Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers 1. Introduction This chapter will deal with two of the fundamental pillars of a democratic society respectful of the rule of law and the effective protection of human rights, namely, the independence and impartiality of the judiciary and prosecutors, and the independence of lawyers. It will first describe the role played by judges, prosecutors and lawyers in this regard; and secondly, will focus on the various legal limitations on, and de facto threats to, the ability of judges, prosecutors and lawyers to exercise their professional responsibilities in an independent and impartial manner. Finally, this chapter will analyse the existing international legal standards relating to the functioning of the legal professions and selected relevant case-law. 2. The Role of Judges, Prosecutors and Lawyers in Upholding the Rule of Law, Including Human Rights Standards In the modern constitutional State, the principle of an independent Judiciary has its origin in the theory of separation of powers, whereby the Executive, Legislature and Judiciary form three separate branches of government, which, in particular, constitute a system of mutual checks and balances aimed at preventing abuses of power to the detriment of a free society. This independence means that both the Judiciary as an institution and also the individual judges deciding particular cases must be able to exercise their professional responsibilities without being influenced by the Executive, the Legislature or any other inappropriate sources. Only an independent Judiciary is able to render justice impartially on the basis of law, thereby also protecting the human rights and fundamental freedoms of the individual. For this essential task to be fulfilled efficiently, the public must have full confidence in the ability of the Judiciary to carry out its functions in this independent and impartial manner. Whenever this confidence begins to be eroded, neither the Judiciary as an institution nor individual judges will be able fully to perform this important task, or at least will not easily be seen to do so. Consequently, the principle of independence of judges was not invented for the personal benefit of the judges themselves, but was created to protect human beings against abuses of power. It follows that judges cannot act arbitrarily in any way by deciding cases according to their own personal preferences, but that their duty is and remains to apply the law. In the field of protecting the individual, this also means that judges have a responsibility to apply, whenever relevant, domestic and international human rights law. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 115