A/HRC/4/25
page 20
65.
However, the activity of the Special Rapporteur shows that the administration of justice
in general, and the right to due process in particular, are among the principal victims of
exceptional measures. Often, judicial oversight of executive action is weakened by measures
intended to undermine the independence of the judicial system during crisis periods. Similarly,
through legislative reforms and other provisions, practices such as indefinite detention without
charges, restriction of the right to legal aid, the expulsion of foreigners to countries where torture
is practised, and the establishment of special pseudo-courts that do not meet the minimum
requirements of independence and impartiality have become widespread.
66.
The report also covers situations in which the judiciary has displayed independence and
determination in responding to such measures, highlighting the importance of efforts by the
judiciary to put a stop to ultra vires acts by other authorities. Starting from the premise that the
lives of citizens must be protected and the fundamental values of the nation upheld, some courts
have challenged the grounds governments give for declaring states of emergency, and have,
among other things, questioned whether terrorism is an “exceptional danger threatening the life
of society”. What is more, in many cases they have annulled measures that are particularly
detrimental to fundamental rights.
67.
The Special Rapporteur pays particular attention in his work to the activities of the
specialized tribunals. This report refers to two of them, including the tribunal in Iraq, whose
activities have been followed up in a series of reports, and where he has had to intervene on
many occasions as a result of the assassination of judges, lawyers and court officers and the
failure to observe international standards relating to the right to a fair trial. The establishment of
the Extraordinary Chambers in Cambodia is welcomed, and efforts to end the impunity of those
who have committed grave human rights violations are encouraged.
68.
Lastly, opportunities for spreading information about the special rapporteurs’ activities
have increased considerably with developments in computer science and the media. This has
also served to enhance the efficiency of their missions and the interest of the general public in
their results. Such topical visibility is a fundamental and integral part of the work of experts.
VI. RECOMMENDATIONS
69.
The Special Rapporteur invites the Human Rights Council to increase still further
its efforts to defend the work being accomplished by different actors involved in the
administration of justice and to consider every year the scale and gravity of problems
affecting the judicial system and its independence, with a view to recommending that States
should adopt specific measures intended to guarantee to judicial employees the safety and
protection they require to perform their duties properly.
70.
In the light of the findings set out above, it is imperative for the Council to
strengthen the work of the Special Rapporteur by granting him the resources he needs to
do his work more effectively, and to enable him to expand his activities.
71.
It is also important that in its support and technical cooperation activities the
United Nations should promote the theme of justice, especially with respect to countries
which are in transition or are recovering from an armed conflict which has had a serious
impact on nation-building.
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