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
Independence of the judiciary
| Freedom of expression and association
| Qualifications, selection
and training | Conditions
of service and tenure | Discipline,
suspension and removal
Whereas in the Charter of the United
Nations the peoples of the world affirm, inter alia, their determination
to establish conditions under which justice can be maintained to
achieve international co-operation in promoting and encouraging
respect for human rights and fundamental freedoms without any discrimination,
Whereas the Universal Declaration
of Human Rights enshrines in particular the principles of equality
before the law, of the presumption of innocence and of the right
to a fair and public hearing by a competent, independent and impartial
tribunal established by law,
Whereas the International Covenants on Economic, Social
and Cultural Rights and on Civil and Political Rights both guarantee
the exercise of those rights, and in addition, the Covenant on Civil
and Political Rights further guarantees the right to be tried without
undue delay,
Whereas frequently there still exists
a gap between the vision underlying those principles and the actual
situation,
Whereas the organization and administration
of justice in every country should be inspired by those principles,
and efforts should be undertaken to translate them fully into reality,
Whereas rules concerning the exercise
of judicial office should aim at enabling judges to act in accordance
with those principles,
Whereas judges are charged with the ultimate decision
over life, freedoms, rights, duties and property of citizens,
Whereas the Sixth United Nations Congress
on the Prevention of Crime and the Treatment of Offenders, by its
resolution 16, called upon the Committee on Crime Prevention and
Control to include among its priorities the elaboration of guidelines
relating to the independence of judges and the selection, professional
training and status of judges and prosecutors,
Whereas it is, therefore, appropriate
that consideration be first given to the role of judges in relation
to the system of justice and to the importance of their selection,
training and conduct,
The following basic principles, formulated
to assist Member States in their task of securing and promoting
the independence of the judiciary should be taken into account and
respected by Governments within the framework of their national
legislation and practice and be brought to the attention of judges,
lawyers, members of the executive and the legislature and the public
in general. The principles have been formulated principally with
professional judges in mind, but they apply equally, as appropriate,
to lay judges, where they exist.
Independence of the
judiciary [top]
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.
3. The judiciary shall have jurisdiction over all
issues of a judicial nature and shall have exclusive authority to
decide whether an issue submitted for its decision is within its
competence as defined by law.
4. There shall not be any inappropriate or unwarranted
interference with the judicial process, nor shall judicial decisions
by the courts be subject to revision. This principle is without
prejudice to judicial review or to mitigation or commutation by
competent authorities of sentences imposed by the judiciary, in
accordance with the law.
5. Everyone shall have the right to be tried by ordinary
courts or tribunals using established legal procedures. Tribunals
that do not use the duly established procedures of the legal process
shall not be created to displace the jurisdiction belonging to the
ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary
entitles and requires the judiciary to ensure that judicial proceedings
are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member
State to provide adequate resources to enable the judiciary to properly
perform its functions.
Freedom of expression
and association [top]
8. In accordance with the Universal Declaration of
Human Rights, members of the judiciary are like other citizens entitled
to freedom of expression, belief, association and assembly; provided,
however, that in exercising such rights, judges shall always conduct
themselves in such a manner as to preserve the dignity of their
office and the impartiality and independence of the judiciary.
9. Judges shall be free to form and join associations
of judges or other organizations to represent their interests, to
promote their professional training and to protect their judicial
independence.
Qualifications, selection
and training [top]
10. Persons selected for judicial office shall be
individuals of integrity and ability with appropriate training or
qualifications in law. Any method of judicial selection shall safeguard
against judicial appointments for improper motives. In the selection
of judges, there shall be no discrimination against a person on
the grounds of race, colour, sex, religion, political or other opinion,
national or social origin, property, birth or status, except that
a requirement, that a candidate for judicial office must be a national
of the country concerned, shall not be considered discriminatory.
Conditions of service
and tenure [top]
11. The term of office of judges, their independence,
security, adequate remuneration, conditions of service, pensions
and the age of retirement shall be adequately secured by law.
12. Judges, whether appointed or elected, shall have
guaranteed tenure until a mandatory retirement age or the expiry
of their term of office, where such exists.
13. Promotion of judges, wherever such a system exists,
should be based on objective factors, in particular ability, integrity
and experience.
14. The assignment of cases to judges within the court
to which they belong is an internal matter of judicial administration.
Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy
with regard to their deliberations and to confidential information
acquired in the course of their duties other than in public proceedings,
and shall not be compelled to testify on such matters.
16. Without prejudice to any disciplinary procedure
or to any right of appeal or to compensation from the State, in
accordance with national law, judges should enjoy personal immunity
from civil suits for monetary damages for improper acts or omissions
in the exercise of their judicial functions.
Discipline, suspension
and removal [top]
17. A charge or complaint made against a judge in
his/her judicial and professional capacity shall be processed expeditiously
and fairly under an appropriate procedure. The judge shall have
the right to a fair hearing. The examination of the matter at its
initial stage shall be kept confidential, unless otherwise requested
by the judge.
18. Judges shall be subject to suspension or removal
only for reasons of incapacity or behaviour that renders them unfit
to discharge their duties.
19. All disciplinary, suspension or removal proceedings
shall be determined in accordance with established standards of
judicial conduct.
20. Decisions in disciplinary, suspension or removal
proceedings should be subject to an independent review. This principle
may not apply to the decisions of the highest court and those of
the legislature in impeachment or similar proceedings.
top |