The Transfer of Judges and Judicial Independence

Ng, Gar Yein (2025) The Transfer of Judges and Judicial Independence. Hague Journal on the Rule of Law (HJRL). ISSN 1876-4045

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Abstract

This article sets the issue of transfer of judges within an international and constitutional framework of judicial independence. It has been more than 10 years since the Kyiv Recommendations on Judicial Independence (Kyiv Recommendations) were published by the Organization for Security and Cooperation in Europe (OSCE), Office for Democratic Institutions and Human Rights (ODIHR), which seeks to help countries find an appropriate balance between independence and accountability, whilst protecting judges from broader external and internal pressures. The OSCE/ODIHR have seen practices develop in the region to avoid the recommendations in spirit. Transfer of judges has a legitimate place in court management and professional development, but has also been used to threaten judges who do not comply with political will in individual cases. There are mechanisms, if not properly regulated, that allow judges to be threatened, such as disciplinary transfers, denial of transfers when requested, court reorganization, and case management, amongst others. This article is adapted from an earlier draft thematic paper used to address the gap and revise the Kyiv Recommendations. It found that a number of practices involving transfer of judges were incompatible with the spirit and letter of the Kyiv Recommendations. It is set out in four main parts: The first section sets out the introduction, issues and the methodology of the original project, section two provides an overview of international norms and guidelines, providing a legal framework on the transfer of judges and the case law jurisprudence of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) on the transfer of judges. In section three, I shall present the practical operation of how judges are transferred utilising some case studies as examples. The last section will discuss conclusions and recommendations. As such, this article will look at the international norms which allow for transfer of judges, and the procedural guarantees underlying those circumstances, the protection of judicial independence and conclude on how transfers of judges can, under certain circumstances, affect their independence and accountability.

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