Background

Pursuant to Human Rights Council resolutions 27/21 and 54/15 and General Assembly resolution 77/214, the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights is requested in fulfilling her mandate, inter alia, to gather all information relevant to the negative impact of unilateral coercive measures on the enjoyment of human rights; to study relevant trends, developments and challenges; and to make guidelines and recommendations on ways and means to prevent, minimize and redress their adverse impact on human rights; as well as to draw the attention of the Human Rights Council, the General Assembly and the High Commissioner to relevant situations and cases.

Report on Access to Justice and Sanctions – 79^th Session of UN General Assembly (October 2024)

Effective access to justice, right to a fair trial, due process and other elements of the concept constitute a cornerstone for the protection, promotion and enjoyment of all other human rights. Since the beginning of her mandate, the Special Rapporteur has been repeatedly reported on the challenges faced by States, businesses and individuals directly or indirectly affected by unilateral sanctions to access any judicial and quasi-judicial instruments for the purpose of challenging the adverse effects of promotion and protection of human rights for states, businesses and individuals, rights of which have been affected by unilateral sanctions and eventually seeking remedy.

Reported cases refer to the due process and fair trial guarantees violations in judicial proceedings, including violations of presumption of innocence and standards of the burden of proof; challenges to identify and access relevant judicial bodies; lengthy and non-transparent proceedings; high costs of legal assistance in sanctions’ cases;  risks of additional charges, special licensing legal professionals which undermine effective performance of their function in sanctions-related cases ; complete absence of remedies in the international legal order for all those affected by over-compliance with unilateral sanctions.

Furthermore, another aspect of the nexus between unilateral sanctions and the access to justice is the sanctions-induced constraints and challenges that are severely impacting on national capacity and capabilities for prevention and investigation of crimes. Financial constraints, equipment shortages, expert brain-drain, are some of the epiphenomena emanating from the imposition of unilateral economic, trade and other sanctions, while complete isolation of sanctioned countries under primary, secondary sanctions and over-compliance may also seriously undermine training and cross-border and regional cooperation initiatives.

In her previous thematic and country-specific reports, the Special Rapporteur has made specific references to the impact of unilateral sanctions on the access to justice, particularly shedding light on the serious due process violations perpetrated against foreign targets of primary and secondary sanctions (see report A/HRC/51/33).

In 2024, these and other relevant issues will be addressed through the Special Rapporteur’s thematic report on “Access to justice in the face of unilateral sanctions and over-compliance” to be presented at the 79^th session of the UN General Assembly.

Objective

In accordance with the established practice of thematic mandate-holders, the Special Rapporteur welcomes inputs by States, UN agencies, regional and international organizations, businesses, banks, legal professionals companies, national human rights institutions, civil society including humanitarian actors, scholars and research institutions, targets of unilateral sanctions and civil and criminal charges for circumvention of sanctions regimes and others who may wish to submit input, guided by the questionnaire below. Recommendations, evidence, and case studies are most welcome. The Special Rapporteur would appreciate any assistance in further disseminating this call for input to law firms and lawyers dealing with sanctions and sanctions-related cases.

For this purpose, the Special Rapporteur proposes a non-exhaustive list of questions to facilitate input and collection of information.

Key questions and input sought

While all submissions are welcome, and the below is by no means exhaustive, the Special Rapporteur would be grateful to receive input on the following areas:

1. Do unilateral sanctions affect access to justice in general? What is the negative impact on different aspects, or stages: normative legal protection and presumption of innocence, legal awareness and legal certainty, legal aid and counsel, adjudication and principles of fair trial, accessibility of legal remedies? Please, provide specific examples of observed challenges, including legislative, institutional, operational, or any other type.

2. Have you witnessed the violation of presumption of innocence and non bis in idem principle (a person cannot be punished and be subject to several procedures twice for the same facts) in sanctions related cases? If yes, please, comment.

3. Have you witnessed impediments of a due access to legal aid in sanctions- related cases, including challenges in the payment or transfer of legal fees, arbitration fees, unwillingness or reluctance of companies to represent sanctions and sanctions-related cases? If yes, please comment.

4. Have you or your company faced limitations in or additional requirements for the ability to advise, or represent interests of the client in sanctions-related cases, sanctions circumvention or over-compliance cases? Have you or your company faced risks of any type of penalties in such cases for alleged circumvention, assistance in circumvention of sanctions’ regimes (civil, criminal penalties, annulment of licenses etc.)? If yes, please indicate.

5. What are the available (in sanctioning countries) mechanisms for protection of the rights of all those targeted or affected by primary sanctions, secondary sanctions, civil and criminal penalties for circumvention of sanctions regimes, including nationals, residents, third countries, directly designated individuals or companies, individuals whose rights are affected by over-compliance from the side of banks and other businesses registered in the sanctioning country. How clear and comprehensive is the information about these mechanisms, their role and operation?

6. Is there any possibility to recourse to any international mechanism of protection of rights affected by implementation of unilateral sanctions, secondary sanctions, civil and criminal penalties or by over-compliance?

7. Does the activity of regional courts, and other regional judicial and arbitral institutions in sanctions-related cases provide for sufficient protection of human rights in such cases? Please comment.

8. Have you observed/witnessed instances of discrimination in access to justice in sanctions-related cases based on any grounds? If yes, please provide detailed information.

9. Please describe any impact of unilateral sanctions and over-compliance on the national capacity of countries under sanctions in their efforts to ensure effective access to justice, due investigation and due process guarantees. In doing so please provide specific examples and indicate specific challenges.

10. Please share your recommendations and suggestions about any legal and practical avenues or means to improve access to justice in sanctions-related cases. 

How inputs will be used

Please send responses in WORD or PDF, in ENGLISH, FRENCH, SPANISH or RUSSIAN, to hrc-sr-ucm@un.org and specify “Input for GA79 thematic report - 2024” in the subject line. The deadline for submissions is 28 February 2024.

Responses will be used for preparation of the Special Rapporteur’s thematic report to the 79^th session of UN General Assembly in 2024. They will be rendered public and published on the dedicated webpage of the mandate unless requested to be kept confidential.