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 and before the General Assembly on July 25, 2017.
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.
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.
United Nations Special Rapporteur on the Independence of Judges and Lawyers