Feb 19, 2019 | Advocacy, Cases, Legal submissions
On 19 of February the ICJ submitted a third party intervention to the European Court of Human Rights in the case of Telek and others v. Turkey.
In its intervention, the ICJ addresses two main questions considering the effectiveness of domestic remedies concerning passport cancellation as a consequence of dismissal under emergency decrees:
- Whether the State of Emergency Commission and/or judicial remedies subsequent to the decision of the Commission might constitute an effective remedy.
- Whether separate remedies for passport cancellation can provide effective relief for the applicants’ claims.
In that respect of mentioned systemic issues the ICJ presents the Court the observations concerning the capacity of the Turkish legal system to provide effective remedies for violations under the European Court of Human Rights, in light of its Convention obligations, in particular obligations under Article 13.
The ICJ submission includes analysis of the Turkish legal system based in part on an ICJ mission to Turkey undertaken in May 2018 that focused on the functioning of the State of Emergency Commission created by Legislative Decree no. 685.
Turkey-icj-Telek&Others-Advocacy-legal submission-2019-ENG (download the intervention in Telek and others v. Turkey).
Feb 19, 2019 | News
The ICJ today called for the Italian Senate to allow for the investigation of the Minister of Interior and Vice-President of the Council of Ministers, Matteo Salvini, for his role in the alleged arbitrary deprivation of liberty of some 177 persons, including potential refugees, held for five days on the “U-Diciotti” boat last summer.
The ICJ said that the Italian Senate’s Commission on Elections and Immunities should recommend the authorization of the criminal investigation to the full Senate, where Matteo Salvini also sits as a Senator.
“The decision on investigation of gross human rights violations such as mass and arbitrary deprivation of liberty should not be subject to political scrutiny but be left to the assessment of the judiciary,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe Programme.
The indictment for “kidnapping” against Minister Salvini has already been approved at the judicial stage by the Tribunal of Ministers of Catania, which affirmed that Minister Salvini is alleged to have abused his administrative power in this matter for the political goal of negotiating resettlements with other European countries.
“No human being should effectively be made hostage for the purpose of political negotiations,” said Massimo Frigo.
“It does not matter which country may have been primarily responsible for the rescue at sea. No authority may arbitrarily restrict of the right to liberty of 177 human beings,” he added.
The ICJ considers that it is highly problematic for the principle of the rule of law that the decision on prosecution for a crime underlying a gross violation of human rights, such as kidnapping, be entrusted to a political body.
This decision should be left to the judiciary based on legal and not political grounds.
Under international human rights law, including the European Convention on Human Rights and the International Covenant on Civil and Political Rights, States have an obligation to investigate, prosecute, try and, if found guilty, convict persons responsible of gross violations of human rights, among which counts the arbitrary deprivation of liberty.
This applies to all State officials, irrespective of their position of authority.
Contact
Massimo Frigo, ICJ Senior Legal Adviser, t: +41 22 979 38 05 ; e: massimo.frigo(a)icj.org
Background
The Italian “U. Diciotti” boat was at the centre of a political scandal last August when the Minister of Interior Matteo Salvini refused disembarkation of 177 people for several days in order to negotiate their resettlement with other European countries.
While the boat entered Italian waters on 20 August, they were eventually disembarked in the night between Saturday 25 and Sunday 26 August after some countries and the catholic church made some nominal declaration of resettlement or reception.
Minister Salvini was later accused of “kidnapping” for having arbitrarily deprived of their liberty the 177 persons on board the “U.Diciotti”. While the prosecutor in the case asked for the dismissal of the charges, the Tribunal of Ministers, composed of ordinary judges, that is responsible for the legal assessment of the indictment, held the indictment to be in accordance with the law and that sufficient suspicion existed to warrant an investigation.
According to article 96 of the Constitution and articles 8-9 of the Constitutional Law no. 1 of 16 January 1989, it is up to the Parliament to authorize the investigation and prosecution of a Minister. The decision would therefore be up to the Senate in the case of Minister Salvini, as he is a Senator. The Senate may refuse by absolute majority, if it considers “that the person has acted for the protection of a State interest that is constitutionally relevant or for the pursuance of a preminent public interest in the function of Government” (unofficial translation). No appeal is possible against this decision.
Reportedly, the President of the Council of Ministers, Giuseppe Conte, the Vice-President of the Council of Ministers, Luigi Di Maio, and the Minister Danilo Toninelli, have submitted observations to the Senate’s Committee holding that the decision in the case was the reflecting the line of the whole Government and not only of the Minister of Interior.
Feb 18, 2019 | Advocacy
National, regional and international NGOs, including the ICJ, play a critical role in the work of the treaty bodies through monitoring the implementation of the treaties at the national level, providing information to the treaty bodies, and encouraging states to give effect to the treaty bodies’ recommendations.
This document contains a call from NGOs for an inclusive review process on treaty body strengthening.
Feb 13, 2019 | Advocacy, Non-legal submissions
The ICJ has opened a call for written submissions on the misuse of criminal law in the areas of sexuality, reproduction, drug use and HIV.
In 2016 the UN Secretary General called for the removal of punitive laws, policies and practices that violate human rights, stating that the misuse of criminal law often negatively impacts on health and human rights, particularly in areas of sexuality, reproduction, sex work, drug use and HIV.
Recognizing a need for greater guidance to achieve such law reform, ICJ is seeking inputs for the development of principles to address the detrimental impact on health, equality and human rights of criminalization with a focus on sexuality, reproduction, drug use and HIV.
This is an important opportunity for civil society, academics, law makers, human rights experts, community groups and persons affected by the relevant criminal laws, to provide input, including on the effect of such criminal laws, when and how criminal law should be used, what reforms are needed and what role criminal law should play in the relevant areas.
A background paper providing further information is annexed to the call for written submissions.
The deadline for submissions is the 31st of March 2019.
These submissions will feed into the development of a set of principles to address the detrimental impact on health, equality and human rights of criminalization with a focus on select conduct in the areas of sexuality, reproduction, drug use and HIV.
Please send your submissions, as well as any questions or clarifications, to decrimconsultation@icj.org
CallforSubmission-DecriminalizationProject-ICJ-2019-2-eng (download the call in English)
CallforSubmission-DecriminalizationProject-ICJ-2019-2-fra (download the call in French)
CallforSubmission-DecriminalizationProject-ICJ-2019-2-esp (download the call in Spanish)
CallforSubmission-DecriminalizationProject-ICJ-2019-2-rus (download the call in Russian)
Feb 6, 2019 | News
The ICJ today expressed its grave concern over amendments to Egypt’s 2014 Constitution proposed by the House of Representatives yesterday, which could increase President el-Sisi’s control over the judiciary, extend his rule for 15 more years, expand the jurisdiction of military courts’ to prosecute civilians and broaden the military’s powers.
The amendments were proposed by one-fifth of the House of Representatives on 4 February, and reported to Parliament by its General Committee yesterday.
“The proposed amendments are a flagrant assault on the independence of the judiciary, and would expand the powers of presidency and further facilitate el-Sisi’s subordination of judicial and prosecutorial authorities,” said Said Benarbia, ICJ’s MENA Programme Director.
The amendments would grant the President authority to choose the Supreme Constitutional Court’s (SCC) President and its new members, chairs of all other judicial authorities, and the Public Prosecutor.
The President would also have authority to select the Chair and members of the Commissioners Authority, a judicial board that provides advisory opinions to judges on legal issues in cases pending before the SCC.
The General Committee’s report states the amendments are to “unify the mechanism of appointment” of these institutions.
The amendments would also establish a “High Council for Joint Judicial Affairs” chaired by the President to manage all common matters relating to the judiciary.
The amendment to Article 140 of the Constitution would extend presidential terms from four to six years.
Another “needed transitional article” would reportedly also permit President el-Sisi to run for re-election for another two terms, which, combined, could permit him to stay in office until 2034.
Article 140 of the Constitution currently imposes a two-term limit, and Article 226 prohibits amendments to “texts pertaining to the re-election of the president of the Republic…unless the amendment brings more guarantees.”
“This is an attempt to undermine constitutional safeguards aimed at protecting the right of the Egyptian people to freely choose their government and to take part in the conduct of public affairs,” said Benarbia.
“In accepting these amendments, the Parliament would abdicate its responsibility to uphold the Constitution and the rule of law,” he added.
Further amendments include the “redrafting and deepening the role of the Armed Forces” by expanding its mandate to include broad terms such as “safeguarding the constitution and democracy” and “preserving the basic elements of the state and its civilian character.”
The jurisdiction of military tribunals over civilians for “direct assault[s]” against military facilities, objects and personnel would also be expanded by the removing the requirement that the assaults be “direct.”
The amendment would make permanent a temporary constitutional provision requiring the Supreme Council of the Armed Forces—a military body—to approve the appointment of the Minister of Defense.
“The amendments effectively place the military above the law and the Constitution,” said Said Benarbia.
“They pave the way for the further entrenchment of the military in civilian affairs, which has already led to significant violations of civilian rights to participate in political life and express opinions critical of the regime,” he added.
Under international law, the jurisdiction of military courts must be limited to holding military personnel accountable for alleged violations of military discipline. No civilian should be prosecuted before military courts.
The amendments, which are still subject to parliamentary discussion and drafting by parliamentary committee, must eventually be approved in a two-thirds vote, and then by a majority in a referendum.
The ICJ expressed its concerns about the process for adoption of the 2014 Constitution, and its capacity to serve as a basis for the establishment of the rule of law in Egypt.
The ICJ made recommendations aimed at facilitating public participation in the legislative process in accordance with international standards and at ensuring constitutional provisions were consistent with international human rights law.
These concerns remain valid today.
Contact:
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Egypt-Constitution Statement-News-2019-ENG (full story with background infomation, in PDF)
Egypt-Constitution Statement-News-2019-ARA (full story in Arabic, in PDF)
