Chapter Three looks at the recommendations made at the UPR over 19 sessions to assess in quantitative and qualitative terms, how these recommendations could advance human rights in the administration of justice in practice. Overall, the IBAHRI concludes that regardless of how actionable and progressive the UPR recommendations are, their monitoring is suboptimal. This could be remedied by consolidating a ‘model report’ that outlines the different components of the administration of justice in light of international human rights standards and norms. Such an approach would highlight not only the importance of the justice system in the realisation of all rights, but also the possibility to turn recommendations into more concrete actions.
The following conclusions can be reached from the study of the recommendations.
The administration of justice should receive more attention at the UPR and be addressed in line with other international human rights mechanisms
The IBAHRI estimates that, out of the 38,298 UPR recommendations made over seven years, slightly more than three per cent addressed the independence of judges, lawyers and prosecutors (military and juvenile justice included) and less than two per cent the guarantees of a fair trial.
• A third of the recommendations addressing the independence of the judiciary are general.
• The independence of lawyers is only sporadically mentioned and the role of professional associations of lawyers is mentioned even less.
• The independence of prosecutors is barely addressed, in comparison to the great number of recommendations calling for prosecutions and investigations.
• Key factors impacting on the independence of judges, lawyers and prosecutors are addressed, such as training, the appointment process, material resources and security of tenure.
• Key attributes of the court system such as it being transparent, representative and participatory are too rarely mentioned.
• Explicit reference to the UN Guidelines on the Role of Judges, Prosecutors and Lawyers and the recommendations of other UN human rights mechanisms, including the Special Rapporteur, is only made sporadically.
In light of the above, the IBAHRI makes the following recommendations to recommending states:
• When making recommendations, refer to the UN Basic Principles and Guidelines and prior recommendations and good practices in the administration of justice as identified by international human rights mechanisms, especially the Special Rapporteur on the independence of judges and lawyers.
• Call for judges, prosecutors and lawyers to be recognised as subjects of specific protection measures to ensure that they carry out their professional duties without any external or internal interference.
• Call for the administration of justice to be transparent, accessible to all (through the provision of legal aid where necessary), participatory and representative of the population it serves as a requirement to ensure access to justice by vulnerable groups.
• Call for the state under review to allocate material and financial resources to the justice system, and ensure that the judiciary be given an active involvement in the preparation of its budget and enjoy autonomy in the allocation of its resources, while remaining accountable to the other branches of power for any misuse.
• Call for the legal community to receive continuous legal training on key human rights issues encountered in the country, in accordance with the recommendations of the Special Rapporteur, and to be involved in law reform, especially in the revision of criminal legislation.
• Call for the independence of prosecutors and respect for international human rights standards in the fight against impunity and terrorism.
Shortcomings in the implementation and monitoring recommendations on the administration of justice: a renewed challenge in the context of Sustainable Development Goal 16
The absence of reporting guidelines has a detrimental effect on the quality of reporting and
monitoring. It results in inconsistent formats and discrepancies between states and NGOs reporting, which renders the reconciliation of information challenging. The UPR recommendations should afford specific attention not only to the what, but also to the how to achieve a particular result. The reporting process in turn should focus on the impact and progress achieved. For instance, the adoption of an ethics code or the development of a training programme should be monitored so as to ensure that the legal profession’s respect for ethics or knowledge of human rights has improved.
The IBAHRI recommends that:
• states under review should use the Basic Principles on the Independence of the Judiciary, the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors as benchmarks for monitoring the administration of justice, including the implementation of the UPR recommendations relating to the administration of justice.
• the OHCHR should disseminate the United Nations Rule of Law Indicators in order to assist states and NGOs in the monitoring of human rights in the administration of justice; and foster the use of reporting guidelines at the UPR by states and NGOs.
Chapter Four
Country Analyses
Chapter Four provides an analysis of the role of the UPR in advancing human rights in the
administration of justice in ten countries. For each country, the IBAHRI assessed the administration of justice in that country within the 18 months prior to or following its review by the HRC (see Chapter One: Introduction).
In looking more closely at the ten countries, it is not the aim of this chapter to draw overarching conclusions on the process and the impact of the UPR. Rather, it aims to consider different scenarios in order to understand the strengths and weaknesses of the UPR process, which depend upon a number of criteria, such as: the extent to which the state cooperates with international and regional human rights systems; the existence of a UN country mandate; the content and the source of the information submitted to the HRC in the course of preparing the report; and how developed the justice system and the political situation in the country are, that is, whether the country is at the beginning of a political transition or whether it is a long-established democracy.
Each analysis assesses:
• the relevance of the UPR recommendations pertaining to the administration of justice in light of the information on the country justice system available to states at the time the UPR took place;
• the level of awareness of the UPR among legal professionals; and
• the involvement of lawyers’ organisations in the UPR process, whether or not they were formally consulted by the government.
4.1 Methodology
The UPR process of each country was assessed in a systematic manner using quantitative and qualitative indicators:
• The number of NGOs making concrete recommendations on the administration of justice and the scope of the information submitted to the HRC (ie, number of issues addressed) were used to assess the extent to which objective, reliable and comprehensive information on the administration of justice was available to recommending states at the time of the review.
• The relevance of the UPR recommendations concerning the independence of the judiciary, lawyers and prosecutors was assessed through the percentage of recommendations
relating to the administration of justice (quantitative dimension) and in light of the IBAHRI recommendations, prior human rights mechanisms’ recommendations and other authoritative sources (qualitative dimension).
• The level of awareness of lawyers about the UPR and their level of involvement (ie, by direct consultation or voluntary engagement) was assessed through face-to-face and telephone interviews with representatives of the national bar associations, when possible and/or independent lawyers.
• The level of implementation and monitoring of the recommendations on the ground was assessed using the UPR Info Mid-term Implementation Assessment (MIA) reports and national mid-term reports, when existing.
For each indicator, the following colour code was used:
The four main sources of information presented below were examined in order to assess the relevance of the UPR recommendations.
Recommendations of the IBAHRI fact-finding missions
The IBAHRI undertakes fact-finding missions to countries where there are signs of threats to, or deterioration of, the rule of law, human rights or the independence of the legal profession.
Mission reports contain findings and recommendations addressing the recommending states and the international community. Each fact-finding mission has specific terms of reference. In seven of the countries under study – Myanmar, Hungary, Egypt, Democratic Republic of the Congo (DRC), Zimbabwe, Malawi and Venezuela – the aim of the mission was to assess the status of judges and lawyers and their capacity, in general, to carry out their mission freely. In the three other countries – Azerbaijan, Swaziland and Brazil – the mission was more specific and focused on the criminalisation of freedom of association in Azerbaijan, the Suppression of Terrorism Law in Swaziland and the criminal justice system in Brazil. In most cases, specific attention was paid to the criminal system and prosecutors, and the effective role of professional organisations of lawyers in protecting their members and enhancing the rule of law and human rights.
The core objective of the IBAHRI’s fact-finding missions is to gather facts and re-establish a complete chain of causes responsible for major deficiencies in the administration of justice as well as the promotion and protection of the individual rights of legal practitioners in the country. The primary legal instruments referred to are the UN Basic Principles and Guidelines.
International human rights mechanisms recommendations
The underlying rationale of the UPR is to strengthen other international human rights mechanisms.
For each country, recommendations addressed by the treaty bodies and the special procedures and relating to the administration of justice were identified using the Universal Human Rights Index.
Only the recommendations made within the five years prior to the review of each country were considered as relevant for the assessment of the UPR recommendations received by this country.
Depending on the country’s level of ratification and diligence in reporting, the volume of recommendations made by the treaty bodies can vary widely from one country to another. When the country has demonstrated poor cooperation with UN mechanisms, the UPR de facto substitutes those mechanisms.
Satisfactory Fair
Unsatisfactory Not documented
NGOs’ and other stakeholders’ information
Each country analysis in this chapter takes into account the national and mid-terms reports submitted by the state under review; the OHCHR report compiling information from UN bodies; the OHCHR report compiling submissions made by civil society actors, national human rights institutions and other stakeholders; and the UPR Info MIA reports, when available.
A quick assessment was made beforehand, comparing recommendations made by NGOs and recommendations reported by the OHCHR. Results from this exercise suggested that NGOs do not systematically make clear recommendations, and might only submit facts. It also appears that most of the content of NGOs’ messages is reproduced in the OHCHR report, although the specific recommendations made by NGOs are not always reproduced.
Among lawyers’ organisations, the organisation Lawyers for Lawyers has submitted information on the status of the legal profession and recommendations related thereto, for about 12 states since 2011. While interviewed, they testified the necessity to be in direct contact with the
diplomatic missions to voice their recommendations. They also experienced difficulty in seeing the recommendations on legal professionals that had been adopted.
wjp ruLeofLawindicators
The WJP’s Rule of Law Index210 is a quantitative assessment of perception of the rule of law in states, which started in 2009. It measures how the rule of law is experienced by ordinary people in 99 countries around the globe. The WJP rule of law indicators have been available since 2012 in relation to nine key factors, namely limited government powers, absence of corruption, order and security, fundamental rights, open government, regulatory enforcement, civil justice, criminal justice and informal justice. The WJP gathers a number of country information facts and establishes a rating of the country’s performance, in comparison with the rating of countries: of its geographical group (eg, Georgia scores 0.5 (on a scale where 0 is the lowest and 1 the best performance), while the average of the region (Eastern Europe and Central Asia) is 0.6); and of the economic group (eg, the United Kingdom ranks 0.5 in access to justice while the average in high-level-income countries is 0.8).
4.2 Findings
Asia
myanmar
The HRC reviewed the human rights situation in Myanmar for the first time in January 2011 before the country embarked on a process of reform. The second review took place in November 2015, again at a cross-road, a few days before the general elections. Historically, Myanmar’s cooperation with international human rights mechanisms has been limited. Myanmar has yet to become
210 http://worldjusticeproject.org/rule-of-law-index.
party to the ICCPR, the International Covenant on Economic, Social and Cultural Rights,211 the Convention against Torture and the Rome Statute of the International Criminal Court establishing the International Criminal Court. Myanmar has, however, signed and ratified a number of treaties, including, inter alia, the four Geneva Conventions (but not the additional protocols), the Genocide Convention, the Convention on the Rights of the Child (but not its optional protocol on the
involvement of children in armed conflict).
The country has cooperated to some extent with the Special Rapporteur on the situation of human rights in Myanmar (‘Special Rapporteur on Myanmar’), which was created in 1992. However, the government has not accepted visits from other HRC Special Procedures. A few months before the first UPR, in an official response to the 2010 report presented by the Special Rapporteur on Myanmar to the General Assembly of the United Nations, the government of Myanmar ‘categorically reject[ed]
the entire report and dissociat[ed] itself from it’.212 In this context, the fact that Myanmar accepted 77 recommendations out of 197 UPR recommendations, at the first UPR, could have been seen as a modest but tangible step towards a human rights dialogue at the international level. However, the impact of the first UPR has remained limited and the situation has degraded in many aspects. The human rights situation in the country – particularly for ethnic and religious minorities – warranted the extension of the Special Rapporteur mandate at the UN HRC until now.
In a fact-finding mission conducted by the IBAHRI in 2012, the high-level delegation shed light on systemic and far-reaching impediments to the democratic process in Myanmar.213 The mission’s report reassessed the key priorities at legislative and institutional levels to establish the separation of powers and the independence of judges and lawyers. A reform of the judiciary to ensure independence and impartiality plus accountability on the part of the military were two of the four ‘core human rights elements’ the Special Rapporteur identified as necessary for the democratic transition to which the government of Myanmar has committed.214 As demonstrated below, the independence of the judiciary and the accountability of the military received less attention at the UPR than the two other core elements, namely the release of all
prisoners of conscience and the review and reform of specific national legislation, in compliance with international human rights standards. The vast majority of the UPR recommendations tackled the ratification of international instruments, minorities’ rights and freedom of opinion and expression.215 At the two UPRs, the lack of separation of powers was hardly even mentioned. The UN Country Team (UNCT), in preparation for the 2011 UPR, had submitted a report to the HRC, which explicitly presented Myanmar as a ‘military government’.216 The report clearly established that the military has the power to veto
211 Myanmar has signed but not yet ratified the International Covenant on Economic, Social and Cultural Rights.
Information on the status of reporting is available at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/
countries.aspx?CountryCode=MMR&Lang=EN.
212 UNGA Res 65/368 (15 September 2010), UN Doc A/RES/65/368, Annex, para 10.
213 IBAHRI, The Rule of Law in Myanmar: Challenges and Prospects (IBAHRI 2012).
214 UNGA, Progress report of the Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana (10 March 2010), UN Doc A/HRC/13/48, para 14.
215 Source: UPR Info statistics, available at www.upr-info.org/database/statistics/index_sur.php?fk_sur=119&cycle=.
216 UNCT, Submission by the United Nations Country Team Myanmar for the Office of the High Commissioner for Human Rights’ Compilation Report Universal Periodic Review Submission to the Human Rights Council (UNCT 2010), 2. OHCHR,
‘Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with para 15 (b) of the annex to Human Rights Council resolution 5/1 – Myanmar’ (15 November 2010) UN Doc A/HRC/WG.6/10/
MMR/2, paras 6 and 22.
legislation, while the Supreme Court has no jurisdiction over military justice or constitutional matters. The Ministry of Home Affairs, the focal ministry for the UPR process, is itself headed by a military officer. Despite these well-known facts, none of the UPR recommendations, neither in 2011 nor in 2015, tackled the issue of separation of powers in the country and interference by the military in executive, parliamentary and judicial powers. Only a few states echoed the concerns raised by the UNCT and the Special Rapporteur as to the impunity and immunity of military personnel.217 Recommendation 107.6 made by New Zealand, in 2011, called upon the state to ‘repeal Art.445 of the 2008 Constitution, which effectively grants total immunity to states and military personnel to act with impunity, even for criminal offenses’.218
Similarly, the independence of the judiciary was addressed in a superficial manner in 2011 and was almost absent in 2015. In 2011, five states addressed the independence of the judiciary, all of which have done so in very general terms.219 The government accepted the recommendation made by Italy, but rejected those made by Canada, Ireland, Turkey and New Zealand. While evidence has been submitted of the persistent lack of independence of judges,220 some of which are even appointed by the military, only one recommendation called upon Myanmar to guarantee that judges can
‘perform their professional functions without improper interference’.221 Almost paradoxically, states put a heavy emphasis on the release of political detainees222 and the need for establishing and then strengthening a national human rights commission.
In 2011, in response to recommendations urging for a democratic legislative reform, Myanmar agreed to ‘amend its domestic law to ensure that people in the country are able to enjoy their fundamental rights’.223 However, at the same time, it rejected the recommendation made by New Zealand to ‘repeal
217 UNHRC, Report of the Working Group on the Universal Periodic Review – Myanmar (24 March 2011) UN Doc A/HRC/17/9, para 19 (Sweden), para 59 (Ireland). UNHRC, Report of the Working Group on the Universal Periodic Review (10 November 2015) UN Doc A/HRC/WG.6/23/L.9, para 5.81 (Lithuania).
218 UNHRC, Report of the Working Group on the Universal Periodic Review – Myanmar (24 March 2011) UN Doc A/HRC/17/9, Rec 107.6.
219 Recommendation 104.37 (Italy): ‘Ensure the independence and impartiality of the judiciary and guarantee due process of law’; Rec 107.37 (Canada): ‘Thorough reform of the judiciary to ensure compliance with due process and fair trial standards, including independence and impartiality’; Rec 107.38 (Ireland): ‘Initiate a review and reform of the judiciary to assure its independence and impartiality, and that specific measures are taken to ensure that military and police personnel respect international human rights and humanitarian law’; Rec 107.70 (Turkey): ‘Seek technical assistance from the United Nations to reform the judiciary, to establish accessible judicial remedies as well as to alleviate poverty’;
219 Recommendation 104.37 (Italy): ‘Ensure the independence and impartiality of the judiciary and guarantee due process of law’; Rec 107.37 (Canada): ‘Thorough reform of the judiciary to ensure compliance with due process and fair trial standards, including independence and impartiality’; Rec 107.38 (Ireland): ‘Initiate a review and reform of the judiciary to assure its independence and impartiality, and that specific measures are taken to ensure that military and police personnel respect international human rights and humanitarian law’; Rec 107.70 (Turkey): ‘Seek technical assistance from the United Nations to reform the judiciary, to establish accessible judicial remedies as well as to alleviate poverty’;