A/HRC/35/31
courts, including the rights to judicial protection and fair trial, due process and
independence of the judiciary.
22.
The Special Rapporteur will come back to the issue of setting up a clear agenda for
the effective implementation of international instruments related to the independence of the
justice system, including via the application of international law and jurisprudence in
domestic courts, in future report.
B.
Overview of the thematic work accomplished since the establishment of
the mandate
23.
The issues and situations addressed by the successive mandate holders were
complex and often interrelated, each with its own importance if the justice system is to
fulfil its role in the protection of human rights in an independent, impartial and fair manner.
In the section below, the Special Rapporteur provides a review of this wealth of work, with
a view to taking stock of achievements and identifying questions, problems and challenges
which should frame his work, and on which he intends to focus his efforts.
1.
Judicial independence
24.
Article 10 of the Universal Declaration of Human Rights protects judicial
independence. This is an obligation to be guaranteed and not a privilege that States may
grant. The Basic Principles on the Independence of the Judiciary deal with the following
subjects: (a) independence of the judiciary; (b) freedom of expression and association; (c)
qualifications, selection and training; (d) conditions of service and tenure; (e) professional
secrecy and immunity; and (f) discipline, suspension and removal.
25.
The United Nations system has highlighted the importance of integrity and
independence of the justice sector in many resolutions, 3 as well as of the fight against
corruption. Building on these efforts, in 1997 the Special Rapporteur noted that attacks on
the independence of judges and lawyers were not confined to developing countries.
Therefore, he underscored the universality of the threat to the independence of judges and
lawyers and the need for constant international vigilance (see E/CN.4/1997/32, para. 190).
26.
In 2004, after having reviewed the work of his predecessor, the Special Rapporteur
noted that the independence of judges and lawyers was at risk throughout the world,
although to varying degrees and for reasons or in forms that are sometimes quite different
(E/CN.4/2004/60, p. 11).
Requirements and conditions of judicial independence
27.
In his first report to the Commission on Human Rights, the Special Rapporteur noted
that, with regard to some issues, reiteration might be necessary in relation to the principle of
the separation of powers, which is the bedrock upon which the requirements of judicial
independence and impartiality are founded (see E/CN.4/1995/39, para. 55).
28.
The mandate of the Special Rapporteur is not limited to defending individuals
engaged in a judicial activity, but includes looking into the individual attributes and
institutional conditions necessary to an independent and impartial justice for the benefit of
the consumers of justice rather than a privilege of the judiciary for its own sake (see
E/CN.4/2004/60, para. 27).
29.
The Special Rapporteur has reiterated the misconception or misunderstanding often
prevailing around the function of judicial review, or its equivalent, of the constitutionality
or legality of executive decisions, administrative orders and legislative acts. The process of
judicial review serves to check executive and legislative excesses by upholding the rule of
law, noting that in principle this is not a matter of substitution of functions (see
E/CN.4/1995/39, para. 56).
3
6
See, for instance, paragraph 15 of resolution 5/4 and paragraph 5 of resolution 6/6 of the Conference
of the States Parties to the United Nations Convention against Corruption.
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