Report of the Special Rapporteur on the independence of judges and lawyers in accordance with Human Rights Council resolution 35/11.
In the present report, the Special Rapporteur on the independence of judges and lawyers, Diego García-Sayán, focuses on the disciplinary proceedings against judges for alleged misconduct in the exercise of their functions. The Special Rapporteur also covers “disguised” sanctions imposed on judges with the aim of intimidating, harassing or otherwise interfering with the professional activities of judges.
Disciplinary proceedings against judges must be based on the rule of law and carried out in accordance with certain basic principles aimed at safeguarding judicial independence. International standards and the jurisprudence of regional courts and independent advisory bodies provide that: (a) the disciplinary procedure should be established by law; (b) the behaviour that may give rise to disciplinary liability should be expressly defined by law; (c) disciplinary proceedings should be adjudicated by an independent authority or a court; (d) the disciplinary procedure should afford adequate procedural guarantees to the accused judge, and the decision of the disciplinary authority should be motivated and subject to review by a higher judicial authority; and (e) sanctions should be previously established by law and their imposition should be subject to the principle of proportionality.
In order to safeguard the independence of the judiciary and shield judges from prosecution or vexatious civil claims, international and regional standards provide that judges enjoy a certain degree of immunity from civil or criminal jurisdiction. Such immunity is not general; it relates only to activities undertaken in good faith in the exercise of judicial functions. Existing standards do not provide comprehensive guidance on the kinds of behaviour that may trigger the liability or the procedures to establish it.
In the present report, the Special Rapporteur has documented the pattern of various forms of disguised sanctions imposed on judges to harass, punish or otherwise interfere with the legitimate exercise of a judge’s professional activities. Unlike the penalties imposed at the outcome of formal proceedings, disguised sanctions are not imposed in the cases provided for by law and/or in accordance with a regulated procedure. Their aim is to induce a judge to dismiss the consideration of a case, to adjudicate a case in a particular way or to punish the judge for a decision taken in the exercise of the judicial function. Judges dealing with politically sensitive cases are particularly exposed to these sanctions.
In the light of existing international and regional standards, the Special Rapporteur offers some recommendations to State authorities on ways to establish and implement clear procedures and objective criteria for sanctioning cases of professional misconduct that are gross and inexcusable and are susceptible to bringing the judiciary into disrepute.