Oct 5, 2023 | News
The ICJ condemns the recent prosecution of two lawyers, Dalila Msadek and Islem Hamza, who act as defence counsel in a high-profile case involving political opposition figures. On 29 September 2023, the Public Prosecutor of the Tunis Court of First Instance initiated criminal proceedings against Dalila Msadek and Islem Hamza, who are members of the legal team defending a number of political opponents of the regime of Tunisia’s President, Kais Saied, some of whom have been detained since February 2023 for their alleged involvement in the so-called conspiracy case based on charges related to “terrorism” and “State security”.
البيان باللغة العربية على هذا الرابط
The ICJ further condemns the prosecution of Ayachi Hammami, also acting as defence counsel in the “conspiracy case”, who is scheduled to appear before the investigating judge of the “counter-terrorism” specialized judicial unit on 10 October 2023. Ayachi Hammami was informed that he was being prosecuted in the “conspiracy case” on 3 May 2023.
The prosecutions of Dalila Msadek, Islem Hamza and Ayachi Hammami are emblematic illustrations of a pattern of judicial harassment of lawyers representing individuals involved in political cases in Tunisia where the lawyers themselves are targeted solely because of their legitimate professional activities, ultimately underming their ability to defend their clients’ human rights, free from intimidation, hindrance, harassment or improper interference.
“This growing pattern of judicial harassment of lawyers solely for their legitimate discharge of their professional duties violates their human rights, including to liberty and security of person, fair trial, work and freedom of expression, as well as their clients’ right to a fair trial, including the right to defend themselves and to legal representation and assistance,” said Said Benarbia, ICJ MENA Director.
Dalila Msadek and Islem Hamza face charges of “spreading fake news with the aim of threatening public security through audio-visual media”, pursuant to article 24 of Decree-law 2022-54 of 13 September 2022, and of “processing of personal data relating to criminal offences, their investigation, criminal proceedings, penalties, preventive measures or criminal records”, pursuant to articles 13 and 87 of Organic Law No. 2004-63 on the protection of personal data. Dalila Msadek and Islem Hamza are being prosecuted in connection with statements they made on the radio on 28 and 29 September 2023 in which they mentioned having requested that the investigating judge of the ”counter-terrorism” specialized judicial unit should hear the diplomats whom their clients allegedly met as part of the “conspiracy” of which the prosecution accuses them.
Since June 2023, Islem Hamza has also been prosecuted in a separate case, under article 24 of Decree-Law 54, following a statement she made on the radio, in her capacity as a defence lawyer of arrested political opponents, denouncing the conditions of transfer of detainees as inhumane. Similarly, Ayachi Hammami has been prosecuted since January 2023 in a distinct case pursuant to Decree-Law 54 based on a statement he made in his capacity as a defence lawyer of the dismissed judges.
The ICJ considers that, to prosecute Islem Hamza, Dalila Msadek and Ayachi Hammami, the prosecution authorities have latched onto statements that Islem Hamza, Dalila Msadek and Ayachi Hammami made in the legitimate discharge of their professional duties as lawyers towards their clients. In addition, their statements constitute the protected exercise of their right to freedom of expression and, as such, cannot be subject to criminal prosecution under general principles of criminal law and international human rights law and standards.
Islem Hamza, Dalila Msadek and Ayachi Hammami are not isolated cases: Abdelaaziz Essid is also being prosecuted based on a statement he made as a defence lawyer in the “conspiracy case”. Moreover, Ghazi Chaouachi and Rhida Belhaj, who were representing other defendants in the “conspiracy case”, are being prosecuted in that very same case before the “counter-terrorism” specialized judicial unit.
“After arbitrarily detaining peaceful political opposition members, the authorities are increasingly using the criminal law to harass and intimidate defence lawyers and disrupt the legitimate discharge of their professional duties,” said Said Benarbia. “In so doing, they are sending the chilling message that any lawyers who represent defendants in political cases expose themselves to the risk of being prosecuted on spurious criminal charges.”
The ICJ calls on the Tunisian authorities to drop all criminal charges against all lawyers currently prosecuted solely for the legitimate discharge of their professional duties and the peaceful exercise of their right to freedom of expression and to immediately end all practices that hinder the work of lawyers.
Background
Since 2022, State authorities have increasingly targeted Tunisian lawyers for their legitimate defence work and for exercising their human rights. On 26 May 2023, several mandate holders of the UN Human Rights Council Special Procedures expressed concern over some of these cases.
According to information available to the ICJ, at least 27 lawyers are facing or have faced criminal prosecutions since 2022 based on charges related to, among others, “terrorism” and “State security”, or based on public statements critical of the executive. Among these, three – Noureddine Bhiri, Ghazi Chaouachi and Rhida Belhaj, who began a hunger strike on 2 October 2023 along with other detainees in the “conspiracy case” – are currently in detention; three other defence lawyers – Abdelrazak Kilani, Mehdi Zagrouba and Seifeddine Makhlouf – have been tried and imprisoned by military courts; and 15 others have been banned from traveling, including Lazhar Akermi following his release from pre-trial detention.
Lawyers, like any other person, enjoy the right to freedom of expression, as protected under human rights treaties to which Tunisia is party. These include the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.
The UN Basic Principles on the Role of Lawyers and the African Commission on Human Peoples’ rights’ Principles and Guidelines on the Right to a Fair Trial in Africa reaffirm this principle and state that governments shall ensure that lawyers are able “to perform all of their professional functions without intimidation, hindrance, harassment or improper interference”, and “to travel and to consult with their clients freely both within their own country and abroad.”
The UN Special Rapporteur on the Independence of Judges and Lawyers has urged public prosecutors “ to closely monitor situations and cases in which lawyers might be criminalized for performing their duties. When such circumstances arise, appropriate orders should be issued to prevent public prosecutors from maliciously prosecuting members of the legal profession who criticize State officials and institutions in the exercise of their independence and freedom of expression.”
Sep 28, 2023 | News
The ICJ is concerned at Thailand’s continued failure to bring justice to the loved ones of Karen activist Pholachi ‘Billy’ Rakchongcharoen, who was the victim of an apparent enforced disappearance in 2014, and apparent subsequent killing.
The ICJ calls on the responsible authorities to ensure that there is continuous effective investigation to determine definitively the fate of Billy and deliver justice to his family.
Today, Thailand’s Criminal Courts for Corruption and Misconduct Cases acquitted four Kaeng Krachan National Park officials, the last individuals seen with Billy, of murder-related charges, including premeditated murder and concealing the victim’s body. Only one of the accused, Chaiwat Limlikit-aksorn, former chief of Kaeng Krachan National Park, was convicted of charges and sentenced to three years in prison related to “malfeasance in office” for failing to hand Billy over to the responsible authorities after his arrest.
The Court, constituted of a panel of two judges, indicated that it did not believe that Billy had been released as claimed by the accused. Nevertheless, the Court concluded that there was not sufficient evidence to prove that the park officials orchestrated the killing.
“More than nine years of delays, including by inaction by the government until recently, and still no justice, is a blow to the victims. This constitutes yet another marker of Thailand’s consistent failure to hold accountable perpetrators of serious human rights crimes, potentially committed by State authorities,” said Sanhawan Srisod, ICJ Legal Adviser.
Billy was the victim of an apparent enforced disappearance, as he was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials. The officials claimed they detained Billy for illegal possession of honey, but that they released him later the same day.
On 12 September 2019, the DSI located bone fragments, along with an oil tank submerged in water, which they identified as likely belonging to Billy. The subsequent DNA test indicated a maternal relation between the fragment and Billy’s mother, suggesting a blood relationship through the maternal line. However, the Court ruled today that there was insufficient evidence to establish that they belong to Billy, as opposed to other relatives who may have passed away during the same period.
This decision was made despite testimony from State forensic experts affirming the validity of the DNA test used in this case, which needed to be considered alongside other supporting facts. This includes testimonies given by the relatives and cultural expert about the absence of known blood relatives who had passed away without knowledge, and the Karen practice of not scattering the remains of the deceased in the river. Such testimony also aligns with the opinions of international forensic experts, specifically the Independent Forensic Expert Group established by the International Rehabilitation Council for Torture Victims, who were consulted by the prosecutors’ lawyers.
Enforced disappearance was recently made a specific crime under Thai law, following the adoption of the long-delayed Act on Prevention and Suppression of Torture and Enforced Disappearance, which came into effect in February this year. Under the Act, and international law, enforced disappearance is a continuous crime, which is not completed until the fate or whereabouts of the victim becomes known. Therefore, to the extent that there is any doubt that the discovered remains belonged to Billy, the crime must be considered to be ongoing and the law is applicable to Billy, even if it was not in force when he first “disappeared.”
Nevertheless, the Prosecution did not attempt to charge the accused with enforced disappearance, and the Court consistently rejected any reference to the crime made by the prosecution during the proceedings. This includes the rejection of expert witnesses proposed by the prosecutor’s lawyers who intended to testify about international law and standards governing enforced disappearance, following the rejections made by the accused.
“It is also unfortunate that the Thai court did not take into consideration the specific nature of the crime of enforced disappearance, often accompanied by very limited circumstantial evidence, which may be the only available means of establishing the crime. Such a crime also normally includes the powerlessness of the victim in the hands of the authorities, the use of state power to destroy direct evidence in an attempt at total impunity or to create the illusion of a perfect crime, all factors that have been taken into consideration in many cases in various jurisdictions worldwide when assessing the possible involvement of the suspects in crimes of this nature,” added Srisod.
During the trial, pursuant to the Act on Establishment of the Criminal Court for Corruption Cases B.E. 2559 (2016), the Court also used the so-called inquisitorial system, which is new to both lawyers and public prosecutors accustomed to the accusatorial style of the usual Thai court system. In this regard, lawyers voiced complaints that the judge on several occasions cut short the follow-up questions that the lawyers had planned to ask, citing that these issues had already been covered during their own examinations and other written submissions.
Background
Chaiwat Limlikit-aksorn was convicted under section 157 of the Criminal Code and section 123 of the Organic Act on Counter Corruption B.E. 2542 (1999).
Thailand has signed but not yet ratified the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) and is a State Party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The latter two treaties prohibit conduct making up enforced disappearance, and the crime is recognized as violation of both treaties.
The National Human Rights Commission of Thailand and local Thai Civil Society Organizations continue to receive complaints of alleged human rights violations at the hands of security forces constituting serious criminal conduct, including extraterritorial killings, torture and other ill-treatment, and enforced disappearances.
Between 1980 and August 2023, the UN Working Group on Enforced or Involuntary Disappearances also recorded and transmitted 93 cases of alleged enforced disappearance to Thailand. Currently, 77 of these cases remain unresolved.
Unfortunately, the number of cases in which these allegations have been investigated, let alone perpetrators prosecuted, remains low, as are instances where there has been access to effective remedies and provision of reparations for victims. In several instances, alleged victims of torture and other ill-treatment or the families of those who died as a result of these abuses have received some monetary payments falling short of full reparation, but the perpetrators have not yet been brought to justice.
This case also follows the acquittal of five police officers charged with the robbery and coercion of the “disappeared” human rights lawyer Somchai Neelapaijit in December 2015 due to a lack of evidence.
Further reading
Thailand: Indictment of park officials for killing of “Billy” is a significant step towards justice
Thailand: discovery of “Billy’s” remains should reinvigorate efforts to identify perpetrator(s)
Thailand: special investigation into apparent enforced disappearance of “Billy” welcome, but much more is needed
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
Justice for Billy: Time for Thailand to Account for Activist’s Disappearance
Contact
Sanhawan Srisod, Associate International Legal Adviser, ICJ, e: sanhawan.srisod@icj.org
Sep 15, 2023 | Advocacy, Human Rights Council, News, Statements, Work with the UN
The ICJ welcomes the last report of Mr. Fabian Salvioli as he ends his 6-year tenure as the UN Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence. The report, presented to the UN Human Rights Council (HRC) on 14 September 2023, compiles and analyses existing international standards under the five pillars of transitional justice: truth, justice, reparation, memorialization and guarantees of non-recurrence.
