39529-mem_47-4 Sheet No. 111 Side A 10/02/2017 12:47:34 * ONGE M ILLANUEVA V 1213 ARELA ) 10/1/17) 6:50 PM System Z ELETE D OT N O and Safeguards: (D ONORABLE H DOCX . HE INAL T F I have been asked to address the topic of judicial independence, independence, to address the topic of judicial I have been asked powers, whichThe principle of the separation of is essential to Let me point to the constitutional provisions that define the I am to participate in this event. grateful for the invitation Perspectives from Another Legal Legal Another from Perspectives ILLANUEVA ILLANUEVA Judicial Independence, Challenges, Challenges, Independence, Judicial M K Among my motivations is the for accepting this opportunity long-last- together with the our two countries have enjoyed, ing friendship that a history of respect for fundamentalfact that we share rights. and it must first be understood that my remarks relate to the historic Republic of Costa Rica. The the development of a particular country, the founding documentcountry’s Constitution of 1949, considered of a republican systemour Second Republic, is based on of government with separation of powers. a democratic state, can be seen as a mechanism of checks and balances of political power—asdesigned to avoid the concentration a safeguard against tyranny. An essential element of the system is the principle of prohibition on interference in its respect for judicial authority and the exercise: in brief, what is known as judicial independence. scope of the Judicial Branch’s powers guarantee its functioning, and beginning with the republican model and its classic division into three branches, Legislative, Executive, distinct and independent powers or and Judicial. Under our Constitution, the judicial power is exercised en Derecho Agrario, Especialista Derecho, Universidad de Costa Rica, 1977; * Universidad de Costa Rica, 1984; Master en Violencia Social y Familiar, Universidad Justice, Supreme Court of Justice of Costa Rica; Licenciada en Chief Estatal a Distancia, 2003. The text is a translation into English of Dr. Villanueva’s prepared remarks, which were in Spanish. 10. V C Y 39529-mem_47-4 Sheet No. 111 Side A 10/02/2017 12:47:34 10/02/2017 A No. 111 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 111 Side B 10/02/2017 12:47:34 M K C Y To pre- 2 [hereinafter ICA R Vol. 47 Vol. 3 OSTA C 4 EPÚBLICA DE R ) 10/1/17) 6:50 PM ELETE D OLÍTICA DE LA P OT Financial independence is ensured by the con- Financial independence is ensured N 1 O (D The University of Memphis University The Review Law DOCX . art. 177. art. 167. art. 158. , , , INAL ONSTITUCIÓN F . C. R.], art. 154. The official text of the Costa Rican Constitution can be Id. Id. Id. OL I would to emphasize like the Supreme that Court, ultimate as the SupremeIn its functioning, Con- Court is subject only to the The Legislative Assembly, capacity as the representatives in its .P ILLANUEVA ILLANUEVA ONST found at http://www.mep.go.cr/ley-reglamento/constitucion-politica-republica-costa- 3. 4. stitutional guarantee that a minimum of 6 percent of the national to the judicial system.budget’s ordinary revenues be allotted 1. C 1. 1214 Supremeby the (“Supreme of Justice Court composed Court”), of country. throughout the other, lower courts justices, and twenty-two employeesAll judicial of the Supreme are under the authority Court. system, under our unique In addition, Office, the the Prosecutor’s Of- administered Police are all Judicial and the Public Defender, fice of the feature aimed by the Supreme the at guaranteeing a structural Court, these entities. independence of and administration has in its charge the governance judicial authority, system.of the entire court the scope of its attributions embraces Thus administrative the strict sense, judicial affairs in matters, the budget, investments, and others. In the rules for hiring personnel, defining short, the Supreme administrative Court has global for responsibility by the court systemthe services provided in its entirety. in the Constitution,clearly set forth stitution and to the law. This is of governmentwhich bars subjection to other branches or to internal or external interests. 10. V vent interference in the organization and operation of the judiciary, the vent interference in the organization Legislative Assembly must request the opinion of the Court regarding any bill that affects it and a supermajority vote is required for the As- sembly issued by the Court. to overrule the opinion C of the people, is responsible for the appointmentof the people, is responsible for of membersthe of Supreme through a competitive Court. This occurs public process and review of nominees’ qualifications. The term of service for a justice whichis eight years, at the conclusion of a like period is reelection to considered automatic unless a supermajority the mem- of two-thirds of bers of the Assembly decides to the contrary. rica. This and subsequent quotations from the text of the Constitution have been translated into English. 2. 39529-mem_47-4 Sheet No. 111 Side B 10/02/2017 12:47:34 10/02/2017 B No. 111 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 112 Side A 10/02/2017 12:47:34 1215 1215 ) 10/1/17) 6:50 PM ELETE D OT N O (D Perspectives from Another Legal System Legal Another from Perspectives DOCX . INAL F Accompanying this framework re- disciplinary is a of stability structure key features of the constitutional These, then, are the I will mention the only instance of a Supreme Court Justice not The decision, and the Deputy’s comments, strong re- elicited a ILLANUEVA ILLANUEVA M K 2017 10. V gime that members guaranteeing be dismissed of the Court cannot ex- cause and followingcept for such by as are prescribed such procedures law.regime The by the Court is applied event that a itself. In the appointmentjustice’s procedure has the applicable is revoked, once been completed, Court the informsLegislative Assembly, the that it so resolution. can adopt the corresponding that protects the Supreme as a whole,the courts Court, and from inter- of government,ference by other branches its independence and ensures and administration.relative to finances a member of Justice Fernando Cruz Castro, being reelected, that of the Constitutional Chamber, of our in 2012. In the 68 years of existence current Constitution, had never before occurred that a Supreme it Court justice was denied reelection. Justice Cruz complete his first term on the Court in 2012. Under the Constitution, the Legislative Assembly had to determine Justice Cruz´s continuing in office. Without justifi- Through reelection. against cation, the Legislative Assembly decided the media, a member of the Assembly explained the decision as a way Assemblyto restore the status of the Legislative as the preeminent branch of government, in the face of alleged “excesses” and “non-gov- ernability” attributed to the Constitutional Chamber of the Supreme Court. Availing himself expression, the Deputy stated of a popular was madethat the decision against Justice Cruz “to teach them a les- son.” sponse from the Court itself, as well as from legal community the both of the Court’s independence. nationally and internationally, in defense street marches and expressions The repudiation of this action through in the national media was such movement the greatest in the history of motions fromto the Costa Rican judiciary and led the members of the Assembly Finally, a judicial ruling from to revoke their decision. the Constitutional Chamber of the Court, which had to be convened with substitute Justices able to hear the case, struck down the Congressional measure on the basis of the constitutionally-mandated time to adopt it having been exceeded. C Y 39529-mem_47-4 Sheet No. 112 Side A 10/02/2017 12:47:34 10/02/2017 A No. 112 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 112 Side B 10/02/2017 12:47:34 M K C Y IARIO ,D ACETA G imposes a se- Vol. 47 Vol. 5 A ) 10/1/17) 6:50 PM ELETE D OT N O (D The University of Memphis University The Review Law DOCX . INAL F Solidifying the stability and independence of the judiciary has Solidifying the stability and independence The matterThe González of Justice Camacho comes also to mind, to the guar- of judicial independence is related The other sphere Regarding statute this issue the Court’s organic In 1993, the Career Judiciary Law was enacted with the aims of In 1993, the Career Judiciary Law , 1 July 1993. ILLANUEVA ILLANUEVA FICIAL Statute of the Judicial Branch] [hereinafter: Organic Statute], L 5. O Ley No. 7333, 31 March Judicial [Organic 1993, Ley Orgánica del Poder 1216 10. V in this broad area. There, the Court itself had recommended the Court itself had area. There, in this broad that Con- appointment. the justice’s gress revoke discipli- was the result of This of sexual harassment in 2013, on charges initiated nary proceedings, made him against con- to revoke was The decision female by a judge. firmed by the handled internally investigation was Congress. The by charged. Un- process guaranteed to the person Court, with the due The decision was to judge one’s own peers. doubtedly, it is difficult not unanimous,a majority but finally agreed upon by 15 to 7, after of numerous of voting. rounds absolute independ- judges to issue their rulings with antees that allow ence from How can we assure the conditions any outside influence. by the pressure of judges’ decisions are not affected necessary so that whetherinterests or forces, external or internal? ries of limitations on all judicial employees—be they judges, adminis- the Supremetrative personnel, or, in the case of Court, employees of the Prosecutor’s Office, Office Judicial of the Public Defender, and the Police. Employees are prohibited from practicing, outside of the judi- cial institution, the profession from which they wereappointed; from activity other than casting ballots engaging in any political or electoral in public elections; from praising or criticizing public officials or agen- cies for their acts; and from any involvement undertaking or expressing any opinion regarding matters pending before a court. 1993, the appointmentbeen an evolving process. Prior to of judges was to six-year terms,reelection subject to reelection; a decision against could be made withoutwithout any corresponding proceeding and for- mal cause. This situation highlighted the precariousness to which their decisions. judges could be subjected based on and ongoing professional devel- fostering a highly qualified judiciary opment, ensuring objective hiring practices, and regulating the salary, transfer, and promotion judges at all levels, with the exception of of 39529-mem_47-4 Sheet No. 112 Side B 10/02/2017 12:47:34 10/02/2017 B No. 112 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 113 Side A 10/02/2017 12:47:34 6 9 1217 1217 begin with the fundamen- 7 terest/Pages/IndependenceJudiciary.aspx. , 14 May 1993. ) 10/1/17) 6:50 PM ], G.A. Res. 40/32 (Nov. 29, 1985); G.A. Res. 40/146 ELETE D FICIAL Basic Principles on the Independence of the Judiciary O OT N O (D IARIO Perspectives from Another Legal System Legal Another from Perspectives ,D DOCX . , art. 4. , art. 1. INAL F Improper intrusions into the judicial sphere are prohibited: UN Basic Principles ACETA 8 Id. Id. G I have expressed on numerousI have expressed occasions that job stability must a matterJudicial independence is not solely of national law; an There shall be no inappropriate or unwarranted interference There shall be no inappropriate The importance of non-removability is also underlined. Judges A ILLANUEVA ILLANUEVA M K 9. 9. (Dec. 13, 1985), (Dec. 13, 1985), http://www.ohchr.org/EN/ProfessionalIn 8. 7. United Nations, United 7. [hereinafter This legislation has promotedThis legislation judiciary in of respect for the a culture independ- of judicial and for the protection of its duties, the exercise outside encroachment.ence against As into the result, any intrusion a judicial realm to the law not according considered unaccepta- is today ble. be accompanied no less than other public by accountability; judges, servants, must perform and with their jobs efficiently respect for the not a license to act arbi- is unequivocally law. Judicial independence by mechanismstrarily, or unfettered to ensure the proper discharge of independence of with the resolute defense of the official duties. Along judiciary is workingthe institution, the steadfastly to strengthen mech- anisms of performance so as to evaluation and accountability promote public resources service and responsible use of the a culture of efficient entrusted to us. international legal framework is also relevant. The Basic Principles on adopted and confirmedthe Independence of the Judiciary, by the United Nations General Assembly in 1985, with the judicial process, nor shall judicial decisions by the courts be with the judicial process, nor shall to judicial re- is without prejudice subject to revision. This principle view or to mitigation or commutation by competent sen- authorities of tences imposed by the judiciary, in accordance with the law. Law], L 6. Ley No. 7338, 5 May 1993, Ley de la Carrera Judicial [Career Judiciary 2017 Supremewhojustices, Court Assembly.by the Legislative elected are 10. V tal stricture that “[t]he independence of the judiciary shall be guaran- tal stricture that “[t]he independence the Constitution or the lawteed by the State and enshrined in of the country.” are not to be subject to removal account of their judicial decisions, on C Y 39529-mem_47-4 Sheet No. 113 Side A 10/02/2017 12:47:34 10/02/2017 A No. 113 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 113 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. 11 In such cases, the Court of Judicial In- In such cases, the Court of Judicial ) 10/1/17) 6:50 PM 13 ELETE D art. 28. This and subsequent quotations from statutory OT N O (D The University of Memphis University The Review Law DOCX . Statistics bear out the high rate of dismissal Statistics bear out the high rate of com- 10 art. 199. 12 , art. 18. , INAL F Id. Id. Id. With matters, regard to disciplinary our Organic Law forth sets are imposedDisciplinary sanctions solely upon completion of The grounds for removal from office are strictly limited. The The Organic contains this forthright statement Statute also of ILLANUEVA ILLANUEVA 13. 13. plaints meant procedures as a weapon to attack the to use disciplinary impropercontent of judicial rulings, or to exercise pressure against a judge. The second part of the same however, con- statutory provision, templates proceedings to go an exception. allowing for disciplinary delay or error in the ad- forward “in cases of serious and unjustifiable ministrationof justice. . . .” 11. Organic Statute, Organic 11. 10. 10. 1218 or removal to suspension be subject “shall they but rather, only for them that renders incapacity or behaviour reasons of unfit to discharge their duties.” 10. V spection, having conducted the relevant investigation, must informspection, having conducted the relevant the texts have been translated into English. texts have been translated into English. 12. the procedure to be followed, what types of conduct are sanctionable, conduct are sanctionable, types of what to be followed, the procedure mandates The law sanctions. and the corresponding by the provision free of charge. Sanctionable of legal assistance, the institution itself to the fulfillmentconduct is related not of the duties of judicial office, of the judge´s rulings. with the substance by law, and are administeredall procedures required by an office Branch whose memberswithin the Judicial are appointed by the Su- premeplenary. These mechanisms Court in apart from are the disci- over their staff in matters exercised by superiors plinary authority of minor misconduct. for re- list of proper causes Organic Statute provides the following moval: misconduct private misconduct in office, or that affects the per- formanceimage or of the judiciary; incompetence or inadequacy for or the operation of any of the dis- the discharge of professional duties; qualifications for public office. the inadmissibility based on the substance of disciplinary proceedings of a judge’s decisions: “Any complaint made reference with exclusive to matters normsinterpretation of juridical of shall be categorically dismissed.” 39529-mem_47-4 Sheet No. 113 Side B 10/02/2017 12:47:34 10/02/2017 B No. 113 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 114 Side A 10/02/2017 12:47:34 1219 1219 14 ) 10/1/17) 6:50 PM ELETE D OT N 15 O (D Perspectives from Another Legal System Legal Another from Perspectives DOCX . INAL F Id. The ultimate significance of judicial independence to the citi- independence to The ultimate of judicial significance inde- existence of the guarantee of judicial [t]he reason for the Therefore, and in keeping with international norms,Therefore, and in keeping with international the Court On previous occasions, when the Constitutional Tribunal has When performance duties enters the realm of a judge’s judicial ILLANUEVA ILLANUEVA M K Resolución No. 2015-016072 (Oct. 16, 2015). 14. This and subsequent quotations from judicial opinions have been translated into English. Corte Suprema República de Costa Rica, de Justicia, Sala Constitucional, 15. 2017 SupremeCourt of the matter may the latter so that the continu- decide or terminationity, suspension, the Supreme the officer in question; of in makingCourt’s role procedural safe- is intended as a such decisions guard. While the as conflicting with been questioned the provision has Chamber our Constitutional of independence, principle it. has upheld zenry was in a recent ruling in which underscored the Constitutional Chamber stated that, juridically, in respect to those respect to the judge, but rather pendence is not in persons who avail themselves to them. of the courts or are subject system, receiving the services of the judicial Those persons, in have not deny them that is speedy, proper, that does the right to justice their followsrights, and that strictly law the (ArticleConstitution). 41 of the of the judge are professional skill and qualifications To those ends, the nothing short of fundamental. 10. V has stated that the non-removability judges, an essential element of of not absolute. The right of the judicial independence, is nonetheless of quality justifies the application of people to receive judicial services and unjustified errors in the admin-disciplinary procedure for serious istration of justice—provided are not based on such proceedings that mere disagreement or reasoning, for discipline over legal interpretation on such a basis would violate the constitutional guarantee of judicial independence. Article, it has stated that the dif- ruled on the constitutionality of this so as to ensure promptferent principles at stake must and be balanced effective justice efficiently administered, independence, trans- judicial parency, and accountability, all of which are essential features of a democratic republic under the rule of law. Thus, a proper balance must of egregious error, manifest arbitrariness, or clear incompetence, the to competent,Court continued, the people’s right lawful administration of justice is violated. C Y 39529-mem_47-4 Sheet No. 114 Side A 10/02/2017 12:47:34 10/02/2017 A No. 114 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 114 Side B 10/02/2017 12:47:34 M K C Y 16 Vol. 47 Vol. At glance, first 17 ) 10/1/17) 6:50 PM ELETE D 18 OT N O (D The University of Memphis University The Review Law DOCX . INAL F Under the applicable inter-Ameri- and based on these criteria, In like manner, the Constitutional Chamber has declared the Currently, a disciplinary mattera judge is pending be- against In conclusion, allow me to offer the following observations. ILLANUEVA ILLANUEVA can jurisprudence, the Constitutionalcan jurisprudence, Chamberupheld the Su- recently preme to temporarily Court’s decision suspend from office a criminal modified without providing any justification, court judge who, a pre- cautionary measure which al- preventive custody to house arrest, of to flee the country. concerned lowed the individuals Resolución No. 2001-00249 (Jan. 10, 2001). 16. República de Costa Rica, Corte Suprema de Justicia, Sala Constitucional, Resolución No. 2015-016072 (Oct. 16, 2015). 17. Rica, Corte Suprema República de Costa de Justicia, Sala Constitucional, Resolución No. 9495-2008 (June 6, 2008). 18. República de Costa Rica, Corte Suprema de Justicia, Sala Constitucional, 1220 betweenbe sought and non-removabilitystability of guarantee the of as elementsthe judges against the on the one hand, independence, of and lawfulefficient other, in order authority, on the of judicial exercise the proper administrationto ensure to all citizens. of justice 10. V it might seem that the ruling amountedto interference with a duly is- sued judgment. examination However, further of the judge’s decision marked area concerned was one reveals that the geographical by wide- circumstancenot a organized crime, spread activity by the judge was free to ignore. Furthermore, for the change from the reason the pre- cautionary measure of preventive detention to house arrest was not ex- plained by the judge. With regard to this admittedly extreme case, the judicial rulings cannot be arbitrary, Court was at pains to declare that but must set forth the grounds that support the decision. interfere withnullity of disciplinary rulings that the interpretation and application of the law. fore the Supreme Court. The case concerns a judicial decree authoriz- of the sameing the civil union of two individuals sex. The judge is charged with disobeying an order from the Constitutional Court to withhold issuing the decree pending resolution of the constitutionality The disciplinary pro- recognizing such unions. of the statute allegedly ruling as to the statute’s constitu- ceeding has been continued until the tionality has been handed down. safeguard in two ways. It pro- First, judicial independence is a crucial tects those who exercise judicial authority, making it possible for them 39529-mem_47-4 Sheet No. 114 Side B 10/02/2017 12:47:34 10/02/2017 B No. 114 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 115 Side A 10/02/2017 12:47:34 1221 1221 ) 10/1/17) 6:50 PM ELETE D OT N O (D Perspectives from Another Legal System Legal Another from Perspectives DOCX . INAL F Second, this safeguard requires the existence of conditions that of conditions the existence this safeguard requires Second, to rememberThird, it is vital judicial independence em- that Fourth, those who administera public service justice provide underscores the central Fifth, the current context increasingly Finally, the judiciary must also have the capacity to read the ILLANUEVA ILLANUEVA M K 2017 judgmentsto issue the constitution. and the laws basis of on the solely At the sametime, rights that their the public, guaranteeing it protects will in the resolution of conflicts the peaceable respected, ensuring be institutions. in the country’s promotingsociety and confidence of government, regard to other branches judiciary with buttress the af- freedomfording judges the Specifically, to carry out their functions. salary and pension stability in office, an adequate there is a need for disciplinary regimeplan, and a proper In this that ensures due process. regard, the establishment is necessary, one with of a career judiciary for recruitmentobjective criteria and promotions. meanphatically does not absence of controls. arbitrary conduct or the must judges are subject to the law and As public servants, be account- much Such accountability is very able for their actions. in the public interest. legal provisions that govern the dis- and are therefore subject to all the as wellcharge of their specific responsibilities as their conduct as pub- lic servants more accountable broadly. The recognition that judges are for productive job performance—bothin terms individually and of the chambersto them—represents assigned not easy to a cultural shift achieve. This is still an on-going process. a democraticrole of the judiciary in maintaining system and the respect for fundamental rights. We must therefore be vigilant in the face of of the judicial branch. any threat to the continued vitality signs of the times. We must are understand how relevant our decisions underlie democracy. to the defense of the principles that 10. V C Y 39529-mem_47-4 Sheet No. 115 Side A 10/02/2017 12:47:34 10/02/2017 A No. 115 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 115 Side B 10/02/2017 12:47:34 M K C Y *** 39529-mem_47-4 Sheet No. 115 Side B 10/02/2017 12:47:34 10/02/2017 B No. 115 Side Sheet 39529-mem_47-4