35/31 Report of the Special Rapporteur on the independence of judges and lawyers

GE.17-09457(E)



Human Rights Council Thirty-fifth session

6-23 June 2017

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, Diego García-Sayán,

prepared pursuant to Council resolution 26/7. The report is the first submitted by the

Special Rapporteur since his appointment on 5 December 2016.

In the report, the Special Rapporteur presents his perspective on the mandate. In

doing so, he recalls the origins of the mandate and its framework, and the role of the

Special Rapporteur. He then presents an overview of the thematic work of his predecessors.

Finally, he presents a few specific issues of concern that he will pay particular attention to

during his tenure, particularly the issue of corruption and organized crime.

* The present document was submitted late so as to reflect the latest information.

United Nations A/HRC/35/31

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

Contents

Page

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

II. Perspectives on the mandate of the Special Rapporteur on the independence of

judges and lawyers ........................................................................................................................ 3

A. Mandate of the Special Rapporteur on the independence of judges and lawyers ................. 4

1. Origins of the mandate and commitment of the international community ................... 4

2. Role of the Special Rapporteur and methods of work .................................................. 4

3. Rule of law, separation of powers and the independence of justice ............................. 5

4. Towards an agenda for implementation ....................................................................... 5

B. Overview of the thematic work accomplished since the establishment of the mandate ....... 6

1. Judicial independence................................................................................................... 6

2. Judicial ethics, corruption within the judiciary and judicial accountability ................. 8

3. Independence of lawyers and the legal profession ....................................................... 9

4. Special circumstances giving rise to violations of the independence of judges

and lawyers and the proper administration of justice ................................................... 9

5. Equality before the courts ............................................................................................. 10

6. Access to justice and legal aid ...................................................................................... 11

7. Education, training and capacity-building of judges, lawyers and prosecutors ............ 11

C. Specific issues of concern ..................................................................................................... 12

1. Guaranteeing judicial independence ............................................................................. 12

2. Corruption, judicial accountability and the independence of the justice system .......... 13

3. Protecting the legal profession ..................................................................................... 14

4. Restrictions to the right to a fair trial and due process of law before

an independent, impartial and competent tribunal ........................................................ 15

III. Conclusions and recommendations ............................................................................................... 17

A. Conclusions .......................................................................................................................... 17

B. Recommendations ................................................................................................................. 19

I. Introduction

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

independence of judges and lawyers, Diego García-Sayán, since his appointment in

December 2016 pursuant to Human Rights Council resolution 26/7. In his report, the

Special Rapporteur establishes the main issues he will prioritize during his tenure. It

consists of three parts. The first section provides an overview of the mandate and its

methods of work with States, civil society, United Nations bodies and relevant

stakeholders. The second part provides a summary of the thematic work of previous Special

Rapporteurs. The third part identifies some issues of specific concern that the Special

Rapporteur will take into account during his mandate, particularly issues related to

corruption and organized crime, among others.

2. The Human Rights Council, aware of the connection between human rights and the

independence of judges and lawyers, has repeatedly underlined the importance of an

independent judiciary. In resolution 29/6, the Council reiterated the conviction that an

independent and impartial judiciary, an independent legal profession, an objective and

impartial prosecution able to perform its functions accordingly and the integrity of the

judicial system are essential prerequisites for the protection of human rights and the

application of the rule of law and for ensuring fair trials and the administration of justice

without any discrimination.

3. The Human Rights Council has repeatedly requested the Secretary-General, within

the limits of the regular budget of the Organization, to provide the Special Rapporteur with

all the necessary human and financial resources for the effective fulfillment of his or her

mandate.1

4. The Special Rapporteur would like to thank the Human Rights Clinic of the Human

Rights Research and Education Centre of the University of Ottawa for its outstanding

support in the research for and drafting of the present report.

II. Perspectives on the mandate of the Special Rapporteur on the independence of judges and lawyers

5. The Special Rapporteur would like to acknowledge the outstanding work done by

his predecessors in this position, Mónica Pinto, Gabriela Knaul, Leandro Despouy and

Param Cumaraswamy.

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

has been gradually built over the years thanks to the interpretation of its scope and content,

enshrined most recently in Human Rights Council resolution 29/6. As the Special

Rapporteur stated in 2016, each Special Rapporteur, in his or her own field of action, has

helped through the periodic thematic reports to clarify and consolidate the requirements

necessary to achieve and maintain the independence and impartiality of the justice system.

7. The present Special Rapporteur intends to perform his task taking into consideration

the valuable work of his predecessors while addressing specific topics of current relevance.

For example, during the course of his tenure the Special Rapporteur would like to focus his

attention on the impact of corruption, organized crime and other transnational threats on the

judiciary. The Special Rapporteur will elaborate on this issue in his future thematic reports.

8. Upon review of the approach of previous mandate holders on the issue of corruption

(see, for instance, E/CN.4/2002/72/Add.1, A/HRC/4/25, A/HRC/11/41, A/64/181,

A/65/274, A/HRC/20/19, A/67/305, A/HRC/23/43 and Corr.1 and A/70/263), the Special

Rapporteur is of the view that the impact of corruption and organized crime on the judiciary

needs to be considered in further detail. During his term in office, the Special Rapporteur

will work closely with States, United Nations agencies and bodies, national human rights

1 See, for instance Council resolution 26/7.

institutions, academia and civil society organizations to elaborate strategies and approaches

aimed at preventing the harmful influence of corruption and organized crime on the

judiciary.

A. Mandate of the Special Rapporteur on the independence of judges and

lawyers

1. Origins of the mandate and commitment of the international community

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

is derived from the concern expressed by the Commission on Human Rights at the

frequency of attacks on judges, lawyers and court officials and the link it noted existed

between the weakening of safeguards for the judiciary and lawyers and the gravity and

frequency of human rights violations. It was established in resolution 1994/41 and last

renewed by the Human Rights Council in resolution 26/7. In the first report of the mandate

(E/CN.4/1995/39), the Special Rapporteur provided a detailed historical background in

order to situate the mandate in the context of the considerable work which had been

accomplished up until that time in elaborating international standards and seeking full

respect for them. This historical background was recalled in a later report of the Special

Rapporteur to the Human Rights Council (A/HRC/32/34).

10. A solid international legal framework supports the purpose of the mandate.

International and regional instruments relating to the scope of the mandate were first listed

by the Special Rapporteur in his first report and interpreted, contextualized and applied by

the successive mandate holders over more than 20 years. New instruments, such as the

Rome Statute of the International Criminal Court, the United Nations Convention against

Corruption and the United Nations Principles and Guidelines on Access to Legal Aid in

Criminal Justice Systems, and references to the jurisprudence of regional human rights

courts and United Nations treaty bodies later joined this original listing. The Special

Rapporteur will continue referring to and applying these standards in his work and will

advocate for their dissemination and full implementation. In this context, it will be essential

to recall that the requirements of independent and impartial justice are universal and that

the general practice of providing independent and impartial justice constitutes an

international custom in the sense of article 38 (1) (b) of the Statute of the International

Court of Justice (see E/CN.4/1995/39, paras. 32 and 35).

2. Role of the Special Rapporteur and methods of work

11. The work of the Special Rapporteur on the independence of judges and lawyers is

rich and complex as the scope of the mandate is rather extensive, encompassing issues such

as access to justice, the independence and impartiality of the judiciary and the proper

functioning of the justice system, the protection of individual judges, lawyers, prosecutors

and court officials, and the right to a fair trial and due process of law.

12. To discharge his duties, the Special Rapporteur will follow the working methods

established by his predecessors as well as by the special procedures of the Human Rights

Council, and he intends to contribute to future discussions on how to improve these

methods of work, including through participation in the annual meeting of special

procedure mandate holders.

13. The Special Rapporteur wishes to underline that cooperation is essential for the

discharge of the mandate, whether it be to carry out country visits, prepare thematic reports

or gather information on cases or situations of concern. For this reason, he intends to

establish and maintain direct contact with Member States, United Nations agencies and

bodies, other special procedure mandate holders, professional associations of judges,

lawyers and prosecutors, national human rights institutions, civil society organizations,

academia and other relevant stakeholders throughout his tenure. The Special Rapporteur is

convinced of the need to strengthen multilateral cooperation and coordination to address

problems concerning the independence of judges and lawyers.

3. Rule of law, separation of powers and the independence of judges and lawyers

14. Judicial independence is fundamental for the protection of human rights, democracy

and the rule of law. In 1985, the General Assembly endorsed the Basic Principles on the

Independence of the Judiciary. That independence, as stated by the Basic Principles, shall

be guaranteed by the State and enshrined in the Constitution or the law of the country.

15. The Human Rights Council and its predecessor, the Commission on Human Rights,

have highlighted in numerous resolutions the importance of an independent and impartial

judicial system to uphold the rule of law, democracy and human rights.2 Rule of law must

be understood by virtue of the fact that, in democratic societies, people are equal under the

law and no one can be above it.

16. The Special Rapporteur is convinced that respecting the rule of law and fostering the

separation of powers and the independence of justice are prerequisites for the protection of

human rights and democracy. However, independence of the judiciary cannot provide carte

blanche to judges. They must act in accordance with the principles set out by the rule of

law, democracy and the separation of powers.

17. Regarding the independence of lawyers, the Special Rapporteur fully endorses and

supports the Basic Principles on the Role of Lawyers, which represent the most

comprehensive international normative framework aimed at safeguarding the right of

access to legal assistance and the independent functioning of the legal profession (see

A/71/348, para. 22). They provide that all persons are entitled to call upon the assistance of

a lawyer of their choice to protect and establish their rights and to defend them at all stages

of criminal proceedings. They also list the measures that Member States should adopt to

ensure access to lawyers and legal services and establish several safeguards for the

professional functions of lawyers and their security.

4. Towards an agenda for implementation

18. Several decades after the creation of the mandate, the entry into force of the

International Covenant on Civil and Political Rights and the adoption of the Basic

Principles on the Independence of the Judiciary, the Basic Principles on the Role of

Lawyers and the Guidelines on the Role of Prosecutors, the most fundamental human rights

related to the independence and impartiality of the justice system are still blatantly violated

on a daily basis around the world.

19. The Special Rapporteur wishes to call on Member States and the international

community to renew their efforts to disseminate the content of these instruments and other

international standards relating to the independence of judges, lawyers and prosecutors, and

to adopt urgent measures aiming at their full implementation. These measures shall include

the swift transposition of international law into domestic law for States functioning under a

strictly dualist system. They shall also include awareness-raising and training of judges,

lawyers and prosecutors on the content and application of international norms at the

domestic level for States functioning under a monist system. Awareness-raising and

training on the jurisprudence of regional courts on the subject, when applicable, should also

be undertaken.

20. As underlined in the Vienna Declaration and Programme of Action, the

administration of justice, including law enforcement and prosecutorial agencies and,

especially, an independent judiciary and legal profession in full conformity with applicable

standards contained in international human rights instruments, are essential to the full and

non-discriminatory realization of human rights and indispensable to the processes of

democracy and sustainable development.

21. A positive example of the incorporation of international norms and standards can be

seen in the Inter-American human rights system. The incorporation of the jurisprudence of

the Inter-American Court of Human Rights by constitutional and supreme courts in Latin

America is consolidating important democratic standards for the action in the national

2 See, for instance, Council resolutions 29/6 and 31/2.

courts, including the rights to judicial protection and fair trial, due process and

independence of the judiciary.

22. The Special Rapporteur will come back to the issue of setting up a clear agenda for

the effective implementation of international instruments related to the independence of the

justice system, including via the application of international law and jurisprudence in

domestic courts, in future report.

B. Overview of the thematic work accomplished since the establishment of

the mandate

23. The issues and situations addressed by the successive mandate holders were

complex and often interrelated, each with its own importance if the justice system is to

fulfil its role in the protection of human rights in an independent, impartial and fair manner.

In the section below, the Special Rapporteur provides a review of this wealth of work, with

a view to taking stock of achievements and identifying questions, problems and challenges

which should frame his work, and on which he intends to focus his efforts.

1. Judicial independence

24. Article 10 of the Universal Declaration of Human Rights protects judicial

independence. This is an obligation to be guaranteed and not a privilege that States may

grant. The Basic Principles on the Independence of the Judiciary deal with the following

subjects: (a) independence of the judiciary; (b) freedom of expression and association; (c)

qualifications, selection and training; (d) conditions of service and tenure; (e) professional

secrecy and immunity; and (f) discipline, suspension and removal.

25. The United Nations system has highlighted the importance of integrity and

independence of the justice sector in many resolutions,3 as well as of the fight against

corruption. Building on these efforts, in 1997 the Special Rapporteur noted that attacks on

the independence of judges and lawyers were not confined to developing countries.

Therefore, he underscored the universality of the threat to the independence of judges and

lawyers and the need for constant international vigilance (see E/CN.4/1997/32, para. 190).

26. In 2004, after having reviewed the work of his predecessor, the Special Rapporteur

noted that the independence of judges and lawyers was at risk throughout the world,

although to varying degrees and for reasons or in forms that are sometimes quite different

(E/CN.4/2004/60, p. 11).

Requirements and conditions of judicial independence

27. In his first report to the Commission on Human Rights, the Special Rapporteur noted

that, with regard to some issues, reiteration might be necessary in relation to the principle of

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

independence and impartiality are founded (see E/CN.4/1995/39, para. 55).

28. The mandate of the Special Rapporteur is not limited to defending individuals

engaged in a judicial activity, but includes looking into the individual attributes and

institutional conditions necessary to an independent and impartial justice for the benefit of

the consumers of justice rather than a privilege of the judiciary for its own sake (see

E/CN.4/2004/60, para. 27).

29. The Special Rapporteur has reiterated the misconception or misunderstanding often

prevailing around the function of judicial review, or its equivalent, of the constitutionality

or legality of executive decisions, administrative orders and legislative acts. The process of

judicial review serves to check executive and legislative excesses by upholding the rule of

law, noting that in principle this is not a matter of substitution of functions (see

E/CN.4/1995/39, para. 56).

3 See, for instance, paragraph 15 of resolution 5/4 and paragraph 5 of resolution 6/6 of the Conference

of the States Parties to the United Nations Convention against Corruption.

30. It has been established that the desire to restrict or even suspend judicial review (or

its equivalent) of the constitutionality or legality of executive decisions and administrative

acts and laws would be tantamount to impairing the independence of justice (see

E/CN.4/2004/60, para. 29).

31. In a 2016 report, the Special Rapporteur underscored that legislative activity lacks

effectiveness if there is no commitment to respect and enforce it. Moreover, whenever

Governments, political and economic actors, judges, lawyers and prosecutors do not behave

according to the specific roles they have to play in a democratic society, the prerequisites of

independence become difficult to fulfil (see A/HRC/32/34, para. 39).

Institutional safeguards

32. In a comprehensive report submitted in 2009 (A/HRC/11/41), the Special

Rapporteur highlighted the features having an impact on the independence of the judiciary

as an institution: the separation of the judicial function from other branches of power as

prerequisite; the guarantee of independence at the constitutional level; the selection and

appointment process; the prohibition of ex post facto tribunals; judicial budget; freedom of

association and expression; the assignment of court cases; independence within the

judiciary and investigations into allegations of improper interference.

33. The Special Rapporteur established early on that the independence and impartiality

of the judiciary can be effectively secured if there is in the State a well-entrenched

independent mechanism responsible for the appointment, promotion, transfer and dismissal

of judges (see E/CN.4/1995/39, para. 65).

34. The Special Rapporteur has also underlined that it is important for the judiciary to

have a sufficient operating budget and financial autonomy vis-à-vis the executive and

legislative powers, and that budgetary independence had to be accompanied by an effective

external audit (see E/CN.4/1996/37, para. 32).

Individual conditions

35. In a 2009 report, the Special Rapporteur also identified important parameters to

effectively guarantee the individual independence of judges: tenure and irremovability;

immunity; promotion and conditions of service, including judicial salary; human and

material resources and security and training. The Special Rapporteur had also noted earlier

that, in addition to the traditional safeguards necessary to secure judicial independence, the

character, qualifications and independence of the individual appointee make an important

difference (see E/CN.4/1996/37, para. 92).

36. In several thematic reports, concerns were expressed regarding the problem of

judges appointed on a provisional basis without security of tenure. As was noted, such

appointments could become a serious threat to the independence of the judiciary, as

provisional or temporary judges are vulnerable to executive interference and even tensions

within the judiciary (see E/CN.4/1998/39, para. 183).

Justice and the judiciary in a period of transition

37. From the beginning of the mandate, the Special Rapporteur has paid special

attention to countries undergoing transition to democracy, since their needs were generally

considerable and positive steps early in their transition would contribute significantly to

achievement of the rule of law, respect for human rights and peace and prosperity (see

E/CN.4/1995/39, para. 12). Special mention was made, in particular, of the understanding

and respect for the principle of separation of powers as a sine qua non ingredient for

democratic States and which is, therefore, of cardinal importance for countries in transition

to democracy (ibid., para. 55).

38. In previous reports the Special Rapporteur has expressed concern about the

problems faced by countries in transition in providing an independent and impartial justice

system, in particular the lack of financial resources, the lack of human resources and of

infrastructure (E/CN.4/1998/39, para. 184).

39. In transition processes, whether post-conflict or post-authoritarian, it is normal to

hold to account judges involved in human rights violations and corruption who wish to

retain their posts. Even in such cases, the Special Rapporteur properly underscored that

international standards for a fair trial and the Basic Principles on the Independence of the

Judiciary must be strictly observed in all circumstances (see E/CN.4/1996/37, para. 41).

40. Noting the dilemmas authorities may face during periods of transition, especially

with regard to the prosecution of human rights violations, crimes and abuses committed by

members of a regime that may have appointed them, the Special Rapporteur stated that one

priority of a country in transition to peace or democracy may be to “clean up” its judiciary

in order to restore its legitimacy, independence and impartiality, and ultimately its public

credibility (see E/CN.4/2005/60, para. 44). To avoid arbitrariness, abuse and the settlement

of scores, he underlined that the dismissal of judges or their reappointment through a new

selection process must fully respect international standards for a fair trial and the Basic

Principles on the Independence of the Judiciary (ibid., para. 45).

2. Judicial ethics, corruption within the judiciary and judicial accountability

41. In previous reports, the Special Rapporteur has noted that threats to judicial

independence came not only from the executive or legislative branches, but also from

organized crime, businesses, corporate giants and multinationals (see E/CN.4/1996/37,

para. 246). The present mandate holder takes particular note of how organized crime and

corruption are increasingly affecting the capacity of many States and the judiciary to fulfil

their duties. How these manifest and recommendations to address this growing

phenomenon will be an issue of special concern in forthcoming reports.

Judicial integrity and accountability

42. The formulation of judicial codes of ethics and the establishment of judicial

complaints mechanisms composed only of sitting and/or retired judges has been mentioned

as a process to be promoted (see E/CN.4/2002/72, para. 37). The Bangalore Principles of

Judicial Conduct were annexed to the annual report of the Special Rapporteur in 2003

(E/CN.4/2003/65) to stress this approach. The issues of judicial integrity and judicial

accountability were also addressed by the Special Rapporteur in two reports (A/67/305 and

A/HRC/26/32). In the latter, she noted that judicial accountability must never be used to

arbitrarily undermine the independence of judges and, for that reason, any accountability

mechanisms must follow procedures that are in line with international standards of due

process of law and fair trial.

Judicial corruption

43. In the past, the Special Rapporteur drew attention to the growing concerns about

judicial corruption (see E/CN.4/2000/61 and Corr.1, para. 29). He noted a need to devote

greater attention to promoting judicial integrity and accountability, which would strengthen

judicial independence and public confidence in the judiciary (see E/CN.4/2001/65, para.

28). He also noted that judicial accountability had become an issue of importance in several

countries, leading to tensions between Government and the judiciary.

44. Early in the mandate, the Special Rapporteur explained that corruption within the

judiciary went far beyond economic corruption in the form of embezzlement of funds

allocated to the judiciary or bribes. It could, for instance, take the form of biased

participation in trials and judgments as a result of the politicization of the judiciary, the

party loyalties of judges or all types of judicial patronage. An important issue of concern

for the Special Rapporteur relates to the pressure and direct action carried out by organized

crime against the judiciary to influence the decisions of judges, lawyers and prosecutors. A

lack of trust in the judiciary is lethal for democracy and development and encourages the

perpetuation of corruption (see E/CN.4/1996/37, paras. 39-40).

45. In a full report devoted to the issue of judicial corruption (A/67/305), the Special

Rapporteur looked into the specific parameters necessary to safeguard judges from

conditions conducive to corruption and strengthen their capacity to counter and combat all

manifestations of judicial corruption. She also noted that a judiciary whose independence is

not firmly institutionalized and adequately protected can easily be corrupted or co-opted by

interests other than those of applying the law in a fair and impartial manner.

3. Independence of lawyers and the legal profession

46. In the first report, the Special Rapporteur stated that he would be vigilant with

regard to the protection of the important role of lawyers and their respective bar

associations in upholding human rights and fundamental freedoms. In this context, he made

an important distinction between engagement in the protection of human rights which have

political connotations, and engagement in politics per se (see E/CN.4/1995/39, para. 72).

47. The Special Rapporteur acknowledges the importance of the standards set out in the

Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors. He

will give special attention to this matter, and takes the opportunity to call on all bar

associations and lawyers’ organizations to adopt the same course of action. The Special

Rapporteur wishes to express his support for and endorsement of all the actions that can be

implemented to this end.

Safeguards for the protection of lawyers

48. As far back as 1998, the Special Rapporteur had already noted a constant concern

that had been expressed about the increased number of complaints concerning

Governments’ identification of lawyers with their clients or their clients’ causes, especially

lawyers representing the accused in politically sensitive cases. Identifying lawyers with

their clients’ causes could be construed in many circumstances as intimidation and

harassment, against which Governments have an obligation to protect lawyers (see

E/CN.4/1998/39, para. 179).

49. The Special Rapporteur later declared that he would also pay particular attention to

any attempt to suppress or restrict the independent operation of bar associations, as had

been expressed in previous reports (see E/CN.4/2004/60, para. 46).

50. Previous mandate holders identified prerequisites and safeguards that are essential

for lawyers to freely and effectively discharge their professional functions (A/64/181);

looked in detail into the provision of legal aid (A/HRC/23/43 and Corr.1); and addressed

again the importance of protecting the independence of lawyers and the legal profession

(A/71/348). Besides looking into the fundamental role of lawyers in providing access to

justice and the right to have access to a lawyer, the Special Rapporteur also looked into the

necessary safeguards for the professional functions of lawyers and their security and

important aspects of the organization of the legal profession.

4. Special circumstances giving rise to violations of the independence of judges and

lawyers and the proper administration of justice

Reasons of State and the protection of national security

51. In the first report, the Special Rapporteur declared that restrictions to judicial

independence based on “reasons of State”, including national security, should be carefully

scrutinized and clear limits established. He noted the importance of avoiding the excessive

usage of the prerogatives conferred on governmental authorities (see E/CN.4/1995/39, para.

58). A subsequent mandate holder noted that he would continue paying attention to States

where laws allowed the executive to order the detention of persons suspected of conspiring

or intending to conspire against national security and to keep them detained without charge

or trial, sometimes in secret and even without access to any judicial remedy or to counsel

(see E/CN.4/2004/60, para. 55).

Counter-terrorism

52. Several reports and jurisprudence from international human rights bodies have

underlined the problems that certain anti-terrorism measures may present for judicial

independence and the independence of the legal profession. The use of “faceless” judges,

secret witnesses and limitations on the presentation and use of evidence are examples of

measures that affect the independence of the judiciary, restrict the defendant’s right of due

process and violate the right to a fair trial in a systematic way (see E/CN.4/1996/37, paras.

66-77).

53. In 1998, the Special Rapporteur noted an increase in complaints of Governments’

non-compliance with internationally accepted standards of due process particularly in

terrorist-related crimes, raising questions concerning the integrity, independence and

impartiality of the courts (see E/CN.4/1998/39, para. 182). Following the terrorist attacks in

the United States on 11 September 2001, the Special Rapporteur announced that he would

give careful attention to the effects any measures taken by Governments might have on the

respect for the rule of law and the proper administration of justice (see E/CN.4/2002/72,

para. 28).

54. The Special Rapporteur later indicated that complaints concerning the failure of

Governments to respect internationally accepted judicial guarantees in terrorism-related

crimes were constantly increasing. Concerns about the repercussions of counter-terrorism

measures on respect for legality were also increasing (see E/CN.4/2004/60, para. 58).

States of emergency

55. In several reports, the Special Rapporteur expressed concerns in relation to judicial

independence in states of emergency, noting that decrees instituting states of emergency

were often followed by mass dismissals of judges, the creation of special courts and the

restriction or suspension of the judicial review function (see E/CN.4/1995/39, para. 59).

56. Even during a state of emergency, the rule of law must be respected. The Special

Rapporteur said, in particular, that there should be no prolonged detentions without trial,

that all detainees should have access to a legal representative and should have the right to

have the lawfulness of their detention reviewed by an independent court (see

E/CN.4/2002/72, para. 28; see also A/HRC/4/25).

Military justice and special courts

57. As early as the first report, the Special Rapporteur expressed concerns regarding

military courts, revolutionary courts or similar special courts, noting that the criterion of

independence was not always assured (see E/CN.4/1995/39, para. 57).

58. The setting up of parallel courts to deal with terrorist-related offences has been

mentioned as a matter of concern (see E/CN.4/2003/65, para. 39), since in several

circumstances these courts’ composition and procedures are often far from complying with

the requirements of article 14 of the International Covenant on Civil and Political Rights

(see E/CN.4/2004/60, para. 54).

59. The successive mandate holders have focused considerable attention on the question

of the military justice system and the establishment of special courts, in particular for the

trial of terrorism-related cases, in their reports to the Commission on Human Rights and the

Human Rights Council (E/CN.4/2004/60, E/CN.4/2005/60, A/HRC/8/4, A/HRC/11/41 and

A/HRC/20/19) and the General Assembly (A/61/384, A/62/207, A/63/271, A/68/285 and

A/70/263).

5. Equality before the courts

60. An essential component of the right to access to justice, the right to equality before

the courts has been largely addressed by the Special Rapporteur (see, for instance,

A/HRC/8/4, para. 20, A/66/289 and A/70/263, paras. 74-84). Fulfilling this provision

requires States not only to prohibit de jure or de facto distinction in accessing courts and

tribunals that are not based on law and cannot be justified on objective and reasonable

grounds, but also to take positive measures to ensure that no human being is deprived of his

or her right to claim justice.

Women in the justice system

61. The Special Rapporteur has consistently paid particular attention to the relationship

between gender and the judiciary, underscoring the problems that women have to face in

some countries to enter the judiciary; pointing out the difficulties that arise in some places

when women want to exercise their rights before the courts; stating that impunity for

certain kinds of crime, particularly sex-related crimes, is a source of obvious discrimination

and an obstruction with regard to the exercise of the right of access to justice (see

A/HRC/8/4, para. 51); and identifying the need to implement and coordinate within the

State a range of processes, mechanisms, laws and policies in order to achieve a gender-

sensitive judiciary.

62. In 2011, the Special Rapporteur identified the conditions under which a gender-

sensitive judiciary could be developed and how the judiciary could foster women’s human

rights (A/HRC/17/30 and Corr.1). She further addressed the necessity for setting up rules of

procedure and guarantees that are gender-sensitive in order to ensure the equality of women

before the courts, and noted that women must benefit from the right to a fair trial and

equality before the courts without discrimination based on their gender (A/66/289).

63. The system of administration of justice has a crucial role to play in relation to the

effective protection of women’s human rights, the empowerment and development of

women and the advancement of gender equality (see A/HRC/17/30 and Corr.1, para. 82).

Children in the justice system

64. In 2004, the Special Rapporteur noted that special attention had to be paid to the

administration of justice in the case of children, in particular children in conflict with the

law, noting that minors should enjoy at least the same guarantees and protection as adults

pursuant to article 14 of the International Covenant on Civil and Political Rights (see

E/CN.4/2004/60, para. 51).

65. In 2015, the Special Rapporteur devoted a full report to the issue of children in the

justice system (A/HRC/29/26 and Corr.1). She looked at the protection of children’s rights

in the justice system and analysed the essential role that must be played by judges,

prosecutors and lawyers in upholding children’s human rights and applying international

human rights norms, standards and principles at the domestic level. She concluded that

investing in child-sensitive justice is indispensable to strengthening the rule of law and the

enjoyment of human rights by all, as well as to building flourishing democratic societies

(ibid., para. 2).

66. The Special Rapporteur further underlined that in all decisions relating to children,

including in the context of the administration of justice, the best interest of the child must

be paramount. This statement not only implies that children have special rights, but also

that their needs and interests must be given primary consideration in all the aspects of the

justice system.

6. Access to justice and legal aid

67. The Special Rapporteur has dedicated extensive work to the issue of access to justice

and, more particularly, legal aid (see, for instance, A/62/207, A/HRC/8/4, A/HRC/14/26,

A/HRC/17/30 and Corr.1, A/69/294 and A/HRC/29/26 and Corr.1). In 2014, the Special

Rapporteur demonstrated the need to integrate the concept of the rule of law, including

access to justice, into the post-2015 development agenda (A/69/294). She noted that access

to justice is a legally complex issue because it constitutes both the means for realizing and

restoring rights, but is also a fundamental human right in itself. On the issue of legal aid

more particularly, the Special Rapporteur strongly advocated for legal aid to be available to

all individuals engaged with the justice system as its aim is to contribute to the elimination

of obstacles that impair equal access to justice (A/HRC/23/43).

7. Education, training and capacity-building of judges, lawyers and prosecutors

68. The need for high-quality education and continuing training of judges, prosecutors

and lawyers was highlighted in a series of reports over the years (see, for instance,

A/HRC/11/41, A/HRC/14/26, A/65/274, A/66/289, A/HRC/20/19, A/HRC/20/20,

A/HRC/29/26 and Corr.1 and A/71/348). Proper administration of justice requires judges,

lawyers and prosecutors to have a solid legal training, including on-the-job training that

takes account of the most recent developments in law and national jurisprudence and

covers, inter alia, international human rights standards and principles, international

humanitarian law and international law on refugees, international criminal law and the

principles of national and international professional ethics.

C. Specific issues of concern

69. The current mandate holder has identified four broad areas of concern related to his

mandate: judicial independence; corruption, organized crime and the independence of

judges and lawyers; protection of the legal profession; and restrictions to the right to a fair

trial and due process of law.

1. Guaranteeing judicial independence

Interference in, pressures on and threats against the judiciary

70. The independence of the judiciary is linked to the lack of interference in, pressures

on and threats against the judiciary. To ensure the independence of the judicial system,

judges, lawyers and prosecutors must be free of any interference, pressure or threat that

might affect the impartiality of their judgments and decisions. Otherwise, the independence

of the judicial system would be seriously jeopardized, as its practitioners would not be able

to fulfil their tasks in an objective and independent manner.

71. Principles 2 and 4 of the Basic Principles on the Independence of the Judiciary

mention the requirement of non-interference in order to guarantee the independence of the

judiciary. Such lack of interference implies that no authority, private group or individual

may interfere in judicial decisions; they must respect and abide by the decisions of the

judiciary. Judges shall decide matters presented before them not only impartially and in

accordance with the law, but without threats or interference. The decision-making process

can be assured only if there is no inappropriate or unwarranted interference with the judicial

process.

72. The Special Rapporteur would like to stress the importance of protecting the

judiciary and the legal professions from interference and pressures in order to protect

human rights. As stated by Louis Joinet in 1993, fundamental freedoms are all the better

safeguarded to the extent that the judiciary and the legal professions are protected from

interference and pressure (see E/CN.4/Sub.2/1993/25, para. 1).

Role of the media

73. Freedom of the press constitutes an essential element of freedom of expression, and

is enshrined in many international instruments and national constitutions. A free and

independent press fosters a better-informed society with the capacity to constructively

question government authority, thereby preventing abuses of power. According to the

Madrid Principles on the Relationship between the Media and Judicial Independence, both

the media and the judiciary have a shared responsibility to guarantee freedom of the media

and independence of the judiciary. The judicial system, for its part, has to guarantee the

existence of a free and independent media. On the other hand, the media have an obligation

to respect the rights of individuals, protected by the International Covenant on Civil and

Political Rights, and the independence of the judiciary.

74. From the outset, the Special Rapporteur has relayed increasing concerns about the

complex relationships between the media and the judiciary. For instance, the Special

Rapporteur worried about the critical issue of how extensive media coverage could affect a

fair and impartial trial, an issue that may be even more relevant with the advent of the

Internet and social media. He stressed that a fine balance had to be struck between the right

of the “consumers” of justice to a fair and impartial trial and the equally important right to

freedom of expression and the corresponding right to information (see E/CN.4/1996/37,

paras. 83-85).

2. Corruption, judicial accountability and the independence the justice system

75. The Special Rapporteur wishes to highlight how corruption affects the respect for

and the protection of human rights, and calls on States to prioritize this issue. Being free

from official corruption must be “a fundamental obligation that governments owe to every

individual by virtue of being human, that trumps other policy considerations, and the

violation of which is a grave affront to justice”.4 Thus, corruption should not only be

understood as affecting human rights, but also as a human rights violation in itself. The

impact of corruption on the realization of human rights depends not only on the forms and

severity of corruption, but also on its pervasiveness. Corruption is an obstacle to the

realization of human rights in general and in specific cases it can also constitute a direct

violation of specific human rights.

76. On the one hand, the existence of corruption in the judiciary directly undermines the

rule of law and the ability of the judiciary to guarantee the protection of human rights. On

the other, corruption can represent a very serious threat for judges, prosecutors, lawyers and

other actors fighting against it and directly or indirectly impede the proper discharge of

their professional functions. Systematic corruption enjoys impunity when institutions are

unable to perform their functions. As mentioned by the Special Rapporteur, to effectively

combat corruption support for the independence of the judicial system is crucial, as is the

need for institutional and efficient security for all actors in the justice system, especially

when dealing with cases of so-called grand corruption (see A/67/305, para. 4).

77. The Special Rapporteur will continue to pay special attention to the various

manifestations of judicial corruption and the measures needed to fight it in line with

international standards on judicial independence, as well as to the very serious challenges

and threats faced by judges, lawyers, prosecutors and other legal professionals when

confronting and combating corruption, and the safeguards that must be enforced to ensure

their security and that they can carry out their duties independently.

78. The 2030 Agenda for Sustainable Development refers to the need to have

institutions at all levels of State that can be held accountable. Furthermore, to assure the

independence of judges and lawyers, it is not enough to have institutions that can be held

accountable; it is also important that they appear to be accountable in the eyes of the society

as a whole. As stated by Giuseppe Di Federico, “the role of judges is inextricably tied to a

set of characteristics and values that are essential for the very legitimacy of the judicial

function … as judges are expected to behave with honesty and propriety”.5

79. Accountability is a concept inherent in the rule of law, which is at the heart of the

principles promoted by the United Nations. The importance of accountability is also

highlighted in article 1 (c) of the United Nations Convention against Corruption as a means

to fight corruption. Within the judiciary, it implies the acceptance of responsibility by

judges, prosecutors and lawyers for the failure to act according to the standards and

principles that must be observed during the performance of their duties.

80. In a 2014 report (A/HRC/26/32), the Special Rapporteur set out a number of basic

requirements for judicial accountability mechanisms to be put into practice:

• The relationship between the justice operator to be held accountable and the forum,

body or institution to which he or she must respond needs to be clearly defined.

• The justice operator to be held accountable must have the means to properly explain

and justify any conduct or action deemed inadequate, inappropriate or illegal

through due process.

• The forum, body or institution exercising judicial accountability must be entitled to

pose questions and assess whether the justice operator should face sanctions or not.

4 Matthew Murray and Andrew Spalding, “Freedom from official corruption as a human right”, in

Governance Studies at Brookings, January 2015.

5 “Judicial accountability and conduct: an overview”, in Anja Seibert-Fohr, ed., Judicial Independence

in Transition, 2012.

United Nations Convention against Corruption

81. The United Nations Convention against Corruption represents a major milestone in

the fight against corruption. It introduces a comprehensive set of standards, measures and

rules to strengthen the legal and regulatory regimes to fight corruption. Furthermore, it calls

for preventive measures and the criminalization of the most prevalent forms of corruption

in both the public and private sectors.

82. The preamble to the Convention underscores how corruption affects societies and

countries across boundaries, calling on States to adopt measures to prevent and address the

impact of organized crime. The Convention underlines the seriousness of problems and

threats posed by corruption to the stability and security of societies, undermining the

institutions and values of democracy, ethical values and justice and jeopardizing sustainable

development and the rule of law, warning about the links between corruption and other

forms of crime, in particular organized crime and economic crime, including money-

laundering. It concludes that corruption is no longer a local matter but a transnational

phenomenon that affects all societies and economies, making international cooperation to

prevent and control it essential.

83. Article 11 of the Convention emphasizes the crucial role of the judiciary in

combating corruption and recognizes that, to play this role effectively, the judiciary itself

must be free of corruption and its members must act with integrity. The Special Rapporteur

will use the Convention as a guiding instrument throughout his future reporting on the

topic, particularly with regard to the following issues: (a) the strengthening of the judiciary

to prevent corruption opportunities; (b) the prosecution of bribery of public officials; (c) the

removal of legal obstacles that constitute an obstruction of justice; (d) the adoption of

norms to protect witnesses, experts and victims; (e) cooperation at the national and

international levels; and (f) implementation of mutual legal assistance.

84. The judicial system must implement measures to defend itself against corruption

while, at the same time, it has to fight decisively against this scourge at all levels in a

holistic manner. That is one of the several reasons why the link between corruption, human

rights and the actors within the justice system must be approached from a dual perspective.

On the one hand, the direct threats that judges and lawyers are facing must be confronted.

On the other hand, the challenges that corruption can pose must be analysed to strengthen

capacities and determine how to combat corruption and organized crime effectively and

more efficiently.

85. It is crucial that Member States, human rights organizations and other relevant

stakeholders incorporate the principles enunciated in the Convention in their programmes

and strategies and work towards the implementation of the Convention’s obligations. In

addition, entities of the United Nations system should work in closer cooperation to follow

up on the implementation of the Convention. For instance, in 2016, the United Nations

Office on Drugs and Crime launched a global programme on promoting a culture of

lawfulness, which includes the establishment of a global judicial integrity network to

exchange best practices and lessons learned on priority challenges and emerging issues with

regard to judicial integrity and the prevention of corruption. The Special Rapporteur takes

note of this initiative and looks forward to collaborating in the full implementation of this

programme.

3. Protecting the legal profession

86. We must not, and cannot, lose sight of the fact that lawyers can face specific hazards

as result of interference, pressures and threats, which may include physical, psychological

and social abuses directed against them and their relatives. The Basic Principles on the Role

of Lawyers are an essential instrument that must be implemented, respected and

disseminated to guarantee the rights of the legal profession.

Lawyers at risk

87. In democratic systems, lawyers have a seminal role to play in ensuring that all

citizens have adequate access to justice and reparations. The important and specific role of

lawyers in ensuring the efficient functioning of democracy and the enjoyment of human

rights must be kept in mind.

88. However, lawyers can perform their professional functions without interference and

impediments only if their independence is safeguarded. As expressed in the Basic

Principles, States have a key role to play as guarantors of their independence and security.

89. Of particular importance is the duty of States to ensure the right to a fair trial and the

respect for the presumption of innocence. The role of lawyers is crucial to assure this pillar

of democracy, and States should foster an enabling environment to ensure that they can

carry out their work impartially, objectively and professionally, without any external

pressure or identification with their client’s behaviour, activities or opinions. The Special

Rapporteur takes note of the existing barriers and threats faced by lawyers around the world

and will analyse this issue in future reports.

Role of bar associations

90. According to principle 23 of the Basic Principles on the Role of Lawyers, as

citizens, lawyers are entitled to freedom of expression, belief, association and assembly.

Moreover, principle 24 expressly establishes that lawyers are entitled to form and join self-

governing professional associations to represent their interests, promote their continuing

education and training and protect their professional integrity.

91. Taking the Basic Principles as reference, bar associations should assume the

functions of upholding professional standards and ethics, protecting their members,

providing legal services and cooperating with governmental and other institutions in

furthering the ends of justice and the public interest.

92. The Basic Principles also refer to the independence of the legal profession and

disciplinary proceedings (see in particular principles 26-29) as basic elements of the role of

lawyers. Bar associations and lawyers’ organizations provide the perfect platform for

ensuring and defending the independence of lawyers and addressing allegations of

interference through the collective action of its members. They are also responsible for

ensuring that the work conducted under their umbrella is performed in accordance with the

professional and ethical standards established by the bar associations. Principle 23 of the

Basic Principles stipulate that lawyers shall always conduct themselves in accordance with

the law and the recognized standards and ethics of the legal profession.

93. Professional organizations and/or bar associations are the institutions responsible for

protecting professional integrity and enforcing disciplinary measures. Such proceedings

should be transparent, impartial, fair and objective. As the Special Rapporteur has stated,

such an organization would not only provide a mechanism of protection for its members

against undue interference in their legal work, but also monitor and report on their

members’ conduct, ensuring their accountability and applying disciplinary measures in a

fair and consistent manner (see A/HRC/23/43/Add.3, para. 87).

4. Restrictions to the right to a fair trial and due process of law before an independent,

impartial and competent tribunal

Role of judges and lawyers with regard to pretrial detention and arbitrary detentions

94. It is the task of an independent judiciary to guarantee the enjoyment of the right not

to be arbitrarily deprived of one’s liberty. International human rights law establishes strict

limits on the power of States to deprive human beings of personal liberty. The International

Covenant on Civil and Political Rights establishes the prohibition of arbitrary arrest and

detention. In a State that abides by human rights standards the infringement of these tenets

can involve criminal and civil proceedings.

95. According to article 9 (3) of the International Covenant, anyone who is arrested shall

be informed, at the time of arrest, of the reasons for his arrest and shall be promptly

informed of any charges against him and, if detained on a criminal charge, the detainee

shall be brought promptly before a judge or other officer authorized by law to exercise

judicial power.

96. The main role of judges when facing such situations is to permit the detainee to

challenge the legality of the arrest and detention before a court of law. Judges must not only

decide about the lawfulness of the detention; they have also to ensure that the person’s

fundamental rights have been respected.

Right of access to a lawyer

97. Any detainee or accused person has the right to have access to a lawyer without

undue delay. It is the obligation of States to set out the necessary mechanisms to ensure that

persons deprived of their liberty can effectively exercise their defence rights, including the

access to a lawyer.

98. The United Nations Principles and Guidelines on Access to Legal Aid in Criminal

Justice Systems stipulate that legal aid is an essential element of a fair, humane and

efficient criminal justice system that is based on the rule of law.

99. Such a right is paramount in a State based on the rule of law. It guarantees the

possibility for the detainee to rebut the evidence presented against him or her and act in the

most favourable way for his or her interest.

Military courts and the right to a fair trial

100. Military courts tend to be structured within a hierarchical system of command and

control. This creates a difficulty in conducting a fair and impartial trial. Military procedures

carried out or influenced by corrupt officers create a general distrust in military courts on

the part of civilian populations, as stated by Arne Willy Dahl at an expert consultation

organized by the Office of the United Nations High Commissioner for Human Rights in

2014 (A/HRC/28/32). Such situations of bias and corruption result in a violation of article

14 of the International Covenant, which stipulates that everyone shall be entitled to a fair

and public hearing by a competent, independent and impartial tribunal established by law.

101. The Special Rapporteur calls on States to adopt specific norms that expressly

exclude civilians from investigation and prosecution by military tribunals, ensure that their

jurisdiction is limited to military offences committed by active members of the military and

protect the rights to fair trial and due process.

Role of the justice sector in states of emergency

102. States are responsible for providing effective domestic remedies before independent

and impartial courts or authorities. Non-derogable rights must be protected in states of

emergency, and under no measures of derogation should the efficacy of these remedies be

allowed. As clarified by the Human Rights Committee in its general comment No. 29

(2001) on derogations from provisions of the Covenant during a state of emergency, even if

a State party, during a state of emergency, and to the extent that such measures are strictly

required by the exigencies of the situation, may introduce adjustments to the practical

functioning of its procedures governing judicial or other remedies, the State party must

comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to

provide a remedy that is effective.

103. According to article 14 (1) of the International Covenant, in the determination of any

criminal charge against them, or of their 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. As indicated by the Human Rights Committee in its general

comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair

trial, derogating from normal procedures required under article 14 in circumstances of a

public emergency should ensure that such derogations do not exceed those strictly required

by the exigencies of the actual situation. The guarantees of fair trial may never be made

subject to measures of derogation that would circumvent the protection of non-derogable

rights. Deviating from fundamental principles of fair trial, including the presumption of

innocence, is prohibited at all times.

Role of the justice sector in conflict situations

104. In its resolution 9/10, the Human Rights Council outlined the need to promote the

rule of law and to implement transitional justice mechanisms in conflict and post-conflict

societies. The Justice and Security Programme of the United Nations Development

Programme in Liberia has emphasized that these goals can be achieved by strengthening the

judiciary as well as by empowering and developing the capacities of judges, lawyers and

prosecutors to hold perpetrators to account, establish justice and combat impunity.

105. Judicial independence in conflict situations allows for a stronger separation between

the judiciary and the State and ensures that trial proceedings are conducted in a fair and

impartial manner. An independent judiciary will be better positioned to produce legal

frameworks that adhere to and respect international human rights standards.

106. In a report to the Security-Council, the Secretary-General highlighted the key issues

and lessons affecting the promotion of justice in post-conflict societies. Prevention,

legitimate structures for the peaceful settlement of disputes and the fair administration of

justice are some of the key elements that should be taken into consideration when

addressing this difficult situation. At this point, transitional justice, which aims at coping

with the legacy of large-scale past abuses, in order to ensure accountability, serve justice

and achieve reconciliation, is essential to overcome the situations created by conflicts (see

S/2004/616, para. 8).

Justice, reasons of State and protection of national security

107. The role of the justice sector in times of war — including when the central power is

fighting local insurgencies — must take into consideration a basic set of rights that should

be guaranteed, whatever the situation. It is for judges to interpret the law and safeguard the

constitution without any improper influences or pressures. However, in armed conflicts the

threat to judicial independence is heightened, with threats both internal and external.

108. The fundamental question is whether the role of the judiciary should change during

armed conflicts, especially when national security interests are concerned. Courts may need

to give State authorities special consideration during an armed conflict, when the State’s

interest in protecting the nation’s security is highest. However, this does not change the

core function of the judiciary. When balancing the interests of the Government against

those of individuals, even if judges have to give greater weight to governmental interests

that may be legitimate during times of war or severe internal strife, it is imperative for

courts to control governmental power to guarantee the respect for the rule of law and the

rights of citizens.

III. Conclusions and recommendations

109. The present report establishes the main topics that the Special Rapporteur

intends to address during the course of his tenure. He will pay special attention to

issues of judicial independence, corruption and organized crime within the judiciary,

the protection of the legal profession and the restrictions to the right to a fair trial and

due process of law.

A. Conclusions

1. Overview of the thematic work accomplished since the establishment of the mandate

110. The approach of the successive mandate holders went much beyond analysing

the judiciary from the standpoint of legislation; they looked into how the justice

system actually functions, and strove to identify factors, whether social, economic or

cultural, hindering genuine equal access to justice for all. The Special Rapporteur will

follow this approach.

2. Specific issues of concern

Guaranteeing judicial independence

111. The rule of law can be upheld only if there is an effective system of separation

of powers, where the independence of the judiciary is effectively guaranteed. The

Special Rapporteur underscores the need to strengthen norms that can allow for the

judiciary to carry out its function independently.

112. Issues relating to the establishment and functioning of military courts lie at the

core of the mandate of the Special Rapporteur on the independence of judges and

lawyers.

113. The media can perform their work in an impartial manner only when certain

conditions are met. Such an environment must be assured by the State through the

guarantee of the freedom of expression and the respect of a free press. On the other

hand, the media must be aware of their responsibility and ensure that the information

delivered is accurate, professional, rigorous and respectful of the independence of the

judiciary.

Corruption, organized crime and independence of judges and lawyers

114. It is essential that all Member States and relevant international and regional

organizations and institutions include as a priority in their agenda the elaboration and

implementation of measures to fight not only the consequences but also the underlying

causes of corruption.

115. Corruption and organized crime are severely undermining the capacity of

many States to promote systems of governance accountable to and compliant with

human rights standards by diminishing the confidence of the citizens in the

administration of justice.

116. One of the current challenges to investigating and sanctioning corruption

around the world has to do with the proper functioning of the State apparatus.

Institutions need to work adequately and in accordance with the rule of law and

international standards so that they can guarantee their independence when it comes

to preventing and punishing improper behaviour.

117. The Special Rapporteur would like to highlight the importance of international

judicial cooperation in the fight against corruption by developing exchanges of good

practice and pooling experiences. In this respect, the United Nations Convention

against Corruption offers an appropriate legal framework for effective action and

international cooperation. Indeed, one of the purposes of the Convention is to

promote, facilitate and support international cooperation and technical assistance in

the prevention of and fight against corruption (art. 1 (b)).

118. Interferences, pressures and threats constitute significant risks to the

independence of judges, which make them particularly vulnerable to corruption.

Protecting the legal profession

119. Bar associations, institutions that have a vital role to play in upholding

professional standards and ethics, must assume their responsibilities in this respect

and embrace both the Basic Principles on the Independence of the Judiciary and the

Basic Principles on the Role of Lawyers.

Restrictions to the right to a fair trial and due process of law before an independent,

impartial and competent tribunal

120. Restrictions to the right to a fair trial and due process of law before an

independent, impartial and competent tribunal cannot be understood from a single

point of view. The Special Rapporteur acknowledges that these restrictions are part of

a multiple set of behaviours that can put at risk the right to a fair trial. The

circumstances allowing the implementation of such restrictions must be exceptional

and limited by law.

B. Recommendations

121. The Special Rapporteur encourages all Governments to cooperate with and

assist him in the performance of his functions in accordance with Human Rights

Council resolution 26/7.

122. States should ensure that the Special Rapporteur is able to perform his

mandate within their jurisdiction. For that purpose, the Special Rapporteur requests

that they not only facilitate his country visits, but also assist by providing information

when requested and responding to communications within a reasonable period of

time.

123. The Special Rapporteur believes that it is necessary to foster multilateral

cooperation and coordination in order to correctly address the independence of judges

and lawyers from a global perspective.

124. The Special Rapporteur wishes to highlight that he is available to assist States

with the assessment of the implementation of international standards aimed at

ensuring the independence of judges and lawyers.

125. The Special Rapporteur encourages civil society organizations, academia and

other relevant stakeholders to submit information and to participate in relevant

activities with a view to contributing to the fulfilment of his mandate.

126. The Special Rapporteur encourages other special rapporteurs and the United

Nations, including its specialized agencies, to cooperate to the fullest extent possible

with the expert in the fulfilment of his mandate.

127. The Special Rapporteur encourages all States, bar associations and lawyers’

organizations to endorse the Basic Principles on the Role of Lawyers and to

disseminate their content, so that they may be fully known by all authorities and

members of the legal profession.

128. States should take all steps to ensure that international rules and standards

aimed at dealing with the issues addressed in the present and subsequent reports are

gradually integrated in domestic law and applied by domestic courts. For that

purpose, it would be useful to set out the basis for an agenda to discuss the application

of international law and jurisprudence in domestic courts.

129. In order to ensure respect for human rights, Governments must remove the

obstacles that prevent the enjoyment of these rights. In this context, corruption and

organized crime represent the biggest challenges to be taken into consideration.

130. Each State party to the United Nations Convention against Corruption should

take measures to strengthen judicial integrity and to prevent opportunities for

corruption among members of the judiciary.

131. It is the responsibility of States to ensure security and physical protection for

all members of the legal profession in order to guarantee the independence of the

judiciary. One of the priorities must be to set out a protocol that would allow detecting

and dealing with such circumstances.