UN Special Rapporteur | United Nations Special Rapporteur on the Independence of Judges and Lawyers

The original notion of the 1985 UN Basic Principles derived from the idea that institutional independence meant essentially that judiciaries had to be independent of the other branches of government, mainly from the Executive and the Legislature. However, this UN Special Rapporteurship has underlined, based on his daily assessment and monitoring of the current status of the independence of judges and lawyers, that such notion of institutional independence should be contextualized based on threats and challenges that were not so clearly present when those principles where drafted.

During Mr. García-Sayán’s mandate, he has highlighted the importance of including additional variables when discussing the contemporary perspective of the independence of judges and lawyers. Especially, based on the increasing frequency of what he calls “external threats” that attempt —and on many occasions successfully — to undermine the judiciary and the legal profession. Given his assessment of the situation of judiciaries and the legal profession around the world, it is crucial to protect judges and lawyers from the political interference of other branches of government. These new impediments deserve special attention by the international community, particularly considering the harsh effects for the protection of human rights and the Rule of Law worldwide.

This UN Rapporteurship has called to the international community to further reflect on the impact of (1) frequent threats from organized crime networks against judges and lawyers; (2) judicial corruption; (3) the need to ensure judicial accountability and integrity as mechanisms to counteract and prevent corruption practices within justice institutions and (4) the challenges that judges and prosecutors face, bearing in mind the relevant role that they are called to perform and enforce by the UN Convention Against Corruption, which entered into force in 2005.

Conference participants broadly discussed the above-mentioned topics.

Contemporary challenges on the Independence of Judges and Lawyers from a Global Perspective

Greentree, 9/2/2019

Diego García-Sayán, keynote speech

Ladies and gentleman,

This meeting is possible thanks to your generosity. Let me share my deep appreciation and thanks to all for being here. We will spend two days in this fantastic place in which several selected groups have met before to deal with very sensitive matters of world peace or human rights. Independence of justice is, in this context, a crucial matter that has to do with these crucial values of human rights and democracy. So, we are with the best people and in the right place.

This gathering of distinguished participants from several parts of the world wouldn’t be possible if it wasn’t for the very generous and committed support from the Konrad Adenauer-Foundation. Since we signed in April last year an MOU with Franziska Rinke, Coordinator of the Rule of Law Program at the Konrad Adenauer-Foundation, a very valuable process opened. On that basis I have had the opportunity to participate in very useful gatherings of judges and lawyers organized by the Foundation in Asia, Europe, Eastern Europe and Latin America. In all of them I was nourished by very valuable experiences, approaches and information. In this process the support of Franziska and of persons like Marie-Christine Fuchs, Director of that program for Latin America, has been very important. Thanks to you all.

During the last months we established a very valuable interaction and cooperation from Andrea Ostheimer, Executive Director of the Foundation in New York City. While I was in New York in October last year for the presentation of my annual report at the General Assembly of the UN we had a fruitful meeting at the KAS office, close to the UN; we were joined by two very good and old friends, William Wilson, Chair of the Task Force on the Independence of Lawyers and Judges of the NYC Bar Association, and Martin Flaherty, now Director of a very important program at Fordham Law School. It was in that meeting that the idea of organizing this gathering was designed.  Thanks Willy and Martin for your valuable contribution and enthusiasm.

Without Andrea’s support from that day on and the irreplaceable and very valuable dedication of Monica Castillejos Aragon, this meeting wouldn’t be possible. Thanks Andrea and Monica.

The independence of the judiciary is an essential component of democracy. It has to do with the rights of all, it is not a prerogative or privilege granted in the interest of the judges, but is justified by the need to enable them to fulfill their role as guardians of the rule of law and of the human rights and fundamental freedoms.

International standards provide that it is an obligation of all governmental and State institutions to respect and observe the independence of the judiciary, and to adopt all appropriate measures to ensure that judges can decide matters before them impartially and without improper influences, pressures or interferences. As such, the independence of the judiciary should be regarded by every citizen as a guarantee of truth, freedom, respect for human rights and impartial justice free from external influence.

2. THE SPECIAL RAPPORTEUR.

However, unfortunately, attacks on judges, lawyers and court officials is part of an uncountable situation in which separation of powers is replaced by power concentration, authoritarianism and human rights violations. That kind of context and situations led the then Commission on Human Rights –now Human Rights Council- to establish in 1994 the mandate of the Special Rapporteur on the independence of judges and lawyers. I met Dato Param Cumaraswamy, the first Special Rapporteur, in Lima in 1996 when he was in official visit to Peru so to examine the violations on independence of justice that were being committed by the Government of Fujimori after his self-coup in 1992. I didn´t suspected then that after two decades I was going to receive that responsibility by the UN.

3. LEGAL FRAMEWORK AND THE BASIC PRINCIPLES. –

The international legal framework containing the principles of independence of judges and lawyers and supporting the mandate’s goals is well established and universal. It includes treaty law, such as article 14 of the International Covenant on Civil and Political Rights, and its regional counter parts, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights and the Arab Charter on Human Rights. The scope and requirements of an independent and impartial justice system have also been addressed in quite some detail and in a variety of situations in the jurisprudence of regional human rights courts, especially by the Inter-American Court of Human Rights and the European Court of Human Rights.

But the specific rules and global standards on independence of judges and lawyers were established in 1985 when the Basic Principles on the Independence of the Judiciary were adopted by the General Assembly after its approval in the seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. This comprehensive set of international and regional rules and standards was complemented, five years later, with the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors, adopted in 1990 by the eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

The Basic Principles on the Independence of the Judiciary –from now on “Basic Principles”- lists the measures that States are required to adopt to guarantee the independence of the judiciary at the national level. They require that the independence of the judiciary be guaranteed by the State and enshrined in the Constitution or the law of the country, and reaffirm that it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary (principle1).They also include specific provisions concerning the status of judges, including their independence and impartiality (principles 2 and 4), qualification and appointment (principle10), conditions of service and remuneration (principle11), security of tenure (principle12), promotion (principle13), assignment of cases (principle14) and disciplinary proceedings against judges (principles17 to 20).

Despite such a comprehensive legal framework and a valuable body of jurisprudence, the independence of judges, lawyers and prosecutors is still extremely vulnerable, is under attack or is merely non-existent, in many parts of the world. And new challenges appear. That is why revisiting the Basic Principles, with a view to recommend concrete ways to render such independence more effective, seems timely. In order to do so, attention should be paid to the context and evolution in which independence has to be assured and preserved and address the commitments, or lack thereof, of all stakeholders, in particular States.

The Basic Principles have been a fundamental conceptual safeguard in international standards on the subject. However, it is visible that, at this point, they need to be enriched and updated. They do not include, for instance, provisions devoted to judicial councils or a series of new threats to judicial independence such as corruption or organized crime.

As well, other important developments have taken place, such as the Bangalore Principles of 2001, on integrity and judicial conduct, which contains an approach that an updated version of the Basic Principles could include. Considering that accountability is the other side of the rights of judges to its independence and autonomy, the Bangalore Principles have identified six core values that should guide each judge’s work and life, namely independence, impartiality, integrity, propriety, equality, and competence and diligence. Including some if these values in the updated Basic Principles could be considered.

In this very relevant matter entities of the United Nations system should work in closer cooperation. In 2016, for instance, the United Nations Office on Drugs and Crime (UNODC) in Vienna, launched a global program 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. I, as Special Rapporteur that reports to the Human Rights Council in Geneva, have expressed my strong support to that initiative and am acting now as member of the Global Judicial Integrity Network, a platform to support judiciaries being coordinated by UNODC.

REQUIREMENTS AND CHALLENGES:

4. THE UPDATING OF THE BASIC PRINCIPLES.

The idea to update the Basic Principles is not to replace them with a new set of principles, from the scratch. That will open and unpredictable path in which the actual set of Basic Principles could eventually be under risk. Beside the need to consider including the essence of the concepts of accountability already contained in the Bangalore Principles, there are two matters that appear as some of what we can discuss in this meeting as matters that should be part of an updated version of the Basic Principles. Some more can be presented in the following days.

1. –

Corruption has a direct impact on human rights. First, it deprives societies of significant resources that could be used to meet basic needs in public health, education, infrastructure or security. Second, it has direct negative consequences for the functioning of State institutions, in general, and for those organs responsible for ensuring the rule of law and the administration of justice, in particular. Being free from official corruption must be a fundamental obligation that governments owe to every individual.

Corruption in a society and in the judiciary directly undermines the rule of law and the ability of the judiciary to guarantee the protection of rule of law and 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 and organized crime enjoys impunity when judicial institutions are unable to perform their functions.

Clear standards could be included so to face 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.

The United Nations Convention against Corruption – the only universal instrument 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. The broad scope and the mandatory nature of the Convention makes it the only instrument capable of providing a comprehensive response to a global problem. It covers a number of fundamental and progressive issues and provides clear and concrete tools that make it possible for a number of States to make progress in simultaneous and joint criminal investigations.

The Convention – which is one of the international treaties with the most States parties- identifies the judiciary as an institution that is critical in preventing and combating corruption. In particular, article 11 provides that each State party should take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary, without prejudice to judicial independence. Such measures may be introduced and applied within the prosecution service in States where that institution does not form part of the judiciary but enjoys independence similar to that of the judicial service.

1. Judicial Councils. –

One of my last year reports was on Judicial Councils, a matter not mentioned in the Basic Principles. Judicial councils play, in several countries, an essential role in guaranteeing the independence and the autonomy of the judiciary. In that  report I mentioned that the number of judicial councils has increased greatly in recent decades: current estimates suggest that more than 70 percent of the countries in the world have some form of judicial council or equivalent independent and autonomous body.

The underlying rationale for their creation is the need to insulate the judiciary and judicial career processes from external political pressure, mainly from the executive branch. In addition to their primary function of safeguarding judicial independence, a growing number of judicial councils have been entrusted with far-reaching powers to promote the efficiency and quality of justice and rationalize the administration of justice, court management and budgeting.

While the number of Judicial Councils have dramatically increased in the last decade and a half, two concerns arise. Firstly, that there is no explicit “set” of international rules, defined in the United Nations, on objectives and composition of judicial councils wherever they exist. Second, there is no “ideal model” of a national judicial council, nor can a comprehensive analysis of the effectiveness of each of these institutions be provided in this report.

To guarantee their independence from political power and ensure effective self-government for the judiciary, clear principles and rules are indispensable. While on its functions and compositions there is no “single model”, there are, however, two essential criteria that could be considered for full guarantee of judicial independence.

First, all the appointment processes of those who integrate the Council must be transparent and participatory in order to avoid and prevent corporatism and the appropriation of the process by groups or de facto powers.

Second, it is appropriate that judicial councils include judges and non-judges among their members. To avoid the risk of corporatism – in reality or in the public perception – it is advisable that the council includes non-judges as lawyers, law professors and citizens of recognized reputation and experience

The most comprehensive efforts to develop minimum standards relating to the creation, membership and role of judicial councils have been undertaken in Europe, under the aegis of the Council of Europe. The Basic Principles on the Independence of the Judiciary do not include any provision specifically devoted to judicial councils.

STRATEGIC GUIDELINES

The idea to organize this meeting is to discuss all this matters and other that may be directly connected. First, to consider if the updating of the Basic Principles is necessary and viable. Second, to explore the ways and means so to generate the institutional, political and social requirements so to succeed in this endeavor.