Principles also establish that “[t]here shall not be any inappropriate or unwarranted
interference with the judicial process.”228
191. Nevertheless, the guarantee of stability and tenure for judges is not absolute.
International human rights law admits that judges may be removed for conduct that is
clearly unacceptable. In its General Comment No. 32, the Human Rights Committee
established that “[j]udges may be dismissed only on serious grounds of misconduct or
incompetence.”229 In addition, the Basic Principles on the Independence of the Judiciary
establish the following concerning disciplinary measures, suspension and removal from
office:
“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.”230
192. In addition, other standards distinguish between applicable sanctions. They insist
that the guarantee of tenure means that the removal must be based on fairly serious
behavior, while other sanctions may be contemplated to deal with cases such as negligence
or incompetence. In this regard, the recommendations of the Council of Europe on the
independence, efficiency and role of judges establish:231
“Principle I - General principles on the independence of judges […]
2. […] a.i. decisions of judges should not be the subject of any revision outside any appeals
procedures as provided for by law;
Principle VI – Failure to carry out responsibilities and disciplinary offences
1. When 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 legal 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 instance that the case should be heard within
a reasonable time and that they should have a right to answer any charges.”
228
Principle 4 of the United Nations Basic Principles.
229
Cf. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and
tribunals and to a fair trial, CCPR/C/GC/32, 23 August 2007, para. 20. See also, Human Rights Committee,
Communication No. 1376/2005, Soratha Bandaranayake v. Sri Lanka, CCPR/C/93/D/1376/2005, para. 7.3.
230
Principle 17 and 18 of the United Nations Basic Principles.
231
Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the
independence, efficiency and role of judges, adopted on 13 October 1994 (at the fifty-eighth session of Vice
Ministers).
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