36 A. The principle of judicial independence and its bearing on the analysis of the case 112. The principle of the independence of the Judiciary has been established in numerous international instruments190 and is recognized as “international custom and a general principle of law.”191 An independent judiciary is an essential requirement in a democratic system and a condition sine qua non for the protection of human rights, as it becomes one of the basic pillars of the guarantees of due process and must therefore be respected in all types of proceedings and before all bodies called upon to determine a person’s rights. It must even be assured in special situations, such as states of emergency.192 113. International law views independence as two dimensional: the first is institutional or systemic, while the second is functional, referring to judges’ individual independence in performing their functions.193 In the case of the institutional dimension, one of the principal factors to be considered is the degree of independence that the judicial branch, as a system, must have vis-à-vis the other branches of government so that sufficient guarantees are in place to protect the judicial institution from abuses or unreasonable restrictions on the part of the other branches of government or state institutions. Addressing this aspect of the independence factor, the United Nations Human Rights Committee pointed out, for example, that a situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. 194 On the other hand, the functional dimension or individual exercise of judicial functions involves more than just the procedures and qualifications for the appointment of judges. It also involves the guarantees of their security of tenure until mandatory retirement age or the expiration of their term of office, where such exists, and the 190 The importance of an independent judiciary has been recognized in the following international and regional instruments: Universal Declaration of Human Rights (Article 10); the International Covenant on Civil and Political Rights (Article 14); the 1993 Vienna Declaration and Programme of Action (Paragraph 27); American Convention on Human Rights (Article 8(1)); European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6.1); and the African Charter on Human and Peoples’ Rights (Article 7.1). Some more specific international treaties also contain provisions on the independence and impartiality of the courts, such as: the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Article 18.1); the International Convention for the Protection of All Persons from Enforced Disappearance (Article 11.3); the Additional Protocol to the Geneva Conventions (Article 75.4) and the Additional Protocol relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (Article 6.2). 191 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 14 192 In its General Comment No. 32, the Human Rights Committee wrote that “[t]he requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.” See United Nations. Human Rights Committee. General Comment No. 32, CCPR/C/GC/32, August 23, 2007, paragraph 19. See also in this regard, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights). Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, paragraph 30. 193 The Inter-American Court highlighted both de jure and de facto independence, and wrote that this “requires not only hierarchical or institutional independence, but also real independence.” I/A Court H.R. Case of Zambrano Vélez et al. v. Ecuador. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 166, paragraph 122. 194 CCPR/C/GC/32 (footnote on page 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 18.