Statement by Diego García-Sayán, Special Rapporteur on the Independence of Judges and Lawyers, at the 41st session of the Human Rights Council

24 June 2019

Mr. Chair,
Distinguished Delegates,
Ladies and Gentlemen,

It is my great pleasure and honour to present to you my third thematic report to the Human Rights Council since assuming the role of special rapporteur in January 2017.

Before presenting the key points of the report I submitted for your consideration, please allow me to give you a brief overview of the activities I carried out since I last appeared before this Council.

In October last year, I presented my second report to the General Assembly. The report, which mirrors the report on national judicial council that I had presented to the Council in June, focused on the essential role that bar associations and professional associations of lawyers play in safeguarding the independence and integrity of the legal profession. It highlighted various forms of interference with the free and independent exercise of the legal profession, and identified a number of good practices to ensure the independence and effectiveness of bar associations.

Unfortunately, I was unable to carry out any official visit during the course of last year.

My visit to Guatemala, scheduled to take place in August 2018, was postponed to a later date at the request of national authorities.

My visit to Morocco, supposed to take place in October and then postponed to March 2019, did not materialise because of a disagreement with State authorities in relation to the places to visit and the schedule of work.

In a press release issued on 19 March, I expressed my regret that the necessary conditions for my visit to Morocco had not been fulfilled, and stressed that under the terms of reference for visits by special rapporteurs, governments are required to guarantee and facilitate the mandate holders’ freedom of movement and freedom of inquiry. This freedom includes, in particular, the right not to visit a particular city or territory proposed by national authorities.

I remain available to visit Morocco once the conditions for a free and independent assessment, including the respect of my priorities in relation to places to visit, are met by national authorities.

This year, I intend to carry out two official visits. I would like to thank the Government of Honduras for accepting my request for a visit, and look forward to my mission, which is being organized in coordination with national authorities and that will take place from 16 to 22 August. I am also pleased to have received an invitation to visit Uzbekistan during the course of 2019. I have proposed to national authorities that my visit take place between 19 and 26 September 2019. I look forward to their official confirmation in order to start organising this visit.

From June 2018 to end of May 2019, I sent 57 communications to States, alone or together with other mandate holders. Most of the communications are about alleged interferences with the professional activities carried out by judges and lawyers, perpetrated either by State authorities (for instance, members of the executive branch of power) or by private actors (intimidations and threats from the press or the organised crime).

An increasing number of communications have been devoted to commentaries on national laws, regulations and policies related to the system of administration of justice and the exercise of the legal profession.

During the course of last year, I continued to work closely with a number of international and regional organisations, including the UNODC, the IDLO, the Venice Commission, the OSCE Office for Democratic Institutions and Human Rights and the Inter-American system. I also participated in several meetings and events organised by professional associations of judges and lawyers, including the International Association of Judges and the International Bar Association, and civil society organisations.

Mr. Chair,

Distinguished delegates,

In this year’s report, I focus on the exercise of the rights to freedom of expression, association and peaceful assembly by judges and prosecutors, both offline and online.

It is commonly accepted that judges and prosecutors are entitled to exercise the right to freedom of expression, belief, association and assembly, as well as political rights, on an equal basis with others. It is also clear, however, that the exercise of these freedoms may be subject to specific restrictions that aim at preserving the dignity of their office and, in the case of judges, the independence and impartiality of courts and tribunals.

Since the inception of the mandate, my predecessors and I have addressed several cases of judges and prosecutors who have been subject to disciplinary sanctions, including suspension and removal from office, for alleged violations of their duties as civil servants, in particular the obligation to exercise restraint.

In some of these cases, the interference with the exercise of their fundamental freedoms of judges or prosecutors could not be regarded as being necessary in a democratic society to pursue a legitimate aim. On the contrary, it appeared to be an expedient to punish a judge for the opinions expressed or the actions taken in the exercise of his or her profession. In some circumstances, the severity of the sanction was such as having a ‘chilling effect’ on other members of the judiciary or public prosecution, who were discouraged from expressing critical views out of fear of being subject to punitive measures.

The aim of my report is to offer practical guidance to State authorities in striking a fair balance between the fundamental rights of individual judges and prosecutors and the legitimate interest of a democratic State in ensuring the independence, impartiality and authority of its civil service. The report also seeks to provide guidance to judges and prosecutors in their efforts to exercise their fundamental freedoms in a way that is consistent with the dignity of their profession and with their obligations as civil servants.

Mr. Chair,

Distinguished delegates,

It is universally acknowledged that the right to freedom of expression constitutes the foundation of democracy and the necessary pre-condition for the exercise of a wide range of other human rights, including the rights to freedom of religion, assembly, association, participation in public affairs and the effective exercise of the right to vote. At the same time, it is also universally recognised that it is not an absolute right, and every democracy has developed some system of limitations on freedom of expression.

International and regional standards recognise that “everyone” – including judges and prosecutors – has the right to freedom of opinion and expression, that the exercise of this freedom “carries with it special duties and responsibilities” and that restrictions to the exercise of this right are only permissible if they are prescribed by law, serve a legitimate aim and are deemed necessary in a democratic society. Assessing the legitimacy of such restrictions is, however, an extremely complex matter.

The report shows that international and regional human rights courts have played an important role in assessing the legitimacy of restrictions imposed on the exercise of freedom of expression by judges and lawyers. In light of this rich jurisprudence, I would like to stress the following:

• First, in exercising their freedom of expression, judges and prosecutors should always bear in mind their responsibilities and duties as civil servants. Consequently, they should exercise restraint in expressing their views and opinions in any circumstance when, in the eyes of a reasonable observer, their statement could objectively compromise their office or their independence or impartiality.
• Second, judges and prosecutors should not, in principle, be involved in public controversies. In limited circumstances, however, they may express their views and opinions on issues that are politically sensitive, for example when they participate in public debates concerning legislation and policies that may affect the judiciary or the prosecution service.
• Third, in cases where judges and prosecutors consider it a moral duty to speak, for example to express opposition to war or demand action on environmental degradation, it is generally permissible for them to participate in peaceful demonstrations. The report highlights how, in times of grave democratic crises, judges, alone or/and in association with other judges, have not only the right, but also the duty, to speak up in favour of the restauration of the democratic order. The report also reflects the fact that, , norms that ordinarily restrict the right of judges to participate in politics, are not applicable to their actions in defence of the rule of law.
• Fourth, judges and prosecutors should show circumspection in their relations with the press. They should always refrain from comments on the cases they are dealing with, and avoid any unjustified observations that may call their impartiality into question.
• And fifth, judges and prosecutors should be cautious when using social media. In the report, I noted that international instruments do not provide any guidance on how judges and prosecutors could exercise their freedoms online, and that human rights courts and mechanisms have not yet had the opportunity to clarify the kind of conduct that is expected from a judge or a prosecutor in the exercise of his or her freedom online. Furthermore, only a few countries have developed specific legislation or ethical standards to regulate the conduct of judges and prosecutors on social media. In this regard, I would like to encourage professional associations of judges and prosecutors to develop specific guidelines on the use of social media in a way that is consistent with the dignity of their office.

Mr. Chair,

Distinguished delegates,

Existing legal standards provide that judges and prosecutors should not be isolated from the society in which they live. They remain generally free to engage in the extra-professional activities of their choice, but since such activities may jeopardize the dignity of their office or even their independence and impartiality, a reasonable balance needs to be struck between the degree to which judges and prosecutors may be involved in society and the need for them to be, and to be seen as, independent and impartial in the discharge of their duties.

With regard to the participation of judges and prosecutors in peaceful demonstrations, I would like to stress that it is always permissible for them to participate in order to defend their professional interests or protest against threats that may undermine the independence of the judiciary or the principle of separation of powers. Their legitimacy to participate in other demonstrations depends on the nature of the protest, and whether their participation may be seen as being incompatible with the authority of their institution or inconsistent with their duty to be, and to be perceived as, independent and impartial. International jurisprudence shows that in cases where judges and prosecutors consider it a moral duty to speak, for example to express opposition to war or to demand action on environmental degradation, it is generally permissible for them to participate in peaceful demonstrations.

In relation to the exercise of the right to freedom of association, existing standards recognise that, in addition to the right to form and join professional organizations to protect their professional interests, judges and prosecutors can also be members of other organisations, provided that their membership does not compromise the dignity of their office or their independence and impartiality.

Mr. Chair,

Distinguished delegates,

Let me know move to political rights, which are intimately linked to the exercise of the fundamental freedoms that I have referred to before.

As citizens, judges and prosecutors are allowed to exercise their political rights on an equal basis with other citizens. However, their direct participation in political activities poses some dilemmas. In general terms, it is widely accepted that judges should show restraint in the exercise of public political activity in order to preserve public confidence in the judicial system. Even in cases where their membership of a political party or their participation in public debate is not expressly prohibited, it is necessary for judges and prosecutor to refrain from any political activity that may compromise their independence or jeopardize the appearance of impartiality.

This does not mean, however, that judges and prosecutors should refrain from expressing their views on any issue that may have political implications. In general terms, they are allowed to make comments in defence of fundamental human rights and the rule of law, or to participate in activities or debates concerning national judicial policy or the administration of justice in the country. They can also be consulted, and should indeed play an active role, in any discussion concerning the development of new legislation concerning their status and, more generally, the functioning of the judicial system.

With regard to direct involvement in politics, the report notes that there is no general international consensus on whether judges and prosecutors should be free to participate in politics or not. Even where it is not expressly prohibited, it is necessary for judges and prosecutors to refrain from any political activity that might compromise their independence or jeopardize the appearance of impartiality.

Mr. Chair,
Distinguished delegates,

Before I conclude, let me say a few words on the status of international legal standards on the independence of the judiciary and the free exercise of the legal profession. Next year, we will celebrate the 35th anniversary of the Basic Principles on the Independence of the Judiciary, endorsed by the General Assembly in 1985, and the 30th anniversary of the Basic Principles on the Role of Lawyers.

These instruments represent authoritative sets of international norms that have contributed to upholding the independence of the judiciary and the legal profession against various forms of interference, threats and pressure put in place by both State institutions and private actors. Many of the principles enshrined in these seminal legal instruments can now be regarded as customary norms or general principles of law recognised by civilised nations.

However, the existence of a solid set of international legal rules, standards and principles aimed at ensuring and reinforcing the independence and integrity of the justice system as a whole should not be taken for granted. Ensuring this independence requires continuous attention and monitoring to identify and tackle newly or re-emerging problems and challenges triggered by societal, political and economic changes.

The 35th anniversary of the Basic Principles offers us an invaluable opportunity to reflect on the crucial role they have played in strengthening judicial independence at the national level. Nevertheless, it could also represent an opportunity to take stock of new threats to judicial independence that have emerged in the last three decades, with a view to identifying new instruments to tackle the challenges the judiciary should face today. This is a core aspect of the mandate entrusted to me, and it is my intention to contribute with my expertise to further strengthen the protection afforded by these important instruments to all judges and lawyers in the world.

Along the year I have promoted different meetings, gatherings and debates on this matter in different countries and with several judges, prosecutors and lawyers. While different matters have been mentioned, two issues have been identified as deserving particular attention.

First, global and transnational corruption has been identified as a major threat for judges and prosecutors, who at the same time have a major role, according to the United Nations Convention against Corruption, in combating corruption. The Convention recognises that in order to play this role effectively, the judiciary itself must be free of corruption and its members must act with integrity.

Second, the relevance of the principles of integrity, propriety, equality, competence and diligence in the discharge of the judicial office has not been sufficiently underscored in the Basic Principles. The inclusion of these values in the Basic Principles would also contribute to giving a more prominent role to the Bangalore Principles on Judicial Conduct, which have so far been endorsed only by the Economic and Social Council.

In February of this year, I brought together in New York a number of distinguished legal practitioners from all regions of the world to discuss this matter. Last month, I discussed this with a number of State representatives and experts in the context of the session of the Commission on Crime Prevention and Criminal Justice in Vienna. The initial responses I gathered were encouraging.

I will now devote my forthcoming report to the General Assembly to a critical assessment of the Basic Principles on the Independence of the Judiciary, with the hope that it could contribute to shedding light on issues that have not been sufficiently addressed in the Basic Principles.

It is my hope that the Fourteenth United Nations Congress on Crime Prevention and Criminal Justice, which will be held in Kyoto next April, will offer an opportunity to reflect on these current threats and challenges for independence of justice, and will provide a clear mandate to the relevant bodies in the UN to initiate a formal inter-Governmental process aimed at integrating new legal standards in the Basic Principles on judicial independence. I stand ready to provide my expertise to this process, in order to contribute to the strengthening of the protection afforded to judges and lawyers against any threat, intimidation, harassment or interference.

Thank you for your attention.