Individual judges and the judiciary as a whole must be independent and impartial.[1] The requirement that courts and other tribunals be effective, independent and impartial “is an absolute right that is not subject to any exception.”[2]
Any body (including judicial, administrative and legislative organs) that, through its decisions, determines individual rights, must be independent and impartial and respect fair trial guarantees.[3]
The State must guarantee the independence of the judiciary as an overall institution and separate branch of government, as well as the independence and impartiality of each individual judge in relation to each case that comes before him or her.[4]
International standards set out specific safeguards of judicial independence[5]; these are described in greater detail in the sections that follow.
- 1. The requirement embodies the principle of the rule of law, the right to a fair trial, the right to liberty and security of the person, and the right to effective remedy for violations of human rights. See, among others, Universal Declaration of Human Rights, Article 10;International Covenant on Civil and Political Rights (ICCPR), Article 14(1);
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
American Convention on Human Rights (AmCHR), Article 8(1);All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
Basic Principles on the Independence of the Judiciary, Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 (hereinafter: ‘UN Basic Principles on the Independence of the Judiciary’), Principle 1 and 2;Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, Article 1;1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
Judges shall in all their work ensure the rights of everyone to a fair trial. They shall promote the right of individuals to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of their civil rights and obligations or of any criminal charge against them. The independence of the judge is indispensable to impartial justice under the law. It is indivisible. All institutions and authorities, whether national or international, must respect, protect and defend that independence.Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, Value 1and 2.Independence. Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
Generally, see also International Commission of Jurists, International principles on the independence and accountability of judges, lawyers and prosecutors – Practitioners’ guide, no. 1 (2007).↵Impartiality. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
- 2. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19.↵
The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
- 3. Inter-American Court of Human Rights, Constitutional Court v. Peru, judgment (31 January 2001), para. 71;Inter-American Commission of Human Rights, Guarantees for the Independence of Justice Operators, OAS Doc. OEA/Ser.L/V/II. (2013), para. 30.
Although the jurisdictional function belongs, in particular, to the Judiciary under the separation of powers that exists in the rule of law, other public organs or authorities may exercise functions of the same type. In other words, when the Convention refers to the right of everyone to be heard by a competent judge or court to “determine his rights”, this expression refers to any public authority, whether administrative, legislative or judicial, which, through its decisions determines individual rights and obligations. For that reason, this Court considers that any State organ that exercises functions of a materially jurisdictional nature has the obligation to adopt decisions that are in consonance with the guarantees of due legal process in the terms of Article 8 of the American Convention. (footnotes omitted)
American Convention on Human Rights (AmCHR), Article 8(1);The principle of the independence of the Judiciary has been recognized as “international custom and general principle of law” and has been established in numerous international treaties. The independence of any body or organ that performs jurisdictional functions is a condition sine qua non for the observance of the standards of due process as a human right. The lack of such independence affects exercise of the right of access to justice and creates mistrust and even fear of the courts, which discourages those who would otherwise turn to the courts for justice. (footnotes omitted)
International Covenant on Civil and Political Rights (ICCPR), Article 14(1);Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
↵All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
- 4. Inter-American Court of Human Rights, Apitz Barbera et al. v. Venezuela, judgment (5 August 2008), para. 55;Inter-American Court of Human Rights, Reverón Trujillo v. Venezuela, judgment (30 June 2009), para. 67;
In this regard, the Court underscores that, albeit independence and impartiality are related, it is also true that they each have a legal content of their own. Thus, this Court has said that one of the principal purposes of the separation of public powers is to guarantee the independence of judges. Such autonomous exercise must be guaranteed by the State both in its institutional aspect, that is, regarding the Judiciary as a system, as well as in connection with its individual aspect, that is to say, concerning the person of the specific judge. The purpose of such protection lies in preventing the Judicial System in general and its members in particular, from finding themselves subjected to possible undue limitations in the exercise of their functions, by bodies alien to the Judiciary or even by those judges with review or appellate functions. (footnotes omitted)
Inter-American Court of Human Rights, Quintana Coello et al. v. Ecuador, judgment (23 August 2013), para. 154.Now, judges, unlike other public officials, have reinforced guarantees due to the necessary independence of the Judicial Power, which the Court has understood as “essential for the exercise of the judicial function.” The Tribunal has said that one of the main objectives of the separation of the public powers is the guarantee of the judges’ independence. Said autonomous exercise shall be guaranteed by the State both in its institutional aspect, that is, with regard to the Judicial Power as a system, as well as in connection with its individual aspect, that is, with regard to the specific judge as an individual. The objective of the protection lies in avoiding that the justice system in general and its members specifically be submitted to possible improper restrictions in the exercise of their duties by bodies foreign to the Judicial Power or even by those judges that exercise duties of revision or appeal. Additionally, the State has the duty to guarantee an appearance of independence of the Magistracy that inspires legitimacy and enough confidence not only to the parties, but to all citizens in a democratic society.
↵Finally, the Court has emphasized that the State must guarantee the independent exercise of the judiciary, both in its institutional aspect, that is, in terms of the judicial branch as a system, and in its individual aspect, that is, in relation to a particular individual judge. The Court deems it pertinent to point out that the objective dimension is related to
essential aspects for the Rule of Law, such as the principle of separation of powers, and the important role played by the judiciary in a democracy. Consequently, this objective dimension transcends the figure of the judge and collectively affects society as a whole. Likewise, there is a direct connection between the objective dimension of judicial independence and the right of judges to have access to and remain in public service, under general conditions of equality, as an expression of their guaranteed tenure. (footnotes omitted) - 5. See Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 19;UN Basic Principles on the Independence of the Judiciary; Inter-American Court of Human Rights, Camba Campos et al. v. Ecuador, Judgment (28 August 2013), para. 197.
The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
See also International Commission of Jurists, International principles on the independence and accountability of judges, lawyers and prosecutors – Practitioners’ guide, no. 1 (2007), pp. 3-61.↵The foregoing elements allow the Court to clarify some aspects of its case law. For instance, in the case of Reverón Trujillo v. Venezuela, the Court indicated that the right to an independent judge established in Article 8(1) of the Convention only signified a right of the individual to be tried by an independent court or judge. Nevertheless, it is important to point out that judicial independence should not only be analyzed in relation to the defendant, because the judge must have a series of guarantees that make judicial independence possible. The Court finds it pertinent to clarify that the violation of the guarantee of judicial independence, in relation to the tenure and stability of judges in their functions, must be analyzed in light of the Convention-based rights of judges when they are affected by a decision of the State that arbitrarily affects their term of appointment. In this sense, the institutional guarantee of judicial independence is directly related to a right of the judge to remain in office, as a result of the guarantee of tenure in office. (footnotes omitted)
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