while the fairness of the judicial process and the impartiality of prosecution authorities must receive special consideration in common law systems. 2. JUDICIAL INDEPENDENCE AND INTERNATIONAL LAW 2.1.2. REGIONAL TREATIES As with the ICCPR, regional multilateral treaties impose legally binding obligations on states party to the treaty. A number of these treaties include a requirement of judicial independence in the form of a right that mirrors Art. 14 of the ICCPR. Examples include: Under international law, there is a distinction between “hard” law and “soft” law. “Hard” law refers to agreements and rules of international law that impose precise and legally binding obligations on states. “Soft” law refers to international agreements that are not formally binding or impose no clear or precise obligations on state parties, or to interpretive statements on treaties, such as the General Comments issued by the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights, which carry no binding legal force. Relevant sources of international law on judicial independence fall into both categories. This Briefing Paper refers to both hard and soft law sources on judicial independence.   2.1. RELEVANT SOURCES OF INTERNATIONAL LAW: “HARD LAW” 2.2. RELEVANT SOURCES OF INTERNATIONAL LAW: “SOFT” LAW 2.1.1. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) The ICCPR is a multilateral treaty adopted by the UN General Assembly on 16 December 1966. The states party to the Covenant are legally bound by its provisions.12 The Covenant includes a clear statement of the requirement of judicial independence in the right to fair trial. Article 14 provides in part: (1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2.2.1. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) The UDHR is a non-binding declaration of the United Nations General Assembly, although some of its provisions are considered customary international law. The UDHR affirms the right to a fair trial before an independent and impartial tribunal (Art. 11), the right of accused persons to be presumed innocent (Art. 11), and the guarantee that all are equal before the law and enjoy all rights and freedoms equally. The UDHR imposes no legal obligations on countries, but is an important interpretive guide to the ICCPR and other international treaties that do impose obligations of rights protection and judicial independence. 2.2.2. UN BASIC PRINCIPLES AND GUIDELINES The UN has adopted several sets of basic principles and guidelines as framework models for how a country’s domestic laws and institutional structures can protect the independence of the judiciary. These documents are not legally binding, but are intended instead as a resource for countries committed to judicial independence. These documents include:    (2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 13 12 Details of the member states and states party to the ICCPR can be found online at http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2 &mtdsg_no=IV-4&chapter=4&lang=en#Participants. 4 African Charter on Human and Peoples’ Rights: Art. 3 guarantees equality before the law and equal protection of the law; Art. 26 imposes a direct obligation on state parties to guarantee the independence of the courts. The European Convention on Human Rights: Art. 6 guarantees the right to a fair trial before an independent and impartial tribunal and the right to be presumed innocent. The American Convention on Human Rights: Art. 8 guarantees the right to a fair trial before a competent, independent and impartial tribunal and the right to be presumed innocent. Basic Principles on the Independence of the Judiciary;13 Basic Principles on the Role of Lawyers;14 Guidelines on the Role of Prosecutors;15 UN Basic Principles in the Independence of the Judiciary, adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders, Milan 26 August - 6 September 1985, endorsed by General Assembly resolutions 40/32, 29 November 1985 and 40/146, 13 December 1985. 14 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.

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