8.8 Recommendation No. R (94) 12

Scope of the recommendation

1.

This recommendation is applicable to all persons exercising judicial functions, including those dealing with constitutional, criminal, civil, commercial and administrative law matters.

2.

With respect to lay judges and other persons exercising judicial functions, the principles laid down in this recommendation apply except where it is clear from the context that they only apply to professional judges, such as regarding the principles conceming the remuneration and career of judges.

1.

All necessary measures should be taken to respect, protect and promote the independence of judges.

2.

In particular, the following measures should be taken:

a.

The independence of judges should be guaranteed pursuant to the provisions of the Convention and constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in intemal law. Subject to the legal traditions of each state, such rules may provide, for instance, the following:

i.

decisions of judges should not be the subject of any revision outside any appeals procedures as provided for by law;

ii.

the terms of office of judges and their remuneration should be guaranteed by law;

iii.

no organ other than the courts themselves should decide on its own competence, as defined by law;

iv.

with the exception of decisions on amnesty, pardon or similar, the govemment or the administration should not be able to take any decision which invalidates judicial decisions retroactively.

b.

The executive and legislative powers should ensure that judges are independent and that steps are not taken which could endanger the independence of judges.

c.

All decisions conceming the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the govemment and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.However, where the constitutional or legal provisions and traditions allow judges to be appointed by the govemment, there should be guarantees to ensure that the procedures to appoint judges are transparant and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above. These guarantees could be, for example, one or more of the following:

i.

a special independent and competent body to give the govemment advice which it follows in practice; or

ii.

the right for an individual to appeal against a decision to an independent authority; or

iii.

the authority which makes the decision safeguards against undue or improper influences.

d.

In the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such marmer. Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary.

e.

The distribution of cases should not be influenced by the wishes of any party to a case or any person concemed with the results of the case. Such distribution may, for instance, be made by drawing of lots or a system for automatic distribution according to alphabetic order or some similar system.

f.

A case should not be withdrawn from a particular judge without valid reasons, such as cases of serious illness or conflict of interest. Any such reasons and the procedures for such withdrawal should be provided for by law and may not be influenced by any interest of the govemment or administration. A decision to withdraw a case from a judge should be taken by an authority which enjoys the same judicial independence as judges.

3.

Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office.

1.

All persons connected with a case, including state bodies or their representatives, should be subject to the authority of the judge.

2.

Judges should have sufficient powers and be able to exercise them in order to carry out their duties and maintain their authority and the dignity of the court.

1.

Proper conditions should be provided to enable judges to work efficiently and, in particular, by.

a.

recruiting a sufficient number of judges and providing for appropriate train ing such as practical training in the courts and, where possible, with other authorities and bodies, before appointment and during their career. Such training should be free of charge to the judge and should in particular concern recent legislation and case-law. Where appropriate, the training should include study visits to European and foreign authorities as well as courts;

b.

ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities;

c.

providing a clear career structure in order to recruit and retain able judges;

d.

providing adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that judges can act efficiently and without undue delay;

e.

taking appropriate measures to assign non-judicial tasks to other persons, in conformity with Recommendation No. R (86) 12 concerning measures to pre-vent and reduce the excessive workload in the courts.

2.

All necessary measures should be taken to ensure the safety of judges, such as ensuring the presence of security guards on court premises or providing police protection for judges who may become or are victims of serious threats.

1.

In proceedings, judges have the duty to protect the rights and freedoms of all persons.

2.

Judges have the duty and should be given the power to exercise their judicial responsibilities to ensure that the law is properly applied and cases are dealt with fairly, efficientiy and speedily.

3.

Judges should in particular have the following responsibilities:

a.

to act independently in all cases and free from any outside influence;

b.

to conduct cases in an impartial manner in accordance with their assessment of the facts and their understanding of the law, to ensure that a fair hearing is given to all parties and that the procedural rights of the parties are respected pursuant to the provisions of the Convention;

c.

to withdraw from a case or decline to act where there are valid reasons, and not otherwise. Such reasons should be defined by law and may, for instance, re-late to serious health problems, conflicts of interest or the interests of justice;

d.

where necessary, to explain in an impartial manner procedural matters to parties;

e.

where appropriate, to encourage the parties to reach a friendly settlement;

f.

except where the law or established practice otherwise provides, to give clear and complete reasons for their judgments, using language which is readily understandable;

g.

to undergo any necessary training in order to carry out their duties in an efficient and proper manner.

1.

Where judges fail to carry out their duties in an efficient and proper manner or in the event of disciplinary offences, all necessary measures which do not prejudice judicial independence should be taken. Depending on the constitutional principles and the legai provisions and traditions of each state, such measures may include, for instance:

a.

withdrawal of cases from the judge;

b.

moving the judge to other judicial tasks within the court;

c.

economic sanctions such as a reduction in salary for a temporary period;

d.

suspension.

2.

Appointed judges may not be permanently removed from office without valid reasons until mandatory retirement. Such reasons, which should be defined in precise terms by the law, could apply in countries where the judge is elected for a certain period, or may relate to incapacity to perform judicial functions, commission of criminal offences or serious infringements of disciplinary rules.

3.

Where measures under paragraphs 1 and 2 of this article need to be taken, states should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself. The law should provide for appropriate procedures to ensure that judges in question are given at least all the due process requirements of the Convention, for in stance that the case should be heard within a reasonable time and that they should have a right to answer any charges.