37
conditions governing promotions, transfers, suspension and cessation of their functions, and the actual
independence of the judiciary from political interference by the executive and legislative branches.195
114. The UN General Assembly established the international norms governing the minimum
guarantees necessary to ensure the institutional and personal independence of judges in the United
Nations Basic Principles on the Independence of the Judiciary (hereinafter the UN Basic Principles).196
The UN Basic Principles set out, in international law, the minimum guarantees that must be observed to
ensure the independence of the judiciary and are also the accepted instrument for measuring the
independence of the judiciary in a given member state.197 Since the adoption of the Basic Principles and
drawing upon them, a number of universal and regional instruments have been crafted to protect the
independence of the judicial branch of government.198
115. Within the inter-American system, the principle of independence is recognized as one of
the guarantees of due process protected under Article 8(1) of the American Convention. The guarantee
of an independent judge attends those facing or standing trial in the defense of their rights. The case
law of the Inter-American Court of Human Rights holds that other guarantees are derived from judicial
independence, and are guarantees that States must afford to judges so as to ensure their
independence.199 In the Case of Reverón Trujillo the Court wrote that unlike other public officials, judges
have certain guarantees due to the independence the Judicial Power must have for the sake of those on
trial or parties to litigation, which the Court has understood as “essential for the exercise of the judicial
function.”200 In keeping with the jurisprudence of the European Court of Human Rights, the organs of
195
CCPR/C/GC/32 (nota 1), Paragraph 19 cited in United Nations. General Assembly. Human Rights Council. Report
of the Special Rapporteur on the Independence of judges and lawyers, Leandro Despouy, A/HRC/11/41, March 24, 2009,
paragraph 52.
196
The United Nations Basic Principles on the Independence of the Judiciary were 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 (hereinafter the UN Basic Principles).
197
The Preamble to the UN Basic Principles states that “[t]following basic principles […] 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.”
198
Among the instruments that build upon the Basic Principles, the General Assembly approved Procedures for the
Effective Implementation of the Basic Principles on the Independence of the Judiciary (1989), which provide that “[a]ll States
shall adopt and implement in their justice systems the Basic Principles on the Independence of the Judiciary in accordance with
their constitutional process and domestic practice.” The United Nations Economic and Social Council approved the Bangalore
Principles (2002) which mention the importance of a competent, independent and impartial judiciary to the protection of
human rights. At the regional level, the standards for guaranteeing judicial independence are set out in the following
instruments: the Commonwealth (Latimer House) Principles on the three branches of government; the European Charter on the
Statute for Judges (1998) and the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA Region
(1995). There are other instruments as well, like the Universal Charter of the Judge and the Statute of the Ibero-American
Judge, approved by associations or summits of judges or prosecutors and setting out provisions on the guarantees or principles
of the independence and impartiality of justice operators.
199
For example, the Inter-American Court has written that the State’s obligations with respect to those facing
prosecution create “rights for judges”; for example, the guarantee that they will not be subject to a discretionary removal
implies that the disciplinary proceedings and sentencing proceedings in cases involving judges must observe the guarantees of
due process and shall offer those affected an effective remedy. I/A Court H.R. Case of Reverón Trujillo v. Venezuela. Preliminary
Objection, Merits, Reparations and Costs. Judgment of June 30, 2009. Series C No. 197, paragraph 147.
200
I/A Court H.R., Case of Reverón Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations and Costs.
Judgment of June 30, 2009. Series C No. 197, paragraph 67. I/A Court H.R., Case of Chocrón Chocrón v. Venezuela. Preliminary
Objection, Merits, Reparations and Costs. Judgment of July 1, 2011. Series C No. 227, paragraph 97.