Russian Federation: Appointment and promotion of judges; Security of tenure

To safeguard the independence of the judiciary and the rights to equality before the law and equal access to the profession, international standards clarify that judges should be appointed though an open process on the basis of prescribed criteria based on merit and integrity, and without discrimination.{{1}} To ensure that the composition of the judiciary is essentially reflective of the population and to combat discrimination and ensure equality before the law, steps should be taken to ensure the appointment of qualified women and members of minority communities.{{2}}

As regards appointment criteria, the UN Basic Principles on the Independence of the Judiciary stipulate that persons selected must be “individuals of integrity and ability with appropriate training of qualifications in law”.{{3}}

An appropriate method of appointment of judges is a prerequisite for the independence of the judiciary{{4}} and is a means of ensuring equal access to the profession. On the procedure for judicial appointments, the UN Basic Principles on the Independence of the Judiciary underscore the fact that “[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives”. {{5}} In relation to the appointment and promotion of judges the United Nations Human Rights Committee and the Special Rapporteur on the independence of judges and lawyers have repeatedly recommended the use of bodies that are independent from the executive,{{6}} are plural and are composed mainly (if not solely) of judges and members of the legal profession;{{7}} and that apply transparent procedures.{{8}}

Promotions within the judiciary must be based on objective factors, particularly ability, integrity and experience.{{9}}

It is widely accepted that when judges have security of tenure in office they are less vulnerable to pressure from those who can influence or make decisions about the renewal of their terms of office. Accordingly, international standards prescribe that judges’ tenure must be guaranteed until a mandatory retirement age or expiry of the term of office.{{10}} The Council of Europe has recommended that the terms of office of judges be established by law.{{11}}

While as described below in section 4, judges nonetheless remain accountable throughout their terms of office, as a necessary corollary to the guarantee of security of tenure, international standards specify that during their term of office, judges may be removed only in exceptional, strictly limited and well-defined circumstances provided for by law, involving incapacity or behaviour that renders them unfit to carry out the duties of their office, and following a fair procedure.

In Russia, Judges of the Constitutional Court and the Supreme Court are appointed by the Council of the Federation (upper chamber of the Parliament), upon the proposals of the President.

Judges of other federal courts are appointed by the President of the Russian Federation, according to rules fixed by federal law.{{12}}

In accordance with the Constitution, individuals who are appointed as judges must be Russian citizens, over 25 years of age with a higher education in law and a law service record of not less than five years.{{13}} Individuals appointed as judges to the Constitutional Court or Supreme Court must however have a longer law service record.{{14}}

Time spent in work in a post or exercising a profession requiring legal education in government bodies, legal services or academia qualifies as part of a “law service record”. While judges who have served for twenty years or more cannot be appointed as prosecutor, investigator or interrogator,{{15}} no such restriction exists as regards judicial appointment.{{16}}

Selection, based on the principle of competition,{{17}} begins with an examination carried out by examination commissions under the Qualification Collegiums of judges.{{18}}

In addition to concerns about the independence and fairness of the judicial appointment process that relate to the composition of Qualifications Collegiums, discussed above in Section 1, the ICJ notes that the examination process lacks clear, unified standards: exam questions, for example, are drafted by each examination commission and differ per region. Furthermore there are no unified standards for ensuring a transparent and objective evaluation of exam results, which can lead to arbitrariness and manipulations.{{19}}

Once a vacancy for a judicial position is opened in a court, the president of that court informs the relevant Qualification Collegium. In turn the Collegium then publicly announces the vacancy through the media and the Internet. Individuals who have successfully passed the examination and meet the other criteria set out in law and the Constitution, may submit their application (including relevant documents) to the Qualification Collegium. The ICJ received reliable reports that applicants for judicial office must in addition also collect and submit more than a dozen authorizations, including from the prosecutor’s office, police, intelligence services and other law enforcement bodies. Concerns were voiced that the requirement to submit such authorization operated in fact as an extra-legal, additional approval process for individuals seeking judicial appointment.{{20}}

In accordance with the procedure prescribed by law, the Qualification Collegium considers the applications submitted and either, recommends one or more candidates to the court’s president, or declines to do so. The court president can either agree with and approve the Qualification Collegium’s recommendations, or disagree and remit the issue back to the Collegium, providing reasons for doing so. The Collegium may overturn the court president’s rejection of its recommendations by a vote of two-thirds in favour of appointment.{{21}} However, the ICJ has received reliable information that indicates that in practice sometimes the Qualification Collegiums vote on candidates in accordance with pre-approved lists that have been drafted by someone outside the Collegium. The court presidents also heavily influence the recommendations made for judicial appointment by Collegiums.{{22}}

Once the Qualification Collegium has decided on the individual it recommends for appointment to fill a judicial vacancy, it passes its recommendation on to the President of the Russian Federation, for appointment (in the case of federal judges) or in order to introduce the applicant for the office of Justice in the Supreme Court (and formerly, the High Arbitration Court) for appointment by the Council of Federation (i.e., the upper house) of the Federal Assembly of the Russian Federation.{{23}} He may refuse to appoint a judge recommended to him or her for appointment by the Qualification Collegium, and such refusal is final and need not be reasoned.{{24}} The President’s wide, final and unaccountable refusal power in the judicial appointment process undermines safeguards of independence, transparency and fairness in the judicial appointment process in Russia.

During a 2010 mission in the country, the ICJ was told that practicing lawyers do not often get appointed as judges in Russia. Most appointees for judicial office are either court clerks or individuals who have worked in judges’ offices, such as former researchers.{{25}}

In view of the above the ICJ expressed concern, in its 2010 report on the State of the Judiciary in Russia, that elements of law and practice in the appointment process do not adequately safeguard the independence and the quality of the judiciary. The International Commission of Jurists is currently examining these issues further. Concerns include:

The requirement for candidates to secure authorizations, outside of the legal procedure for appointment;
The composition of the Qualification Collegiums and the influence of the court presidents in these bodies;
The role of the executive in the appointment processes; and
The examination standards.

Because of these flaws, the judicial appointment process cannot always be considered transparent. Further, it does not adequately safeguard against appointment for improper motives.

Promotion:

There is no formal system for judicial promotion in Russia. Judges are promoted by applying for a new position, so the promotion process suffers from the same problems as the appointment process. Given their important role in the courts’ administration, defects in the appointment of court presidents that undermine their independence are likely to also impact negatively on the independence and impartiality of judicial decision-making, considered as a whole. In the course of a 2010 mission, the ICJ received consistent information that “political sensitivity” is an important factor in determining whether a judge will be promoted,{{26}} in spite of international standards requiring that promotion be based on objective factors related to merit. As noted above, the ICJ is currently researching the appointment and promotion process further.

Security of tenure:

Federal judges in Russia are appointed for life. However, Justices of the Peace, the lowest level courts in the subjects of the Federation, are appointed for a period of five years.{{27}} Until 2009,{{28}} newly appointed judges had to go through a probation period of three years, which reportedly not only served to filter out appointees who proved incompetent, but also to remove judges for political or personal reasons.{{29}}

The Constitution and the law provide that judges shall be irremovable and that their powers can only be ceased or suspended on the grounds and according to the rules fixed by law.{{30}} The law provides for three disciplinary sanctions: a warning, a reprimand and an early termination of the judge’s office, which can be imposed for committing a disciplinary offence, which is defined (overly) broadly as a violation of the norms of the Law on the Status of Judges or the Code of Judicial Ethics.{{31}}

[[1]]1. [expand title=”Principle 10″]

Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

[/expand] of the UN Basic Principles on the Independence of the Judiciary provides in part: “In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”; Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 44;”]

Decisions concerning the selection and career of judges should be based on objective criteria pre-established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.

[/expand] European Charter on the Statute for Judges, [expand title=”para. 2.1-2.2;”]

2.1. The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, and to apply the law to them with respect for individual dignity. The statute excludes any candidate being ruled out by reason only of their sex, or ethnic or social origin, or by reason of their philosophical and political opinions or religious convictions.

2.2. The statute makes provision for the conditions which guarantee, by requirements linked to educational qualifications or previous experience, the ability specifically to discharge judicial duties.

[/expand] Magna Carta of Judges, Consultative Council of European Judges CCJE (2010)3 Final, [expand title=”Article 5;”]

Decisions on selection, nomination and career shall be based on objective criteria and taken by the body in charge of guaranteeing independence.

[/expand] Venice Commission, Report on the Independence of the Judicial System, Part I: the Independence of Judges, CDL-AD(2010)004, [expand title=”para. 27.”]

The principle that all decisions concerning appointment and the professional career of judges should be based on merit, applying objective criteria within the framework ofthe law is indisputable.

[/expand] See Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [expand title=”para. 19.”]

The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

[/expand] Also see ECtHR, Campbell and Fell v. UK (Application No. 7878/77), para. 78, where the Court indicates that “the manner of appointment of its members” forms part of the assessment of a bodies’ independence; ECtHR, Zand v. Austria (Application No. 7360/76), para. 81: to challenge a judge’s independence based on his or her manner of appointment, it would need to be shown that the practice of appointment “as a whole is unsatisfactory” or that “at least the establishment of the particular court deciding a case was influenced by improper motives”.[[1]]

[[2]]2. Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers, Report to the General Assembly, UN Doc. A/66/289 (2011), para. 22-33, 92; Human Rights Committee, Concluding Observations on the United Kingdom, UN Doc. CCPR/CO/73/UK (2001), [expand title=”para. 15;”]

The Committee notes that, despite recent improvements, the proportions of women participating in public life, particularly at senior levels of the executive and judiciary and in Parliament, and also in the private sector, remain at low levels.

The State party should take necessary steps towards achieving an appropriate representation of women in these fields.

[/expand] Human Rights Committee, Concluding Observations on France, UN Doc. CCPR/C/FRA/CO/4 (2008), [expand title=”para. 26;”]

The Committee notes with concern that persons belonging to racial, ethnic or national minorities are rarely selected for representative bodies, including the National Assembly, and may occupy few positions in the police, the public administration and the judiciary. (articles 2, 25 and 26)

The State party should facilitate the participation of persons who are members of minority groups in publicly elected bodies, including the National Assembly and local government. In particular, the State party should seek ways to increase the number of candidates belonging to minorities included in the list of political parties running for elections. The appointment of persons from minority backgrounds as members of the police, public administration and the judiciary, is also important to assure the representation of the needs of varied communities in the planning, design, implementation and evaluation of policies and programmes affecting them.

[/expand] Human Rights Committee, Concluding Observations on Sudan, UN Doc. CCPR/C/79/Add.85 (1997), [expand title=”para. 21;”]

The Committee is concerned that in appearance as well as in fact the judiciary is not truly independent, that many judges have not been selected primarily on the basis of their legal qualifications, that judges can be subject to pressure through a supervisory authority dominated by the Government, and that very few non-Muslims or women occupy judicial positions at all levels. Therefore:

Measures should be taken to improve the independence and technical competence of the judiciary, including the appointment of qualified judges from among women and members of minorities. Training in human rights law should be given to all judges, law enforcement officers and members of the legal profession.

[/expand] Committee Against Torture, Conclusions and recommendations on Bahrain, UN Doc. CAT/C/CR/34/BHR (2005), [expand title=”para. 7(h);”]

The Committee recommends that the State party: …

(h) Fully ensure the independence of the judiciary and include female judicial officials in its judicial system;

[/expand] Committee on the Elimination of Racial Discrimination, General Recommendation XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system, UN Doc. A/60/18 (pp. 98-108) (2005), [expand title=”para. 5(d);”]

5. States parties should pursue national strategies the objectives of which include the following: …

(d) To promote proper representation of persons belonging to racial and ethnic groups in the police and the system of justice;

[/expand] Committee on the Elimination of Racial Discrimination, Concluding Observations on Guatemala, UN Doc. CERD/C/GTM/CO/12-13 (2010), [expand title=”para. 8;”]

While noting the efforts made by the judiciary in the area of training, in the provision of interpreters, in the application of cultural expertise and in the appointment of bilingual staff to the courts to improve indigenous peoples’ access to the official system of justice, the Committee reiterates its concern about the problems experienced by indigenous peoples in gaining access to justice, particularly because the indigenous legal system is not recognized and applied and because of the lack of a sufficient number of interpreters and bilingual court officials who are knowledgeable about judicial proceedings. It regrets, in particular, that, when a number of judges were appointed to the Supreme Court in late 2009, no indigenous person was selected (art. 5 (a)).

[/expand] Committee on the Elimination of Racial Discrimination, Concluding Observations on Colombia, UN Doc. CERD/C/304/Add.76 (1999), [expand title=”para. 13.”]

It is noted that indigenous and Afro-Colombian communities are underrepresented in State institutions, including in the legislature, the judiciary, government ministries, the military and the civil and diplomatic services.

[/expand][[2]]

[[3]]3. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 10;”]

[/expand] Consultative Council of European Judges, Opinion No. 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges, [expand title=”para. 25.”]

Any “objective criteria”, seeking to ensure that the selection and career of judges are “based on merit, having regard to qualifications, integrity, ability and efficiency”, are bound to be in general terms. Nonetheless, it is their actual content and effect in any particular state that is ultimately critical. The CCJE recommended that the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are “based on merit, having regard to qualifications, integrity, ability and efficiency”. Once this is done, those bodies or authorities responsible for any appointment or promotion will be obliged to act accordingly, and it will then at least be possible to scrutinize the content of the criteria adopted and their practical effect.

[/expand][[3]]

[[4]]4. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [expand title=”para. 19.”]

[/expand][[4]]

[[5]]5. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 10.”]

[/expand][[5]]

[[6]]6. See e.g. Concluding Observations on the Congo, CCPR/C/79/Add.118, [expand title=”para. 14;”]

The Committee expresses its concern at the attacks on the independence of the judiciary, in violation of article 14, paragraph 1, of the Covenant. It draws attention to the fact that such independence is limited owing to the lack of any independent mechanism responsible for the recruitment and discipline of judges, and to the many pressures and influences, including those of the executive branch, to which judges are subjected.

The State party should take the appropriate steps to ensure the independence of the judiciary, in particular by amending the rules concerning the composition and operation of the Supreme Council of Justice and its effective establishment. The Committee considers that particular attention should be given to the training of judges and to the system governing their recruitment and discipline, in order to free them from political, financial and other pressures, ensure their security of tenure and enable them to render justice promptly and impartially. It invites the State party to adopt effective measures to that end and to take the appropriate steps to ensure that more judges are given adequate training.

[/expand] Concluding Observations on Liechtenstein, CCPR/CO/81/LIE, [expand title=”para. 12;”]

While noting that the constitutional amendments of 2003 sought to clarify the system of appointment and tenure of judges, the Committee is concerned about some elements of the new mechanism which may not be compatible with the principle of the independence of the judiciary (art. 14).

The State party should consider amending the mechanism for the appointment of judges to secure tenure, so as to guarantee fully the principle of the independence of the judiciary. The elements to be reviewed should include: the criteria for the appointment of members to the selecting body, the casting vote of the Princely House and the limited nature of tenure.

[/expand] Concluding Observations on Tajikistan, CCPR/CO/84/TJK, [expand title=”para. 17;”]

The Committee is concerned about the apparent lack of independence of the judiciary, as reflected in the process of appointment and dismissal of judges as well as in their economic status (art. 14, para. 1). The State party should guarantee the full independence and impartiality of the judiciary by establishing an independent body charged with the responsibility of appointing, promoting and disciplining judges at all levels and by remunerating judges with due regard for the responsibilities and the nature of their office.

[/expand] Concluding Observations on Honduras, CCPR/C/HND/CO/1 (2006), [expand title=”para. 16;”]

The Committee notes the State party’s implementation of selection procedures for judges in accordance with the Judicial Council Act. It is concerned, however, at the failure to establish an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession (article 14 of the Covenant).

The State party should take effective action to safeguard the independence of the judiciary, including the prompt establishment of an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession.

[/expand] Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), [expand title=”para. 12;”]

The Committee remains concerned that, despite the reforms undertaken and the progress made during the reporting period, through, inter alia, the amendments in the Judges Act, the adoption of the Judicial Council Act, the establishment of the statute of the Judges’ Selection Committee, the Code of Ethics for Judges, the State party’s judiciary does not appear to be fully independent from the executive branch or from political pressure. The Committee is also concerned about reports that corruption within the judiciary remains a problem (art. 14).

The State party should strengthen its efforts to ensure a fully independent judiciary. Given the important prerogatives of the Judicial Council, in particular regarding selection, promotion, and disciplining of members of the judiciary, the State party should ensure that the Judicial Council, in its composition and work, is fully independent from the executive so as to create conditions ensuring full independence of the judiciary. The State party should increase efforts to combat corruption, in particular within its judiciary, by investigating promptly and thoroughly all incidents of suspected corruption. If corruption is established, the officials concerned should face criminal and not only disciplinary sanctions.

[/expand] Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), [expand title=”para. 20.”]

The Committee is concerned about the absence of adequate guarantees for the independence of international judges and prosecutors. It is concerned about the low remuneration of local judges and prosecutors, the low representation of ethnic minorities in the judiciary, the excessive length of civil court proceedings and court backlogs and the frequent failure to enforce judgements (art. 14).

UNMIK, in cooperation with PISG as required, should establish independent procedures for the recruitment, appointment and discipline of international judges and prosecutors, ensure adequate terms and conditions for local judges and prosecutors whereby they are shielded from corruption, increase the representation of ethnic minorities in the judiciary, assign additional judges to courts with case backlogs and ensure enforcement of judgements without delay.

[/expand] Also see Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 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 appointments 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 endeavour 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.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 9.”]

The selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation.

[/expand][[6]]

[[7]]7. Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), [expand title=”para. 28-29″]

28. The composition of this body matters greatly to judicial independence as it is required to act in an objective, fair and independent manner when selecting judges. While a genuinely plural composition of this body is recommended with legislators, lawyers, academicians and other interested parties being represented in a balanced way, in many cases it is important that judges constitute the majority of the body so as to avoid any political or other external interference. In the Special Rapporteur’s view, if the body is composed primarily of political representatives there is always a risk that these “independent bodies” might become merely formal or legal rubber-stamping organs behind which the Government exerts its influence indirectly.

29. In order to ensure that such a body is apt to select judges in an objective, fair and independent manner, the judiciary and other parties directly linked with the justice system must have a substantial say with respect to selecting and appointing the members of such a body. According to some regional standards, members of the independent body should be selected by the judiciary.

[/expand] Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 46-48;”]

46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.

47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.

48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.

[/expand] European Charter on the Statute for Judges, [expand title=”para. 1.3.”]

In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation
of the judiciary.

[/expand] See also Venice Commission, Judicial Appointments, CDL-AD(2007)028; International Commission of Jurists, International principles on the independence and accountability of judges, lawyers and prosecutors – Practitioners’ guide, no. 1 (2007), pp. 45-48.[[7]]

[[8]]8. Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), [expand title=”para. 32.”]

In this connection the Special Rapporteur refers to the appointment of the judges of the Supreme Court of Ecuador in 2005, which were made in accordance with his recommendations,31 in particular those referring to objective criteria to select candidates with a view to their independence, competencies and integrity. This ensured the transparency of the selection and appointment processes. Furthermore, for the first time in Ecuador’s history, public hearings were held at which backgrounds of the nominees could be openly scrutinized. This experience was qualified by the United Nations as a major example of good practices.

[/expand] See Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Preliminary Report to the Human Rights Commission on a mission to Ecuador, UN Doc. E/CN.4/2005/60/Add.4 (2005), [expand title=”para. 5(d).”]

5. Various options for resolving the crisis are being discussed in Ecuador. Rather than expressing a view on the various alternatives, the Special Rapporteur believes that, in keeping with United Nations standards, the country should immediately arrive at a formula to govern the appointment of a Supreme Court which will include the following elements:…

(d) Machinery to ensure transparency in the selection of judges and enable members of the public to be aware of the candidates and express their opinions about them.

[/expand][[8]]

[[9]]9. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 13;”]

Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

[/expand] Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 44;”]

[/expand] European Charter on the Statute for Judges, [expand title=”para. 4.1;”]

When it is not based on seniority, a system of promotion is based exclusively on the qualities and merits observed in the performance of duties entrusted to the judge, by means of objective appraisals performed by one or several judges and discussed with the judge concerned. Decisions as to promotion are then pronounced by the authority referred to at paragraph 1.3 hereof or on its proposal, or with its agreement. Judges who are not proposedwith a view to promotion must be entitled to lodge a complaint before this authority.

[/expand] Magna Carta of Judges, Consultative Council of European Judges CCJE (2010)3 Final, [expand title=”Article 5;”]

Decisions on selection, nomination and career shall be based on objective criteria and taken by the body in charge of guaranteeing independence.

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 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.

[/expand][[9]]

[[10]]10. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 12;”]

Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

[/expand] Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 49;”]

Security of tenure and irremovability are key elements of the independence of judges. Accordingly, judges should have guaranteed tenure until a mandatory retirement age, where such exists.

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration),[expand title=”Article 16(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.

[/expand] and [expand title=”Article 18(c);”]Retirement age shall not be altered for judges in office without their consent.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 8;”]

A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure. A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect.

[/expand] Venice Commission, Report on the Independence of the Judicial System, Part I: the Independence of Judges, CDL-AD(2010)004, [expand title=”para. 38.”]

To sum up, the Venice Commission strongly recommends that ordinary judges be appointed permanently until retirement. Probationary periods for judges in office are problematic from the point of view of independence.

[/expand] Also see ECtHR, Campbell and Fell v. UK (Application No. 7878/77); ECtHR, Zand v. Austria (Application No. 7360/76); ECtHR, Incal v. Turkey (Application No. 22678/93); ECtHR, Yavuz v. Turkey (Application No. 29870/96).[[10]]

[[11]]11. Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 50.”]

The terms of office of judges should be established by law. A permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions. Early retirement should be possible only at the request of the judge concerned or on medical grounds.

[/expand] Note however the jurisprudence of the ECtHR to the contrary, see ECtHR, Engel et al. v. Netherlands (Application No. 5100/71, 5101/71, 5102/71, 5354/72, 5370/72); ECtHR, Campbell and Fell v. UK (Application No. 7878/77).[[11]]

[[12]]12. Constitution, [expand title=”Article 128(1)-(2).”]

1. The judges of the Constitution Court of the Russian Federation, the Supreme Court of the Russian Federation, the Higher Arbitration Court of the Russian Federation shall be appointed by the Council of the Federation upon the proposals by the President of the Russian Federation.

2. Judges of other federal courts shall be appointed by the President of the Russian Federation according to the rules fixed by the federal law.

[/expand] See Law on the Status of Judges in the Russian Federation, [expand title=”Article 6.”]

1. Justices of the Supreme Court of the Russian Federation and of the Highest Court of Arbitration of the Russian Federation are appointed to the office by the Council of Federation of the Federal Assembly of the Russian Federation according to the application of the President of the Russian Federation, which must be introduced taking into account the opinions of the Chairman of the Supreme Court of the Russan Federation and the Chairman of the Highest Court of Arbitration respectively.

2. Judges of federal circuit courts of arbitration are appointed to the office by the President of the Russian Federation according to the application of the Chairman of the Highest Court of Arbitration of the Russian Federation.

3. Judges of other federal courts of general jurisdiction and courts of arbitration are appointed to the office by the President of the Russian Federation according to the applications of the Chairman of the Supreme Court of the Russian Federation and the Chairman of the Highest Court of Arbitration respectively taking into account the opinion of the legislative (representative) body of the appropriate subject of the Russian Federation.

4. Judges of military courts are appointed to the office by the President of the Russian Federation according to the application of the Chairman of the Supreme Court of the Russian Federation.

5. The President of the Russian Federation in a month term since he receives necessary materials appoints judges of federal courts and introduces the applicants for the offices of Justices in the Supreme Court of the Russian Federation and the Highest Court of Arbitration for appointment to the Council of Federation of the Federal Assembly of the Russian Federation or refuses to introduce them and informs the chairman of the appropriate court about that.

6. Appointments to the offices of judges must be performed only in the presence of positive conclusion of the qualifying collegium of judges.

7. In the case of refusal of appointment of an applicant to the office of a judge of a court of general jurisdiction or a court of arbitration appropriate qualifying collegium of judges has a right having repeated application of a candidate to consider the grounds of refusal and to give positive conclusion about the appointment of this applicant once again.

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[[13]]13. Constitution, [expand title=”Article 119.”]

Judges may be citizens of the Russian Federation over 25 years of age with a higher education in law and a law service record of not less than five years. The federal law may introduce additional requirements for judges of the courts of the Russian Federation.

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[[14]]14. Law on the Status of Judges in the Russian Federation, [expand title=”Article 4(1).”]

A citizen of the Russian Federation not less than 25 years old, having received high legal education and with an experience in the legal profession not less than 5 years, not commited any defaming acts can become a judge after passing qualifying examination and gaining a recommendation of the Qualifying Collegium of Judges.
But only a citizen of the Russian Federation not less than 30 years old can become a judge of the higher court, and a citizen of the Russian Federation not less than 35 years old with the experience in the legal profession not less than ten years can become a Justice of the Supreme Court of the Russian Federation or of the Highest Court of Arbitration of the Russian Federation.

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[[15]]15. Law on the Status of Judges, [expand title=”Article 3(4).”]

A retired judge having a judge work record of at least 20 years or having attained the age of 55 (50 for women) is entitled to work in the bodies of state power, local self-government bodies, state and municipal institutions, trade union and other public associations and also to work as assistant to a deputy of the State Duma or member of the Federation Council of the Federal Assembly of the Russian Federation or assistant to a deputy of the legislative (representative) body of a subject of the Russian Federation, but he/she is not entitled to occupy the position of a procurator, investigator, interrogator.

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[[16]]16. International Commission of Jurists, The State of the Judiciary in Russia (November 2010), p. 14.[[16]]

[[17]]17. Law on the Status of Judges in the Russian Federation, [expand title=”Article 5(1).”]

Candidates for the post of judge shall be selected on the competitive principle.

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[[18]]18. Law on the Status of Judges in the Russian Federation, [expand title=”Article 5.”]

1. Candidates for the post of judge shall be selected on the competitive principle.

2. The chairman of the court, in which a vacant post of judge has appeared, shall report on this to the corresponding qualifications judicial college not later than in ten days after the opening of the vacancy.

The qualifications judicial college shall be obliged, not later than in ten days after receiving the communication from the chairman of the court, to announce the appearance of the vacancy in the mass media, with an indication of the time and place of accepting applications from the contenders for the post of judge, as well as of the time and place of considering the lodged applications.

3. Any citizen, who has reached the age, established by the present Law, who has a higher legal education and the required work record in the legal profession, and has no diseases interfering with an appointment to the post of judge, shall have the right to sit to the qualifications examination for the post of judge, having turned for this to the corresponding examination commission with an application for a permit to take the qualifications examination. Besides the said application, to the examination commission shall also be submitted;

– the original of the document, identifying the person of the contender as a citizen of the Russian Federation, or a copy thereof;

– the questionnaire, containing the biographical data on the contender;

– the original of the document, confirming that the contender has a legal education, or a copy thereof;

– the originals of the work book and of the other documents, confirming the contender’s labour activity, or the copies thereof;

– the document on the contender’s having no diseases, preventing his appointment to the post of judge.

The examination commission has no right to refuse the citizen, who has submitted the documents (or the copies thereof), listed in this Item, in his right to take the qualifications examination for the post of judge.

4. The qualifications examination for the post of judge shall be passed to an examination commission, formed under the corresponding qualifications judicial college which shall approve the personal composition of the given examination commission.

The procedure for conducting a qualifications examination for the post of judge, as well as the regulations on the examination commissions shall be approved by the Higher Qualifications Judicial College of the Russian Federation.

5. The qualifications examination for the post of judge shall be taken by a citizen who is not a judge. The results of the qualifications examination shall be valid over three years after it is passed, and after the appointment of the citizen to the post of judge – in the course of the entire time of his service in the capacity of a judge.

6. After he has passed the qualifications examination, the citizen who satisfies the demands made by the law on the contender for the judge’s post, shall have the right to turn to the corresponding qualifications judicial college with an application for being recommended for filling a vacant post of judge.

In addition to the above-mentioned application, to the qualifications judicial college shall also be submitted:

– the original of the document, identifying the person of the contender as a citizen of the Russian Federation, or a copy thereof;

– the questionnaire, containing the biographical data on the contender;

– the original of the document, confirming that the contender has a legal education, or a certified copy thereof;

– the originals of the work book and of the other documents, confirming the contender’s labour activity, or the copies thereof;

– the document on the contender having no diseases, interfering with his appointment to the post of judge;

– information on the results of his sitting to the qualifications examination.

7. The qualifications judicial college shall organize a check-up of the authenticity of the documents and of the information indicated in Item 6 of the present Article. While doing this, the qualifications judicial college has the right to turn with a demand to verify the authenticity of the documents and of the information submitted to it, to the corresponding bodies, which are obliged to inform it on the results of the verification within the time term fixed by the college, but not later than in two months from the day of the receipt of the said demand.

8. In accordance with the results of consideration of the applications from all the citizens who have applied for the post of judge, with the results of checking the authenticity of the documents and of the information, mentioned in Item 6 of the present Article, and with an account for the results of the qualifications examination, the qualifications judicial college shall adopt the decision on recommending one or several the contenders for the post of judge. If in the course of checking up the documents and the information, mentioned in Item 6 of the present Article, their unauthenticity is exposed, the citizen, who has submitted such documents and information, cannot be recommended for the post of judge.

If no one out of the citizens, contending for the post of judge, satisfies the demands, made on the contenders for the judge’s post by the present Law, the qualifications judicial college shall adopt in respect of every one of these citizens a motivated decision on the refusal to recommend him for the post of judge and shall announce through the mass media a new place and time for accepting and considering applications from the contenders for the post of judge.

The decision of the qualifications judicial college on recommendation for the post of judge may be appealed against in court, if the college has violated the procedure for selecting the contenders for the post of judge established by this Law. The decision on the refusal to recommend a contender for the post of judge may be appealed against in court both in connection with a violation of the procedure for selecting the contenders to the post of judge, and on the merit of the decision.;

9. The decision of the qualifications judicial college on recommending a citizen for the post of judge shall be directed to the chairm an of the corresponding court, who, if he agrees with the said decision, shall make in the established order the representation on the appointment of the recommended person to the post of judge.

If he disagrees with the said decision, the chairman of the court shall return it for a repeated consideration to the same qualifications judicial college. If the qualifications judicial college confirms its initial decision after the repeated consideration by two-thirds of the college members’ votes, the chairman of the court shall be obliged to make the representation of the recommended person to the post of judge.

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[[19]]19. International Commission of Jurists, The State of the Judiciary in Russia (November 2010), p. 12.[[19]]

[[20]]20. International Commission of Jurists, The State of the Judiciary in Russia (November 2010), p. 12-13.[[20]]

[[21]]21. Law on the Status of Judges in the Russian Federation, [expand title=”Article 5.”]