against bias which the courts will have to take into consideration ex officio. In addition, it is crucial that the right to a trial by an impartial court is safeguarded by a remedy to challenge the qualification of individual members on the bench and of the jury.

In contrast, the principle of independence in its strict sense relates to structural guarantees against non-judicial state organs or private persons interfering with judicial functions. Therefore a number of criteria are commonly stated the application of which can secure judicial independence within a national legal system. More international consensus of what independence means in practice will depend on an agreement on particular safeguards in the organization of the different branches of government.

On the whole, independence and impartiality of judges reflect inherent elements of the judiciary within a system governed by the rule of law. With regard to the human right to fair trial, the two principles form, as the UN Human Right Committee stated, "an absolute right that may suffer no exception."⁽⁸⁹⁾

1. Art. 14 (1) of the Covenant on Civil and Political Rights (as well as art. 10 of the Universal Declaration of Human Rights); arts. 7 and 26 of the African Charter on Human Rights and Peoples' Rights; art. 10 of the Inter-American Convention on Human Rights; art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

2. Report of the Special Rapporteur Param Cumaraswamy, Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, UN Doc. E/CN.4/1995/39, para. 34.

3. See Final Report by the Special Rapporteur L. M. Singhvi, The Administration of Justice and the Human Rights of Detainees: Study on the Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, UN Doc. E/CN.4/Sub.2/1985/18; Final Report by the Special Rapporteur Louis Joinet, Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, UN Doc. E/CN.4/Sub.2/1993/25; Report of the Special Rapporteur Param Cumaraswamy, Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, UN Doc. E/CN.4/1995/39.

4. UN Doc. A/4299, para. 52 (Report of the Third Committee on the Draft International Covenants on Human Rights); see for further reference, Singhvi, (note 3), para. 28.

5. Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan 1985, UN Doc. A/Conf.121/22/Rev. 1 (also published in: The Review of the International Commission of Jurists, vol. 37, 1986, p. 62); for confirmations by the General Assembly see Resolutions UN Doc. 40/146, 1985, and 41/149, 1986.

6. See Singhvi (note 3), para. 80.

7. Inter-American Court of Human Rights, Advisory Opinion of October 6, 1987, No. OC-9/87, Judicial Guarantees in States of Emergency, Human Rights Law Journal (HRLJ), vol. 9, 1988, p. 204, p. 208; (see ACHR Report, 24); European Commission of Human Rights, Bramlid and Malmström v. Sweden, Decisions and Reports 38, 18, para. 33; see also Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Administration of Justice and the Human Rights of Detainees, The Right to a Fair Trial: Current Recognition and Measures Necessary of its Strengthening, Final Report prepared by Stanislav Chernichenko and William Treat, UN Doc. E/CN.4/Sub.2/1994/24, para. 67.

8. See art. 7(1)(d) and art. 26 of the African Charter, see also Badawi El Sheik, p. 7.

9. Human Rights Committee, Communication No. 387/1989 (Karttunen v. Finland), UN Doc. CCPR/C/46/D/387/1989, para. 7.2.

10. See e.g. European Court of Human Rights (ECHR), Delcourt v. Belgium, Ser. A, No. 11, para. 31.

11. See e.g. for the English Common law, E. C. S. Wade/A. W. Bradley, Constitutional and Administrative Law, 11th ed., 1993, 689; in the US the rule against bias is part of the "due process of law", see Frase, p. 42. Indeed it seems to be very much a matter of common sense that parties to a conflict would not agree on an adjudication process unless the adjudicator was acceptable to both sides, i.e. not harbouring any bias against one party or the other, see European Commission of Human Rights, Padovani v. Italy, Publications of the European Court of Human Rights, Ser. A, No. 257, 26, para. 33: The guarantee of impartiality "requires that the judge, who is placed above the parties, should remain separate by them (reste 'étranger' à celles-ci)".

12. As to jury trials see UN Human Rights Committee, Communication No. 240 /1987 (Collins v. Jamaica), UN Doc. CCPR/C/43/D/240/1987, para. 8.4.

13. See for references to the national reports note 20.

14. Collins v. Jamaica, note 12, para. 8.4.

15. Le Compte, Van Leuven and DeMeyere v. Belgium, Ser. A, No. 43, para. 58; see Leigh, para. 29.

16. See, however, in the framework of the European Convention of Human Rights Gregory v. UK where the Commission held doubts as to racial bias among the jurors to be objectively justified, EHRR-CD, vol. 19, 1995, p. 82.

17. For the European Court of Human Rights see Leigh, para. 29; for the African Commission on Human Rights see below note 71.

18. See Report Spain 19; Frase, p. 42 (US), Samson, p. 19 (Germany); Sarre, p. 17

(Mexico); Rzeplinski, p. 24 (Poland); see also Draft Body of Principles on the Right to a Fair Trial and a Remedy, UN Doc. E/CN.4/Sub.2/1994/24 (note 7), para. 25.

19. Karttunen v. Finland (note 9), para. 7.2.: "A trial flawed by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of article 14" of the Covenant; see also ECHR, Oberschlick v. Austria, Ser. A, No. 204, para. 40, and with further references Holm v. Sweden, Ser. A, No. 279-A, para. 30.

20. See Frase, p. 42 (judges), p. 45 (jurors); Roach/Friedland, p. 13 (Canada); Motala, p. 3 (South Africa); Nasaba, p. 34 (Uganda); Report Zimbabwe, 19; Gaarde, p. 25 (Denmark); Rzeplinski, p. 23 (Poland); Baretto, p. 20 (Brazil).

21. The European Court of Human Rights accepted that the public prosecutor's department and the bench are not separated by an "impenetrable barrier", Piersack v. Belgium, Ser. A, No. 53, para. 30; see also Sarre, p. 16.

22. Draft Body of Principles on the Right to a Fair Trial and a Remedy, (note 7), para. 27.

23. See Leigh, para. 30; see also Frase, p. 42.

24. Fey v. Austria, Ser. A, No. 255, para. 34.

25. Piersack v. Belgium (note 21), para. 30.

26. Hauschildt v. Denmark, Ser. A, No. 154, para. 52.

27. Saraiva de Carvalho v. Portugal, Ser. A, No. 286-B, para. 38; see Leigh, para. 31.

28. See also for a right to a remedy, Draft Body of Principles, (note 7), para. 30.

29. Karttunen v. Finland, (note 9), para. 7.2.

30. Albert and LeCompte v. Belgium, Ser. A, No. 58, para. 32.

31. Collins v. Jamaica, (note 12), para. 8.3, 8.4.

32. Albert and LeCompte v. Belgium (note 30), para. 32; Campbell and Fell v. UK, Ser. A, No. 80, para. 84.

33. See for empirical studies Centre for the Independence of Judges and Lawyers (M.A. Rishmawi, ed.), Attacks on Justice, The Harrassment and Persecution of Judges and Lawyers, 1995, passim.

34. See e.g. Measures Necessary to Enhance the Autonomy, Independence and Integrity of the Members of the Judicial Branch, Annual Report of the Inter-American Commission on Human Rights 1992-1993, OEA/Ser.L/V/II.83, Doc. 14, corr. 1, 207; see also Joinet, (note 3), para. 78.

35. For an assessment of judicial independence on the basis of national law see e.g.: ECHR, Sramek v. Austria, Ser. A, No. 84, para. 41; European Commission of Human Rights, Application 5258/71, Collection of Decisions p. 43, p. 71; Bramelid and Malmström v. Sweden, (note 7), p. 40.

36. As to the relation between courts "established by law" and the independence of the judiciary, see European Commission of Human Rights, Zand v. Austria, Decisions and Reports 15, p. 70, pp. 79-80.

37. See note 5; see also Draft Body of Principles, (note 7), para. 13.

38. Constitution of the Republic of South Africa, art. 96 (3); see for similar provisions: Constitution of Belarus, art. 110 (2); Constitution of Congo, arts. 130, 131; Constitution of China, art. 126; Constitution of Argentina, art. 109 (for the President of the Nation); Constitution of Peru, art. 139 No. 2; Constitution Mauritania, art. 90 (2), see also Basic Principles on the Independence of the Judiciary (note 5), para. 1.

39. See Constitution of Spain, art. 117 (1); Constitution of Greece, art. 87 (2); Constitution of Germany, art. 97 (1); Constitution of Russia, art. 120 (1); Constitution of Japan, art. 76 (3); Constitution of Senegal, art. 80ter (2), see also Jarraya, p. 15.

40. Danish Constitution, art. 64; see also Constitution of Zimbabwe, art. 79B (Report Zimbabwe, 17).

41. Universal Islamic Declaration of Human Rights, para. IV (see 4 [1982] E.H.R.R. 433); see also Attia, Interpretative Memo, pp. 19-20.

42. Constitution of Algeria, art. 138; Constitution of Egypt, art. 166; Constitution of Mauritania, art. 90 (1); the Constitution of Morocco (art. 80) provides for the judicial authorities to be "independent of legislative power and of executive power"; compare however the Constitution of Saudi Arabia, art. 46: "There is no control over judges in the dispensation of their judgements except in the case of the Islamic Shari'ah."

43. As to instructions by the Ministry of Justice see European Commission of Human Rights, Yearbook of the European Convention on Human Rights XXI, p. 418; as to the construction of international treaties, the principle of independence precludes that the courts consider themselves bound by the interpretation of the executive, see Beaumartin v. France, Ser. A, No. 296-B, see Leigh, para. 28.

44. ECHR, Benthem v. Netherlands, Ser. A, No. 97, para. 38.

45. ECHR, Van de Hurk v. Netherlands; Ser. A, No. 288, para. 28; see as to sentences being changed by prison boards Sarre, p. 16.

46. This was recently held by the European Court of Human Rights in a case concerning an arbitration award against Greece, Stran Greek Refineries and Straties Andreadis v. Greece, Ser. A, No. 301-B, para. 50. In the view of the author, the reasoning is generally applicable to criminal proceedings where the state, depending on the national legal system, often is itself a party to the proceedings but in any event has its own (public) interest in prosecuting criminal offences.

47. Id., para. 45 (but see however the dissenting opinions of Martens J. and Bonnici J.); see also the earlier judgements Ringeisen v. Austria (No. 1), Ser. A, No. 13; Le Compte, van Leuven and De Meyere v. Belgium (note 15), para. 55; H. v. Belgium, Ser. A, No. 127, para. 50; Benthem v. Netherlands (note 44), para. 40; Beaumartin v. France (note 43), para. 38.

48. Inter-American Commission on Human Rights: "It must also be borne in mind that far from being judicial courts, they [the Anti-Somoza Courts in Nicaragua] are administrative tribunals that are subject to the Ministry of Justice." Annual Report of the Inter-American Commission on Human Rights 1982-1983, OEA/Ser.L/V/II.61, Doc. 22 rev. 1, 18.

49. ECHR, Campbell and Fell v. U.K., (note 32), para. 78; European Commission of Human Rights, Decisions and Reports 22, pp. 220-221.

50. In addition, institutional independence is concerned, inter alia, with regard to the assignment of cases within the court, the assessment and promotion of judges, transference of judges to other courts and judicial responsibility.

51. See ECHR, Lithgow et at. v. UK, Ser. A, No. 102, para. 201.

52. See note 36 above.

53. See for a comparative analysis Singhvi (note 3), E/CN.4/Sub.2/1985/18/Add. 1, para. 109; for the member states of the Council of Europe see Council of Europe, The Role of the Judicial Service Commission, 1995; for a number of states of the Anglo-American law tradition see Hugh Corder, The Appointment of Judges: Some Comparative Ideas, Stellenbosch Law Review, vol. 3, 1992, p. 207; see in addition the country reports on a number of European states in: Annuaire Européen D'Administration Publique, vol. 14, 1991, p. 1; for a comparative analysis see Luis María Diez-Picazo, Notas de Derecho Comparado sobre la Independencia Judicial, Revista Española de Derecho Constitucional, vol. 12, 1992, p. 19.

54. See Frase, p. 42 (re-election of state judges); for the election of Justices of the Peace see Constitution of Peru, art. 152 (1); Constitution of Colombia, art. 247 (2); in Switzerland the judges at the cantonal courts are likewise elected by the people of the canton concerned, see Y. Hangartner, Grundzüge des Schweizerischen Staatsrechts, vol. 1, 1980, p. 147.

55. For the judges of the Swiss Federal Court, see art. 85 (no. 4), 107 (1) of the Swiss Constitution.

56. See Dickson, p. 26 (England); Roach/Friedland, p. 3 (Canada); Frase, p. 42 (federal judges by the President; state judges by the governors) (US), Garde, p. 23 (Denmark).

57. Constitution of Mexico, art. 96 (Supreme Court judges), see Sarre, p. 15.

58. Motala, p. 23 (South Africa); Feldman, p. 1 (Israel); Sarre, p. 15 (Mexico); Rzeplinski, p. 21 (Poland); Constitution of France, art. 65 (5); Constitution of Uganda, art. 84 (2) (puisne judges of the High Court); Constitution of Russia, art. 128 (1); Constitution of Senegal, art. 80ter (1). -- The judicial service commission might, however, exert a consultative function only, see Constitution of Malaysia art. 122B; Shankar, p. 5.

59. Constitution of Japan, art. 80 (1); Constitution of Mexico, art. 97 (1); Constitution of Chile, art. 75 (3); in addition, in a number of Swiss cantons, judges of lower courts are appointed by the judges of the cantonal court; see Johannes Dorn, Guaranteeing the Independence of Judges in Western Europe, in: Council of Europe (note 53), p. 134.

60. There are basically two models: in the first model the commission is composed of members of the Government and of judges of higher courts ("French model", see Constitution of France, art. 65); in the second the commission consists of representatives of the executive and of the legislative branch.

61. ⁶¹ See note 5, however, according to the Human Rights Committee the manner in which judges are appointed and the qualifications of appointment have a bearing on judicial independence (General Comment 13, UNDoc. HRI/GEN/1, para. 3); see also, for example, Campbell and Fell v. UK (note 49), para. 78; to which, in turn, the Inter-American Commission on Human Rights refers with approval, see Report No. 1/95 (Case 11.006, Peru), Annual Report 1994, OEA/Ser.L/V/II.88, Doc. 9 rev, 95.

62. See Singhvi, note 53.

63. For the principle of non-discrimination, see Basic Principles on the Independence of the Judiciary (note 5), para. 10.

64. With regard to military courts, see Sutter v. Switzerland, Decision and Reports 16, p. 173: "These judges are appointed by the Federal Council, i.e. the Government, for 3 years. This nomination procedure could not itself affect the tribunal's independence." See also ECHR, Campbell and Fell v. UK (note 49), para. 79

65. ECHR, Holm v. Sweden (note 19); for the problem of lay assessors nominated by, and having close links with, two associations which had interests contrary to those of one of the parties, see Langborger v. Sweden, Ser. A, No. 155.

66. Id., para. 30.

67. Id., para. 32.

68. For those states that lay down incompatibilities on the level of constitutional law see e.g. Constitution of Greece, art. 89; Constitution of Belgium, art. 156; Constitution of Ireland, art. 35 (3); Constitution of Belarus, art. 111; Constitution of Mexico, art. 101; Constitution of Peru, art. 153 and 146; Constitution of Brazil, art. 95 (1).

69. Sramek v. Austria, Ser. A, No. 84, para. 42; see also Ettl v. Austria, Ser. A, No. 117, para. 38.

70. Decision No. 40/1993 (Djibouti), UN Doc. E/CN.4/1994/27, p. 125.

71. The Constitutional Rights Project (in respect of Wahab Akamu, G. Adega and others) v. Nigeria (60/91), concerning a special court under the Nigerian Robbery and Firearms (Special Provision) Decree where the court was composed of one judge and one member of the military and the police force respectively; The Constitutional Rights Project (in respect of Zamani Lakwot and 6 others) v. Nigeria (87/93) concerning the Nigerian Civil Disturbances (Special Court) Act which provided for the tribunal to consist of one judge and four members of the military. Note -- the African Commission considered the specific composition of the court as an infringement upon the right to an impartial tribunal (art. 7 of the Convention), without referring to the state obligation to secure the independence of the courts (art. 26 of the Convention).

72. See Annual Report of the Inter-American Commission on Human Rights 1982-1983 (note 47), p. 18.

73. There is, first of all, support for this view in the jurisprudence of the European Court of Human Rights; see Sramek v. Austria (note 69), para. 42: "Where, as in the present case, a tribunal's members include a person who is in a subordinate position . . . vis-à-vis one of the parties, litigants may entertain a legitimate doubt about that person's independence. Such a situation seriously affects the confidence which the courts must inspire in a democratic society." In addition, the state practice as to incompatibilities of judicial functions show that judges are generally -- irrespective of the particular composition of the court -- excluded by any position in the executive branch.

74. See generally Singhvi (note 53), para. 125.

75. Campbell and Fell v. UK (note 49), para. 80.

76. Report No. 1/95 (note 61), p. 95

77. See Dickson, p. 41 as concerns judges of the High Court.

78. ⁷⁸ See Roach/Friedland, pp. 2-3 and 9; see also Constitution of Ireland, art. 35 (4.1.); Constitution of Australia, art. 72 (1)(ii).

79. Constitution of France, art. 65 (6).

80. Constitution of Morocco, arts. 84, 85.

81. ⁸¹ See Nasaba, p. 31.

82. Constitution of Germany, art. 98 (2) (federal judges by Federal Constitutional Court).

83. See Garde, p. 23 (Denmark); Rzeplinski, p. 22 (Poland); for the Supreme Disciplinary Court in Greece, see Constitution of Greece, art. 91 (1).

84. The Constitution of Peru provides that the National Council of the Magistracy which is the competent body for the removal for judges "is independent", Constitution of Peru, art. 150 (2); see also Constitution of Egypt, art. 172.

85. See Report No. 1/95 (note 61), p. 95; European Commission of Human Rights, Zand v. Austria (note 36), p. 83. As to decrees of the government on which judicial decisions to dismiss judges can be based, see Inter-American Commission on Human Rights, Report No. 28/94 (Case 10.026, Panama), Annual Report 1994, (note 61), p. 67

86. See e.g. ECHR, Campbell and Fell v. UK (note 49), para. 80.

87. Id., (own emphasis).

88. See in this regard the later decision of the European Court of Human Rights, Van den Hurk v. Netherlands (note 45), para. 50, where the European Court rejected the view of the government that the power of the Crown not to implement judgements of a particular court was no violation of article 6 of the Convention since (what was not disputed) the Crown had in practice never exercised this power. However, the European Court did not find an infringement based upon the court's independence but held that the Crown's power deprived the court of one of the basic attributes of a tribunal.

89. Human Rights Committee, Communication No. 263/1987 (Gonzáles del Río v. Peru), CCPR/C/46/D/263/1987, para. 5.2.