A/HRC/4/40/Add.2
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80.
The above has an impact on the adversarial system. It is seriously detrimental to the right
of defence. The Working Group’s meetings with judges at various levels led it to conclude that
they apparently do not enjoy the required independence to ensure the protection of detainees’
rights and to resist pressure, in particular pressure brought to bear by political parties and the
media. Some even expressed fear that they would be transferred, overruled, dismissed or even
subject to criminal prosecution if politicians, reporters, the police authorities or prosecutors
disagreed with their decisions.
81.
If a decision was taken to move from an inquisitorial system to an adversarial one, then
the adversarial system must work properly. A basic condition for this is that judges and
magistrates must be, must be perceived to be, and must feel that they indeed are, fully
independent and sufficiently strong to ensure the principle of equality of arms, to guarantee the
rights of detainees and to protect them from any abuse by the authority detaining them.
C. Ineffectiveness of appeals against arbitrary detention
82.
A large proportion of the habeas corpus appeals filed with mayors do not result in release
orders, and are restricted to requesting the police to correct certain formalities. The same is true
for judicial rulings on amparo.
83.
There is still a parallel system of justice for members of the military and the police, in
which the armed and security forces serve as both judge and jury. Even for alleged human rights
violations, members of the military and the police are judged by their own courts, composed
entirely of members of the institution in question. In the opinion of the Working Group, this
impairs the principle, established in the Constitution, according to which one law applies to all.
It also means that the population files few complaints in such cases, and that there is a high level
of impunity.
84.
The Working Group endorses the comments made on these special jurisdictions by the
Inter-American Commission on Human Rights, in its 2005 annual report (chap. IV, para. 192).
In general, the existence of such special jurisdictions is contrary to the provisions of international
instruments.
85.
The Working Group has been informed that the National Congress will soon consider a
draft basic law on the judiciary, which will establish that common crimes committed by the
military and the police should be heard in ordinary courts.
D. Corruption, abuse and ill-treatment
86.
The Working Group noted that the public does not have a positive perception of the
justice system and the police. In general, it is considered that the judiciary is manipulated by
political and economic interests. Although the Constitution guarantees the independence of the
judiciary (art. 199), in practice it is common to hear reports of the politicization of certain
magistrates and judges, of the influence of interest groups outside the judiciary, of a lack of
funding, of poor training and of cases of corruption. Recently, the Office of the
Attorney-General called for the resignation of 17 public prosecutors because of allegations that
they took part in illicit acts.
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