The administration of justice: a question of priority?
The UPR Info database ranks ‘justice’ as the fourth-most-common issue referred to by UPR recommendations, with 7.7 per cent of the total number of UPR recommendations. These recommendations are also among the recommendations that are the less implemented.148 Considering the role legal professionals can play to invert this trend, the IBAHRI assesses here attention made to legal professionals in the UPR recommendations.
As mentioned in Chapter One, the role of legal professionals in the protection of human rights, and their need for specific protection, were identified as key priorities for the protection of human rights three decades ago. The administration of justice and the independence of legal professionals constitute the backbone of the human rights system as a whole. While the Special Rapporteur on the independence of judges and lawyers has evidenced for over 20 years the need for further compliance with the UN Basic Principles and Guidelines, the findings presented below reveal that more
awareness-raising is necessary in relation to these standards.
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Figures 2 and 3 present the global number of UPR recommendations addressing the administration of justice (Figure 2) and how the independence of lawyers, judges and prosecutors – including in the specific cases of the military and juvenile justice systems – and the guarantees of a fair trial rank compared to other topics raised at the UPR (Figure 3).
Under the classification described above, 273 recommendations were found addressing ‘justice’
in general terms, without referencing the independence or impartiality of the system as well. A total of 1,256 recommendations – that is, slightly more than three per cent of the total number of recommendations – addressed the independence of judges, including military and juvenile justice systems, and the independence of lawyers and prosecutors. Then 684 recommendations were identified relating to guarantees of fair trial, that is, slightly less than two per cent of all UPR recommendations.
Figure 2: Global number of UPR recommendations relating to the administration of justice by topic (over the first 19 UPR sessions, 2008–2014)
Topic All regions All regions (per cent)
Justice (general) 273 0.71
Independence of the judiciary 838 2.19
Juvenile justice 185 0.48
Military justice 44 0.11
Independence of prosecutors 117 0.31
Independence of the legal profession 72 0.19
Fair trial guarantees 684 1.79
Others 36,085 94.22
148 UPR Info, Beyond promises: The impact of the UPR on the ground (UPR Info 2014), 31.
Figure 3: Number of UPR recommendations by topic (over the first 19 sessions of the UPR, 2008–2014)
Source: UPR Info statistics (blue)/IBAHRI classification of recommendations (purple)
While the UPR could, in theory, cover the entire spectrum of human rights, states in practice focus on a few issues and have rarely been making more than five recommendations. The speaking time allotted to any given state for its statement during the interactive dialogue is also limited to less than two minutes. The overall picture of topics raised at the UPR is undoubtedly affected by these considerations. The identification of priority issues by states will most likely become more and more stringent as a number of states have recently decided to exercise self-restraint and limit themselves to two recommendations. This development is currently taking place in order to avoid the quantity of recommendations, which has been increasing between the 1st and 19th session (see Figure 4 below), coming at the expense of their implementation and monitoring.
Despite a necessary priority setting, the fact that only three per cent of all UPR recommendations refer to the court system and legal practitioners is a source of concern for the IBAHRI, for the two main reasons presented below.
First, the administration of justice has an impact on the realisation of all human rights. Even if recommendations pertaining to the court system or the independence of judges, lawyers and prosecutors address these issues as an end in itself, they de facto relate to and affect a broad scope of human rights issues listed above. That is because the legal community has an important role in protecting the population from abusive practices of the executive or the military, as well as in facilitating law reform, particularly in the field of criminal law. In light of this, the fact that 95 per cent of recommendations fail to address the challenges facing the legal profession or the judicial protection of human rights remains striking. The IBAHRI is concerned that the UPR process
addresses human rights issues by focusing on ‘what’ to achieve, rather than ‘how’ to achieve it. As a consequence, too few linkages are made between the protection of human rights and the role of lawyers and the legal profession in general. The existence of specialised courts, the training of the legal professions in human rights, the representativeness of the judiciary or the involvement of lawyers in legislative reforms need to be acknowledged as integral components of human rights protection. Furthermore, despite the primary role they should play in the protection of human rights, the consideration given by states to national professional organisations of lawyers pales in comparison to the attention received by national human rights institutions (around eight per cent of the issues addressed in the recent sessions149).
Secondly, since the creation of its mandate in 1994, the office of the Special Rapporteur on the independence of judges and lawyers has been demonstrating the nexus existing between violations of human rights and attacks on the legal professionals.150 As presented by Figures 2 and 3 above, recommending states have done little to follow the Special Rapporteur’s lead and diminish the discrepancy between the attention afforded to the protection of the independence of legal professionals as opposed to violations of human rights in general. Case studies presented in Chapter Four corroborate this assessment. They demonstrate that in eight out of ten countries that face major challenges in administrating justice, issues relating to legal professionals were not identified as a priority and received little or very general recommendations in the UPR process.
Finally, the IBAHRI notes with concern that the number of CTAs/recommendations addressing the independence of judges, lawyers and prosecutors has been decreasing since the 7th session of the UPR, while the total number of UPR recommendations has been increasing continuously (see Figure 4).
Reasons for this could have been sought in the increasing range of topics that are being discussed in the UPR process. This would have explained the overall increase in the number of recommendations, while the number of recommendations addressing one particular topic, that is, the independence of legal profession, was relatively constant. However, a similar comparison looking at recommendations on fair trial rights shows that those follow the increasing trend of the total number of UPR recommendations.
Another possible explanation is that recommending states may tend primarily to address fair trial rights and the fight against impunity, rather than the independence of legal professionals.
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In quantitative terms, the largest number of recommendations concerning the administration of justice was received by Asia (584) and Africa (526). It should be noted, however, that the two regions also received the greatest number of recommendations overall, with 11,854 and 10,564 recommendations respectively over the period considered. It therefore appears more appropriate to consider the recommendations relating to the administration of justice in relative rather than absolute terms. The GRULAC and the EEG present the highest percentage, with 416 recommendations for a total of 4,230 recommendations and 264 recommendations for 6,200
recommendations respectively. These groups are followed by Africa (526 recommendations for 10,564 recommendations), Asia (584 recommendations for 11,854 recommendations) and the WEOG (150 recommendations for 5,450 recommendations).
149 See UPR Info statistics, available at www.upr-info.org.
150 See ‘Independence of the legal profession’ below.
Figure 4: Number of recommendations relating to the administration of justice by topic and by region (over the first 19 UPR sessions)
The IBAHRI observes that while the number of recommendations varies significantly among regions, the concerns expressed by recommending states pertaining to the general justice systems of their peers are, in broad terms similar (see Figure 5 above). Conversely, while the need for a specialised juvenile justice system151 attracted recommendations in all the regions, issues related to military justice were mostly addressed to the Latin American and Caribbean Region (GRULAC).
Within the administration of justice, for each region the ratio of recommendations addressing the independence of the judiciary and guarantees of a fair trial tends to be the same. In the EEG, however, the independence of the judiciary is addressed twice more than guarantees of a fair trial.
Concerns regarding states in transition in Eastern and Central Europe were also pointed out by the Special Rapporteur a decade ago.152 This may find some consonance in the UPR recommendations today and may partly explain the particular attention given to the independence of the judiciary, even before guarantees of a fair trial, and criminal law issues.
The IBAHRI notes with concern that the percentage of recommendations addressing the independence of lawyers is marginal in all regions. Looking at the 72 recommendations
151 Recommendations on juvenile justice addressed in particular appropriate sentences and procedural rules, adequate facilities separated from adults, human rights trainings for the stakeholders of the juvenile justice system, the creation of special courts, free legal representation for children migrants, etc.
152 UNCHR, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2004) UN Doc E/
CN.4/2004/60, 11 under para 26.
referring to lawyers, the IBAHRI concludes that lawyers are not perceived as subjects in need of specific protection. In some cases, they are incidentally addressed in recommendations calling on states to ensure legal counsel. On the basis of interviews conducted with state delegates, it appears that some recommending states assimilate lawyers to human rights defenders and implicitly include them in their recommendations that refer to human rights defenders.
However, because lawyers are entrusted with a special responsibility to ensure access to justice and inform the population about the law, they also need to be given appropriate protection in exercising their duties. The Basic Principles on the Role of Lawyers spells out the need for protection of lawyers, as well as the rights and duties of the legal profession (see Chapter One:
Introduction, under ‘Thematic scope’).
As mentioned previously, the role of professional organisations of legal professionals is key to ensure the protection, human rights education and ethics of the legal profession. Regrettably, professional organisations of lawyers were barely mentioned until recently. For instance, Hungary called upon Ukraine for the ‘adoption of a law on the bar association that recognizes the right of the bar to self-government and guarantees proper representativeness by regular elections and regional representation’. The Netherlands also called upon Maldives to ‘actively support the establishment of an independent bar association’. As lawyers’ organisations are getting more engaged in the UPR, more recommendations have recently been made that address bar associations, for example in Iran and Myanmar.
keepingupthefightagainstimpunityandterrorisminahumanrightsframework
The IBAHRI is concerned by the discrepancy between the strong signal sent by recommending states to fight impunity and terrorism and the few references to the protection of human rights in that context. On the one hand, recommending states have addressed the problem of military and special courts, especially in the GRULAC, and reassessed the principle that civilians and human rights cases cannot be heard by a military or security court. On the other, the UPR recommendations only refer to the independence of prosecutors 126 times, while 1,662 recommendations call upon states to prosecute and investigate human rights violations. At the beginning of the Millennium, the fight against terrorism was highlighted by the Special Rapporteur on the independence of judges and lawyers as a major threat to individuals’ security and the independence of the judiciary. The Council of Europe has also flagged up the abusive powers given to prosecuting services as one of the major issues in the European region.153
Furthermore, neither lawyers nor professional organisations were mentioned in
recommendations relating to criminal law reforms. The IBAHRI identified 2,561 CTAs relating to the revision of criminal law, most of which concern the abolition of the death penalty, the decriminalisation of same-sex relationships or freedom of expression, or the criminalisation of torture or gender-based violence. Some of these recommendations challenge specific legal definitions (eg, the criminalisation of torture), while some require major changes in the legal culture (eg, abolition of the death penalty). In both situations, the legal community can contribute in fostering law reform through bolstering and engaging in legal debates. They also
153 Council of Europe, State of democracy, human rights and the rule of law in Europe (Council of Europe 2014), 23.
play a key role in interpreting the law de lege ferenda, leading for instance to abandon capital punishment de facto, despite existing legal provisions.
theneedtoincreasethemomentum
The IBAHRI observes that the main donors on projects relating to legal and judicial developments are more likely to make recommendations regarding the administration of justice (see Figure 6).
Donor countries in specific areas are strategically placed and enjoy access to sufficient information that enable them to make action-based and progressive recommendations, as well as to assist the country under review in their implementation phase.
In their interviews with the IBAHRI, most of the main recommending states highlighted that the administration of justice had not been raised as a predefined priority issue at the UPR. Rather, they made recommendations on the administration of justice based on a case-by-case assessment of the human rights issues in the country at the time of the review. They also recognised the far-reaching nature of the administration of justice in the protection of human rights.
Other states in the ranking presented below have a clear political agenda, and are lead countries, on the topics of the ‘independence of judges and lawyers’ (Hungary, Australia and Mexico) or the
‘administration of justice’ (Austria) at the level of the HRC.
Figure 5: Top 15 recommending states on the independence of judges, lawyers and
prosecutors and the respective amount of official development assistance (ODA) spent in the
‘legal and judicial development’ sector
ODA spent in ‘legal and judicial development’ (millions of US$)
Key issues at a glance
UPR recommendations reflect how states are viewed by those who choose to comment on their human rights performance. As a result, the UPR process can provide a picture of the main challenges facing administration of justice worldwide, regionally and nationally. The following paragraphs consider the recommendations concerning the independence of judges (838), lawyers (72) and prosecutors (117), not related to the specific cases of military or juvenile justice.
As presented in Chapter One, the classification of the recommendations was made using a list of topics building on the UN Basic Principles and Guidelines, General Comment No 32 of the Human Rights Committee and the reports of the Special Rapporteur. Among these topics, some are more general, such as transparency, corruption and material and human resources. Other topics are more specific and tackle the training of the legal profession, the appointment to and composition of the profession, the ethics of the profession, the competences of the court and the creation or dismantlement of a court.
The IBAHRI notes that the great majority of the recommendations call upon the state under review to train judges, lawyers and prosecutors on human rights (231 CTAs). This issue is addressed in a separate paragraph, after looking at the specific issues related to the independence of judges, lawyers and prosecutors successively.
independenceofthejudiciary
A global overview of the recommendations relating to the independence of the judiciary reveals that a number of key concerns raised by the Special Rapporteur are not sufficiently addressed at the UPR.
This is corroborated by a regional overview of the UPR recommendations: the limited number of specific recommendations and the limited number of countries addressed in that respect does not exhaust the major challenges encountered in the regions.
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The IBAHRI observes that among the 838 recommendations addressing the independence of the judiciary (military and juvenile justice systems excluded), one-third of the recommendations addressed, either through general or specific prescriptions, the ‘separation of powers’ (48 CTAs), or the ‘independence’, ‘impartiality’, ‘efficiency’ and/or ‘accountability’ of the judiciary (282 CTAs).
The remaining recommendations addressed, in the proportion identified in the graph below, the appointment and composition of the judiciary, transparency of the court system, resources and security of tenure, ethics and the fight against corruption, courts’ competences, cooperation with the Special Rapporteur, creation or dismantlement of courts, protection measures, disciplinary process, non-discrimination and equal access to justice.
Figure 6: Classification by issue of the UPR calls to action (CTAs) relating to the independence of the judiciary (IJ) (over the 19 first UPR sessions)
Between 2008 and 2014, the number of communications issued by the Special Rapporteur on the independence of judges and lawyers can be estimated to almost 600, addressing more than 100 different countries. Communications issued 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.
Concerns and recommendations expressed by states at the UPR during the same period did not reflect the scale of the problem. Over this period, only 40 countries received a fair signal – more often in general rather than specific terms – about shortcomings in their justice system, at the UPR.
On the one hand, the IBAHRI observes that some of the most recurring problems identified by the Special Rapporteur in the annual reports are corroborated by the UPR recommendations, albeit on a lesser scale. Thus, besides the training of legal professionals, primary sources of the concerns expressed at the UPR regard: the material, financial and human resources available to the administration of justice (68 CTAs); the transparency of the court system (63 CTAs); and the composition of the judiciary and the judicial appointment process (63 CTAs).
All three issues have been given special attention by the Special Rapporteur. They were also
highlighted in the 2014 IBAHRI thematic paper The Independence of the Judiciary: some recent problems.
The IBAHRI paper sheds light on a number of instances of direct and indirect interferences by the executive in the judiciary occurring worldwide, among them measures as direct as the removal of judges. As described in the paper, other practises include overseeing the appointment process, appointing ‘contract judges’ – or more subtly appointing judges from the prosecution services, who would supposedly have positive attitudes towards the prosecution. Transparency was also given particular importance in the report, insofar as tackling the root cause of the deficiencies of the justice system depends on how transparent the system is.154 Finally, the IBAHRI report refers to cases of financial starvation of the judicial branch, infringing states’ duty to provide the judiciary with the necessary human, financial, and material resources.155 In response to this and in relation to the problem of judicial corruption,156 in 2009 the Special Rapporteur recommended that a fixed percentage of the national budget be allocated to the judiciary. He also stated that in the event of an economic crisis, priority must be given to the justice sector.157
The need to fight corruption has been addressed in about 40 recommendations, although in very
The need to fight corruption has been addressed in about 40 recommendations, although in very