RES/35/12 Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers

GE.17-11514(E)

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Human Rights Council Thirty-fifth session

6–23 June 2017

Agenda item 3

Resolution adopted by the Human Rights Council on 22 June 2017

35/12. Independence and impartiality of the judiciary, jurors and

assessors, and the independence of lawyers

The Human Rights Council,

Guided by the purposes and principles of the Charter of the United Nations, articles

7, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 4, 9, 14 and

26 of the International Covenant on Civil and Political Rights, and bearing in mind the

Vienna Declaration and Programme of Action,

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

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

Bangalore Principles of Judicial Conduct and the United Nations Principles and Guidelines

on Access to Legal Aid in Criminal Justice Systems,

Recalling also all previous resolutions and decisions of the Human Rights Council,

the Commission on Human Rights and the General Assembly on the independence and

impartiality of the judiciary and on the integrity of the judicial system,

Taking note of the reports of the Special Rapporteur on the independence of judges

and lawyers submitted to the Human Rights Council at its thirty-second1 and thirty-fifth2

sessions, and to the General Assembly at its seventy-first session,3

Convinced 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 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,

Recalling that prosecutors should, in accordance with the law, perform their

functions fairly, consistently and expeditiously, respect and protect human dignity, and

1 A/HRC/32/34.

2 A/HRC/35/31.

3 A/71/348.

uphold human rights, thus contributing to due process and the smooth functioning of the

criminal justice system,

Emphasizing that the independence and impartiality of the judiciary and the

independence of lawyers and the legal profession are necessary elements in the realization

of Sustainable Development Goal 16 of the 2030 Agenda of Sustainable Development,4 in

which Member States committed, inter alia, to provide equal access to justice for all and

build effective, accountable and inclusive institutions at all levels,

Condemning the increasingly frequent attacks on the independence of judges,

lawyers, prosecutors and court officials, in particular threats, intimidation and interference

in the discharge of their professional functions,

Recalling that every State should provide an effective framework of remedies to

redress human rights grievances or violations and that the administration of justice,

including law enforcement and prosecutorial agencies and, especially, an independent

judiciary and legal profession consistent with applicable standards contained in relevant

international instruments, is essential to the full and non-discriminatory realization of

human rights and indispensable to the processes of democracy and sustainable

development,

Recalling also that it is essential to ensure that judges, prosecutors, lawyers and

court officials possess the professional qualifications required for the performance of their

functions through improved methods of recruitment, as well as legal and professional

training, and through the provision of all necessary means for the proper performance of

their role in ensuring the rule of law,

Noting the importance of tailored and interdisciplinary human rights training for all

judges, lawyers, prosecutors and other professionals concerned in the administration of

justice as a measure for avoiding discrimination in the administration of justice,

Stressing the importance of ensuring accountability, transparency and integrity in the

judiciary as an essential element of judicial independence and as a concept inherent to the

rule of law when it is implemented in line with the Basic Principles on the Independence of

the Judiciary and other relevant norms, principles and standards,

Emphasizing that judges, prosecutors and lawyers play a critical role in upholding

human rights, including the absolute and non-derogable right of freedom from torture and

other cruel, inhuman or degrading treatment or punishment,

Emphasizing also that an independent and impartial judiciary, objective and

impartial prosecution services and an independent legal profession, which foster a balanced

representation of men and women and the establishment of gender-sensitive procedures, are

essential for the effective protection of women’s rights, including protection from violence

and revictimization through court systems, to ensuring that the administration of justice is

free from gender-based discrimination and stereotypes, and to a recognition that both men

and women benefit when women are treated equally by the justice sector,

Acknowledging the vital role of professional associations of lawyers in upholding

professional standards and ethics, protecting their members from persecution and improper

restrictions and infringements and providing legal services to all in need of them,

Recognizing the importance of independent and self-governing bar associations and

professional associations of judges and prosecutors, and of non-governmental organizations

working in defence of the principle of the independence of judges and lawyers,

4 General Assembly resolution 70/1.

Expressing its concern about situations where the entry into or continued practice

within the legal profession is controlled or arbitrarily interfered with by the executive

branch, with particular regard to abuse of systems for the licensing of lawyers,

Stressing the role that independent and effective national human rights institutions

established in accordance with the principles relating to the status of national institutions

for the promotion and protection of human rights (the Paris Principles) can and should play

in strengthening the rule of law and in supporting the independence and integrity of the

judicial system,

Recognizing that accessible and effective legal aid is an essential element of a fair,

humane and efficient system of administration of justice that is based on the rule of law,

Noting the rights and specific needs of women, children and persons belonging to

minorities, particularly those in situations of vulnerability who are in contact with justice

systems, who may require particular attention, protection and skills from the professionals

interacting with them, especially from lawyers, prosecutors and judges,

Acknowledging the importance of a privileged lawyer-client relationship based on

the principle of confidentiality,

Reaffirming the Human Rights Council resolutions in which the Council extended

the mandate of the Special Rapporteur on the independence of judges and lawyers for a

period of three years, and acknowledging the importance of the mandate holder’s ability to

cooperate closely, within the framework of the mandate, with the Office of the United

Nations High Commissioner for Human Rights, including in the fields of advisory services

and technical cooperation, in the effort to guarantee the independence of judges and

lawyers,

1. Calls upon all States to guarantee the independence of judges and lawyers

and the objectivity and impartiality of prosecutors, and their ability to perform their

functions accordingly, including by taking effective legislative, law enforcement and other

appropriate measures that will enable them to carry out their professional functions without

interference, harassment, threats or intimidation of any kind;

2. Encourages States to promote diversity in the composition of the members of

the judiciary, including by taking into account a gender perspective and by actively

promoting the balanced representation of women and men from various segments of society

at all levels, and persons belonging to minorities and other disadvantaged groups, and to

ensure that the requirements for joining the judiciary and the selection process thereof are

non-discriminatory, public and transparent, based on objective criteria and guarantee the

appointment of individuals of integrity and ability with appropriate training and

qualifications in law, based on individual merit and under equal working conditions;

3. Stresses that the term of office of judges, their independence, security,

adequate remuneration, conditions of service, pensions and age of retirement should be

adequately secured by law, that the security of tenure of judges is an essential guarantee of

the independence of the judiciary and that grounds for their removal must be explicit, with

well-defined circumstances provided by law, involving reasons of incapacity or behaviour

that renders them unfit to discharge their functions, and that procedures upon which the

discipline, suspension or removal of a judge are based should comply with due process;

4. Encourages States to develop, as appropriate, policies, procedures and

programmes in the area of restorative justice as part of a comprehensive justice system;

5. Also encourages States to consider, in collaboration with relevant national

entities, such as bar associations, associations of judges and prosecutors, and educational

institutions assisting the judiciary, developing guidance on issues such as gender, children,

persons with disabilities, indigenous peoples and migrants, among others, to inform the

action of judges, lawyers, prosecutors and other actors in the judicial system;

6. Emphasizes that the Basic Principles on the Role of Lawyers provide that

lawyers shall not be identified with their clients or their clients’ causes as a result of

discharging their function;

7. Emphasizes that lawyers should be enabled to discharge their functions

freely, independently and without any fear of reprisal;

8. Calls upon States to ensure that prosecutors can perform their functional

activities in an independent, objective and impartial manner;

9. Condemns all acts of violence, intimidation or reprisal, from any quarter and

for any reason, against judges, prosecutors and lawyers, and reminds States of their duty to

uphold the integrity of judges, prosecutors and lawyers and to protect them, and their

families and professional associates, against all forms of violence, threat, retaliation,

intimidation and harassment resulting from the discharging of their functions, and to

condemn such acts and to bring perpetrators to justice;

10. Expresses its deep concern about the significant number of attacks against

lawyers and instances of arbitrary or unlawful interference with or restrictions to the free

practice of their profession, and calls upon States to ensure that any attacks or interference

of any sort against lawyers are promptly, thoroughly and impartially investigated and that

perpetrators are held accountable;

11. Calls upon States, in collaboration with relevant national entities, such as bar

associations, associations of judges and prosecutors, and educational institutions, to provide

adequate training, including human rights training, for judges, prosecutors and lawyers,

both on initial appointment and periodically throughout their careers, taking into account

regional and international human rights law and, where applicable and relevant, the

concluding observations and decisions of human rights mechanisms, such as treaty bodies

and regional human rights courts;

12. Encourages States to take measures to combat discrimination in the

administration of justice by, inter alia, providing for tailored and interdisciplinary human

rights training, including anti-racist, multicultural, gender-sensitive and child rights

training, to all judges, lawyers and prosecutors;

13. Underscores the importance for States of developing and implementing an

effective and sustainable legal aid system that is consistent with their international human

rights obligations and takes into account relevant commitments and good practices, so that

legal aid is available and accessible at all stages of legal proceedings, subject to appropriate

eligibility criteria;

14. Urges all Governments to cooperate with and to assist the Special Rapporteur

on the independence of judges and lawyers in the performance of his or her tasks, to

provide all information requested and to respond to communications transmitted to them by

the Special Rapporteur without undue delay;

15. Invites States to take measures, including by adopting domestic legislation, to

provide for independent and self-governing professional associations of lawyers and to

recognize the vital role played by lawyers in upholding the rule of law and promoting and

protecting human rights;

16. Calls upon States to ensure that legal provisions that are or have been

adopted in relation to counter-terrorism or national security are consistent with the

international obligations of the State concerning the right to a fair trial, the right to liberty,

the right to an effective remedy for violations of human rights and other provisions of

international law relevant to the role of judges, prosecutors and lawyers;

17. Invites the Special Rapporteur to collaborate with relevant stakeholders

within the United Nations system in the areas pertaining to the mandate;

18. Calls upon Governments to give serious consideration to responding

favourably to the requests of the Special Rapporteur to visit their country, and urges States

to enter into a constructive dialogue with the Special Rapporteur with respect to the follow-

up to and implementation of his or her recommendations to enable him or her to fulfil the

mandate even more effectively;

19. Encourages the Special Rapporteur to facilitate the provision of technical

assistance and capacity-building and the dissemination of best practices, including through

engagement with relevant stakeholders and in consultation with the Office of the United

Nations High Commissioner for Human Rights, when requested by the State concerned,

with a view to establishing and strengthening the rule of law, paying particular attention to

the administration of justice and the role of an independent and competent judiciary and

legal profession;

20. Encourages Governments that face difficulties in guaranteeing the

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

their ability to perform their functions accordingly, or that are determined to take measures

to implement these principles further to consult and to consider the services of the Special

Rapporteur, for instance by inviting him or her to visit their country;

21. Also encourages Governments to give due consideration to recommendations

made by United Nations human rights mechanisms, and to implement supported

recommendations of the universal periodic review process, addressing the independence

and effectiveness of the judiciary and their effective implementation, and invites the

international community, regional organizations and the United Nations system to support

any implementation efforts;

22. Invites United Nations agencies, funds and programmes to continue their

activities in the areas of the administration of justice and the rule of law, including at the

country level at the request of the State, encourages States to reflect such activities in their

national capacity-building plans, and emphasizes that institutions concerned with the

administration of justice should be properly funded;

23. Encourages States to ensure that their legal frameworks, implementing

regulations and judicial manuals are fully in line with their international obligations and

take into account relevant commitments in the areas of the administration of justice and the

rule of law;

24. Decides to continue consideration of this issue in accordance with its annual

programme of work.

34th meeting

22 June 2017

[Adopted without a vote.]