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CENTRE OF EXPERTISE IN JUDICIARY @ TRANSPARENCY INTERNATIONAL ROMANIA
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34.
Hearings shall be recorded for later appeals of the case. (B34)
35.
Judges, including lay judges and jurors cannot receive any instructions regarding the
resolution of the case, except that jurors may be instructed by the main judge with regard
to the applicable law. (B35)
36.
The decisions of the courts are binding for all parties and public institutions and must be
enforced as long as they are no longer subject to any appeal. (B36)
37.
The case load shall be such as to give judges enough time to have a thorough understanding
of each case and to allow for analysis of all evidence. (B37)
Rights and obligations
38.
A judge shall exercise his/her freedom of speech and freedom of association, always
conducting himself/ herself in such a manner as to preserve the dignity of the judicial
office and avoid the appearance of undue influence, in the judicial act, thus preserving the
impartiality and independence of the judiciary. (B38)
39.
Judicial officials cannot be politically affiliated and cannot perform duties in the executive or
other official body if these affect their independence. (B39)
IMPARTIALITY
1.
The composition of the court or judicial panel has to be determined using objective criteria.
(C1)
2.
There should be specific rules to enable judges and prosecutors to avoid conflicts of interests
and appropriate procedures for judges and prosecutors to withdraw from cases. (C2)
3.
Situations in which a judge or a prosecutor must step down from a case must include, but
not be limited to: (C3)
a.
Personal, interest in a case, be it direct or through close relatives
b.
Previous contractual relations with one of the parties
c.
Hierarchical links with one of the parties or his/ her close relatives
d.
Political linkages to one of the parties
e.
Where one and the same person has the successive exercise of functions and has
already expressed an opinion on the guilt of the accused (e.g. the investigative and
trial judge)
4.
The law contains special provisions that entitle parties to ask for a judge or a prosecutor to
withdraw from a case in situations that must include, but not be limited to: (C4)
a.
Hostility with the parties during the case ruling
b.
Ill will
c.
General conduct of the judge that may raise an objective suspicion of partisanship
– i.e. refusal to accept evidence
d.
Public declarations of the judge about his/ her opinion on the guilt of the accused, when
these public declarations have in any way breached the confidentiality of the case
e.
All the situations mentioned under point 3
5.
The judge and the prosecutor conducts the proceedings always observing that all the
parties enjoy the same rights and have the possibility to exercise them. (C5)
6.
All the parties are allowed to respond to the evidence and are treated equally. (C6)
7.
The judges shall apply the same analysis system of the evidence to all similar cases and
impose the same sanctions to similar crimes, irrespective of the position or quality of the
parties. Corruption cases must be investigated, tried and sanctioned using the same
standard in order to avoid that corruption sanctioning is a political weapon of the parties
in power against the opposition. Sentencing guidelines should be elaborated to rule out
reasonable suspicions of partiality. (C7)
8.
The judicial decisions are always reasoned and the reasoning includes sufficient
arguments to convince the parties and any independent reader that all the evidence has
been heard and analysed on the legal grounds on which each of them has been accepted
or dismissed. The sentence must be impartial and be seen to be impartial by any objective
and independent observer. (C8)