My discussion in front of this panel of distinguished participants aims at mentioning in advance some theses in order to be thought-provoking and why not generate a debate; theses which in my view are conceptual and systemic on a number of issues related to independence, impartiality as well as the accountability of magistrates.
The independence of judges and tribunals is one of the basic principles of a democratic state. Independence is a prerequisite for the rule of law. As such, the independence of the judiciary upholds the rule of law and it is crucial to the functioning of democracy and the respect for human rights.
While countries in process of transition from authoritarianism to democracy have to face an aggressive “influence” of the executive or legislature on the judiciary, seeking and applying the necessary mechanisms to protect the independence of the judiciary remains a challenge even for the countries with developed democracy.
There is an important tendency to ensure the independence of the judiciary through formal guarantees and fixed procedures. Even though it is important to acknowledge that the judicial systems in different countries have evolved differently or have had different consolidation paths, the functions they perform, the way these functions are exercised, the structural organizations, as well as a number of concepts, which have to do with “substantial independence” or “structural independence”, are joint issues and challenges for all countries. However, it is debatable whether a uniform international standard should be applied.
There are a number of international legal acts that aim to guarantee the independence of the judiciary, such as Article 14 of the International Covenant on Civil and Political Rights, Article 6 of the European Convention on Human Rights, Article 8 of the American Convention on Human Rights, Article 26 of the African Charter on Human and Peoples’ Rights, as well as a number of soft laws, of a recommendatory nature or opinions.
These principles or rights are legally binding on the State party to participate in such acts of an international character. However, states tend to adapt and change the way they are implemented. This has nothing to do with denying the validity of these principles or rights, but with emphasizing the fact that the way they are applied in a given country coincides with the historical, social, political or legal context of that country.
In this context, even the European Court of Human Rights (ECHR) through its jurisprudence has left room for member states to evaluate how to organize the judiciary as long as this form of organization and functioning provides formal guarantees that protect magistrates from interference in litigation (Belilos v. Switzerland; Campbell and Fell v. The United Kingdom; Sramek v. Austria; Ninn-Hansen v. Denmark; Philippines v. San Marino,). Although the notion of separation of powers has become increasingly important in the jurisprudence of the ECHR, the norms of the Convention as well as the jurisprudence of the ECHR do not oblige states to conform to strict notions of a theoretical constitutional nature, regarding the chosen way or interaction between organs of power. The question is whether or not they have met the requirements of the Convention, according to the autonomous interpretation of the notions of Article 6 of the ECHR (Henryk Urban and Ryszard Urban v. Poland, § 46).
In order to make a more thorough examination of the issues of independence we should refer to and consider the judgments of the European Court of Human Rights in Campbell and Fell v UK and Incal v Turkey, or Findlay k. United Kingdom, in which the Court have sanctioned “independence” claims which include: (i) the appointment of judges; (ii) the duration of their term of office; (iii) the existence of guarantees against outside pressures, (iv) whether the body presents an appearance of independence.
At the same time, the ECHR through its jurisprudence has elaborated a number of issues which are related to the criteria of the tribunal impartiality, within a due process of law, according to the requirements of Article 6 of the ECHR.
“There are two real components in the independence of the judiciary: the impartiality and the independence of the judge and the tribunal. The principle of impartiality implies the absence of prejudice by judges related to the case at hand as well as their not acting in such a way as to undermine the interests of one of the parties. A court must be impartial not only formally but also expressly. Not only does the right to be tried before a competent, independent and impartial tribunal established by law require that justice be done, but it also requires that it shall be seen to be done. The respect for the principle of impartiality must be verified by applying the subjective test, which deals with verifying the conviction or personal interest of a judge in a certain case and the objective test, which examines whether or not the judge has provided sufficient procedural guarantees in order to exclude any doubt (Kyprianou v. Cyprus; Micallef v. Malta; Piersack v. Belgium; Grieves v. the United Kingdom; Hauschildt v. Denmark)”.
The most important consequence of the magistrates’ independence principle is the irresponsibility for the decisions given according to their conviction, based on law. However, the consequence of the power and trust that society gives to magistrates is such that there must be several ways to hold them accountable, including their removal from duties in case of violations which justify this action. It must be acknowledged that increasing the competence and independence of magistrates must be accompanied by an effective accountability system.
To this end, it is necessary for the governing bodies of the judiciary to have an active approach to the accountability system of magistrates by applying new approaches, which consist in the combined application of the standards of their responsibility and liability. When referring to the concept of “responsibility of magistrates”, we must take into account the fact that this concept is different from that of their “liability”, concepts which together constitute the “accountability” system of magistrates.
The accountability system of magistrates should not be abused by other bodies of power, in order to control and violate judicial independence. The accountability system should be guided primarily by the notion of responsibility of magistrates, as a preventive mechanism that ensures the building of an independent and impartial judicial system.
This should be achieved through the application of policies or measures which aim at: (i) recruitment or selection of magistrates based on the merit selection system; (ii) their professional qualifications; (iii) not removing from office; (iv) substantial independence; (v) structural and financial independence; (v) immunity and physical integrity; (vi) the exercise of control by the higher courts based on the principles of the internal independence of magistrates, as well as the exercise of an informal control through international jurisprudence or legal doctrine.
If these remedies are not effective, then in exceptional cases as well as depending on certain circumstances, measures on their criminal, civil or disciplinary liability may be applied within a regular legal process.
This is because independence is not a privilege, but a responsibility. In this case, there must be an ongoing process of balancing independence and accountability. These processes must be characterized by action and counter-reaction at the same time. The more powers the judiciary possesses, the higher the demands for accountability must be.
The accountability process is in itself a relationship (give an account) between individuals. In this context, a magistrate should not only be responsible for respecting legal norms, but he should also be responsible towards people, society and state authorities. Thus, directly affecting the public perception and trust in the justice system.
Public trust is not an indefinite notion, but it finds support in the core values and standards of ethics and rules of conduct of magistrates. If magistrates do not fully fulfill their role in administering and ensuring justice in society there is a risk of losing public trust in the justice system. Public trust and respect for the judiciary are guarantees of democracy and stability in a democratic society.
The citizens’ level of trust of in the judiciary is a very important element for the justice system. In order to build credibility, we must ensure a culture of accountability in the justice system. In a democracy, justice is given in the name of the citizens. Public trust is essential to the rule of law, and this legitimacy requires the commitment of magistrates to maintain that trust. In this context, it is worth noting that the independence of the judiciary should not be seen as a privilege of magistrates, but as a right of citizens.
The level of trust of citizens in the judiciary is an important indicator to assess how the justice system and the rule of law work in a country. At the same time, public trust serves as an important indicator of the balance that must exist between the independence and accountability of the judiciary. When the public trust is low, it shows that the independence of magistrates has prevailed over the accountability system, whereas when the public trust is high, this is a clear indication of the existence of a fair balance between independence and accountability.
However, at the end of my speech I must emphasize that guaranteeing the independence of the judiciary requires time and constant efforts. Establishing the institutions is an aspect of the rule of law and its success definitely depends on the political will, mentality and the stage of development of a country’s society.
The independence of the judiciary cannot be guaranteed if there is no will on the part of a society or political system to create a spirit of stability and democracy. The independence of the judiciary definitely requires a non-authoritarian context and mentality. The conclusion that “There is no judicial independence without democracy and no democracy without judicial independence” may be disappointing at first glance, but this conclusion clearly argues that democracy and the rule of law are inextricably linked.
The independence of the judiciary can be accompanied by structural, institutional and legal changes, yet it can only succeed when the society of a country has faith in the legitimacy of the judiciary and shows a real commitment to this standard. Although international actors can play a supporting role in this development process, they cannot make up for a country’s lack of domestic initiative.
The way the independence of the judiciary is guaranteed depends on the judicial culture of a country which reflects its particular historical experiences in relation to political or social circumstances. Special measures that have been adopted or adapted in a particular country in order to ensure the independence of the judiciary, which may relate to the recruitment and career of magistrates, their tenure, their immunity, their salaries, their disciplinary, civil or criminal liability, their substantial or structural independence, training or physical security, are not necessarily an indicator of guaranteeing the standard of independence of the judiciary, as these measures can be applied and yield different results depending on the legal, political and social context of each country.
The process of ensuring the independence and impartiality of the magistrates is a dynamic and constantly evolving process. Guaranteeing this independence requires an ongoing need to respond to the challenges of identifying new security mechanisms for this standard. Every model on the establishment and application of the judicial independence standard is different and should be understood as a result of different historical developments in a certain country. This goal is achieved through a process of change, which must respond to public demands and new challenges through the gradual modification of a country’s traditions.
Thank you!