As judges are tasked with the ultimate decision over life, freedoms, rights, duties and property of citizens[1], it is not surprising that international human rights norms are highly relevant to judges at all stages of their work (e.g. deciding whether the conditions for an arrest are met or while presiding trial proceedings)[2]. Specifically, the right to a fair trial, including the equality before the law, the presumption of innocence and the right to a fair and public hearing by a competent, independent and impartial court established by law, plays a central role in all their work[3].

 

The role of the judiciary is to guarantee the proper application of the law in an impartial, just, fair and efficient manner[4]. In view of criminal trials, a judge shall ensure that the defendant is represented by a lawyer and shall make decisions based on the application of legal rules, through legal reasoning and findings of facts that are based on evidence and analysis[5]. She or he shall safeguard the equality of arms between prosecution and defence, perform judicial duties without bias or prejudice towards any person or group on irrelevant grounds and avoid the use of contempt proceedings to restrict legitimate public criticism of the courts[6].

 

The importance of an independent judiciary is recognised by a number of international regulations. Key resources are many and include, inter alia, the UN’s Bangalore Principles of Judicial Conduct (“Bangalore Principles”), the “Kyiv Recommendations on Judicial Independence” of the Organisation for Security and Co-operation in Europe (OSCE), the “Magna Carta of Judges” of the Consultative Council of European Judges (CCJE) of the Council of Europe and the Universal Charter of the Judge of the International Association of Judges (“IAJ Charter”)[7]. For instance, the Bangalore Principles state that the protection of human rights “depends upon the proper administration of justice”, a competent, independent and impartial judiciary, and that human rights education is key to deliver justice. Judges should therefore keep up with the relevant developments of “international conventions and other instruments establishing human rights norms”[8]. Additionally, regional human rights systems, such as the European Court of Human Rights, have commented on and addressed the indispensable role played by independent courts in promoting human rights, in particular in protecting the right to a fair trial[9].

Footnotes

 

[1] Basic Principles on the Independence of the Judiciary, Preamble.

[2] Cf. Basic Principles on the Independence of the Judiciary, Preamble; IAJ Charter, article 1.

[3] Cf. Universal Declaration of Human Rights, UNGA Res 217 A (10 December 1948), article 10; Basic Principles on the Independence of the Judiciary, para 6; IAJ Charter, article 1; Magna Carta of Judges, rules 1 and 16.

[4] Magna Carta of Judges, rule 1.

[5] Bangalore Implementation Measures, para 9.5.

[6] Bangalore Principles, principle 5 and para 5.2; Magna Carta of Judges, rule 11.

[7] See for example Minimum Standards of Judicial Independence of the International Bar Association (1982), accessed on 24 November 2016; Montreal Declaration Universal Declaration on the Independence of Justice of the International Association of Judicial Independence and World Peace (1983), accessed on 24 November 2016; the UN Basic Principles on the Independence of the Judiciary (1985), accessed on 24 November 2016; Judges' Charter in Europe of the European Association of Judges (1997), accessed on 24 November 2016; the Universal Charter of the Judge of the International Association of Judges (1999), accessed on 24 November 2016; the Bangalore Principles of Judicial Conduct (2002), accessed 24 November 2016; the Burgh House Principles on the Independence of the International Judiciary of The Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals, in association with the Project on International Courts and Tribunals (2004), accessed on 24 November 2016; Commission for Democracy Through Law (Venice Commission): Judicial Appointments (2007), accessed on 24 November 2016; Recommendation CM/Rec(2010)12 of the Committee of Ministers to Member States on Judges: Independence, Efficiency and Responsibilities, accessed on 24 November 2016; Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia: Judicial Administration, Selection and Accountability of the Organisation for Security and Co-operation in Europe (2010), accessed on 24 November 2016; Magna Carta of Judges (Fundamental Principles) of the Consultative Council of European Judges (2010), accessed on 24 November 2016; London Declaration on Judicial Ethics and Judicial Ethics: Principles, Values and Qualities of the European Network of Councils for the Judiciary (2010), both accessed on 24 November 2016; Bologna and Milan Global Code of Judicial Ethics of the International Association of Judicial Independence and World Peace (2015), accessed on 24 November 2016.

[8] Bangalore Principles, Preamble.

[9] See, for instance, Klimentyev v Russia App no 46503/99 (ECHR, 23 May 2007).

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