Thematic scope: key assessment areas and international standards in the administration of justice
The overriding principles of justice, namely the principles of independence of judges, lawyers and prosecutors, and principle of a fair trial, postulate ‘individual attributes as well as institutional conditions’,22 the absence of which leads to a ‘denial of justice and makes the credibility of the judicial process dubious’.23
The list of these individual attributes and institution conditions has been developed under the aegis of the UN Office on Drugs and Crime by means of the UN Basic Principles and Guidelines. The Human Rights Committee then clarified in its General Comment No 32 the content of Article 14 of the ICCPR on the right to a fair trial. The Human Rights Council in recent resolutions reassessed a number of these attributes and conditions.24 None of these instruments is legally binding per se. They however all contribute, with a lesser or greater authoritative force, to interpret states’ obligations under Article 14 of the ICCPR on the right to a fair trial. In addition, international organisations of legal professionals, like the International Bar Association,25 the International Association of Judges26 and the International Association of Prosecutors,27 have adopted professional standards, which reiterate and develop the standards spelt out at the level of the UN.28
22 UNCHR, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2003) UN Doc E/
CN.4/2004/60, para 65.
23 Ibid.
24 See in particular UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/HRC/11/41 (on the independence of judges); UNGA, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/64/181 (on the independence of lawyers); and UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul (2012) UN Doc A/HRC/20/19 (independence of prosecutors).
25 See in particular the IBA Standards for the Independence of the Legal Profession (1990) and the IBA International Principles on Conduct for the Legal Profession (2011).
26 International Association of Judges, the Universal Charter of the Judge (1999).
27 International Association of Prosecutors, Standards of professional responsibility and statement of the essential duties and rights of prosecutors (1999).
28 See also Judicial Group on Strengthening Judicial Integrity, The Bangalore Draft Code of Judicial Conduct (2001), as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25–26 November 2002.
The Special Rapporteur on the independence of judges and lawyers contributes to the unity of the human rights system by interpreting all these international instruments, in light of the recommendations of international and regional human rights mechanisms and country practice.29 In order to assess ways in which the UPR has so far advanced human rights in the administration of justice, the UPR recommendations were classified following the main list of attributes and conditions related to the independence of judges, lawyers and prosecutors respectively, and taking into account the terminology used in the UPR recommendations.
Regarding the independence of the judiciary, the recommendations addressing the independence, impartiality and/or efficiency of the judiciary system or the non-interference with the judicial process in general terms were classified as addressing the independence of the judiciary in general terms.
Recommendations calling for the separation of powers between the legislature, the executive and the judiciary branches were included in the analysis insofar as it constitutes ‘the bedrock upon which the requirement of judicial independence and impartiality are founded’.30
Specific recommendations were clustered around the following individual attributes and institutional conditions to the independence of judges: appointment process of judges and composition of the judiciary; the disciplinary process against judges; training of judges in human rights; security of tenure of judges; adequate financing, material and human resources of the judiciary; protection measures concerning judges; courts’ competences (including the issue of special courts and the oversight of the judiciary over administrative and security authorities) and transparency in the set-up and functioning of the court system. Some UPR recommendations also addressed the ‘fight against corruption’ within the judiciary and the adoption of ‘code of ethics’ for the judiciary, and these topics were added to the list.
Table 1 provides a list of topics on the independence of judges and the main international standards related thereto outlined in the Basic Principles on the Independence of the Judiciary and the recommendations of the Special Rapporteur on the independence of judges and lawyers.
Table 1: List of topics for recommendations addressing the independence of judges and lawyers
Key topics
(independence of judges)
Basic Principles on the Independence of the Judiciary
With some of the main recommendations of the Special Rapporteur on the independence of judges and lawyers (in italics)
Independence of judges (general principle)
‘The independence of the judiciary should be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.’31
Impartiality of judges (general principle)
‘The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions […].’32
29 UNHRC, ‘Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers’
(19 June 2013) UN Doc A/HRC/RES/23/6. UNHRC, ‘Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers’ (2 July 2015) UN Doc A/HRC/RES/29/6.
30 UNCHR, ‘Report of the Special Rapporteur on the independence of judges and lawyers’ (1995) UN Doc E/
CN4/1995/39, para 55.
31 Basic Principles on the Independence of the Judiciary, Principle 1.
32 Ibid, Principle 2.
Appointment process of judges and composition of judges
‘Persons selected for judicial offices shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status […].’33 Member States should ‘consider establishing an independent body in charge of the selection of judges, which should have a plural and balanced composition, and avoid politicization by giving judges a substantial say’.34 ‘Special temporary measures can be adopted and implemented to achieve greater representation for women and ethnic minorities until fair balance has been achieved.’35
Disciplinary process against judges
‘Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.’36 ‘All disciplinary, suspension or removal of judges shall be determined in accordance with established standards of judicial conduct.’37 ‘Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review.’38
‘Disciplinary measures to be adopted must be in proportionality to the gravity of the infraction committed by the judge.’39 ‘[T]he procedures before such a body must be in compliance with the due process and fair trial guarantees.’40
Training of judges in human rights
‘Persons selected for judicial offices shall be individuals of integrity and ability with appropriate training or qualifications in law […].’41
‘States should give priority to strengthening judicial systems, particularly through continuous education in international human rights law for judges, prosecutors, public defenders and lawyers.’42
Adequate financing, material and human resources
‘It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.’43
‘The judiciary [should] be given active involvement in the preparation of its budget.’ ‘The administration of funds allocated to the court system [should] be entrusted directly to the judiciary or an independent body responsible for the judiciary.’44 Judges should be remunerated ‘with due regard for the responsibilities and the nature of their office’.45 Security of tenure of judges ‘The term of office of judges, their independence, security, adequate remuneration,
conditions of service, pensions and the age of retirement shall be adequately secured by law.’46 ‘Judges, whether, appointed or elected shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.’47
‘Promotions of judges […] should be based on objective factors, in particular ability, integrity and experience.’48
33 Ibid, Principle 10.
34 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/
HRC/11/41, para 97.
35 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/
HRC/11/41, para 34.
36 Basic Principles on the Independence of the Judiciary, Principle 18.
37 Ibid, Principle 19.
38 Ibid, Principle 20.
39 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/
HRC/11/41, para 58.
40 Ibid, para 61.
41 Basic Principles on the Independence of the Judiciary, Principle 10.
42 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul (2010) UN Doc A/
HRC/14/26, para 99(e).
43 Basic Principles on the Independence of the Judiciary, Principle 7.
44 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/
HRC/11/41, para 101.
45 Ibid, para 75.
46 Basic Principles on the Independence of the Judiciary, Principle 11.
47 Ibid, Principle 12.
48 Ibid, Principle 13.
49 Ibid, Principle 8.
50 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/
HRC/11/41, para 102.
51 Basic Principles on the Independence of the Judiciary, Principle 2.
52 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/
HRC/11/41, para 51.
53 Basic Principles on the Independence of the Judiciary, Principle 3.
54 Ibid, Principle 5.
55 Ibid, Principle 4.
56 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/
HRC/11/41, para 97.
57 Ibid.
Fundamental freedoms of judges
‘In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association or assembly;
provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.’49
‘The establishment of a judges’ association [should] be supported by Member States on account of its importance as guarantor of an independent judiciary.’50
Protection measures concerning judges
States shall put in place the necessary safeguards to ensure that judges can fulfil their mission and ‘decide matters before them impartially on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter of for any reason’.51
‘Allegation of improper interference [should] be inquired be independent and impartial investigations in a thorough and prompt manner.’52
Courts’ competences ‘The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.’53 ‘Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction of ordinary tribunals.’54 There shall be no interference with the judicial process, other than judicial review.55 Transparency in the set-up
and function of the court system
‘Selection and appointment procedures [should] be transparent and public access to relevant records be ensured.’56 ‘Decisions related to disciplinary measures against judges should be made public.’57
Recommendations addressing the military or juvenile justice systems were respectively compiled under the tag ‘military justice’ and ‘juvenile justice’. Most of the recommendations addressing military justice revolve around cases of civilians and human right cases brought to military courts, or judges appointed by the military. The issues addressed under ‘juvenile justice’ cover a wide spectrum of issues, from specific criminal sanctions to specific courts and detention conditions.
The recommendations addressing the independence of prosecutors were tagged using the list of topics in Table 2.
Table 2: List of topics for recommendations addressing independence of prosecutors
Key topics (independence of prosecutors)
Guidelines on the role of prosecutors
With some of the main recommendations of the Special Rapporteur on the independence of judges and lawyers (in italics)
Appointment process and composition of the prosecuting services
The access to the profession and the promotion of prosecutors shall be based on objective criteria, such as ability, integrity and experience, and be free from discrimination and political interference.58
Disciplinary process ‘Disciplinary offenses of prosecutors shall be based on law or lawful regulations […].’59
‘Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and decision […].’60
‘The prosecutors should have the right to challenge – including in court – all decisions concerning their career, including those resulting from disciplinary actions.’61
Training of prosecutors in human rights
‘Prosecutors should receive adequate training both on initial appointment and periodically throughout their career. Training should mandatorily include regional and international human rights norms and standards. Training on the gender-sensitive handling of cases should also be provided.’62 ‘The training of prosecutors should be paid by the state as an important incentive to their qualification.’63
‘Reasonable conditions of service of prosecutors, adequate remuneration and, where applicable, tenure, pension, and age of retirement shall be set out by law or published rules or regulations.’64
‘The appointment and selection process of the Prosecutor General should be carried out in such a way as to gain public confidence and the respect of the judiciary and the legal profession.’65
Prosecution guidelines ‘In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution.’66
Fundamental freedoms of prosecutors
Prosecutors are free to associate, assemble, express their opinion, and have a fair trial.67
Protection measures for prosecutors
‘States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.’68
States should ensure the personal safety of prosecutors and their families. Any act of violence […] against prosecutors and/or their families should be duly investigated.’69
Similarly, the recommendations addressing the independence of lawyers were tagged using the list of issues in Table 3.
58 Guidelines on the Role of Prosecutors, Guidelines 1–2 and 7.
59 Ibid, Guideline 21.
60 Ibid, Guideline 22.
61 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul (2012) UN Doc A/
HRC/20/19, para 114.
62 Ibid, para 124.
63 Ibid, para 126.
64 Guidelines on the Role of Prosecutors, Guideline 6.
65 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul (2012) UN Doc A/
HRC/20/19 (Independence of prosecutors), para 109.
66 Guidelines on the Role of Prosecutors, Guideline 17.
67 Ibid, Guidelines 21–22. See also UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul (2012) UN Doc A/HRC/20/19, para 81.
68 Guidelines on the Role of Prosecutors, Guideline 4.
69 UNHRC, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul (2012) UN Doc A/
HRC/20/19, para 118.
70 UNGA, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/64/181, para 105(c).
71 Basic Principles on the Role of Lawyers, Principle 10.
72 UNCHR, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/
HRC/64/181, para 105(c).
73 Ibid, para 105(f).
74 Basic Principles on the Role of Lawyers, Principle 11.
75 UNGA, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/64/181, para 112(a).
76 Basic Principles on the Role of Lawyers, Principle 28.
77 Ibid, Principle 9.
78 UNGA, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy (2009) UN Doc A/64/181, para 112(d).
Table 3: List of topics for recommendations addressing independence of lawyers
Key topics
(independence of the legal profession)
Basic Principles on the Role of Lawyers
With some of the main recommendations of the Special Rapporteur on the independence of judges and lawyers (in italics)
Independence of the legal profession (General principle)
‘Legislation regulating the role and activities of lawyers and the legal profession [should]
be developed, adopted and implemented in accordance with international standards;
such legislation should enhance the independence, self-regulation and integrity of the legal profession; in the process leading to the legislation’s adoption, the legal profession should be effectively consulted at all relevant stages of the legislation process.’70 Access to the legal profession ‘Governments, professional associations of lawyers and educational institutions shall
ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminatory.’71
‘In those Member States where the admission to the legal profession is conducted or controlled by the authorities, such responsibility should be gradually transferred to the legal profession itself within a determined time frame.’72 ‘In those Member States where there is a re-licensing or re-registration requirement for lawyers to continue practicing, that scheme be discontinued.’73
Composition of the legal profession
‘In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups.’74
‘Lawyers’ associations strive to ensure a pluralistic membership of their executive bodies in order to prevent political or any other third-party interference.’75
Disciplinary process of lawyers ‘Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.’76
Training of lawyers in human rights
‘Governments, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law.’77
‘Legal professions should adopt a uniform and mandatory scheme of continuing legal education for lawyers, which should also include training on ethical rules, rule of law issues and international and human rights standards, including the Basic Principles on the Role of Lawyers.’78
Promotion of the ethics of the profession
‘Codes of professional conduct for lawyers shall be established by the legal profession[…]’79
‘A unified ethical code, applicable to all lawyers in the respective country should preferably be drafted by associations of lawyers themselves; in the event that they are established by law, the legal profession must be effectively consulted at all relevant stages of the legislating process’80
Fundamental freedoms of
Fundamental freedoms of