A/HRC/35/31
humanitarian law and international law on refugees, international criminal law and the
principles of national and international professional ethics.
C.
Specific issues of concern
69.
The current mandate holder has identified four broad areas of concern related to his
mandate: judicial independence; corruption, organized crime and the independence of
judges and lawyers; protection of the legal profession; and restrictions to the right to a fair
trial and due process of law.
1.
Guaranteeing judicial independence
Interference in, pressures on and threats against the judiciary
70.
The independence of the judiciary is linked to the lack of interference in, pressures
on and threats against the judiciary. To ensure the independence of the judicial system,
judges, lawyers and prosecutors must be free of any interference, pressure or threat that
might affect the impartiality of their judgments and decisions. Otherwise, the independence
of the judicial system would be seriously jeopardized, as its practitioners would not be able
to fulfil their tasks in an objective and independent manner.
71.
Principles 2 and 4 of the Basic Principles on the Independence of the Judiciary
mention the requirement of non-interference in order to guarantee the independence of the
judiciary. Such lack of interference implies that no authority, private group or individual
may interfere in judicial decisions; they must respect and abide by the decisions of the
judiciary. Judges shall decide matters presented before them not only impartially and in
accordance with the law, but without threats or interference. The decision-making process
can be assured only if there is no inappropriate or unwarranted interference with the judicial
process.
72.
The Special Rapporteur would like to stress the importance of protecting the
judiciary and the legal professions from interference and pressures in order to protect
human rights. As stated by Louis Joinet in 1993, fundamental freedoms are all the better
safeguarded to the extent that the judiciary and the legal professions are protected from
interference and pressure (see E/CN.4/Sub.2/1993/25, para. 1).
Role of the media
73.
Freedom of the press constitutes an essential element of freedom of expression, and
is enshrined in many international instruments and national constitutions. A free and
independent press fosters a better-informed society with the capacity to constructively
question government authority, thereby preventing abuses of power. According to the
Madrid Principles on the Relationship between the Media and Judicial Independence, both
the media and the judiciary have a shared responsibility to guarantee freedom of the media
and independence of the judiciary. The judicial system, for its part, has to guarantee the
existence of a free and independent media. On the other hand, the media have an obligation
to respect the rights of individuals, protected by the International Covenant on Civil and
Political Rights, and the independence of the judiciary.
74.
From the outset, the Special Rapporteur has relayed increasing concerns about the
complex relationships between the media and the judiciary. For instance, the Special
Rapporteur worried about the critical issue of how extensive media coverage could affect a
fair and impartial trial, an issue that may be even more relevant with the advent of the
Internet and social media. He stressed that a fine balance had to be struck between the right
of the “consumers” of justice to a fair and impartial trial and the equally important right to
freedom of expression and the corresponding right to information (see E/CN.4/1996/37,
paras. 83-85).
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