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Statement by Diego García-Sayán, Special Rapporteur on the Independence of Judges and Lawyers at the 73rd session of the General Assembly

Spanish

Mr. President,
Distinguished delegates,
Ladies and gentlemen,

It is an honour for me to be here today to present before the General Assembly my second report as Special Rapporteur on the Independence of Judges and Lawyers.

The independence of judges and lawyers is fundamental to ensure respect for human rights. It is one of the pillars of a democratic society and is recognized in the main international human rights instruments.

Since the adoption of the Universal Declaration of Human Rights 70 years ago, the independence of judges and lawyers has been a principal priority for the international community. Both the Human Rights Council and the General Assembly have repeatedly underlined the need for an independent and impartial judicial system that can uphold the rule of law, democracy, and respect for human rights.

However, the independence of judges and lawyers should not be an exclusive concern of those stakeholders but of society. Society greatly benefits by the existence of an independent judiciary and lawyers who can exercise their profession independently so that judicial decisions are rendered based on the law, with impartiality and without any out-of-court interference. Having an independent judiciary and legal profession also sets solid grounds to safeguard human rights, such as the protection of  journalists, environmental defenders or LGBTQ activists whose activity, and even their lives themselves, can depend on whether or not an impartial and independent judiciary functions.

Mr. President and distinguished delegations,

The present global threat to judicial independence and integrity in the world does not derive only from the temptations of political power to control and deprive societies of effective checks and balance systems. It also stems from the activity of organized crime networks and corruption. In my report before this Assembly last year, I emphasized various threats to judicial independence from organized crime groups and corruption practices. I also stressed the urgency of strengthening both prevention and global responses to corruption and its penetration into judicial systems.

International law, particularly, and in particular, the United Nations Convention against Corruption, adopted in 2003, highlights the role of international cooperation and, in particular, cooperation between judges and prosecutors, as one of the main tools for tackling corruption, mainly the one that has been globalized through various forms of organized crime. While national institutional capacities operating in isolation may not be neglected, it is evident that it is more efficient to combat systematic criminal activity with international ramifications if the international community is capable of articulating coordinated policies and strategies.

Therefore, I reiterate this invitation to the international community to strength not only national capacities in this field, but also international cooperation and coordination in the face of a globalized phenomenon for which independent, and impartial judicial systems are indispensable.

Mr. President and distinguished delegations,

The report that I am presenting to you today refers to bar associations and professional associations of lawyers, whose members are unavoidable components of the judicial systems. From this perspective, this report addresses the role that bar associations are called upon to play in safeguarding the independence and integrity of the legal profession.

International standards establish not only the freedom of association of lawyers but also the importance of having independent and autonomous bar associations. These professional associations must play a decisive role in society. Under the appropriate conditions, it allows the free and independent exercise of the legal profession and guarantees access to justice and the protection of human rights.
The Basic Principles on the Role of Lawyers, adopted in 1990, are relevant as they help States to promote and ensure the proper role of the legal profession.           

This report also highlights the serious problem of interference in the independence of these professional legal associations. Threats can take different forms. They range from rules preventing their existence or restricting their membership, coercion and disciplinary threat against members of bar associations to the dissolution of bar associations, and the imprisonment of their members.

For this reason, I have paid special attention to the criteria that should govern the establishment, composition and functions of bar associations. I would like to take this opportunity to call on the States to ensure that the functions and responsibilities of the bar associations are legally protected and to prevent those outside these organizations from undermining the principle of the independence and integrity of the legal profession. 

Mr. President and distinguished delegations,

In the report I am presenting today draws an overview of the world's bar associations. It outlines the general principles that guide them, the different ways in which they are created, their composition and their functions. Beyond national particularities, depending on the variety of legal and judicial systems, the main proposition of this report is how the legal profession, through spaces such as bar associations, can make a decisive contribution to upholding the rule of law, promoting human rights and ensuring access to justice.

Bar associations can cooperate, for instance, with state institutions in the organization and provision of legal aid services to the poor and vulnerable.  In many countries, legal aid schemes are offered by law schools through public interest clinics, either autonomously or in partnership with the State.

In addition, the document we present to you today highlights the important role that those bar associations play in providing legal education, and training to lawyers. It also presents examples of how they contribute to public debates on legal reforms, the administration of justice and the promotion and protection of human rights and the rule of law.           

The report concludes with a series of good practices and recommendations aimed at ensuring the independence and effectiveness of bar associations. They highlight the creation, composition, and functions of these organizations, the protection of individual lawyers, admission to the legal profession, the development of professional responsibility standards, codes of conduct and the disciplinary functions of the governing bodies of lawyers.

At its core, however, this report seeks primarily to underline the importance of respecting the independence of bar associations. The protection of members of bar associations should form the basis of the mandate of these groups. Furthermore, this report has made clear the need for State authorities to respect this duty without any intimidation, hindrance, harassment or undue interference.

Therefore, attacks and state repression of lawyers and their organizations represent an egregious violation of their freedom of association, which often translates into due process violations, and other violations of the human rights of their clients. This report also describes some examples of condemnable acts involving lawyers and their professional associations. The closure of professional associations of lawyers by the authorities is a matter of concern. Bar associations are forced to operate under the constant threat that the authorities will order their closure. In Turkey, for example, according to information received by this Rapporteurship, 34 bar associations have been closed by decree. Since the declaration of the state of emergency in June 2016, all their property has been confiscated without compensation. Presidents, directors and ordinary members of these associations have been charged, indicted and sentenced to long prison terms. This repression must cease.

Mr. President and distinguished delegations,

The independence of judges, prosecutors and lawyers, despite the international principles that protect them, continues to be the subject of threats and attacks in different parts of the world. Different forms of interference - from political power or private subjects - continue to affect core aspects of democratic coexistence and represent important challenges for the international community, human rights and the rule of law.

At the heart of the effects on the independence of justice is the recurring enticement to exercise power without being held accountable for their actions. As such, checks and balance systems, along with independent organizations of lawyers constitute uncomfortable obstacles for political leaders and government officials. This is not a one-off accident but a phenomenon that is systematically repeated, independent of political tendencies or social and cultural contexts.

We can thus find judges or prosecutors dismissed from their jobs or imprisoned for authoritarian action, even with pressure or seduction for power, to influence their decision-making. We cannot let pass in this panorama the growing threat posed by the politicization of the judiciary which, in search of imposing its criteria, pursues different forms of weakening and inaction of justice.

We are witnessing situations that lead many countries to concentrate power in the executive or legislative branches, endangering the balance and separation of powers. These actions not only undermine democratic principles and the rule of law, but also send the wrong message to citizens who see the highest judicial authorities in the country being renewed considering political interests and pressures and not based on their character, capacity, competence, and fitness.
Mr. President and distinguished delegations,

The daily communications we receive about attacks against members of the judiciary and lawyers must be considered in their entirety. They have become a global threat that affects, in different ways, all societies.  These attacks erode confidence not only in the legal systems but also in the judiciary and the legal profession.

This Rapporteurship has witnessed an increase in the number of actions that could affect the independence of judges and lawyers. Specifically, the politicization to which I have just referred, there has been an increase in the number of complaints of political interference in the judicial decision-making process.

Once again, the political authorities should remind their obligation not only to refrain from intervening in the judicial sphere, but also, as far as possible, to measure their words very carefully when making value judgments on judicial decisions, since it can be interpreted as an attempt to influence the outcome of their decisions.
Such a context gives permanent relevance to the fundamental “Basic Principles on the Independence of the Judiciary” adopted by the United Nations in 1985.  These were followed by the “Basic Principles on the Role of Lawyers”; and the “Guidelines on the Role of Prosecutors”, both adopted in 1990, and the "Bangalore Principles of Judicial Conduct", adopted in 2002. Although, this set of international instruments serves as a valuable conceptual guide for defining strategies and stimulating positive developments in different countries, at this stage, however, this is insufficient.

It would be important to go further and articulate these instruments better with each other. The fundamental 1985 “Basic Principles” need to be updated by the international community. I have already referred in previous reports to crucial aspects of the institutional reality of judicial systems, such as judicial councils, which are not included within the 1985 “Basic Principles”. Nor was the fundamental threat to judicial independence from corruption and organized crime addressed.

Consequently, the “Basic Principles on the Independence of the Judiciary” must be updated to include standards to ensure and protect the independence of the judiciary and lawyers in the current context. Gravitational issues such as corruption, macro-crime, protection of information and privacy are some of the different issues whose content must be developed and regulated.

In the light of the evolution that has occurred since then, in the more than 30 years that have passed, it is necessary to take new and creative steps. To consolidate what is advanced, but also to be in a better position to respond to new realities and threats. I invite States to take initiatives in this area by encouraging discussions, the presentation of proposals and the implementation of a working dynamic within the organization in this direction. The Office of the United Nations High Commissioner for Human Rights in Geneva and the United Nations Office on Drugs and Crime (UNODC) in Vienna could be key driving forces for this creative dialogue. If this is done, it will be a priority of my mandate to contribute to these developments, without neglecting my other obligations.

In conclusion, Mr. President, given the complexity of the current situation, I am grateful for the willingness of States to invite me and to listen to the concerns that I have raised regarding the independence of judges and lawyers along with other international and regional institutions. Their continued participation in a two-way dialogue is a testimony to their fidelity to fundamental international principles.

I look forward to the interactive dialogue and will do my utmost to answer any questions. 

Thank you for your attention.