Latin American
Regional Forum
Appointment, control and removal of judges in the region
International Bar Association
4th Floor, 10 St Bride Street
London EC4A 4AD, United Kingdom
Tel: +44 (0)20 7842 0090
Fax: +44 (0)20 7842 0091
www.ibanet.org
Latin American
Regional Forum
Appointment, control and removal of judges in the region
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LATIN AMERICAN REGIONAL FORUM
The Latin American Regional Forum, through its Young Council, is proud to publish and
launch its first investigation work. After months of hard work and being conscious of the
importance of the matter and its consequences, we have produced this document which
tackles the appointment, control and removal of judges in the Region.
With this first report the Latin American Regional Forum aims at contributing to the
profession by analysing the way in which the region appoints, controls and removes judges
and the impact that it may have on their business climate and investment opportunities.
When we started we decided that our goal would be to analyse through a comparative work
the judiciary system in the Region, understanding that only an independent justice will
assure an adequate development in many aspects, by promoting investment, employment
and finally bringing up wealth and growth.
The findings of the report are very revealing and they show achievements and challenges of
the Region. In the theory, we have found an independence of the judiciary power. However,
in some cases, there are still factual problems that should be addressed. The IBA seems to
be the appropriate vehicle to face the issues.
The present document is intended to serve as a starting point for consideration of these
subjects with the Bar Issues Commission, other Regional Fora or Committees in order to
achieve better practices, to write recommendations and also to contribute to Justice in our
role as lawyers.
Finally, we would like this to be the first of a hopefully long list of contributions of the Latin
American Regional Forum to the International Bar Association and to the legal profession
in general.
We would like to thank the IBA leadership for their support and, especially, the Latin
American Regional Forum members for their work and commitment.
Lisandro AllendePablo Iacobelli
Co-Chair,Co-Chair,
Latin American Regional Forum
Latin American Regional Forum
APPOINTMENT, CONTROL AND REMOVAL OF JUDGES IN THE REGION
iii
Co-Chairs
Lisandro Allende
Brons & Salas, Buenos Aires
Tel: +54 (11) 4891 2706
Fax: +54 (11) 4314 0399
[email protected]
Pablo Iacobelli
Carey & Cia, Santiago
Tel: +56 (2) 928 2215
Fax: +56 (2) 928 2228
[email protected]
Senior Vice-Chair
Marcela Hughes
Hughes & Hughes, Montevideo
Tel: +598 (2) 916 0988
Fax: +598 (2) 916 1003
[email protected]
Vice-Chairs
Carlos Dominguez
Hoet Peláez Castillo & Duque, Caracas
Tel: +58 (212) 201 8548
Fax: +58 (212) 263 7744
[email protected]
David Gutierrez
BLP Abogados, San José
Tel: +506 2205 3903
Fax: +506 2205 3940
[email protected]
Ricardo Veirano
Veirano Advogados, São Paulo
Tel: +55 (11) 5503 3719
Fax: +55 (11) 5505 3990
[email protected]
Website Officer
Estif Aparicio
Arias, Fabrega & Fabrega
Panama City
Tel: +507 205 7000
Fax: +507 205 7001
[email protected]
iv
Secretary
Eugenio Hurtado-Segovia
Capín Calderón Ramírez y Gutiérrez-Azpe,
Mexico City
Tel: +52 (55) 5280 9193
Fax: +52 (55) 5281 0851
[email protected]
Young Lawyers Liaison Officer
Carolina Zang
Zang Bergel & Viñes, Buenos Aires
Tel: +54 (11) 5166 7012
Fax: +54 (11) 5031 2203
[email protected]
Scholarship Officer
Juan Carlos de los Heros
Estudio Echecopar, San Borja
Tel: +51 (1) 618 8500
Fax: +51 (1) 372 7171
[email protected]
Treasurer
Juan Carlos Rocha
Prieto & Carrizosa, Bogotá
Tel: +57 (1) 326 8600
Fax: +57 (1) 326 8610
[email protected]
Newsletter Editor
Júlio César Bueno
Pinheiro Neto Advogados, São Paulo
Tel: +55 (11) 3247 8667
Fax: +55 (11) 3247 8600
[email protected]
LPD Administrator
Charlotte Evans
[email protected]
LATIN AMERICAN REGIONAL FORUM
Appointment, control and removal of judges in the region
Coordinator:
Francisco J Roggero / Bulló - Tassi - Estebenet - Lipera Torassa Abogados
Countries and lawyers participating:
 Argentina: Francisco J Roggero / Bulló - Tassi - Estebenet - Lipera Torassa Abogados
 Bolivia: Carolina Aguirre / Bufete Aguirre Soc Civ
 Brazil: Eleonora Coelho / Castro, Barros, Sobral, Gomes Advogados
 Chile: Cristian Herrera / Cariola Diez Pérez-Cotapos
 Colombia: Alvaro José Rodriguez / Posse, Herrera & Ruiz Abogados
 Costa Rica: Humberto A Pacheco / Pacheco Coto
 Mexico: Juan José López de Silanes / Basham, Ringe & Correa
 Paraguay: José Ignacio Olmedo / Vouga - Olmedo
 Peru: José Tam / Rodrigo, Elías & Medrano Abogados
 Uruguay: Martín Colombo / Ferrere
 Venezuela: Pedro Ignacio Sosa Mendoza / Araque Reyna Sosa
Viso & Asociados
APPOINTMENT, CONTROL AND REMOVAL OF JUDGES IN THE REGION
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Contents
1.
According to the organisation of the state, is the judiciary independent from the executive and the legislature? Are decisions of judges revisable by political organs?
1
2.
Which is the body responsible for the selection and appointment of judges in
your country?
3.
If the judges are appointed, who appoints the judicial selection committee? If they are not appointed, how are judges selected? Is the selection and appointment a transparent process or is it secret or private?
6
3
4.
Is there a code of ethics that judges must comply with? Are there objective standards and regulations contained in the law dealing with the appointment and removal of judges?
10
5.
Does a Council of the Magistracy exist? If it does, how is it composed? Is it independent from the executive?
12
6.
Does the Council of the Magistracy count on disciplinary and removal of judges from the system? If not, which is the body responsible for discipline and the removal
of judges?
15
7.
Is the removal of judges transparent or secretive and who instigates it? Has it
been done in the past for political purposes or because a judge gave an unpopular decision?
17
8.
Please mention cases of judges’ removals and indicate what the authorising statute was at that time. The description of the case does not need to name the particular judge.
20
9.
Does any system of judges training exist? If yes, please indicate in what period
of the judicial career it’s implemented, and if it is considered for eventual
promotions. 23
10.
Do bar associations exercise any control towards judges? If yes, please indicate
its kind.
26
11.
Do guarantees of unremovability of judges and intangibility of their remunerations exist? Are judges free from certain tax payments?
27
12.
How do you think the system of appointment, control and removal of judges
could be improved so that there be judicial independence?
30
13.
How do you think unfair and arbitrary removal of judges may be prevented?
32
14.
Is there currently any bill of law that intends to change the system of appointment, control and removal of judges? If yes, please describe the main changes proposed
by the bill of law and the supporters of such a bill.
34
15.
If you have any additional comments on the subject, please feel free to include
it here.
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1. According to the organisation of the state, is the judiciary independent from the
executive and the legislature? Are decisions of judges revisable by political organs?
Argentina
According to our Constitution, the judiciary is one of the three powers of the state, totally
independent from the executive and legislature and its decisions are not revisable by political
organs.
Brazil
Brazil’s Constitution clearly ascertains the tripartite division of powers, therein establishing
the executive, legislative and judiciary powers. In that sense, the Constitution undoubtedly
declares each power’s independence from one another.
Any judicial decision may only be revised by the respective higher court through a specific
remedy or appeal aiming to alter, correct, complement or, even, maintain the decision under
scrutiny.
Bolivia
According to the Political Constitution, one of the principles of justice is independence which
is guaranteed by the judicial career of judges and the economic autonomy of the judicial
branch. The principle of independence is also recognised by other regulations. The system of
appointment of higher judges has raised certain concerns about their independence.
Decisions of judges are not revisable by political organs.
Chile
The Chilean Constitution establishes that the authority to decide civil and criminal cases
belongs exclusively to the judiciary. Thus, the executive and the parliament are strictly
forbidden to make judicial reviews of the legal basis and contents of judgments.
Colombia
The judiciary power is independent from the executive and legislative power.
According to our Constitution, decisions taken by judges are independent and not subject to
review by political organs.
Costa Rica
In accordance with the Costa Rican Constitution, the executive, legislative and judicial
branches are separated and independent from each other. In such regard, decisions issued
by judges may not be revised by any political organ, and are subject only to the standard
reconsideration and appeal recourses available pursuant to law before higher courts of the
judiciary.
APPOINTMENT, CONTROL AND REMOVAL OF JUDGES IN THE REGION
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There is only one power of the state exercising the judicial function and in the case of our
country, the Supreme Court and other courts established by law are the only ones that can
serve the judiciary.
The principle of independence of the judiciary is both political and functional, and
sentencing is the sole responsibility of the courts.
Mexico
The judiciary power is independent from the executive and legislative. According to
Mexico’s Federal Constitution, the federation’s supreme power is divided for its exercise
into legislative, executive and judiciary branches, in order to prevent the abuse of power and
preserve human rights.
The decisions of federal and local judges are not revisable by political organs. Mexican law
provides a two- or three-instance system, depending on the matter.
Paraguay
The Constitution establishes that independence of the judiciary is guaranteed. Only the
judiciary can hear and decide on contentious events.
Peru
According to the organisation of the Peruvian state, the judiciary is independent from the
executive and the legislature.
The decisions of judges are not revisable by any political organ, excepting the Constitutional
Court, which is an autonomous constitutional organism that is not a part of the judiciary, the
legislative or the executive.
Uruguay
The judiciary is independent from the executive and legislative in the sense that the opinions
are not revisable by the other organs of state.
Venezuela
According to our national Constitution, the judicial power is totally independent from
the executive and legislative powers. Our Constitution establishes several mechanisms to
guarantee the well-known ‘separation of powers’. Political organs should never review judges’
decisions.
However, human rights organisations have been denouncing at the International Court
of Human Rights problems with the impartiality of our judges because many of them have
been appointed as ‘provisional judges’, avoiding the requirements of the law for his/her
designation.
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2. Which is the body responsible for the selection and appointment of judges in your
country?
Argentina
Since the last amendment of our Constitution in 1994, that created the Council of the
Magistracy, this body has been responsible for the selection, control and removal of judges
in our country.* However, after the selection process, the Council gives a shortlist to the
executive power and the executive sends the final appointee to the legislative, so that they
approve the appointment.
Brazil
In Brazil, there is no one body responsible for the appointment or selection of judges
countrywide, rather the appointment and selection of judges is dictated by each court’s
internal rules, according to the limits set forth by the Federal Constitution and by the Conselho
Nacional de Justiça (CNJ), which is a body intended to promote the due organisation and
development of the national judiciary system. However, the justices of the Supreme Federal
Court and Superior Court of Justice are appointed by the executive power and approved by
the Senate.
Bolivia
Magistrates of the Supreme Tribunal of Justice, the Agro-environmental Tribunal, the Plurinational Constitutional Tribunal and the Council of the Magistracy are elected by a complex
system of popular vote. The Pluri-national Legislative Assembly conducts a pre-selection of
pre-qualified applicants per department and refers a list to the electoral body in order to
organise the election process. Candidates are elected by simple majority of votes and the
President is in charge of their formal appointment.
Judges of Departmental Tribunals of Justice are appointed by the Supreme Tribunal of
Justice.
Lower judges are appointed by the Council of the Magistracy.
Indigenous nations exercise certain jurisdiction and competence in application of their own
principles, cultural values, regulations and procedures and through their own traditional
authorities.
Chile
The selection and appointment of judges is regulated in the Constitution and the organism
*
With the exception of the justices of the Supreme Court that are appointed directly
by the executive power and confirmed by the Senate and whose removal is through a
political impeachment by the legislature.
APPOINTMENT, CONTROL AND REMOVAL OF JUDGES IN THE REGION
3
responsible for choosing these judges will depend on the hierarchy of the court into which
they will integrate.
For the appointment of Supreme Court members, the Court must provide a list of individuals
to the President of the Republic, so that they can choose a candidate, and then their decision
must be submitted for the approval of the Senate.
The President appoints Appeals Court and First Instance judges and with these appointments,
the approval of the Senate is not required.
Colombia
The body responsible for the selection and appointment of judges in Colombia is the
Consejo Superior de la Judicatura or Supreme Council of the Magistracy, with the following
exceptions:
• the judges of the Supreme Court and the Council of State (in Spanish, Consejo de Estado)
are selected by the sitting judges of those courts, from a list prepared by the Supreme
Council of the Magistracy;
• the judges of the Constitutional Court are selected by the Senate from lists prepared
by the President, the Supreme Court and the Council of State (which is the highest
administrative law court); and
• the General Prosecutor (in Colombia a member of the judicial power) is selected by the
Supreme Court from a list of three candidates prepared by the President.
Costa Rica
The Consejo Superior del Poder Judicial, or Judiciary Council of the Judicial Power, is
responsible for the selection and appointment of judges (other than magistrates, which
are appointed by Congress). Such selection is made from among candidates that have been
approved in contests that evaluate specific requirements and skills.
Among the responsibilities of the Judiciary Council is to determine the requirements to be
included in each competition and make the appropriate rating between candidates.
The Supreme Court, by secret vote, must confirm the appointments made by the Judiciary
Council for them to become valid.
Mexico
Mexico is a federal state and therefore its court system is divided into federal and local courts.
• The Federal Judiciary System (FJS) is made up as follows:
• Federal Supreme Court of Justice (FSCJ);
• Federal Electoral Court;
• Collegiate Circuit Courts;
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• Unitary Circuit Courts;
• District Courts; and
• Federal Tax and Administrative Court.
The Federal Supreme Court of Justice consists of 11 ministers (the same as the ‘justices’ in the US Supreme
Court) appointed by the Senate from a list of three candidates nominated by the President. The Federal
Electoral Court, Collegiate Circuit Courts and Unitary Circuit Courts are made up of seven, three and
one federal magistrate(s), respectively. Moreover, the District Courts consist of one federal judge.
The federal magistrates and judges are appointed by the Federal Judiciary Council (FJC), which is made
up of seven counselors. In local matters, each state has its own court organisation according to each local
organic law, which establishes the different jurisdictions, public servants, judicial bodies and procedures
to appoint and remove judges.
Paraguay
The selection and appointment of judges is regulated by the Constitution. In general terms,
the body responsible for the selection of candidates is the Council of the Magistracy. However,
it may depend on the hierarchy of the court.
There are two mechanisms for the selection and appointment of judges: one set for the justices
of the Supreme Court, and the other for the trial judges and members of the appellate court.
For the appointment of justices of the Supreme Court, first the Judicial Council receives all
the applications of people interested in bidding for the position. After a review of all the
submitted applications, the Council prepares a list of three candidates. This shortlist is sent
to the Senate and the Senate finally appoints the justice. The designation made by the Senate
must have the approval of the executive power.
For the appointment of judges of first instance and court of appeals members, first the
Judicial Council receives all the applications of the people interested in applying for the
positions. After a review of all submitted applications the Council prepares a list of three
candidates. This short list is sent to the Supreme Court who finally appoints the judges.
In short, the body that decides the appointment of the justices of the Supreme Court is
the Senate with the approval of the executive branch, and the body that decides on the
appointment of trial judges and members of the appellate court is the Supreme Court.
Peru
In Peru, the judiciary has five kinds of jurisdictional organs:
• the Republic’s Supreme Court of Justice;
• the Superior Courts of Justice;
• the Specialised and Mixed Courts;
• the Lettered Peace Courts; and
APPOINTMENT, CONTROL AND REMOVAL OF JUDGES IN THE REGION
5
• the Peace Courts.
The organism responsible for the selection and appointment of all judges, except for the
judges of the Peace Courts, is the National Council of Magistracy. The judges of the Peace
Courts are appointed by popular election.
Uruguay
The organism in charge of appointing judges varies depending on the seniority of the judge.
The highest hierarchy positions require the legislative appointment or approval.
The members of the SCJ are appointed by the legislative with the approval of three-fifths of
its members. The appointment shall be made within 90 days from the vacancy of one of its
members; otherwise the most senior member of the Appeals Court shall take the place.
The members of the Appeals Court are proposed by the Supreme Court to the House of
Senators and must be approved by them (or the temporary organism that assumes the
legislative mandates during the recess).
The remaining members of the judicial system are directly appointed by the SCJ.
Venezuela
According to the National Constitution, Venezuelan judges shall be appointed by the
Supreme Tribunal of Justice (STJ). The STJ has designated a special selection committee
which, among other responsibilities, has the power to appoint judges. This council committee
is made up of six Supreme Court judges who are elected by all justices of the Supreme Court.
However, these judges must be designated after an oral exam or public contest in order to
demonstrate their aptitudes and capabilities to become a judge. In 2005, the Supreme Court
issued a resolution to rule the mechanism of the oral exams. This resolution ratified the
existence of a judge’s training school to prepare all candidates for the oral exam, which will
be designed by said school. A special selection committee will appoint the candidates with
the best grades as judges.
3. If the judges are appointed, who appoints the judicial selection committee? If
they are not appointed, how are judges selected? Is the selection and appointment a
transparent process or is it secret or private?
Argentina**
The selection process is transparent. As we mentioned in question b, the Council of the
** Justices of the Supreme Court are appointed directly by the executive power and
confirmed by the legislative. In 2003, the executive power issued 222/2003 Decree which
states that before sending the appointment to the legislative power, the executive should
receive non-binding comments from the people (individuals or institutions) regarding
the appointee.
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Magistracy prepares a shortlist (after an examination process) and the executive is in charge
of the appointment. Then, when the legislative power receives the appointment, they approve
or reject the proposal. The Council of the Magistracy is made up of 13 members:
• three judges (elected by the Magistracy Association, two from the capital city, Buenos
Aires, and one from the provinces);
• six members of the legislative power (four from the majority and two from the opposition);
• two lawyers elected by the lawyers (one from the capital city, Buenos Aires, and the other
from the provinces);
• one representative from the executive power; and
• one from academia (elected by the national universities).
Brazil
In Brazil, judges are invested with competence/jurisdiction through a long selection process,
the general rules of which are settled by the CNJ. Bachelors of law with at least three years
of experience in the field must, and without exception, undergo an examination, both
in written (multiple choice and dissertation/essay) and oral form. Consequently, having
reached a pre-established (minimum) number of questions on each phase of the selection
process, the candidates are approved. Upon approval, however, the candidate is yet to be
sworn in as a judge.
Given the intricacy and complexity of the selection process, each ‘court’ is given discretion in
order to elaborate the questions and create a unique examination.
With respect to the justices, as mentioned above, they are appointed by the President in view
of certain conditions, independent from any selection process or examination of any kind.
Bolivia
In theory, the pre-selection of candidates by the Pluri-national Legislative Assembly is
supposed to be transparent and to fall on independent professionals. However, in case a
certain political party in office has a vast majority in the Assembly, as is currently the case, the
process may be criticised as subject to political manipulation.
Chile
Both the selection and appointment of judiciary members are established in the Constitution.
The whole process is transparent and semi-public in terms that the candidates are rated
according to merit and background, and then three or five of them, depending on the type
of court (Court of Appeals or Supreme Court), are selected to be a part of the list.
The lists are drawn by the respective court in a vote session that must be attended by the
absolute majority of its members. These elections are, in general, performed in secret, and
the absolute majority decides. Notwithstanding, the vote of each member is public. In case of
a tie, they will draw lot to decide and then the list will be submitted to the Ministry of Justice.
APPOINTMENT, CONTROL AND REMOVAL OF JUDGES IN THE REGION
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Colombia
The Supreme Council of the Magistracy is the body responsible for the selection and
appointment of judges.
The Supreme Council of the Magistracy is split into two branches:
• the Administrative Division, which organises the selection processes and is integrated
by six judges who are appointed for eight years, and are selected as follows: two by the
Supreme Court, one by the Constitutional Court and three by the Administrative Court;
and
• the Disciplinary Division, which decides all the disciplinary processes against the judges
and is integrated by seven judges, who are appointed for eight years, and are selected by
the Colombian Congress from lists prepared by the government.
Therefore, judge selection in Colombia is through a transparent and public process.
Costa Rica
A magistrate, a member of the Superior Council of the Judicial Power, a member of the
Directing Council of the Judicial School, and two superior court judges integrate the Judiciary
Council. The Supreme Court appoints all the members of the Judiciary Council by vote.
Mexico
At the federal level, the FJC is made up of seven counsellors who are appointed as follows:
• one counsellor is the President of the FSCJ;
• three counsellors are appointed by the plenary of the FSCJ;
• two counsellors are appointed by the Senate; and
• one counsellor is appointed by the executive power.
As we mentioned, the FJC is the head administration office of the Federal Judiciary System,
only underneath the FSCJ and the Federal Electoral Court. This administration body
has a variety of commissions and auxiliary organs under its control. The Judicial Career
Commission and the Federal Judiciary Institute (FJI), which is the judicial body for the
judicial research, formation, education and update of all federal judicial officers, provide the
necessary elements to the FJC in order to appoint the federal magistrates and judges.
The appointment of federal magistrates and judges is not done secretly since all vacancies are
filled through an open call and examination. All members of the judicial community have
the chance to compete for the vacancy and the highest graded applicant will be appointed as
a federal judge. If two or more applicants have the same scores in the knowledge exam, the
criteria taken to decide the appointment are the following:
• complaints against them as judicial officers;
•seniority;
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• higher rank position in the Federal Judiciary System; and
• personal resumé (scholar degree, judicial research, publications, etc).
Paraguay
The Council of the Magistracy, which is the body responsible for drawing up the lists of
people for the appointment of a judge, is composed of:
• a member of the Supreme Court;
• a representative of the executive power;
• a senator and a representative nominated by their respective chambers;
• two practicing attorneys nominated by their peers in a direct election;
• a law school professor from the national university elected by their peers; and
• a professor from a private law school, with no less than 20 years of practice, elected by
their peers.
The selection and appointment process is transparent and public.
Peru
The National Council of Magistracy is comprised of seven members who are chosen in mostly
secret voting. Its composition is as follows:
• one member chosen by the Supreme Court in open court;
• one member chosen by the Supreme District Attorney’s Board;
• one member chosen by the members of the national bar association;
• two members chosen by the qualified members of other national professional associations;
• one member chosen by the vice-chancellors of the national public universities; and
• one member chosen by the vice-chancellors of the national private universities.
The number of members of the National Council of Magistracy may be increased up to nine
members, with two additional members chosen in secret voting by the Council itself. They
may choose from candidates suggested by the representative institutions of the industrial and
business sectors.
The selection and appointment of judges by the National Council of Magistracy is a
transparent process.
Uruguay
There is no selection committee in Uruguay.
The members of the Supreme Court of Justice are appointed by the legislative.
APPOINTMENT, CONTROL AND REMOVAL OF JUDGES IN THE REGION
9
The process is transparent since the appointment is made by the legislative organism, but it is
handled as a political decision and on some occasions the political parties negotiate to reach
the majorities required for the appointment of judges.
Venezuela
According to the rules of procedures of the Supreme Court, the special selection committee
is made up of six Supreme Court judges who are elected by all justices of the Supreme Court.
The National Constitution requires that the judges be appointed only after competing in a
public contest, in which they will demonstrate their aptitudes and capabilities to become a
judge. However, as mentioned before, in recent years most of the judges in our country are
provisional and have not undergone this process of selection. Judges are being appointed
by the Special Selection Committee without complying with the provisions of the National
Constitution and Career Judiciary Act.
In accordance with a 2010 study, only three per cent out of 245 designated judges by the
Special Selection Committee of the Supreme Tribunal of Justice were permanent judges
appointed following the legal process. The rest are provisional.
4. Is there a code of ethics that judges must comply with? Are there objective
standards and regulations contained in the law dealing with the appointment and
removal of judges?
Argentina
Although there are several projects of codes of ethics for judges, we still do not have a national
code of ethics for our national judges. However, some provinces have passed or are working
on laws creating local codes of ethics for their judges. The only general standard that we
have at the national level is Article 53 of the Constitution that sets forth that judges shall be
removed in cases of wrongdoing in their role as a judge or by committing a crime (whether
in their role of judge or as an ordinary citizen).
Brazil
In August 2008, the CNJ issued a Brazilian Code of Ethics to which all judges are bound. The
Code deals more specifically with the judge’s:
• independence from one another and from foreign causes that may interfere with the
resolution of cases;
• impartiality, in the search for the truth, excluding any type of favoritism, tendency or bias,
unless expressly allowed by law;
• transparency, keeping clear documentation and proof of executive acts and favouring
publicity (which is a constitutional principle);
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• professional and personal integrity which, in return, will reassure the citizens of the
truthfulness of the judiciary;
• professional secrecy; and
• dedication, courtesy, prudence, dignity, honour and decorum, among others.
The Code of Ethics itself does not deal with the removal of judges, but the lack of compliance
with said Code is grounds for disciplinary sanctions by the CNJ. The removal of judges shall
be discussed in a following section.
Bolivia
There is no specific code of ethics for judges, but rules and regulations on their appointment
and functions detail several principles and obligations to be fulfilled during office. The
Criminal Code contains rules on punishable offences by judges whilst exercising their
functions.
The appointment and removal of judges should comply with all principles and requirements
established by law.
Chile
Even though there is no code of conduct for judges, the Constitution and the Courts
Organisation Code set out a series of principles and rules for all judiciary members. They
are also bound to the rules of law and probity that apply to all state organisms. Also, there
are special crimes in the Criminal Code for judges who commit them while performing their
duties.
As for the removal system, the law sets forth a special procedure in Article 332, following the
Courts Organisation Code. There is also a generic cause, ‘significant neglect of duties’, which
only applies to members of a superior court through constitutional accusation (impeachment)
before the Chamber of Deputies (Article 52, No 2, letter c of the Constitution).
Colombia
• In Colombia, there is no specific code of ethics for judges but the obligations and duties
of the judges are established in many laws, as for instance:
• the Attorneys Statute (applicable to judges because they have to be lawyers);
• the Attorneys Disciplinary Code;
• the Disciplinary Code (applicable to judges because they are public employees); and
• the Statutory Law on the Administration of Justice.
Costa Rica
Judges are subject to the code of ethics approved by the Supreme Court, as well as to the
general code of ethics of the Costa Rican Bar Association, which is applicable to all lawyers.
APPOINTMENT, CONTROL AND REMOVAL OF JUDGES IN THE REGION
11
In addition, the Organic Law of the Judicial Power establishes objective standards and
regulations for the appointment and removal of judges.
Mexico
There are federal and local code of ethics with which judges must comply. Standards and
regulations for the appointment and removal of judges are not included in the code of ethics.
However, you will find those standards in the Constitution, Organic Law of the Judiciary
System, Federal Employment Law for State Service Workers, internal rules of the judiciary,
etc.
Paraguay
The Supreme Court of Justice approved the Code of Judicial Ethics which in its preamble
expresses the need to achieve excellence in the service of justice.
Peru
Peruvian judges must keep in mind the Peruvian Judiciary’s Code of Ethics, but the binding
to it is minimal. The Peruvian Judiciary’s Code of Ethics does not provide any rule as regards
the appointment or removal of judges.
Uruguay
The Code of Ethics is the same for all lawyers. There are no objective standards and
regulations regarding the appointment and removal of judges. As with all public employees,
judges shall also comply with the ethic standards applicable to public officers, but these rules
have no provisions regarding their appointment and removal.
Venezuela
The Venezuelan Judges’ Ethics Code was approved on 6 August 2009, although its approval
had been a Constitutional mandate of the new Constitution of 1999. The rules contained in
this Code regulate the conditions and procedures to remove a judge and set ethical standards
that judges must comply with. This Code does not contain any regulation to appoint judges.
As mentioned before, the standards rules that regulate the mechanisms to appoint judges are
established in the Career Judiciary Law and the Special Resolution issued by the Supreme
Court that regulates the conditions of the public contest to the candidates.
5. Does a Council of the Magistracy exist? If it does, how is it composed? Is it
independent from the executive?
Argentina
This question has been answered in (3).
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Brazil
As mentioned above, the CNJ is a body intended to promote the due organisation and
development of the national judiciary system and its aim is to improve public justice,
through procedural and administrative transparency. The CNJ created the Magistrate in
charge of Administrative Matters (Internal Affairs), focused on receiving and determining
the processing of complaints or accusations against magistrates or public servants or anyone
delegated to work on behalf of the judiciary power. Therefore, the CNJ gathers information,
determines goals and verifies whether:
• goals are being met;
• the Code of Ethics is being complied with by national courts; and
• the CNJ is, in fact, effective in its purpose of maintaining harmony in society and making
justice.
The Magistrate in charge of Administrative Matters (Internal Affairs) must also maintain
close contact with the states’ internal affairs.
The CNJ is independent from the executive, given its composition. In accordance with the
Federal Constitution, the CNJ members shall be:
• the President of the Supreme Federal Court;
• a justice of the Superior Court of Justice (acting as National Magistrate of Administrative
Affairs);
• a justice of the Superior Labour Court;
• a State Court judge;
• a Federal Regional Court judge;
• a federal judge;
• a Labour Regional Court judge;
• a Labour Court judge;
• a member of the union’s Public Prosecutor’s Office;
• a member of a state’s Public Prosecutor’s Office;
• two lawyers; and
• two citizens well acquainted with legal matters and of unblemished reputation.
Bolivia
The Council of the Magistracy exists as the body responsible for the disciplinary regime of the
ordinary, agro-environmental and specialised jurisdictions and it has control and supervision
of their administrative and financial management. The Council of the Magistracy has the
right to propose policies relating to its own administration.
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The Council of the Magistracy is made up of five members, who are elected by popular vote
for a non-renewable six-year period.
Since the Council is part of the judicial branch, the independence principle also applies.
Chile
There is no Council of the Magistracy in place.
However, in 1969 a law created the National Magistrate Association of Chile. This institution
was created to promote professional development, camaraderie and socio-economic
advantages for those who choose to be members because the integration is voluntary and
non-binding in terms of disciplinary liability.
Nowadays, this institution has over 1,000 members all over the country, with judges from all
levels of courts, both higher and lower.
Colombia
The question has been answered in (3).
Costa Rica
A form of Council of the Magistracy exists in Costa Rica embodied in the Judicial Inspection
Tribunal, which operates within the judicial power of Costa Rica and is independent from the
executive. This tribunal is composed of three inspectors that are appointed by the Supreme
Court, and who must have the same qualifications required for superior appeals judges.
Mexico
Whereas there is not a Council of Magistracy per se, the FJC is the most similar judicial
body and it is responsible for the management, observance, discipline and judicial education
of the federal judiciary members and bodies. Its composition is described in the answer to
question c. Nevertheless, the fact that the executive power designs one counsellor of the FJC
does not affect in any form the independence or impartiality of this judicial body.
This also replicates at local level with its own particularities in each state of the union.
Paraguay
The Constitution creates the Council of the Magistracy, the composition of which is as follows:
• a member of the Supreme Court, designated by it;
• a representative of the executive;
• a senator and a deputy, both nominated by their respective chambers;
• two licenced attorneys, designated by their peers in a direct election;
• a professor of a law school of the national university, elected by their peers; and
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• a professor of a law school of a private university with no less than 20 years of operation,
elected by their peers.
Peru
Peru has a Council of Magistracy: the National Council of Magistracy. Its composition has
already been explained in item (3) above. The National Council of Magistracy is independent
from the executive.
Uruguay
Uruguay does not have a Council of the Magistracy.
Venezuela
The Council of the Magistracy is the Special Selection Committee, which is made up of six
Supreme Court judges, who are elected by all justices of the Supreme Court.
In theory, the Council of the Magistracy is independent from the executive. Nevertheless, in
our country the magistrates of the Supreme Court were appointed by the congress, which
at that time, was under the absolute majority of the government’s political party. Due to this
fact, the independence of the Council of the Magistracy is unclear.
6. Does the Council of the Magistracy count on disciplinary and removal of judges
from the system? If not, which is the body responsible for discipline and the removal
of judges?
Argentina
The Council of the Magistracy is the body in charge of the control and removal of judges.
It counts on a disciplinary system and it starts the removal processes. However, after the
indictment, the body in charge of the rest of the process is the Jury of Impeachment (another
agency of the judiciary power whose members are also elected in different stages that is made
up of representatives from the legislative power, the judiciary and lawyers).
Brazil
The CNJ is responsible for maintaining the integrity of the judiciary system through the
enforcement of the Code of Ethics and the correspondent sanction when its rules are
violated. It is, thus, qualified to properly punish judges involved in acts that infringe morals
and the law, in general. Therefore, if an administrative proceeding is to be filed against a
judge for having practiced any illegal acts, the CNJ is competent for judging said proceeding
and rendering an award.
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Bolivia
The Council of the Magistracy counts with a disciplinary and removal system. It is in charge of
the disciplinary supervision of judges and determines their cessation of office when serious
offences (qualified by law) are committed and proved after due process.
The Council of the Magistracy also promotes the popular revocation of appointments of
magistrates of the Supreme Tribunal of Justice and the Agro-environmental Tribunal when
serious offences (qualified by law) are committed. This is a constitutional mechanism that
permits the people to decide by vote on the continuity of authorities elected through popular
vote. It can be originated only by popular initiative and may be conducted only once during
the mandate period of the authority.
Disciplinary judges are also appointed to follow disciplinary processes and apply sanctions.
In the case of a serious offence, the disciplinary judges must assemble a disciplinary tribunal
along with citizen judges. The Council of the Magistracy acts as a Court of Appeals.
Chile
The authorities in charge of the integrity of the judges’ conduct are the Supreme Court, the
President of the Republic and the parliament.
The Supreme Court has correctional and disciplinary power above all courts, but the Appeal
Courts also has this power with regard to inferior courts.
Only the President has the power to inspect, while the chamber of deputies can intervene
through the constitutional accusation process (impeachment), where the Senate also
participates, by approving or rejecting the accusation and speaking out about the declaration
of culpability of the accused judge.
Colombia
The body responsible for the sanction and removal of judges is the Disciplinary Division of
the Sectional Council of Magistracy and the Supreme Council of the Magistracy.
Costa Rica
The Judicial Inspection Tribunal is responsible for the supervision of judges and for
investigations related to infractions committed by them. Once the Judicial Inspection
Tribunal completes its investigation, it delivers a recommendation to the Supreme Court,
which then decides whether any disciplinary sanctions must be imposed on a judge.
The Judicial Inspection Tribunal is an organ of the Supreme Council and has a regular
and constant control of all servers in the judiciary, including the Judicial Investigation
Organisation (OIJ).
It also monitors the proper performance of the judiciary, investigates and resolves
irregularities, and determines what disciplinary procedures that proceed in each particular
case.
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Mexico
At the federal level, the FJC has the Discipline Commission, which is in charge of the
regulation and supervision of the conduct of the judicial officers and bodies, in order to
obtain a responsible, professional and independent administration of justice. The removal of
federal magistrates and judges exclusively corresponds to the FJC.
Paraguay
The Constitution establishes that the body responsible for discipline and dismissal of judges
is the Court of Magistrates.
Peru
The National Council of the Magistracy counts with a judge disciplinary and removal system.
Nonetheless, other organs of the judiciary are also competent to take disciplinary, but not
removal, actions against judges.
Uruguay
Not applicable.
Venezuela
The Council of the Magistracy does not count on a disciplinary and removal system for
judges. The authorised instance for judges removal was a special committee named Comisión
de Funcionamiento y Restructuración del Sistema Judicial, a transitory organism created by
the Transition Public Power Act.
However, with the Venezuelan Judges’ Ethics Code recently approved (6 August 2009), a
Special Disciplinary Court was created and finally implemented on 30 June 2011 by means of
a resolution issued by the Supreme Court.
This court consists of three main judges and three alternate judges, who must be designated
by a special electoral commission. However, because this special electoral commission has not
been appointed, the Congress appointed the judges.
7. Is the removal of judges transparent or secretive and who instigates it? Has it
been done in the past for political purposes or because a judge gave an unpopular
decision?
Argentina
The removal of judges is a transparent process. After the indictment, the body in charge
of the rest of the process is the Jury of Impeachment whose composition was described in
question f. We do not have many examples of judges’ removals. As the governing party had
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the majority in the Council of the Magistracy till some months ago, we have had problems
with the Council because they did not start many cases against judges. Fortunately, this is
likely to change as the composition of the Council has varied and we will probably see more
removal processes. Additionally, the removal of justices from the Supreme Court should be
mentioned as a case of removals for political purposes (for example, Justice Boggiano or
Justice Moliné O’Connor). What also happens in our country is that the report at the Council
of the Magistracy is very frequently used as a way of pressing judges. This will also probably
change with the new composition of the Council.
Brazil
According to our law, a judge’s retirement is forced upon him or her when:
• the magistrate is actively negligent towards his/her constitutionally based duties;
• the magistrate’s acts are incompatible with human dignity, honour and decorum; or
• the magistrate’s capacity to conclude his/her work is insufficient or scarce.
All national judicial proceedings, in accordance with the principle of publicity foreseen in
the Federal Constitution, are necessarily public. Nevertheless, some proceedings are ‘private’
in order to protect a person’s privacy and intimacy.
Bolivia
The question has been answered in (6) and (8).
Chile
The Courts’ Organisation Code sets forth the public and summary removal process (juicio
de amovilidad). The court must enable both parties to appear in order to hear the accused
judge.
Another way to remove a judge is through a majority decision of the Supreme Court at the
request of the President of the Republic or of an interested party, or ex officio, on grounds
the judge has incurred in misconduct, taking previously into consideration a report from
the accused judge and from the competent Court of Appeals, where appropriate. Finally,
the President of the Republic enforces the decision of the Supreme Court by ordering the
removal of the judge.
There is no record of a removal based on political purposes or on an unpopular decision
made by a judge.
Colombia
The removal of judges is through a transparent process. The responsible organism is the
Sectional Council of the Magistracy in first instance, and the Supreme Council of the
Magistracy in second instance.
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Costa Rica
The removal of judges is an internal process of the judicial power that is investigated by the
Judicial Inspection Tribunal and is submitted to the Supreme Court for decision. Since it is a
disciplinary matter, the process itself is not public.
Mexico
The removal process of federal magistrates and judges is based on Mexico’s Federal
Constitution and the Organic Law of the Federal Judiciary System (OLFJS). This process
is public and it will be initiated under the court’s own initiative, by complaint or accusation
filed by any person, by the public servant who is aware of the facts or by an accusation filed
by an agent of the Federal Public Prosecutor Office. When the claim is admitted, the federal
magistrate or judge will have five working days to answer the claim and offer evidence to
prove that he/she has acted lawfully. After the admission of the evidence, the existence or
nonexistence of responsibility will be solved by the Federal Judiciary Council within the
following 30 working days.
We do not know of any case in which a federal or local magistrate or judge, has been removed
based on a political purpose or an unpopular decision.
Paraguay
The removal of judges will be made at the behest of the Supreme Court. There are no known
cases of removal of judges for political purposes.
Peru
The removal of judges is a transparent process. The removal proceeding begins with an
investigation that may be started by:
• the Supreme Court; judiciary organs;
• the Magistracy’s Control Office;
• the Government Attorney’s Office; or
• the aggrieved person.
In the past, specifically during Alberto Fujimori’s government, judges were removed due to
political reasons but this was done violating the constitutional order.
Uruguay
The process is performed directly by the SCJ and the decision is public. Yet the investigation
and internal proceedings are confidential and in some cases the legal grounds supporting
the decision are not made public. The most known cases are related with incompliance, lack
of knowledge or omission of duties.
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Venezuela
The Venezuelan Judges’ Ethics Code establishes a transparent, oral and public procedure to
remove judges.
The Code of Ethics does not establish who is authorised to initiate this removal procedure.
However, in practice, case law has established that the institutions that are able to initiate this
procedure are:
• the Supreme Court, when they detect harmful error of law in the judgments while
checking appeals;
• a special organism created by the Supreme Court called the Inspectorate of Courts; and
• every person that is a victim of a harmful error of law.
In recent times, it has been made public that judges have been removed and even arrested if
a decision rules against the government’s interest.
8. Please mention cases of judges’ removals and indicate what the authorising
statute was at that time. The description of the case does not need to name the
particular judge.
Argentina
We have had some cases of judges’ removals by the Council of the Magistracy because of
wrongdoing in their functions.
Brazil
To the best of our knowledge, after the promulgation of the Federal Constitution in 1988,
judges’ rights have been protected, thus not allowing any arbitrary removal. Nevertheless,
there are numerous cases of removal of judges under the conditions set forth in Article 93 of
the Federal Constitution, as previously mentioned.
One recent removal of a national judge, under Article 93 of the Federal Constitution, was
determined by the Superior Court of Justice in December 2010 on grounds of the judge’s
omission as to being previously convicted by a criminal court.
Another case that can be cited is that of a judge of the State Court of Rio Grande do Sul,
who, in February 2011, was removed from office based on improper social conduct towards
a woman, which was construed by the Court as incompatible with the position of a judge.
However questionable, there is no evidence that such decision was rendered in violation of
Article 93 of the Federal Constitution.
In addition, there are some cases of extreme notoriety and, thus, greater alarm, for
encompassing Higher Courts’ judges or renowned national jurists. A high-profile case is the
one involving the ex-president of the Regional High Labour Court, Nicolau dos Santos Neto,
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known as ‘Lalau’, who was removed from office, prosecuted and condemned to 26 years of
prison for embezzlement, appropriation for service and for infringement of tax policies.
Lalau’s case revolved around the deviation of the exchequer from its purpose of building the
Labour Court of São Paulo.
In another case, the Regional Federal Court judge, José Eduardo Carreira Alvim, a renowned
jurist and High Court judge, was removed from his position due to uncontroversial proof of
corruption, prevarication and creation of a ‘gang’. The referred criminal lawsuit is ongoing,
but Carreira Alvim has been removed from his seat as a judge. Moreover, the federal police
discovered the involvement of Justice Paulo Media of the Superior Court of Justice, who, for
corruption and prevarication, has also been removed from his seat in the referred Higher
Court.
Bolivia
There is a recent tendency to investigate and prosecute certain judges (and other past
authorities) for alleged serious offences committed while in exercise of their function. This
movement has been criticised by the opposition as politically driven. Prosecutor’s accusations
trigger resignations or removals.
Chile
In March 2010, the Supreme Court dismissed the civil judge of the First Civil Court of
Santiago due to substance abuse, and the judge of the Second Local Court of Puerto Montt
for sexual and labour harassment.
In October 2010, the Supreme Court dismissed the criminal judge of San Javier after being
involved in a violent incident with the police and being detained for a scandal on the streets
while under the influence of alcohol. To reach a decision in this case, the Supreme Court
took into consideration the fact that this judge had a previous record, so it was very clear that
the conduct established in the Constitution for judges had not been respected.
In 2011, the Supreme Court removed two other judges. The first one is a criminal judge of
Los Angeles, named Miguel Salgado Rivas, who attended hearings under the influence of
alcohol. He also ordered the disconnection of a video camera without authority to do so, and
he did not resolve immediately in criminal abbreviated trials, as required by law.
The second case in 2011 was the removal of Veronica Mendez Orrego, judge of the First
Labour Court of San Miguel. The Supreme Court ordered her expulsion because of her
repeated absences and delays at the beginning of the hearings and also because she continued
acting as a judge in the period in which she was suspended during the investigation of her
case.
Colombia
In Colombia there are some cases of judge’s removals:
• On 11 October 2010, the Sectional Council of the Magistracy of Valle del Cauca
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(department of Colombia) decided to remove a judge because of harassment of a judiciary
employee under his authority. Later, on 11 January 2011, the Disciplinary Division of the
Supreme Council of the Magistracy, in second instance, confirmed the first verdict.
• On 14 September 2009, the Sectional Council of the Magistracy of Atlántico (department
of Colombia) decided to remove a judge because, according to the evidence of the case,
the judge had wilfully granted injunctive relief, despite other actions that Colombian law
established to protect the rights that the claimants considered violated. Later, on 29 June
2011, the Disciplinary Division of the Supreme Council of Magistracy, in second instance,
confirmed the first verdict.
• On 13 December 2010, the Sectional Council of Magistracy of Magdalena (department
of Colombia) decided to remove a judge because, according to the evidence, the judge
intentionally did not apply Colombian law about executory proceedings. Later, on 13
June 2011, the Disciplinary Division of the Supreme Council of Magistracy, in second
instance, confirmed the first verdict.
Costa Rica
There are few cases of removal of judges due to unpopular resolutions. However, as more
drug trafficking crimes are being judged in the country, there has been an increase in the
number of questioned rulings. Most recently, a criminal court judge issued an order granting
the release of two foreign defendants involved in drug trafficking in a case that seemed to
have evidence supporting a conviction. As a result of this ruling, which was questioned by
public opinion and later investigated by the Judicial Inspection Tribunal, the judge was
removed in May 2011.
This particular removal was based on Article 199 of the Organic Law of the Judicial Power,
which sanctions unjustified and grievous delays and serious and unjustified errors in the
administration of justice.
Mexico
In 1997, one federal judge who was in charge of the First District Civil Court for the State of
Morelos was arrested for alleged acts against the administration of justice. On 22 October
1997, the Federal Public Prosecutor issued an arrest warrant against this judge for the
referred misconduct. After that, he was declared guilty of the referred crime because he
pronounced an irregular judgment in which he granted the release of somebody charged
with kidnapping. Please note that the statutes of that time are the same as the ones we
currently use.
Paraguay
Not applicable.
Peru
Judges in Peru have been removed by the National Council of Magistracy using two different
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mechanisms. The first one is the removal system mentioned in item (6) above. The second
one is the ratification system, which is a procedure created to evaluate the behaviour and
competence of the judges while holding their positions, but is also employed to remove them
if they fail such evaluation. It is important to mention that there are no objective criteria
in the evaluation, meaning the ratification or separation of the judges is a purely arbitrary
decision.
Uruguay
There are two relevant recent cases: Colmenero and Equiluz.
Criminal Judge Colmenero was removed from the SCJ after a long investigation since it was
proved that Colmenero maintained a love relationship with a party in one of his cases.
In the second case, Judge Ruben Eguiluz was forced to resign after a hard sanction. The SCJ
investigated the relationship that the judge had with a party of one of his cases. Even though
it was not proved that the judge had an affective relationship with the party, it was clear that
the judge had several non-official contacts and shared a close group of friends with said
party. Based on the above, the SCJ understood that the independence that a judge must keep
was not present in that case and Eguiluz was removed to a lower court. Eguiluz rejected the
decision and resigned.
Venezuela
In 2010, several judges were removed through various resolutions issued by the Special
Selection Committee of the Supreme Court. These resolutions apparently were not issued
after a legal procedure, violating the provisions of the law and of course ‘due process’. It
seems that although the above mentioned Venezuelan Judges’ Ethics Code had already been
created, its regulations were not followed.
A very popular case in Venezuela was the destitution or removal of the judge of the ThirtyFirst Criminal Control Court of the Judicial District of the Metropolitan Area of Caracas,
Maria Lourdes Afiuni Mora. On 10 December 2009, she granted the right to be judged in
freedom to a prisoner who had been in jail for more than three years without a trial. Since the
prisoner was considered an enemy of the government, Judge Afiuni was immediately arrested
without a court warrant, removed from the judiciary without following the legal procedure
and has been in prison since that time. The trial seems to be being conducted in slow motion.
9. Does any system of judges training exist? If yes, please indicate in what period of
the judicial career it’s implemented, and if it is considered for eventual promotions.
Argentina
Our system of judges training is called Judicial Career and it starts when someone joins the
judiciary power and lasts until his/her appointment as clerk (previous step before becoming
a judge). We also have the judicial school created by Law 24.937 in 1997. Its objective is
training judges and other members of the judiciary. Even though it is a non-compulsory
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school for members of the judiciary, when the Council of the Magistracy appoints judges, it
takes into account whether applicants have taken its courses.
Brazil
There is, in fact, a training of judges foreseen in the Brazilian legislation. For example,
the Brazilian Association of the Magistracy and the National School for Formation and
Enhancement of Magistrates (ENFAM) carry out extension and training courses for the
magistrates, which are considered for promotions.
Furthermore, the CNJ has also created the National Judicial Training Plan. This so-called
plan shall be relevant at several moments in a magistrate’s career:
• initial formation;
• continued formation; and
• formation of educators.
Bolivia
The Judicial Career System is formally established and is administered by the Council of the
Magistracy. It covers the selection, evaluation, permanence, training, formation and cessation
of judges. According to regulations on the matter, the Judicial Career Service guarantees
continuity and stability of judges.
The School of Judges is also part of the judicial branch and it aims to the training and
formation of all judicial public officers.
Chile
Chile has a Judiciary Academy created by Law No 19.346. This institution is a legal entity
governed by public law, and is subject to the oversight of the Supreme Court. Its mission is
to train those who apply to the primary rung of the judiciary as well as to help perfect those
who are already part of this institution.
To access this study programme, it is required to have a lawyer’s degree and to pass a series of
psychological, aptitude and knowledge tests.
The programme lasts between six months and one year, and contains lectures and practical
classes, seminars and workshops.
Colombia
Yes, the judges have to pass a judicial training course, taught by the Judicial School Rodrigo
Lara Bonilla.
Costa Rica
Candidates wishing to become judges must study a two-year course in the Judicial School.
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Additional experience and studies, such as post-graduate degrees, are considered for the
promotion of judges during their career.
Attorneys undergoing the two-year course receive a monthly salary to ensure that they are
focused exclusively on the training. If at the end of the course the candidates do not pass or
decide not to practice as judges, they must reimburse the full amount of the tuition.
Mexico
As we mentioned, the FJI is the supplementary body of the FJC in judicial research, education,
training and updating matters for the members of the federal judiciary and those who aspire
to belong to it. This institute and its general director have the objective to determine the
research preparation and training programmes for the institute students, the evaluation
and performance mechanisms, the preparation of draft regulations of the institute and the
improvement of their necessary knowledge and skills for the proper performance of judicial
activity.
Paraguay
In 1998, the Judicial School was created and it aims to provide specialised legal education
to help improve the administration of justice and reports to the Judicial Council. The
mentioned institute is for professionals who are interested in a judicial career.
Peru
Peru has a judge training system that begins before entering the judicial career. Specific
previous training is mandatory in order for a judge to be promoted.
Uruguay
There is no mandatory training course to begin a judicial career. However, there is a two-year
course to train to work as a judge and the SCJ usually appoints students who graduate from
such course.
Venezuela
Our National Constitution, the Career Judicial Act and the Venezuelan Judges Ethics’ Code,
establish the judges training obligations. Additionally, a special institution for training judges
called the National Magistracy School was created.
The Supreme Court issued special rules that regulate the conditions of the public contest
required to be appointed as a judge or get eventual promotions (2005). These rules establish,
as a requirement for an eventual promotion, that the judge go through a special evaluation
to qualify his/her performance in the court, as well as an oral exam or public contest.
The reason of this exam is to review if the judge has the aptitudes and capabilities for the
promotion.
Likewise, the Judicial Career Act establishes a special system for the training of judges, which
APPOINTMENT, CONTROL AND REMOVAL OF JUDGES IN THE REGION
25
must be complied with by all judges interested in a promotion within the judiciary.
However, in practice the training programme is not applied. Although the National
Magistracy Institute was created for the formation of judges to be appointed, in fact the
majority of the judges are not even registered in this institute. Occasionally, the judges are
sent to several special courses in this institute, particularly when a new law is approved by the
legislative power.
10. Do bar associations exercise any control towards judges? If yes, please indicate
its kind.
Argentina
Bar associations cannot exercise any control on judges. However, they can criticise their
decisions (through public statements) or submit a petition of impeachment before the
Council of the Magistracy.
Brazil
The CNJ is composed by, among others, two members of the Brazilian Bar Association. This
can, on one hand, be seen as their influence towards judges due to the fact that the CNJ is
in charge of verifying national courts and their compliance with the Code of Ethics. On the
other hand, the bar associations, law firms and lawyers cannot have any immediate or direct
control over judges, securing the efficiency and impartiality of judges’ decisions.
Bolivia
Bar associations do not exercise any formal control on judges, only on attorneys and lawyers
who are voluntarily registered (affiliation to bar associations is no longer mandatory).
Chile
There are no direct or indirect control mechanisms for judges provided by bar associations
in Chile.
Colombia
In Colombia, bar associations do not exercise any control towards judges.
Costa Rica
The Costa Rican Bar Association’s control over judges is limited to the standard control
exercised over all lawyers. If a judge’s licence to practice law is suspended by the Costa Rican
Bar Association, then he or she cannot sit on the bench for the duration of the suspension.
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Mexico
Mexican lawyers do not have the obligation to pass an exam or be a member of any bar
association.
Paraguay
The bar has no control over judges, but there is a project in study for the creation of the
Public Bar Association of Paraguay, which will regulate the legal professional.
Peru
Peruvian bar associations do not exercise any kind of control towards judges.
Uruguay
The local bar association does exist, but it has no control regarding judges.
Venezuela
Based on the laws that regulate the subject (Career Judicial Act, the Venezuelan Judges’
Ethics Code and Council of the Magistracy Law), the bar associations do not exercise any
control towards judges.
11. Do guarantees of unremovability of judges and intangibility of their
remunerations exist? Are judges free from certain tax payments?
Argentina
In Argentina, judges are unremovable and their salaries are intangible. Additionally, they are
exempt from some taxes.
Brazil
Judges are not only guaranteed tenure, but also unremovability of office and intangibility
of remuneration. The Federal Constitution (Article 95, sub-item I, II and III) and the
Complementary Law No 35 of 1979 (Article 25) sets forth the rights mentioned above. Thus,
judges cannot be removed from office, except when public interest is at hand, respecting the
disposition provided for in Article 93, sub-item VIII, which determines that said removal be
made through resolution of the court of the judge’s jurisdiction or of the CNJ, depending
on the case, requiring the absolute majority of votes. Also, judges are granted intangibility
of remuneration except in a few expressly stated situations provided for in the Constitution.
Finally, judges are not exempt from paying taxes.
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Bolivia
Unremovability is not guaranteed for felonies committed during the exercise of functions.
Judges may be removed as a result of the process. Suspensions may also apply during
investigative administration procedures.
Remunerations are subject to annual budgets approved by Congress. They do not enjoy tax
special exemptions.
Chile
Chilean judges have an unremovability prerogative that determines they cannot be dismissed
while they maintain the good behaviour required for in the performance of this duty by the
Constitution and other laws.
However, this prerogative is lost in the following situations:
• when sentenced for a crime or felony;
• removal determined by the Supreme Court (in relation to this, judges are subject
to eventual removal at the request of the President of the Republic, Article 80 of the
Constitution);
• when sentenced for committing illegal actions while performing his/her duty;
• if found guilty by the Senate on a constitutional accusation process; and
• enforceable decisions of a juicio de amovilidad.
The salaries of the members of the judiciary are duly indicated on the general remuneration
for public workers laws and in special laws, and are liable for income tax.
Judges are not exempt from paying taxes even though they are subject to various other
benefits to guarantee the independence of their performance, such as being excused from
military service (Article 44 of Law No 11170).
Colombia
In Colombia, there are no guarantees of unremovability of judges and intangibility of their
remunerations. Judges have to pay taxes and can be sanctioned by any authority as is the case
with any citizen in Colombia.
Costa Rica
Pursuant to Costa Rican law, judges may be suspended or removed from their office as a result
of disciplinary sanctions. However, the compensation judges receive (salary) is subject to the
guarantees provided by the Costa Rican Labour Code and by a special regime regulated by
the Organic Law of the Judicial Power, and cannot be reduced by sanction. The exception
to this rule is if a judge is suspended from duty without pay, in which case he or she will not
receive a salary during his or her suspension.
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Mexico
The Constitution provides the rules for the unremovability and remunerations of the
ministers of the FSCJ, federal magistrates and judges and the counsellors of the FJC. In this
regard, the remuneration of the referred public servants cannot be decreased during the
period they hold their positions.
However, with respect to the unremovability, please be advised as follows:
• The ministers of the FSCJ will last 15 years in their positions and can only be removed in
terms of the Constitution and OLFJS, and at the end of their term they will have the right
to a benefit for retirement.
• The federal magistrates and judges will last six years in their positions, at the end of which,
if they are ratified or promoted to a superior position, they can only be dismissed from
employment according to the procedures established in the Constitution and the OLFJS.
On the other hand, the remuneration of magistrates and judges cannot be decreased while
they hold their positions. They will last six years in office, at the end of which, if they are
ratified or promoted to a superior position, they can only be dismissed from employment
according to the procedures established in the Constitution.
Finally, the ministers of the FSCJ, federal and local magistrates and judges and counsellors of
the FJC are not free from tax payment. In fact, they are surveyed periodically by the Federal
Auditing Department and the Federal Judiciary Comptroller´s Office or local Judiciary
Comptroller´s Office.
Paraguay
The unremovability of judges is a constitutional guarantee recognised to judges to keep
their positions intangible for the duration of their terms, except in cases provided for in the
Constitution in Article 252 in general, but explicitly identified in special laws.
Regarding taxes, the activity of judges is considered a taxable event by Law 125/91.
Peru
In Peru, judges have guarantees of unremovability as long as they maintain an adequate
behaviour.
Regarding judges’ remunerations, they are not intangible because they might be subject to
reduction as a penalty for misbehaviour.
Regarding tax payments, Peruvian judges do not have any kind of benefit.
Uruguay
Judges must pay all applicable taxes.
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Venezuela
Judges must pay taxes as any citizen does. In theory, judges have guarantees of unremovability
and intangibility. These guarantees are included or established in the Constitution, the
Venezuelan Judges’ Ethics Code and the Judicial Career Act. However, as mentioned before,
in practice the majority of the judges are provisional and all could be removed without a
public or legal procedure.
12. How do you think the system of appointment, control and removal of judges
could be improved so that there be judicial independence?
Argentina
I think we can improve the systems by amending the law that regulates the Council of the
Magistracy. There are some projects that may help in order to modify the law by changing the
composition of the Council.
Brazil
Brazilian law effectively protects the magistrates, thus leading to a safe environment for
each judge to apply the legislation in accordance to their interpretation and to the limits
established by the law itself, as well as by the doctrine and jurisprudence.
It is clear that the national legislation separates the three powers, leading the judiciary to
be free and independent from the others. Nevertheless, it is noteworthy that justices of
the highest courts of Brazil (Supreme Federal Court and Superior Court of Justice) are
appointed by the President of the Republic and then they subsequently have to be approved
by the Senate. This procedure may be interpreted as somewhat subjecting the judiciary to the
influence of political interests. One possible measure in order to avoid the possible negative
influence referred herein would be to have a more democratic and politically independent
process for the selection of the justices of High Courts.
Bolivia
The first popular election of high magistrates took place in October 2011. Lots of controversy
surrounded this process. It was a test of a system that could prove to be inadequate for the
election of such high authorities of the judicial branch. It is a unique system in the world that
raises many doubts and might call for a change through constitutional reform.
Chile
We believe that even though the ‘checks and balances’ system used for the appointment,
control and removal of judges in Chile enables all the branches of government to participate,
there are still some issues that need to be taken care of:
• Reform of the financing system, so that there is a way to obtain resources in a direct way
instead of having to resort to the general nation’s budget.
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• Improvement of the performance evaluation and reporting system of the judicial officers,
by the implementation of regular evaluations, where technical enhancement is taken into
consideration for the tenure in office.
• Elimination of the ‘external attorneys’ serving as extraordinary judges in higher courts. It
is a position that is temporary, and can be fulfilled not only by well-known academics but
also by renowned litigants, which compromises the integrity of their duty to prosecute and
the independence of fellow judges deciding cases where such litigants are involved.
Colombia
In Colombia, the system of appointment, control and removal of judges is not affected by the
absence of judicial independence.
Costa Rica
As stated above, the appointment, control and removal of judges pursuant to Costa Rican
law is in fact independent and expressly separate from the legislative and executive powers.
Mexico
In Mexico, the appointment, removal and ratification of ministers, magistrates and judges
depends on the FJC, so there is true independence of the judicial system.
Paraguay
Regarding the appointment, system, control and removal of judges, there are precepts that
establish the procedure. A control agency, which reports to the Supreme Court, supervises
and has disciplinary power over the judicial positions (Article 232, Law 879/81). What I
think would help to improve the situation is a strict control of regulatory norms. Strict
criteria should be considered when judges are designated. The basic principle to achieve
the independence of the judiciary in any country is the unremovability of judges. Another
principle is to respect the budgetary self-sufficiency, in which aspect Paraguay has moved
forward. The Supreme Court, for the first time since 1 August 2011, is managing its own
budget in terms of income, which facilitates its management.
Peru
Peruvian appointment, control and removal systems are mostly optimal. The only issue
affecting judicial independence is the ratification system. As has been mentioned in item
h above, the ratification system is arbitrarily used as a removal system. Therefore, judges
are constantly worrying about getting removed. This decreases their independence because,
instead of concentrating on administering justice, judges must keep the National Council of
Magistracy satisfied in order to avoid being removed.
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Uruguay
The judicial system should not be appointed by the legislative. I would rather have an
appointment system with the participation of the local bar association, instead of having a
political organism taking part of the decisions.
Venezuela
We think that the system of appointment, control and removal of judges established in our laws
is good enough to guarantee judicial independence. However, the problem is the absence of
an impartial authority or institution responsible for the enforcement of the system. Of course
any system can be improved. The problem can be solved if the Special Selection Committee
and the justices of the Supreme Court are selected as it is established in the Constitution,
guaranteeing the independence of the justices and of the Special Selection Committee.
13. How do you think unfair and arbitrary removal of judges may be prevented?
Argentina
See previous question.
Brazil
As previously mentioned, Brazil’s legislation protects the rights of judges, not having the
necessity to change the legislation to further protect them. The Federal Constitution is clear
in determining judge’s rights in search of fair and just trials.
Bolivia
Due process should be guaranteed
Chile
We believe that the way to prevent an unjust and arbitrary removal is to detail the real
meaning and scope of the expression ‘significant neglect of duties’ set out in Article 52 of
the Constitution.
In fact, due to the lack of clarity and specificity in this provision, it is often used by members
of parliament to support a constitutional accusation.
Colombia
We do not know of any case of unfair or arbitrary removal of judges.
Costa Rica
Due to the applicable regulation under Costa Rican law including the rights granted to
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judges within disciplinary processes and labour rights, there have been no known cases of
unfair and arbitrary removal of judges.
Mexico
We consider that the removal of magistrates and judges is not unfair or arbitrary, since in
most cases the destitution happens because of the breach of their obligations as judicial
officers or public servants, which must be proved through a judicial procedure.
Paraguay
Unfair and arbitrary removal of judges could be prevented by establishing a supervisory
body to follow up on each individual case and to control the regulations established for the
procedure. In our country, there are tools for a successful resolution of these types of dispute.
It would be ideal to know how to use them, always within the limits of law.
Peru
In Peru, the main issue is not the unfair or arbitrary removal of judges. This happened mainly
during Alberto Fujimori’s government. On the contrary, Peru’s problem lies in the absence
of the application of the removal system, even when it is necessary. Removals are minimal,
but when they are used the removed judges use appeals for legal protection in order to
get reinstated. As mentioned before regarding this topic, the only problem Peru has is the
presence of the ratification system which ends up being used to unfairly remove judges.
Uruguay
No system is perfect by itself, but I understand that a double control is necessary to avoid
political influences in the process of removal. Such double control can be performed by
requiring:
• the decision from the Supreme Court; and
• the decision of an ad hoc committee of lawyers and/or notaries specifically appointed by
the local bar association using a random system for the appointment.
Venezuela
This question has the same answer as above. Our laws governing the matter prevent the
removal of judges for unfair or political reasons. However, the problem is the absence of an
impartial law enforcement authority.
The main task to prevent unfair and arbitrary removal of judges should be to ensure that
the members of the disciplinary committee be elected by the mechanisms established in the
Constitution.
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14. Is there currently any bill of law that intends to change the system of
appointment, control and removal of judges? If yes, please describe the main
changes proposed by the bill of law and the supporters of such a bill.
Argentina
As mentioned in question l, there are certain projects to modify the composition of the
Council of the Magistracy that will help in order to have a more independent judiciary power.
The most relevant amendment proposed is to change the participation of the different stages
at the Council, limiting the participation of the executive and legislative powers.
Brazil
No, currently there is no bill of law that intends to change the system of appointment, control
and removal of judges. As mentioned above, Brazil does not have one single organism that
selects and appoints judges, instead, each court, in respect to the provisions set forth in the
Constitution and by the CNJ, decides the manner in which said selection and appointment
shall be carried out. Consequently, there is no bill of law that intends to alter the mechanism
established by the Constitution.
Bolivia
Considering that a new Political Constitution has been recently passed in Bolivia (in
February 2009), all regulations on this matter are quite new. Apart from the new rules in
the Constitution, two laws have been passed: one on the organisation of the judicial branch;
and the other on a law governing the distribution of powers between the ordinary courts and
the indigenous peoples’ authorities which are to exercise certain specific judicial functions,
mainly on relatively minor cases.
Chile
There is currently a bill of law in the pipeline that was presented by the executive on 8 March
2011 in Newsletter No 7515-07. This bill intends to eliminate in the Supreme and Appeal
Courts the simultaneous positions of external attorney (extraordinary judge) and prosecutor,
by transforming them into magistrates. This project is being revised by the parliament.
Colombia
Currently, there is no bill of law in Colombia that intends to change the system of appointment,
control and removal of judges.
Costa Rica
Currently there is a bill of law in process before the Costa Rican Congress that intends to
improve the system for the appointment of judges in Costa Rica.
Bill No 18176 is called the Law to Guarantee the Suitability of the Judges of the Republic,
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Public Defenders and Prosecutors, and its main purpose it to require that candidates must
prove their capacity for the job and obtain more experience before becoming judges, public
defenders and prosecutors.
This proposal was filed on 29 June 2011 and is currently being discussed in Congress.
Mexico
Currently there are no bills of law that intend to change the system of appointment, control
and removal of judges. However, the Federal Congress is discussing four constitutional
amendment proposals in order to modify, among other things, the procedure to select and
appoint the ministers of the FSCJ and counsellors of the federal and local judiciary councils.
These amendments provide that the appointment of ministers and counsellors should be
carried out by the proposal of public universities and non-governmental organisations. These
candidates will have to pass a general knowledge exam and those with the five highest grades
will be elected by the citizens’ vote for the mentioned positions.
Paraguay
Currently there is no bill that modifies the current system for the designation, control and
removal of judges.
Peru
While there are currently bills of law intending to change the system of appointment, control
and removal of judges, all are suggested tweaks rather than overhauls of the system. None of
the bills appear to have a reasonable chance of being passed by Congress at this time.
Uruguay
No.
Venezuela
The Venezuelan Judges’ Ethics Code has been recently approved. This Code creates a special
disciplinary court that should know all the controls and removal procedures. It also creates
a short, oral and public procedure that allows the right of defence for judges. If applied
correctly, this transparent procedure should guarantee stability in this area.
The only problem we have detected in this Code is that it does not specifically set forth who
can initiate the procedure of judges’ removal. It seems that any individual is able to initiate
this procedure; however, it is not regulated in a specific way in the Code.
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15. If you have any additional comments on the subject, please feel free to include
it here.
Bolivia
Most of the regulations described in this questionnaire are fairly new and are still in the
process of implementation. The new constitutional system will bring changes which at this
point in time are difficult to assess. The main challenge is whether or not the judiciary will
be able to maintain its constitutional independence vis-à-vis the executive and legislative
branches which have substantial political power.
Chile
Even when judges cannot be removed from their positions, their actions are under a very
strict liability regime which can lead to disciplinary, political, criminal and civil responsibility.
Finally, it is important to point out that in our country there are other kinds of special courts,
such as the Competition or Antitrust Tribunal, the Electoral Commission, regional electoral
commissions and arbitration tribunals. These are regulated by special laws, in terms of their
composition and the appointment, control and removal of members.
Venezuela
The necessary guarantees to achieve the independence of the judiciary power will be:
• create transparent mechanisms to appoint judges;
• assure judges’ unremovability;
• provide professional and appropriate training for judges; and
• provide judges with adequate remuneration benefits.
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