RES/37/3 Integrity of the judicial system

GE.18-05507(E)



Human Rights Council Thirty-seventh session

26 February–23 March 2018

Agenda item 3

Resolution adopted by the Human Rights Council on 22 March 2018

37/3. Integrity of the judicial system

The Human Rights Council,

Guided by articles 5, 6, 7, 8, 10 and 11 of the Universal Declaration of Human

Rights and articles 2, 4, 6, 7, 10, 14, 15, 16 and 26 of the International Covenant on Civil

and Political Rights, and bearing in mind the Vienna Declaration and Programme of Action,

Recalling the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment and the International Convention for the Protection of All Persons

from Enforced Disappearance,

Recalling also other important documents on the issue of the integrity of the

judiciary endorsed by various forums of the United Nations, in particular 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 Declaration of Basic Principles of

Justice for Victims of Crime and Abuse of Power, the Standard Minimum Rules for the

Treatment of Prisoners, the Basic Principles for the Treatment of Prisoners, the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,

the Safeguards guaranteeing protection of the rights of those facing the death penalty, the

United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice

Systems and the Bangalore Principles of Judicial Conduct,

Recalling further its resolutions 19/31 of 23 March 2012, 25/4 of 27 March 2014

and 31/2 of 23 March 2016, and previous relevant resolutions of the Commission on

Human Rights,

Stressing that most of the provisions of the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment are not territorially limited and

cannot be read as restricting or limiting States’ obligations to respect the rights of all

persons, anywhere in the world, to be free from torture and ill-treatment,

Underlining that all States must ensure that their obligations and commitments

under international law, including international and regional human rights instruments to

which they are party, are applied to any person kept in detention facilities under their

jurisdiction, including when those facilities are situated abroad,

Convinced that the integrity of the judicial system, together with its independence

and impartiality, is an essential prerequisite for the protection of human rights and

fundamental freedoms, for upholding the rule of law and democracy and ensuring that there

is no discrimination in the administration of justice,

Noting with concern that the lack of and discrimination in access to justice can cause

grave violations of the human rights of those deprived of such access,

1. Reaffirms the right of everyone to recognition everywhere as a person before

the law;

2. Notes with concern certain practices that are applied to persons in detention

in violation of human rights and the rule of law, such as detention without a legal basis,

contrary to the principle of habeas corpus, the deprivation of due process of law, of access

to legal counsel and/or of an opportunity to challenge the legality of their detention before a

court that is a part of the general judicial system, and calls upon States to respect judicial

guarantees as provided for in international law, including international human rights law

and humanitarian law, as applicable;

3. Reiterates that, as provided for in article 14 of the International Covenant on

Civil and Political Rights, every person is entitled, in full equality, to a fair and public

hearing by a competent, independent and impartial tribunal established by law in the

determination of his or her rights and obligations and of any criminal charge against him or

her, and that he or she is entitled to the presumption of innocence until proved guilty

according to law;

4. Notes that, according to paragraph 5 of the Basic Principles on the

Independence of the Judiciary, everyone has the right to be tried by ordinary courts or

tribunals using established legal procedures, and that tribunals that do not use duly

established procedures of the legal process shall not be created to displace the jurisdiction

belonging to the ordinary courts or judicial tribunals;

5. Underlines that any court trying a person charged with a criminal offence

should be competent, independent and impartial;

6. Urges States to guarantee that all persons brought to trial before courts or

tribunals under their authority have the right to be tried in their presence, to defend

themselves in person or through legal assistance of their own choosing and to have all the

guarantees necessary for their legal defence;

7. Calls upon States to ensure that the principle of equality before the courts and

before the law is respected within their judicial systems by, inter alia, providing to those

being tried the possibility to examine, or to have examined, the witnesses against them and

to obtain the attendance and examination of witnesses on their behalf under the same

conditions as witnesses against them;

8. Stresses that no one shall be held in secret detention, and urges States

concerned to close down promptly all secret detention facilities under their jurisdiction or

control situated on their territories or abroad, and to ensure that all persons held in detention

under their authority are provided with access to justice by courts and tribunals that are an

integral part of the general judicial system, acting in compliance with international due

process and fair trial standards;

9. Calls upon States to investigate promptly and impartially all alleged cases of

extraordinary renditions, secret detention, torture and practices tantamount to torture or

other cruel, inhuman or degrading treatment, including under the pretext of countering

terrorism, and to hold accountable everyone implicated, including at the highest level of

authority, in ordering or executing those activities;

10. Also calls upon States to provide access to an effective remedy to all those

who have been subject to prolonged arbitrary arrest and/or physical and mental suffering

owing to lack of access to the general judicial system;

11. Reaffirms that every convicted person should have the right to have his or her

conviction and sentence reviewed by a tribunal of competent, independent and impartial

jurisdiction according to law;

12. Calls upon States that have military courts or special tribunals for trying

criminal offenders to ensure that such bodies are an integral part of the general judicial

system, operate in accordance with applicable fair trial guarantees, and apply procedures

that are recognized according to international law as guarantees of a fair trial, including the

right to appeal a conviction and a sentence;

13. Stresses the importance of developing cooperation between national judicial

systems with a view to, inter alia, strengthening the protection of persons deprived of their

liberty;

14. Also stresses that independent and effective national human rights institutions

can and should play a role in strengthening the rule of law and in supporting the

independence and integrity of the judicial system;

15. Requests the United Nations High Commissioner for Human Rights, in

consultation with States, relevant United Nations agencies, special procedures, treaty

bodies, non-governmental organizations and other relevant stakeholders, to prepare and

submit to the Human Rights Council at its forty-third session a comprehensive study on the

implications of the lack of integrity of the judicial system for human rights, in particular for

persons kept in detention facilities outside the territory of States;

16. Invites the Special Rapporteur on the independence of judges and lawyers,

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

punishment, the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism, the Special Rapporteur on the promotion

of truth, justice, reparation and guarantees of non-recurrence, the Working Group on

Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances to

take full account of the present resolution in the discharge of their mandates;

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

programme of work.

53rd meeting

22 March 2018

[Adopted by a recorded vote of 23 to 2, with 22 abstentions. The voting was as follows:

In favour:

Angola, Brazil, Burundi, Chile, China, Côte d’Ivoire, Cuba, Ecuador, Egypt,

Ethiopia, Kenya, Kyrgyzstan, Mexico, Nepal, Pakistan, Panama, Peru,

Philippines, Rwanda, South Africa, Tunisia, United Arab Emirates,

Venezuela (Bolivarian Republic of)

Against:

Georgia, United States of America

Abstaining:

Afghanistan, Australia, Belgium, Croatia, Democratic Republic of the

Congo, Germany, Hungary, Iraq, Japan, Mongolia, Nigeria, Qatar, Republic

of Korea, Saudi Arabia, Senegal, Slovakia, Slovenia, Spain, Switzerland,

Togo, Ukraine, United Kingdom of Great Britain and Northern Ireland]