International Commission of Jurists
Independence of the Inter-American Commission of Human Rights must be protected from undue political interference

Independence of the Inter-American Commission of Human Rights must be protected from undue political interference

Sep 1, 2020 | Advocacy, News

Today the ICJ called on the Organization of American States (OAS) to respect the autonomy and independence of the Inter-American Commission on Human Rights (IACHR) as the body in charge of promoting the observance of human rights in the Americas, including in respect of its core administration functions.

The OAS Secretary-General has declined to endorse the unanimous decision taken in January by the seven-person IACHR to renew the mandate of its Executive Secretary, Paulo Abrão, whose term expired on 15 August.

The Secretary General indicated that his action was motivated by concern at internal complaints that are still to be resolved.

The refusal to renew this mandate, however, must not be made on the basis of pending complaints, which must nonetheless be resolved in a reasonably short period of time, based on the principles of due process for all parties concerned

The ICJ recognizes the importance of processing the staffs’ complaints in a timely manner which respects the due process rights of the parties concerned through an independent and transparent process.

The ICJ recalls that it is essential to ensure the independence and autonomy of the Inter-American Commission, which necessarily includes the functions related to the appointment process of the Executive Secretary.

“The IACHR has played a critical role in the Americas to advance human rights and to protect victims of human rights violations,” said ICJ Secretary General Sam Zarifi.

He also mentioned that “the situation requires an urgent resolution that guarantees respect for the principles of independence and autonomy of the IACHR.”

Venezuela: ICJ and 83 organizations call the Human Rights Council to renew and strengthen the mandate of the International Independent Fact-Finding Mission

Venezuela: ICJ and 83 organizations call the Human Rights Council to renew and strengthen the mandate of the International Independent Fact-Finding Mission

Aug 17, 2020 | Advocacy, News

Today, the ICJ joined 83 other human rights organizations to call the United Nations Human Rights Council to renew and strengthen the mandate of the Independent International Fact-Finding Mission (FFM) on Venezuela in its upcoming session in September, and to ensure it has adequate resources to continue its critical work.

The ICJ considers that the lack of judicial independence in the country, recently addressed by the High Commissioner and documented by ICJ during several years,  presents a major obstacle to victims seeking to access  effective remedies and reparation for gross human rights violations in the country. There has also been near complete impunity for those responsible for such violations. The lack of effective accountability makes the work of the FFM indispensable

Last year at its 42nd session, UN Human Rights Council established the Independent International Fact-Finding Mission with a mandate to investigate extrajudicial executions, enforced disappearances, arbitrary detentions and torture and other cruel, inhuman or degrading treatment since 2014.

The Council expressed “grave concern at the alarming situation of human rights in the Bolivarian Republic of Venezuela, which includes patterns of violations directly and indirectly affecting all human rights (…) in the context of the ongoing political, economic, social and humanitarian crisis.”

The FFM’s first report is expected to be presented at the Council’s next session scheduled for 14 September to 6 October.

The NGO joint statement stressed that the report “will mark an important first step on the path to accountability in Venezuela through the documentation of the participation of those suspected of criminal responsibility. It is critical that the Human Rights Council respond meaningfully to the findings and recommendations in the report”.

The ICJ notes that the COVID-19 pandemic has engendered further stresses on the human rights situation. The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) reported in July 2020 that an “assessment of water, hygiene and sanitation (WASH) conditions in 17 hospitals conducted by PAHO/WHO in 2019 found that 88.3 per cent of the assessed hospitals present a high risk that hygiene and sanitary conditions pose a health risk to patients and staff; the rest face a medium risk.”

The joint statement is available here.

Venezuela: ICJ addresses UN on access to justice for human rights violations

Venezuela: ICJ addresses UN on access to justice for human rights violations

Jul 15, 2020 | Advocacy, Non-legal submissions

The ICJ today highlighted the lack of judicial independence and other obstacles to access to justice for human rights violations in Venezuela, at the UN Human Rights Council.

The statement, delivered in an interactive dialogue on the relevant report of the High Commissioner for Human Rights, read as follows:

“Madame President,

The International Commission of Jurists (ICJ) welcomes the report of the High Commissioner for Human Rights’ on the situation in Venezuela pursuant to resolution 42/25. The ICJ regrets however that the report was not published sufficiently in advance of the Interactive Dialogue to allow for detailed analysis and response.

The report points to a wide range of violations of civil, cultural, economic, political, and social rights in the country.

The ICJ has documented over many years the lack of judicial independence and the absence of domestic accountability for human rights violations in Venezuela. In the Arco Minero of the Orinoco, we have seen numerous alleged cases of enforced disappearances, human trafficking, threats to human rights defenders, and serious abuses of the rights of indigenous peoples, especially indigenous women and children.

The ICJ would like to ask the High Commissioner to elaborate on the long-entrenched obstacles to accountability for human rights violations in the Venezuelan justice system, and on the abuses against indigenous peoples in the Arco Minero.

The ICJ also looks forward to the discussion of and action on the Independent International Fact-Finding Mission’s report at the 45th session of the Council in September, and urges the Council to stand ready to extend the mandate, and to enlarge the scope, of the Fact-Finding Mission at that time.

Thank you.”

Judiciaries during COVID-19: South American experience

Judiciaries during COVID-19: South American experience

Apr 29, 2020 | Advocacy, News, Op-eds

An opinion piece by Carolina Villadiego Burbano, ICJ Legal and Policy Adviser for Latin America.

Several Latin American governments have adopted exceptional emergency measures to face the COVID-19 health crisis. The measures, motivated by policies with the objctive of urgently protecting people’s health, have been accompanied by restrictions to personal freedoms (i.e. quarantines, isolations).

Judiciaries have also adopted specific measures too to protect the right to health of persons involved in proceedings while providing services for guaranteeing access to justice during the emergency. They have reduced physical operations; adopted social distancing measures in courts; postponed proceedings; authorized remote work for judges and administrative officers; incorporated urgent mechanisms to guarantee fundamental rights and allowed the use of technology.

Judiciaries fulfil different roles under international humans rights law and, as a recent ICJ briefing note recalls, these roles remain as or even more important during the pandemic. Those roles include guaranteeing individual rights, including the right to a fair trial, freedom from arbitrary detention, freedom from torture and other ill-treatment and the right to an effective remedy. In addition, the responsibility of the judiciary is to securing the rule of law more generally by reviewing the government’s decisions during the emergency.

This blog illustrates measures adopted by South American judiciaries and some preliminary and personal reflections on some of the factors to be considered in assessing their proportionality and effectiveness.

Specific measures to protect health while guaranteeing access to justice

Brazil’s National Council of Justice has recommended to judges several measures that could reduce epidemiological risks, such as reassessing pre-trial detentions. This review could include revoking pretrial detentions when detainees were pregnant women or were under pretrial detention for more than 90 days.

Chile’s Supreme Court has established criteria for judges and other personnel to work remotely, and for holding specific hearings by videoconference with previous coordination with the parties and by ensuring due process guarantees. Also, instructions have been given to prioritize cases linked to the sanitary emergency and related to the protection of rights of persons in vulnerable conditions.

Colombia’s Judicial Council postponed proceedings except for urgent ones, such as those essential for the protection of fundamental rights (tutela), habeas corpus, constitutional and legal control of the emergency governmental decrees, decisions regarding persons deprived of liberty and protective measures related to domestic violence cases. The judiciary has published email addresses where urgent applications could be made electronically and allowed the use of videoconferencing and remote work for judges.

Ecuador’s Judicial Council has allowed remote working by judges, and videoconference hearings have been adopted for crimes committed in flagrante delicto. Judicial proceedings have been postponed, except for urgent cases, such as for crimes committed in flagrante delicto, domestic violence, juvenile justice and prisoners’ guarantees. The Supreme Court and the Constitutional Court has defined rules applicable to the procedures under their jurisdiction.

Peru’s Executive Council of the Judiciary postponed proceedings and established that some judges should work physically at courts on urgent proceedings, such as those related to rights of detainees, domestic violence and payment of parental support. Some remote work has also been allowed.

Other judiciaries have adopted similar measures. Provincial judiciaries from Argentina and judges from Bolivia have held hearings through videoconferences. Paraguay’s judiciary identified urgent matters for which it would provide services.

Judiciaries, right to an effective remedy and access to justice: what next?

More than one month after those judicial measures were adopted it is important to reflect on their proportionality and their effectiveness. It is also important to envision a middle-term plan to deal with the consequences of postponement of proceedings and the likely increase of judicial workload when restrictions end. I suggest three sets of issues that could be considered as a starting point for such reflection by Latin American judiciaries, civil society and international bodies and agencies:

  • Effects on the protection of the right to health and on rights of judges and court personnel
  1. There should be a review of the measures adopted to guarantee in-person services, especially analyzing if adequate health standards have been guaranteed for all persons participating in proceedings. There has been some criticism that protective measures have been insufficient and sometimes they were only available for judges and courts’ administrative staff.
  2. There should be an assessment with judges and other personnel, whether the remote work complied with health-work standards. It is crucial to review the conditions of persons working remotely, in particular in relation to information technology, and if work schedules have been flexible when judges/personnel were caring for children or dependent adults.
  3. There should be a review as to whether there has been a disproportionate effect in the workload of female judges or other female personnel while working remotely, caring for children and performing domestic activities.
  • General considerations with a human rights approach

The following questions might be considered:

  1. Review whether judicial proceedings continue to be accessible wherever necessary to guarantee the right to an effective remedy regarding human rights, and to otherwise ensure judicial review of the lawfulness of governmental decisions. The Inter-American Commission on Human Rights has established that “appropriate legal proceedings to ensure the full exercise of rights and freedoms” should not be suspended.
  2. Review whether judicial measures that guarantee the right to an effective remedy are accessible for all persons in a country, especially for those in a situation of vulnerability or risk.
  3. Establish priorities and policies for cases related to persons or groups in conditions of particular risk (e.g. detainees, migrants, refugees), and for persons without access to technology.
  4. Review if hearings held by videoconferences guaranteed parties’ rights, such as due process, right to defense, right to call and confront evidence, and right to consult confidentially with one’s lawyer.
  5. Assess whether the security protocols used by the remote work and videoconferencing technologies, ensure that sensitive, confidential or otherwise private information, is adequately protected.
  6. Adopt transparency policies and adopt public assessment of the measures adopted, so individuals can exercise control and oversight of these measures as they affect defendants, parties, lawyers and the general public.
  • Medium-term plan for Judiciaries
  1. Judiciaries should develop a medium-term plan soon to guarantee the right to an effective remedy to address the adverse human rights effects that COVID-19 has brought and may continue to generate. The plan should be public and should consider the possible increase of workload due to postponement of proceedings and impacts on specific rights, such as health, work, water and sanitation and food. It could consider deploying teams of emergency judges to provide access to an effective remedy for these rights and the use of adaptive case management tools.
  2. Judiciaries should develop a strategy to ensure that cases of human rights violations that constitute crimes under international law, enforced disappearances, extrajudicial killings, torture and ill-treatment, are not indefinitely delayed, cancelled or otherwise compromised. Such impediments must not be allowed to result in impunity of perpetrators or pose obstacles to ensuring that victims receive complete information regarding the advance of their cases. 

The COVID-19 pandemic has modified judiciaries’ methods of work. As they adopted specific measures to protect the health of persons as well as to provide judicial remedies, it is important to review their measures with a human rights approach. It is also critical that judiciaries themselves analyze their practices and adopt changes when necessary. The Inter-American Commission of Human Rights and the UN Special Rapporteur on the Independence of Judges and Lawyers should continue to specifically monitor these measures and report on them.

In PDF: Latin-America-Judiciaries-During-COVID-OpEd-2020-ENG

 

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