Therefore, irrespective of the organizational model adopted by prosecution services, combating corruption must be among the top priorities of every such service in the world. In this regard, the United Nations Guidelines on the Role of Prosecutors and the United Nations Convention against Corruption serve as the fundamental reference frameworks on which prosecution services should base their efforts to combat corruption and address its impact on human rights.
In the report, the Special Rapporteur presents the current state of affairs and describes the role of public prosecution services in the fight against corruption. He goes on to emphasize the importance of effective international cooperation in achieving the set objectives. The report also highlights a number of good practices and ongoing challenges for prosecution services in respect of cooperation and the fight against corruption.
Full Statement of before the Human Rights Council:
Ladies and Gentlemen,
It is an honor for me to be before you again to address the Council as Special Rapporteur. I will share with you the main findings of my general report that you already have in writing. I will also share some conclusions on my 2019 missions to Honduras and Uzbekistan.
Madam President, distinguished delegations,
It is inevitable to refer to the global COVID-19 pandemic and its impact on justice systems. It has exposed structural problems that have accentuated the difficulties of access to justice, particularly for the poorest, marginalized, or discriminated communities and groups, women victims of violence, and persons in prison. I issued a statement in April recommending seven actions in this regard.
I have also expressed my concern at attempts by some political authorities to use the crisis to concentrate power and to dispense with decisions by the judiciary and especially the high courts as guarantors of fundamental rights.
However, I have seen with hope how judges and prosecutors, in various parts of the world, are asserting their functions, persevering in their responsibilities and adapting to technological changes in order to continue to function as an effective counterweight to the other public authorities.
I have been insisting since my first report that, in order to affirm judicial independence, in addition to facing possible interference by political power, special attention must be paid to the threat of growing corruption, a global phenomenon seeking impunity. Although the threat of corruption is not mentioned in the Basic Principles on Judicial Independence established 35 years ago, they remain a fundamental tool.
I have been stressing, however, that it is essential to strengthening the tools for the protection of judicial independence. The framework for analysis and action, thus, requires the interaction of these Basic Principles with two other fundamental instruments adopted in this century: the United Nations Convention against Corruption and the Bangalore Principles of Judicial Conduct, adopted in 2006 by ECOSOC, from which the active Global Judicial Integrity Network has been derived and to which I have been invited to join its Advisory Board, promoted by the UNODC from Vienna.
The report I am presenting today focuses on prosecutors, fiscals, attorneys general or other designations, according to each country’s national law, their responsibilities in combating corruption, and the duty of States to ensure that they act independently. To this end, the Guidelines on the Role of Prosecutors adopted at the United Nations in 1990 should be added to the three legal instruments mentioned.
From this rostrum, I would like to express my special thanks for the timely response and commitment of the Member States and their prosecutors’ offices, associations of prosecutors, civil society organizations, as well as prestigious members of academia, to the call from this Special Rapporteur to actively contribute to the valuable reflections that were transmitted to me.
The work carried out in various meetings held along 2019 with experts promoted by this Mandate was also crucial. Among others, one held in New York, which included the current President of the International Association of Prosecutors and prosecutors from all regions of the world, within the framework of the “High-Level Political Forum on Sustainable Development”.
In order to guarantee the prosecutors’ offices independence from political power or from any expression of factual power, there are three fundamental aspects that I would like to highlight here.
First, independent prosecutors with integrity are irreplaceable when it comes to dealing with corruption: high standards of conduct, neutrality, fairness, and professionalism. This requires selection and appointment processes based on merit, suitability, and transparency.
Second, international cooperation against corruption, the core obligation of the Convention. It requires an independent judiciary. For international cooperation to be effective, there can be no doubt about the reasons why such cooperation is requested.
Third, because of the impact of corruption on society, special attention must be paid to the victims of corruption and to human rights defenders. Victims must be heard, have the right to participate in the proceedings, and be entitled to appropriate measures of redress. Human rights defenders, for their part, tend to be key players in promoting investigations into corruption. Protection measures should, therefore, be considered.
The report highlights some priority lines of action to improve international cooperation under the Convention. For example, the timing of procedures; facilities for conducting proceedings abroad; more efficient and expeditious coordination between the Member States; joint investigations; and common guidelines for identifying evidentiary material. I refer to these in more detail in the report you have available.
Finally, the missions to Honduras and Uzbekistan. I had planned to attend two invitations this year, for which I am grateful, issued in the past months by the Governments of Albania and Lebanon. The visits have had to be postponed because of the restrictions currently imposed by the pandemic. I hope that they can be scheduled soon.
In Honduras and Uzbekistan, I had the opportunity to meet with senior authorities, as well as judges, prosecutors, members of the legal profession, and representatives of civil society. I am grateful to the authorities of both countries for their invitation and for their open and frank cooperation, before, during, and after the visit.
The mission to Honduras was from 16 to 22 August 2019.
Honduras has made enormous efforts in recent years to address structural problems that continue to affect it. Corruption and organized crime remain two serious problems. I was able to observe institutional efforts that have resulted in some progress in tackling them but, at the same time, worrying obstacles that end up preventing criminal punishment of those who have committed crimes.
On the positive side, the creation of courts and tribunals for corruption offenses in 2017 and the creation of the Special Prosecution Unit against Impunity of Corruption (UFECIC) are noteworthy. These steps were taken with the active contribution of the Support Mission against Corruption and Impunity in Honduras (MACCIH) of the Organization of American States (OAS). However, the balance of the investigated cases is negative when they reach the Supreme Court. In none of them has the process prospered, either due to the responsibility of the Court itself or due to congressional interference.
Regrettable was the government’s decision on January 19 of this year to terminate the mandate of the MACCIH, along with the decision to suspend the Special Prosecution Unit. This may have an adverse impact on the fight against corruption and organized crime. At the time, I publicly expressed my concern about this.
The current procedures for the selection and appointment of key actors in the justice system do not provide sufficient guarantees. There is a need to develop and apply objective criteria for the nomination, appointment, transfer, and promotion of judges and magistrates at all levels.
There are serious gaps in the institutional framework for the judiciary. The early dissolution of the Judiciary Council has deprived the system of an institution that should serve to safeguard judicial independence. The adoption of the new law on the Judiciary Council should no longer be delayed.
The mission to Uzbekistan took place from 19 to 25 September 2019 at the invitation of the government to assess the measures taken by the State to protect and promote judicial independence.
Uzbekistan has made progress in strengthening the independence and free exercise of the legal profession. The establishment of the Supreme Judicial Council, the reorganization of the judicial system, new procedures for the selection and appointment of candidates for judicial posts, and various measures to improve judicial training and stability in the function are positive.
However, much remains to be done to ensure that the judicial system is truly independent. Government authorities retain important roles in the organization and functioning of the judicial system. The extremely broad powers of court presidents in the selection, promotion, evaluation, and discipline of judges severely limit internal independence.
Prosecutors, on the other hand, continue to carry an inordinate amount of weight in the decisions of judges. However, there has been a gradual increase in the number of acquittals by criminal judges in recent years, changing the previous pattern of total subjection to the decisions of prosecutors, which was usually fuelled by an all-powerful security service.
I encourage the authorities to continue the reform of the judicial system, in order to ensure that justice is truly independent and that judges, prosecutors, and lawyers are free to carry out their professional activities without interference or pressure.
I don’t want to end my presentation without mentioning two mentions.
First, my strong condemnation and regret for the murder in recent weeks of two Latin American judges: Uriel Villegas in Mexico and Diane Mereles in Paraguay. These facts underscore the urgency of adequate preventive measures to protect the integrity of judges.
Second, a recognition of the role of associations of judges, prosecutors, and lawyers who in different places are fighting for judicial independence. Particularly noteworthy is the mobilization in January of this year in Warsaw for the independence of justice in Poland, promoted by judges from fourteen European countries and by important organizations such as the European Association of Judges.
I conclude by renewing my appreciation to the States represented here for their cooperation and encouraging them to continue to do so.
I look forward to the interactive dialogue and to your comments or questions.
Thank you very much for your attention.