https://biblioteca.cejamericas.org/handle/123456789/42 Mon, 06 Apr 2026 19:40:16 GMT 2026-04-06T19:40:16Z https://biblioteca.cejamericas.org/handle/2015/4318 Constitutional Guarantees for the Independence of the Judiciary R. de Lange and P.A.M. Mevis Reseña:Judicial independence is generally seen as a fundamental value of the rule of law. Likewise, in the Dutch constitutional order, independence of the judiciary is regarded as an essential principle. In the Dutch Constitution, however, which dates from 1814 and was substantially revised for the last time in 1983, independence of the judiciary is not explicitly mentioned. The Constitution deals with the judiciary and its organization, but in this context does not explicitly mention judicial independence as an organizational principle to be respected in the arrangements for the judicial system – and therefore does not mention it as a fundamental right for citizens. The guarantees for the independence of the judiciary are to be found in statute law, in particular in the Judiciary Organization Act (Wet op de rechterlijke organisatie) and the Judicial Officers (Legal Status) Act (Wet rechtspositie rechterlijke ambtenaren). These guarantees are also partly based on European norms. The European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (ECHR), in particular, has been highly influential regarding both the theory and practice of judicial independence. In addition, guarantees may be found in unwritten constitutional law. All in all, it can be said that the Dutch constitutional order considers the independence of the judiciary to be a central principle. This is true both for the judicial system as a whole in relation to other branches of government, and for the individual members in relation to the judicial system, in particular in relation to the judicial body within which they function. The extent to which the independence ofindividual judges or courts also applies to their relations with other judges or courts will be discussed further on in this article.In every list of the characteristics of the rule of law, there is at least some mention of the independence of the judiciary. The right of access to a court is generally also mentioned as an essential characteristic. In this context, there is an assumption that adequate dispute settlement can best be carried out by courts, and not by administrative bodies. The ECHR gives expression to this idea in Article 6. For the determination of civil rights and obligations, and for judgment on a criminal charge brought against someone, the ECHR requires – and grants a right to – a judgment by an independent and impartial judicial authority. Similarly, the legal protection of citizens against the government should preferably be carried out by independent courts and not by administrative authorities. Precisely because of this independent position, judicial dispute settlement – and the review of government actions and rules inherent therein – is to be preferred over forms of control by administrative bodies. From the point of view of protection of citizens’ rights, in particular the fundamental rights mentioned in treaties and in the Constitution, adjudication and settlement of disputes by the independent judiciary is preferable.Judicial independence has a number of aspects, some relating to the organization of the judiciary and some relating to the legal position of members of the judiciary. Different views exist regarding the relationship between these aspects. Some characteristics of the legal position of judicial officers can be considered essential for the independence of the judiciary, while there are differences of opinion regarding other characteristics. These issues will be discussed in the present report. In the course of this discussion, we will first examine the constitutional framework of judicial independence. Subsequently, some of the most important statutory provisions for the independence of the judiciary will be addressed.individual judges or courts also applies to their relations with other judges or courts will be discussed further on in this article.In every list of the characteristics of the rule of law, there is at least some mention of the independence of the judiciary. The right of access to a court is generally also mentioned as an essential characteristic. In this context, there is an assumption that adequate dispute settlement can best be carried out by courts, and not by administrative bodies. The ECHR gives expression to this idea in Article 6. For the determination of civil rights and obligations, and for judgment on a criminal charge brought against someone, the ECHR requires – and grants a right to – a judgment by an independent and impartial judicial authority. Similarly, the legal protection of citizens against the government should preferably be carried out by independent courts and not by administrative authorities. Precisely because of this independent position, judicial dispute settlement – and the review of government actions and rules inherent therein – is to be preferred over forms of control by administrative bodies. From the point of view of protection of citizens’ rights, in particular the fundamental rights mentioned in treaties and in the Constitution, adjudication and settlement of disputes by the independent judiciary is preferable.Judicial independence has a number of aspects, some relating to the organization of the judiciary and some relating to the legal position of members of the judiciary. Different views exist regarding the relationship between these aspects. Some characteristics of the legal position of judicial officers can be considered essential for the independence of the judiciary, while there are differences of opinion regarding other characteristics. These issues will be discussed in the present report. In the course of this discussion, we will first examine the constitutional framework of judicial independence. Subsequently, some of the most important statutory provisions for the independence of the judiciary will be addressed. https://biblioteca.cejamericas.org/handle/2015/4318 https://biblioteca.cejamericas.org/handle/2015/4319 Constitutional Guarantees of Judicial Independence in Germany Anja Seibert-Fohr Reseña:Judicial independence constitutes one of the fundamental principles ofthe German Constitution.1 The status and structure of the judiciary isJudicial independence constitutes one of the fundamental principles ofthe German Constitution. The status and structure of the judiciary iselaborated in Chapter XI (Articles 92-104) of the Constitution, the socalledBasic Law (“Grundgesetz”). Article 97 guarantees the independenceof judges. It reads: (1) Judges shall be independent and subject only to the law.(2) Judges appointed permanently to full-time positions may be involuntarilydismissed, permanently or temporarily suspended, transferred,or retired before the expiration of their term of office onlyby virtue of judicial decision and only for the reasons and in themanner specified by the laws. The legislature may set age limits forthe retirement of judges appointed for life. In the event of changes inthe structure of courts or in their districts, judges may be transferredto another court or removed from office, provided they retain theirfull salary.       This guarantee applies to federal and state (“Land”) judges alike sincethe German judiciary is mixed, being composed of state and federalcourts. While the highest courts are federal courts, the courts of firstinstance and courts of appeal are state courts. As a general rule, judgementsfrom the highest state courts may be appealed to the supremefederal courts provided they concern significant cases. Judicial independenceof state judges is also guaranteed by the constitutions of the states which copy verbatim or analogously repeat Article 97 (1) BasicLaw.The legal status of federal and state judges is specified in federal laws,namely the “Federal Judges Act” (“Deutsches Richtergesetz”: DRiG)and the “Judicature Act” (“Gerichtsverfassungsgesetz”: GVG) which,along with other legal acts, provides the basis for procedural law inGermany. Both acts reproduce almost verbatim Article 95 (1) BasicLaw and provide for specific safeguards of judicial independence. Withrespect to state judges this law only provides for framework provisions.Their legal status is set out in the various state constitutions and furtherregulated by special state laws pursuant to paragraph 3 of Article 98 BasicLaw.              https://biblioteca.cejamericas.org/handle/2015/4319 https://biblioteca.cejamericas.org/handle/2015/4317 Constitutional Frameworks and the Rule of Law: Perils of Crony Presidentialism Maxwell A. Cameron, Ana-Maria Blanaru, Lesley M. Burns Presidential systems are less likely to survive and are more prone to political instability than parliamentary systems. The differences between the two constitutional types are greatest where the rule of law is precarious, allowing crony presidentialism to prevail. Minority presidents may rely on cronyism to build coalitions, making them vulnerable to court challenges and creating an incentive to stack courts. Their alternative is often to face the threat of executive-legislative deadlock, becoming lame ducks targeted by the opposition for extra-constitutional efforts to remove them from office or compelled to rule, often at the margin of the law, by means of the abuse of decree authority. The lower democratic survival and stability rates found among presidential systems where the rule of law and judicial independence are weak indicate that intrinsic features of each constitutional system form part of the explanation for the differences in performance. Presidentialism and weak legal enforcement interact to produce greater political instability and regime fragility. https://biblioteca.cejamericas.org/handle/2015/4317 https://biblioteca.cejamericas.org/handle/2015/4313 Constitution of the Argentine Nation Basic principles of law of the land which contains legal precepts for the creation, organizing and the functioning of the state which in turn recognizes a set of social rights for its citizens. https://biblioteca.cejamericas.org/handle/2015/4313