With the aim of fulfilling the specific purposes for which it was created, the defense of Human Rights in all its aspects and as an essential point the violations of Human Rights committed by entities that make up the Justice Sector, this space has been created of Virtual Library.
The Rule of Law fulfills four obligations or functions with respect to Human Rights:
RESPECT THEM, PROTECT THEM, EXECUTE THEM AND REMEDY THEM, restore their effective enjoyment and repair the damage when necessary. "Human Rights" are inherent to the human being. "Human Rights" are therefore universal and inalienable rights of all human beings.
Human beings cannot be deprived of the essence of their ( inalienable ) rights. The fact that “Human Rights” originate in the unique nature of human beings means that they must be the object of effective legal protection at the national and international levels.
In order to comply with the obligation to guarantee the realization of Human Rights, the justice sector has several paths and specific responsibilities, which can be framed within the types of functions mentioned;
- Realization of the right to access to justice. Through mechanisms that allow all citizens to access the provision of justice when they require it ( such as Alternative Conflict Resolution Methods or formal and jurisdictional justice ). This right is also a cornerstone and fundamental for the guarantee and defense of all other "Human Rights".
-Reestablishment or remedy to the violations of “Human Rights”. Through the formal and non-formal mechanisms of administration of justice that allow investigation, sanction and judgment.
-Rights of justice. Compliance with the rights of procedural guarantees, equality before the law, effective remedy before competent national courts against acts that violate their fundamental rights, presumption of innocence, etc. in the administration of justice procedures.
-Mainstreaming the rights approach in the provision of services and a differential approach.
-Implementation of a judicial information system. ( follow-up or promotion of cases ) as fulfillment of the right of access to public information.
-Respect and protection of "Human Rights" in the design and implementation of criminal and prison policy.
Consequently, judges, prosecutors and lawyers have a crucial role in ensuring that "Human Rights" are effectively implemented at the national level. This responsibility requires that members of these legal professions become adequately familiar with national and international “Human Rights” law.
Legal Security does not depend solely on the legislation, but on its compliance and the proper functioning of the institutions dedicated to the protection of the law. The disproportionate number of crimes and complaints dealt with by prosecutors, the slowness of the processes, the lack of attention to the victims, the lack of responsibility for the damage that may be caused to people who are innocent but who have lost jobs, opportunities , business, reputation and sometimes life, while they spend years in preventive detention, already constitute an attack against the citizen's right to Legal Security. It is evident that there are countries where the system, both fiscal and judicial, does not respond to "Human Rights" standards and needs serious reforms,
JUDICIAL SYSTEM – EXAMPLE:
In countries such as GUATEMALA , the judicial system is collapsed due to the inaction of the Supreme Court of Justice (SCJ) to balance the workload of the different Courts, as well as when opening disciplinary proceedings against those judges who do not comply with its functions.
The slowness in the processing of judicial processes causes people provisionally deprived of liberty to spend years in preventive detention, violating, among other things, the right to defense. The heavy workload that judges, prosecutors and magistrates allude to as a pretext has also translated into total dehumanization on the part of justice operators.
The prosecuted person is not seen as an innocent person -as the Constitution itself assures and guarantees- in most of the processes from the beginning they are classified as guilty without having been defeated in court. Undoubtedly, in this aspect the parallel trial carried out by the media, and especially by the Special Prosecutor Against Impunity -FECI-, of the Unconstitutional High-Risk Courts and unscrupulous Magistrates, does not help.
It is worth mentioning the lack of training and technical knowledge of the subject of some judges, prosecutors, magistrates and investigators. The absence of a continuous evaluation over time in order to certify that those who administer justice are aware of the new legislative changes, of the Instruments, Covenants, Charters, Agreements, Bilateral and Multilateral Agreements, in the field of Human Rights, as well as of the interpretations and foundations of national and international jurisprudence, which is why they often end up applying deeply unfair sentences.
The extreme slowness in the resolution of Negative Competence Conflicts, or the slowness in the resolution of Cassation Appeals contradicts what is constitutionally required of a prompt and fulfilled justice. Undoubtedly, proof that the will not to do justice and respond to certain hidden interests is more than evident, perpetuating impunity at the top of the representatives of the Judicial Power in the Republic of Guatemala.
-OIDH- 2022 ©
We attach as a reference excerpts from the report "Prepared by the Office of the United Nations High Commissioner for Human Rights in cooperation with the International Bar Association United Nations - New York and Geneva - 2003" Inputs for training in human rights and administration of Justice. Based on the document "Human Rights in the administration of justice: a manual of "Human Rights" for judges, prosecutors and lawyers"
THE RIGHT AND OBLIGATION TO GUARANTEE FAIR JUDICIAL PROCEDURES AND ISSUE REASONED DECISIONS
The Universal Declaration of Human Rights, in its article 10, establishes the right of everyone to “be heard publicly and fairly by an independent and impartial tribunal”. This right is also enshrined in article 14 of the International Covenant on Civil and Political Rights, as well as in article 8 of the American Convention on Human Rights.
It follows that the independence of a court is indispensable for fair judicial procedures. As stated in Principle 6 of the Core Principles:
"The principle of the independence of the judiciary authorizes and obliges the judiciary to guarantee that the judicial procedure is carried out in accordance with the law, as well as respect for the rights of the parties."
This means that judges have an obligation to decide cases before them in accordance with the law, protect individual rights and freedoms, and constantly respect the various procedural rights that exist under domestic and international law. Furthermore, this important task has to be accomplished without any inappropriate or unwarranted interference in the judicial process ( Principle 4 of the Basic Principles ).
NOTION OF IMPARTIALITY
The concept of impartiality is closely linked to that of independence and sometimes the two notions are considered together. The right to a fair trial requires that judges be impartial, from which it follows that they should not have interests at stake in a particular case, nor should they form opinions regarding the parties.
The requirement of impartiality is contained in article 14(1) of the International Covenant on Civil and Political Rights, article 7(1) of the African Charter on Human and Peoples' Rights, article 8(1) of the American Convention on the Rights Rights and article 6.1) of the European Convention on Human Rights. In addition, the Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity and taken note of by the former United Nations Commission on Human Rights, includes impartiality as one of the fundamental values inherent to the judicial function.
PRINCIPLE TWO OF THE BASIC PRINCIPLES ALSO SPECIFY THAT
“The judges will resolve the matters they hear impartially, based on the facts and in accordance with the law, without any restriction and without influence, incentives, pressure, threats or undue interference, whether direct or indirect, from any sector or for any reason. ”.
From this account, it should be noted that the concept of impartiality creates the correlative obligation for judges not to hear those cases in which they consider that they will not be able to impart justice impartially. In these cases, they must not wait for the parties to the case to question their impartiality, but must declare themselves unable to hear the case and must refrain from acting in the case.
In addition, the "Human Rights" Committee has also pointed out that the right to an impartial court is closely linked to the procedural guarantees granted to the defense. For this reason, in one case, the Committee stated that “an essential element of this right [to an impartial court] is that an accused must have adequate time and means to prepare his defense.”
For its part, the European Court of Human Rights has determined that "any judge with respect to whom there is a legitimate reason to doubt his impartiality must withdraw from the case."
The Inter-American Commission on “Human Rights” has indicated that “impartiality supposes that the judge does not have preconceived opinions about the case sub judice and, in particular, does not presume the guilt of the accused”
“In the opinion of the Commission, leaks to the press by the bodies responsible for administering justice before the accused can exercise his right to defense seriously vitiate the process and cast serious doubts on the impartiality of the judicial authorities. These facts, added to the statements of some magistrates prejudging or advancing trial and classifying the accused as a criminal before the conviction, demonstrate the bias of said judicial authority with one of the parties in the process, which in this case is the State, and disqualifies her as an independent and impartial judge in accordance with the principles established by the American Convention”
The notion of impartiality of the judiciary is an essential aspect of the right to a fair trial. It means that all judges involved must act objectively and base their decisions on the relevant facts and applicable law, without personal biases or preconceived ideas about the matter and the people involved, and without promoting the interests of any of the parties.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment confirms the well-established rule of international law that no circumstances at all, not even war or other public emergencies, can justify resorting to torture or other forms of ill-treatment. . The order of a superior cannot be invoked as a justification for torture.
Whenever States are bound by the International Law of "Human Rights", they have a strict legal obligation to guarantee the effective protection of human rights to all persons within their jurisdiction. The legal obligation of the State to protect “Human Rights” implies an obligation to prevent, investigate and punish violations of “Human Rights”, as well as to restore rights when possible and/or provide reparation. States also have a legal obligation not only to provide protection against violations of "Human Rights" committed by public authorities, but also to ensure the existence of adequate protection in their domestic law against violations of "Human Rights". ” committed by private individuals. "Human Rights" must be effectively protected by national legal systems. Judges, prosecutors and lawyers have a crucial role in ensuring that "Human Rights" are effectively protected at the national level.
Charter of the United Nations -UN . The Charter was signed on June 26, 1945 in San Francisco, at the end of the United Nations Conference on International Organization, and entered into force on October 24 of the same year. The Statute of the International Court of Justice is an integral part of the Charter.
Universal Declaration of Human Rights. Adopted and proclaimed by the General Assembly in its resolution 217 A (III), of December 10, 1948.
Charter of the Organization of American States -OEA. Approved on April 30, 1948. Published in La Gaceta No. 170 and 171 of August 17 and 18, 1950.
Rome Statutes of the International Criminal Court. The text of the Rome Statute that was distributed as document A/CONF.183/9, of July 17, 1998, amended by the procèsverbaux of November 10, 1998, July 12, 1999, November 30, 1999, 8 May 2000, January 17, 2001 and January 16, 2002. The Statute entered into force on July 1, 2002.
Istanbul Protocol. Presented to the United Nations High Commissioner for Human Rights on August 9, 1999.
Inputs for training in human rights and administration of justice. Based on the document “Human Rights in the Administration of Justice: A Human Rights Manual for Judges, Prosecutors and Lawyers” Prepared by the Office of the United Nations High Commissioner for Human Rights in cooperation with the International Bar Association United Nations – New York and Geneva – 2003.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopted and open for signature, ratification and accession by the General Assembly in its resolution 39/46, of December 10, 1984. Entry into force: June 26, 1987, in accordance with article 27 (1)