A/HRC/32/34
Independence of the Judiciary.6 The work of both Mr. Singhvi and Mr. Joinet led to the
creation in 1994 of the mandate of the Special Rapporteur on the independence of judges
and lawyers.
B.
International legal framework
30.
The international legal framework supporting the mandate’s goals is well established
and universal. It includes treaty law, such as article 14 of the International Covenant on
Civil and Political Rights, adopted by the General Assembly in December 1966 and in force
for 168 States, and its regional counterparts, such as article 6 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms, of 1950, which is in force
for the 47 European States members of the Council of Europe, article 8 of the American
Convention on Human Rights, of 1969, which is in force for 23 States members of the
Organization of American States, article 7 of the African Charter on Human and Peoples’
Rights, of 1981, which is in force for 53 States members of the African Union, or articles
12, 13 and 16 of the Arab Charter on Human Rights, of 2004, which is in force for 13
States members of the League of Arab States.
31.
Article 14 of the International Covenant on Civil and Political Rights, the most
universal of these treaty provisions, has been the object of interpretation by the Human
Rights Committee through its general comments,7 as well as in its jurisprudence and
concluding observations on the periodic reports of States parties to the Covenant. Such
interpretation is extremely valuable in order to assess the scope of the independence of the
justice system and its main features.
32.
The independence of justice is also protected under article 10 of the Universal
Declaration of Human Rights, of 1948, and under articles xviii and xxvi of the American
Declaration of the Rights and Duties of Man, also of 1948. Later, in 1985, the seventh
United Nations Congress on the Prevention of Crime and the Treatment of Offenders
adopted the Basic Principles on the Independence of the Judiciary, which would be
endorsed shortly afterwards by the General Assembly. Moreover, as noted by
Mr. Cumaraswamy in the first report he submitted to the then Commission on Human
Rights, “the general practice of providing independent and impartial justice is accepted by
States as a matter of law and constitutes, therefore, an international custom in the sense of
8
Article 38 (1) (b) of the Statute of the International Court of Justice.”
33.
This rather comprehensive set of international and regional rules and standards was
complemented, five years later, with the Basic Principles on the Role of Lawyers and the
Guidelines on the Role of Prosecutors, adopted in 1990 by the eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders. The Special
Rapporteur notes that, while these principles were first conceived and viewed as additional
essential guarantees to ensure fair and impartial justice for all those prosecuted under
criminal charges, nowadays the independence of the judiciary is no longer strictly
associated with criminal justice matters. Rather, an independent and impartial justice
system is considered integral and inherent to the protection and promotion of human rights
and the rule of law. The independence of the judiciary and the legal profession is also
central to the right to an adequate and effective remedy for human rights violations.
6
7
8
8
See E/CN.4/RES/1989/22.
See, in particular, general comment No. 32 on the right to equality before courts and tribunals
and to a fair trial.
See E/CN.4/1995/39, para. 35.
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