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1990
Eighth United
Nations Congress
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
Whereas in the Charter of the United Nations
the peoples of the world affirm, inter alia, their determination to
establish conditions under which justice can be maintained, and proclaim as
one of their purposes the achievement of international cooperation in
promoting and encouraging respect for human rights and fundamental freedoms
without distinction as to race, sex, language or religion,
Whereas the Universal Declaration of Human
Rights enshrines the principles of equality before the law, the presumption
of innocence, the right to a fair and public hearing by an independent and
impartial tribunal, and all the guarantees necessary for the defence of
everyone charged with a penal offence,
Whereas the International Covenant on Civil
and Political Rights proclaims, in addition, the right to be tried without
undue delay and the right to a fair and public hearing by a competent,
independent and impartial tribunal established by law,
Whereas the International Covenant on
Economic, Social and Cultural Rights recalls the obligation of States under
the Charter to promote universal respect for, and observance of, human
rights and freedoms,
Whereas the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment
provides that a detained person shall be entitled to have the assistance of,
and to communicate and consult with, legal counsel,
Whereas the Standard Minimum Rules for the
Treatment of Prisoners recommend, in particular, that legal assistance and
confidential communication with counsel should be ensured to untried
prisoners,
Whereas the Safe guards guaranteeing
protection of those facing the death penalty reaffirm the right of everyone
suspected or charged with a crime for which capital punishment may be
imposed to adequate legal assistance at all stages of the proceedings, in
accordance with article 14 of the International Covenant on Civil and
Political Rights,
Whereas the Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power recommends measures to be
taken at the international and national levels to improve access to justice
and fair treatment, restitution, compensation and assistance for victims of
crime,
Whereas adequate protection of the human
rights and fundamental freedoms to which all persons are entitled, be they
economic, social and cultural, or civil and political, requires that all
persons have effective access to legal services provided by an independent
legal profession,
Whereas professional associations of lawyers
have a vital role to play in upholding professional standards and ethics,
protecting their members from persecution and improper restrictions and
infringements, providing legal services to all in need of them, and
cooperating with governmental and other institutions in furthering the ends
of justice and public interest, The Basic Principles on the Role of Lawyers,
set forth below, which have been formulated to assist Member States in their
task of promoting and ensuring the proper role of lawyers, should be
respected and taken into account by Governments within the framework of
their national legislation and practice and should be brought to the
attention of lawyers as well as other persons, such as judges, prosecutors,
members of the executive and the legislature, and the public in general.
These principles shall also apply, as appropriate, to persons who exercise
the functions of lawyers without having the formal status of lawyers.
Access to lawyers and legal services
1. All persons are entitled to call upon the
assistance of a lawyer of their choice to protect and establish their rights
and to defend them in all stages of criminal proceedings.
2. Governments shall ensure that efficient
procedures and responsive mechanisms for effective and equal access to
lawyers are provided for all persons within their territory and subject to
their jurisdiction, without distinction of any kind, such as discrimination
based on race, colour, ethnic origin, sex, language, religion, political or
other opinion, national or social origin, property, birth, economic or other
status.
3. Governments shall ensure the provision of
sufficient funding and other resources for legal services to the poor and,
as necessary, to other disadvantaged persons. Professional associations of
lawyers shall cooperate in the organization and provision of services,
facilities and other resources.
4. Governments and professional associations
of lawyers shall promote programmes to inform the public about their rights
and duties under the law and the important role of lawyers in protecting
their fundamental freedoms. Special attention should be given to assisting
the poor and other disadvantaged persons so as to enable them to assert
their rights and where necessary call upon the assistance of lawyers.
Special safeguards in criminal justice
matters
5. Governments shall ensure that all persons
are immediately informed by the competent authority of their right to be
assisted by a lawyer of their own choice upon arrest or detention or when
charged with a criminal offence.
6. Any such persons who do not have a lawyer
shall, in all cases in which the interests of justice so require, be
entitled to have a lawyer of experience and competence commensurate with the
nature of the offence assigned to them in order to provide effective legal
assistance, without payment by them if they lack sufficient means to pay for
such services.
7. Governments shall further ensure that all
persons arrested or detained, with or without criminal charge, shall have
prompt access to a lawyer, and in any case not later than forty-eight hours
from the time of arrest or detention.
8. All arrested, detained or imprisoned
persons shall be provided with adequate opportunities, time and facilities
to be visited by and to communicate and consult with a lawyer, without
delay, interception or censorship and in full confidentiality. Such
consultations may be within sight, but not within the hearing, of law
enforcement officials.
Qualifications and training
9. Governments, professional associations of
lawyers and educational institutions shall ensure that lawyers have
appropriate education and training and be made aware of the ideals and
ethical duties of the lawyer and of human rights and fundamental freedoms
recognized by national and international law.
10. Governments, professional associations
of lawyers and educational institutions shall ensure that there is no
discrimination against a person with respect to entry into or continued
practice within the legal profession on the grounds of race, colour, sex,
ethnic origin, religion, political or other opinion, national or social
origin, property, birth, economic or other status, except that a
requirement, that a lawyer must be a national of the country concerned,
shall not be considered discriminatory.
11. In countries where there exist groups,
communities or regions whose needs for legal services are not met,
particularly where such groups have distinct cultures, traditions or
languages or have been the victims of past discrimination, Governments,
professional associations of lawyers and educational institutions should
take special measures to provide opportunities for candidates from these
groups to enter the legal profession and should ensure that they receive
training appropriate to the needs of their groups.
Duties and responsibilities
12. Lawyers shall at all times maintain the
honour and dignity of their profession as essential agents of the
administration of justice.
13. The duties of lawyers towards their
clients shall include:
(a) Advising clients as to their legal
rights and obligations, and as to the working of the legal system in so far
as it is relevant to the legal rights and obligations of the clients;
(b) Assisting clients in every appropriate
way, and taking legal action to protect their interests;
(c) Assisting clients before courts,
tribunals or administrative authorities, where appropriate.
14. Lawyers, in protecting the rights of
their clients and in promoting the cause of justice, shall seek to uphold
human rights and fundamental freedoms recognized by national and
international law and shall at all times act freely and diligently in
accordance with the law and recognized standards and ethics of the legal
profession.
15. Lawyers shall always loyally respect the
interests of their clients.
Guarantees for the functioning of
lawyers
16. Governments shall ensure that lawyers
(a) are able to perform all of their professional functions without
intimidation, hindrance, harassment or improper interference; (b) are able
to travel and to consult with their clients freely both within their own
country and abroad; and (c) shall not suffer, or be threatened with,
prosecution or administrative, economic or other sanctions for any action
taken in accordance with recognized professional duties, standards and
ethics.
17. Where the security of lawyers is
threatened as a result of discharging their functions, they shall be
adequately safeguarded by the authorities.
18. Lawyers shall not be identified with
their clients or their clients' causes as a result of discharging their
functions.
19. No court or administrative authority
before whom the right to counsel is recognized shall refuse to recognize the
right of a lawyer to appear before it for his or her client unless that
lawyer has been disqualified in accordance with national law and practice
and in conformity with these principles.
20. Lawyers shall enjoy civil and penal
immunity for relevant statements made in good faith in written or oral
pleadings or in their professional appearances before a court, tribunal or
other legal or administrative authority.
21. It is the duty of the competent
authorities to ensure lawyers access to appropriate information, files and
documents in their possession or control in sufficient time to enable
lawyers to provide effective legal assistance to their clients. Such access
should be provided at the earliest appropriate time.
22. Governments shall recognize and respect
that all communications and consultations between lawyers and their clients
within their professional relationship are confidential.
Freedom of expression and association
23. Lawyers like other citizens are entitled
to freedom of expression, belief, association and assembly. In particular,
they shall have the right to take part in public discussion of matters
concerning the law, the administration of justice and the promotion and
protection of human rights and to join or form local, national or
international organizations and attend their meetings, without suffering
professional restrictions by reason of their lawful action or their
membership in a lawful organization. In exercising these rights, lawyers
shall always conduct themselves in accordance with the law and the
recognized standards and ethics of the legal profession.
Professional associations of lawyers
24. Lawyers shall be entitled to form and
join self-governing professional associations to represent their interests,
promote their continuing education and training and protect their
professional integrity. The executive body of the professional associations
shall be elected by its members and shall exercise its functions without
external interference.
25. Professional associations of lawyers
shall cooperate with Governments to ensure that everyone has effective and
equal access to legal services and that lawyers are able, without improper
interference, to counsel and assist their clients in accordance with the law
and recognized professional standards and ethics.
Disciplinary proceedings
26. Codes of professional conduct for
lawyers shall be established by the legal profession through its appropriate
organs, or by legislation, in accordance with national law and custom and
recognized international standards and norms.
27. Charges or complaints made against
lawyers in their professional capacity shall be processed expeditiously and
fairly under appropriate procedures. Lawyers shall have the right to a fair
hearing, including the right to be assisted by a lawyer of their choice.
28. Disciplinary proceedings against lawyers
shall be brought before an impartial disciplinary committee established by
the legal profession, before an independent statutory authority, or before a
court, and shall be subject to an independent judicial review.
29. All disciplinary proceedings shall be
determined in accordance with the code of professional conduct and other
recognized standards and ethics of the legal profession and in the light of
these principles.
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