Komisja Praw Człowieka ONZ, (poprzedniczka współczesnej Rady Praw Człowieka ONZ) na swojej czterdziestej piątej sesji, w rezolucji 1989/32, wezwała rządy państw członkowskich ONZ do wdrożenia zasad przedstawionych w projekcie deklaracji Podstawowych Zasad ONZ dotyczących Niezawisłości Sądownictwa, przygotowanej przez specjalnego sprawozdawcę Laxmi Malla Singhvi’ego, które zostały zatwierdzone w 1985 roku przez Podkomisję ONZ ds. Zapobiegania Dyskryminacji i Ochrony Mniejszości.
Poniżej przedstawiamy owe Podstawowe Zasady w wersji angielskiej, dodając, co może być ważne dla niektórych czytelników, że ich autor dr Laxmi Mall Singhvi, indyjski prawnik, absolwent nie tylko lokalnych uczelni w rodzinnym Radżastanie, ale także Harvardu i Uniwersytetu Cornella, związany był z indyjską prawicową populistyczną partią Bharatiya Janata. W tym kontekście nabierają szczególnego znaczenia przytoczone zalecenia ONZ dotyczące niezależności i niezawisłości sądownictwa. Warto skonfrontować je z wysiłkami polskich populistów, zaciekle demolujących tę właśnie sferę.
Monitor Konstytucyjny dziękuje prof. Andrzejowi Rzeplińskiemu za udostępnienie tekstu.
Objectives and Functions
1. The objectives and functions of the judiciary shall include:
(a) Administering the law impartially irrespective of parties;
(b) Promoting, within the proper limits of the judicial function, the observance and the attainment of human rights;
(c) Ensuring that all peoples are able to live securely under the rule of law.
2. Judges individually shall be free, and it shall be their duty, to decide matters before them impartially in accordance with their assessment of the facts and their understanding of law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. In the decision-making process, judges shall be independent vis à vis their judicial colleagues and superiors. Any hierarchical organization of the judiciary and any difference in grade or rank shall, in no way, interfere with the right of the judge to pronounce his judgment freely.
2 Judges, on their part, individually and collectively, shall exercise their functions with full responsibility of the discipline of law in their legal system.
4. The Judiciary shall be independent of the Executive and Legislature.
5. (a) The judiciary shall have jurisdiction, directly or by way of review, over all issues of a judicial nature, including issues of its own jurisdiction and competence.
(b) No ad hoc tribunals shall be established to displace jurisdiction properly vested in the courts.
(c) Everyone shall have the right to be tried with all due expedition and without undue delay by the ordinary courts or judicial tribunals under law subject to review by the courts.
(d) Some derogations may be permitted in times of grave public emergency which threatens the life of the nation but only under conditions prescribed by law, only to the extent strictly consistent with internationally recognized minimum standards and subject to review by the courts.
(e) In such times of emergency, the State shall endeavor to provide that civilians charged with criminal offences of any kind shall be tried by ordinary civilian courts, and, detention of persons administratively without charge shall be subject to review by courts or other independent authority by way of habeas corpus or similar procedures so as to ensure that the detention is lawful and to inquire into any allegations of ill-treatment.
(f) The jurisdiction of military tribunals shall be confined to military offences. There shall always be a right of appeal from such tribunals to a legally qualified appellate court or tribunal or a remedy by way of an application for annulment.
(g) No power shall be so exercised as to interfere with the judicial process.
(h) The Executive shall not have control over the judicial functions of the courts in the administration of justice.
(i) The Executive shall not have the power to close down or suspend the operation of the courts.
(j) The Executive shall refrain from any act or omission which preempts the judicial resolution of a dispute or frustrates the proper execution of a court decision.
6. No legislation or executive decree shall attempt retroactively to reverse specific court decisions or to change the composition of the court to affect its decision- making.
7. Judges shall be entitled to take collective action to protect their judicial independence. 8. Judges shall always conduct themselves in such a manner as to preserve the dignity and responsibilities of their office and the impartiality and independence of the judiciary. Subject to this principle, judges shall be entitled to freedom of thought, belief, speech, expression, professional association, assembly and movement.
Qualifications, Selection and Training
9. Candidates chosen for judicial office shall be individuals of integrity and ability. They shall have equality of access to judicial office; except in case of lay judges, they should be well-trained in the law.
10. In the selection of judges, there shall be no discrimination on the grounds of race, color, sex, language, religion, political or other opinion, national, linguistic or social origin, property, income, birth or status, but it may however be subject to citizenship requirements and consideration of suitability for judicial office.
11. a) The process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects.
(b) Any methods of judicial selection shall scrupulously safeguard against judicial appointments for improper motives.
(c) Participation in judicial appointment s by the Executive or the Legislature or the general electorate is consistent with judicial independence so far as such participation is not vitiated by and is scrupulously safeguarded against improper motives and methods. To secure the most suitable appointments from the point of view of professional ability and integrity and to safeguard individual independence, integrity and endeavor shall be made, in so far as possible, to provide for consultation with members of the judiciary and the legal profession in making judicial appointments or to provide appointments or recommendations for appointments to be made by a body in which members of the judiciary and the legal profession participate effectively.
12. Continuing education shall be available to judges.
Posting, Promotion and Transfer
13. Where the law provides for the discretionary assignment of a judge to a post on his appointment or election to judicial office such assignment shall be carried out by the judiciary or by a superior council of the judiciary where such bodies exist.
14. Promotion of a judge shall be based on an objective assessment of the judge’s integrity, independence, professional competence, experience, humanity and commitment to uphold the rule of law. No promotions shall be made from an improper motive.
15. Except pursuant to a system of regular rotation or promotion, judges shall not be transferred from one jurisdiction or function to another without their consent, but when such transfer is in pursuance of a uniform policy formulated after due consideration by the judiciary, such consent shall not be unreasonably withheld by any individual judge.
16. (a) Tenure: The term of office of the judges, their independence, security, adequate remuneration and conditions of service shall be secured by law and shall not be altered to their disadvantage.
(b) Subject to the provisions relating to discipline and removal set forth herein, judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or expiry of their legal term of office.
17. There may be probationary periods for judges following their initial appointment but in such cases the probationary tenure and the conferment of permanent tenure shall be substantially under the control of the judiciary or a superior council of the judiciary.
18. (a) During their terms of office, judges s hall receive salaries and after retirement, they shall receive pensions.
(b) The salaries and pensions of judges shall be adequate, commensurate with the status, dignity and responsibility of their office, and shall be periodically reviewed to overcome or minimize the effect of inflation.
(c) Retirement age shall not be altered for judges in office without their consent. 19. The executive authorities shall at all times ensure the security and physical protection of judges and their families.
Immunities and Privileges
20. Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.
21. Judges shall be bound by professional secrecy in relation to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings. Judges shall not be required to testify on such matters.
22. Judges may not serve in a non-judicial capacity which compromises their judicial independence.
23. Judges and courts shall not render advisory opinions except under an express constitutional or statutory provision.
24. Judges shall refrain from business activities, except as incidental to their personal investments or their ownership of property. Judges shall not engage in law practice.
25. A judge shall not sit in a case where a reasonable apprehension of bias on his part or conflict of interest of incompatibility of functions may arise.
Discipline and Removal
26. (a) A complaint against a judge shall be processed expeditiously and fairly under an appropriate practice and the judge shall have the opportunity to comment on the complaint at the initial stage. The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the judge.
(b) The proceedings for judicial removal or discipline when such are initiated shall be held before a Court or a Board predominantly composed of members of the judiciary. The power of removal may, however, be vested in the Legislature by impeachment or joint address, preferably upon a recommendation of such a Court or Board.
27. All disciplinary action shall be based upon established standards of judicial conduct.
28. The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.
29. Judgments in disciplinary proceedings instituted agains t judges, whether held in camera or in public, shall be published.
30. A judge shall not be subject to removal except on proved grounds of incapacity or misbehavior rendering him unfit to continue in office.
31. In the event a court is abolished, judges serving on that court, except those who are elected for a specified term, shall not be affected, but they may be transferred to another court of the same status.
32. The main responsibility for court administration including supervision and disciplinary control of administration personnel and support staff shall vest in the judiciary, or in a body in which the judiciary is represented and has an effective role.
33. It shall be a priority of the highest or der for the State to provide adequate resources to allow for the due administration of justice, including physical facilities appropriate for the maintenance of judicial independence, dignity and efficiency; judicial and administrative personnel; and operating budgets.
34. The budget of the courts shall be prepared by the competent authority in collaboration with the judiciary having regard to the needs and requirements of judicial administration.
35. The judiciary shall alone be responsible for assigning cases to individual judges or to sections of a court composed of several judges, in accordance with law or rules of court.
36. The head of the court may exercise supervisory powers over judges only in administrative matters.
37. A judge shall ensure the fair conduct of the trial and inquire fully into any a1legations made of a violation of the rights of a party or of a witness, including allegations of ill-treatment.
38. Judges shall accord respect to the mem bers of the Bar, as well as to assessors, procurators, public prosecutors and jurors as the case may be.
39. The State shall ensure the due and proper execution of orders and judgments of the Courts; but supervision over the execution of orders and over the service or process shall be vested in the judiciary.
40. Judges shall keep themselves inform ed about international conventions and other instruments establishing human rights norms, and shall seek to implement them as far as feasible, within the limits set by their national constitutions and laws.
41. These principles and standards shall appl y to all persons exercising judicial functions, including international judges, assessors, arbitrators, public prosecutors and procurators who perform judicial functions, unless a reference to the context necessarily makes them inapplicable or inappropriate.
42. An assessor may either perform the functions of a judge or an associate or auxiliary judge or a consultant or a legal or technical expert. In performing any of these functions the assessors shall discharge their duties and perform their functions impartially and independently. Principles and standards which apply to judges are applicable to assessors unless a reference to the context necessarily make them inapplicable or inappropriate.
43. Assessors or Peoples’ Assessors, or Nyaya Panchas, may be elected for specified terms on the basis of such franc hise and by such electorates as may be provided by law to participate in the co llegiate process of adjudication along with elected or appointed judges. Th ere shall be no discrimination by reason of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status among citizens in the matter of their eligibility for election as assessors. On their election, such a ssessors may be empanelled for short and limited periods to discharge their functions as assessors. Assessors may also be appointed or empanelled for technical advice or assistance on the basis of their specialized knowledge appointed to discharge certain simple adjudicating functions.
44. Assessors shall be duly and adequatel y compensated wit h a reasonable allowance for the duration of their service as assessors by the State except when they receive such a1lowance paid to them in their place of employment.
45. Assessors who are elected to participate in the process of adjudication or are appointed to render technical and other assistance shall be free from any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect,
Zdjęcie ilistrujące: Sala obrad rady Praw Człowieka ONZ w Genewie. Autor: Piotr Rachtan