A/HRC/26/32
68.
The Special Rapporteur has expressed concern at cases in which lawyers have been
sanctioned because of political activities, advocacy work, confusion between the lawyer’s
cause and his/her client’s cause, and involvement in the legal representation of clients in
sensitive cases. In that context, she has urged States to refrain from criminally convicting or
disbarring lawyers for the purposes of silencing them, preventing them from criticizing
public policies or obstructing them in their legal representation of specific clients.
2.
Institutional accountability
69.
State institutions should be as accountable as they are independent in order to play
the role of respecting the rule of law. Institutional judicial accountability must, therefore,
embrace the entire institutional organization of the justice system in a way that enables it to
be monitored and held to account without being subject to improper influence, pressure or
threats from the other branches of the State.
70.
It is important to highlight that both the judiciary and the public prosecutor’s office
are State institutions. Therefore, their actions or omissions directly engage the
responsibility of the State. The accountability of the institutions of the justice system
involves internal and external aspects.
71.
Internal institutional accountability exists to allow an internal body within the
judiciary and the public prosecutor’s office to monitor the independence, competence,
objectivity and impartiality of their respective operators through permanent monitoring
proceedings aimed at controlling their proper functioning. Those monitoring proceedings
can also be initiated by complaint. The Special Rapporteur has observed several challenges
to the effective implementation of internal accountability mechanisms, including
corporatism and the use of accountability proceedings as an instrument of reprisal or
internal pressure.
72.
In order to avoid the improper use of accountability mechanisms, it is crucial that the
following elements are in place: clear grounds for a removal, suspension or sanction; an
independent, internal body in charge of disciplinary proceedings; and the right to have
disciplinary decisions reviewed by a higher judicial tribunal. In that context, the adoption of
a code of ethics and conduct is essential to contribute to the establishment and regulation of
accountability proceedings and mechanisms.
73.
External institutional accountability, in turn, should encompass activities whereby
the public, through the media, civil society, human rights commissions and parliament, can
scrutinize the functioning of the judiciary and prosecution services. Such activities can
include: institutional dialogues with parliament and other State institutions, such as human
rights commissions; all hearings being public; the availability and transparency of
information about courts and the judiciary; and the creation of a judiciary website and the
use of social media and television programmes to explain important judicial decisions and
laws. A system of justice that is independent should not retreat behind closed doors.
74.
The institutional accountability of lawyers’ activities depends, in practice, on how
the legal profession is regulated and controlled and by which body. The Special Rapporteur
has observed that, depending on the country, that role is exercised by the executive, the
judiciary, independent bar associations, or bodies whose members come from the different
branches of the State and the legal profession.
75.
The Special Rapporteur wishes to emphasize that the accountability mechanisms put
in place for the legal profession should be independent from all branches of the State,
including the judiciary. The Special Rapporteur has always strongly recommended the
establishment of independent bar associations to deal with all matters pertaining to the legal
profession, including disciplinary proceedings. Disciplinary proceedings against lawyers
13
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents