Presentation of the Report of the Special Rapporteur of the United Nations on the Independence of Magistrates and Lawyers, Diego García-Sayán, before the General Assembly of the United Nations, at the seventy-fourth session, on October 16, 2019.
“Report on the Independence of Judges and Lawyers”
Distinguished Permanent Representatives, and delegates, Ladies and gentlemen:
It is an honor to present my annual report as Special Rapporteur on the Independence of Judges and Lawyers. I will present an analysis of contemporary threats and challenges to judicial independence, as well as a proposal to refine and perfect the current international instrument that defends it. First, I would like to report briefly, some activities I carried out during this year in the course of my mandate. In the last three months, at the invitation of governments, I conducted two fruitful official visits. The first one to Honduras from August 16 to the 22nd, and the second one to Uzbekistan from September 19 to 25th. On both visits, I had the opportunity to meet with high authorities of each branch of government, including judges, prosecutors, members of the legal profession and representatives of civil society. Those also visits allowed me to identify and record not only situations of potential restriction to the independence of the judiciary, but also to identify progress and positive measures towards the protection and improvement of judicial independence. At the end of each visit, I issued preliminary observations that I shared with national authorities and public opinion. Those observations will be reflected and described in detail in reports and recommendations that I will present in due course before the Human Rights Council in Geneva.
On the other hand, I have had the opportunity to analyze in-depth in various international forums some of the contemporary challenges that judges, lawyers, and prosecutors are currently facing in different parts of the world. I also identified guidelines and gathered insights on how to respond to these challenges. Indeed, this report that I am presenting today has been enriched by those exchanges. Likewise, I have put into circulation a website of this Rapporteurship, which reports activities in general, but also shows a substantial monitoring of the situation of judicial independence on each of region of the world. It is available for all of you to visit. Excellencies:
This morning, I would like to bring to your consideration my reflections on the essential role that play the UN Basic Principles on the Independence of the Judiciary, which were adopted 34 years ago. Being about to commemorate its 35th anniversary, I consider it important invite all of you to reflect on how to refine them in order to strengthen their impact based on contemporary challenges that were not present or developed when those Basic Principles were adopted and approved. The UN Basic Principles were adopted in 1985 by the VI United Nations Congress on Crime Prevention and Treatment of Offenders; followed by its approval by the General Assembly. As you know, this instrument is composed of a solid set of guidelines to guide Member States to ensure the establishment and recognition of judicial independence in their home countries. The Preamble of the UN Basic Principles establishes the obligation of government institutions to respect the independence of the judiciary, as well as their duty to take all appropriate measures so that judges can decide matters that are submitted before them, so that judges can decide their cases impartially and without any undue influence, pressure or interference.
The UN Basis Principles recognize: (i) general questions about the independence of the judiciary; (ii) judges’ freedom of expression, belief, association, and peaceful assembly rights; (iii) standards to determine their professional background, selection process, and training competencies to fill a judicial position; (iv) conditions of service and tenure; (v) their duty to keep professional secrecy and judicial immunity; as well as (vi) disciplinary measures, suspension and removal from office. Over the past years, United Nations bodies, such as the Human Rights Committee, have strengthened the scope of the Basic Principles through subsequent resolutions that have interpreted and complemented its scope. For example, in its General Observation number 32, the Committee established that the requirement of the competence, independence, and impartiality of a court is an absolute right that could not be subject to any exception.
Ladies and gentlemen delegates,
The original notion of the UN Basic Principles derived from the idea that institutional independence meant, essentially, that judicial systems had to be independent from the other branches of government, mainly of the executive and legislative branches. Such fundamental concept, of course, continues to have full and total validity, and constitutes the foundation of the rule of law, and is also essential for the respect of human rights. For example, the fundamental right to a “fair trial” would be illusory without an “independent and impartial tribunal.” However, this Special Rapporteurship believes that, based on my past assessments, the recommendations I have made, the official visits I have conducted, and on the daily monitoring that I have carried out on the status of judicial independence around the world since I began my mandate, I consider that the content UN Basic Principles should be complemented and strengthen, based on serious threats and contemporary challenges that were not present when they were drafted and approved 34 years ago.
Excellencies:
There are three issues that arise as clear priorities in this area. First, the one related to global and transnational corruption and its effects on society and state institutions, including the judiciary and the office of public prosecutors. That is relevant considering their impact over the work of judges and prosecutors, as well as the challenges that it poses given the crucial role assigned to them by the United Nations Convention against Corruption. Second, the growing challenge related to threats and illegal influences exerted by organized crime networks against members of the judiciary, either to manipulate the outcome of judicial decisions or to weaken the functioning of the judicial apparatus. Third, the one related with the recognition of principles of integrity, correctness, equality, competence, and diligence contained in the Bangalore Principles on Judicial Conduct, within the content of the UN Basic Principles. Those issues are fundamental for judicial independence, and are not currently expressed in the content of the UN Basic Principles approved in 1985. Therefore, it would be necessary to promote a process of analysis and debate, in order to expand their scope in order to take into account threats and challenges that have enormous relevance and were not considered when the Principles were adopted.
First of all, I would like to refer to the enormous threat posed by transnational corruption over the work of judges and prosecutors. The Corruption Perception Index of 2018, published by Transparency International, measured the perceived levels of corruption in the public sector in 180 countries and territories. The results are devastating, yet familiar. Over a maximum score of 100, more than two-thirds of the countries scored below 50, while the average score is only 43. Perhaps the most concerning issue is that the vast majority of the countries evaluated made little or no progress. Only 20 countries made significant progress in recent years. In my report presented to the General Assembly in 2017, I highlighted how corruption and organized crime networks affect the rule of law and the ability of states to promote government systems that respect human rights and ensure judicial protection.
Corruption has devastating effects on the judicial system as a whole since it reduces public confidence in the administration of justice when it is perceived as corrupt. Simultaneously, however, judges and prosecutors have been entrusted with the responsibility of facing corruption so that they can also guarantee the rights of members of society. From that perspective, the UN Convention against Corruption is a fundamental instrument, because judges and prosecutors appear to be key actors for international cooperation between States against corruption. Particularly, Article 11 requires that each State party take sufficient measures to strengthen the integrity of the judicial system, and avoid any chance of corruption among its members, without prejudice to its independence. Considering my previous statements, international cooperation between judges and prosecutors is of paramount importance to effectively face transnational corruption and organized crime. Hence, it is relevant that both judges and prosecutors have the necessary protections recognized in international instruments to ensure their independence and impartiality vis-a-vis any interest that could affect them.
From that perspective, international cooperation attains special attention, vitality and viability in criminal matters, such as extradition, or international mutual legal assistance. Hence, to achieve such cooperation, the existence of independent judicial authorities is essential. I would also like to reiterate today that the more independent the judiciary is, the less effective will be those corrupt practices utilized by transnational organized crime groups. Particularly, in their interaction between organized crime members with the private sector in their attempt to influence politicians and, thus, the judiciary, seeking to obtain impunity.
This morning I want to emphasize the importance of role of state members not only to respect the independence of judges and prosecutors during their decision-making process but also in establishing systems to ensure their safety and protection. Furthermore, I would like to underline the importance of tenure and stability in their positions, it must be guaranteed by preventing abrupt removal processes or arbitrary transfer of judges and prosecutors. Therefore, it is relevant to establish the conditions for judicial personnel to perform their duties without fear of being arbitrarily substituted. For all the above reasons, this Rapporteurship makes a respectful call to begin a process of reflection in order to supplement the current content of the UN Basic Principles on the Independence of the Judiciary in order to identify threats to the institutions and judicial independence, mainly from criminal structures, as well as the express recognition of the responsibility of judges and prosecutors to face these threats as established in domestic law and in the United Nations Convention against Corruption.
Ladies and Gentlemen,
Second, I would like to refer to the threat posed by the growing influence of organized crime networks over the work of judges and prosecutors around the world. Transnational organized crime poses a significant and rising threat to national and international security, with serious consequences for public security, public health, democratic institutions and economic stability throughout the world. These networks are not only in the process of expansion; they are also diversifying in their activities, resulting in the convergence of pressures that were once different, and that today have a destabilizing effect. The damage caused by the organized crime is widespread and profound. There is no going back. Due to its hidden nature and the discretion in which it is carried out, the organized crime activities have allowed them to easily go unnoticed in different societies. Also, transnational crime has become a threat to peace and development, even to the sovereignty and rule of law of nations. Members of organized crime not only use weapons and violence but also money and bribes to corrupt state institutions, particularly those responsible for the administration and pursuit of justice. This makes them weak and fragile institutions.
Due to the negative effects on society by organized crime, this Rapporteurship respectfully calls on the international community to continue reflecting on this issue, as well as to consider its possible inclusion as part of the current content of the UN Basics Principles on the Independence of the Judiciary. Ladies and Gentlemen, Allow me to provide a brief comment on the Bangalore Principles, which supplement the UN Basic Principles. The Bangalore Principles were approved in order to establish an international standard for the ethical conduct of judges, provide guidance on universal judicial ethics and strengthen judicial integrity. The Bangalore Principles outline the values of independence, impartiality, integrity, correctness, equality and competence and diligence, as necessary values for ethical judicial conduct. In addition, they aim to safeguard judicial independence by establishing the necessary conditions to promote the ethical conduct of members of the judiciary. Thus, this Rapporteurship considers that judicial integrity highly correlates to judicial independence. Therefore, it would constitute a significant if the judicial integrity and accountability principles be expressly recognized in the UN Basic Principles on the Independence of the Judiciary, as I describe it in detail in this report.
Ladies and Gentlemen,
Based on my previous considerations, this Rapporteurship would like to respectfully formulate the following recommendations: First, I would like to call on the international community to continue with the effort to reflect and strengthen the current content of the UN Basic Principles, for them to reflect contemporary challenges and threats faced by judges, lawyers, and prosecutors in various parts of the world, as a result of transnational corruption, and the growing influence of the organized crime over the function of the judiciary. Second, this Rapporteurship recommends that the international community promotes initiatives aiming at establishing the necessary link between the UN Basic Principles on the Independence of the Judiciary, the Bangalore Principles and UN the Convention against Corruption. This effort will be relevant, so that the UN Basic Principles be interpreted in conjunction with international instruments, such as the Guidelines on the Role of Prosecutors, the Bangalore Principles and the parameters set by the UN Convention against Corruption in order to fill the gaps that exist among them.
All of that in an effort to strengthen international standards that safeguard judicial independence. Third, this Special Rapporteurship also suggests that Member States establish an intergovernmental group of experts to begin the discussion process of supplementing the UN Basic Principles. Fourth, I also recommend that Member States make a reference to the above mentioned threats and challenges face by judges, lawyers and prosecutors in the 14th United Nations Congress on Crime Prevention and Criminal Justice, which will be held next year in Kyoto, as well as to confer to competent organs of the United Nations a clear mandate for an official intergovernmental process that aims to incorporate into the current content of the UN Basic Principles new sections on transnational corruption, organized crime and integrity. I wish to express my willingness to contribute my knowledge to this process, in order to strengthen the standards that protect judges and lawyers against any threat, intimidation, harassment or interference not only from state agents but also from transnational organizations and organized crime networks.
Finally, I would also like to reiterate to the Member States that this proposed initiative solely intends to supplement and strengthen the current content of the UN Basic Principles on the Independence of the Judiciary. The safeguards contained in the Basic Principles must remain untouched, given the relevance, impact and support that its content presents over the work of judiciaries around the world. Protecting judicial independence is not easy. It requires persistent work, diligence, and attention. Such protection is a duty not only to the members of the legal profession but also to the international community. Thank you.
Initiative to supplement the content of the United Nations Basic Principles on the Independence of the Judiciary
The United Nations Basic Principles on the Independence of the Judiciary were adopted in 1985 by the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. The Basic Principles were endorsed by the General Assembly in its resolutions 40/32, on November 29, 1985 and 40/146, on December 13, 1985.
Their purpose is to function as guiding principles to assist Member States in securing and promoting the independence of the judiciary. Member States have the duty to incorporate and respect its principles into their national standards and legislation, such as the (i) independence of the judiciary; (ii) freedom of expression and association; (iii) qualifications, selection and training; (iv) conditions of service and tenure; (v) professional secrecy and immunity; and (vi) discipline, suspension and removal.
Considering both the increasing frequency of attacks on the independence of judges, lawyers and court officials, in 1994, the UN Commission on Human Rights decided to appoint a Special Rapporteur on the Independence of Judges and Lawyers. This mandate was assumed by the Human Rights Council and the General Assembly in its resolution 60/25. The current UN Special Rapporteur on the Independence of Judges and Lawyers Mr. Diego García-Sayán (Peru), who has been appointed by the UN Human Rights Council at the end of 2016.
The UN Special Rapporteur is mandated to inquire into any substantial allegations transmitted to him and report his conclusions thereon; to identify and record not only attacks on the independence of the judiciary, lawyers and court officials, but also progress achieved in protecting and enhancing their independence. The UN Special Rapporteur also makes concrete recommendations and studies, for the purpose of making proposals, important and topical questions of principle with a view to protecting and enhancing the independence of the judiciary 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.
It is important to note that the UN Special Rapporteur has already noted in his reports the need to discuss how those threats from organized crime and corruption are endangering the most fundamental function of judiciaries and the legal profession, including the prosecutorial operation, in safeguarding and defending the Rule of Law, democracy and human rights. His detailed proposals are included in his reports presented before the Human Rights Council on June 9, 2017[1] and before the General Assembly on July 25, 2017[2].
As the United Nations Office of Drugs and Crime (UNODC) has repeatedly stated, transnational organized crime has evolved over time. Organized crime is undermining the Rule of Law and the capacity of States to promote systems of governance accountable to and compliant with human rights standards. Criminal networks attempt to extend their reach into the democratic legal system, imposing their power and influence on the basis of their own rules; thereby creating spheres of immunity and impunity within the State itself. An important element of their modus operandi is the penetration of institutions in the justice sector. Organized crime networks often use bribes as a means of gaining access and influence on the judicial administration. Through illicit and violent interferences with regards to the justice system and the State they seek closing of particular cases or forced acquittal of a given individual.
The threat posed by transnational organized crime is often underestimated with regards to the justice system and the State. There is a tendency to oversimplify, and, in particular, to equate the damage done by organized crime with the amount of violence associated with it. As such, given the harmful effects on the center of society and politics from the organized crime networks, this UN Rapporteurship calls to the international community to further reflect on it, and consider its potential inclusion as part of the UN Basic Principles on the Independence of the Judiciary.
The 2018 Corruption Perceptions Index, published by Transparency International, measured the perceived levels of public sector corruption in 180 countries and territories. Drawing on 13 surveys of businesspeople and expert assessments; the index scores on a scale of zero (highly corrupt) to 100 (very clean). The results painted a sadly —yet familiar picture: more than two-thirds of countries scored below 50, while the average score is just 43. Perhaps most disturbing is that the vast majority of countries assessed have made little to no progress. Only 20 have made significant progress in recent years.
Internal and external corruption practices are not foreign to judiciaries. Corruption has a direct impact on the validity of human rights, largely because of two reasons. First, corruption deprives societies of important resources that could be used for basic needs, such as public health, education, infrastructure, or security. The OECD, for instance, has indicated that the cost of corruption, in its different modalities, constitutes more than 5% of the global GDP. Second, corruption has direct damaging consequences in general on the functioning of state institutions, and in particular on the administration of justice. In consequence, corruption decreases public trust in justice; weakens the capacity of judicial systems to guarantee the protection of human rights, and it harshly affects the tasks and duties of judges, prosecutors, lawyers, and other legal professionals.
By seeking impunity, corruption has a devastating effect on society and the judicial system as a whole. For this reason, the United Nations Convention against Corruption is a fundamental instrument for the protection of human rights. In the report presented by Mr. García-Sayán in 2017 at the General Assembly, he underlined that “as a key tool to fight against corruption, the Convention should also be considered as a fundamental international instrument for the protection of human rights, and that it should merit, consequently, the permanent attention of the bodies competent in this matter.”
As such, judicial corruption is a new variable that deserves further reflection amongst the international community on its potential inclusion into the current content of the UN Basic Principles on the Independence of the Judiciary.
Judicial independence is an indispensable element to respect due process of law, Rule of Law and democracy. The UN Basic Principles recognize the guarantee to create conditions of service and tenure to be effective (Principle 11 and Principle 12). However, for these principles to be effective, it is crucial to have an independent and autonomous body to promote and strengthen the independence of the judiciary, such as judicial councils or parallel institutions.
Mr. García-Sayán has also underlined the importance of including as part of the components of independence, the notion of judicial integrity recognized in the Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, on November 25-26, 2002. Mr. García-Sayán on various forums has noted that a judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy, the rule of law and human rights. However, his has also insisted on the idea that such notion should be reinforced and recognized both domestically and globally through international instruments endorsed by the General Assembly, such as the UN Basic Principles of the Independence of the Judiciary. For Mr. García-Sayán is essential to ensure the integrity of judiciaries’ around world.
In the United Nations Convention against Corruption, national justice systems are assigned the central role of confronting and punishing corruption. It also highlights the importance of international judicial cooperation in a context in which corruption and organized crime operate many times in a global manner, which is why, in order to face them, a global response is required. With judges and prosecutors who are not independent, this task is impossible.
The idea of independence requires that judges must be able to exercise their responsibilities without being influenced by the other branches of government or any other inappropriate sources or factual powers. A legal system based on respect for the rule of law also needs strong, independent and impartial judges and prosecutors willing resolutely to investigate and prosecute crimes, even if these crimes have been committed by persons acting in an official capacity. In addition, this legal system would not be complete without independent lawyers who are able to pursue their causes freely and without fear of reprisals. Thus, the independence of judges, prosecutors, and members of the legal profession is indispensable for ensuring the rule of law, separation of power, and the protection of human rights. Therefore, as part of his proposal, Mrs. García-Sayán considers that the most effective mechanism to ensure such independence and impartiality is through domestic implementation of solid and efficient public policies to counteract the harmful effects of the organized crime and corruption in their societies.
Final Comments
As discussed above, it is of outmost importance to reiterate, that the present proposal does not aim to draft an alternative “set” of the UN Basic Principles on the Independence of the Judiciary. Rather, it seeks to supplement having in mind those currents threats and challenges that judicial independence faces, which have been identified by the UN Special Rapporteur.
Diego García-Sayán,
United Nations Special Rapporteur on the Independence of Judges and Lawyers
[1] Available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/159/80/PDF/G1715980.pdf?OpenElement
[2] Available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/N17/216/38/PDF/N1721638.pdf?OpenElement