1. I am Sergei GOLUBOK. I hold postgraduate degrees of LL.M. in
International Human Rights Law awarded by the University of Essex in
the United Kingdom and Candidate of Juridical Sciences in Public
International Law and European Law awarded by the St. Petersburg State
University in the Russian Federation. In 2008-2011 I had an honour to
serve as a legal secretary at the Registry of the European Court of
Human Rights in Strasbourg, France. Currently I am a practicing
attorney and member of the St. Petersburg Bar Association appearing
before Russian courts including the Supreme Court of the Russian
Federation and before the international human rights tribunals such
as, for example, the Committee against Torture. I am also a deputy
editor-in-chief of the International Justice law journal which is
published by the Institute of Law and Public Policy and teach
international law at the Russian Academy of Justice in Moscow.

2. It was brought to my attention that the following question had
been referred to the Supreme Court of Sri Lanka: Is it mandatory under
Article 107 (3) of the Constitution  to provide for
matter relating to the forum before which allegations are, the mode of
proof, the burden of proof, standard of proof etc., of any alleged
misbehaviour or incapacity in addition to matters relating to the
investigation of the alleged misbehavior or incapacity?

3. Pursuant to Article 107 (3) of the Constitution of Sri Lanka in
conjunction with Article 107 (2) of the said Constitution Parliament
shall by law or by standing orders provide for all matters relating to
the presentation of the address on removal of the serving Judge of the
Supreme Court and of the Court of Appeal on the ground of misbehavior
or incapacity (“the impeachment procedure”) including the procedure
for the passing of such resolution, the investigation and proof of the
alleged misbehaviour or incapacity and the right of such Judge to
appear and to be heard in person or by representative.

4. I was approached by the Asian Human Rights Commission with a
request to prepare this opinion on international legal standards
concerning the fair-trial guarantees in the impeachment procedures
against serving judges.

5. The most important point of reference is the International
Covenant on Civil and Political Rights (hereinafter, “the Covenant”)
to which Sri Lanka is a State Party. Article 14 § 1 of the Covenant
provides that all persons shall be equal before the courts and
tribunals and that in the determination of his or her rights and
obligations in a suit at law everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal
established by law. Further, under Article 25 (c) of the Covenant
every citizen shall have the right and the opportunity without any
distinction on the basis such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status and without unreasonable restrictions
to have access to public service in his or her country, on general
terms of equality.

6. In its jurisprudence the Human Rights Committee (hereinafter, “the
Committee”), an independent expert body tasked with the interpretation
and application of the provisions of the Covenant, has developed the
meaning of the rights listed in the preceding paragraph of this
opinion with relation to the impeachment and other types of
involuntary removal from office of serving members of the judiciary.

7. The Committee found that a dismissed judge should have at his or
her disposal the availability of effective judicial protection of his
or her rights and be able to effectively contest the removal (see
Views of the Committee rendered on 5 August 2003 in the matter of
Pastukhov v. Belarus, Communication no. 814/1998, UN Doc.
CCPR/C/78/D/814/1998, at para. 7.3).

8. With respect to the parliamentary impeachment with no subsequent
judicial remedy the Committee found violations of Articles 14 and 25
of the Covenant referring to the conclusion that such procedure would
not ensure required objectivity and impartiality (see Views of the
Committee rendered on 24 July 2008 in the matter of Bandanaranayake v.
Sri Lanka, Communication no. 1376/2005, UN Doc. CCPR/C/93/D/1376/2005,
at para. 7.3).

9. In its concluding observations on Sri Lanka the Committee
expressed concern that the procedure for the removal of judges which
is set out in Article 107 of the Constitution of Sri Lanka is
incompatible with the Covenant as it allows Parliament “to exercise
considerable control over the procedure for removal of judges” (UN
Doc. CCPR/CO/79/LKA, at para. 16). The Committee went on to recommend
to Sri Lanka to provide for judicial, rather than parliamentary,
supervision and discipline of judicial conduct.

10. The then Special Rapporteur of the United Nations Human Rights
Council on the Independence of Judges and Lawyers (hereinafter, “the
Special Rapporteur”) Mr Leandro Despouy of Argentina opined in 2009
that the irremovability of judges was one of the main pillars
guaranteeing the independence of the judiciary and that that
fundamental principle might be transgressed only in exceptional
circumstances (see UN Doc. A/HRC/11/41, at para. 57). Special
Rapporteur Despouy further expressed his strong concern about the
situation in those countries where, like in Sri Lanka, the legislative
or executive branches of the government play an important or even
decisive role in disciplining judges (see UN Doc. A/HRC/11/41, at
para. 60).

11. The serving Special Rapporteur Mrs Gabriela Knaul of Brazil
issued a special press statement on 14 November 2012 expressing her
concern about reprisals against judges in Sri Lanka and urging
reconsideration of Chief Justice’s impeachment. Having reiterated her
predecessor’s thoughts as summarized in the preceding paragraph of
this opinion, the Special Rapporteur expressed her uneasiness with the
procedure of impeachment of the Chief Justice of the Supreme Court of
Sri Lanka. She shared the view of the Committee that the procedure for
the removal of judges of the Supreme Court set out in Article 107 of
the Constitution of Sri Lanka allows the Parliament to exercise
considerable control over the judiciary and is therefore incompatible
with both the principle of separation of power and Article 14 of the
Covenant. The Special Rapporteur urged the Sri Lankan authorities to
reconsider the impeachment of Chief Justice and ensure that any
disciplinary procedure that she might have to undergo would be in full
compliance with the fundamental principles of due process and fair
trial.

12. The European Court of Human Rights (hereinafter, “the European
Court”) in its jurisprudence likewise considers possibility of
independent judicial review with full fair-trial guarantees to
constitute inalienable element of any involuntary removal from office
of a serving judge.

13. Thus, in its recent judgment in Harabin v. Slovakia (Application
no. 58688/11) the European Court found the following: “The mission of
the judiciary in a democratic state is to guarantee the very existence
of the rule of law. The  Court therefore sees as a matter of
major importance when a Government, as in the present case, initiates
disciplinary proceedings against a judge in his or her capacity as
President of the Supreme Court. What is ultimately at stake in such
proceedings is the confidence of the public in the functioning of the
judiciary at the highest national level. It is therefore particularly
relevant that the guarantees of Article 6 [of the European Convention
on Human Rights which is substantially similar to Article 14 of the
Covenant] should be complied with in such proceedings” (at para. 133
of the European Court’s judgment rendered on 20 November 2012).

14. The European Court has earlier found that Article 6 § 1 of the
European Convention is fully applicable in the disciplinary
proceedings against a sitting judge (see the judgment of 5 February
2009 in Olujić v. Croatia, application no. 22330/05).

15. It follows that a serving judge in disciplinary proceedings which
might ultimately lead to her or his dismissal should be entitled to
fair-trial guarantees including a right to be tried by an independent
tribunal. According to the international legal standards all
disciplinary (including those ultimately potentially leading to
removal) proceedings against members of the judiciary must be
determined in full compliance with the procedures that guarantee the
right to a fair hearing and to an independent review (by a court of
law).

16. Given the absence of such guarantees procedure as currently
established by the Standing Orders enacted by the Parliament under
Article 107 (3) of the Constitution cannot be legally used.

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