32/34 Report of the Special Rapporteur on the independence of judges and lawyers

GE.16-05469 (E)

*1605469*

Human Rights Council Thirty-second session

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Report of the Special Rapporteur on the independence of judges and lawyers

Note by the Secretariat

The Secretariat has the honour to transmit to the Human Rights Council the report of

the Special Rapporteur on the independence of judges and lawyers, Mónica Pinto, prepared

pursuant to Council resolution 26/7. The report is the first written by the Special Rapporteur

since she took up her duties on 1 August 2015. In the report, she recalls the origins of the

mandate and the international and regional legal framework that has been studied, assessed

and developed in the work of her three predecessors. She notes that, despite a

comprehensive international and regional legal framework which details the preconditions

and prerequisites necessary in order to have an independent, competent and impartial

judiciary and an independent and qualified legal profession, such independence and

impartiality are still extremely vulnerable, are under attack or are merely non-existent, in

many parts of the world.

Against this backdrop, the Special Rapporteur explains that it is time to revisit the

well-established principles of judicial independence and impartiality, and the important

body of work, including the recommendations, left by her predecessors, with a view to

helping all stakeholders to take concrete measures to render the independence and

impartiality of the justice system more effective. To that end, she proposes to begin

working on a set of indicators of independence and impartiality which could be used by

State institutions, judges, prosecutors, lawyers, civil society actors, donors and cooperation

agencies, among others, to assess the independence and impartiality of specific justice

systems, to identify needs for reform, and to allow targeted measures and actions to be

taken to improve the administration of justice and the justice system in a more effective

way.

The Special Rapporteur concludes by recalling the centrality of the independence of

judges and lawyers to the promotion and protection of human rights and mentions specific

issues that she hopes to continue monitoring or to study in more detail during her tenure.

Report of the Special Rapporteur on the independence of judges and lawyers

Contents

Page

I. Introduction ...................................................................................................................................... 3

II. Activities since 1 August 2015 ......................................................................................................... 3

A. Country visits .......................................................................................................................... 3

B. Communications and press releases ......................................................................................... 4

C. Other activities ......................................................................................................................... 5

III. The independence of the justice system revisited ............................................................................ 7

A. Origins of the mandate ............................................................................................................. 7

B. International legal framework .................................................................................................. 8

C. Need for a democratic context ................................................................................................. 9

D. Committing to the independence of judges and lawyers ......................................................... 10

E. Building a domestic culture of judicial independence ............................................................. 11

IV. Indicators ......................................................................................................................................... 11

V. Conclusions and considerations ....................................................................................................... 13

I. Introduction

1. The present report is the first report written by the Special Rapporteur on the

independence of judges and lawyers, Mónica Pinto, since she took up her duties on

1 August 2015. It is submitted in accordance with Human Rights Council resolution 26/7.

2. The Special Rapporteur takes the opportunity in her first report of stressing how

much she has inherited from her predecessors, Gabriela Knaul, Leandro Despouy and

Param Cumaraswamy, who gave visibility and recognition to the mandate while

interpreting its scope and content. These former special rapporteurs clarified and

consolidated the requirements necessary to achieve and maintain the independence and

impartiality of the justice system, through both their thematic reports and their country visit

reports. Taking their legacy into account is essential when looking into future ways to

improve and strengthen the independence of the judiciary and the legal profession.

3. The Special Rapporteur notes that, despite a comprehensive international and

regional legal framework which details the preconditions and prerequisites necessary to

have an independent, competent and impartial judiciary and an independent and qualified

legal profession, such independence and impartiality are still extremely vulnerable, are

under attack or are merely non-existent, in many parts of the world. Against this

background, she believes that it is time to revisit these well-established principles and the

recommendations put forward by her predecessors, with a view to helping all stakeholders

to take concrete measures to render the independence and impartiality of the justice system

more effective. To that end, she proposes to begin working on a set of indicators of

independence and impartiality which could be used by State institutions, judges,

prosecutors, lawyers, civil society actors, donors and cooperation agencies, among others,

to assess the independence and impartiality of specific justice systems, to identify needs for

reform, and to allow targeted measures and actions to be taken to improve the

administration of justice and the justice system in a more effective way.

4. The Special Rapporteur started to present her approach and ideas in her address to

the Third Committee of the General Assembly in October 2015, when she presented the last

thematic report prepared by her predecessor (A/70/263). In the present report, after

reviewing the activities that she has carried out since taking up her duties (part II), she

continues to explain her approach and the background against which she will be working

(part III). She then provides preliminary information on the work that she proposes to carry

out on indicators (part IV). She concludes by recalling the centrality of the independence of

judges and lawyers to the promotion and protection of human rights and mentions some

additional topics that she hopes to be in a position to study in more detail during her tenure

(part V).

II. Activities since 1 August 2015

5. The activities carried out by the Special Rapporteur’s predecessor between 1 March

and 31 July 2015 are listed in her predecessor’s last report to the General Assembly

(A/70/263). From 1 August 2015 to 15 March 2016, the Special Rapporteur participated in

the activities set out below.

A. Country visits

6. The Special Rapporteur carried out her first official country visit from 10 to 16

October 2015, to Guinea-Bissau, to examine and analyse the achievements and challenges

of Guinea-Bissau in ensuring the independence of judges, prosecutors and lawyers, as well

as a fair and competent administration of justice (see A/HRC/32/34/Add.1). She thanks the

authorities for their invitation and their engagement with her mandate and hopes that

concrete measures will be taken to implement her recommendations. She also encourages

the international donor community to take account of her report and to consider the

recommendations contained therein when establishing their cooperation priorities and

deciding on specific initiatives.

7. The Special Rapporteur would also like to thank the Government of Sri Lanka for

inviting her, and the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment, Juan Méndez, to conduct a joint visit to the country from 29 April

to 7 May 2016. The final report of that visit will be presented to the Human Rights Council

at its thirty-fifth session, in June 2017.

8. Since 1 August 2015, the Special Rapporteur has sent requests for official visits to

the Governments of Ecuador and Lebanon, as well as reminders of pending requests for

visits to the Governments of China, Egypt, the Islamic Republic of Iran and the Bolivarian

Republic of Venezuela. She also sent a letter to Kenya, which had accepted a country visit

request sent by her predecessor, confirming her interest in conducting a visit and proposing

it take place during the second half of 2016. At the time of writing the present report, she

had not received replies to these various requests.

9. Finally, the Special Rapporteur wishes to acknowledge the positive replies of the

Governments of France, Germany, Greece, Iraq, Morocco, Nepal, Spain and the United

States of America to the country visit requests sent by her predecessor. In this context, she

wishes to thank the authorities of the countries concerned. She also informs the Human

Rights Council that she will give consideration to the aforementioned replies in due course.

B. Communications and press releases

10. From 1 August 2015 to 29 February 2016, the Special Rapporteur sent a total of

55 communications, to 32 Member States from all regional groups and to one other entity,

in the form of 46 urgent appeals (84 per cent of the communications) and 9 allegation

letters (16 per cent of the communications). These communications, together with the

responses from Governments, are included in the communications reports of special

procedures (for those sent between 1 August and 30 November 2015, see A/HRC/31/79,

and for those sent between 1 December 2015 and 29 February 2016, see A/HRC/32/53).

11. All 55 communications were sent jointly with other special procedure mandate

holders. In the Special Rapporteur’s opinion, this reflects the reality that situations in which

the independence and impartiality of judges, lawyers and prosecutors, the proper

functioning of the justice system and the right to due process of law and a fair trial are

affected very often occur when other democratic institutions are at risk or when a variety of

human rights are concurrently being violated, such as the right not to be subjected to

arbitrary arrest or detention, the right not to be subjected to torture or ill-treatment, the right

to freedom of opinion and expression, the right not to be subjected to discrimination, or the

right to freedom of peaceful assembly and association.

12. A large majority of the communications addressed issues related to violations of

guarantees of due process of law or of a fair trial, such as the lack of access or inadequate

access to a lawyer, hearings held in closed session without justification, violations of the

principle of equality of arms and the right to a defence, the trial of civilians before military

courts, or the lack of impartiality of judges. In about a dozen of the communications,

allegations relating to lack of due process or lack of a fair trial were raised in the context of

cases where persons had been sentenced to, or were facing being sentenced to, the death

penalty. A dozen communications contained allegations of violations of the rights and

independence of lawyers, which included killings, attacks, threats, intimidation, harassment

and detention, as well as undue restrictions on their work. A few communications raised

issues concerning undue pressures on prosecutors, and threats, attacks and intimidation

directed against judges, as well as enforced disappearances and incommunicado detentions.

13. The Special Rapporteur wishes to underline that the above-mentioned

communications exclusively reflect information that was transmitted to her and was

subsequently acted upon. Complaints that contained insufficient information, that fell

outside the scope of the mandate, or that the Special Rapporteur was not in a position to act

upon owing to time, workload or other constraints, are not reflected in the numbers

provided in the present report. Besides, problems regarding the independence and

impartiality of the justice system are not limited to the States or entities to which

communications were sent. Therefore, the fact that a particular State or entity may not have

received a communication should not be interpreted as indicating that there are no

challenges concerning the independence and impartiality of the judiciary and the

administration of justice in that State or entity.

14. At the time of writing the present report, the overall reply rate for the

communications sent by the Special Rapporteur was 42 per cent. The Special Rapporteur

wishes to encourage States to reply promptly to all the communications that they receive

and to address the specific violations and concerns identified therein in a meaningful way,

in particular when the communications concern time-sensitive issues that may have

irreversible consequences for people.

15. The Special Rapporteur used media releases to bring public attention to situations

that she identified as particularly concerning. Excluding press releases and public

statements related to her country visit, she issued a total of 10 media releases; 9 of those

addressed specific country situations across regional groups and 1 focused on a particular

theme related to the mandate. All 10 media releases were sent jointly with other special

procedure mandate holders.

C. Other activities

16. Shortly after she took up her duties, from 14 to 18 September 2015, the Special

Rapporteur was in Geneva for a series of meetings and consultations.

17. On 15 September 2015, she participated as a moderator in a side event of the Human

Rights Council entitled “Judges, lawyers, prosecutors and human rights: 30 years of UN

action”. The event was convened by the International Bar Association’s Human Rights

Institute and the International Commission of Jurists. It was co-sponsored by the Permanent

Missions of Australia, Botswana, Hungary, Ireland and Thailand, and the Council of

Europe, as well as by the Association for the Prevention of Torture, Avocats sans frontières,

the Colombian Commission of Jurists, the Commonwealth Lawyers Association, the

Commonwealth Magistrates and Judges Association, the International Legal Assistance

Consortium, Judges for Judges, and Lawyers for Lawyers.

18. The side event commemorated the thirtieth anniversary of the Basic Principles on

the Independence of the Judiciary,1 and the twenty-fifth anniversary of the Basic Principles

1 Adopted by the seventh United Nations Congress on the Prevention of Crime and the Treatment of

Offenders, held in Milan, Italy, from 26 August to 6 September 1985, and endorsed in General

Assembly resolutions 40/32 and 40/146.

on the Role of Lawyers and of the Guidelines on the Role of Prosecutors.2 In this context,

the Special Rapporteur emphasized that nowadays the independence of the judiciary is

considered integral to the protection of human rights and to enforcement of the rule of law.

She described these three sets of principles and guidelines as the most essential expression

of the standards relating to judicial independence and impartiality and the independence of

the legal profession.

19. On 16 September 2015, the Special Rapporteur held an open informal consultation

with representatives of civil society, including associations of legal professionals.

20. On 17 September 2015, the Special Rapporteur participated as a panellist in a side

event of the Human Rights Council that was entitled “Fair trials and judicial accountability

in Maldives: ways forward” and was organized by Amnesty International. At this side

event, she recalled the conclusions and recommendations of her predecessors who had

conducted official visits to Maldives: Mr. Despouy in 2007 and Ms. Knaul in 2013. She

also highlighted the concerns expressed by Ms. Knaul on the deterioration of the

independence of the judiciary since 2013.

21. On 27 October 2015, the Special Rapporteur presented the last thematic report of her

predecessor to the Third Committee of the General Assembly (A/70/263). In the first part of

the report, Ms. Knaul recounted the numerous activities that she had carried out during her

six years as Special Rapporteur, providing details and statistics on country visits,

communications and media releases, among other things. In the second part of the report,

she reviewed the issues and topics that she had addressed over the course of her mandate,

categorizing them into seven thematic clusters: education, training and capacity-building of

judges, lawyers and prosecutors; access to justice and legal aid; challenges to the

independence and impartiality of judges; protecting the independence of lawyers;

safeguarding the independence and impartiality of prosecutors and the autonomy of

prosecution services; equality before the courts and fair trial guarantees; and impunity for

human rights violations.

22. The Special Rapporteur also made use of her oral presentation to recall the main

lines of her mandate, and to emphasize that ensuring the independence and integrity of the

justice system requires continuous attention and monitoring in order to identify and tackle

new or re-emerging problems and challenges triggered by societal, political and economic

changes.

23. On 14 December 2015, the Special Rapporteur participated by means of

videoconference in the sixth annual Geneva Forum of Judges and Lawyers, organized by

the International Commission of Jurists, which focused on judicial accountability. During

her keynote intervention, she stressed that independence and accountability were both

indispensable to ensuring the suitability and integrity of members of the judiciary and

respect for the rule of law. She recalled that judges and prosecutors must only be removed

from office for proved incapacity, conviction for a crime, or conduct that renders them unfit

to discharge their professional duties. She also cautioned against the very thin line that lies

between accountability and undue pressure or interference.

24. On 14 and 15 January 2016, the Special Rapporteur participated — together with

fellow special rapporteurs — as a panellist and expert in a seminar on human rights and

election standards, organized in Atlanta, United States of America, by the Carter Center.

The event, which was attended by former President Carter, was aimed at exploring ways

to foster the work of the special procedures of the Human Rights Council in election

2 Both adopted by the eighth United Nations Congress on the Prevention of Crime and the Treatment of

Offenders, held in Havana, Cuba, from 27 August to 7 September 1990.

contexts and to improve cooperation between the special procedures and organizations

working on election monitoring. In this context, the Special Rapporteur presented her views

about the requirements of independence and impartiality of the members of election

complaint adjudicatory bodies.

25. On 8 March 2016, the Special Rapporteur delivered a statement at a training event

on the universal human rights system, organized by the OHCHR Regional Office for South

America, the Office of the United Nations High Commissioner for Refugees and the

Secretary of Human Rights of the Government of Argentina, and held in Buenos Aires. In

her lecture, she described the work of the special procedures and explained their working

methods to a group of State officials.

26. Finally, on 10 March 2016, the Special Rapporteur delivered the inaugural address

at the permanent training course for magistrates and judicial personnel in San Miguel de

Tucumán, Argentina, at the invitation of the Office of Human Rights and Justice of the

Supreme Court of the Province of Tucumán. She focused on the main features of justice in

the twenty-first century. She talked about human rights and the right to justice, and in

particular about access to justice, the requirements of independence and impartiality, and

the need for continuing legal training, including training on international human rights law

and gender issues. She also stressed that social perceptions were important: justice should

not be distant from people or expensive for them, or take too long to be done.

III. The independence of the justice system revisited

A. Origins of the mandate

27. The mandate of the Special Rapporteur on the independence of judges and lawyers

was established by the Commission on Human Rights, in its resolution 1994/41, to inquire

into allegations of interference and attacks on the independence of the judiciary, lawyers

and court officials; to identify and record those attacks, but also the progress achieved in

this area; and to study important and topical questions of principle with a view to protecting

and enhancing the independence of judges, lawyers, prosecutors and court officials.

28. Yet, the United Nations had showed concern about the independence of judges,

prosecutors and lawyers well before the creation of the mandate. Early in 1980, the Sub-

Commission on Prevention of Discrimination and Protection of Minorities (later known as

the Subcommission on the Promotion and Protection of Human Rights) appointed

L.M. Singhvi as Rapporteur to work on this issue. He submitted several successive reports,3

and a final one that included the Draft Universal Declaration on the Independence of Justice

containing a body of important principles relating to the independence of judges and

lawyers.4 The Sub-Commission decided to refer the theme to the Commission on Human

Rights, which recommended that the principles contained in Mr. Singhvi’s draft declaration

be taken into consideration when enforcing the Basic Principles on the Independence of the

Judiciary, which had been adopted in 1985. 5

29. In 1989, Louis Joinet, expert member of the Sub-Commission, was appointed to

prepare a working paper on the means of monitoring the Basic Principles on the

3 A preliminary report in 1980 (E/CN.4/Sub.2/L.731) and progress reports in 1981

(E/CN.4/Sub.2/481 and Add.1), 1982 (E/CN.4/Sub.2/1982/23) and 1983 (E/CN.4/Sub.2/1983/16). 4 See E/CN.4/Sub.2/1985/18 and Add.1-6.

5 See E/CN.4/RES/1989/32.

Independence of the Judiciary. 6 The work of both Mr. Singhvi and Mr. Joinet led to the

creation in 1994 of the mandate of the Special Rapporteur on the independence of judges

and lawyers.

B. International legal framework

30. The international legal framework supporting the mandate’s goals is well established

and universal. It includes treaty law, such as article 14 of the International Covenant on

Civil and Political Rights, adopted by the General Assembly in December 1966 and in force

for 168 States, and its regional counterparts, such as article 6 of the European Convention

for the Protection of Human Rights and Fundamental Freedoms, of 1950, which is in force

for the 47 European States members of the Council of Europe, article 8 of the American

Convention on Human Rights, of 1969, which is in force for 23 States members of the

Organization of American States, article 7 of the African Charter on Human and Peoples’

Rights, of 1981, which is in force for 53 States members of the African Union, or articles

12, 13 and 16 of the Arab Charter on Human Rights, of 2004, which is in force for 13

States members of the League of Arab States.

31. Article 14 of the International Covenant on Civil and Political Rights, the most

universal of these treaty provisions, has been the object of interpretation by the Human

Rights Committee through its general comments, 7 as well as in its jurisprudence and

concluding observations on the periodic reports of States parties to the Covenant. Such

interpretation is extremely valuable in order to assess the scope of the independence of the

justice system and its main features.

32. The independence of justice is also protected under article 10 of the Universal

Declaration of Human Rights, of 1948, and under articles xviii and xxvi of the American

Declaration of the Rights and Duties of Man, also of 1948. Later, in 1985, the seventh

United Nations Congress on the Prevention of Crime and the Treatment of Offenders

adopted the Basic Principles on the Independence of the Judiciary, which would be

endorsed shortly afterwards by the General Assembly. Moreover, as noted by

Mr. Cumaraswamy in the first report he submitted to the then Commission on Human

Rights, “the general practice of providing independent and impartial justice is accepted by

States as a matter of law and constitutes, therefore, an international custom in the sense of

Article 38 (1) (b) of the Statute of the International Court of Justice.” 8

33. This rather comprehensive set of international and regional rules and standards was

complemented, five years later, with the Basic Principles on the Role of Lawyers and the

Guidelines on the Role of Prosecutors, adopted in 1990 by the eighth United Nations

Congress on the Prevention of Crime and the Treatment of Offenders. The Special

Rapporteur notes that, while these principles were first conceived and viewed as additional

essential guarantees to ensure fair and impartial justice for all those prosecuted under

criminal charges, nowadays the independence of the judiciary is no longer strictly

associated with criminal justice matters. Rather, an independent and impartial justice

system is considered integral and inherent to the protection and promotion of human rights

and the rule of law. The independence of the judiciary and the legal profession is also

central to the right to an adequate and effective remedy for human rights violations.

6 See E/CN.4/RES/1989/22.

7 See, in particular, general comment No. 32 on the right to equality before courts and tribunals

and to a fair trial.

8 See E/CN.4/1995/39, para. 35.

34. The scope and requirements of an independent and impartial justice system have

also been addressed in quite some detail and in a variety of situations in the jurisprudence

of regional human rights courts. For example, the Inter-American Court of Human Rights

has stressed the applicability of article 8 of the American Convention on Human Rights —

the provision on the right to a fair trial — to the decisions taken by any public authority that

exercises jurisdictional functions. 9 In another case, the Court ruled that requirements of

independence and impartiality must also be enforced in cases relating to decisions taken by

adjudicatory bodies in the context of electoral matters. 10

For its part, the European Court of

Human Rights has determined that it is particularly important for the institution in charge of

electoral administration to function in a transparent manner and to maintain impartiality and

independence from political manipulation. 11

In turn, the Committee of Ministers of the

Council of Europe has recommended that if disciplinary measures need to be taken relating

to judges, the law should provide for appropriate procedures to ensure that they are given at

least all the due process requirements of the Convention for the Protection of Human Rights

and Fundamental Freedoms (European Convention on Human Rights), particularly that the

case should be heard within a reasonable time frame and that they should have a right to

answer any charges. 12

Many more decisions of the regional courts clarify the scope of

application of the principles of judicial independence and impartiality.

35. Despite such a comprehensive legal framework and body of jurisprudence and

interpretation, the independence of judges, lawyers and prosecutors is still extremely

vulnerable, is under attack or is merely non-existent, in many parts of the world. That is

why revisiting the principles of an independent and impartial justice system with a view to

recommending concrete ways to render such independence more effective seems timely to

the Special Rapporteur. In order to do so, the Special Rapporteur will not only need to take

existing international norms and standards into account, but also pay attention to the

context in which independence has to be assured and preserved and address the

commitments, or lack thereof, of all stakeholders, in particular States.

C. Need for a democratic context

36. In light of this legal framework, it is evident that the natural context for the

realization of the independence of judges, lawyers and prosecutors is that of a democracy.

All human rights treaties refer to a democratic society as the natural environment for the

protection and promotion of human rights. What is necessary in a democratic society is also

the measure against which restrictions to human rights and fundamental freedoms will be

assessed to determine if they are acceptable or not. A functioning democracy ensures the

separation of powers and, as noted by the first Special Rapporteur, “the principle of the

separation of powers… is the bedrock upon which the requirements of judicial

independence and impartiality are founded”. 13

9 Inter-American Court of Human Rights, Constitutional Court v. Peru, Judgment of 31 January 2001,

Series C No. 55.

10 Inter-American Court of Human Rights, Yatama v. Nicaragua, Judgment of 23 June 2005, Series C

No. 127.

11 European Court of Human Rights, Georgian Labour Party v. Georgia, Judgment of 8 October 2008;

and European Court of Human Rights, Namat Aliyev v. Azerbaijan, Judgment of 8 July 2010.

12 Recommendation No. R (94) 12 of the Committee of Ministers to member States on the

independence, efficiency and role of judges.

13 See E/CN.4/1995/39, para. 55.

37. However, democracy is not static; it is evolving with societies and presents different

characteristics. Yet, none of these characteristics must impair the core principles of the

independence and impartiality of the justice system.

38. A strong and independent legal profession is also needed to ensure access to justice

and the right to equality before the courts and a fair trial, including specific due process of

law guarantees in criminal proceedings. For this reason, lawyers must be free to consult and

assist their clients, provide legal advice and exercise their profession in a free and secure

environment.

D. Committing to the independence of judges and lawyers

39. Clear commitments from governments and other political and economic actors, but

also from judges, prosecutors and lawyers themselves, to respecting, protecting and

strengthening the independence and impartiality of the justice system are also necessary.

Any legal provision protecting the independence of judges, lawyers or prosecutors becomes

useless if there is no commitment to respect and enforce it. Moreover, whenever one of

these groups “forgets” the specific roles they have to play in a democratic society — roles

which come with both rights and duties — the prerequisites of independence become

difficult to fulfil.

40. States must respect and protect the independence of judges, prosecutors and lawyers

at different levels and in different ways. States have to observe appropriate mechanisms for

the selection, appointment, promotion, transfer and discipline of judges and prosecutors, in

line with the respective international norms and standards. They also have to put in place

mechanisms to protect judges, prosecutors and lawyers against pressure, interference,

intimidation and attacks and to ensure their security.

41. States should also promptly and diligently abide by or enforce judicial decisions and

judgments. Furthermore, States should show their commitment to an independent, impartial

and competent justice system by providing adequate infrastructures, facilities and material

resources for the judiciary to perform its duties, allocating a reasonable part of the national

budget to the justice sector. States should also commit to enacting legislation necessary to

ensure the protection of the independence and impartiality of the justice system.

42. States should respect the independence of lawyers too and recognize the important

role they play, including by providing for their security and allowing them to associate

freely. It is not possible or reasonable to imagine that justice can be done without

independent and competent lawyers. States must therefore ensure that lawyers are in a

position to practise their profession without obstacles.

43. States should strive to ensure access to justice for all, including by setting up

institutionalized legal aid schemes free of charge for those lacking resources. In this

context, the Special Rapporteur notes that, on 25 September 2015, the 193 Member States

of the United Nations committed themselves to providing access to justice for all, in

adopting the 2030 Agenda for Sustainable Development (see Sustainable Development

Goal 16).

44. States should also ensure that anyone can enter the legal profession, the prosecution

services and the judiciary without discrimination of any sort, in particular on the grounds of

gender; States should promote greater representation of women and minorities.

45. Independence is not a prerogative of judges, it is their duty. Judges should be fully

aware of the distinct function that they have in society and of how they are perceived by

people. Judges are expected to keep social peace through adjudication of claims and

settlement of disputes, applying the law. They have an obligation to deliver justice

impartially and on an equal footing to all. In doing so, they should ensure that they are

independent, from a personal, a political but also an intellectual point of view. They should

be completely detached from the parties in the litigation. They should also be individually

autonomous and enjoy what Owen Fiss called political insularity, that is, independence

from political institutions and the public in general.14

46. Lawyers, too, have to commit to the independence of their profession and recognize

the central role they play in the justice chain. Practising law is not a business but a

profession which comes with specific rights but also essential duties and a code of

deontology to respect. Lawyers put their knowledge at the service of representation and

defence of their clients.

E. Building a domestic culture of judicial independence

47. Domestic rules and standards are important for many reasons. They have both a

symbolic and a legal value and they inform the public on the behaviours that are acceptable

and those that are prohibited. A review of domestic legal provisions in order to enshrine the

requirements for the independence of judges, lawyers and prosecutors is imperative for

more than one State.

48. However, norms alone are not sufficient. They require a legal culture, that of the rule

of law, in which respect for the independence of judges and lawyers plays a crucial role.

Such a legal culture is built through both formal education, delivered in law schools and

schools for the judiciary, and informal education, which requires political acts and signals,

including at the highest level of government, to send adequate messages highlighting the

importance of respecting and enforcing these rules. In this case, government officials,

political and social leaders, and academics have an important role to play. An official

discourse hostile to the independence of judges, lawyers and/or prosecutors, even if not

followed by concrete action, contributes to delegitimizing the judiciary and to undermining

the main mechanism at the disposal of democratic societies for the peaceful settlement of

disputes and for providing an effective remedy to victims of human rights violations.

49. As seen above, a solid set of international legal rules, standards and principles aimed

at ensuring and reinforcing the independence and integrity of the justice system exists

today. In many countries, a comprehensive set of domestic rules and principles is in place

too. Yet, independence should not be taken for granted. Indeed, ensuring independence

requires continuous attention and monitoring to identify and tackle new or re-emerging

problems and challenges triggered by societal, political and economic changes. These

challenges require proper action by States but also adequate monitoring by civil society and

other stakeholders.

IV. Indicators

50. The Special Rapporteur considers that it is a priority that judges, prosecutors,

lawyers, State institutions, and other stakeholders, including the international community,

be able to gather information on the independence, impartiality and effective functioning of

specific justice systems in a more systematic and consistent way in order to assess them

against international standards on the matter.

14 Owen Fiss, “The limits of judicial independence”, University of Miami Inter-American Law Review,

vol. 25, No. 1, p. 57.

51. Currently, there is no universal system that provides detailed and specific

information on the actual situation of national justice systems. Yet, such information is

crucial to be able to assess their level of independence and to design measures to improve

and strengthen them that will be both appropriate and effective. Some categories of

information can assist in understanding the context in which a justice system works, other

categories provide indications on procedures and requirements in place for the exercise of

the jurisdictional function, and others allow the dysfunctionalities of the system to be

inferred. The Special Rapporteur believes that such information would be useful to build a

frame of reference for States, international organizations and civil society to be able to

study how justice systems work, assess their independence and impartiality, and identify

deficits and challenges. Having precise information should allow for better and more

effective decisions and measures.

52. The Special Rapporteur is aware of the growing demand for both qualitative and

quantitative indicators to help in promoting and monitoring the implementation of human

rights. Indicators are useful tools to articulate and advance claims on the duty-bearers, and

to formulate public policies and programmes that facilitate the realization of human rights.

In 2012, the Office of the United Nations High Commissioner for Human Rights published

a guide aimed at translating the narrative of human rights into contextually relevant

indicators and benchmarks for the implementation and measurement of human rights at the

country level. 15

When it comes to the independence of judges and lawyers, the use of

appropriate indicators could provide precise and relevant information on a given justice

system which would help the State and other stakeholders, including the Special

Rapporteur, in assessing progress in the implementation of international human rights

obligations relating to independence and impartiality.

53. The Special Rapporteur is convinced of the timeliness of developing a set of

indicators that would provide information on national justice systems, including on the way

they are structured and how they comply with international standards and norms on

independence and impartiality. Indicators provide factual information and data that can be

essential in order to understand specific situations and assess the implementation progress

of human rights obligations.

54. The use of indicators has led to the development of mapping exercises, especially at

the regional level, such as those carried out by the European Union16 or the Justice Studies

Centre for the Americas, 17

as well private initiatives focusing on a set of indicators relating

to the structure of the justice system, how it works, and the quality of the services it

delivers.18 These initiatives may have different purposes, but they all provide extremely

useful information related to the independence and impartiality of justice systems.

15 Human Rights Indicators: A Guide to Measurement and Implementation, HR/PUB/12/5, New York

and Geneva, 2012.

16 European Commission, Directorate-General for Justice, The 2015 EU Justice Scoreboard, COM

(2015) 116 final. The foreword to this document indicates that “the EU Justice Scoreboard provides

an overview of the quality, independence and efficiency of EU member States’ justice systems.

Together with individual country assessments, the EU Justice Scoreboard helps to identify possible

shortcomings or improvements and to regularly reflect on progress.” 17 Centro de Estudios de Justicia de las Américas, Cifrar y Descifrar: Manual para generar, recopilar,

difundir y homologar estadísticas e indicadores judiciales, vol. 2 (2005).

18 See, for instance, Germán Garavano and others, “Indicadores de desempeño judicial”, Foro de

Estudios sobre la Administración de Justicia, in La Ley Actualidad, Buenos Aires, 18 July 2000; and

Todd Foglesong and others, “Measuring progress towards safety and justice: a global guide to the

design of performance indicators across the justice sector”, Vera Institute for Justice, New York,

2003.

55. Specific indicators can measure different dimensions of justice systems. By way of

illustration, indicators can shed light on the composition of personnel of the justice sector,

their training, the budgetary resources allocated to them, their salaries, or even the level of

judicial independence.

56. There are many reasons to justify the need for indicators focused on the justice

system. First, such indicators are a useful tool for drawing a more accurate map of the

situation in each country. On the basis of information obtained through these indicators,

States can diagnose problems more precisely and develop more effective solutions to

improve the issues and dysfunctions identified. These specific indicators will therefore

constitute an instrument for States to better manage their respective judicial systems.

57. Second, judicial indicators can enable dialogue, on both the needs and the progress

achieved by justice systems, between the different groups involved — those that have a role

to play in the system and those that benefit from it, including judges, lawyers, prosecutors,

government officials, members of civil society, or the international donor community.

58. The Special Rapporteur believes that judicial indicators could serve as a framework

for assessing the status of the various institutions of justice in a given State and as a

compass for countries wishing to progress and to achieve better performance of their justice

sector.

59. The Special Rapporteur notes that indicators will not involve, initially, an evaluation

system on the quality of each judicial system. They should consist of a set of benchmarks

allowing study of the status of essential judicial structures.

60. For these reasons, the Special Rapporteur hopes to develop, during the course of her

mandate, a proposition for judicial indicators to increase awareness of the role of justice in

every country. To do so, she will develop an initial project that will be presented to the

Human Rights Council and other stakeholders in due course, in which she wishes to

incorporate the different perspectives described in the present report in order to propose a

menu of indicators with a degree of acceptance by the international community.

V. Conclusions and considerations

61. The present report expresses the preliminary views of the Special Rapporteur

on her mandate and the particular project that she hopes to carry out. Essentially, she

has noticed that there is, today, a fairly complete set of principles and prerequisites

regarding the independence of judges, prosecutors and lawyers, which have been

recognized in a significant number of international and regional instruments, some of

which are binding on States, and have been developed through the jurisprudence of

regional courts, treaty bodies, and other interpretative documents, including the

thematic and mission reports of former mandate holders.

62. Forty years after the entry into force of the International Covenant on Civil

and Political Rights, thirty years after the adoption of the Basic Principles on the

Independence of the Judiciary, and twenty-five years after the adoption of the Basic

Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors, the

time has come for the independence of judges, prosecutors and lawyers to be revisited.

63. In the present context, renewed commitments to the principles of an

independent and impartial justice system are necessary in order to make them a

reality. All stakeholders, including political authorities, and members of the judiciary,

the legal profession and the prosecution services, but also civil society representatives,

should be aware of the role of independent judges, prosecutors and lawyers in a

democratic society and should contribute to respecting and protecting this

independence.

64. The Special Rapporteur considers it is a priority that the actors in the justice

system, other stakeholders and the international community be informed of the status

and progress of a particular judicial sector, through a system of indicators that make

relevant information accessible. Currently, the international community lacks such a

universal system that is able to provide consistent and comprehensive information on

the actual situation of national judicial systems.

65. The Special Rapporteur believes that it is necessary but also timely to develop a

set of indicators that will provide precise and relevant information on national judicial

institutions and the way they comply with international standards of judicial

independence. Judicial indicators have the potential to shed light on different

dimensions of a justice system.

66. Finally, the Special Rapporteur will strive to reinforce understanding of the

universality and centrality of her mandate as regards the protection and promotion of

human rights. In doing so, she will continue to look into issues already addressed by

her predecessors, such as access to justice, Sustainable Development Goal 16, the

independence and situation of prosecutors, integrity and accountability of the

judiciary, and the situation of lawyers and particularly the obstacles to the

independent exercise of their profession and grave violations committed against them,

as well as the role that should be played by bar associations to protect lawyers’

independence and strengthen the rule of law, the trial of civilians before military and

special courts, and impunity for human rights violations, among others that warrant

the attention of the mandate as well as of the Human Rights Council.