Promoting Rule of Law
Working together for human rights and a democratic Europe* Judicial independence and Judicial independence
accountability, access to justice Across the OSCE participating States covered by this initiative, important trends and challenges and the right to a fair trial are key to judicial independence have been identified, elements of the rule of law and including political or executive influence over human rights protection. judicial appointments, promotion, disciplinary sanctions and/or court administration. Bodies intended to safeguard judicial independence Pressure on justice systems continues to rise — such as judicial councils — can themselves in many countries across the OSCE region, become politicized, may not adequately represent with concerns regarding respect for rule of law the judiciary, or may face political deadlock. principles, including judicial independence, Disciplinary systems may be applied in ways that which is integral to the concept of separation of discourage independent decisions, creating a powers. Political influence over the judiciary and ‘chilling effect’. Public trust in the judiciary also other challenges to the independent and effective remains a challenge in some countries, including functioning of justice systems can erode trust where perceptions of undue political or other in the judiciary and in public institutions more influence exist. broadly. They also impact courts’ ability to resolve cases independently, fairly and efficiently, with Access to justice tangible consequences for people’s everyday lives. Dialogue between stakeholders, including Access to justice remains difficult for many. Courts judges, legal professionals, academia, civil face shortages of staff and resources, and significant society and international organizations, such as caseloads, which lead to lengthy proceedings. the OSCE’s Office of Democratic Institutions and Digital tools that could improve efficiency may be Human Rights (ODIHR), can provide an important incomplete or not uniformly available. Legal aid — space to address some of these concerns, support with legal costs for people who cannot exchange good practices, identify actions and afford a lawyer — is unevenly accessible across support stronger justice systems across the 15 the states covered by the initiative and is, at times, EU countries covered by this initiative. ineffective, insufficient and/or difficult to access, especially for vulnerable groups, people in detention OSCE commitments to the rule of law or those on low incomes.
The rule of law is a fundamental pillar of any Right to fair trial democratic society. ODIHR is mandated to assist OSCE participating States to “ensure full respect In some jurisdictions, the effective enjoyment of the for human rights and fundamental freedoms, to right to a fair trial is undermined by chronic delays abide by the rule of law, to promote principles and case backlogs. Cases can drag on for years, of democracy and (…) to build, strengthen and raising concerns regarding the right to a hearing protect democratic institutions, as well as promote within a reasonable time. Enforcement of court tolerance throughout society”, Helsinki Document decisions can also present challenges, including (1992). OSCE participating States have repeatedly delays in the implementation of judgments of committed to upholding the rule of law, ensuring the European Court of Human Rights. In some judicial independence and protecting fair trial rights contexts, concerns have also been raised through numerous decisions and declarations, regarding the transparency of case assignment including the Copenhagen Document (1990), and access to timely legal advice, interpretation, Charter of Paris (1990), Moscow Document or protection in sensitive proceedings including (1991), Ljubljana (2005) and Brussels (2006). asylum and administrative cases. Justice system reforms On request, ODIHR monitors processes for judicial appointments and the evaluation Reforms of justice systems are frequently of integrity and/or qualifications of judges, characterized by political motivation, accelerated assessing their fairness and compliance with legislative processes with limited public international standards on judicial independence consultation, inadequate impact assessments and and human rights. In addition, upon request, insufficient adherence to established international ODIHR reviews draft and/or existing legislation standards. This increases the likelihood of to assess its compliance with OSCE human reversals or modifications of prior reforms, dimension commitments and international human producing volatility rather than coherent long- rights standards. term institutional development. Such measures often recalibrate the institutional balance of power To strengthen safeguards for due process, in favour of political actors, thereby diminishing ODIHR promotes institutional reforms to help independent checks and safeguards. Once the criminal justice actors (e.g., lawyers, judges, foundational legal framework governing the prosecutors, law enforcement) work transparently administration of justice has been compromised, and in compliance with human rights obligations. the restoration of structures fully compliant with The Office offers expert assistance on the rule of law principles presents substantial and reform of criminal procedures and prosecutorial enduring challenges. systems, and organizes regular exchanges for officials, practitioners and academics to discuss Additional challenges to the rule of law criminal justice policy issues.
Other challenges include public attacks against ODIHR observes trials and makes judges, lack of integrity and weak institutional recommendations to participating States on response to high-level corruption, pressure on the fair trial rights. ODIHR acts as a repository media and restrictive civic space, as well as lack of expertise and successful strategies and of gender balance and minority representation in methodologies from across the OSCE region justice systems. These factors make it harder for and has developed a number of trial monitoring courts to hold the powerful to account and for tools designed to assist legal professionals citizens to believe the system works fairly and trial monitors in their work, as well as non- for everyone. governmental organizations and OSCE field operations engaged in trial monitoring. ODIHR’s work on the rule of law
ODIHR has published two complementary sets of recommendations on judicial independence and accountability: the 2010 Kyiv Stronger rule of law protects Recommendations on Judicial Independence everyone’s rights, keeps courts in Eastern Europe, South Caucasus and fair and free from undue influence, Central Asia (Kyiv Recommendations) focus on and underpins democratic stability. judicial appointments, court administration and Understanding these shared accountability, while the 2023 Recommendations challenges and the efforts to address on Judicial Independence and Accountability them is a first step towards informed (Warsaw Recommendations) set out universal public discussion and support for principles for a broader range of issues, improvements that benefit people including mechanisms for ensuring judicial across the OSCE region. independence and accountability and ways to balance them effectively. ODIHR tools for RECOMMENDATIONS ON JUDICIAL participating States INDEPENDENCE AND ACCOUNTABILITY and practitioners (Warsaw Recommendations), 2023 Recommendations on Judicial Recommendations Independence and on Judicial
In 2019, in response to followed by extensive Independence and Accountability Accountability (Warsaw (Warsaw Recommendations) Recommendations) numerous requests for further assessment of the 2023
guidance on issues related to thematic areas in focus. judicial independence falling The Recommendations on Kyiv Recommendations on Judicial outside the geographic and Judicial Independence and OSCE Office for Democratic Institutions Max Planck Minerva Research Group and Human Rights on Judicial Independence
Independence in Eastern KYIV RECOMMENDATIONS ON JUDICIAL INDEPENDENCE IN EASTERN EUROPE, SOUTH CAUCASUS AND CENTRAL ASIA
- Judicial Administration, Selection and Accountability - Kyiv, 23-25 June 2010
thematic scope of the Kyiv Accountability (Warsaw Judicial independence is an indispensable element of the right to due process, the rule of law and
Europe, South Caucasus democracy. In an effort to support countries in Eastern Europe, South Caucasus and Central Asia in strengthening judicial independence in line with these principles, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) together with the Max Planck Institute for Comparative Public Law and International Law (MPI), organized and hosted a regional expert meeting on Judicial Independence in Kyiv. The meeting was attended by approximately 40 independent experts, among them prominent scholars and senior practitioners from 19 OSCE participating States, and from the Council of Europe and its Venice Commission.
Following an in-depth research of legal systems and practices regarding judicial independence,
and Central Asia ODIHR and MPI selected three themes that are of particular relevance for judicial independence: (1) Judicial Administration with a focus on judicial councils, judicial self-governing bodies and the role of court chairs; (2) Judicial Selection – criteria and procedures; and (3) Accountability of
Recommendations, ODIHR Recommendations) are the Judges and Judicial Independence in Adjudication. The meeting concluded with the adoption of a – non-exhaustive – set of recommendations (enclosed "Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia"). The purpose of these recommendations is to further strengthen judicial independence in the region within the three selected topical areas.
Participating States are invited to review the ideas and guidance contained in the Kyiv Recommendations, identify areas where their practice already corresponds to what is recommended, and share relevant information with ODIHR. ODIHR will accordingly facilitate the exchange of expertise and provide technical assistance for the benefit of participating States that express the interest to further strengthen the independence of their judiciaries by implementing the measures contained in the Kyiv Recommendations.
initiated a comprehensive result of this review process. consultative and expert- Trial Monitoring: A driven process to ensure The Warsaw Reference Manual for Practitioners, Revised that its recommendations TRIAL MONITORING
Recommendations are A Reference Manual for Practitioners
Edition on judicial independence intended to deliver a practical Trial Monitoring A Reference Manual for Practitioners
respond effectively to current tool for stakeholders across Revised edition 2012 ODIHR
challenges. The inaugural the OSCE region who engage Legal Digest of meeting of a core group of with justice systems in International Fair Trial experts convened in Warsaw, different capacities. Rights
Fair Trial Rights and Public Health Emergencies Fair Trial Rights and Public Health Emergencies
The 15 EU countries covered by this initiative are: The recommendations in this policy brief are a part of ODIHR’s ongoing efforts to respond to human rights challenges caused by the COVID-19
Bulgaria, Croatia, Cyprus, Czechia, Estonia, Greece, pandemic throughout the OSCE.
Hungary, Latvia, Lithuania, Malta, Poland, Portugal, Romania, Slovakia and Slovenia. Gender, Diversity and Gender, Diversity and Justice Justice: Overview and More information about ODIHR and the EEA Overview and Recommendations Recommendations and Norway Grants is available at: https://odihr.osce.org/project/665539 Gender, Diversity and Justice | 1 ODIHR
OSCE Office for Democratic Institutions and Human Rights
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