independence, as a guarantee, is a series of legal mechanisms designed to safeguard and
to achieve the said value, which is protected by other principles such as the abovementioned separation of powers, the ordinary judge, impartiality, exclusivity, etc. 73
56.
Several different elements can also be distinguished within the concept of judicial
independence as a guarantee. The first of these is the so-called “personal independence,”
which is the one that protects each judge individually and which consists in the series of
characteristics of his constitutional status that protects him from eventual pressure from
the State organs of a political nature – Parliament and the Executive Branch. In addition,
more recently, the “collective” and “internal” elements of judicial independence as a
guarantee have been identified. Collective judicial independence tends to protect the
judiciary as a whole vis-à-vis the other powers of the State, while individual judicial
independence protects the judge considered personally vis-à-vis the rest of the judicial
structure.74
57.
Regarding the case law of the ICourtHR — as can be seen in the preceding section –
this has developed both the independence of the Judiciary as an expression of the principle
of the separation of powers in a democratic system, and also the independence of the
judges as a right they possess in the exercise of their functions, and even as a right of the
citizen of access to justice and to judicial guarantees.
58.
Thus, as indicated in the preceding section, the ICourtHR has established that one of
the main purposes of the separation of the powers is to guarantee the independence of
judges.75 The State must ensure the autonomous exercise of both the institutional aspect,
that is with regard to the Judiciary as a system, and also in relation to its individual aspect;
that is, in relation to the person of the specific judge. The objective of the protection is to
avoid the judicial system, in general, and its members, in particular, being subjected to
possible undue constraints in the exercise of their function by organs outside the Judiciary
or even by those judges who exercise functions relating to review or appeal.76 The purpose
of the principle of the separation of powers is satisfied in two ways, which correspond to
these two aspects: the institutional and the individual. When the State is obliged to protect
the Judiciary as a system, it guarantees its external independence. When it is obliged to
provide protection to the person of the specific judge, it guarantees its internal
independence.
59.
The ICourtHR has also maintained that, since Article 8(1) of the Convention
recognizes that “[e]very person has a right to a hearing […] by an independent […] judge
or court,” the terms in which this article was drafted indicate that the subject of law is the
defendant, the person placed in front of the judge who will decide the case that has been
77
submitted to him. The two obligations referred to when examining the case law of the
73
Cf. Díez Picazo, op. cit., pp. 20 and 21.
74
Cf. Díez Picazo, op. cit., p. 21.
75
Case of the Constitutional Court v. Peru. Merits, reparations and costs. Judgment of January 31, 2001.
Series C No. 71, para. 73.
76
Case of Apitz Barbera et al. (“First Contentious Administrative Court”) v. Venezuela. Preliminary
objection, merits, reparations and costs. Judgment of August 5, 2008. Series C No. 182. para. 55.
77
Case of Reverón Trujillo v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of
June 30, 2009. Series C No. 197, para. 148.
14
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