Council concludes interactive dialogue on independence of judges and lawyers and on violence against women

Human Rights Council  
MIDDAY

26 June 2012

The Human Rights Council in a midday meeting today concluded its clustered interactive dialogue with the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, and the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo.

In the interactive dialogue, speakers agreed with the Special Rapporteur on the independence of judges and lawyers that the impartial functioning of prosecutors was a prerequisite for democracy and supported the recommendation of the Special Rapporteur concerning the training of prosecutors.  What could the international community do to support the difference between accountability of prosecutors and their independence?  Speakers underlined that prosecutors must always uphold human rights and due process and ensure smooth functioning of the justice system.  Training and capacity building of lawyers and prosecutors in human rights enabled them to better discharge their functions and served as a foundation of democracy and rule of law.  This training needed to be fostered through the international community and the exchange of good practices. 

Concerning violence against women, speakers concurred with the Special Rapporteur on the need for States to adopt a holistic approach in eliminating all forms of violence against women, particularly the prevention of gender-related killings.  The challenge in all countries was to identify the best method to synchronize and harmonize the approach at the political, operative, judicial and administrative levels.  Speakers were deeply disturbing that in the twenty-first century there were still many places in the world where thousands of women were subjected to violence only because of their gender.  The primary responsibility to publically condemn and to punish all guilty parties was with the State and that was why the gap in national efforts to effectively combat all forms of gender-based killings was an issue of concern.

In closing remarks, Ms. Knaul said of particular concern were the increased reports of serious threats and attacks against judges, prosecutors and lawyers.  In several countries, judges, prosecutors and lawyers suffered acts of intimidation and threats.  States had an obligation to adopt protection measures or even full fledged protection programmes for prosecutors.  States were asked to ensure that all threats were reported and investigated and, where possible, that perpetrators were prosecuted and punished.

Speaking in the interactive dialogue were Malaysia, Australia, Kyrgyzstan, Netherlands, Armenia, Holy See, Argentina, Democratic Republic of the Congo, Tunisia, Benin, United States, Sri Lanka, Afghanistan, Pakistan, Brazil, Cambodia on behalf of the Association of Southeast Asian Nations, Gabon, Botswana, Bangladesh, Egypt, Sovereign Military Order of Malta, New Zealand, Republic of Moldova and India.

The following non-governmental organizations also took the floor: Penal reform International, European Region of the International Lesbian and Gay Federation, Centro Regional de Derechos humanos y Justicia de Genero, HelpAgeInternational, International Association of Democratic Lawyers, Federation of Cuban Women, Minority Rights Group and Antiviolence Centre.

The two Special Rapporteurs presented their reports to the Council and started the interactive dialogue on Monday, 25 June and a summary of the proceedings can be found here.  Ms. Manjoo also delivered her closing remarks on Monday.

The Council today is holding a full day of meetings.  During its afternoon meeting starting 2 p.m., the Council will hold a general debate on the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.  From 5 p.m. to 6 p.m., the Council will meet behind closed doors under its Complaint Procedure.

Interactive Dialogue on Independence of Judges and Lawyers and on Violence against Women

Malaysia concurred with the Special Rapporteur on the need for States to adopt a holistic approach in eliminating all forms of violence against women, particularly the prevention of gender-related killings.  The challenge in all countries was to identify the best method to synchronize and harmonize the approach at the political, operative, judicial and administrative levels.  Most countries faced challenges in the information system and data collection that could help in developing meaningful prevention strategies and improving policies on violence against women.  More focus should be given to providing intensive hands-on training to the frontline agencies, particularly the police in order to best use existing laws to protect women and girls.

Australia agreed with the Special Rapporteur that the impartial functioning of prosecutors was a prerequisite for democracy and supported the recommendation of the Special Rapporteur concerning the training of prosecutors.  What could the international community do to support the difference between accountability of prosecutors and their independence?  Australia agreed that the elimination of gender equality was essential to curbing violence against women and asked the Special Rapporteur what more could be done to eliminate gender-based killings.

Kyrgyzstan said that many countries still did not have a comprehensive approach to preventing killings on the grounds of gender.  Kyrgyzstan was making all efforts to eliminate all forms of violence against women, particularly by attracting public attention to the issue.  It had also developed new forms of statistical reports that allowed recording and analyzing cases of physical violence against women and girls.  There were 13 crisis centres in the country where women victims of violence could receive free and confidential assistance and the number of such centres would be soon increased.  
 
Netherlands said that it was deeply disturbing that in the twenty-first century there were still many places in the world where thousands of women were subjected to violence only because of their gender.  The primary responsibility to publically condemn and to punish all guilty parties was with the State and that was why the gap in national efforts to effectively combat all forms of gender-based killings was an issue of concern.  States must address the structural causes leading to violence against women and that was why the results of the Special Rapporteur’s study on State responsibility for eliminating violence against women were important.

Armenia said that combating domestic violence including violence against women was among Armenia’s human rights priorities.  The Criminal and Family Codes were main legal acts containing provisions concerning violence against women and the draft law on domestic violence had been elaborated and was currently in the process of finalization and approval.  Combating violence against women was in the focus of the police as well, which had a working group aimed at effective implementation of measures to combat this phenomenon.

Holly See said that violence against women remained an inescapable reality in too many places.  It was essential to eliminate discrimination and violence through effective frameworks for the protection of women’s rights and the empowerment of women and in the context of political transition and economic crisis.  Unstable situations marked by violence posed particular risks against vulnerable groups such as women human rights defenders.  Judicial impunity and cultural and social norms that tolerated discrimination and failed to address violent acts such as female infanticide or sex-selective abortion must be addressed and rejected.  The dignity of each person, woman and man, required that just institutions and fair societies existed for its promotion.

Argentina said that violence against women constituted a serious violation against individuals and societies as a whole.  Argentina agreed with the Economic Commission for Latin America and the Caribbean concerning the need to make the problem of violence against women part of the public agenda in order to eradicate it.  Human rights violations were an obstacle for development, and a central concern for democracy and development.  In Argentina, legislation provided holistic protection and addressed the multiple forms of violence, sanctions against State and private actors had been established, a national commission to coordinate sanctions for gender-based violence existed under the Ministry of Justice, and feminicide had been included in the criminal code as an aggravated form of homicide. 

Democratic Republic of Congo said that the fight to eliminate violence against women and girl children was a major concern for the Government, particularly in the context of armed conflict.  The Democratic Republic of the Congo had reformed its legislation and imposed greater penalties for these crimes, the time for prosecution had been reduced and judges had received special training.  Compensation posed additional difficulties and often remained the responsibility of the State.  A public awareness campaign had also been implemented and a thematic group to address the issue of sexual violence had been established.  The independence of the judiciary was enshrined in the Constitution from the executive power, reinforced by budgetary autonomy, and its decisions were not subject to interventions.

Tunisia said Tunisia had begun a broad-based reform process of its judiciary system in order to strengthen the independence of the judiciary and to protect individual freedoms.  The new Constitution was awaited which would confirm those principles.  Judicial organizations and civil society organizations had been consulted in this reform process and their opinions were taken into account.  Since its revolution, Tunisia had set up special units to listen to women victims of violence and it looked forward to the outcomes of the regional consultation on responsibility of States in eliminating violence against women that had taken place last week in Tunisia.  

Benin said that violence against women was an obstacle to empowerment and flourishing of women and their contribution to development.  Benin highlighted the advances in eliminating violence against women in the country, including the promulgation of laws aimed at preventing and prosecuting all forms of gender-based violence.  This law was now at the heart of the public awareness campaign launched by the President. 

United States agreed that prosecutors should respect and protect human rights and asked how to reconcile prosecutorial discretion and impartiality with the Special Rapporteur’s recommendation to allow interested parties to challenge decisions not to prosecute.  The growing problem of gender-related killings of women in times of both peace and conflict happened across a wide range of social and political contexts and in private or public spheres.  Nearly all instances were marked by a lack of accountability for the perpetrators and States should consider their responsibility in investigating and prosecuting this violence and should work together to identify common challenges and good practices to eliminate violence against women.

Sri Lanka said that gender-related killings were an extreme manifestation of existing forms of violence against women.  The elimination of violence against all women required addressing systematic discrimination, oppression and marginalisation at multiple levels.  Disasters compounded the social effects on vulnerable groups including women.  Sri Lanka’s Constitution provided for positive action for the advancement of women, children and persons with disabilities.  A five year action plan on women had been drafted, a domestic violence act had been enacted in 2005, and amendments to the criminal code included grave sexual abuse and other similar offences against women.

Afghanistan reiterated its commitment to ensure equality between men and women.  In order to ensure equality, protect women rights and prevent violence against them, legislation was enacted in 2009.  In Afghanistan 69 out of 249 members of the House of People and 28 out of 102 members of the House of Elders were women and the Constitution required that at least two female members of the House of People were elected from each region.  There were still cases of violence against women and, after three decades of war, the provision of protection of the rights of women and the elimination of violence remained challenges.

Pakistan thanked the Special Rapporteur on the independence of judges and lawyers for her visit to Pakistan.  During this visit, Ms. Knaul had had the opportunity to meet and engage with a number of stakeholders and hold constructive discussions with the Government.  Pakistan looked forward to the presentation of her report to the Council in June 2013.

Brazil agreed that prosecutors must always uphold human rights, uphold due process and ensure smooth functioning of the justice system.  Training and capacity building of lawyers and prosecutors in human rights enabled them to better discharge their functions and served as a foundation of democracy and rule of law.  This training needed to be fostered through the international community and the exchange of good practices.  How did Ms. Knaul envisage further action in the Council in this regard?  Fighting and preventing violence against women must be a priority for all nations, said Brazil, and asked the Special Rapporteur to provide examples of good practices of States in eliminating violence against women through empowerment.  

Cambodia, speaking on behalf of the Association of Southeast Asian Nations, attached great importance to the rights of women and children and the urgent need for continued efforts in combating violence against women.  Since the adoption of the Declaration on the Elimination of Violence against Women in 2004, many of the countries had made significant progress in adopting an official policy of zero tolerance to domestic violence, regardless of being formally linked to tradition and structured on patriarchy.  The Association of Southeast Asian Nations was confronted with the growing challenge of trafficking in persons and had agreed in its April meeting to undertake concerted efforts to address this issue and looked forward to a regional instrument to prevent trafficking in persons.

Gabon said that its fundamental law enshrined equality of all its citizens and guaranteed their flourishing, particularly for women.  In order to preserve their role, the Government had recently exempted women from certain employment dangerous for their health and safety.  New legislation was being prepared to modify existing laws which would criminalize sexual violence against women.  All States should work toward putting an end to violence against women in the world.

Botswana said that investigative functions of the police and judicial functions of judges were complementary and should be interdependent.  It was difficult to balance between the interests and rights of the accused and the public interest; autonomy should however not be at the expense of accountability.  Training was essential, including on human rights, as well as adequate resources.  The political, social and economic context contained the root-causes of gender-related violence and should be better understood.  Justifications on the basis of custom, tradition or religion, when men did not suffer the same abuses, could only be self-serving; and impunity emboldened perpetrators and normalised violence.  Women and girls must have access to mechanisms of justice and remedies.

Bangladesh said that gender-based killings constituted the culmination of different levels of violence.  According to International Labour Organization Working Paper 3/2011, at least one in three women was estimated to have been coerced into sex, physically beaten, and otherwise abused in her lifetime, for women aged 15 to 44, such violence was a major cause of disability.  Economic inequality reinforced women’s position as subordinate in society.  Trafficking and migration also exposed women’s vulnerability to violence significantly.

Egypt emphasised the need to maintain and protect the independence of judges and lawyers and requested further elaboration on the measures and scope of action that could be taken by governments to ensure appropriate and efficient cooperation between prosecutors and the police.  Egypt disagreed with the link between discrimination against women and girls and killings.  Egypt asked for corroborating evidence leading to the focus on “gender-related killings” as an extreme form of violence.  Egypt categorically rejected the attempt by the Special Rapporteur to induce notions alien to the international human rights framework and the obligations of States, such as the notion of sexual orientation and gender identity.

Sovereign Military Order of Malta said that it was horrifying to hear that gender motivated killings of women were on the increase.  The development of real remedies whether of judicial or administrative nature should be available and should address the victims’ needs and the root causes of these killings.  No effort should be neglected in order to improve data and knowledge on these gender motivated killings.  An important component of the Sovereign Military Order of Malta’s ongoing projects was dedicated to combating violence against women, with special attention given to psychological assistance and psychological treatment for women and girls victim of sexual violence. 

New Zealand said that a 2011 review of the prosecution system in New Zealand looked at this issue and it had highlighted a valuable distinction between the need for independent decision-making and the concept of autonomy.  It also noted that the real need for independent decision-making was often confused with a perceived need for complete prosecutorial autonomy.  New Zealand was interested in hearing more about views on approaches to ensure a successful balance between the demands of accountability and autonomy of prosecution services.

Republic of Moldova said capacity-building and ongoing training for the main judicial actors was an indispensable instrument for strengthening their knowledge and adequate application of the regional and international human rights law provisions.   It was perhaps of more importance to focus on prevention mechanisms with a view to avoiding tragic effects on human lives.  Could information on good practices be provided regarding the standard aimed at modifying the social and cultural patterns of conduct of men and women, at the elimination of prejudices, customary practices and other practices based on the idea of inferiority or superiority of either of the sexes, and stereotyped roles of men and women?

India, noting the development of new forms of criminality, asked the Special Rapporteur to elaborate on the prosecution of terrorists who had committed a crime in a foreign country.  Governments should take effective measures to guarantee cooperation between prosecutors and police.  India welcomed recommendations for gender-sensitive prosecution and requested further elaboration on the role of the media in ensuring objective and independent prosecution.  India had followed a holistic approach to address gender-based violence.  The report made references to physical violence against Dalit women and noted that these practice was prevalent in a few states and special laws had been enacted.  Measures concerning the gender-ratio and the persistence of dowry deaths had also been taken, and India recognised the need to address underlying social and cultural concerns. 
 
Penal Reform International, in a joint statement, hoped that the future training of judges, prosecutors, public defenders and lawyers would include that alternatives to prosecution and detention, such as diversion, needed to be considered.  The role of prosecution in many countries filling for pre-trial detention of suspects was diagnosed by experts as an overuse of imprisonment on remand.  Specific needs and characteristics of female offenders had to date been largely overlooked and a gender-sensitive criminal justice system remained disputed.  

European Region of the International Lesbian and Gay Federation, in a joint statement, said that gender-motivated killings were manifestation of patriarchy, multiple and intersecting forms of discrimination against women, and violence accepted, tolerated and justified by States.  The Federation also noted the problem of killings of women based on sexual orientation and gender identity; this constituted an instance of multiple discrimination, fuelled by homophobic statements and positions by New Zealand, Republic of Moldova, as well as State and non-state actors.

Centro Regional de Derechos Humanos y Justicia de Genero said that in Latin America there had been a trend to combat gender-based killings of women through the reforms in domestic criminal law.  Reforms worked towards prevention, awareness raising and the achievement of a normative framework that would allow for adequate punishment of perpetrators.  However, there was not enough information on criminal reforms and so the effectiveness of the measures could not be assessed.  On the high level of impunity, the Centre drew attention for the need of the Human Rights Council to establish follow up to the situation in Latin America and continue gathering detailed country based information.  It also appealed to Latin American States to demonstrate their commitment to the eradication of violence against women through the fulfillment of recommendations of the Special Rapporteur.
HelpAge International in a joint statement said that the abuse, violence and discrimination that older women experienced was often hidden within domestic confines or within the local community.  The current international human rights system did little to shed light on their situation nor support Governments in understanding their obligations to protect and promote their rights.  Could the Special Rapporteur comment on the adequacy of the current human rights mechanisms to protect older women’s rights, including freedom from violence and gender-related killings, and what steps Member States should take to address this?

International Association of Democratic Lawyers said that it was deeply concerned about the underestimation by the Italian Government of its obligation to protect women that survived intimate partner violence and to prevent femicides as a result of this violence.  The Association urged the Italian Government to fully implement the recommendations made by the Special Rapporteur on violence against women, including ratifying the Council of Europe Convention on preventing and combating violence against women and domestic violence, setting up an appropriate system of data collection, and addressing the legal gap in the area of child custody, including provisions for the protection of women and child victims of domestic violence.

Federation of Cuban Women said that in situations of economic crisis women often suffered from violence and the consequences of structural adjustment policies.  According to the World Health Organization, violence represented the main cause of death for women aged 15 to 44.  The lives of Cuban women were of interest in this regard, including stereotypes, however the worst forms of violence currently perpetrated against Cuban women was the unfair blockade imposed by the United States; for example, in the cases of Olga Salanueva and Adriana Perez whom since the arrest of their husbands awaited a visa to visit them in the United States.

Minority Rights Group said that a deeper analysis of the situation of minority women in Somalia would have helped to identify the most vulnerable sectors of society and better inform protection strategies.  The Minority Rights Group welcomed the due attention paid to internally displaced persons and noted harrowing accounts of rape, repeated rape and gang-rape of minority women and girls.  The impunity enjoyed by perpetrators was pervasive; in this context, the Minority Rights Group asked Ms. Manjoo what assurances had been made by the Somali authorities to address the cases of violence against women and girls and the specific situation of minority women?

Antiviolence Centre indicated that Italy was not fighting violence against women.  On the contrary, violence was institutionalised by Italian state actors and agencies which perpetuated stereotypes and prejudice against women.  Victims of domestic violence were not treated properly by courts and there was no recognition of gender-based discrimination and violence as a violation of human rights.  Antiviolence Centre urged the Council to raise the issue of violence against women and domestic violence with the Italian Government.


Concluding Remarks

GABRIELLA KNAUL, Special Rapporteur on the independence of judges and lawyers, appreciated the information received that some recommendations made at the end of her country visits had begun to be implemented, and the will displayed to continue this.  Informal systems lacked guarantees of fair and due process, where there was little or no awareness of international human rights standards or where there were blatantly ignored.  Pending the replacement of these by formal justice systems the appointment of arbitrators was recommended, under concrete conditions including at least expertise in the particular field of dispute, no interest in the outcome of the dispute, and awareness of domestic legislation and international human rights law principles and how to apply them to a situation in question.  Of particular concern were the increased reports of serious threats and attacks against judges, prosecutors and lawyers.  In several countries judges, prosecutors and lawyers suffered acts of intimidation and threats.  Ms. Knaul believed that States had an obligation to adopt protection measures or even full fledged protection programmes for prosecutors.  States were asked to ensure that all threats were reported and investigated and, where possible, that perpetrators were prosecuted and punished.  China was thanked for its view of importance of the role of prosecutors in the judicial system as well as the United States for information it provided on training of prosecutors which could be examined as good practices.  Ms. Knaul looked forward to possible visits to both countries.

The Special Rapporteur believed there was a thin line between independence and accountability of prosecutors.  Any approach should above all be victim-centred.  There should also be an avenue to appeal under certain conditions.  Approaches should be guided by international principles of impartiality of prosecution services.  There was no one-size-fits-all on accountability and autonomy, but international standards to guide assessment of this balance did exist.  With regards to the detention of the five Cubans detained in the United States over the past 14 years, this was being looked at with the Working Group on arbitrary detention.   No response had been received to the letter sent by the Special Rapporteur on the matter.  Prosecutors should be accountable in the discharge of their functions.  The international community could contribute to the capacity building and training of prosecutors and Government officials, especially within the Ministry of Justice.   The value of training and capacity-building could not be overemphasized.   It was underlined that it was possible to have different structures of prosecution services in different countries.  These should be independent and autonomous irrespective of the institutional structure.  

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