Mar 31, 2015 | Advocacy, News
The ICJ today expressed concern at searches of lawyers’ homes and workplace by Kyrgyz investigators in the city of Osh.
The home of lawyer Valerian Vakhitov and the office of the human rights organization “Bir-Duyno-Kyrgyzstan” (photo) where lawyers Valerian Vakhitov and Khusanbay Saliyev worked, were searched and materials of the lawyers’ cases were seized. The ICJ considers that the searches are violations of the right to confidential communication between a lawyer and his or her client.
The confidentiality of lawyer-client communications and lawyers’ files is protected in international human rights law as part of the right to a fair trial, as well as the prohibition of arbitrary interference with correspondence, privacy and (in this case) home.
The searches followed the arrest of Umar Farooq, a US citizen and journalist who reportedly conducted research on inter-ethnic tensions in the Kyrgyz Republic, in particular near the border with Uzbekistan.
On 25 March 2015, he was arrested by officers of the State Committee of National Security (SCNS) and a number of items in his possession were seized including recordings containing “statements on religious topics and clips of military activities”, copies of charges filed against clients of the two lawyers, A.M. Yusupov and I.I. Salibayev, and the business cards of the two lawyers.
On 28 March, Umar Farooq was expelled from the Kyrgyz Republic on grounds of collection of information without accreditation.
The investigator sought a search warrant for the lawyers’ premises on the grounds that they could contain documents “necessary for the investigation” in criminal case No. 082-15-0236.
Warrants to search the NGO premises where the lawyers worked and to search the residence of Valerian Vakhitov, were issued in separate proceedings on 26 and 27 March by judges K.M. Matisakov and B.T. Satybaldiyev.
According to the search warrant issued by the Court, the search of Lawyer Vakhidov’s home was authorized taking into account the “the need for a full, objective, comprehensive resolution of the crime, obtaining evidence necessary for the investigation of the case, inevitability of the punishment for a crime committed and for the purposes of national security”.
The same reasons were given to authorize searches of the office of “Bir-Duyno-Kyrgyzstan” Investigators seized computers, memory sticks, dictaphones and disks with information on cases in which the lawyers represented clients.
Lawyer Vakhitov reported that among other documents, files relating to nine cases in which he represented individuals before the UN Treaty Bodies, including communication with the UN bodies, had been seized.
The ICJ notes that the State Committee of National Security of the Kyrgyz Republic officially stated, on 30 March, that the searches of work and residence places of lawyers were “legal and within the framework of the CPC of the KR [Criminal Procedure Code of the Kyrgyz Republic]”.
On the same day, the Council of Advokatura, its main executive body, issued a statement calling on the Prosecutor General Indira Zholdubayeva “to take the strictest measures provided by law in regard to the officers of the State Committee of National Security which violated the guarantees of the independence of lawyers’ activity and integrity of lawyers”.
The ICJ considers that the searches are a clear violation of the law of the Kyrgyz Republic. According to Article 29 of the Law On Advokatura and Lawyers’ Activity the Kyrgyz Republic “requisitioning, seizure, examination, inspection, copying documents, collection and use of information related to legal assistance in a particular criminal case are allowed only in the case involving a lawyer as a defendant …”.
A criminal case against a lawyer may be initiated only by the Prosecutor General or her deputy (Article 29.3).
According to article 30 of the Law, information related to providing legal aid to clients is protected as lawyer-client privilege (…).
Read the full statement here:
Kyrgyzstan-Searches of lawyers-Advocacy-2015-ENG (full text in PDF)
Kyrgyzstan-Searches of lawyers-Advocacy-2015-RUS (Russian version in PDF)
Mar 27, 2015 | Advocacy, News, Non-legal submissions
The ICJ, and other NGOs present at the Brussels Conference on the implementation of the European Convention on Human Rights today responded to the final draft of the Brussels Declaration to be adopted today, with ten specific action points.
The response welcomes the draft Declaration’s deadline of June 2016 to improve the execution of the judgments of the European Court of Human Rights, but regrets that it does not set out the specific measures that states and the Committee of Ministers should take to improve implementation.
CouncilofEurope-JointStatement-ExecutionofJudgments-BrusselsConference-Advocacy-non legal submission-2015-ENG (download the joint statement)
Mar 26, 2015 | News
The UN Human Rights Council today adopted a landmark resolution on “the right to privacy in the digital age” that will establish for the first time a UN Special Rapporteur on the Right to Privacy.The resolution faced some challenges during negotiations, but was adopted without a vote (i.e. by consensus).
The Rapporteur will be appointed later this year. The Council has invited him or her to include in initial reports to the Council and UN General Assembly, a focus on the challenges to the right of privacy arising from developments in digital and communications technology in “the digital age”. However, the mandate is able to deal with all aspects of the right to privacy.
The initiative has been strongly supported by civil society organisations including the ICJ, including in the form of a joint open letter, and a joint oral statement on behalf of some 92 NGOs from around the world.
The draft resolution, as adopted, may be downloaded here: HRC28-Privacy-DraftRes-2015
Mar 26, 2015 | News
The conviction of the Maldives’ former president, Mohamed Nasheed, on terrorism charges after a grossly unfair trial marks a significant deterioration of the independence and impartiality of the country’s judiciary, said the ICJ.
On 13 March, Mr. Nasheed (photo) was sentenced to 13 years in prison for the dismissal and alleged unlawful detention of the Chief Judge of the Criminal Court, Mr. Abdullah Mohamed, in 2012, when Mr. Nasheed was president.
He was convicted of an “act…of kidnapping or abduction of person(s) or of taking hostage(s)” under Section 2(b) of the Prevention of Terrorism Act 1990.
“The Maldivian judiciary’s independence has been compromised for years by serious pressure from the government, and this grossly unfair conviction highlights the numerous problems with the politicization of the judiciary in the country,” said Sam Zarifi, the ICJ’s Regional Director for Asia and the Pacific. “It is crucial for Maldivian authorities to allow Mr. Nasheed to appeal his case effectively, with transparency and monitoring by Maldivian and international observers.”
The case’s pre-trial phase and trial were marked by gross violations of international standards of fair trial, including Article 14 of the International Covenant on Civil and Political Rights, to which the Maldives acceded in 2006.
Two of the judges on the three-judge bench testified as witnesses against Mr. Nasheed in the 2012 investigation; these statements were submitted as evidence in the present trial.
Mr. Nasheed’s defense team was not allowed to be present on his behalf during the first proceeding, nor was he given the opportunity to seek bail.
The defense team was repeatedly denied full access to prosecution evidence and witnesses or to regularly consult with Mr. Nasheed during the course of the trial.
When Mr. Nasheed’s defense team recused itself in protest of the lack of fairness, the court proceeded with the trial without legal representation present for Mr. Nasheed rather than granting him the opportunity to obtain new counsel. The defense was also denied the opportunity to call its own witnesses.
Mr. Nasheed now has the right to appeal the conviction, but his right to appeal has been infringed by the unprecedented amendment of the statutory period for appeal from 90 days to 10 days, via Supreme Court circular six weeks prior to the trial.
In addition, the court has still not released to Mr. Nasheed’s defense team the full court record required to prepare and present an effective appeal within this accelerated timeframe.
The ICJ has previously documented the politicization of the judiciary and the polarized political climate in the Maldives, calling attention to a justice system characterized by vested interests and political allegiances rooted in the country’s authoritarian past (See Maldives: Securing an Independent Judiciary in a Time of Transition (February 2011)).
“Recent events reflect a justice system that still remains deeply politicized along the same lines of entrenched political loyalties that pre-date the transition period,” Zarifi said. “The Maldivian judiciary must allow a proper appeal in this case if it is to establish itself as a separate and equal branch of the government dedicated to supporting the rule of law.”
The ICJ urged Maldivian authorities to ensure Mr. Nasheed’s defense team full access and adequate opportunity to prepare an effective appeal, and to ensure that the appeal proceeding is conducted fairly and transparently, with full access to media and domestic and international observers, in compliance with fair trial and due process standards under both Maldivian and international law.
The Maldives must also take effective measures to ensure that such violations do not reoccur in this or future cases.
Background information can be downloaded here:
Maldives-Background Brief Nasheed Trial-Advocacy-Anylysis brief-2015-ENG (full text in PDF)
