Chapter Four assesses the involvement of lawyers and the relevance of the UPR recommendations on the administration of justice in the case of ten countries. Within the limits of this study, the IBAHRI observes the following.
369 IACHR press release, ‘CIDH expresa su alarma ante intimidación en Venezuela contra personas que acuden al Sistema Interamericano de Derechos Humanos’ (20 March 2015). IBAHRI press release, ‘IBAHRI greatly concerned as Venezuela continues to target lawyers and human rights defenders’ (5 August 2015).
370 UNHRC, Report of the Working Group on the Universal Periodic Review – Venezuela (Bolivarian Republic of)A/HRC/19/12 (7 December 2011), Recs 95.5, 95.6, 94.34, 94.5, 96.1, 96.13–22 and 96.24.
371 UNHRC, Report of the Working Group on the Universal Periodic Review – Venezuela (Bolivarian Republic of) Addendum Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review (16 February 2012), UN doc A/HRC/19/12/Add.1, paras 4 and 8 in particular.
372 Main donor countries in Venezuela in ‘legal and judicial development’ (OECD data): (2009) Germany, Switzerland, Spain and Canada; (2010) Spain, USA, Germany and Portugal; (2011) UK, US, Spain and Germany; (2012) UK and the US; (2013) Korea, and Germany.
The administration of justice has not received the attention it required
There is a legitimate expectation that the UPR highlights the most serious human rights issues in the country as a priority. The separation of powers and the independence of the judiciary constitute the building blocks for the realisation of all human rights and should receive special attention in any cause/effect analysis. No right will be efficiently protected if the administration of justice does not genuinely integrate the principles of the independence of judges, lawyers and prosecutors. Judges, prosecutors and lawyers together ensure that people are aware of their rights, are protected from intrusive measures from the executive and have a place to challenge decisions taken against them.
In that context, it is striking to note that the overall number of UPR recommendations pertaining to the administration of justice is low in countries facing major challenges in the justice sector. The study shows that:
• The issues of separation of power and the constitutional-making process have been overlooked in the context of political transition in Myanmar and Hungary.
• Recommendations addressing the administration of justice were overall general. To general recommendations calling upon the state under review to ‘ensure the independence of the judiciary’, states most often reply that their judiciary is independent on the basis of selected evidence. Recommending states should be mindful of the need to make recommendations, which call for a specific action in a given context conducive of human rights. Thus states’
recommendations should point at clear shortcomings in the current legal and institutional frameworks of the state undergoing review. Furthermore, these specific recommendations may not be enough, if the broader context of implementation is not specified. The case of Brazil can be used as an example of such a situation. Brazil received a number of specific recommendations addressing the criminal justice system. However, no state mentioned that its recommendation should take place in a broader strategy taking a holistic approach to the criminal system. This was the IBAHRI recommendation to address meaningfully the problem of pre-trial detention.
• Recommending states have only occasionally referred to the legal profession and asked the state under review either to train lawyers in human rights or ensure that they can carry out their activities without any fear of harassment.
• Recommending states have referred sporadically to the UN Basic Principles and Guidelines and, in comparison to reference to international conventions, and other specific guidelines and principles, such as the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
• In most of the countries under study, most of the donor countries in the justice sector were also the countries making the most recommendations on the administration of justice.
The participation of lawyers has remained overall limited
The UPR has raised civil society’s participation in an international human rights mechanism to its highest level in many of the ten countries. This development occurred even in countries where
cooperation with UN mechanisms is portrayed as ‘deteriorating’ the image of the country. Thus, in Zimbabwe and Malawi, over time the UPR has strengthened a space for dialogue between civil society and the government. In other countries, such as Egypt, Swaziland and Azerbaijan, where the dialogue between NGOs and the state does not exist internally, the UPR has created a potential avenue to externalise domestic human rights demands and strengthen solidarity among NGOs at an international level. Given the serious risk of reprisal for local NGOs, this externalisation happens through the intermediary of international NGOs.
As to the involvement of lawyers in human rights monitoring generally, and the UPR specifically, this study shows that:
• In all countries the lawyers’ level of awareness concerning the UPR is very low. This constitutes the main impediment to their participation. In Malawi and Zimbabwe the national bar
association has been consulted. In Brazil the judiciary contributed to the consultation process.
In Hungary, Swaziland, Myanmar and Venezuela, the second UPR should see a greater participation of lawyers’ organisations and bar associations.
• Lawyers engaged in human rights monitoring through NGOs address human rights in general and are more aware of the UPR than the rest of the legal profession.
• Lawyers with a private practice tend to engage through lawyers’ association and focus on the monitoring of the rule of law and the independence of the legal profession. In Venezuela and Swaziland, it was noted that the growing pace of deterioration of the rule of law in their country over the last decade has been a wake-up call for national bar associations, which then started engaging more and more in the promotion and protection of the rule of law.
• More generally, lawyers tend to lack the human, material and financial resources to engage in human rights mechanisms, and some explicitly justified on this basis the priority given to ‘hard law’ mechanisms, such as the European Court of Human Rights.
• Lawyers acquainted with human rights confirmed the potential of the UPR and the relevance of the involvement of the legal profession to strengthen the profession as guarantor of the rule of law. A number of lawyers also highlighted the need to foster the accountability of the judiciary.
The UPR has fostered the human rights dialogue at the international level
The UPR is expected to provide an intergovernmental forum for following up treaty bodies and regional human rights mechanisms’ activities and recommendations. Looking at the ten countries above, the UPR was compared by one of the lawyers interviewed to a ‘great shaker’ that interjects a sense of international accountability in states, such as Zimbabwe and Swaziland, that have long demonstrated a reluctance to work with international human rights mechanisms. At the same time a number of NGOs mentioned that states used the UPR to undermine the recommendations and conclusions of treaty bodies and special procedures and/or information from NGOs.
The IBAHRI observes that:
• The UPR to some extent acts as a substitute for treaty bodies for states with a limited record on reporting to international human rights mechanisms. That is here the case of Malawi, Swaziland and Zimbabwe. Each of those three states demonstrated a willingness to cooperate with the mechanism. In Malawi, the review process at the HRC has had far-reaching
consequences, with the establishment of an institutional framework for the realisation of human rights within the Ministry of Justice.
• In Brazil, the UPR process received greater attention from civil society and government agencies than treaty bodies. This attention was justified by the fact that a short amount of time separates the submission of the report and its review by the HRC. Conversely, at the level of the treaty bodies, many years can separate the two.
• In relation to the administration of justice specifically, explicit reference to UN human rights mechanisms’ recommendations was sporadic. In some cases, treaty bodies’
recommendations are reiterated without specific reference being made to the source of the recommendation. However, it is only on rare occasions that the UPR has a ripple effect, and that a recommendation issued by one Special Rapporteur is taken up by a significant number of states. When it happened, it happened most often at the second, rather than at the first, review.
The level of reporting and monitoring in the administration of justice is insufficient Currently, the amount of information gathered at the level of the UPR is unprecedented from a quantitative as well as a qualitative standpoint, if one considers the diversity of stakeholders involved and the different (international, regional and local) approaches they represent. Accurate information on justice systems may come primarily from international and regional human rights mechanisms, UNCT reports and associations of legal practitioners.
In order to improve the reporting, and as mentioned previously, the IBAHRI sees it as particularly important, on the one hand, to develop sector-specific reporting guidelines, addressing both state and non-state actors, and, on the other hand, to involve lawyers in the process. The legal profession plays a key role in strengthening legal reforms and informing legal debates in order to advance human rights in relation to sensitive issues, such as the abolition of the death penalty or the rights of sexual minorities. Involving lawyers in the process can have a very positive impact on the drafting of actionable recommendations and the implementation and monitoring of these recommendations.
Chapter Five
Conclusions and Recommendations
Created in 2006 by a resolution of the UN General Assembly, the Universal Periodic Review (UPR) constitutes a new environment of inter-state dialogue on human rights, providing a peer-to-peer review mechanism of states’ human rights obligations. Designed to complement and support other human rights mechanisms, such as the treaty bodies, the UPR has been compared to the ‘missing political component’ of the UN system, through which international human rights recommendations gain political traction. Currently informed by a wide range of states and non-state actors, the UPR has created an unprecedented data set on states’ human rights compliance. The UPR recommendations together with the other international human rights recommendations are intended to complement countries’ national human rights action plans.
This report assesses the role the UPR has played so far in advancing human rights in the administration of justice. The core concept of ‘human rights in the administration of justice’ refers here to the
independence of judges, lawyers and prosecutors, as well as the guarantees of a fair trial, as set forth in Article 14 of the ICCPR. The focus of the report is on the independence of legal professionals, which has been elaborated on by a number of standards. Among those, the ‘building block’ of norms on the independence of justice is constituted by the 1985 Basic Principles on the Independence of the Judiciary, the 1990 Basic Principles on the Role of Lawyers, the 1990 Guidelines on the Role of Prosecutors, the 1999 Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors and the 2002 Bangalore Principles for Judicial Conduct (‘Basic Principles and Guidelines’).
The report addresses the potential of the UPR in strengthening the international legal framework of human rights in the administration of justice (Chapter Two) and supporting states’ efforts in implementing human rights in their justice system (Chapter Three). The report then assesses the relevance of the UPR recommendations relating to the administration of justice, and the involvement of lawyers in the process, in the specific case studies of ten jurisdictions (Chapter Four).
At the time the UPR started in 2008, the international legal framework governing human rights in the administration of justice was already particularly complex, while implementation has, for a long time, remained patchy. Chapter Two of the report sheds light on some key features of the UPR that would provide a justification for lawyers genuinely to engage in this sui generis human rights mechanism to further enhance their own protection and working conditions.
First, the UPR puts states, rather than independent experts, in a position to review the
implementation of human rights obligations largely defined. Thus, states are in a position to translate international norms into concrete recommendations. While only a few states have so far explicitly referred to the UN Basic Principles and Guidelines, the UPR has tremendous potential to raise awareness about these standards and consecutively bring them into practice. The more states refer to international standards in their recommendations, the greater the chance that these standards will be integrated in national human rights action plans and implemented in countries’ justice systems.
Through the repetition of the same recommendations by a number of countries over time and their actual implementation, the UPR has the potential to consolidate and substantiate human rights standards governing the administration of justice as customary rules of human rights.
Secondly, the UPR may foster in an unprecedented manner a dialogue on human rights between the legal community and states. Among the stakeholders to be involved in the UPR process, the UPR guidelines for submissions list, ‘inter alia, NGOs, national human rights institutions, human rights defenders, academic
institutions and research institutes, regional organizations, as well as civil society representatives’. This inclusive approach is a key asset of the mechanism: involving the right stakeholders in the process is likely to make the UPR process more impactful, increase compliance, as well as provide for better monitoring.
Although not mentioned in the Guidelines, legal professionals are, however, undoubtedly among the actors to be involved in the UPR process. The fact that they assume a specific responsibility to uphold national and international human rights standards would justify their involvement in a more systematic manner. Lawyers know at first-hand how the legal system works on a day-to-day basis. At the same time they should be the first advocates of their own independence and an independent justice system. They should therefore be involved in the recommendations addressing the justice system and law reform. The legal community, sufficiently trained and legally equipped in human rights, has a key role to play to foster changes in the legal culture on the ground.
As evidenced in Chapter Four, within the limits of the ten country cases undertaken here, the participation of lawyers has remained limited until now. This is mostly due to the lawyers’ lack of awareness about the mechanism or human rights in general. From interviews conducted by the IBAHRI, lawyers engaging in human rights do see the role of the legal community in the process not only as relevant, but central to their duty to enhance human rights and the rule of law. They also see the value of the UPR as a significant avenue to draw the attention of the international community to human rights violations in the country. Less mentioned, but key, was the opportunity to liaise with other stakeholders nationally and internationally to foster change. Indeed when the UPR has triggered some positive impact, this was most found, in the ten countries considered, in relation to fostering synergy and cooperation among the government and civil society, or strengthening the local institutional framework for the protection and realisation of human rights. The IBAHRI therefore concludes that one of the main achievements of the UPR has been to trigger a truly multi-stakeholder process in the realisation of human rights.
Chapters Three and Four provide qualitative and quantitative insights on the extent to which the administration of justice has been addressed over the first 19 sessions of the UPR, from 2008 to 2014. Chapter Three scrutinises the 1,256 recommendations made during the UPR relating to the independence of judges, lawyers and prosecutors.
The IBAHRI findings should be appraised in the context of a general assessment of the UPR, rather than a mere sectoral analysis of the UPR recommendations. The fact that states tend to overlook the separation of powers and the role of primary institutions, and especially the role of the court systems, in the protection of human rights, is a concern affecting the mechanism as a whole. Also, the fact that states do not address the role of legal professionals as actors that can actually play a role in the implementation of the recommendations, and tend to focus on the ‘what’ to achieve rather than the ‘how’, is a concern. It is also an issue that states distance themselves from the universal human rights instruments and the recommendations identified by the human rights mechanisms of the same system. It is with this broader perspective in mind that the findings of the report should be read.
The work of the Special Rapporteur over a period of 20 years shows how often judges and lawyers are exposed to harassment, intimidation, threats, assault, including physical violence and murder, arbitrary arrest and detention, restrictions on their freedom of movement, or economic or other sanctions, for measures they have taken in accordance with recognised professional obligations.
These communications and reports have evidenced how serious the attacks against lawyers and judges
are in countries facing major human rights challenges. Many of these individual cases of violation reflect a more systemic problem in the justice system of the country.
Between 2008 and 2014, the number of communications issued by the Special Rapporteur on the
Independence of Judges and Lawyers can be estimated at almost 600, addressing more than 100 different countries. The communications addressed a wide array of violations of the independence of the justice system from cases of arbitrary sanctions and physical attacks against legal professionals to the creation of special courts for expedited trials. In 2015, the HRC condemned the ‘increasingly frequent attacks on the independence of judges, lawyers, prosecutors and court officials’. Concerns and recommendations expressed by states at the UPR during the same period reflected a different perception of the scale of the problem. Out of the 38,298 recommendations made at the UPR over six-and-a-half years, the independence of lawyers received only 72 recommendations. The independence of prosecutors was mentioned 126 times, while 1,162 recommendations addressed the fight against impunity and called the state undergoing review to prosecute. Finally, if the independence of the judiciary attracted more than 1,000 recommendations, a third of the recommendations were general and tackled the ‘independence’,
‘impartiality’ and/or ‘effectiveness’ of the judiciary, or the problem of ‘judicial corruption’, in broad terms. Overall, only 40 countries received a fair signal – more often in general rather than specific terms – about shortcomings in their justice system, at the UPR. This tendency to overlook the far-reaching impact on human rights of the independence of justice and deficiencies in court systems is corroborated by eight out of the ten countries cases undertaken in this report. In these eight countries considered in Chapter Four, the IBAHRI found that the administration of justice did not receive the attention it should have received, in light of the existing challenges on the ground.
‘impartiality’ and/or ‘effectiveness’ of the judiciary, or the problem of ‘judicial corruption’, in broad terms. Overall, only 40 countries received a fair signal – more often in general rather than specific terms – about shortcomings in their justice system, at the UPR. This tendency to overlook the far-reaching impact on human rights of the independence of justice and deficiencies in court systems is corroborated by eight out of the ten countries cases undertaken in this report. In these eight countries considered in Chapter Four, the IBAHRI found that the administration of justice did not receive the attention it should have received, in light of the existing challenges on the ground.