Feb 4, 2019 | News
The ICJ is concerned that the dismissal of 17 judges and prosecutors by Turkey’s Council of Judges and Prosecutors on 10 January, for alleged membership of or connections with the “Fetullahist Terrorist Organisation” (FETÖ) did not respect their right to a fair trial.
The decision by the Council of Judges and Prosecutors (CJP) is particularly problematic because it lacks any reasoning on the individual situation of each judge and prosecutor.
The ICJ points out that international law provides that judges may be dismissed only through a fair hearing before an independent authority. The lack of individual reasoning in dismissal decisions strikes at the heart of the right to a fair hearing.
Furthermore, the ICJ recalls its conclusions in the 2018 report Justice Suspended that, within the current constitutional framework, the Council of Judges and Prosecutors (CJP) is not provided with the guarantees necessary to ensure its institutional independence.
Despite the state of emergency having been lifted since last July 2018, extraordinary powers given to the Council of Judges and Prosecutors to dismiss judges and prosecutors during the State of Emergency were extended for 3 years by Law no. 7145. It is unacceptable in a State governed by the rule of law that judges and prosecutors – whatever charges may be against them – be dismissed without respect for the right to a fair procedure, in disregard of international standards.
Considering that the Council of State has not delivered a single decision about dismissed judges and prosecutors during the state of emergency, in more than two years now, it seems likely that it would take at least two years before the recent decision of the CJP is reviewed by an independent judicial authority. Until then, absent further action by the CJP, the reasons for the dismissals will not be known by the purged judges and prosecutors, or by the general public.
The ICJ calls on the CJP to revoke its order and re-examine the cases under the ordinary dismissal procedures and on the Turkish Government and Parliament to modify the constitutional rules on the CJP to ensure its full independence.
Finally, the ICJ expresses concern at the conviction of the former head of the judges’ organisation YARSAV, Mr Murat Arslan, for alleged membership of FETÖ. There are credible reports of violations of the right to a fair trial in the proceedings, including four changes of judges during the proceedings, often without reasons given and without re-examination of witnesses, significant limitations to the defence access to evidence before trial and use of witnesses with undisclosed identity. The ICJ considers that these allegations of violations of the right to a fair trial should be thoroughly re-examined in appeal before an independent court and in full respect of Mr Arslan’s fair trial rights.
Background
On 10 January, the Council of Judges and Prosecutors made use for the first time of special powers to dismiss judges and prosecutors without complying with the ordinary procedure, invoking extraordinary powers enacted by Law No 7145 of 31.07.2018. This legislation inserted into ordinary law several powers that had previously existed under the state of emergency legislation.
One of the amendments made by Law No 7145 of 31.07.2018 was to the Decree Law No 375 dated 1989. A Temporary Article (Article 35) was added to the Decree. On the basis of this article, the General Assembly of the Constitutional Court, the Presidency Councils of Court of Appeal, the Council of State, the General Assembly of the Council of Judges and Prosecutors, a Commission set up by the Ministry of National Security, and the Presidency of the Court of Audit, were each authorised to take dismissal decisions for public officials/judges and prosecutors under their mandate for three years from the date of the endorsement of the law No 7145.
Based on this amendment, on 10 January 2019 the Council of Judges and Prosecutors took its first decision (Decision No. 2019/1) by dismissing 17 judges and prosecutors (6 Public prosecutors, 3 Members of Administrative Court, 7 judges of of Tax Court) based on the allegation of membership to FETÖ.
International law and standards provide that disciplinary proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.
The UN Basic Principles on the independence of the judiciary set out international standards for discipline, suspension and removal of judges, including in order to ensure impartiality and independence of courts and tribunals as required by international law (including the International Covenant on Civil and Political Rights and the European Convention on Human Rights). The Basic Principles state that a:
“charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. …
The Consultative Council of European Judges (CCJE) adds that “a Head of State, Minister of Justice or any other representative of political authorities cannot take part in the disciplinary body.”
Contact
Massimo Frigo, ICJ Senior Legal Adviser for the Europe and Central Asia Programme, t: +41 22 979 3805, e: massimo.frigo(a)icj.org
Jan 31, 2019 | Multimedia items, News, Video clips
For the past two years the ICJ and its partners Refugee Rights Turkey (RRT), the European Council on Refugees and Exiles (ECRE) and Mülteci-Der (MD) have provided trainings and training materials for Turkish lawyers on international human rights law relating to migration and asylum as part of the project Fostering Access to Rights for Migrants, Refugees and Asylum-Seekers in Turkey.
The project has worked to enhance access to justice for migrants, refugees and asylum-seekers, through establishing, equipping and supporting a well-informed group of lawyers and civil society organizations in Turkey and link them with their counterparts in EU Member States to defend the rights of migrants, refugees and asylum-seekers.
In a public event on the 17 December 2019 hosted in Ankara to mark the conclusion of the project, the ICJ and its partners presented a promotional video describing the work conducted throughout the project.
Watch video here:
(Rough Turkish subtitles available but will be revised at a later stage | Turn the Turkish subtitle by clicking on CC.)
The project “Fostering Access to Rights for Migrants, Refugees and Asylum-Seekers in Turkey” is funded by the European Instrument for Democracy and Human Rights (EIDHR) of the European Union.
Jan 29, 2019 | News
On the second anniversary of the killing of prominent lawyer U Ko Ni, in public view at Yangon International Airport, the ICJ repeats its calls for a thorough and impartial investigation with a view to establish the facts, to deliver justice and to deter the repetition of similar crimes.
“This brazen killing of a prominent democracy advocate demands a rigorous State response to show this type of crime will be fully punished,” said Frederick Rawski, the ICJ’s Director for Asia and the Pacific.
Despite an official investigation and reports of more than 100 court hearings, nobody has been held accountable for U Ko Ni’s death – criminally or otherwise – and the circumstances have not yet been satisfactorily explained.
“Myanmar simply cannot satisfy its international law obligations without conducting an impartial and independent investigation that is free of military influence. Such an investigation is a pre-requisite for conducting an effective prosecution in a fair trial setting,” added Rawski.
U Ko Ni was well known as a vocal advocate for human rights and democratic reform in Myanmar. As an adviser to the National Legal of Democracy party, he was involved in creating the position of State Counselor, which formalized a leadership role for Daw Aung San Suu Kyi, despite a constitutional provision barring her from the Presidency.
At the time of his death, it is understood that U Ko Ni was working on proposals to replace Myanmar’s 2008 Constitution, the source of law underpinning military power.
“A credible justice process is required not only for U Ko Ni and his family, but to demonstrate the State will protect the right to life of all people including democracy advocates,” said Sean Bain, legal adviser for the ICJ.
“A crime of this nature stifles participation in the democratic process and so an effective justice process is imperative to deter its repetition,” Bain added.
Myanmar has a particular obligation to ensure that lawyers and others acting as human rights defenders are protected in carrying out their work.
Any justice process must be timely, effective and shed light on the facts.
The investigation into U Ko Ni’s killing has been beset by obstacles, including the unknown whereabouts of a primary suspect, the incorrect identification of a deceased individual as a suspect and the arrest of a person with the same name, and reported military involvement in the police investigation. Lines of inquiry related to the political motivations for the killing, particularly considering the military links of many suspects, do not appear to have been pursued satisfactorily, nor impartially, given military involvement in the investigation.
Criminal proceedings in Yangon’s Northern District Court, and related proceedings in the Yangon High Court, have been sluggish. Observing lawyers and individuals including from the ICJ have noted multiple instances of admission into evidence of testimony that appears to be irrelevant, failures of key witnesses to appear, and the long drawn out process of court proceedings whereby weeklong delays are common while continuances over successive days are rare.
These issues are emblematic of challenges in Myanmar’s justice system previously identified by the ICJ in which police, prosecutors and courts generally lack the independence and or will to effectively administer justice, particularly in politically sensitive cases.
“Two years is an incredibly long time to get to the position we are in now, and in our experience this highlights broader problems with the administration of justice in Myanmar,” added Bain.
Contact
Frederick Rawski, ICJ Asia Pacific Region Director, e: frederick.rawski(a)icj.org
Sean Bain, ICJ Legal Adviser, e: sean.bain(a)icj.org
Download:
Myanmar-Ko Ni Statement-News-web stories-2019-ENG (full story with background information, PDF)
Myanmar-Ko Ni Statement-News-web stories-2019-BUR (full text in Burmese, PDF)
Read also:
Myanmar: reverse laws and practices that perpetuate military impunity – new ICJ report
Killing of lawyer U Ko Ni must be promptly and impartially investigated
Jan 18, 2019 | News
A legal challenge to the violations of migrant children’s social rights on mainland Greece and its North Eastern Aegean islands has been lodged by the ICJ and the European Council on Refugees and Exiles (ECRE) before a European body specialized in the protection of social rights at the European level.
The legal action, taken in the form of a collective complaint to the European Committee on Social Rights, catalogues the numerous instances of Greece failing its child care and protection obligations towards migrant children by leaving them in conditions of squalor, insecurity and violence.
The complaint to the Committee, an impartial body which oversees the protection of certain economic and social rights by assessing the conformity of domestic law and practice with the European Social Charter, has been supported by the Greek Council for Refugees and includes reports from Médecins Sans Frontières on health and living conditions of migrant children in Lesvos.
Amongst the most blatant infringements of migrant children’s rights described in the complaint has been the systematic and ongoing absence of sufficient accommodation facilities and the lack of an effective guardianship system for unaccompanied children in Greece, exposing them to significant protection risks, including homelessness and placement in detention.
Such severe deficiencies in basic care facilities has led to dire living conditions which deprive children of their most fundamental rights.
Overcrowded, insalubrious and dangerous conditions prevail most obviously on the North Eastern Aegean islands where the standards of human dignity and special protection accorded to children by virtue of their particular status under international human rights law are repeatedly violated.
The complaint notes that the dearth in basic care facilities for migrants in Greece extends to medical services, particularly on the islands, which has a serious knock-on effect on hygiene, sanitation and substantive physical and mental health care and treatment for children.
In addition, mixed living arrangements, limited, if not non-existent security patrols and deficient guardianship systems have led to numerous reports of sexual abuse, violent assaults, harassment and humiliation of migrant children in camps on the Greek islands.
The consequences of the conditions listed in the complaint have been, in certain locations, children self-harming and even attempting suicide.
“Greece’s deference to the violations being committed against migrant children on its territory has gone on for far too long without any foreseeable improvement on the horizon.
Transfers of migrant children and vulnerable persons from the islands to the mainland are paralysed by a shortage of places on the mainland and administrative encumbrances.
All the while, children are left to languish in a forgotten environment of impoverishment and destitution.
This legal challenge to Greece’s indifference will hopefully pave the way for institutional condemnation and for substantive change in the protection of society’s most vulnerable” says Amanda Taylor, Senior EDAL Coordinator at the European Council on Refugees and Exiles.
“As signatory of the European Social Charter, Greece is under an international obligation to ensure that migrant children in its jurisdiction have access to basic economic and social rights. Particularly in the case of migrant children, who find themselves in a vulnerable situation, remaining even for a short period of time in such terrible conditions as currently exist in Greece, is likely to result in irreparable harm and injury and have a detrimental and non-reversible impact on their development,” said Karolína Babická, Legal Adviser for Europe and Central Asia with the ICJ.
“This complaint refers to two of the most pressing protection issues in Greece; the protection of unaccompanied minors and the conditions prevailing on the Greek islands after the launch of the EU-Turkey Statement, where migrant children are stranded. In December 2018, almost two out of three unaccompanied children in Greece were deprived of a place in long-term accommodation facility for minors. At the same time, 30% of the 14,600 persons remaining on the Greek islands were children. Thus, the procedure initiated before the European Committee of Social Rights can significantly contribute to guaranteeing the respect of migrant children’s rights in Greece,” said Alexandros Konstantinou, member of the Legal Unit of the Greek Council for Refugees.
The complaint awaits examination and determination by the European Committee on Social Rights.
As part of the complaint and in order to immediately alleviate the situation which migrant children face in Greece, ECRE and ICJ have urgently requested Greece to remove migrant children from unsuitable and overcrowded camps on the islands; to provide them with adequate and age-appropriate facilities, sufficient food, water and medical care, and with effective and competent guardians; and to remove unaccompanied migrant children from detention and place them in tailored accommodation suitable for their age.
Read the full complaint here.
Jan 14, 2019 | News
Today the ICJ condemned the conviction of prominent Egyptian political activist Ahmed Douma and called for his immediate removal from solitary confinement and release from prison.
Ahmed Douma, political activist and founding member of the now banned 6 April pro-democracy movement established in 2008, was convicted by the South Cairo Criminal Court on Wednesday 9 January 2019.
The conviction, resulting in a sentence of 15 years in a maximum security prison and a six million Egyptian pounds (US$335,000) fine, followed a re-trial on charges under the Penal Code and Law No. 10 of 1914 on Illegal Assembly including using force and violence against military and police officers, disrupting traffic, participating in an illegal assembly for such purposes, burning the Egyptian Scientific Institute, vandalizing public property, and possessing Molotov Cocktails and rocks to vandalize public property.
The charges relate to his involvement in a three-week sit-in protest outside the Cairo Cabinet Offices in November and December 2011 against the Supreme Council of the Armed Forces’ decision to appoint Kamal Al Ganzouri as Prime Minister, and calling for a civilian government during the post-revolution transition period. The protest erupted in clashes between military forces and protestors on 16 December 2011, which lead to the death of 18 protestors by live ammunition, injury of more than 1900 others and property damage. Douma and 268 others were charged with all offences without distinction.
Ahmed Douma has been held in solitary confinement since late 2013 in connection with his conviction in another case.
Before handing down the sentence, Judge Mohamed Shereen Fahmy stated the country was “plagued by the intellectually defeated and the socially […] lost in the maze of life, seeking a position through which they can establish themselves as national symbols, liars, deceivers, and accomplices, […] who one would expect to be the homeland’s protectors, but in reality, they are its worst foes.”
“The harsh sentence is a clear message to all political activists that any political activity or dissent will not be tolerated under Egypt’s military dictatorship,” said Said Benarbia, Director of ICJ’s MENA Programme. “Judge Fahmy’s statement demonstrates he was never independent and impartial, but was implementing the political will of the al-Sisi led government. The Egyptian regime’s politicization of the judiciary means those with opposing views are unlikely to have a fair trial.”
On 22 December 2013, a Cairo Misdemeanor Court convicted Ahmed Douma in another case, along with two other political activists and founding members of the 6 April movement, Ahmed Maher and Mohamed Adel, for “illegally organizing a protest” under Law No. 107 of 2013 on the Right to Public Meetings, Processions and Peaceful Demonstrations. They were sentenced to three years’ imprisonment and fined 50,000 Egyptian pounds (US$7,239) each.
Since that conviction, Douma has been detained in solitary confinement, with minimal time outside his cell each day. Prolonged solitary confinement is prohibited under international law.
“The Egyptian Authorities are subjecting a political activist to severe ill-treatment in reprisal for his participation and his role in the pro-democracy uprisings of January 2011 and as a warning to others to take heed of what will happen should you dare to express your views. Ahmed Douma’s solitary confinement for more than five years is a breach of Egypt’s obligations under international law,” said Said Benarbia.
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-Release Ahmed Douma-News-Web Story-2019-ENG Full press release (English, PDF)
Egypt-Release Ahmed Douma-News-Web Story-2019-ARA Full press release (Arabic, PDF)
Jan 3, 2019 | Advocacy, News, Non-legal submissions
On 30 December 2018, the ICJ and the International Service for Human Rights (ISHR) jointly submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) directed against Thailand.
They did this as a State Party to the Optional Protocol to the UN Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW Convention) on behalf and with the consent of Angkhana Neelapaijit, regarding the alleged enforced disappearance of her husband, Somchai Neelapaijit.
Somchai Neelapaijit, a prominent lawyer and human rights defender, disappeared after being stopped on a road in Bangkok on 12 March 2004 and pulled from his car by a group of men. He has not been seen since. More than 14 years after his alleged enforced disappearance, Somchai’s fate and whereabouts remain unknown.
Prior to his disappearance, Somchai had been defending clients from Thailand’s southern border provinces and had been doing extensive work to advocate for the rights of persons accused of terrorism, and to highlight the treatment of Malay-Muslims in the region.
The joint communication by ICJ and ISHR to the CEDAW Committee submits that Thailand has breached Articles 2(b)(c)(f), 5(a)(b), 15(1) and 16(1)(c)(d) of the CEDAW Convention, which relate to the rights of women to substantive equality and protection from all forms of discrimination, including in all matters relating to marriage and family relations, as well as to their right to an effective remedy for violations of the abovementioned provisions.
The communication further highlights the impact of enforced disappearance on family members of a disappeared person, noting its disproportionate impact on wives and female relatives, as most cases of enforced disappearance in Thailand involve male victims.
In addition to the CEDAW Convention and its Optional Protocol, Thailand is a party to a number of other international human rights instruments, including the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In January 2012, Thailand also signed the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), thereby committing itself to refrain from acts that would defeat the object and purpose of that treaty, namely the prevention and prohibition of the crime of enforced disappearance.
The ICJ has consistently called upon the Thai authorities to comply with their obligations under international human rights law to independently, impartially and effectively investigate the case of Somchai Neelapaijit and all other reported cases of enforced disappearance, and provide the families of the victims in such cases with access to effective remedies and reparations, including regular updates on the status of the investigations.
The ICJ has also submitted recommendations to the Thai authorities on the current Draft Prevention and Suppression of Torture and Enforced Disappearances Act, highlighting the crucial need for a domestic law to define and criminalize enforced disappearance and torture in line with Thailand’s international obligations.
Thailand-Communication to CEDAW-Advocacy-2019-ENG (full submission, in PDF)
Contact
Livio Zilli, ICJ Senior Legal Adviser & UN Representative, email: livio.zilli(a)icj.org
Read also
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
Thailand: ICJ marks 14th year anniversary of the enforced disappearance of Somchai Neelapaijit’
Thailand: ICJ, Amnesty advise changes to proposed legislation on torture and enforced disappearances
Thailand: pass legislation criminalizing enforced disappearance, torture without further delay
On the 10th anniversary of Somchai Neelapaijit’s alleged disappearance, the ICJ released a report ‘Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand’ documenting the legal history of the case.
