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Council holds dialogue with rapporteurs on independence of judges and lawyers and on human rights of migrants

AFTERNOON

13 June 2014

The Human Rights Council this afternoon held a clustered interactive dialogue with the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, and the Special Rapporteur on the human rights of migrants, Francois Crepeau.

Ms. Knaul, presenting her report, said States should carefully consider the concept of judicial accountability while conducting judicial reforms and should develop and adopt international standards in line with international human rights law that could guide the creation of domestic systems of judicial accountability. She expressed serious concern about acts of reprisals against judges, lawyers and other members of the justice system, who cooperated with the United Nations and regional human rights mechanisms. Ms. Knaul also spoke on her mission to Russia.

Mr. Crepeau, presenting his report, said that migrants often lacked a written employment contract, or experienced that, upon arrival in the country of destination, the contract they had signed in their home country had simply been substituted by another one, frequently with a lower salary and a different job description. Confiscation of documents, occupational and health violations were of concern. Access to justice was an illusion for many migrants and certainly for most irregular migrants. Mr. Crepeau also spoke on his mission to Qatar.

In the discussion that followed, speakers expressed deep concern about the vulnerability of irregular migrants to labour exploitation, trafficking in persons, slavery or sexual exploitation. Governments should put human rights protection at the core of their efforts to deal with migration issues and formulate targeted laws and policies in that regard. A common response to the phenomenon of migration should not be based on security and police operations alone, said one speaker. Irrespective of national efforts, the magnitude of migration flows required enhanced international cooperation as a necessary condition to ensure effective protection of the rights of migrants.

On the independence of judges and lawyers, speakers said an independent judiciary system was an essential pillar of the rule of law. Accountability mechanisms that were misused against judges could not be tolerated. It was agreed that international standards of judicial accountability could be useful. States must strengthen their own standards of judicial accountability which would play a crucial role in making the judiciary truly independent. One speaker said that ending impunity and ensuring judicial accountability remained a challenge for many countries as democratic practices did not apply in a unified manner across the globe.

Speaking in the discussion were Costa Rica on behalf of the Community of Latin American and Caribbean States, European Union, Pakistan on behalf of the Organization for Islamic Cooperation, Egypt on behalf of the Arab Group, Ethiopia on behalf of the African Group, Namibia, France, Nicaragua, Algeria, Indonesia, Republic of Korea, Paraguay, Egypt, Czech Republic, Australia, China, Italy, Sierra Leone, Burkina Faso, Morocco, Bolivia, Nepal, United States of America, Switzerland, Turkey, Estonia, Holy See, Portugal, Sovereign Military Order of Malta, Guatemala, Venezuela, South Africa, Chile, Hungary, Ghana, Nigeria, Cuba, Angola, Iran, Brazil, Botswana, and Maldives.

Russia and Qatar spoke as concerned countries. The National Human Rights Institution of Qatar also took the floor.

Iraq spoke in a right of reply.

Mr. Crepeau made concluding remarks as he will not be in Geneva on Monday, 16 June to speak at the end of the interactive dialogue. He said that the support of the private sector in the development of policies for taking in migrant workers and protecting their rights was essential in developing a positive narrative which would help counter the increasing populist attitudes. From the recruitment phase to the return of migrants to their countries of origin, migrants had to be able to access national human rights institutions and the justice system without fear of being persecuted. Countries of origin also had a responsibility in that respect, and should provide their citizens with tools to voice their grievances. There was a daunting challenge in dealing with migration at the international level, while embracing the growing mobility as an asset and not as a threat.

The Human Rights Council will resume its work on Monday, 16 June, at 9 a.m. when it will hold a high-level panel discussion on the identification of good practices in combating female genital mutilation. It will continue the interactive dialogue with the Special Rapporteurs on the independence of judges and lawyers, and on human rights of migrants started 12:30 p.m.

Documentation

The Council has before it the report of the Special Rapporteur on the independence of judges and lawyers, Ms. Gabriela Knaul (A/HRC/26/32), as well as on her mission to the Russian Federation (A/HRC/26/32/Add.1)

The Council has before it the report of the Special Rapporteur on the human rights of migrants, Mr. François Crépeau (A/HRC/26/35), as well as on his mission to Qatar (A/HRC/26/35/Add.1

Presentation of Reports by Special Rapporteurs on Independence of Judges and Lawyers and on Human Rights of Migrants

GABRIELA KNAUL, Special Rapporteur on the independence of judges and lawyers, said that her thematic report focused on judicial accountability within the context of the fundamental principle of judicial independence. The implementation of the judicial accountability mechanism implied that certain parties could and should exercise a power of supervision and control over others and a clear set of standards should be established to prevent abuses of power by the supervising parties and ensure that justice operators were not held accountable in an arbitrary way. In relation to the legal profession, an independent professional organization or bar association should be established to represent the interests of lawyers, regulate their entry into the profession, protect their professional integrity and apply disciplinary proceedings. All States should carefully consider the concept of judicial accountability while conducting judicial reforms and should develop and adopt international standards in line with international human rights law that could guide the creation of domestic systems of judicial accountability.

The Special Rapporteur encouraged Russian authorities to continue their engagement with human rights mechanisms and in particular with the Special Procedures. Public confidence towards the justice system in Russia had deteriorated, mostly due to the perception that justices were corrupt and often adopted politically motivated decisions protecting only the interest of the State. Pre-trial detention should be exceptionally applied and factors determining it should be specified in law. The authorities should recognize and support the contribution of non-governmental organizations in providing legal aid and ensure that they could carry out their work freely and without improper interference of any sort. Ms. Knaul said that a strong commitment was required by Russia to ensure that the many reform successes achieved thus far were maintained and that comprehensive measures were adopted to address the remaining challenges and obstacles that remained.

Finally, the Special Rapporteur reiterated her serious concern about acts of reprisals against judges, lawyers and other members of the justice system and non-governmental organizations who cooperated with the United Nations and regional human rights mechanisms and called on States to conclude their consideration of Resolution 24/24 of the General Assembly to ensure that the appointment of the system-wide senior focal point for reprisals was done as soon as possible.

FRANCOIS CREPEAU, Special Rapporteur on the human rights of migrants, presenting the report, said that it was dedicated to labour exploitation of migrants. The report was largely based on information received while meeting with migrant workers during country visits, and complaints continuously received from migrants themselves, civil society organizations and other sources on their behalf. A major pull factor for migration was the need for migrant labour in destination States. Many people saw migration as the only way to improve their social and economic situation and they sometimes saw no other option but to migrate irregularly due to a lack of regular migration channels, particularly for low-skilled workers. Migrants, especially irregular migrants or migrants with a precarious administrative status, were often willing to do the ‘dirty, difficult and dangerous’ jobs that nationals would not, at the exploitative wages that unscrupulous employers would offer. Migrants were sometimes accused, including in the public debate, of ‘stealing’ jobs by accepting lower wages and poor working conditions. However, States seem to invest very few resources in trying to reduce the informal sector and sanction employers who profited from exploitative working conditions to boost their competitiveness. The report provided a collection of some of the worst practices migrants faced in different regions of the world, irrespective of their migration status, including discrimination by employers on many grounds.

Migrants often lacked a written employment contract, or experienced that, upon arrival in the country of destination, the contract they signed in their home country was simply substituted by another one, frequently with a lower salary and a different job description. Confiscation of documents was another big problem. Lack of familiarity with local laws and language difficulties frequently prevented migrants from being aware of specific hazards in their work. Occupational and health violations were a big concern. Some groups of migrants were specifically at risk of exploitation. Migrant domestic workers, the majority of whom were women and girls, were extremely vulnerable to violence and abuse. Migrant children were more vulnerable to abuse and injuries than adult migrants. Access to justice was an illusion for many migrants and certainly for most irregular migrants. The rule of law was simply not benefiting migrants. Labour inspections were an important tool to combat human rights violations committed against migrants in the workplace and could, if undertaken properly, prevent such violations from occurring. Fighting labour exploitation of migrants by sanctioning exploitative employers would contribute greatly to reducing the size of the underground labour markets that were a key pull factor of irregular migration.

On a visit to Qatar, it was noted that efforts needed to be stepped up to prevent human rights abuses against migrants. Exploitation was frequent and migrants often worked without pay and lived in substandard conditions. The report on the visit to Sri Lanka would be presented next year. The Special Rapporteur’s report to the General Assembly this year would focus on the post-2015 development agenda and the need to fully incorporate both migrants’ and human rights in that agenda.

Statements by Concerned Countries

Russia, speaking as a concerned country, thanked Ms. Knaul for her visit to Russia and her positive appraisal of steps taken to improve the judiciary. Among others, legislation to improve access to justice, as well as the quality of the proceedings, had been undertaken. Much in the area needed to be done beyond the adoption of necessary legislation, such as addressing the case log on judges. Russia did not agree with some appraisals in the report, such as those concerning the excessive powers of the presidents of courts and the situation of lawyers. Procedural legislation provided guarantees, such as the right to appeal in cases of irregularities in the composition of courts and preventing the arbitrary transfer of cases from one judge to another. Russia looked forward to the constructive contribution of the Special Rapporteur on this topic.

Qatar, speaking as a concerned country, believed that the visit of Mr. Crepeau constituted a historic event and expressed appreciation for recognising the transparency and cooperation displayed by Qatar. Qatar shared his opinion that this visit was the preliminary step of dialogue with the Government towards improving the conditions of migrant workers in the country; and emphasised that the promotion and protection of rights, including those of expatriate workers, constituted a strategic decision by the State. Qatar had announced measures that would improve the situation of workers, such as the abolition of the requisite employers’ consent for workers to leave the country and which facilitated workers’ capacity, both under fixed and open-ended contracts, to change employers. Qatar reiterated the need to work on this topic in a non-politicised manner.

National Human Rights Committee of Qatar thanked Mr. Crepeau for the report and for praising the role of the Committee, particularly in the context of his recommendations made to the Government concerning the need to provide additional support to and to consider the recommendations of the National Human Rights Committee. The Rapporteur’s recommendations would be considered through cooperation underway between the Committee and the Government. A new draft law regarding reform of the sponsorship system had been announced last month, in addition to improvements in the inspection system by the Ministry of Labour; and these measures reflected the serious commitment of the Government to improve the conditions of work in Qatar in accordance with the recommendations emanating from international mechanisms.

Interactive Dialogue

Costa Rica, speaking on behalf of the Community of Latin American and Caribbean States, expressed deep concern about the vulnerabilities of irregular migrants to labour exploitation, trafficking in persons, slavery or sexual exploitation. These practices continued with impunity because migrants had no real access to the judicial system, partly because of their irregular status and partly because of ignorance. European Union said that an independent judiciary system was an essential pillar of the rule of law and underscored that accountability mechanisms that were misused against judges could not be tolerated. The European Union was firmly committed to the protection of the human rights of migrants and continued to develop comprehensive immigration policies while combating and preventing illegal migration with full respect of human rights.

Pakistan, speaking on behalf of the Organization of Islamic Cooperation, agreed that international standards of judicial accountability could be useful, and stressed that States must strengthen their own standards of judicial accountability which would play a crucial role in making the judiciary truly independent. The Organization of Islamic Cooperation strongly condemned the acts of racism, racial discrimination, xenophobia and related forms of intolerance against irregular migrants which created obstacles towards the full enjoyment of their human rights. Egypt, speaking on behalf of the Arab Group, said that the obligation of judicial accountability must be established on the basis of legislative criteria and asked the Special Rapporteur to elaborate on the responsibility of States to develop those criteria. Ethiopia, speaking on behalf of the African Group, said that migrant workers continued to suffer systematic discrimination, violence, and lack of access to justice and proper remedies. A large part of migration was related to the world of work and that was why the rights of migrant workers must be at the core of international attention at the highest level.

Namibia said that the judiciary should be aware of public concerns and strive to achieve the critical balance between legitimacy and independence, which was important for the maintenance of a vibrant democracy. All States should recognise that an independent judiciary was the foundation of the rule of law, and an indispensable building block of any democratic State. France agreed that an effective administration of justice and an independent and impartial judiciary were crucial for securing the rule of law. The principle of judicial accountability should not be used as a tool to exert pressure on the work of the judiciary. France was resolutely committed to the promotion and protection of the human rights of migrants.

Nicaragua said that the irregular situation of migrants should not deprive them of their human rights. Nicaragua reiterated its staunch support for all national and international efforts that would help deal with migration challenges from a holistic point of view, based on tolerance, solidarity, justice, social inclusion and social equity. Algeria recalled the importance of the International Convention on the Protection of the Rights of Migrant Workers and their Families. It was useful to reiterate that the Convention was the main treaty specifically protecting the rights of migrant workers, while the low number of ratifications of this instrument was regrettable. Indonesia enquired as to how transparency and confidentiality, on one side, could be balanced with investigations and proceedings against judges, on the other. Indonesia believed that recognizing labour needs of destination States would reduce irregular migration and contribute to a better respect, protection and fulfilment of the human rights of migrants.

Republic of Korea said that a fair and impartial judicial function was best discharged when the right balance between independence and accountability existed. Judicial independence was not absolute, but was limited by the framework set by judicial accountability. The Republic of Korea’s Second Basic Plan for Immigration Policy 2013-2017 aimed to prevent violations of human rights of migrants and provide remedies. Paraguay said that the issue of migration had to be seen from the human rights point of view and agreed that provisions of social protection systems should be expanded to offer coverage to migrants as well. The issue of migration had to feature in the post-2015 development agenda.

Egypt was conscious that international human rights norms to date did not provide concrete standards for judicial accountability and said that judicial systems around the world had developed their own systems of self-correction and institutional accountability. On migration, Egypt said that States should continue their efforts to sanction exploitative employers of irregular migrants, which would lead to fewer instances of their exploitation. Czech Republic said that the lack of effective safeguards ensuring that disciplinary proceedings were impartial, objective and transparent was one of the major impediments to judicial independence and asked the Special Rapporteur to specify concrete measures which were most needed to rectify this problem. Australia believed it was incumbent upon States to ensure the independence of judges and lawyers. Australia asked for the views of Ms. Knaul on what steps States should take to ensure judicial accountability while maintaining separation from the legislative and executive arms of Government.

Sierra Leone said that ending impunity and ensuring judicial accountability remained a challenge for many countries as democratic practices did not apply in a unified manner across the globe. Sierra Leone was of the view that fair trials and an independent judiciary, supported by a transparent framework which also prosecuted impunity perpetuated by judges and lawyers, was the way forward. Morocco shared the view that both individual and collective accountability of the judiciary contributed to its independence. In its Constitution, Morocco stressed this independence as a pillar of the rule of law. China believed that judicial accountability and independence were not mutually exclusive, but mutually supportive and should underpin a society ruled by law. China believed that Governments should put human rights protection at the core of their efforts to deal with migration issues and formulate targeted laws and policies in that regard.

Italy said that a common response to the phenomenon of migration should not be based on security and police operations alone. It was time to focus on migrants’ rights with a new approach. The magnitude of migration flows required enhanced international cooperation as a necessary condition to ensure effective protection of the rights of migrants. Burkina Faso said that it remained a country of origin of migration towards an ever increasing number of destinations, but it was also a host country. It had established an institutional and standard setting framework for the promotion and protection of migrants’ rights.

Bolivia said that its Constitution and migratory laws ensured that the rights of Bolivian and migrant workers were recognised, in accordance with international instruments and norms. Migrants often received lower salaries and accepted to undertake dangerous occupations because of their job insecurity; irregular migratory status did not deprive the migrant population from their human rights and additional information could make migrant workers less vulnerable to violations. Nepal appreciated the notion that judicial accountability and independence were essential elements of an independent, impartial and efficient justice system. In Nepal, the guarantee of the structural and functional independence of the judiciary was a basic feature of the Constitution. Concerning migrant workers, Nepal stressed the need for deeper coordination and asked the Special Rapporteur to suggest methods to educate the public in destination countries about migrants’ human and labour rights.

United States said that judicial accountability and independence were integral to the promotion of a justice system and rule of law that served society and ensured equality under the law, but balancing judicial accountability and independence required sustained commitment by all States. Solutions to the challenges faced by migrant workers required cooperation between local and federal governments and keeping in mind the underlying issues that caused individuals to migrate in search of work. Switzerland said that the message of the declaration adopted by Member States during the second high-level dialogue on international migration and development in 2013 was clear: it was about promoting and protecting migrants’ rights and freedoms. Switzerland would pursue efforts to ensure that migration and migrant rights were reflected in the post-2015 development agenda.

Turkey reiterated the problems of mismatches in the labour markets and the need to combat discrimination against migrant workers with all available legal means. In order to eradicate the negative consequences of labour exploitation, a consistent and coordinated approach among national and international institutions as well as civil society was needed; Turkey had taken measures to this end, such as the ratification of the Convention against Transnational Organised Crime and the Additional Protocols on trafficking in human beings and smuggling of migrants.

Estonia agreed that judicial accountability and judicial independence were the two essential and mutually reinforcing elements of an impartial and efficient justice system. In Estonia, all justice sector actors had drawn up their ethics codes. Estonia asked for examples of misuse of external accountability mechanisms and possible positive steps to overcome that. Holy See said that there was ample documentation to prove the overall beneficial contribution of migrants, a fact that should be highlighted for an appropriate public perception. It would be useful if the Special Rapporteur helped Governments devise some urgently needed solutions for the ever-increasing migration of unaccompanied minors.

Portugal expressed its satisfaction with Ms. Knaul’s request to visit Portugal, and was looking forward to welcoming her soon. Portugal asked what role the Human Rights Council could play in adopting international standards on judicial accountability. Portugal was already providing free healthcare and education to all migrant children. Sovereign Military Order of Malta highlighted Mr. Crepeau’s recommendation that migrants should be given institutional tools to secure their full enjoyment of rights. The Sovereign Military Order of Malta would organize, jointly with the Holy See and the European Union, a side event on migration and safety on 17 June.

Guatemala raised the question on real progress achieved with regard to labour benefits for migrant workers. Migrants who were deported did not have an opportunity to draw on the benefits they had earned. Open discussions should continue between all interested parties with the rights of migrants and members of their families in mind.

Venezuela said that the Code of Conduct of Special Procedures was a mechanism established by the Human Rights Council to ensure ethical conduct by mandate holders and that was why Venezuela regretted that it had to denounce certain practices, such as recent press releases, which affected the credibility of mandate holders. Venezuela expressed concern about migrants who were particularly vulnerable to labour exploitation such as domestic workers, women, children and irregular migrants in general. South Africa reiterated its commitment to safe, orderly and regular migration with full respect for the human rights of migrants and that was why it actively engaged with both business and civil society to ensure labour standards were upheld in accordance with the national legislation and international treaties. Chile said that the unprecedented human mobility should inspire the world to look at the international governance of migratory processes, sensibilization policies in host societies and at the whole issue of abuse, discrimination and violence experienced by millions of migrants.

Hungary said that the issue of reprisals continued to remain high on the agenda of the Council and asked the Special Rapporteur what could be done to address cases of reprisals against judges, prosecutors, lawyers and any other individual or organization cooperating or seeking to cooperate with the mandate holder, and whether any concrete steps had been taken to ensure their adequate protection. Ghana agreed that judges and other judicial actors were not above the law and must be accountable to the law and thought that the proposal to consider a specific international instrument to address perceived gaps in judicial accountability should not provide a pretext for interference with the independence of the judiciary. Ghana agreed on the need to ensure that policy makers and law enforcement agencies were sensitive to human and labour rights and dignity owed to migrants whatever their status and called on political parties to refrain from making the phenomenon of migration an electoral issue and so incite hatred against them.

Nigeria said that the issue of migration was a constant in the many activities of humanity. Migrants of any nomenclature had to be treated with dignity. Nigeria was deeply concerned by the shoddy treatment of the children of irregular migrants, particularly detained irregular migrants, and called on States to endeavour to render permissible treatment in line with international humanitarian law. Angola said that it had always recorded an intense flow of migration through its history. During the conflict, thousands of nationals left the country but in the last decade, because of the economic development of the country, it had registered an opposite movement, marked by the migration inflow of nationals returning home, foreigners looking for a better life, as well as refugees from other conflict-stricken areas. Cuba said that it was vital for destination countries to take more effective measures to protect the rights of migrants and opening regular migration channels had to be part of these measures. Cuba would like to know if the Special Rapporteur had received a response from the North American Government about allegations from early 2012 with regards to the five Cubans serving an unjust sentence there?

Brazil was disappointed that only a limited number of visits had been undertaken by the Special Rapporteur on the human rights of migrants. On the ground, contact with the reality of migrants would have contributed to bringing the debate closer to their situation. Brazil shared concern about the negative consequences of the criminalization of irregular migration, in detriment of observations of human rights obligations. Iran concurred that judicial accountability and independence were two essential elements of an independent, impartial and efficient justice system and maintained that these two elements should therefore operate in conjunction with each other. Iran was of the view that prosecutors played a crucial role in the administration of justice and they had to be able to perform this function without intimidation, reprisals, harassment or interference.

Botswana ascribed to the notion of judicial accountability in the same way as all other arms of Government and the public service were accountable to the people. Botswana concurred with Ms. Knaul that the State carried the responsibility to provide effective remedies to individuals who had suffered damage because of wrongful convictions or any other miscarriage of justice. Maldives stressed that an effective accountability mechanism was essential in order to build public trust and enhance the performance of any judicial institution. The Government greatly appreciated the many contributions of migrants to the country’s economy and society at large, and was reviewing its labour regulations in line with international standards.

Concluding Remarks

FRANCOIS CREPEAU, Special Rapporteur on the Human Rights of Migrants, in his concluding remarks, stated that employers’ associations could help create fair institutional frameworks, examples of which were an establishment of an ethical code of conduct adopted in Sri Lanka or sets of standards for the well-being of migrant workers adopted by a number of companies in Qatar. The support of the private sector in the development of policies for taking in migrant workers and protecting their rights was essential in developing a positive narrative which would help counter the increasing populist attitudes. From the recruitment phase to the return of migrants to their countries of origin, migrants had to be able to access national human rights institutions and the justice system without fear of being persecuted. Countries of origin also had a responsibility in that respect, and should provide their citizens with tools to voice their grievances. There was a daunting challenge in dealing with migration at the international level, while embracing the growing mobility as an asset and not as a threat.

Right of Reply

Iraq, speaking in a right of reply, clarified its position on the Ashraf camp and said it could not allow any aggressive or military practices that adversely affected other countries. Iraq stressed that camp Liberty was managed by the United Nations and controlled by the inhabitants themselves. There were internal disagreements between residents, some refused relocation and this had led to a bloody conflict. Iraq refused allegations that it had buried the bodies to hide evidence and was open to any international scrutiny.
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