Special Processes for the Reassessment and Removal of Judges in the Context of a Constitutional Transition: Strengthening the Rule of Law?

从专制统治向宪政民主过渡的社会在发展真正独立的法院方面面临着深刻的挑战，这些法院能够根据法治履行其必要的职能，从执行权利到以有利于经济发展的方式公正地解决商业纠纷。这些社会必须在很早的时候就决定是否保留在独裁统治下任职的法官。他们是否必须享有任期保障-这是保护司法独立的标准手段-或者是否可以要求这些法官经过重新评估和免职的特别程序？本项目研究如何设计这类程序及其对法治的影响。一方面，由于专制政权而获得职位的法官可能不愿意或不能以应有的独立性和公正性履行职责。另一方面，任何涉及罢免法官的程序都有可能为未来的政府创造一个先例，让他们策划罢免他们不喜欢的法官。因此，在那些决定修改或暂停法官任期的国家，重新评估和免职的特别程序的设计对法治至关重要，迄今为止，大多数特别程序似乎主要是出于政治和实际考虑，而不是出于对法治的原则性思考。例如，计划中的西德司法“去纳粹化”由于缺乏与纳粹党没有联系的合格法官而被缩减。自冷战结束以来，一些东欧国家选择不对其法官进行严格审查，而另一些国家则要求所有法官重新申请其职位。在拉丁美洲，真相委员会审查了军事统治下的司法记录，即将上任的政府经常坚持要求最资深的法官辞职或被解雇。在阿拉伯世界，伊拉克的司法机构被高度政治化的“去复兴党化”进程摧毁，突尼斯最近允许其真相委员会建议对法官进行纪律处分。在非洲，肯尼亚根据新宪法开展了司法审查进程。我们的研究将使用比较方法来分析特殊程序，并研究如何设计这些程序以加强法治。该项目的核心将是由对转型期国家司法改革有内部了解的专家进行的8个案例研究。项目小组将利用这些案例研究，建立一个更广泛的特殊工艺类型，并酌情就设计每一主要类型的良好做法提出建议。这可能为重新审视目前对转型期国家独裁时代法官问题保持沉默的国际准则提供了依据。我们的参与者包括一个由3名高级专家和2个国际伙伴组织（国际民主选举学会和威尼斯委员会）组成的协商小组，它们就宪法过渡提供咨询和技术援助。该项目的结果将对转型国家的政府和政治团体、负责实施司法改革的机构、致力于这些问题的国际机构、法官和律师以及民间社会产生影响。我们设计了一个双向参与策略，以接触和咨询尽可能多的研究用户。这一进程是建立在我们的参与者的实际经验及其在该领域的广泛网络的基础上的。还将通过这些网络传播项目产出，以最大限度地扩大这些产出用于过渡社会的前景，造福于普通民众，他们的权利和经济利益将因加强法治而得到促进。

Societies in transition from authoritarian rule to constitutional democracy face profound challenges with regard to developing genuinely independent courts that are able to perform their necessary functions under the rule of law, which range from enforcing rights to resolving business disputes impartially in a way that is conducive to economic development. These societies must wrestle very early on with the decision of whether to retain judges who served under authoritarian rule. Is it essential that they enjoy security of tenure - a standard means of protecting judicial independence - or may these judges be required to undergo a special process of reassessment and removal?This project examines how such processes are designed and what implications they have for the rule of law. On the one hand, judges who owe their positions to an authoritarian regime may be unwilling or unable to perform their functions with due independence and impartiality. On the other hand, any process that involves the removal of judges risks setting a precedent for future governments to engineer the removal of judges whose decisions they dislike. In those countries that decide to modify or suspend judicial tenure, the design of special processes of reassessment and removal is therefore of critical importance to the rule of law.To date, most special processes appear to have been largely shaped by political and practical considerations rather than principled thinking about the rule of law. The planned 'de-Nazification' of the West German judiciary, for example, was scaled back due to a shortage of qualified judges without links to the Nazi party. Since the end of the Cold War, some countries in Eastern Europe have chosen not to subject their judges to significant scrutiny while others have gone so far as requiring all judges to reapply for their positions. In Latin America, truth commissions have examined the record of the judiciary under military rule, and incoming governments have often insisted that the most senior judges resign or be dismissed. In the Arab world, the Iraqi judiciary was decimated by a highly politicized process of 'de-Ba'athification', and Tunisia has more recently enabled its truth commission to recommend the disciplining of judges. In Africa, Kenya has carried out a judicial vetting process under a new constitution. Our research will use a comparative methodology to analyse special processes and examine how they can be designed to strengthen the rule of law. At the heart of the project will be 8 case studies by experts with insider knowledge of judicial reforms in a transitional country. The project team will draw on these case studies to build a wider typology of special process and develop recommendations, where appropriate, for good practice in the design of each of the main types. These may provide grounds for revisiting international norms which are currently silent about the problem of authoritarian-era judges in transitional countries. Our participants include a consultation group of 3 senior experts and 2 international partner organisations, International IDEA and the Venice Commission, which provide advice and technical assistance on constitutional transitions. The outcomes of this project will have implications for governments and political groups in transitional countries, for institutions tasked with implementing judicial reforms, international bodies working on these issues, judges and lawyers, and civil society. We have designed a two-way engagement strategy to reach and consult as many of these research users as possible. This process is built on the practical experience of our participants and their extensive networks in the field. The project outputs will also be disseminated through these networks, to maximize prospects that they will be used in transitional societies, to the benefit of ordinary people whose rights and economic interests will be advanced by a stronger rule of law.