Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers In the Constitutional Court case, the Inter-American Court held that the independence of any judge presupposes an adequate process of appointment (“un adecuado proceso de nombramiento”), for a period in the post (“con una duración en el cargo”) and with guarantees against external pressures (“con una garantía contra presiones externas”).35 4.5.2 Security of tenure As indicated above, unless judges have some long-term security of tenure, there is a serious risk that their independence will be compromised, since they may be more vulnerable to inappropriate influence in their decision-making. Principle 11 of the Basic Principles therefore provides that “The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.” Principle 12 further specifies that “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.”36 It would consequently be contrary to Principles 11 and 12 to appoint or elect judges with no guarantee of tenure at all or only a brief period of guaranteed term of office.37 It is by providing judges with a permanent mandate that their independence will be maximized, as will public confidence in the Judiciary. ***** With regard to the situation in Armenia, the Human Rights Committee noted that the independence of the Judiciary was not fully guaranteed, observing, in particular, that “the election of judges by popular vote for a fixed maximum term of six years does not ensure their independence and impartiality”.38 In some countries judges may be obliged to go through a recertification procedure at certain intervals in order to be authorized to continue in office. Faced with this practice in Peru, the Human Rights Committee noted “with concern that the judges retire at the expiration of seven years and require recertification for reappointment”. It considered this “a practice which tends to affect the independence of the Judiciary by denying security of tenure”.39 The Committee therefore recommended to the 35 I-A Court HR, Constitutional Court Case (Aguirre Roca, Rey Terry and Revorado Marsano v. Peru), judgment of 31 January 2001, para. 75 of the Spanish version of the judgment, which can be found on the Court’s web site: http://www.corteidh.or.cr/serie_c/C_71_ESP.html. 36 Recommendation I.3 of Council of Europe Recommendation No. R (94) 12 is identical to Principle 12. 37 The Special Rapporteur on the independence of judges and lawyers has held that while “fixed-term contracts may not be objectionable and not inconsistent with the principle of judicial independence, a term of five years is too short for security of tenure”. In his view “a reasonable term would be 10 years”; UN doc. E/CN.4/2000/61/Add.1, Report on the Mission to Guatemala, para. 169(c). 38 UN doc. GAOR, A/54/40 (vol. I), para. 104. 39 UN doc. GAOR, A/51/40, para. 352. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 127