A/HRC/32/34
impartially and on an equal footing to all. In doing so, they should ensure that they are
independent, from a personal, a political but also an intellectual point of view. They should
be completely detached from the parties in the litigation. They should also be individually
autonomous and enjoy what Owen Fiss called political insularity, that is, independence
from political institutions and the public in general.14
46.
Lawyers, too, have to commit to the independence of their profession and recognize
the central role they play in the justice chain. Practising law is not a business but a
profession which comes with specific rights but also essential duties and a code of
deontology to respect. Lawyers put their knowledge at the service of representation and
defence of their clients.
E.
Building a domestic culture of judicial independence
47.
Domestic rules and standards are important for many reasons. They have both a
symbolic and a legal value and they inform the public on the behaviours that are acceptable
and those that are prohibited. A review of domestic legal provisions in order to enshrine the
requirements for the independence of judges, lawyers and prosecutors is imperative for
more than one State.
48.
However, norms alone are not sufficient. They require a legal culture, that of the rule
of law, in which respect for the independence of judges and lawyers plays a crucial role.
Such a legal culture is built through both formal education, delivered in law schools and
schools for the judiciary, and informal education, which requires political acts and signals,
including at the highest level of government, to send adequate messages highlighting the
importance of respecting and enforcing these rules. In this case, government officials,
political and social leaders, and academics have an important role to play. An official
discourse hostile to the independence of judges, lawyers and/or prosecutors, even if not
followed by concrete action, contributes to delegitimizing the judiciary and to undermining
the main mechanism at the disposal of democratic societies for the peaceful settlement of
disputes and for providing an effective remedy to victims of human rights violations.
49.
As seen above, a solid set of international legal rules, standards and principles aimed
at ensuring and reinforcing the independence and integrity of the justice system exists
today. In many countries, a comprehensive set of domestic rules and principles is in place
too. Yet, independence should not be taken for granted. Indeed, ensuring independence
requires continuous attention and monitoring to identify and tackle new or re-emerging
problems and challenges triggered by societal, political and economic changes. These
challenges require proper action by States but also adequate monitoring by civil society and
other stakeholders.
IV. Indicators
50.
The Special Rapporteur considers that it is a priority that judges, prosecutors,
lawyers, State institutions, and other stakeholders, including the international community,
be able to gather information on the independence, impartiality and effective functioning of
specific justice systems in a more systematic and consistent way in order to assess them
against international standards on the matter.
14
Owen Fiss, “The limits of judicial independence”, University of Miami Inter-American Law Review,
vol. 25, No. 1, p. 57.
11
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