Judiciary Raport

CENTRE OF EXPERTISE IN JUDICIARY @ TRANSPARENCY INTERNATIONAL ROMANIA

2.1 PRINCIPLES FOR AN EFFECTIVE JUDICIARY

Over the last 40 years international organizations, as well as professional bodies, have agreed to

a range of international standards and principles regarding the conduct of judicial actors and the

performance of judicial institutions. These international documents

set out the overarching principles

that should guide the operation of an effective judiciary and list the detailed standards that ought to

be in place to achieve these principles. Some of these international documents deal specifically with

corruption, such as the United Nations Convention against Corruption; others focus on the ethical

conduct of particular judicial sector actors, such as the Bangalore Principles of judicial conduct 2002

which is concerned with standards to ensure the ethical behaviour of judges. Still others set out

system requirements for the effective functioning of the different institutions of the judicial system that

include, but are not limited to, anti-corruption measure, such as, the UN standards on prosecutors

and judges.

This section sets out the principles that should guide efforts meant to strengthen judicial institutions

and improve the behaviour of judicial actors. The principles that guide judicial systems are: lawfulness,

independence, impartiality, integrity, accountability, transparency and proper administration of justice.

What follows is an explanation of these seven principles, drawn from international documents.

LAWFULNESS

Lawfulness requires judiciaries to be empowered by the constitution

, to adjudicate the law, to

competently apply the law and to follow only the laws and procedures emanating from the legislative

body rather than from the executive.

The ‘separation of powers’ or the system of ‘checks and balances’ is a doctrine under which each

of the three powers of state, the legislative, the executive and the judiciary, balances and censures

the behaviour of the other two branches. The legislative body elaborates the rules, including those

governing the constitution and functioning of the judiciary. The executive applies the rules and

provides the lawmakers and the judiciary with the means for functioning. The judiciary checks the

constitutionality and legality of the rules elaborated by the legislative body and the actions taken by

the executive in applying those laws and rules. The judiciary upholds the rule of law and protects the

fundamental rights of the people of a state.

INDEPENDENCE

Independence of the judiciary ensures that neither the legislative nor the executive, or any other

outside actor, controls nor influences judicial decisions

. Judicial independence means that courts

must not be subordinate to executive or legislative powers. Lower courts are entitled to make

independent decisions, subject only to review by higher courts.

Judicial and prosecutorial independence helps establish an impartial judiciary and improves public

trust in the courts. Prosecutorial independence, even in those jurisdictions in which they are not

formally part of the judiciary, occurs when the decision-making of prosecutors is free from interference

by any other state entity, including higher prosecutorial offices or courts.

12. A list of international standards is provided in Annex 1.

13. E/CN.4/2003/65, Annex, page 18

14. Guidance Note of the Secretary-General, UN Approach to Rule of Law Assistance, April 2008, point B – Framework

for strengthening the rule of law, 1 Constitution or equivalent

15. See Value 1 of the Bangalore principles of Judicial Conduct