人权理事会举行关于技术合作问题的年度专题讨论会（部分翻译）

人权理事会
2013年3月19日中午

关注为确保人权而加强司法系统和司法行政中的促进技术合作问题

人权理事会在今天的午间会议上进行了关于技术合作的年度专题讨论，讨论主要关注为确保人权和法治而加强司法系统和司法行政中的促进技术合作问题。

联合国人权事务高级专员纳维·皮莱开启了专题讨论，她指出技术合作是人权高专办方案不可缺少的组成部分，它通过推进建设性对话和积极变革从而帮助识别和处理知识能力上的差距问题。高专办参与了大量旨在加强司法系统和司法行政的活动，在监测活动中所取得的信息和分析也构成了识别能力建设需求和技术合作机会的重要基础。办事处的主要任务之一就是推动包括司法机关在内的所有国家实体更加遵守国际标准。

The moderator of the panel, Thani Thongphakdi, Permanent Representative of Thailand to the United Nations Office at Geneva, said that the exchange of views in this panel discussion would build and expand on the efforts of the Office of the High Commissioner for Human Rights in assisting States in their efforts to strengthen the judiciary and the administration of justice. The objective of the discussion was to promote the sharing of experiences on challenges and good practices, as well as ways to enhance technical cooperation and capacity building in the field of judiciary systems and the administration of justice among all relevant actors.

Information on the thematic discussion can be found here.

The panellists are Param Cumaraswamy, Founding Member of the Regional Working Group for an ASEAN Human Rights Mechanism and former United Nations Special Rapporteur on Independence of Judges and Lawyers; Nasser Amin, Head of the Arab Centre for the Independence of the Judiciary and Legal Profession; Nahla Valji, Programme Specialist, Rule of Law and Transitional Justice, Peace and Security Cluster, the United Nations Entity for Gender Equality and the Empowerment of Women; Julita Lemgruber, Director of the Centre for Studies on Public Security and Citizenship, and Executive Director, Association for Prison Reform; and Andrea Huber, Policy Director of Penal Reform International.

Mr. Cumaraswamy said that while all States did provide a framework for the administration of justice, many in reality were not equipped to meet the expected standards. Domestic application of international human rights standards, particularly through the judicial system, remained a source of concern despite technical assistance rendered by the international community. Technical cooperation to strengthen the administration of justice needed to be tailored to the needs of each State.

Mr. Amin said the judiciary in Egypt was facing new challenges today, with some members of the judiciary aggressed by some State agencies. The multitude of political currents now in place in Egypt thought that the judiciary should not exist, and the only reference should be religion. What was being asked for was technical and capacity-building assistance, international experience and training, as well as help to exert pressure on the Government of Egypt to implement international conventions and treaties that had been entered into, in order to end the crimes against humanity that were being perpetrated.

Ms. Valji said that without equal access to justice, women were unable to claim their rights or challenge abuses committed against them. Access to justice could promote equality with profound impact on broader societies. United Nations Women had found critical factors to strengthen women’s access to justice. There were three key starting factors, namely laws, institutions and participation. There had been much progress in the past few decades in legal reforms.

Ms. Lemgruber said that in Brazil, the results of the Pre-trial Prison Project demonstrated that out of every three pre-trial prisoners accused of minor non-violent crimes, two were illegally deprived of their liberty. This was a clear indictment of all institutions in charge of upholding justice in Brazil; the State Prosecutor Office had failed in its role as overseer of the law and the Public Defenders Office had failed to provide the accused with their lawful right to defense.

Ms. Huber said that pre-trial detention should only be a measure of last resort, but in practice it was handed down systematically. In the world there were about 3.2 million persons held in pre-trial detention. Penal Reform International was working with Governments to promote measures alternative to detention, for example repossession of travel documents from the accused.

In the discussion, speakers said that justice was one of the supreme values of a democratic society and extremely important for its proper functioning. A fully operational judicial body free of external intervention was essential to the judiciary system. A strong, independent and transparent legal system was crucial to ensuring that human rights were enjoyed by everyone in society, and in that respect, taking measures to strengthen the judicial system should be a priority. Technical cooperation and the strengthening of the judicial system were important for achieving good governance. Building a society based on equality required the strengthening of the necessary conditions for the rule of law and the achievement of justice. For that reason, it was crucial for countries to ensure that justice-strengthening elements were in place and conformed to national specificities. Along with strengthening the judicial system, police officers should be trained and educated so that they could fulfil their role. At the same time, a strong accountability mechanism would ensure that the public trusted the judicial system.

Speaking in the discussion were Uruguay, United States, Gabon on behalf of the African Group, Turkey, Chile, European Union, Bahrain, Japan, Indonesia, Maldives, Organisation Internationale de la Francophonie, Ecuador on behalf of the Group of Latin American and Caribbean Countries, Austria, Algeria, Cuba, Togo, Burkina Faso, Morocco, Australia, Council of Europe, Argentina, Norway, Venezuela and Costa Rica.

The following non-governmental organizations also took the floor: Association for the Prevention of Torture, Commission Africaine pour la Promotion de la Santé et des Droits de l’Homme.

理事会今天举行全天会议，将于下午三点进行与科特迪瓦人权状况独立专家的互动对话，并在时间允许的情况下与海地人权状况独立专家进行互动对话。

Opening Statements

REMIGIUSZ A. HENCZEL, President of the Human Rights Council, said that the objective of this panel discussion was to promote the sharing of experiences on challenges and good practices, as well as ways to enhance technical cooperation and capacity-building, in the field of the judiciary system and the administration of justice among all relevant actors.

NAVI PILLAY, United Nations High Commissioner for Human Rights, opening the discussion, said that her Office had submitted a report to this session that provided an overview of the various activities undertaken by the United Nations and regional organizations in support of efforts by States to strengthen their judiciary systems and the administration of justice. The report listed a range of activities and one common feature of these was their support for States in their efforts to ensure the implementation of human rights standards relevant to the administration of justice. These standards together with the recommendations of human rights treaty bodies, Special Procedures and the Universal Periodic Review provided a solid foundation for achieving needed reforms in the administration of justice. Clustered and prioritized, these recommendations made up key elements of any national action plan on human rights and the administration of justice.

Technical cooperation was an integral component of the Office of the High Commissioner’s programmes and helped identify and address knowledge capacity gaps by facilitating constructive dialogue and positive change. The Office was involved in a large number of activities to strengthen the judiciary and the administration of justice. The information and analysis that resulted from the Office’s monitoring activities constituted an important basis for identifying capacity-building needs and opportunities for technical cooperation. One of the Office’s key mandates was to support increased compliance with international standards by all State entities, including the judiciary. Core activities also included the organization or facilitation of capacity building through numerous human rights trainings. The Office also continued its efforts to ensure increased access to justice for individuals and groups facing discrimination, and supported the specific needs of countries that were recovering from conflict or repressive rule by the establishment of transitional justice mechanisms. Ms. Pillay looked forward to ideas on how to further enhance technical cooperation and capacity building in the administration of justice, so as to continue to respond to national needs around the globe.

Statements by the Moderator and Panellists

THANI THONGPHAKDI, Permanent Representative of Thailand to the United Nations Office at Geneva and the Panel Moderator, said that the exchange of views in this panel discussion would build and expand on the efforts of the Office of the High Commissioner for Human Rights in assisting States in their efforts to strengthen the judiciary and the administration of justice. The objective of the discussion was to promote the sharing of experiences on challenges and good practices, as well as ways to enhance technical cooperation and capacity building in the field of judiciary systems and the administration of justice among all relevant actors. The panel would provide an opportunity for all stakeholders to engage with each other, and to explore how the United Nations agencies, Funds and Programmes could further respond to States’ needs, especially upon their requests on capacity building in implementing human rights obligations in this area.

PARAM CUMARASWAMY, Founding Member of the Regional Working Group for an ASEAN Human Rights Mechanism and former Special Rapporteur of the Commission of Human Rights on the independence of judges and lawyers, said that while all States did provide a framework for the administration of justice, many in reality were not equipped to meet the expected standards. Domestic application of international human rights standards, particularly through the judicial system, remained a source of concern despite technical assistance rendered by the international community. Judicial corruption continued to show its ugly head in some States and its prevalence in the 1980s led some Governments to call for greater judicial accountability. The United Nations Basic Principles on the Independence of the Judiciary provided standards for judicial accountability and greater efforts needed to be made to implement the Bangalore Principles of Judicial Conduct, endorsed unanimously by the Human Rights Council in 2003. Technical cooperation to strengthen the administration of justice needed to be tailored to the needs of each State and the advance needs study must include a number of elements, including the level of knowledge on international human rights law among judges, lawyers and prosecutors. Without making such an assessment, technical assistance would be an exercise in futility.

NASSER AMIN, Director of the Arab Centre for the Independence of the Judiciary and Legal Profession in Cairo, Egypt, said the judiciary in Egypt was going through difficult circumstances. It was hoped that after the revolution it would have been better but unfortunately many and more difficult challenges remained. Before the revolution the judiciary system faced a number of challenges including those in the field of capacity building, the legal profession, the judiciary, and many of these challenges resulted in the absence of any independence of the judiciary. There had been many attempts by human rights organizations and non-governmental organizations that fought for the independence of the judiciary and to reveal the immoral practices of the Egyptian Government that ran counter to international standards in the field of the judiciary. Today the judiciary was facing new challenges, with some members of the judiciary aggressed by some State agencies. The multitude of political currents now in place in Egypt thought that the judiciary should not exist, and the only reference should be religion. What was being asked for was technical and capacity-building assistance, international experience and trainings, as well as help to exert pressure on the Government of Egypt to implement international conventions and treaties that had been entered into, in order to end the crimes against humanity that were being perpetrated.

NAHLA VALJI, Programme Specialist, Rule of Law and Transitional Justice at UN Women, said on women’s access to justice, that many were aware of the statistics, including that more than half of working women worked in vulnerable employment. One third of countries restricted women’s abilities to work in the same industries as men, and millions of women would experience violence in some form in their lives with profound consequences on their health and well-being. Without equal access to justice, women were unable to claim their rights or challenge abuses committed against them. Access to justice could promote equality with profound impact. United Nations Women had found critical factors to strengthen women’s access to justice. There were three key starting factors, namely laws, institutions and participation. There had been much progress in the past few decades in legal reforms. Although laws themselves were insufficient to deliver justice for women, their contributions could not be ignored. Innovative solutions were needed. Women’s representation and participation was essential for the rule of law. When women were at the frontlines of justice and security, service delivery and an increase in instances of violence being reported was found. Women in the aftermath of conflict had less access to justice precisely when this was most needed. Post conflict societies paradoxically also presented a unique opportunity for change. Real gains had been made yet in reality, in almost every society, the protection offered by the rule of law fell short for women.

JULITA LEMGRUBER, Director of the Centre for Studies on Public Security and Citizenship at the University of Candido Mendes in Rio de Janeiro, Brazil and the Executive Director of the Association for Prison Reform, said that Brazil had the fourth largest prison population in the world, which had tripled over the past 15 years; overcrowding was high and the living conditions were cruel. The results of the Pre-trial Prison Project demonstrated that out of every three pre-trial prisoners accused of minor non-violent crimes, two were illegally deprived of their liberty. This was a clear indictment of all institutions in charge of upholding justice in Brazil; the State Prosecutor Office had failed in its role as overseer of the law and the Public Defenders Office had failed to provide the accused with their lawful right to defense. In the area of civilian oversight of the police, there was a project which evaluated the community policing models in 31 slum areas in the city of Rio in 2008 and had pointed out problems that must be overcome for sustainability of the model.

ANDREA HUBER, Policy Director, Penal Reform International, said that pre-trial detention should only be a measure of last resort, but in practice it was handed down systematically; in the world there were about 3.2 million persons held in pre-trial detention. Penal Reform International was working with Governments to promote measures alternative to detention, for example repossession of travel documents from the accused. Studies demonstrated that detention compromised legal defence and in many countries there were too few lawyers to represent detainees; many were based in cities and were not available to prisoners who were mainly from poor and marginalized strata of society. The United Nations Bangkok Rules filled the gap in standards by addressing the detention of women and Penal Reform International was developing a toolbox to help the implementation of the Rules, which explained the rationale behind each rule, how to implement them and who they addressed.

THANI THONGPHAKDI, Permanent Representative of Thailand to the United Nations Office at Geneva and the Panel Moderator, highlighted the issues raised by panellists, all of which pointed to the need for continuing technical cooperation. Those included: domestic application of rules, judicial corruption and conduct; the importance of the independence of the judiciary and the need to provide them with independence and security; ensuring access to justice for women by addressing the relevant laws and institutions; importance of civilian oversight of the police; and access to early legal aid, particularly for vulnerable persons.

Discussion

Uruguay said that justice was one of the supreme values of a democratic society and extremely important for its proper functioning. A fully operational judicial body free of external intervention was essential to the judiciary system. United States said that a strong, independent and transparent legal system was crucial to ensuring that human rights were enjoyed by everyone in society. In that respect, taking measures to strengthen the judicial system should be a priority. Gabon on behalf of the African Group said that technical cooperation and the strengthening of the judicial system were important for achieving good governance, and praised the diversity of activities undertaken by the United Nations system in terms of standard setting. Turkey said that issues such as mainstreaming, capacity building and education should be given priority by the Council, and stressed that in order to increase the body’s efficiency and credibility additional resources were required. All countries should carry out reform measures to strengthen their judiciary. Chile said that technical assistance and capacity building were essential for reinforcing the judicial system of countries. Improving access to justice of vulnerable populations was an issue which needed to be addressed. European Union said that an independent and well-functioning judicial system was essential for the rule of law, and its strengthening could contribute to the prevention of human rights violations. The European Union had several tools at its disposal to assist countries to strengthen their judicial systems. Bahrain on behalf of the Arab Group said that building a society based on equality required strengthening of the necessary conditions for the rule of law and the achievement of justice. For that reason, it was crucial for countries to ensure that justice-strengthening elements were in place and conformed to national specificities. Japan said that the realization of the rule of law was indispensable for the promotion and protection of human rights, and reported that it had been assisting with the implementation of the penal code in Cambodia. What efforts were being made to ensure the effective coordination of various actors?

Indonesia underlined the need for the Council to focus on dialogue and good practices in order to promote capacity building in consultation with the State concerned, taking into account the State’s specific needs and processes. Maldives said that along with strengthening the judicial system, police officers should be trained and educated so that they could fulfil their role. At the same time, a strong accountability mechanism would ensure that the public trusted the judicial system. Organisation Internationale de la Francophonie said that it had assisted in the capacity building of judicial institutions and legal practitioners, and had also undertaken work in the areas of expertise and knowledge of institutional networks of “francophonie”. Ecuador on behalf of the Group of Latin American and Caribbean Countries said that democracy and sustainable development were inextricably linked and that technical cooperation could contribute to the reduction of social inequalities so that all, especially the most vulnerable in society, could enjoy their rights. Association for the Prevention of Torture said that regular visits to police stations, detention centres and prisons contributed to strengthening the justice system. Commission Africaine pour la Promotion de la Santé et des Droits de l’Homme said that Guinea was going through a critical period and that it was in need of technology and foreign capital. Technical cooperation should not lead to depletion of its national resources.

THANI THONGPHAKDI, Permanent Representative of Thailand to the United Nations Office at Geneva and the Panel Moderator, said there seemed to be consensus on the importance of this issue. There was particular emphasis on the need to ensure an independent and legal system, as well as general consensus that technical assistance should be provided with the consent of States and that it should be tailored to particular societies.

JULITA LEMGRUBER, Director of the Centre for Studies on Public Security and Citizenship at the University of Candido Mendes in Rio de Janeiro, Brazil and the Executive Director of the Association for Prison Reform, in response to a question from Chile on ways to curtail overcrowding in prison systems, said that in Brazil there was a National Justice Council which was an oversight mechanism put together by the Supreme Court to oversee the State courts. It created a body to monitor and inspect prisons. In the last few years, the work of this mechanism created by the National Justice Council managed to release almost 40,000 prisoners in the whole country that were being held illegally. The issue of pre-trial prisoners was indeed key. This mechanism had contributed a lot as did the work of different non-governmental organizations in this area.

NAHLA VALJI, Programme Specialist, Rule of Law and Transitional Justice at United Nations Women, addressed two questions on the coordination of the United Nations on issues of the rule of law, and on the impact of United Nations Women in this area. On cooperation within the United Nations system, within the system there were two key mechanisms for coordination and there was a priority placed on joint programming and coordination. On the second question and the impact of United Nations Women, it had found that by focusing on concrete obstacles faced by women, there could be the most significant impact. In some countries United Nations Women was working to ensure access to identity documents, and working closely with women’s legal organizations and women’s organizations on the ground. It was also providing direct legal aid, as the ability to access legal aid in order to support access to justice was critically important.

NASSER AMIN, Head of Arab Centre for the Independence of the Judiciary and Legal Profession, said that, concerning the areas of international cooperation in support of the judicial system, the differing needs of countries in various regions should be taken into account and technical cooperation should be provided according to needs. Cooperation should also be used for improving the conditions in which some courts and judges worked, which in certain cases were inhuman and cruel. Regarding overcrowding in prisons, that could be reduced if they ensured that preventive detention was used less and less.

ANDREA HUBER, Policy Director, Penal Reform International, said that reviewing the criminal code and making sure that sentences handed down to persons were proportionate and appropriate was a good start to reducing prison overcrowding. Wherever detention was unnecessary it should be replaced by non-custodial measures, which should help to reduce significantly prison overcrowding.

PARAM CUMARASWAMY, former Special Rapporteur of the Commission of Human Rights on the independence of judges and lawyers, said that technical cooperation programmes for strengthening the administration of justice must be tailor-made to address the needs of each State and must include advance needs assessment. Administration of justice programmes must take into account several kinds of sensitivities. A sensitivity to keep in mind was traditional resistance of judges to training programmes; getting further education was bad for their image and they did not want to be seen sitting together with prosecutors and lawyers in those training programmes. Judges needed separate programmes, even if that option was not the most cost-effective one.

Norway said that to build truly just societies a broad conception of justice must be employed; justice was more than punitive measures, but was fairness founded on the principles of equality and liberty; its principles must be accessible to all in order to develop a culture of trust, which was key to effective functioning of judicial systems and society as a whole. Austria said that worldwide, at any given time there were 10 million individuals in some form of detention, of which one million were under the age of 18 and half million were women; they often had not seen the judge and lingered in pre-trial detention, far exceeding the time limits established by international law. Minors constituted a significant group that the judicial systems needed to deal with, noted Costa Rica, adding that the international community must join efforts to ensure that technical cooperation on this subject was strengthened.

Regardless of the progress made in strengthening the judiciary and the administration of justice, the collective efforts of the international community could be improved, said Australia, asking how more robust data on the impact of measures aiming to strengthen the administration of justice and the judiciary could be obtained? Morocco stressed that the United Nations should “deliver as one” in its rule of law cluster of work and ensure that its agencies did not work in isolation from each other, but should be an intelligent synthesis of their contributions. Venezuela agreed that technical cooperation in the field of access to justice could contribute to the reduction of social inequalities and be an instrument for the defense of human rights, with mechanisms accessible to all, especially the most vulnerable.

Burkina Faso said that the administration of justice was closely intertwined to literacy rates and the progress in education over the past 20 years had played a key role in increasing access to justice for the population. Cuba said that much could be done in the area of the administration of justice where genuine political will existed, and Algeria stressed the importance of close cooperation with States, South-South cooperation and participation of civil society for effectiveness of technical cooperation and assistance programmes. Togo was critical of the inclination to civil and political rights at the expense of economic, social and cultural rights in technical cooperation programmes.

Argentina was involved in a number of cooperation projects across the region aiming to strengthen the judiciary and the administration of justice, while the Council of Europe offered assistance to all its Member States and had developed specific cooperation programmes aimed at supporting countries outside of Europe, for example in Tunisia and Morocco.

PARAM CUMARASWAMY, Founding Member of the Regional Working Group for an ASEAN Human Rights Mechanism and Former United Nations Special Rapporteur on Independence of Judges and Lawyers, 1994-2003, in concluding remarks underlined the role of the people and said that sometimes the public did not realize the importance of having an independent and impartial judiciary. Public confidence in the judiciary could help to strengthen the justice system even more.

NASSER AMIN, Head of Arab Centre for the Independence of the Judiciary and Legal Profession, in concluding remarks, said that legal cooperation with a county or Government which did not abide by international principles would lead nowhere. Therefore, international rules were necessary, as was ratification of international conventions by a State. It was also necessary to highlight the independence of the judicial branch, and from that stemmed the need to train magistrates and judges appropriately.

NAHLA VALJI, Programme Specialist, Rule of Law and Transitional Justice, Peace and Security Cluster, United Nations Women, in concluding remarks, said that disaggregated data collected in an appropriate way was crucial to understanding how women were treated by the judicial system. Without the dedicated resources and the necessary tracking of spending it was impossible to evaluate women’s access to justice.

JULITA LEMGRUBER, Director of the Centre for Studies on Public Security and Citizenship at the University of Candido Mendes in Rio de Janeiro, Brazil and the Executive Director of the Association for Prison Reform, said that specific efforts must be made in specific countries to collect reliable data on pre-trial detention; this was an area to focus on given that in many countries up to two-thirds of detainees were pre-trial ones. The clear picture of the situation and the focus on reducing pre-trial detention would also assist in dealing with prison overcrowding.

ANDREA HUBER, Policy Director, Penal Reform International, said that the right of liberty needed to be observed in justice systems which should ensure that people were deprived of their liberty only on a legal basis, that presumption of innocence was maintained, that legal aid was provided, and that torture and ill treatment were prevented.

MONA RISHMAWI, Chief of the Rule of Law and Democracy Unit, Office of the High Commissioner for Human Rights, said that there were nine United Nations entities working on coordinating their activities and were developing policy guidance on the rule of law; the Office of the High Commissioner for Human Rights was at the heart of those efforts. Following the General Assembly discussions on the rule of law last year, the United Nations Secretary-General had designated the Office to co-lead United Nations action with regard to the rule of law at the international level and had designated global focal points on justice and policing in which the Office of the High Commissioner also participated.

GIANNI MAGAZZENI, Chief of the Americas, Europe and Central Asia Branch in Field Operations and Technical Cooperation Division, Office of the High Commissioner for Human Rights (OHCHR), pointed out that strengthening rule of law institutions was at the core of the work of OHCHR field presences worldwide. As indicated by the High Commissioner at the opening of the thematic discussion, recommendations from the international human rights system, if clustered and prioritized, contained the essential elements of a national action plan for human rights. On the issue of coordination at country level, he pointed out that this plan, if incorporated into the national development plan, could provide guidance to the various agencies of the United Nations system, regional organizations and the wider international community, including bilateral donors, and lead to joint planning and programming. He also noted that technical cooperation was an important part of the work of the Office and that a report by the Board of Trustees of the Voluntary Fund for Technical Cooperation was going to be available at the next session of the Human Rights Council, in June. He emphasized the important role of regional organizations and the potential for joint action at country level.

THANI THONGPHAKDI, Permanent Representative of Thailand to the United Nations Office at Geneva and Panel Discussion Moderator summarizing the concluding remarks, said that the judicial system was important for the promotion and protection of human rights. Issues raised by the panellists included the need to provide assistance to women in vulnerable situations and to child and juvenile offenders, the need for adequate financial resources and training, and the need for greater cooperation at regional and national levels.

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