• E4J University Module Series: Crime Prevention and Criminal Justice

• Module 14: Independence of the Judiciary and the Role of Prosecutors

• Introduction and learning outcomes

• Key issues

  • Topic 1.  Judicial independence
  • • General issues. Judicial independence as a fundamental value of the rule of law and of constitutionalism
    • The main factors aimed at securing judicial independence
  • Topic 2.  The role of public prosecutors
  • • General issues. Public prosecutors as the 'gate keepers' of criminal justice.
    • The institutional and functional role of prosecutors: different models and practices:
    • Other factors affecting the role of prosecutors: appointment, tenure and conduct.
  • References

• Exercises

• Possible class structure

• Core reading

• Advanced reading

• Student assessment

• Additional teaching tools

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• First published in February 2020
  

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  This module is a resource for lecturers  

 Topic one - Judicial independence

General issues. Judicial independence as a fundamental value of the rule of law and of constitutionalism

This section illustrates the crucial role of the judiciary in society and the importance of judicial independence as a necessary precondition to judges properly performing their function. It also mentions some important concepts that are related to judicial independence, such as judicial legitimacy, public trust, efficiency, accountability.

The role of the judiciary in society

What is the role of the judiciary in society, and in justice processes? What do individuals seek and expect from the justice system? How does the judiciary 'serve' society?

This section focuses on the judges' role and judicial independence, whereas the role of prosecutors will be specifically dealt with in Topic Two.

The judiciary plays a fundamental role in society and for the upholding of social order. Its primary function, in fact, is to resolve conflicts through the application of pre-existing norms or, in some cases precedents, which have been issued through legitimate procedures, as recognized by the political system. In adjudicating disputes, judges are subject to the law, meaning that their decisions are based on the application of the law, as issued by Parliament and/or by other legitimate sources provided for by the political system. The law is a product of society and, in theory, reflects community expectations. For these reasons, judicial decisions can be considered the product of the whole society.

The role of the judiciary and the administration of justice is, however, more complex and responds to broader social needs. A historical approach to the development of the judicial function is relevant to understanding the complexity of contemporary judicial power.

The last century has been characterized by a 'quantitative and qualitative expansion' of judicial power, which has dramatically increased the 'political' relevance of the judiciary (Friedman, 1985; Cappelletti, 1989; Tate and Vallinder, 1995; Russell and O'Brian, 2001). On the one hand, the judiciary has dramatically broadened its domain of adjudication. The diffusion of legislation protecting a wide range of social and economic interests has generated ever increasing occasions for citizens to resort to judges for the protection of their rights (on matters such as human rights, health, social security, education, labour, family and commercial relations, customer's rights). Indeed, courts have been increasingly entrusted with basic and vital questions regarding nearly every aspect of human endeavour and the structure of society. "The workload of the court has increased considerably, and the work of judges has become far more complex, having a strong impact on a number of crucial issues directly or indirectly affecting the social, moral, political, and economic environment" (Di Federico, 2008a).

Among the reasons for this are: the expansion of law, the 'judicialization of politics' (i.e. the expansion of judicial decision-making into political arenas at the expenses of politicians and/or administrators), the extraordinary complexity of modern litigation, the more active role of judges, and the interplay between national and international legal systems. (Friedman, 1985; Cappelletti, 1989; Tate and Vallinder, 1995; Russell and O'Brian, 2001). Another important reason which deserves attention is the introduction of constitutional review of legislation in most constitutional States. The forms of constitutional review, its scope and operation vary considerably among the States, as well as the competent authority (ordinary courts or constitutional courts where these courts form two distinct court systems) (Guarnieri and Pederzoli, p. 134). In all cases, however, constitutional review has significantly enhanced the political role of the judiciary. Judges, in fact, can either directly review laws passed by Parliament, a majoritarian institution (diffuse review) or, where specific constitutional courts have been established, regulate access to constitutional courts, by selecting the cases to be brought before them (centralized review).

On the other hand, greater emphasis has been given to the creative character of the judicial function. Far from being a simple activity of applying the law to a concrete case (as traditionally stated by Montesquieu's theory), the adjudicative power of the judge has an intrinsically creative character. Some degree of creativity and discretion is inherent in any kind of act of interpretation, whether of case law or statute (Cappelletti, 1989). Judges can, therefore, be considered political actors, to a certain extent, on account of the discretionary scope of their decision making.

The expansion of judicial power has increased the relevance of the functions that are rendered to society. As per the Commentary on the Bangalore Principles, Freedom, peace, order and good government - the essential goods of the society - depend in the ultimate analysis on the faithful performance of judicial duty (2007, para. 15 and 32). On many occasions, judges are also called upon to address broad issues of social values and controversial moral issues, and to do so in increasingly pluralistic societies. Thanks to the action of the judiciary, the protection of fundamental rights has become a reality in many countries. Judicial decisions and case law also contribute to the evolution of the legal culture with respect to new frontiers and challenges.

Judges also play a fundamental role in promoting the social and economic development of a country. The judiciary, in fact, "is a fundamental building block of sustainable peace" (United Nations Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, 2012, para. 11, 13 and 18) and has important functions in preventing and mitigating conflict, crime, and violence, which are major barriers to development. In developing countries, for example, as mentioned in the World Development Report, "the control of violence has the strongest correlation to economic growth and the judiciary is crucial in this respect, in terms of providing both legitimate processes for the resolution of grievances that might otherwise lead to conflict, and disincentives for crime and violence" (World Bank, 2011). The judiciary also serves to foster private sector growth in compliance with legal and regulatory frameworks: it enforces the rules that govern business transactions and plays a central role in determining how the costs and benefits of private sector activities are distributed.

For courts to be effective in delivering justice, the general public must have confidence in their ability to do so. This implies some important questions relating to judges' legitimacy and public trust, judicial accountability, and efficient administration of justice, which are essential conditions for judges to effectively and efficiently serve society.

The judiciary needs to enjoy public consensus and trust, and its authority needs to be legitimized and accepted by society. Since judges, in most countries, are not democratically elected, they must derive their authority and legitimacy from other sources. The main question is: from where does the authority of judges derive?   

Judicial legitimacy strongly depends on judges being, and appearing to be, impartial and independent in the judicial role. Only by exerting the judicial function in an independent, impartial and professional way, can judges gain the consensus of the parties, and of the general public, and justify their authority. As emphasized in the Bangalore Principles of Judicial Conduct (2002) and the United Nations Basic Principles on the Independence of the Judiciary (GA Resolution 40/32 and 40/146, their independence, impartiality and professionalism thus acquire great importance for acceptance of their decisions (Shapiro, 1981, p. 8). In other words, "if people believe that courts are usually fair and that their decisions are respected by others, then they will accept courts as legitimate institutions and loathe to tamper with them" (Solomon, 2004, p. 249).

The consent of the people appears to be important not only for the legitimacy of the judicial role, but also to support the public trust in judicial institutions and, consequently, in political institutions in general. As many reports and surveys show (see for example: the Global Competitiveness Report, World Economic Forum, 2013), the level of trust in judicial institutions is correlated with the independence, impartiality and also efficiency of the judicial systems. The more independence the courts exhibit the greater trust in judicial institutions.

Public trust also contributes to lawful social and cultural values and behaviors: if people trust courts and believe that attempts to influence judges are rare and deviant, they are less likely to make such attempts. Therefore, the strength of the inhibitions in a society against trying to influence the course of adjudication depends also on how well judges are respected and perceived as independent (Solomon, 2004, p. 249).

UNODC's Implementation Guide and Evaluative Framework for Article 11 states that "efforts to promote public trust and confidence in the judiciary should, therefore, form a part of a comprehensive, system-wide strategy aimed at correcting negative public perceptions and eliminating inefficiencies that lead to such perceptions. Public perceptions of the judicial system are often predetermined by the personal experiences of court users. Therefore, the better informed the judiciary is about public needs and desires, the more capable it is to respond to them" (UNODC, 2015, para. 131).

The legitimacy of the judicial role is not only ensured by the independence of judges, but also by the fairness of the judicial process, i.e. the process of decision-making. There is an inherent injustice, for example, in subjecting an individual to the decision/s of a judge who is influenced by political pressure or corruption, who has a personal interest in the case, or who does not treat all parties equally.  

The academic literature identifies the essential features that distinguish the judicial process from legislative and administrative powers:

• The judicial process is not initiated by the court on its own motion, but it needs a claimant, a plaintiff (for example, a private party or the public prosecutor);
• Audiatur et altera pars. All the parties are given a fair opportunity to be heard by an impartial judge, either personally or through their representatives;
• Nemo iudex in causa sua. The judge cannot have a personal interest in the case and must not be subject to partial pressure (Cappelletti, 1989, p. 31; Tate and Vallinder, 2005).

These characteristics differentiate the judicial process from legislative and administrative ones. Legislators and administrators can be deeply involved, even with a partisan interest, in the matters they regulate; they can represent persons and groups and act in favour of them, without having the obligation to listen to opposite interests and groups (even though they usually take conflicting interests into account); they can initiate the legislative and administrative processes without waiting for an interested person's application (Cappelletti, 1989, p. 31).

The judicial process also includes the following guarantees: the duty of the judge to give reasons as to judicial decisions; the right of the parties to a just and equitable process, in line with community standards; the preservation of human rights and equal human dignity; the rights of the parties to consult and be represented by counsel or other qualified persons; the rights to interpreter; the right to a decision rendered without undue delay. Most of these have been identified as the minimum guarantees of a fair trial.

The power that the judiciary holds is also due, in part, to the fact that individuals who appear in court, are not empowered actors in these settings (indeed, they very often don't know what to expect with regards to judicial process and judicial decisions). This power dynamic emphasises the importance of judicial role and judicial integrity, but also the importance of lawyers/attorneys as additional 'guardians' of fair trial. Lawyers/attorneys' main obligation is to advise, assist and represent the parties in courts to protect their rights and interests, but also to contribute to the correct functioning of the administration of justice and to promote a culture of lawfulness in society (in this sense lawyers also have a 'social function').

The independence of the judiciary needs to be complemented with means to ensure that judges, and the judiciary as a whole, comply with society's democratic principle of accountability. In a democratic society, every institution remains accountable. As stressed by some scholars, if a democracy is well functioning, no institution is truly independent (Friedman, 2004, p. 99; Cappelletti, 1989).

Even if judges are independent, they need to be accountable to society through transparent procedures. The notion that judges should be independent, in fact, does not imply that they should be free to decide on the basis of their wishes, with no need for justification and no accountability. Rather, "a commitment to judicial independence is fully compatible, at least in the abstract, with a commitment to judicial accountability - that is, to mechanisms that can ensure that judges, being free from any influence, will, in fact, be guided by appropriate considerations in reaching decisions" (Vanberg, 2008). Lack of accountability generally raises concerns in terms of the separation of powers: "the judiciary as a corporate body may have excessive control over its own composition, creating a self-protecting caste, or excessive power in interpreting the law, reshaping the legal framework according to values and views shared neither by the public, nor by the other branches of government" (Hack, 2004, p. 9). Indeed, in practice, efforts to increase judicial independence can conflict with attempts to secure judicial accountability and a good balance must be reached and secured. This is not, of course, an easy task.

Finally, contemporary institutions, including judicial ones, are increasingly faced with problems concerning their efficient functioning, and the modernization of their services. With the rising number of cases brought to courts, several countries are confronted with the question of how to guarantee and/or enhance the efficiency of the justice system, identifying new steering mechanisms without compromising independent adjudication. The need for an efficient and effective judiciary, capable of managing conflicts in due time, has resulted in the increasing attention to courts' performance and courts' administration. This affects not only the judiciary as a whole, but also individual judges. Their adjudicative function, in fact, doesn't imply unresponsiveness in the management of the case and the caseload. Rather, the Bangalore Principles of Judicial Conduct states that judges should be equipped with some managerial skills and be in various ways involved in the administration of justice (2002, para. 6.2).

The concepts of judicial independence and impartiality

As mentioned above, judicial independence and impartiality are the most important sources of legitimacy and authority for judges and, consequently, of public trust in judicial institutions. With the expansion of the domain of judicial power, they have even acquired more importance than in the past.

Judicial Independence is not an end in itself, or a way to secure the professional position of judges for their benefit, but rather a means to guarantee the impartial exercise of judicial functions, the respect for the rights of the litigants, allowing every person to have confidence in the justice system. Impartiality, therefore, is a consequence of judicial independence; it refers more specifically to the role of the judge in the judicial process and implies that judges must be above any interest in the case and free from any pressure. In other words, as stated in the Basic Principles on the Independence of the Judiciary, they shall act "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" ( GA Resolution 40/32 and 40/146, para. 2). Impartiality (or neutrality) also implies a commitment to the equal dignity of individuals, without bias or discrimination.

How can judicial independence be secured in concrete terms? Judicial independence and impartiality would be mere 'chimera' without sufficient political and legal-operational guarantees for their realization. Basic political guarantees generally include a democratic political system, committed to the rule of law. Legal-operational guarantees are those provisions (laid down in Constitutions, statutes or other legal rules) that ensure that the position of judges and courts in the structure of public power is determined in such a manner as to prevent the exertion of influence on judicial activities.

The primary condition of judicial independence is to be found in the political structure of the State and in the institutional position of the judiciary with regard to the other State powers. Independence is better guaranteed by the principle of separation of powers, according to which powers and responsibilities of the government are divided among three different branches: the legislative, executive and judicial branch. Each branch is independent, has a separate function, and may not usurp the functions of another branch. This system of safeguards allows the judiciary to be institutionally separated and autonomous from the political powers.

The three branches, however, are interrelated and cooperate with one other. The judiciary, more specifically, has important functions in relation to the other two branches: As per the Commentary on the Bangalore Principles, "it ensures that the government and the administration are held to account for their actions; with regard to the legislature, it is involved in ensuring that duly enacted laws are enforced and, to a greater or lesser extent, in ensuring that they comply with the national constitution and, where appropriate, with regional and international treaties" (2007, para. 36). To fulfil its role in these respects, the judiciary must be free from inappropriate connections with and influences by the other branches of government.

Judicial independence is also the 'cornerstone' of the rule of law. The rule of law implies an independent and impartial judiciary in the adjudicating function also with respect to the State and its representatives. Only by defining judicial independence and impartiality with respect to the State, can the judge act as an impartial 'third party' in disputes between the State and the citizens (for instance in criminal trials or administrative cases). Without coming under pressure from the State, the judiciary can then become an effective check on the way public functions are performed (Guarnieri, 2010). Without rule of law and independent and impartial judges there would be a perversion in the functioning of the State. An independent judiciary is therefore essential for the upholding of the rule of law and ensuring an effective and accountable political structure.

This also explains why judicial independence became one of the most important elements of modern constitutionalism. One of the main objectives of constitutionalism is "to limit the arbitrary exercise of power and make it legally accountable, submitting the performance of public functions to the scrutiny of an independent body (the judiciary). This ensures the supremacy of the law and represents a fundamental step in building a constitutional State" (Guarnieri, 2010, p. 44).

Legal-operational guarantees refer to the implementation of legal and effective means/mechanisms to ensure that judges be carefully selected, and that they perform their duties with independence, professional competence, diligence, efficiency and impartiality. Various arrangements are possible, in concrete terms, and States have adopted different models and solutions. The main factors that are relevant to promote and uphold the independence of the judiciary can be identified on the basis of the procedures of appointment and promotion of judges, the characteristics of judicial tenure, the financial autonomy of the judiciary, the standards of judicial conduct and discipline.   

Independence and impartiality are also basic requirements to prevent and combat corruption in the judiciary. According to the United Nations Convention Against Corruption, corruption is an "insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish" (GA Resolution 58/4, Foreword).

Independent and impartial judges, well equipped with strong professional skills and high integrity standards, are supposed to be less prone to corrupt practices and fraud. Strong judicial institutions, independent and impartial in carrying out their function, are essential to minimize the opportunity and the inclination to resort to corruption. Unfortunately, evidence of corruption in the administration of justice has surfaced in many parts of the world. The public perception of judicial corruption is also worrying. Of course, the reasons for such phenomena need to be investigated and remedied (UNODC, 2015, para. 47; see for example: Transparency International Global Corruption Barometer; GRECO and Council of Europe, Lessons learnt from the three Evaluation Rounds, 2000-2010).

As pointed out by the United Nations, corruption in the judiciary "is not limited to conventional bribery. An insidious and equally damaging form of corruption comes from the interaction between members of the judiciary and external, powerful political or economic interests (...). For example, the political patronage through which a judge acquires his or her office, a promotion, an extension of service, preferential treatment, or the promise of employment after retirement, can give rise to corruption" (UNODC, 2015, para. 50).

In countries where juries and lay judges are involved in the administration of justice, the principles of independence and impartiality apply equally, as appropriate. This is mentioned in the preamble of the United Nations Basic Principles on the Independence of the Judiciary (GA Resolution 40/32 and 40/146). Even though the status of jurors and lay judges may differ from that of professional judges (as regards for example selection, qualification, salary/compensation, removal, disciplinary proceedings, etc.), their independence and impartiality must be secured in the judicial process and in decision-making. When performing judicial functions, they have the same duties and obligations as professional judges and need to exhibit independence and impartiality. 

Finally, it is worth also recalling that the judiciary operates in a globalized context. Interaction and comparison between judicial systems have become more frequent, and debates about judicial independence have crossed national borders, being observed and absorbed into the context of different countries thanks also to the action of international organizations and the case-law of international courts. 'Transnational judicial dialogue' or 'constitutional fertilization' are some labels that are used to cover the set of vertical and horizontal mutual relationships between judicial authorities of different courts.

Judicial independence and impartiality have been recognized as fundamental values throughout the world. Many major international and regional treaties, charters and conventions expressly mention judicial independence as a fundamental value for the protection of civil and political rights, human rights, and the rule of law. They include, for example:

International organizations have promoted several global and regional projects aiming at strengthening judicial independence and the rule of law in several countries. Suffice here to mention the activities of the World Bank, the Council of Europe, Transparency International (see for example: Transparency International Romania, 2015), and the United Nations Office on Drugs and Crime (with the establishment of the Global Judicial Integrity Network, in particular).

Moreover, in recent decades new judicial networks have been particularly active in some regions, promoting a new form of cooperation and transnational dialogue among judiciaries. These networks can be described as groups, conferences, commissions or organizations of legal experts, judges and academics (coming from different countries) established at a transnational level. Their activities basically consist of exchanging ideas and practices, drafting recommendations, opinions and best practices concerning different fields of law or the functioning of the judicial system, organizing seminars, conferences and training of judges and legal experts (Slaughter, 2004; Stone Sweet, 2000). At the global level, the membership of the International Association of Judges (IAJ)  comprises 90 judicial associations from countries as diverse as Angola, Bermuda, Croatia, Democratic Republic of Congo, Egypt, Guatemala, Guinea Bissau, Israel, Kazakhstan, Mauritania, Nicaragua and Tunisa ( International Association of Judges, n.d.). The primary objective of the IAJ is "to safeguard the independence of the judicial authority, as an essential requirement of the judicial function and guarantee of human rights and freedom" (International Association of Judges, n.d.).

A range of events facilitate the establishment of intellectual exchange, internationally, and further mutual assistance to promote judicial knowledge (International Association of Judges, n.d.).

Networks of Prosecutors, at the global and regional levels are also important mechanisms to facilitate intellectual exchange and the sharing knowledge and training on best practice. The International Association of Prosecutors (IAP) constitutes the largest organization of prosecutors world-wide (with members from more than 177 countries). IAP also organizes regional trainings and conferences (with recent events held in North Africa, Central Asia, Europe, Latin America and the Middle East) ( International Association of Prosecutors, n.d.). In the area of the European Union (EU) and the Council of Europe (CoE) the most active networks in the field of judicial independence and governance are: the EU European Network of Councils for the Judiciary, the CoE Consultative Council of European Judges, the CoE Commission for the Efficiency of Justice (Cepej), and the CoE European Commission for Democracy through Law (Venice Commission) (Dallara and Piana, 2015).

Of particular significance, is the international framework of standards and norms on judicial independence, devised by Member States through various intergovernmental processes. Particular attention can be devoted to the United Nations Basic Principles on the Independence of the Judiciary (1985), the Bangalore Principles of Judicial Conduct (2002), and their Commentary. Such standards and guidelines have resulted from the cooperation among the judiciaries of different countries and have stemmed from the need, identified by judges themselves, to have standards and safeguards to protect their independence from undue pressure.

In addition to the authoritative guidance provided at the international level, various judicial cooperation networks have been established to support international cooperation in criminal matters. In some regions, these networks play quite an active role. A pioneering network of this kind, The European Judicial Network (EJN) comprises national contact points from EU Member States to facilitate judicial cooperation in criminal matters, particularly with respect to serious crime. In addition to the information exchange and cooperative functions of the network, the EJN also organizes training sessions, with a view to fostering improved judicial cooperation more generally.

In Latin America, Presidents and Judges of Constitutional Courts gathered in Brazil, in 2017, to discuss judicial independence, ethics training, anti-corruption capacity building, transparency of decisions and court procedures, conflicts of interest and financial disclosure, financial autonomy of courts, accountability and public confidence and trust in the judiciary. Hosted by the Supreme Court of Brazil, the meeting brought together members from across Brazil, Bolivia, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Peru, Uruguay and Germany, as well as representatives from the Inter-American Court of Human Rights, the International Commission of Jurists and Transparency International. The meeting concluded with the adoption of the Brasilia Declaration, in which participants expressed their commitment to judicial ethics, human rights, transparency, tackling corruption and promoting access to justice (see also UNODC, n.d.).

Next: Topic one - The main factors aimed at securing judicial independence

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