The 50th Session of the Human Rights Council

 13 June – 8 July 2022

Item 3 – Interactive Dialogue with the Special Rapporteur on the Independence of Judges and Lawyers

 21st June 2022

By Natalia Venegas / GICJ

Executive summary

On 21 June 2022, the Human Rights Council (HRC) held an Interactive Dialogue with the Special Rapporteur on the Independence of Judges and Lawyers about the protection of Lawyers Against Interference in the Free and Independent Exercise of the Legal Profession. Lawyers around the world currently face numerous threats, especially those who are actively fighting corruption, defending human rights, or protecting vulnerable groups. Individuals who practice law should be able to do so without fear of intimidation, obstruction, harassment or interference from the State.

As he presented his report, Mr Diego García-Sayán expressed his gratitude to Bolivia for its cooperation and openness to implementing his recommendations. He also noted a global increase in practices that limit and restrict the practice of law, especially as a result of measures adopted by States during the Covid-19 pandemic. Additionally, he reported that from 2010 to 2020, over 2,500 lawyers were killed, detained or kidnapped across the globe in an attempt to undermine the profession's independence.

His report also highlighted the most important international standards to protect judges and lawyers; the trends and patterns of interference in the free practice of law, such as the defence of human rights in cases related to national security or corruption; and the association of lawyers with their clients. Mr García-Sayán also raised concerns and explained the means of interference in the legal profession, including government interference in the organisation, administration, and functioning of lawyers' associations and organisations. His primary recommendations included that States take all necessary measures to ensure the free exercise of the legal profession and should review, amend or refrain from the adoption of legislation that may interfere with the independence of lawyers and the free exercise of their profession.

During the interactive dialogue, most States agreed that the legal profession and its free exercise are essential for the rule of law and an independent State. Furthermore, it was stressed the importance of the functions of judges and lawyers and the need to protect the independence of the judicial system, since lawyers have experienced a number of attacks and interference. Lastly, most States highlighted that the independence of the judiciary is fundamental to any democratic society. Nevertheless, some members questioned the Special Rapporteur's objectivity and their involvement in the report.

During his closing remarks, the Special Rapporteur referenced international principles adopted by the United Nations more than 30 years ago which establish the State's duty to guarantee the function and autonomy of the legal profession and bar associations. He concluded by noting that the goal was to systematise the principles of judicial independence and access to justice, as a fundamental human right which must be guaranteed.

Geneva International Centre for Justice (GICJ) strongly condemns the attacks against lawyers defending human rights and fighting corruption. We extend our support to the fight for judicial independence and the protection of the legal profession. As a pillar of the rule of law and a guarantee of fundamental rights such as due process and freedom, States should protect the legal profession and guarantee the independence of the judiciary.

Background

The Human Rights Commission decided to appoint a Special Rapporteur in response to the increasing serious and frequent attacks on judges, lawyers, and court officials. In 1994, the mandate of the Special Rapporteur on the independence of judges and lawyers was established by HRC resolution 1994/41.

In June 2008, the mandate of the Special Rapporteur was subject to review, and extended for three years under resolutions 8/6, 17/2, 26/7, 35/11, and 44/8. The mandate's purpose is to combat the threat against the independence of the judiciary and the free exercise of the legal profession around the world. The legal profession is at risk because judges, lawyers and prosecutors are subject to attacks that interfere with their professional activities and independence. As part of the Special Rapporteur's mandate, he must; monitor progress in protecting and enhancing the independence of judges, lawyers and prosecutors; make concrete recommendations to States and other actors; and identify ways to strengthen the independence of the judiciary and the legal profession.

In Mr Garcías-Sayán's last report presented in 2020, the Special Rapporteur noted the current state of affairs and described the role of public prosecution services in the fight against corruption. The report also highlights both good practices and challenges facing prosecution services as they fight corruption. He emphasised the importance of practical international cooperation to reach this set of objectives.

Report of the Special Rapporteur on the Independence of Judges and Lawyers

On the 22 April 2022, the Special Rapporteur on the independence of judges and lawyers, Diego García-Sayán, submitted his report on the Protection of Lawyers Against Undue Interference in the Free and Independent Exercise of the Legal Profession. Mr García-Sayán submitted his report under resolution 44/8 adopted by the Human Rights Council.

 "Lawyers and the free practice of the legal profession are indispensable to the rule of law, the protection of human rights and an independent judicial system".

 International standards

In his report, the Special Rapporteur started by providing a legal framework for the topic. He commenced by referencing Article 14 of the International Covenant on Civil and Political Rights (Covenant), which refers to due process. The Special Rapporteur then noted the importance of the Basic Principles on the Role of Lawyers. In particular, he highlighted principle 16, which indicates that lawyers should be able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference. Thirdly, he stated the importance of the Declaration on Human Rights Defenders, specifically article 12, which makes clear that States must take all necessary measures to ensure the protection of human rights defenders by the competent authorities against all forms of violence or threats. Lastly, he referred to regional instruments like the Inter-American, African and European human rights systems.

 Trends and patterns of interference in the free practice of law

In his report, he highlighted that there are several patterns of interference in the exercise of the legal profession. Firstly, the defence of human rights in cases related to national security or corruption and the association of lawyers with their clients. Human rights violations against persons practising law often arise from within the judicial system. The Human Rights Council, for example, found that military courts and special anti-terrorism courts are sometimes used to intimidate or silence persons practising law. Corruption has also impacted the State's operation and enjoyment of human rights; an independent and effective justice system is key to fighting corruption. Finally, the situation mainly affects professionals working on national minority, environmental, or human rights cases. In many cases, lawyers and paralegals who have been subject to attacks and pressure have previously associated with their clients’ interests.

 Means of interference

The Special Rapporteur also expresses concern about government interference in the organisation, administration, and functioning of lawyers' associations.

 The first type of interference is the interference in bar and professional associations of lawyers, resulting in legal and administrative obstacles preventing lawyers from establishing or joining independent professional organisations.

 The second type of interference is physical and psychological abuse of lawyers and their families, and it is of great concern that international lawyers’ organisations reported policies of harassment of the legal profession in some countries. Between 2015 and 2020, 1,323 human rights defenders (mostly lawyers) were killed, mainly in Latin America.

 The third type is defamation in the media. It implies that lawyers who defend people accused of security offences within the framework of counter-terrorism legislation or high-profile political cases usually face stigmatization or defamation in the media and social networks. The pressure caused by such actions severely limits the free exercise of the legal profession.

 The fourth one is disciplinary procedures; it has been stated that the disciplinary proceedings against lawyers should be carried out following the procedural guarantees established in Article 14 of the Covenant. That is why it should be done by an independent body, respecting the principle of a "neutral judge" and under the principle of legality.

 The fifth form of interference is the use of the judicial system and the police, under which the Special Rapporteur received allegations of the use of coercion, detention, harassment and other practices against lawyers in connection with the lawyers' legitimate performance of their profession.

 The sixth one is professional secrecy, searches and seizures, which includes the intervention of public authorities in the free exercise of the legal profession through searches of lawyers’ offices and the interception of client-attorney communications for later use at trial. 

Recommendations

Among the recommendations made by the Special Rapporteur were that States should take all necessary measures to ensure the free exercise of the legal profession in all circumstances so that lawyers may exercise their legitimate professional rights and duties without fear of reprisals and free from all restrictions, including judicial harassment. States should also review, amend or refrain from adopting legislation that may interfere with the independence of lawyers and the free exercise of their profession, particularly counter-terrorism, security, drug control or pandemic-related legislation. Furthermore, disciplinary bodies and bar associations must be independent of the government and admission to the legal profession should be regulated by law with clear, transparent and objective admission processes.

Visit to the Plurinational State of Bolivia

The judicial branch in Bolivia is structured according to the Constitution of 2009, which established four justice systems and gave new importance to the indigenous original Campesino justice. However, subsequent legislation limited the material scope of this system. Judicial service is very precarious because many judges are on temporary appointments and prevailing regulations and practices undermine basic principles such as security of tenure. The Special Rapporteur reported on the impact of corruption, which breeds a deep-seated lack of confidence in the administration of justice. Victims of acts of gender-based violence, femicide and serious human rights violations that occurred during the socio-political crisis of 2019/20 are still awaiting justice. Additionally, a very high percentage of persons deprived of their liberty are being held pending trial and in very precarious conditions.

Interactive dialogue

Geneva, 21 June 2022. At the 14th meeting of the 50 Regular Session of the Human Rights Council, the Special Rapporteur on the independence of judges and lawyers.

 The Plurinational State of Bolivia was represented by the Minister of Justice, Iván Lima Magne. The minister stated that the country has already followed the Special Rapporteur's ten final recommendations. He highlighted that steps have already been taken since his visit, such as the election of the Vice-Minister of Indigenous and Aboriginal Peasant Justice. The representative of Bolivia also said the challenge posed by the Special Rapporteur to have career judges by December instead of transitional judges is currently being worked on with the country's magistrates' associations and the judicial school. On this point, he said that this year Bolivia would shift away from the category of transitional judges to instead ensure all judges can be part of the judicial career.

 He showed concern about the severe effect of human rights, recognizing that there are different groups of people who the State does not currently protect. However, the new government making progress on this front. For instance, the protection and the success of litigation concerning feminicide has changed drastically since the instruction of President Arce, to establish a follow-up commission on femicide and rape. He also highlighted issues like the fight against corruption and the overcrowding of the prisons.

The delegate of the European Union stated that countries should respect the rights of persons who practice law, as the free practice of the legal profession is a crucial element of judicial guarantees to ensure a fair trial and protection of human rights. The representative stated that the report gives an overview of ways used by political authorities trying to undermine, limit, restrict or hinder the practice of law. The trends and methods of interference identified include defamation, enforced disappearances, arrest, coercive actions or threats against lawyers.

Other essential remarks provided by the representative of Argentina on behalf of 35 countries. Their intervention centred on the importance of the Mendes principles to guarantee access to a lawyer and due process. He also requested the Special Rapporteur share thoughts and recommendations to encourage the use of the Mendes principle as an additional framework to improve the protection of the legal profession.

Furthermore, the delegation of Peru, on behalf of some Latin American countries, stated that the legal profession and its free exercise are essential for the rule of law and an independent State. States must perform their functions and guarantee judicial independence. He expressed concern about the patterns of interference and attacks against members of the legal profession, especially those working against corruption and those fighting for human rights. He highlighted that the independence of the judiciary is fundamental to any democratic society. States must take adequate measures to perform their functions and ensure judicial independence.

Next, the representative of Saudi Arabia, on behalf of the Gulf Cooperation Council (GCC) emphasised the principles of equality of arms before the law and the basic legal guarantees associated with a fair trial and access to justice. He stated that the GCC aligns itself with the principle of the independence of lawyers and judges, and their ability to perform their duty to the fullest extent possible. Lastly, he reiterated the importance of a code of conduct and the importance of the reliability of the sources, as conscience must come before the rush.

The delegate of Cuba stated a different position. She pointed out that separation of powers is not a unanimously accepted concept at the international level and that Cuba recognises the intimate nature of the State over the differences that exist between the functions and powers of its different organs. However, she showed concern about the high number of lawyers murdered, detained or kidnapped in different regions of the world in the last decade; a situation alien to the reality of Cuba.

Following Cuba, the delegation of Lithuania took the floor and based its intervention on the politicisation of the system, which Cameroon agreed on as well. The representative stated that the free and independent exercise of the legal profession guarantees the stability of the rule of law. As stated in the report, the increase in practices that undermine, limit, restrict or obstruct the practice of law is alarming. She drew the attention to the continuing pressure exerted by Russia on law-and-order officials in Lithuania. Who, in the exercise of their constitutional duty, were involved in the instigation of the military attack by the USSR on the Lithuanian capital on 13 January 1981, which caused 14 civilian deaths and injured more than 800 people. She stated that in addition to the multiple criminal proceedings, Russia has secretly imposed criminal charges against several Lithuanian judges and threatened to take steps to place the defendants on an international wanted list. This is an open attack on the impartiality of the judicial system.

Nevertheless, Venezuela, China, Russia and Egypt had different positions. The representatives stated that the report contained severe allegations against the countries, which were unfounded. Some said it lacked objectivity and scientific rigour as a part of the campaign to discredit the institutions, fuelled by the political opposition. Others said it referred not to primary sources, but secondary ones. In the case of Venezuela, a year ago, the Council of State, the constitutional consultative body, was convened and a special commission was established to promote judicial regulation and to elaborate a particular plan for structural changes in the Venezuelan justice system, especially in the fight against overcrowding in detention centres and to continue guaranteeing access to objective, accessible, prompt, timely and fair justice.

Following the list of speakers, the floor was opened to NGOs. Most NGOs spoke about cases in Belarus, Russia, Myanmar, Venezuela, Syria, Guatemala, Colombia and Kazakhstan, among others. The majority showed concern about arbitrary detentions against lawyers in some countries, and depriving people of legal representation and access to justice in others. Further, some States highlighted that some branches of power like the executive are not complying with court rulings, which in turn jeopardises the power of judicial independence.

Concluding Remarks of the Special Rapporteur

During his closing remarks, Mr García-Sayán stated that his general report is based on the international principles adopted by the United Nations more than 30 years ago. These principles establish the State's duty to guarantee the function of the legal profession and even of bar associations and their autonomy, as stipulated in Article 24 of the Basic Principles of the Legal Profession. He also called upon the Council of Europe to translate their project into a binding treaty, which would be open to accession by non-Council of Europe States.

Finally, he stated that international standards guiding the role of lawyers were part of the 2030 plan of the United Nations; specifically, objective number 16 which calls on fair, transparent and accountable justice. He said he expected to systematise the principles according to the affirmation of the principle of independent justice and access to justice as a fundamental human right which must be guaranteed.

Position of Geneva International Centre for Justice

Geneva International Centre for Justice (GICJ) strongly condemns all attacks against lawyers, especially those defending human rights and fighting corruption. Lawyers should be protected and allowed to exercise their profession freely. As a pillar of the rule of law and a guarantee of fundamental rights such as due process and freedom, state governments should protect the legal profession and guarantee the independence of the judiciary. We extend our support to the fight for judicial independence and the protection of the legal profession.

GICJ is deeply concerned about the violence exercised against the legal profession and welcomes the recommendations made by the Special Rapporteur to improve the independence of lawyers, where they can exercise their profession freely, from all restrictions, including judicial harassment. We call upon states to review, amend or refrain from adopting legislation that may interfere with the independence of lawyers and the free exercise of their profession to be independent of the government. GICJ also agrees there should be a law and regulation regarding the admission processes of the legal profession for the process to be transparent and objective.

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