The responsibility of judges to uphold the rule of law and comply with human rights standards is clearly pointed out by international and regional (human rights) systems. But in case judges do not respect these regulations, certain mechanisms of accountability are also needed to hold judges responsible for their wrongdoings. The UN Human Rights Committee, among others, has therefore stressed that “no judge who has committed serious violations recognised as criminal under either national or international law should be held immune from legal responsibility[1]. Judges should be held accountable for their actions and be investigated and sanctioned when they engage in improper behaviour. Hence, the Magna Carta of Judges requires each state to have a statute or a fundamental charter applicable to judges in place that “defines the misconduct which may lead to disciplinary sanctions as well as the disciplinary procedure”[2]. Judges should be held “accountable for their conduct to appropriate institutions established to maintain judicial standards”[3]. Ideally, these institutions should be independent, impartial and governed by a (purely) judicial body or any outside body independent of the executive branch[4].

 

Reasons for dismissing judges may be formulated differently from region to region. But there is common ground to remove justices from office when they are unable to perform their judicial duties, such as “incapacity or behaviour that renders them unfit to discharge their duties”[5], “gross misconduct incompatible with judicial office, or for physical or mental incapacity that prevents them from undertaking their judicial duties”[6], “serious grounds of misconduct or incompetence”[7] or “incapacity, conviction of a serious crime, gross incompetence, or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary"[8]. Taking this into account, a judge who violates human rights commits a gross misconduct. Accordingly, “judicial perpetration or complicity in gross human rights violations [meets] the threshold for removal from office”[9].

 

Nevertheless, the existence of these rules does not guarantee their adoption in practice. There are many judiciaries across the globe that are totally subservient to political authorities and suffer from weak national judicial accountability mechanisms. Judges who are, for example, threatened by short-term assignments and mass removals of colleagues, who opposed government policies, are more likely to support government policies and turn against regime critics. In that case, chances that judicial violations will be reviewed by an independent and impartial entity and judges will face the consequences for their politically-motivated actions are low as the government will probably control the judicial discipline as well[10]. Although the international community made several attempts to address this problem, global mechanisms that effectively tackle the misconduct of judges are quasi non-existent. International criminal trials held against individual judges were few[11] but there exist several (non-criminal and non-judicial) instruments developed by the UN that have the potential to address judicial violations. This includes the UN Charter-based bodies and the expert committees of the UN treaty bodies, which assess the implementation of the core international human rights treaties[12]. Additional complaints and reporting mechanisms are provided by the UN Human Rights Council and special procedures, such as the UN Special Rapporteurs and the UN Working Groups, which, as against the UN treaty bodies, have the capacity to monitor the human rights situation of all UN member states. In view of judicial violations, the UN Special Rapporteur on the Independence of Judges and Lawyers, the UN Working Group on Arbitrary Detention and the UN treaty bodies (such as the UN Human Rights Committee and the UN Committee against Torture) have commented on the involvement of judges in the context of human rights violations[13]. But none of these mechanisms provides a permanent monitoring or audit procedure that periodically reviews and sanctions individual judges or the judiciary as a whole for human rights violations. They either refer to cases addressing judicial misconduct only occasionally, are mandated only to adopt “concluding observations” (such as prescribing remedies for victims or consequences for governments) or have no individual complaint procedure in place (in case of the UN Special Rapporteur and the UN Working Groups)[14]. Besides, addressing judicial accountability falls considerable short at regional level. In Europe, the European Court of Human Rights has the authority to review a country’s judicial wrongdoings and issue decisions on individual complaints of human rights abuse perpetrated by or with complicity of justices. However, cases focusing on politically-motivated convictions by judicial authorities are generally rare. Furthermore, other entities, such as the Consultative Council of European Judges (CCJE) of the Council of Europe and the Organisation for Security and Co-operation in Europe (OSCE), lack special reporting mechanisms for judicial misconduct.

 

Footnotes

 

[1] UN Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), supra note 12, para 18.

[2] Magna Carta of Judges, rule 19.

[3] Bangalore Principles, Preamble.

[4] In some cases, it may also be seen as appropriate to appoint a limited number of non-judges, who have no ties to the executive or legislative branch, to oversee the judiciary and to impeach senior judges (such as judges of the supreme court) by parliament with the recommendation of, for instance, a judicial council or another independent and impartial outside body. Cf. Consultative Council of European Judges (CCJE), Opinion No. 10 on The Council for the Judiciary in the service of society (2007), para 78; Inter-American Commission on Human Rights, Guarantees for the independence of justice operators (2013), para 244.

[5] Basic Principles on the Independence of the Judiciary, para 18.

[6] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, article A 4(p).

[7] UN Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), supra note 45, para 20.

[8] Bangalore Implementation Measures, article 16.1.

[9] International Commission of Jurists, Judicial Accountability: A Practitioner’s Guide (ICJ 2016), p 25.

[10] See also Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007), supra note 45, para 20; IBA Minimum Standards of Judicial Independence, article 4(a).

[11] Such as United States of America v Alstötter et al 3 T.W.C. 1 (1948).

[12] For more detailed information on UN treaty bodies, see UN Office of the UN High Commissioner for Human Rights, Human rights treaty bodies, accessed on 24 November 2016.

[13] See for example UN Human Rights Committee, Anthony Fernando v Sri Lanka, Communication No. 1189/2003, UN Doc CCPR/C/83/D/1189/2003 (2005), para 9; UN Committee against Torture, Imed Abdelli v Tunisia, Communication No. 188/2001, UN Doc CAT/C/31/D/188/2001 (2003), paras 10.5-10.8..

[14] See UN Working Group on Arbitrary Detention, Opinion, Thulani Maseko v Swaziland, UN Doc A/HRC/WGAD/2015/6 (2015), paras 26-30, 36.

Monitoring Mechanisms