A/HRC/26/32
economically assessable damage, as appropriate and proportional to the gravity of the
violation and the circumstances of each case, such as: physical or mental harm; lost
opportunities, including employment, education and social benefits; moral damage; and
costs required for legal or expert assistance, medicine and medical services, and
psychological and social services. Satisfaction could include judicial and administrative
sanctions against the persons liable for the violation, and guarantees of non-repetition,
which involve, for instance, strengthening the independence of the judiciary as a means of
prevention.
102. The European Convention for the Protection of Human Rights and Fundamental
Freedoms includes the right to access to court (art. 6) as an important element in remedying
violations, and the rights to an effective remedy (art. 13) and reparation (art. 41). In
addition, Protocol No. 7 to the Convention explicitly refers to the right to compensation for
wrongful conviction (art. 3).
103. In the African system, the right to compensation for a miscarriage of justice is also
enunciated in the Principles and Guidelines on the Rights to a Fair Trial and Legal
Assistance in Africa (N, 10 (c)). More specifically, the Principles list a series of measures
to be implemented, including the guarantee that anyone who has been the victim of
unlawful arrest or detention is able to claim compensation (M, 1 (h)).
104. In the Inter-American system, the American Convention on Human Rights
enshrines, in its article 10, the right to be compensated in the event of a miscarriage of
justice and, in its article 25, the right to judicial protection.
105. The Special Rapporteur wishes to call upon States to adopt and implement a
definition of remedy for a miscarriage of justice that is comprehensive and not limited to
criminal cases, in order to provide effective remedies to persons whose human rights have
been violated.
V. Conclusions
106. Accountability, as a component of the rule of law, implies that nobody is above
the law, including judges, prosecutors and lawyers. Judicial accountability exists to
avoid the improper, inadequate or unethical behaviour of justice operators and, as
such, it is closely related to judicial independence. Judicial independence is not
absolute, but limited by the framework set by judicial accountability which, in turn,
must respect the fundamental principles of the independence of the judiciary and the
separation of powers, and its proceedings must be in line with international standards
of due process and fair trial.
107. Judicial accountability can take many forms. Its mechanisms and proceedings
should encompass not only justice operators, but also the justice system as a whole.
Embracing both an individual and institutional perspective, judicial accountability
should respect fundamental human rights principles, guarantee fair proceedings and
follow clear procedures and objective criteria provided for by the law, and be
grounded on established standards of professional conduct in order to avoid it being
used as a means of interfering with the work of members of the judiciary and
hampering their independence and that of the legal profession.
108. Important challenges remain for the implementation of judicial accountability,
such as corporatism, the use of such accountability as an instrument of reprisal or
external and internal pressure against justice operators and the lack of international
standards to help States overcome those difficulties. The Special Rapporteur believes
it is time for States to develop and adopt international standards of judicial
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