Совет по правам человека
Двадцать девятая сессия
Пункт 3 повестки дня
Поощрение и защита всех прав человека, гражданских, политических, экономических, социал ь ных и культурных прав, включая право на развитие
Доклад Специального докладчика по вопросу о независимости судей и адвокатов Габриэлы Кнауль
Миссия в Объединенные Арабские Эмираты *
В период с 27 января по 5 февраля 2014 года Специальный докладчик по вопросу о независимости судей и адвокатов совершила официальную поездку в Объединенные Арабские Эмираты. Цель поездки состояла в изучении как достигнутого прогресса, так и проблем, с которыми страна сталкивается при обеспечении независимости судебной системы и свободы адвокатской практики.
В ходе своей поездки Специальный докладчик встретилась с рядом высокопоставленных государственных должностных лиц в федеральных министерствах юстиции, внутренних дел, иностранных дел и судебном департаменте Абу-Даби, а также с Председателем Федерального верховного суда, федеральными и местными судьями, Генеральным прокурором и представителями федеральных и местных органов прокуратуры. Она также встретилась с адвокатами и членами дипломатического сообщества и гражданского общества.
Доклад начинается с обзора государственной системы правосудия и ее конституционных и правовых рамок. Во второй части доклада Специальный докладчик представляет свои выводы и высказывает свои соображения по следующим проблемам: а) правовая неопределенность; b) независимость и беспристрастность судебных органов; с) судьи, не являющиеся гражданами ОАЭ; d) подотчетность и дисциплинарные меры; e) справедливое судебное разбирательство, надлежащие процессуальные гарантии и отправление правосудия; f) доступ к системе правосудия и правовой помощи; g) женщины в системе правосудия; h) органы прокуратуры; i) адвокаты; и j) образование, профессиональная подготовка и наращивание потенциала.
Специальный докладчик признает, что за относительно короткий срок Объединенные Арабские Эмираты смогли разработать сложную и развитую систему правосудия. Тем не менее, несмотря на значительный прогресс и успехи Объединенных Арабских Эмиратов, Специальный докладчик обеспокоена серьезным характером выявленных ею проблем и недостатков, которые негативно влияют на отправление правосудия, осуществление прав человека и доверие населения к судебной системе. В заключительной части доклада содержатся рекомендации для всех заинтересованных сторон.
[ Arabic and English only ]
Report of the Special Rapporteur on the independence of judges and lawyers on her missionto the United Arab Emirates
The Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, visited the United Arab Emirates from 28 January to 5 February 2014 at the invitation of the Federal Government. The purpose of the visit was to examine, in a spirit of co-operation and dialogue, both the achievements and the shortcomings of the United Arab Emirates in ensuring the independence of the judiciary and the free exercise of the legal profession.
The Special Rapporteur visited Abu Dhabi, Dubai and Sharjah and met with the Minister of Justice and a number of senior government officials at the Federal Ministries of Justice, the Interior, and Foreign Affairs, as well as officialsat the Abu Dhabi Judicial Department. She also met with the Chief Justice of the Federal Supreme Court and federal judges, judges from the local judicial authorities of Abu Dhabi and Dubai, the Federal Attorney General and members of the federal public prosecution, members of the public prosecution offices of Abu Dhabi and Dubai, representatives of the Dubai Judicial Institute and the Institute of Training and Judicial Studies in Sharjah, and lawyers. In addition, she met with members of the diplomatic community and civil society.
The Special Rapporteur wishes to thank the Government of the United Arab Emirates for its engagement with her mandate. She notes that, as the United Arab Emirates is a member of the Human Rights Council, the State’s cooperation with the special procedures is essential to set a positive example. She also thanks all those who dedicated their time to sharing their expertise and opinions with her.
The Special Rapporteur underlines the fact that, by inviting her to conduct an official visit, the Government agreed to the terms of reference of such visits, which include a guarantee that no person who has been in contact with her in relation to the visit will suffer threats, harassment, punishment or other reprisals, or be subjected to judicial proceedings based on their contact with her.
The United Arab Emirates is a federal State that was formed in December 1971 when the British protectorate over the varioussheikhdoms in the region ended. It comprises seven Emirates — Abu Dhabi, Ajman, Dubai, Fujairah, Ras al-Khaimah, Sharjah and Umm al-Quwain — that exercise sovereignty over their own territories in all matters that do not fall within the jurisdiction of the Federation.
The Constitution of the United Arab Emirates was adopted on 18 July 1971 and entered into force on 2 December of the same year. The Constitution was temporary until constitutional amendment No. 1 of 1996 made it permanent. It does not expressly recognize the separation of powers.
Judicial authority is regulated by part four, chapter V, of the Constitution, which includes provisions recognizing the independence of judges (art. 94), establishing a Federal Supreme Court and Federal Primary Tribunals (art. 95) and their jurisdictions (arts. 99 and 102, respectively), and stipulating the composition of the Federal Supreme Court and the appointment of its judges (art. 96), as well as their irremovability from office (art. 97). Chapter V also clarifies the jurisdiction of the local judicial authorities in the Emirates and provides for the possibility of transferring all or part of their jurisdiction to the Federal Primary Tribunals through the enactment of specific legislation (arts. 104 and 105). Chapter V establishes an Attorney General and the federal public prosecution (art. 106).
In addition, part three of the Constitution guarantees a selected list of fundamental rights and freedoms.
The legal system in the United Arab Emirates is based on both civil law and sharia (Islamic law) provisions. Sharia is recognized in the Constitution to be the main source of legislation. Judges are bound to apply “provisions of the Islamic sharia, the federal laws and the other laws in force in the Emirates”.
Along with the relevant constitutional provisions, the federal judiciary is mainly regulated by Federal Law No. 10 of 1973 “Concerning the Supreme Federal Court” (as amended); Federal Law No. 6 of 1978 “On the establishment of Federal Courts and transferral of the jurisdiction of the local judicial authorities in some Emirates to them” (as amended); and Federal Law No. 3 of 1983 “Concerning the Federal Judicial Corps” (as amended).
Federal Law No. 10 of 1973 sets out the organizationof the Federal Supreme Court, its composition and jurisdiction, and establishes a constitutional chamber. It also sets out the recruitment conditions, appointment, tenure and retirement age of the judges; the role of the president; and the accountability of judges, as well as disciplinary procedures and sanctions. It regulates the composition, hierarchy and jurisdiction of the federal public prosecution; the recruitment conditions, appointment, transfer and retirement age of prosecutors; and the rules of procedure of the Supreme Court.
Federal Law No. 6 of 1978 created the Federal Courts of First Instance and Appeal and transferred the jurisdiction of existing local judicial authorities in the Emirates of Ajman, Fujairah, Sharjah and Umm al-Quwain to those Federal Courts. The law defines the competence and jurisdiction of Federal First Instance Courts in criminal, civil, commercial, personal status and administrative matters. It also establishes the supervision of the Federal Courts by the Minister of Justice.
Federal Law No. 3 of 1983 sets out, inter alia, the court structure; the composition of Federal Courts of First instance and Appeal; the composition and competence of the Supreme Council of the Federal Judiciary; the recruitment conditions, appointment, promotion, transfer, tenure and retirement age of judges; and the independence, duties and accountability of judges, as well as disciplinary procedures and sanctions. It also regulates the federal public prosecution, established as a body under the direct supervision and control of the Minister of Justice. It determines the composition and hierarchy of the public prosecution; the recruitment conditions, appointment, promotion, tenure and retirement age of prosecutors; and the duties and accountability of prosecutors, as well as disciplinary procedures and sanctions. It creates a Judicial Inspection Department in the Ministry of Justice to probe the work of judges of the Federal Courts of First Instance and Appeal and of the members of the public prosecution.
The rights and duties of lawyers are defined in Federal Law No. 23 of 1991 “Regarding the regulation of the legal profession” (as amended), which also governs the conditions for admission and registration as a practising lawyer, and disciplinary proceedings and sanctions against lawyers. The law also establishes a seven-member Council for the Admission of Lawyers before the Courts.
The legal framework also includes the Penal Code (Federal Law No. 3 of 1987, as amended) and the Civil Code (Federal Law No. 5 of 1985, as amended); the Code of Criminal Procedure (Federal Law No. 35 of 1992, as amended) and the Code of Civil Procedure (Federal Law No. 11 of 1992, as amended); Federal Law No. 17 of 1978 “On the regulation of the instances and procedures of appeal in cassation before the Federal Supreme Court”; and a series of federal laws establishing Federal Courts of First Instance and Appeal in Emirates and cities other than the capital city, Abu Dhabi.
At the international level, the United Arab Emirates is a State party to several human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
At the regional level, the United Arab Emirates ratified the Arab Charter on Human Rights in 2008. The Charter contains a comprehensive set of binding provisions relevant to the mandate of the Special Rapporteur.
Prior to the formation of the United Arab Emirates, each of the seven Emirates had its own local judicial system. The Constitution of the United Arab Emirates provided for the establishment of a Federal Supreme Court with exclusive jurisdiction over a specific list of judicial matters in all the Emirates. For all other judicial matters, the Constitution allows the Emirates to keep their local judicial authorities or to join the federal judicial system. The Emirates of Abu Dhabi, Dubai and Ras al-Khaimah have kept and developed their own local judicial authorities, which are now organized in three-tier systems (first instance, appeal and cassation) and function independently from the federal system. That means that in those three Emirates, there are two justice systems functioning in parallel; the local justice system has jurisdiction over all judicial matters that do not belong to the exclusive competence of the Federal Supreme Court. The judgements of the local courts of cassation are final, except when the constitutionality of a law or its application is appealed to the Federal Supreme Court.
1.Federal Supreme Court
The Federal Supreme Court was established by the Constitution and is regulated by Federal Law No. 10 of 1973.It is the highest court of the federal justice system and is located in Abu Dhabi. The Court has exclusive jurisdiction over a series of matters, including disputes between the various Emirates or with the Federal Government; the constitutionality of federal and local legislation and regulations; the interpretation of the Constitution and international treaties; offences directly affecting the interests of the federation, in particular crimes related to internal and external security; and conflicts of jurisdictions. In addition, the Court has the competence to review appeals against rulings rendered by the Federal Courts of Appeal, in accordance with the provisions of Federal Law No. 17 of 1978. The Court comprises various circuits or chambers, including a constitutional chamber and a State security chamber.
The Supreme Court is composed of a president and four judges, as well as a sufficient number of alternate judges, appointed by decree of the President of the United Arab Emirates after approval by the Cabinet of Ministers and ratification by the Federal Supreme Council, which is composed of the rulers of the seven Emirates. The Supreme Court has a general assembly, composed of all its judges and chaired by its president, to deal with the constitution of chambers, the distribution of tasks and other administrative and internal affairs of the Supreme Court. It also has a technical bureau, composed of judges, members of the public prosecution and the Division of Fatwa, Legislation and Government Litigation of the Ministry of Justice, and other legal experts, to supervise the transcription and printing of the Supreme Court’s judgements, extract the legal rules from those judgements, carry out legal research required by the Supreme Court and perform other technical functions.
2.Federal Courts of Appeal
Federal Courts of Appeal were established by Federal Law No. 6 of 1978 and are located in Abu Dhabi, as well as in other Emirates when a federal law establishes them. Those Courts are further regulated by Federal Law No. 3 of 1983 and comprise different circuits or chambers to hear appeals in criminal, civil, commercial, personal status and administrative matters lodged against judgements of the Federal Courts of First Instance. Except in a number of cases defined by law, their rulings are final and cannot be appealed to the Federal Supreme Court.
Courts of Appeal consist of a president and a sufficient number of judges, appointed by decree of the President of the United Arab Emirates upon the proposal of the Minister of Justice, and supervised by the Minister of Justice.
3.Federal Courts of First Instance
Federal Courts of First Instance were also established by Federal Law No. 6 of 1978 and are located in Abu Dhabi, as well as in other Emirates when a federal law creates them. Like the Courts of Appeal, they are governed by Federal Law No. 3 of 1983 and comprise different circuits or chambers to hear criminal, civil, commercial, personal status and administrative matters.
Courts of First Instance are composed of a president and a sufficient number of judges, appointed by decree of the President of the United Arab Emirates upon the proposal of the Minister of Justice, and supervised by the Minister of Justice.
4.Supreme Council of the Federal Judiciary
The Supreme Council of the Federal Judiciary was established by Federal Law No. 3 of 1983 to achieve the independence of the judiciary. Its competence includes expressing its opinion on issues related to the judiciary and the public prosecution; studying and proposing legislation related to the development of the justice system; and expressing its opinion on the promotion, secondment and delegation of judges and members of the public prosecution. The Council can also exercise any other function prescribed to it in accordance with the law.
The Supreme Council is composed of seven members (only three of whom are judges): the Minister of Justice (chairman); the Under-Secretary of Justice; the President of the Federal Supreme Court; the Attorney General; the Director of the Judicial Inspection Department; and the two oldest serving presidents of the Federal Courts of Appeal.
III.Challenges to the independence and impartiality of the judiciary and the proper administration of justice
Despite the remarkable progress and modernization that has been achieved in a limited timeframe, the federal justice system of the United Arab Emirates still faces serious challenges that directly affect the delivery of justice and the realization of human rights. The independence and impartiality of the judiciary and the transparency and efficiency of the administration of justice can vary between the different Emirates and between the different local justice systems and the federal system.
The federal system of the United Arab Emirates is complex and can be difficult to understand, in particular for non-nationals, who constitute the majority of the population. During her visit, the Special Rapporteur was told that, because of the complex superposition of federal and local laws,it is sometimes difficult for the public to know where the boundaries liebetween the federal and local justice systems.There also appears to be a lack of consistency in the application of federal laws across the different Emirates. The Special Rapporteur is concerned about reports that it is difficult for people to know which legal provisions are applicable to them,depending on where they are in the Federation, and that laws are sometimes applied in an arbitrary manner. That creates ambiguity and mistrust towards both law enforcement authorities and the justice system.
Furthermore, it was pointed out to the Special Rapporteur that important pieces of legislation, including Federal Law No. 2 of 2003 (as amended by Federal Decree No. 1 of 2011) “On the State security apparatus”, Federal Decree No. 5 of 2012 “On combating Cybercrimes” and Federal Law No. 7 of 2014 “On combating Terrorism Crimes”, contain vague and broad definitions of criminal offences, in contravention of international human rights standards. Such provisions also defy the principle of legality and open the door to arbitrary interpretation and abuse.The principle of legality, fundamental in a system based on the rule of law, requires that crimes are enshrined in legal provisions that are clear, ascertainable, predictable and made public, thereby allowing individuals to understand clearly the limits set out by the law in question and to regulate their behaviour accordingly.
B.Independence and impartiality of the judiciary
1.Separation of powers and interference in the independence of the judiciary
The Special Rapporteur regrets that the principle of the separation of powers is not explicitly guaranteed in the Constitution. Together with the rule of law, the separation of powers opens the way to an administration of justice that provides guarantees of independence and impartiality. There should therefore be a clear demarcation between the respective competences of the different branches of power. As the Human Rights Committee indicated in its general comment No. 32 (2007) on article 14: Right to equality before courts and tribunals and to a fair trial, “a situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal” (para. 19).
In that context,it is important to note that in the United Arab Emirates, the legislative branch is not clearly separated from the executive. The majority of the members of the Federal National Council are not elected by the citizens, but appointed according to modalities defined by each Emirate. Furthermore, the Council does not have full legislative powers.
The administrative and financial supervision of the courts is a competence currently exercised by the Ministry of Justice. The composition of the Supreme Council of the Federal Judiciary is problematic, as out of a total of seven members, only three are judges. The other members are the Attorney General and three representatives of the executive. Also, the Council’s mandate is very limited. Once the issue regarding its composition has been addressed, measures should be taken to strengthen the role played by the Council. It could include, for instance, responsibility for the selection and appointment of judges and responsibilities related to the administration of the courts.
While any direct interference in the work of judges or threat against their independence is extremely difficult to document, reports and allegations of pressure exerted by members of the executive, prosecutors and other State agents, in particular members of the State security apparatus, are of serious concern to the Special Rapporteur. She is especially concerned that the judicial system remains under the de factocontrol of the executive branch of government.
The Special Rapporteur was informed by the Government that a new federal law on the judiciary was being drafted to replace Federal Law No. 3 of 1983. The draft law would reportedly increase the independence of the judiciary. While she welcomes that initiative, the Special Rapporteur is concerned about the lack of transparency in the drafting process. At the time of her visit, it seemed that there was insufficient consultation with representatives of the judiciary on the content of the draft law. The Special Rapporteur also regrets that she was not provided with a copy of the draft law, which would have allowed her to provide substantive comments.
2.Selection and appointment of judges
The president and judges of the Federal Supreme Court are appointed by presidential decree after approval by the Cabinet and ratification by the Federal Supreme Council. Other federal judges are appointed by presidential decree upon the proposal of the Minister of Justice. Appointments and nominations by the highest representatives of the executive branch can have a strong influence on judges’ attitudes and behaviour. The Special Rapporteur is concerned that the current mechanism for appointing judges lacks transparency and may expose them to undue political pressure.
The Special Rapporteur wishes to highlight the importance of establishing and applying clear, objective and transparent criteria in the selection of judges, particularlywith regard to qualifications, integrity, ability and efficiency, in order not only to identify the most suitable candidates and increase the perception of a fair selection process, but also to secure their independence. Competitive examinations conducted at least partly in a written and anonymous manner provide an important tool in the selection process.
3.Impartiality, public perception and confidence
The Special Rapporteur is concerned at reported instances in which judges appear to have lacked impartiality and shown bias, especially with regard to non-nationals of the United Arab Emirates. Among foreigners residing in the United Arab Emirates, there seems to be a perception that the domestic courts cannot be trusted, and more specifically that judges do not treat nationals in the same way as non-nationals. The Special Rapporteur was told that foreigners’ lack of confidence in the justice system is such that many of them do not report crimes or abuses.
It is worth noting that the State has the obligation, under international human rights law, to guarantee the rights of equality before the courts and fair trial to all individuals within its jurisdiction, regardless of nationality or any other status, including statelessness. Judges should also perform their functions without favour, bias or prejudice and should not manifest, by words or conduct, bias or prejudice towards any person or group on the grounds of race, colour, sex, religion or national origin, among others.Those obligations are all the more relevant when one considers that foreigners living in the United Arab Emirates far outnumbernationals.
Moreover, the Special Rapporteur was told that in the federal courts, the professional relationship between judges and prosecutors is excessively close. They are said to be sharing chambers, entering court rooms together and discussing court minutes together, thereby jeopardizing the perception that judges are impartial and that equality of arms between the prosecution and the defenceis respected. As noted in the Bangalore Principles of Judicial Conduct, judges should avoid situations that might reasonably give rise to suspicion or appearance of favouritism or partiality.
C.Judges who are non-nationals of the United Arab Emirates
Many judges from other Arab countries are recruited to serve in both federal and local judiciaries on a temporary basis; in some courts, they outnumber judges from the United Arab Emirates. Salaries are attractive and candidates are easily found, particularly in Egypt, Lebanon, Morocco and the Occupied Palestinian Territories. Such a phenomenon is far from common, worldwide. According to the authorities, hiring non-national judges was necessary to cope with the lack of qualified nationals due to the relative youth of the judicial system in the United Arab Emirates. The authorities also explained that other professions used to be more attractive financially. That situation is said to have been remedied in 2011 with a sharp increase in the salaries of judges. In the longer term, the judiciary would only be composed of nationals.
The independence of the non-national judges is a complex issue that requires careful consideration. The Special Rapporteur regrets that no detailed figures on non-national judges working at eitherthe federal and local levels were provided during the visit, including their number, countries of origin, distribution at various hierarchical levels or the criteria used in their selection.
The tenure of non-national judges is not guaranteed in the same way as that of national judges. According to the information received, they are recruited under temporary contracts that have to be renewed annually. The total length of the contracts nevertheless depends on the rules regulating their secondment in their country of origin. Therefore, non-national judges’ contracts can only be renewed up to a certain number of years, which may vary depending on their country of origin. The temporary nature of non-national judges’ tenure is therefore inevitable.
Even though no specific cases were reported, the Special Rapporteur is concerned that non-national judges can be dismissed at any time, which renders them particularly vulnerable to pressure from any quarter, including from the public prosecution and members of the executive branch. In addition, the benefits and allowances allocated to national and non-national judges are allegedly different.
While the Special Rapporteur understands the rationale behind hiring non-national judges and the limitations involved, she remains concerned about their independence. She also believes that more could be done to secure the tenure of non-national judges, even if only for a fixed period. Their conditions of work also need to be revised, as no discrimination should be tolerated between national and non-national judges, except that resulting from the rules of secondment of the countries of origin.
The Special Rapporteur would like to underscore that reducing the number of non-national judges is a legitimate path for the authorities to pursue. However, the process must be implemented in full conformity with the international human rights obligations of the State and its own domestic legislation.
D.Accountability and disciplinary measures
Another shortcoming affecting the independence and impartiality of the judiciary is the absence of a written code of conduct for federal judges, as currently only a draft exists. The local judiciary in Abu Dhabi has a code of judicial conduct containing 10 fundamental rules and principles. The lack of a code of conduct common to all judiciaries in the United Arab Emirates could prove problematic and lead to discrepancies between the Emirates and between the federal and local justice systems. The Special Rapporteur nevertheless welcomes the fact that disciplinary procedures against federal judges fall under the exclusive purview of members of the judiciary; indeed a disciplinary board composed of the president and the four most senior judges of the Federal Supreme Court is responsible for disciplining federal judges.
In that context, it is important to remember that the independence and impartiality of the judiciary does not aim to benefit judges themselves, but rather the court users, as part of their inalienable right to a fair trial. Integrity and accountability are therefore essential elements of judicial independence and are intrinsically linked to the implementation of the rule of law. While Federal Laws No. 10 of 1973 and No. 3 of 1983 provide some elements on the type of prohibitedbehaviour that might trigger disciplinary measures, detailed guidance needs to be provided to judges on the infractions that will give rise to disciplinary measures.
E.Fair trial, due process and administration of justice
The Special Rapporteur is extremely concerned at the serious allegations of violations of due process and fair trial guarantees made during her visit, especially with regard to State security-related offences. The consequences that such violations might have on people’s lives and on respect for their human rights cannot be overemphasized.
1.Arbitrary arrest and pretrial detention
According to the Code of Criminal Procedure, persons who are arrested must be referred to a prosecutor within 48 hours.The prosecutor is entitled to extend the pretrial detention for up to a maximum of 21 days. Beyond that period, the detainee must be presented to a judge, who can extend the detention further. The Special Rapporteur regrets that the law does not provide for a maximum limit for pretrial detention, which would prevent abuses.
The Special Rapporteur notes with concern that the limited guarantees provided against arbitrary arrest and detention in the Code of Criminal Procedure do not apply to persons arrested on State security or terrorism-related charges.The relevant legislationprovides the prosecution with the competence to extend pretrial detention for up to three months before presenting the detainee to a judge.
Moreover, while the Code of Criminal Procedure prescribes that, unless an individual is arrested in flagrante delicto, an arrest warrant must be presented, the Special Rapporteur received many reports of people being arrested without a warrant. Such cases very often concern persons who were later accused of State security crimes. After being arrested by State security agents,most of those individuals weretaken to secret detention facilities and kept incommunicado for days, weeks or even months, sometimes in solitary confinement. Such detentions may sometimes amount to enforced disappearances, as the authorities refuse to acknowledge that they have detained the person and/or refuse to confirm their fate and whereabouts. It goes without saying that in those places of detention, detainees have no access to a lawyer, in breach of the Basic Principles on the Role of Lawyers, which require that anyone accused of a crime has access to a lawyer no later than 48 hours after his or her arrest.
2.Torture and forced confessions
During her visit, the Special Rapporteur received credible information and evidence that many of the individuals who were arrested without a warrant and taken to unofficial places of detention were also subjected to torture or other forms of ill-treatment, including in order to extract confessions of guilt or testimonies against other detainees. Consistent testimonies of the following torture and ill-treatment werereceived: deprivation of daylight; exposure to bright electric light 24hours a day; being blindfolded and threatened; being kept in very small cells without windows or a toilet; being forced to ask permission and being forced to strip in order to go to the toilet; exposure to extreme temperatures; beatings; extraction of fingernails and plucking of beards; being drugged; sexual assaults and threats thereof; and insults.
The Special Rapporteur was told that over the past few years, more than 200 complaints relating to torture and/or ill-treatment had been presented before judges and/or prosecutors, but that those complaints had not been received or registered, and consequently not been taken into account in judicial proceedings. Moreover, no independent investigation into those complaints had allegedly taken place. In one case reported to the Special Rapporteur, a judge ordered a medical committee to investigate allegations of torture and ill-treatment. The media reported that the resulting report proved that the allegations were false, yet the report was never shared with the defence counsel or presented to the court.
The Special Rapporteur is of the opinion that the lack of serious investigation into that type of allegation encourages impunity for perpetrators. It also constitutes a violation of the obligations of the United Arab Emirates under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Judges and prosecutors have an obligation not only to respect and enforce the rights of the parties, including due process and fair trial guarantees, but also to uphold human rights. In thatregard, the notions of due process andfair trial include the guarantee of a fair and public hearing by an independent and impartial tribunal established by law. Any evidence that may have been obtained through recourse to torture or ill-treatment cannot be received in court, but rather, must be used to prosecute those who used such methods.
3.Access to a lawyer
The Special Rapporteur is extremely concerned at reports that an accused person’s access to a lawyer can be restricted by the police or the prosecution during the investigative phase. The Special Rapporteur is particularly alarmed at reports that individuals accused of having committed crimes that jeopardize State security have extremely limited access to legal counsel.Allegedly, one defendant met his lawyer only once before his trial; another met his lawyer for the first time in court. Meetings with lawyers are often very short, lasting only a few minutes, and they are not held in private, but are supervised and reportedly even recorded by the prosecution or security services. The allegations thus reflect breaches of international human rights standards on the right to a fair trial and guarantees ensuring the free exercise of the legal profession.
4.Access to information, transparency and public hearings
The apparent lack of transparency during both the investigation phase and court proceedings remains a matter of concern to the Special Rapporteur, particularly with regard to criminal cases heard before the State security chamber of the Federal Supreme Court. In those cases, lawyers also seem to face serious difficulties in accessing information, especially investigation files. In one case, the defence lawyer could not access his clients’ file until the beginning of court hearings. Lawyers must be granted access to files already at the investigative stage in order to allow them to prepare an adequate defence.
That lack of transparency is compounded when the court hearings are not public. The notion of fair trial includes the guarantee of a fair and public hearing. The publicity of hearings ensures the transparency of the proceedings, thereby providing an important safeguard for the defendant. According to information received, in many high-level cases heard before the State security chamber of the Federal Supreme Court, hearings were held in closed sessions or with limited public access. Exceptional circumstances can warrant that all or part of the public is to be excluded from court hearings; nevertheless, such an exclusion must be clearly motivated, and the judgement, including essential findings, evidence and legal reasoning must be made public.
The Special Rapporteur received reports of cases in which compulsory registration and other burdensome administrative requirements had to be complied with by defendants’ relatives,international trial monitors and members of the public. Even those who fulfilled all the requirements were not always grantedaccess to hearings. Full searches imposed at the entrance to court rooms has led to absurd situations, such as when a defence lawyer was prevented from entering the room with his case file. Courts do have the power to exclude all or part of the public in exceptional circumstances, but that cannot become the de facto rule. The Special Rapporteur is concerned that excluding the public from hearings spreads doubt about the fairness of judicial proceedings.
The Special Rapporteur is also concerned at reports that translations and interpretation in court cases involving non-Arabic speakers, while required by law, are not always provided in practice, or that their quality is poor.
5.Review by a higher tribunal
Anyone convicted of a crime has the right to have their conviction and sentence reviewed by a higher tribunal. Yet in the United Arab Emirates, cases related to offences directly affecting the interests of the Federation, including so-called State securitycrimes, fall under the exclusive jurisdiction of the Federal Supreme Court. Those cases are therefore considered in first and last instance by the State security chamber of the Federal Supreme Court with no possibility of review by a higher tribunal, as the Federal Supreme Court is the highest tribunal in the United Arab Emirates. That is in breach of international human rights standards. The Special Rapporteur welcomes the information provided by the Government that the authorities are considering amending the legislation to provide for the possibility of appeal in such cases.
6.Court administration and case management
The Special Rapporteur was witness to the fact that the local justice systems in Abu Dhabi and Dubai have developed highly advanced computer-based systems for the management of the courts and cases. The systems provide online access to a significant amount of information, including the status of cases, hearing dates and statistics. Impressive applications for smartphones have also been developed, which facilitate the work of judges, lawyers and court users alike. She hopes that such sophisticated tools will soon be made available for criminal cases and further developed at the level of federal courts. However, the differences in the quality of judicial services offered to the residents of the seven Emirates remain a matter of concern that should be addressed.
F.Access to justice and legal aid
The Special Rapporteur is concerned about access to justice for vulnerable members of the population, such as migrant workers, domestic workers and stateless persons, who are also known as Bidoons. They face serious obstacles in accessing the justice system, which include the lack of legal identity in the case of Bidoons, the lack of information about the legal system and judicial proceduresavailablein a language the individual understands, anda lack of confidence in the justice system.It is therefore often impossible for vulnerable persons to seek remedies for abuses they suffer, which is a breach of the principle of equality before the courts. The Special Rapporteur notes with appreciation the information received on the efforts undertaken by the authorities to reach out to migrant workers, inform them about their rights and support them in their judicial proceedings, including by waving judicial fees. She hopes that those efforts will be strengthened.
At the federal level, institutional legal aid is available only to defendants who do not have the financial means to pay for a lawyer in the criminal justice system. The resources come from the budget of the federal courts and lawyers placed on a roster are assigned to those cases by judges.
Against that backdrop, the Special Rapporteur welcomes the free legal aid system set up in the Abu Dhabi judicial department. Since 2011, free legal aid has been provided to indigent people in that Emirate, including for civil cases. Three types of service are provided to litigants who cannot afford legal assistance: the assignment of a lawyer; the settlement of the fees of experts who may be required by the case in question; and legal assistance to detainees. The authorities informed the Special Rapporteur that the majority of the beneficiaries of those free legal services were migrant workers. The Special Rapporteur is encouraged by the information received from the Government that the Ministry of Justice is willing to study that positive example with a view to strengthening the legal aid system at the federal level.
G.Women in the justice system
During her visit, the Special Rapporteur looked into the integration of a gender perspective and women’s rights in the justice system. She is extremely concerned that women are prohibited from becoming federal judges and federal prosecutors under articles 18 and 58, respectively, of Federal Law No. 3 of 1983 Those discriminatory provisions are in breach of the Convention on the Elimination of All Forms of Discrimination against Women, to which the United Arab Emirates acceded in 2004, and are therefore unacceptable.
The Special Rapporteur notes with appreciation that in the local judicial systems of Abu Dhabi and Dubai, women can become judges and prosecutors. In the local judiciary in Abu Dhabi, there are currently 9female judges and 18 female prosecutors. There are 73 women registered as lawyers with the courts of Abu Dhabi;they represent 19 per cent of the total number of lawyers there. In the local justice system in Dubai, there are 3female judges and 17 female prosecutors. The Special Rapporteur was encouraged to hear that in those two Emirates, programmes aimedat empowering women and increasing their representation in the judiciary were in place.
Nevertheless, it seems that women still face institutional gender discrimination in many facets of the justice system, including when filing complaints with the police or appearing before the courts. Judges, prosecutors and even lawyers show the gender bias and discriminatory attitudes and practices present in society in the United Arab Emirates; that bias and discrimination reflect the traditional, patriarchal societal structure thatis dominant in the United Arab Emirates.
In thatregard, the Special Rapporteur is concerned at reports indicating that the majority of cases of sexual assault and domestic violence do not reach the courts. Significant social pressure is placed on women not to report such abuses to the police or the courts. The treatment and stigma faced by some women who dare to file a complaint for sexual assault is disturbing. In a widely publicized case, a woman of foreign nationality who went to the police to file a complaint for rape ended up being prosecuted and convicted on the grounds that she had engaged in illicit sex. The Special Rapporteur is also worried about the situation of female migrant workers, including domestic workers, who are in a particularly vulnerable situation when it comes to accessing justice and gaining redress in cases of abuse.
The Special Rapporteur wishes to underline that a more representative and gender-sensitive judiciary could play a determining role in empowering women to gain access to justice, claim their rights and break patterns of gender discrimination and impunity in cases of violence against women. The Special Rapporteur welcomes the information received about a recent initiative of the Ministry of Justice which aims to address some concerns relating to women and the judiciary; she wishes to receive further details on the content of that initiative.
The federal public prosecution was established under the direct supervision and control of the Minister of Justice.It is headed by the Attorney General and composed of prosecutors of different ranks. Candidates are proposed by the Minister of Justice and approved by the Cabinet before being formally appointed by a federal decree of the President Such de jure control is of great concern to the Special Rapporteur as it manifestly jeopardizes the autonomy of prosecutors.
Against that background, the Special Rapporteur is seriously concerned about reports which indicate that the prosecution services are often influenced by members of the executive and the State security services. Prosecution services should be autonomous and prosecutors should perform their functions in an independent, objective and impartial manner, in compliance with the law and international legal principles, including the fundamental principle of the presumption of innocence.
The Special Rapporteur is troubled by credible allegations that evidence is sometimes manipulated and fabricated by members of the police, other security agencies or the public prosecution. She was also told that prosecution services pursue cases even when allegations have been proven unfounded. In one case reported to the Special Rapporteur, one of the accused was found guilty, despite the fact that he was in detention relating to another matter at the time that the offence with which he was accused was committed,while another was outside the country and had evidence to prove it. They were nevertheless prosecuted and later convicted for acts they could not possibly have committed,according to clear and available evidence.
At both emirate and federal levels, the public prosecution forms part of the judiciary. It is responsible for investigating crimes; issuing arrest, search and seizure warrants; initiating criminal proceedings; and enforcing criminal judicial decisions. It also has competence to monitor detention centres and plays an active part in disciplinary proceedings against lawyers. Such a concentration of functions in the hands of the prosecution is a matter of concern to the Special Rapporteur, as it may hamper the independence and fairness of criminal investigations and proceedings. As a result, the principle of equality of arms, which requires procedural equality between the prosecution and the defence, could be affected.
Like judges and prosecutors, lawyers also play an essential role in ensuring the independence of the judiciary and upholding the rule of law.While they are not expected to be impartial in the same way as judges, they must be as free from external pressure and interference as judges. The Special Rapporteur is concerned about the absence of an independent, self-regulating bar association that oversees the process of admitting candidates to the legal profession, provides for a uniform code of conduct and enforces disciplinary measures, including disbarment. The establishment of such an independent association is a key element in ensuring the independence of lawyers.
The conditions for admission to the bar are set out in article 6 of Law No. 23 of 1991 and include a compulsory training period of two years, but no standardized written bar examination. As a result, there could be a significant disparity in lawyers’ competence, which is of concern to the Special Rapporteur.
In the United Arab Emirates, the Council for the Admission of Lawyers Before the Courts, established in the Ministry of Justice, is in charge of the admission of lawyers and their registration on one of the rosters provided for by law. The Special Rapporteur is concerned at the extensive involvement of the executive and the extremely limited participation of lawyers in the admission and registration of lawyers, which, in her view, is incompatible with the Basic Principles on the Role of Lawyers, as it undermines lawyers’ independence. She also notes with concern that practising lawyers are required to apply to renew their enrolment every year.
The Special Rapporteur is also concerned about the involvement of the executive in disciplinary procedures against lawyersand their disbarment. Indeed, the Council for the Admission of Lawyers Before the Courts is also in charge of complaints against lawyers. Decisions can be challenged before the Federal Supreme Court. In addition, while a selective list of lawyers’ rights and duties is provided in Law No. 23 of 1991, there is no comprehensive code of conduct or ethics that clearly defines what constitutes an infraction and how such infractions should be sanctioned. The Special Rapporteur welcomes the information received on a Ministry of Justice projecton further developing the legal profession, which reportedly takes into consideration issues relating to education and training, guarantees of independence, and the adoption of a code of conduct, inter alia. She encourages the authorities to seriously consider the relevant recommendations contained in the present report.
The Special Rapporteur was alarmed at reports that some lawyers who take up cases related to State security have been harassed, threatened and had pressure exerted on them, including through constant surveillance, public campaigns of defamation, and the arbitrary deportation of non-national lawyers. She was alsoalarmed at the long list of obstacles that lawyers working on State security-related cases encountered on a daily basis while discharging their professional duties and representing their clients’ interests.
Lawyers should never be identified with their clients or their clients’ causes as a result of discharging their professional functions. Yet in at least one case, a lawyer was arrested when he was enquiring about the whereabouts of his clients at the State security prosecution branch. That is clearly unacceptable and should be immediately investigated. Families of persons accused of State security-related offences are also encouraged by the police, State security agents or prosecutors not to hire certain lawyers. That practice must stop.
Impunity surrounding such breaches of the independence of the legal profession has had a chilling effect on lawyers. It was reported to the Special Rapporteur that it has become extremely difficult to secure a lawyer in State security-related cases. Many lawyers refuse such cases or drop them early on owing to the pressure placed on them. That is extremely worrying and could lead to serious violations of defendants’ right to a fair trial, including the right to be represented by counsel of one’s choice.
J.Education, training and capacity-building
Authorities of the United Arab Emirates at both federal and local levels have acknowledged the importance of high-quality education and professional training for judges, prosecutors and lawyers in order to ensure an effective administration of justice. Efforts have been made and some measures taken to try to remedy the deficits of the United Arab Emirates in that domain. For instance, there are scholarship programmes for judges to study in the United States of America or Europe.
The Academy of Judicial Studies and Specialized Training in Abu Dhabi was set up in 2008 and provides training for judges, prosecutors and lawyers, among others. In Dubai, the Judicial Institute provides training for judges, prosecutors and lawyers, including compulsory training courses for judges and prosecutors. The Special Rapporteur was informed that a new diploma on human rights and the judicial system targeted at judges, prosecutors and lawyers was to be offered as of spring 2014. The course should consist of about 50 hours of training on a variety of human rights topics that are directly relevant to the judiciary. The Special Rapporteur welcomes that initiative and hopes that similar training courses can be offeredthroughout the United Arab Emirates, including to local and federal judges.
Yet challenges remain, in particular when it comes to the concrete application in the daily work of judges, prosecutors or lawyersof the knowledge gained during training. More efforts are therefore needed to improve the expertise of judges, prosecutors and lawyers and the quality of their work. The application of the knowledge and/or skills gained during training should be assessed and, on the basis or the results gathered, the needs for training should be revised. The training offered should also be diversified and include modules on specific human rights-related topics, such as women’s rights or the rights of migrant workers. That will require serious commitment from the authorities, as well as the investment of resources. The Special Rapporteur wishes to underline that without such efforts, the ultimate aim of the United Arab Emirates to nationalize its judiciary will not be achieved.
The Special Rapporteur welcomes the recognition of the principle of the independence of the judiciary in the Constitution of 1971. It is equally important to acknowledge that the justice system in the United Arab Emirates developed into an elaborate and complex court system with federal and local courts and judicial authorities in a relatively short time frame.
Despite commendable progress, the current judicial system in the United Arab Emirates faces challenges that negatively affect the delivery of justice, the en j o y ment of human rights and the public’s confidence in the judiciary. The Special Rapporteur is particularly concerned at reports of serious breaches of fair trial and due process guarantees, especially regarding, but not limited to, crimes related to State security. She is also concerned about the harassment, pressure and threats to which some lawyers are subjected, in breach of their independence , especially when they take up cases related to State security crimes.
While the achievements should be acknowledged and commended, it is fair to highlight the Federation’s challenges and shortcomings when looking at the independence, impartiality, transparency, competence and efficiency of the justice system. As seen above, such challenges and shortcomings may directly undermine the exercise of human rights and present credible obstacles to the country’s stable political development, and consequently its further economic growth.
As a member of the Human Rights Council, the United Arab Emirates should spare no efforts in implementing human rights recommendations effectively. The Special Rapporteur stands ready to provide technical assistance and advice if needed. U nited N ations offices and agencies could also be in a position to provide assistance. The United Nations Office on Drugs and Crime, for instance, has an array of ready-to-use tools that can be us ed to consolidate the functioning of the criminal justice system and enhance its transparency , in line with international human rights principles.
The Special Rapporteur strongly encourages the United Arab Emirates to continue engaging with human rights mechanisms; in particular , she hopes that they will receive more special procedures mandate holders in the near future. In th at context, she recommends that the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and the Working Group on Enforced or Involuntary Disappearances be invited to conduct official visits.
T he International Covenant on Civil and Political Rights and the Optional Protocols thereto , and the International Convention for the Protection of A ll Persons from Enforced Disappearance should be ratified.
A n ational h uman r ights i nstitution in line with the p rinciples relating to the status of national institutions (Paris Principles ) should be established.
Specific steps should be taken to remedy discrepancies between the Emirates regarding the independence and impartiality of the judiciary and the transparency and efficiency of the administration of justice, with a view to strengthen ing the entire justice system and render ing it more consistent .
A ll federal and local laws and regulations should be made easily available accessible to the public in order to enhance the principle of legal certainty .
L egislative provisions that are phrased in terms that are too broad and/or vague, in particular the relevant provisions of the Penal Code, Federal law s No. 2 of 2003 and No. 7 of 2014 , and Federal Decree No. 5 of 2012, should be amended in order to comply with international human rights standards and the principle of legality .
P ublic awareness about the content of laws, their application, the obligations they entail and the differences that exist between the laws of the various Emirates should be raised.
Independence and impartiality of the judiciary
T he principle of the separation of powers should be enshrined in the Constitution and concrete measures taken to strengthen the independence of the judiciary .
T he functions of the Ministry of Justice and the federal judiciary and courts should be clearly separated; i n particular, the administrative and financial supervision of the courts should be immediately transferred to the judiciary, so that the judiciary is self-govern ing.
T he composition of the Supreme Council o f the Federal Judiciary should be revised with a view to increas ing the representation of judges and reducing or even exclud ing the participation of members of the executive .
T he actors of the justice system and the public should be consulted meaningfully in the process of drafting the revised federal law on the judiciary .
In order to preserve their independence, judges should be appointed by an independent body composed mainly of judges; the participation of representatives of the executive should be avoided .
A standardized written examination should be set up in order to ensure that the competence and expertise of candidates to the bench are assess ed in an anonymous and transparent manner .
C omplaints relat ing to discriminatory attitudes and other improper behaviour of judges should be promptly investigated and, if corroborated, the judges concerned should be sanctioned.
N on- national judges should be given the same guarantees as national judges, provided they are in line with the rules of secondment of their home countr ies; t heir contracts should not be renewed annually, but rather , should last for the whole duration of the secondment allowed by the home country .
A transparent and clear strategy, accompanied by a sufficiently resourced programme, should be adopted to progressively reduce the number of non- national judges , in full conformity with international human rights obligations; in the longer term, the goal should be to fully nationalize membership of the judiciary .
Accountability and disciplinary measures
A written code of conduct for federal and local judges should be adopted , in line with the Bangalore Principles of Judicial Conduct .
Fair trial, due process and administration of justice
V iolations of due process and fair trial should be investigated immediately and urgent measures taken to remedy them; s uch measures may include the revision of judg e ments and sentences, the release of detainees, and/or the granting of compensation .
T he Code of Criminal Procedure should be amended to prescribe a limit for pretrial detention .
T he de facto practice s of arresting individuals suspected of having committed offen c es against the security of the State outside the purview of the law , and of keeping them in secret detention places, incommunicado and in solitary confinement should cease immediately ; a ll arrests and detentions should be carried out in compliance with international human rights standards guaranteeing the liberty and security of the person .
Evidence and confessions that prosecutors or judges know or reasonably believe to have been obtained through recourse to unlawful methods, especially torture or cruel, inhuman or degrading treatment or punishment, or other human rights abuses, should never be accepted before a court as they constitute a grave violation of the defendant’s human rights .
A n independent body composed of professionals with international expertise and experience, including in medical forensics, psychology and post-traumatic disorders, should be established to investigate all claims of torture and ill-treatment alleged to have taken place during arrest and/or detention ; s uch a body should have access to all places of detention and be able to interview detainees in private , and its composition should be agreed upon with defendants’ lawyers and families.
Access to a lawyer in private should be granted in all cases no later than 48 hours after arrest , in full compliance with international standards relat ing to fair trial and the legal profession .
Lawyers should be guaranteed , both in law and in practice , full access to appropriate information, files and documents in the possession or control of the authorities ; a ppropriate information includes, at a minimum, all materials that are exculpatory or that the prosecution plans to use in court against the accused .
Court hearings should be public unless restrictions can be justified clearly and in line with exceptions accorded under international human rights law .
Q uality interpretation and translation for non-Arabic speakers should be provided at all stages of judicial proceedings, including during the investigation and initial detention phases .
T he Constitution and related legislation should be amended to ensure the right to have one’s conviction and sentence reviewed by a higher tribunal in all cases, including cases currently falling under the exclusive jurisdiction of the Federal Supreme Court .
U se of modern technology, in particular in the criminal justice system, should be extended and all hearings recorded in order to ensure the proper, adequate and transparent administration of justice .
Access to justice and legal aid
E fforts to adopt clear policies and measures to promote equal access to justice, particular ly f or vulnerable groups such as migrant and domestic workers, including by providing free legal aid and raising awareness of rights and procedures should be strengthened.
Steps should be taken towards the establishment of free legal aid for indigent people , including in non-criminal cases at both the federal and local levels throughout the United Arab Emirates .
Women in the justice system
Gender-based bias, stereotypes and discrimination persisting in the justice system should be addressed and eliminated urgently. To that end, training on gender equality and women’s rights, including the prohibition of violence against women, and related international human rights standards, in particular the Convention on the Elimination of All Forms of Discrimination against Women, should be made compulsory for all judges, prosecutors and lawyers at both federal and local level s . The study of gender equality, women’s rights and relevant international standards should also form an integral part of the legal education of judges, prosecutors and lawyers .
Federal Law No. 3 of 1983 should be amended urgently in order to allow women to become federal judges and prosecutors. Further measures and clear policies to improve the representation of women in the judiciary should be taken at both the federal and local level s . In particular, women should be encouraged to undertake legal studies and consider legal and judicial careers .
G ender-tailored procedures, policies and practices should be developed to promote women’s equal access to justice .
D isaggregated statistical data on the number of complaints, investigations, prosecution s and convictions in cases of violence against women, including sexual violence , should be compiled.
T he autonomy of the public prosecution should be ensured vis-à-vis the Ministry of Justice ; p rosecutors should be able to perform their functional activities in an independent, objective and impartial manner without pressure from the executive or any other party .
Prosecutors should conduct themselves in a professional manner at all times and strive to be, and be seen to be, independent and impartial ; t hey should perform their duties fairly, and respect and protect human dignity and human rights .
T he competence and functions of the public prosecution should be revised and , where necessary , brought in to line with international standards on the administration of criminal justice. In particular, the enforcement of judicial decisions should be the prerogative of judges , not prosecutors .
A compulsory, standardized written bar examination should be instituted and conducted on an anonymous basis. Lawyers should participate fully in the prepar ation of the examination .
An independent , self-regulating bar association with statutes that comply with international standards should be established, inter alia to oversee the process of admitting candidates to the bar and enforce disciplinary measures, including disbarment. The association and its independence should be officially recognized .
A uniform code of conduct or ethics should be drafted with the full participation of lawyers. Th e code should provide for the applicable disciplinary procedure and give detailed guidance on the infractions that would trigger disciplinary measures against lawyers .
An impartial disciplin ary body should be established by the legal profession and a clear procedure should be adopted for the conduct of disciplinary proceedings , in line with international standards .
The independence of lawyers should be respected and ensured by the authorities . I mmediate measures should be taken to put an end to all forms of harassment, pressure and threats exerted on lawyers and to remove the many obstacles preventing lawyers from discharging their professional duties and assert ing their independence .
Education, training and capacity-building
All judges, prosecutors and lawyers working at both the federal and local levels should have access to high-quality education and professional training, including on-the-job and specialized training. Training in human rights law should be made compulsory for all federal and local judges, prosecutors and lawyers .
The range of professional and on-the-job training should be expanded . E ducation and training opportunities should also be standardized between the various Emirates so as to ensure that judges, prosecutors and lawyers enjoy the same opportunities nationwide .