29 May 2008
The United Nations Special Rapporteur on the independence of judges and lawyers, Mr. Leandro Despouy, issued the following statement today, which includes his preliminary findings made public during a press conference held in Moscow.
The Special Rapporteur visited the Russian Federation from 19 to 29 May at the invitation of the Government. He expresses his sincere gratitude for the cooperation extended to him by the authorities of the country. During the mission, Mr. Despouy held meetings with high-ranking federal, regional, and local officials, as well as representatives of the judiciary, bar associations, national human rights institutions, academics, international and non-governmental organisations in Moscow, Saint-Petersburg, Yekaterinburg and Verkhnyaya Pyshma.
In his capacity as Special Rapporteur, Mr. Despouy will present a report on the mission to the Russian Federation to the Human Rights Council. Its conclusions and recommendations will be discussed in public session by the Human Rights Council and the General Assembly. According to the practice adhered to by the UN Special Procedures, before leaving the country, the Rapporteur informed the general public through the media about his preliminary findings and recommendations.
The Special Rapporteur highlights the significant changes that have been taking place in the country over the past years and their enormous impact on all spheres of life. He notes that Government authorities at the highest level, including President Medvedev, have expressed concerns over deficiencies in the functioning of judicial institutions, including the question of their independence. The removal of these deficiencies is crucial for the future development of the country. Recent reform initiatives, such as the creation of a special working group on the judicial reform and the establishment of a council to fight corruption, chaired by the President, demonstrate the political will to tackle the problems facing the justice system.
The Special Rapporteur makes the following preliminary observations:
Institutional and legal framework: The Special Rapporteur acknowledges the important reforms implemented since 1993, particularly the adoption of new legislation governing judicial proceedings, and the significant improvement of working conditions of the judiciary. Important concerns remain about the lack of equal access to the courts and the fact that an important percentage of judicial decisions, including those against state officials, are not implemented. In addition, in spite of early reform initiatives, there is still no legal framework at the federal level for juvenile justice and for a system of administrative courts.
Judiciary: With the adoption of new procedural legislation judges have been assigned the guiding role in judicial proceedings. The Special Rapporteur notes that in some cases judges have not yet been able to assume this central function. Problems with the implementation of judicial decisions have contributed to the poor image of the judiciary in the eyes of the population. Furthermore, criticism has been expressed with regard to the transparency in the selection process of judges and the lack of objective criteria in the allocation of court cases by court presidents, as well as in the implementation of disciplinary measures. Political interference in these spheres has been brought to the attention of the Special Rapporteur, as also confirmed by recent media reports.
The Prosecution: The reform of the office of the prosecutor has apparently led to a more specialized investigative procedure through the establishment of an investigation committee. However, various opinions were expressed as to whether this has actually resulted in a more effective and balanced system between different sides in judicial proceedings.
The Bar: The 2002 Federal law governing the activities of defense lawyers constituted a crucial step towards establishing the Russian bar as an independent and self-regulatory body. However, lawyers have expressed concerns about current proposals to amend this law which may threaten their independence. These relate to procedures for withdrawing the professional status of lawyers and requirements for providing working files as part of potential inquiry which would compromise the privileged nature of lawyer-client relations. The Special Rapporteur expresses his concern with the tendency to identify defense lawyers with the interests, opinions and activities of their clients. Lawyers also drew attention to the practical obstacles they face in becoming judges; in fact, it appears that the majority of judges – before being appointed - have served as prosecutors, investigators or court staff.
Non-governmental organizations: NGOs play a crucial role in the protection of human rights, particularly through the justice system.
On this basis, and before the submission of his full report, the Special Rapporteur advances the following preliminary recommendations related to measures for improving the functioning of the judicial system:
· Given the urgent nature of the need to resolve the problems identified above, full support should be given to the new working group on judicial reform and the recently created anti-corruption council. All pertinent parties whose interests may be affected by the work of these bodies should be fully involved in their activities.
· In tackling the problems facing the judiciary it is crucial to ensure transparency of legal proceedings and the functioning of the judicial system as a whole. In fact, this has been recognised by judicial authorities at different levels.
· Mechanisms for the rapid and comprehensive execution of judicial decisions should be established promptly.
· The existing procedures for providing free qualified legal assistance should be reviewed and best practices should be implemented throughout the country.
· The draft law on the establishment of a juvenile justice system should be adopted without delay.
· Renewed efforts should be taken to establish an administrative court system as this will strengthen the mechanisms to effectively fight corruption and to ensure the liability of state officials.
· As regards the prosecution, there is a need to analyse the results of the recently introduced reforms and their impact on the conduct of the investigation and judicial proceedings in general.
· The recently proposed amendments to the 2002 Federal law governing the activities of defense lawyers would compromise the principles of self-government and independence of the bar and, therefore, must not be adopted since they will run against existing international standards.
· Efforts should be made to ensure that lawyers can exercise their profession without intimidation or any other obstacles.
· The legitimate activities of non-governmental organisations, including their participation in the process of judicial reform, should be encouraged and facilitated.
The Special Rapporteur wishes to underscore his belief that the implementation of these recommendations will strengthen and deepen the process of judicial reform, which, in turn, will further promote democracy and allow the entire population of the country to enjoy the benefits of economic growth.
The Special Rapporteur once again would like to express his gratitude to the authorities of the Russian Federation for making this visit possible. He strongly hopes that the on-going and envisaged reforms will be implemented in the shortest possible time. The Special Rapporteur trusts that his recommendations will assist the authorities in this process and he would like to be in a position to review the progress made in the country in two years time.
Mr. Despouy was appointed United Nations Special Rapporteur on the independence of judges and lawyers in September 2003. He has extensive experience in human rights and international humanitarian law and has held a number of high-level positions in the United Nations and the Government of Argentina. Currently he also serves as President of the Auditoría-General of Argentina.