Havana “Basic Principles on the Role of Lawyers” of 1990
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1
Sovereign Law Series
Havana “Basic Principles on the
Role of Lawyers” of 1990
Short-Form Reference:
1990 “Principles on Role of Lawyers”
In-Line Micro Reference:
1990 “Role of Lawyers”
Ratification / Registration:
UN 8th Congress on Prevention of Crime, Havana (07 Sep 1990)
© 2020 Sovereign Court of International Justice (SCIJ). All International Rights Reserved.
The 1979 “Berne Convention” fully protects this proprietary collection as a selection and arrangement of
works (Art. 2.5), and protects these documents as derivative works (Art. 2.3) and adaptations (Art. 12). All
unauthorized republication or distribution including online is illegal (Art. 9). “Fair Use” does not permit
infringement for unfair competition by another non-profit (17 USC 107), which is a criminal offense
punishable by 10 years imprisonment (18 USC 241; UK Copyright Act §107).
2
Introductory Notes by the Independent Judiciary
Download Sovereign Law Series – This “Sovereign Law Series” is presented by the
Sovereign Court of International Justice (SCIJ), as a proprietary system for standardized
reference and effective use of international law sources. It provides primary sources
of the modern framework of “conventional international law”, which contains
provisions to invoke “customary international law” which is the “Common Law”.
Download the “Intro & Index” (with links to all documents in the collection) here:
Introduction & Index
Independence from the UN – The United Nations (UN) is not a “world government”,
and has no authority for any type of “global governance”: The UN is prohibited to
interfere with self-determination of peoples or sovereignty of States (UN Charter,
Articles 1.2, 2.1, 2.7), and is liable for any of its own violations of international law and
rights (2012 Declaration on Rule of Law, Article 2). The UN is not a “world
parliament”, and has no authority to enact any form of “legislation”: The UN General
Assembly (GA) is only a forum for States to codify and declare general recognition of
rights and doctrines of international law (UN Charter, Article 13.1).
Reclaiming Law and Rights – The UN has no authority to “own” or “control”
international law: All the conventions actually belong to the Peoples of the Nations,
and the UN is only authorized to register and publish them (1969 Law of Treaties,
Articles 1(e), 76.1, 80; UN Charter, Article 102). Once a convention recognizes “rights”,
those “may not be revoked or modified” (1969 Law of Treaties, Articles 36.1, 37.2),
and “become binding upon” all States as “customary rules of international law” which
are “recognized” by that convention (Article 38). Therefore, all law and rights
evidenced in conventions belong to the People, and can be invoked by the People and
enforced by the Independent Judiciary, in perpetuity.
Words of Rights in Red – Operative words and phrases most effective for invoking and
enforcing Rights, which are the most used by Barristers and Judges, are printed in Red
font for ease of visual reference. Some key words may be underlined for emphasis.
Commentary in Green – [Expert commentary from Barristers and Judges may be
added in Green font, in Brackets, to guide effective use to assert and enforce rights.]
3
Official Text of this Law Source as Ratified
Basic Principles on the Role of Lawyers
Preamble
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 Safeguards 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;
4
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.
5
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.
6
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.
7
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.
8
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.
Sovereign Law Series
Havana “Basic Principles on the
Role of Lawyers” of 1990
Short-Form Reference:
1990 “Principles on Role of Lawyers”
In-Line Micro Reference:
1990 “Role of Lawyers”
Ratification / Registration:
UN 8th Congress on Prevention of Crime, Havana (07 Sep 1990)
© 2020 Sovereign Court of International Justice (SCIJ). All International Rights Reserved.
The 1979 “Berne Convention” fully protects this proprietary collection as a selection and arrangement of
works (Art. 2.5), and protects these documents as derivative works (Art. 2.3) and adaptations (Art. 12). All
unauthorized republication or distribution including online is illegal (Art. 9). “Fair Use” does not permit
infringement for unfair competition by another non-profit (17 USC 107), which is a criminal offense
punishable by 10 years imprisonment (18 USC 241; UK Copyright Act §107).
2
Introductory Notes by the Independent Judiciary
Download Sovereign Law Series – This “Sovereign Law Series” is presented by the
Sovereign Court of International Justice (SCIJ), as a proprietary system for standardized
reference and effective use of international law sources. It provides primary sources
of the modern framework of “conventional international law”, which contains
provisions to invoke “customary international law” which is the “Common Law”.
Download the “Intro & Index” (with links to all documents in the collection) here:
Introduction & Index
Independence from the UN – The United Nations (UN) is not a “world government”,
and has no authority for any type of “global governance”: The UN is prohibited to
interfere with self-determination of peoples or sovereignty of States (UN Charter,
Articles 1.2, 2.1, 2.7), and is liable for any of its own violations of international law and
rights (2012 Declaration on Rule of Law, Article 2). The UN is not a “world
parliament”, and has no authority to enact any form of “legislation”: The UN General
Assembly (GA) is only a forum for States to codify and declare general recognition of
rights and doctrines of international law (UN Charter, Article 13.1).
Reclaiming Law and Rights – The UN has no authority to “own” or “control”
international law: All the conventions actually belong to the Peoples of the Nations,
and the UN is only authorized to register and publish them (1969 Law of Treaties,
Articles 1(e), 76.1, 80; UN Charter, Article 102). Once a convention recognizes “rights”,
those “may not be revoked or modified” (1969 Law of Treaties, Articles 36.1, 37.2),
and “become binding upon” all States as “customary rules of international law” which
are “recognized” by that convention (Article 38). Therefore, all law and rights
evidenced in conventions belong to the People, and can be invoked by the People and
enforced by the Independent Judiciary, in perpetuity.
Words of Rights in Red – Operative words and phrases most effective for invoking and
enforcing Rights, which are the most used by Barristers and Judges, are printed in Red
font for ease of visual reference. Some key words may be underlined for emphasis.
Commentary in Green – [Expert commentary from Barristers and Judges may be
added in Green font, in Brackets, to guide effective use to assert and enforce rights.]
3
Official Text of this Law Source as Ratified
Basic Principles on the Role of Lawyers
Preamble
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 Safeguards 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;
4
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.
5
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.
6
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.
7
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.
8
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.