On the International Day of Endangered Lawyers – 2021, we have the privilege of having an exclusive interview with Mr Diego García-Sayán, the UN Special Rapporteur on the independence of judges and lawyers. We talked about a wide range of topics: from growing authoritarianism to attacks on judges and lawyers; Poland, Turkey, Hungary, Italy and others.
Diego García-Sayán was appointed Special Rapporteur on the independence of judges and lawyers in December 2016. He served as judge of the Inter-American Court of Human Rights for two consecutive terms (2008-2013). In Peru, he served as Minister of Justice and as Minister of Foreign Affairs.
Q1: Mr Garcia-Sayán, first we must thank you for your incredible efforts to protect the lawyers and judges across the world in these difficult times. Could you start by talking more about your mission as the UN Special Rapporteur on the Independence of Judges and Lawyers?
In 1994, the Commission on Human Rights, in resolution 1994/41, noting both the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights, decided to appoint, for a period of three years, a Special Rapporteur on the independence of judges and lawyers. Like other Special Procedures, this mandate was assumed by the Human Rights Council (General Assembly resolution 60/251), and extended for one year, subject to the review to be undertaken by the Council (Human Rights Council decision 2006/102).
The responsibility entrusted to the Special Rapporteur s diverse and complex. His/her mandate is broad and covers issues such as access to justice, the independence and impartiality of the judiciary and the proper functioning of the justice system, the protection of the person and function of judges, lawyers, prosecutors and judicial officers, and the right to a fair trial and due process. All of these aspects are fundamental to the exercise of human rights.
For several years, successive resolutions of the Human Rights Council have expressly requested this Rapporteurship not only to protect independence of justice but to identify ways and means to improve the judicial system and to formulate concrete recommendations in this regard (A/HRC/RES/17/2). This broad mandate was reiterated in the last renewal of the mandate decided in 2020 (A/HRC/44/L.6).
Q2: You were a top diplomat and as well as a judge at an international human rights court. And now you held the highest office in the world to protect the independence of judiciary and the profession of law. How do you see the current situation in the world with regard to the independence of judiciary and the profession of law?
The independence of the judiciary is an essential component of democracy. This includes public prosecutors. It has to do with the rights of all, it is not a prerogative or privilege granted in the interest of the judges or public prosecutors, but is justified by the need to enable them to fulfill their role as guardians of rule of law, human rights and fundamental freedoms.
International standards provide that it is an obligation of all governmental and State institutions to respect and observe the independence of the judiciary, and to adopt all appropriate measures to ensure that judges can decide matters before them impartially and without improper influences, pressures or interferences. As such, the independence of the judiciary should be regarded by every citizen as a guarantee of truth, freedom, respect for human rights and impartial justice free from external influence.
However, unfortunately, attacks on judges, lawyers and court officials is part of an uncountable situation in which separation of powers is replaced by power concentration, authoritarism and human rights violations. Prevailing tendencies in the world are opening big question marks on how all these processes may affect judicial independence. Unfortunately, contemporary authoritarianism is a global reality on the rise.
Q3: At the recent webinar organised by the CCBE, you talked about the bureaucratic process your office had to follow, and the need for an open channel with bar associations to better protect lawyers. Could you tell us more about that?
Bar associations play a vital role in the organization and safeguarding of the independence and integrity of the legal profession and its members. The underlying rationale for their creation is the need to provide a platform to allow the legal profession to carry out its legitimate activities without any external interference. Bar associations should meet, at a minimum, the following requirements: (a) independence; (b) a self-governing nature; (c) a general mandate to protect the independence of the legal profession and the interests of its members; and (d) recognition under law.
Independent Bar associations have a crucial role to play in a democratic society to enable the free and independent exercise of the legal profession and to ensure access to justice and the protection of human rights, in particular due process and fair trial guarantees. They protect individual members of the legal profession, particularly in situations where they are not able to adequately defend themselves; elaborate and implement requirements and procedures to gain access to the legal profession; develop codes of professional conduct; and handle disciplinary proceedings against lawyers. Professional associations of lawyers also cooperate with State institutions in providing legal aid services to poor and disadvantaged persons and legal education and training to lawyers throughout their careers.
Q4: The fact that independence of judiciary is envisaged at both national and international level seems not to be enough in most instances. The support and vigilance of citizens are also quite cricial. How can the public could be better explained that the independence of the judiciary and lawyers ensure the right to a fair trial of individuals and get their support?
The United Nations has recognized that, on the basis of constitutional and statutory rules and practices common to a great number of States of all regions, and as guaranteed by universal and regional human rights instruments, rights of due process, or “fair trial rights”, have been generally recognized in international law protecting individuals from arbitrary or unfair treatment. The UN Basic Principles of the Independence of the Judiciary mandate that “everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not act independently or that do not follow due process rules are performing their functions out and against rule of law standards. se the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
The resolution of legal disputes by an independent judicial body is an essential requirement of the rule of law. Ths concerns judges, lawyers and prosecutors but mainly society whose right is to have access to an independent judiciary.
Q5: You, on several occasions, underlined the risks posed by the COVID19 outbreak and subsequent lockdown measures against the fundamental rights and due practice of the judicial mechanism? Could you give us a general picture in this regard?
The COVID-19 pandemic’s lockdown measures pose special threats and challenges to an independent judiciary. Early in 2020, I released guidelines so to contribute to ensure judges, justice workers, prosecutors and lawyers maintain functioning judicial systems. The COVID-19 crisis is already severely affecting the right of societies to an operative and independent judicial system.
Access to justice has collapsed in several countries. This opens doors to abusive behaviour and impunity. The health crisis erodes economic and social stability, and recessions loom, the risk of more violence and crime may increase. An immediate streamlining of justice services to prioritise essential cases is needed and prosecution of minor, civil or economic cases should be postponed.
The next annual report to the Human Rights Council, that I am already preparing, will deal with this critical matter. It is an inescapable responsibility to address the impact of the pandemic, which began to sweep the world in the early 2020s, on judicial functioning and often on independence. It is and will continue to be very actual. Only naïve or misinformed minds assigned the pandemic a duration or impact that would be only a memory by the time this report will be submitted in June 2021. This health crisis has severely impacted the functioning of justice and access to justice, which has a serious impact on the fundamental rights of hundreds of millions of people.
Q6: In many countries such as Turkey, Poland, Hong Kong, Venezuela, the situation with regard to the independence of judges and lawyers is in a perilous state. In your opinion in which countries or regions the situation is at the most alarming level?
It is very difficult to summarize this in short paragraphs with the risk of describing unfairly the situation in the world. In the countries you have mentioned there are severe problems with independence of justice. Bot ehat is the context?
With its own logics, dynamics and variants an authoritarian way of understanding the world and of doing things is expanding. Examples that come to my mind: from the rising absolute power being built by Modi in India; the authoritarian governments of Kaczyński in Poland and Orban in Hungary; the repeated impetus of Bolsonaro against the separation of powers; to the democratic regression in several countries of sub-Saharan Africa.
I can mention specifically Poland because in October 2017, I conducted an official there and reported to the UN the situation on the ongoing process to demolish the independence of its judiciary. The Polish government has carried out several judicial reforms, accompanied by a publicly-financed campaign to discredit judges, as well as dismissal, replacement and demotion of hundreds of court presidents and prosecutors so to control de judiciary, the use of disciplinary proceedings against outspoken judges and prosecutors, and the combination of the powerful functions of Minister of Justice and of Prosecutor-General in the hands of an active politician.
Similar threats are being presented nowadays in other eastern European or European countries. In Italy, for example, the Minister of the Interior has attacked several magistrates on social media over some decisions, they have rendered on immigration policies. The media reported about death threats posted on social media against these judges following the Minister’s attack. Those verbal attacks prompted the authorities to provide judges with police protection due to ensuing death threats.
Similar cases have occurred in Asia. On May 2018, the Philippine Chief Justice, Sereno, Duterte’s outspoken critic, was arbitrarily removed of her post. Her dismissal was politically motivated.
Q7: As our focus is mainly Turkey, we have some specific questions about Turkey. Since 2016, more than 1600 lawyers have been arrested, 600 of those have been remanded in pretrial detention? 450 of those so far have been sentenced under terrorism provision. Is it unprecedented in the world? How does the situation look in comparison to other countries with similar practices? How can the bar associations across the world help the lawyers in Turkey?
It’s a very delicate and concerning situation. Very serious.
The continuous attacks and arrests of lawyers in Turkey is, unfortunately, a consistent pattern that began in that country after the attempted coup in 2016. As result, democratic standards are being systematically demolished in the midst of the alleged “fight against terrorism”. The tragic death of the Turkish lawyer Ebru Timtik on August last year, after a 238 days hunger strike, has been and dramatic denounce of the demolition of rule of law and of fair trial affecting dozens of lawyers. As Rapporteur I took immediate action to prevent the death of the other lawyer, Aytaç Ünsal, in hunger strike, as well, with Ebru Timtik. Finally he was released in September last year following a decision of the Turkish Supreme Court.
It is not a coincidence that whenever independent judges or the legal profession are attacked, independent bar associations are attacked as well and along the way. In what is happening in Turkey, for instance, not only individual lawyers but their associations are under attack: more than 30 bar associations assets have been seized and their directors arrested as I reported to the General Assembly of the United Nations in 2018. Bar associations in the world should continue following the situation in Turkey and acting promptly and soundly against future threats.
Q8: The Turkish Government also dismissed some 4500 judges and prosecutors and detained about 2500 of those. In the cases of Alparslan Altan and Hakan Bas the ECtHR decided that the detention of judges without respecting procedural steps laid down in the Law on Judges and Prosecutors infringes the principle of judicial independence. However, the TCC in its recent judgment refused to comply with these decisions. In your opinion, should the ECtHR cease to consider the TCC as an effective remedy?
The binding effect of an international –or national- judicial decision is not only a fundamental, democratic element of rule of law but also a human right.
The very concept of an independent tribunal set out in Article 6 of the European Convention on Human Rights implies the power of that tribunal to adopt a binding decision. The right to a fair trial and the rule of law in general are devoid of any substance if judicial decisions are not fully implemented. There is also an obligation on the part of the contracting parties to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention.
Courts that do not follow international human rights decisions decided by competent international tribunals cannot be considered effective.
Q9: One of our recent guests, Tamara Trotman of Judges of Judges said “It is clear that judges often function as the canaries in the coalmine.” Considering that the Polish judges are under attack. How do you see the situation in the Europe (the Europe Union and the Council of Europe) about rule of law and the independence of the judiciary?
Even though the Charter of Fundamental Rights of the European Union and the European Treaties mention this principle, it is only recently that some uropean institutions have considered it as a principle for which Member States are accountable.
For example, Article 47 of the Charter of Fundamental Rights of the European Union on the “Right to an effective remedy and to a fair trial” relates to Article 2 of the EU Treaty on the European Union, which considers “the rule of law and respect for human rights” as being among the values of the European Union.
The Parliamentary Assembly of Europe has emphasized that threats and attacks against lawyers continue to occur in many Council of Europe member States including, amongst other things, killings; physical violence; threats; identification of lawyers with their clients or abuse of criminal proceedings to punish lawyers or remove them from certain, cases among several other procedures affecting lawyers’ independence and the functioning of the legal profession. Poland, Hunagry and Turkey are the major examples of those threats.