Jun 20, 2019 | Advocacy, Cases, Legal submissions, News
The International Commission of Jurists, jointly with Amnesty International and the Turkey Litigation Support Project intervened today before the European Court of Human Rights in the case of a Turkish public servant, Hamit Pişkin, who was dismissed by executive decrees during the State of Emergency.
The case is key with regard to the situation in Turkey now and under the State of Emergency, because it raises significant questions regarding procedural rights in employment proceedings leading to the dismissal of an employee working with or for a State agency on grounds related to national security, including under a State of Emergency, as well as the application of the principles of legality and legal certainty and non-retroactivity as applied to national security, including in counter-terrorism.
During the State of Emergency in Turkey, that lasted two years from 2016 to 2018, almost 130,000 employees in the public sector were dismissed under emergency legislation. Their dismissal however remained in force also after the end of the State of Emergency.
In the submission, the interveners provide the European Court of Human Rights with observations concerning:
- the applicability of the criminal limb of Article 6 of the European Convention on Human Rights (ECHR) to judicial proceedings leading to dismissal of an employee of a public institution;
- the lack of procedural guarantees in the dismissal process necessary to comply with Article 6 of the ECHR, in particular with the presumption of innocence Article 6(2), in such proceedings;
- the application of the principles of legal certainty and non- retroactivity to such decisions (by addressing the problems arising from the application of State of Emergency decrees to events that occurred before the declaration of the State of Emergency).
The full intervention can be downloaded here: Piskin_v_Turkey-ECtHR-TPI-ICJAITLSP-2019-eng
Jun 15, 2019 | News
The ICJ welcomes the recent judgment of the Tanzanian High Court condemning the Tanzanian government’s actions leading to the suspension of the SADC Tribunal and the denuding of its crucial role in maintaining the rule of law and protecting human rights in the Southern African region.
Following on a decision of the South African Constitutional Court in December 2018, the decision brings increased scrutiny to the legality and legitimacy of the decision of the SADC Summit to effectively disband the SADC Tribunal in 2010 and thereby “eviscerate the possibility of the States ever being held to account for perceived human rights violations, non-adherence to the rule of law or undemocratic practices”.
“The Tanzanian court’s decision once again raises fundamental questions about the legality and legitimacy of the SADC Summit’s attempt to strip the SADC Tribunal of its powers, following on decisions relating to land reform in Zimbabwe that upset leaders of SADC states. The ICJ endorses the views of the Tanzanian and South African courts that all decisions taken by SADC States must comply with the SADC Treaty, the right of victims of human rights abuses to access justice and the rule of law,” said Arnold Tsunga, the ICJ’s Africa Director.
The Tanzanian Court’s decision is premised on the finding that the SADC Treaty is, in terms of the Vienna Convention on the Law of Treaties, binding on all SADC member States and obligations in terms of it must be performed in good faith by all executive officials.
Having set up and empowered the SADC Tribunal to adjudicate disputes in terms of the Treaty, the Court held that “State parties including Tanzania are obliged to give effect to the Tribunal, without which the existence of the Community itself remains doubtful”.
The Court likened the system of governance set out in the Treaty to a domestic doctrine of separation of powers, noting that the Tribunal is part of an intricate set of checks and balances set out in the Treaty.
The case was brought to Court by the Tanganyika Law Society in order to hold the Tanzanian government accountable to the Constitution, the SADC Treaty and “other international law human rights norms”.
The Law Society alleged that the Tanzanian government’s actions violate the right to access to justice and are therefore “inimical to the rule of law”.
The Court’s decision makes repeated reference to international human rights law norms including United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation, the Universal Declaration on Human Rights and the African Charter concluding that crucial commitments in terms of the standards set out in these documents were violated by the Tanzanian government.
The Court reasoned that in terms of international law the State is obliged to “ensure observance of [international human rights law principles] in the conduct of its international relations”.
This, crucially, meant that State parties to the SADC Treaty must, in their conduct pertaining to international relations “ensure protection of fundamental human rights of the individual” (emphasis in original).
The SADC Summit’s attempts to protect individuals from accessing the SADC Tribunal for the purposes of vindicating their rights therefore amounted to an unlawful encroachment on individuals’ rights in terms of domestic and international human rights law.
“The Court’s decision is a strong endorsement of the universality of international human rights principles as well as the need for strong checks and balances on power in all domestic, regional and international platforms established to ensure access to remedies for rights violations. The ICJ encourages the SADC leaders to individually and collectively take note of the decisions of the Tanzanian and South African courts and take immediate action to ensure full and effective operation of an independent SADC Tribunal capable of receiving and adjudicating individual complaints,” Tsunga added.
Contact:
Arnold Tsunga, ICJ Africa Director, t: +263777283249 ; e: arnold.tsunga(a)icj.org
Timothy Fish Hodgson, ICJ Legal Adviser, t: +27828719905 ; e: timothy.hodgson(a)icj.org
Jun 13, 2019 | News
The ICJ today applauded the 11 June judgment of the Botswana High Court striking down criminal law provisions criminalizing same-sex relations.
Rightly, the Court considered that, notwithstanding the fact that the provisions at issues on their face criminalized consensual anal penetration, irrespective of the gender of those involved, the law did in fact target and disproportionately affect same-sex relations.
The judgment follows shortly after the Kenyan High Court refused to invalidate an almost identical criminal provision in judgment handed down on 24 May.
“The Botswana High Court’s judgment reaffirms the universality of the rights to be free from discrimination, dignity, privacy and equality, and directly rebuts the often-made false claim that homosexuality is ‘un-African’,” said ICJ Africa Director Arnold Tsunga.
“The ICJ commends the Court, and encourages all African states to repeal archaic criminal provisions criminalizing same-sex sexual intercourse often introduced into their legal systems by colonial powers,” he added.
In a decision referencing international human rights law and standards, and citing a growing wave of global jurisprudence on the unconstitutionality of the criminalization of consensual same-sex relations, identity and expression, the Court concluded that sections 164(a); 164(c), 165 and 167 of the Botswana Penal Code violated the rights to dignity, liberty and equality of homosexual men.
Letsweletse Motshidiemang, a 24 year-old university student who identifies as homosexual, and is currently in a relationship with a man, brought the case before the Court. Advocacy organization “Lesbians, Gays and Bisexuals Of Botswana” (LEGABIBO) was admitted as amicus curiae, and supported Motshidiemang’s case.
Despite partial legislative recognition of the need to protect people’s rights, regardless of sexual orientation, and comments made by Botswana President Mokgweetsi Masisi late last year that, “there are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected”, the Attorney General (AG) had opposed Motshidiemang’s challenge, describing the case as “cry babies”.
In a fitting rebuke of this position, the Court indicated that the AG had not produced a “scintilla or iota of justification” for its defense of the offending provisions and, instead relied on “bare assertion and/or speculations” about public morality.
Given the substantial evidence presented to the Court by the applicant and amicus curiae about the harmful effects of continued criminalization of same-sex relations, the Court observed that it “perpetuates stigma and shame against homosexuals and renders them recluse and outcasts”, finding that “there is no victim in consensual same sex intercourse inter se adults”.
Concluding that such discrimination against lesbian, gay, bisexual and transgender (LGBT) persons violates sexual autonomy and their “right to choose a sexual partner” the Court found that the provisions go “to the core of [homosexual persons’] worth as a human being[s] and “pollutes compassion” in Botswanan society.
“The judgment is a victory for LGBT persons in Botswana whose consistent advocacy ground firmly in human rights should be applauded. This judgment should catalyze further action from the Botswana authorities to ensure the full enjoyment of all human rights by LGBT persons in Botswana,” said Tsunga.
Contact:
Arnold Tsunga, ICJ Africa Director, t: +63 77 728 3249 ; e: arnold.tsunga(a)icj.org
Timothy Fish Hodgson, ICJ Legal Adviser, t: +27828719905 ; e: timothy.hodgson(a)icj.org
Jun 13, 2019 | News
Today, the ICJ called on the authorities in Tajikistan to immediately release a prominent lawyer who is currently serving a sentence of imprisonment of 28 years on dubious charges.
The UN Working Group on Arbitrary Detention (WGAD) published a decision in Mr Yorov’s case on (date), finding that “the trials of Mr. Yorov were carried out in total disregard for the guarantees encapsulated in article 14 of the Covenant, being of such gravity as to give the deprivation of liberty of Mr Yorov an arbitrary character […].”
The Working Group recommended that the government remedy the situation of Yorov without delay and to this end “release Mr. Yorov immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law”.
The ICJ has previously expressed concern that Buzurgmehr Yorov’s conviction may constitute a reprisal for his defense work in high-profile political trials in connection with his representation of thirteen leaders of the Islamic Renaissance Party of Tajikistan (IRPT).
The ICJ earlier expressed concerns at the conviction of the lawyer to a 28 year sentence in prison, which is based on clearly improper charges related to the defense of his clients.
The ICJ welcomes the decision of the WGAD and calls on the Tajikistan authorities to fully implement the decision and to take all necessary measures to protect lawyer Yorov, his family and his lawyers against any threats to their security, or any intimidation, hindrance, harassment or improper interference with their performance of their professional functions as lawyers.
In this regard, the ICJ notes recent protests by dozens of individuals who took part in a rally against Yorov in front of the representative offices of the United Nations and the European Union in Tajikistan, soon after the decision of the WGAD.
Posters of the demonstrators called on the UN High Commissioner of Human Rights to “take her hands off Tajikistan” and named organisations that had defended Mr Yorov or brought the petition on behalf of Yorov to the UN WGAD.
In this context, it is imperative that the Tajikistan government immediately publicly affirm the legitimacy of the decision of the WGAD and make clear its commitment to complying with it, the ICJ underlined.
Background
Buzurgmekhr Yorov was arrested two years ago on 28 September 2015, on charges of “fraud” and “forgery of documents.” Later, he was accused of violating three more articles of the Criminal Code, including in relation to alleged “public calls for extremist activity.”
On 6 October 2016, The Dushanbe City Court sentenced Yorov to 23 years imprisonment in a strict regime prison.
In March 2017, Yorov was sentenced to an additional two years’ deprivation of liberty for “contempt of court and insulting the representative of power.” In August 2017, he received a further three years sentence on charges of “insulting the president.”
The ICJ has, on a number of occasions, expressed its serious concerns over the arrest and conviction of Buzurgmehr Yorov and other lawyers in Tajikistan.
On 24 May 2019, the UN Working Group on Arbitrary Detention, a group of independent experts established in 1991 whose members are appointed by the UN Human Rights Council, published an Opinion finding a number of violations of human rights of Yorov protected under the International Covenant on Civil and Political Rights and recommended as a remedy his immediate release, payment of compensation or other reparation and conducting an investigation into the violation of Yorov’s rights.
The UN Basic Principles on the Role of Lawyers require that the Governments ensure that lawyers “are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference ”. Under these Principles “where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.” The right to “offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms” is guaranteed by the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Article 9.3(c)).
Jun 12, 2019 | News
The ICJ today expressed concern at recent developments in Moldova, which are effectively paralyzing governance in the country.
During the past week, the Constitutional Court has ordered the dissolution of Parliament, suspended its functioning and invalidated its subsequent acts, including the appointment of a government and speaker, and has triggered the removal of the President.
The ICJ is particularly concerned at the excessively swift procedure through which the Constitutional Court reached its decisions to dissolve Parliament, remove a sitting President of the Republic and replace him with the Prime Minister. The ICJ calls attention to the unhelpful timing of the Constitutional Court ruling that was issued on the very day it identified as the end of the Parliamentary term, depriving Parliament of the clarity needed to exercise its powers.
These developments occur against the background of the manifest deficiencies in the institutional independence of the Moldova judiciary which were documented in a recent ICJ report.
In the report issued in March 2019, the ICJ highlighted the problematic appointment in 2018 of three judges of the Constitutional Court in circumstances that did not ensure a sufficient level of transparency, during an electoral campaign and without an open competition process. The report noted that the three appointed judges have previously been Prosecutor General, director of the intelligence service and chair of the legal committee of Parliament, part of the then ruling political majority.
The ICJ welcomes the announcement by the Secretary General of the Council of Europe that the Venice Commission has been asked to issue an urgent opinion on the constitutional crisis.
“The rule of law is the common ground on which constitutional conflicts must be solved”, said Massimo Frigo, Senior Legal Adviser of the Europe Programme of the ICJ. “We call on all institutions and parties in Moldova to seek a solution that squarely complies with the rule of law and the international law and standards to which Moldova has subscribed. In this regard, we urge all parties concerned to wait for the opinion by the Council of Europe Venice Commission in this matter and to reconsider the situation in light of its findings.”
Background
The Constitutional Court, in decisions issued on 7, 8 and 9 June 2019, held that Parliament should be dissolved for having been unable to establish a government within three months of the end of the previous Government’s term of office.
The decisions triggered the removal from office of the President of the Republic, Igor Dodon, for having refused to dissolve Parliament. This led to the interim appointment of Pavel Filip, as acting President of the Republic.
The Court also declared unconstitutional and void any act issued by Parliament after 7 June.
Neither Parliament nor President Dodon have accepted the decisions of the Constitutional Court on their removal or on the validity of their acts, nor do they consider as legitimate the appointment of Pavel Filip as acting President.
Parliamentary factions constituting the current majority in Parliament had reached a deal to form a coalition government and appointed a speaker and Prime Minister.
According to the Constitutional Court’s interpretation of article 85 of the Constitution, these agreements failed to respect the three-month deadline.
Others have put forward different interpretations of when the deadline of the three months period to appoint a Government would elapse, and of the obligation of the President of the Republic to dissolve Parliament.
Article 85 of the Constitution states:
(1) In the event of impossibility to form the Government or in case of blocking up the procedure of adopting the laws for a period of three months, the President of the Republic of Moldova, following consultations with parliamentary fractions, may dissolve the Parliament.
(2) The Parliament may be dissolved, if it has not accepted the vote of confidence for setting up of the new Government within 45 days following the first request and only upon declining at least two requests of investiture.
(3) The Parliament may be dissolved only once in the course of one year.
(4) The Parliament may not be dissolved within the last six months of the term of office of the President of the Republic of Moldova nor during a state of emergency, martial law or war.
Contact:
Massimo Frigo, ICJ Senior Legal Adviser: t: +41 22 979 3805; e: massimo.frigo(a)icj.org
Jun 8, 2019 | Multimedia items, News, Publications, Reports, Thematic reports, Video clips
The Indian Government must give effect to recent rulings of the Supreme Court and end discrimination and other human rights violations and abuses based on real or perceived sexual orientation, gender identity and expression, the ICJ said today at the Delhi launch of its new report on the conditions of LGBTQ people in India.
The ICJ’s 152-page report Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India details human rights violations suffered by LGBTQ persons in their family homes, workplaces, and public spaces including streets, public toilets, public transport and shopping centres.
Following on the Supreme Court’s decisions in NALSA and Navtej, which strongly affirmed the human rights of LGBTQ persons, the report identifies legal and policy challenges, as well as structural barriers that prevent them from enjoying the full range of human rights.
”Despite the promise of recent jurisprudence, the Indian government has not consistently met its constitutional and international obligations to guarantee the rights of LGBTQ persons,” said Frederick Rawski, ICJ Asia Director.
“The ICJ encourages the Indian State to build on existing efforts to protect these rights to ensure full compliance with the right to live with dignity in terms of the Indian Constitution and international human rights law,” he added.
The Living with Dignity report identifies a wide range of violations and abuses of rights in the context of housing, work and public spaces.
Human rights violations associated with housing included discrimination in accessing rental accommodation, harassment and violence by landlords and by families, and arbitrary evictions.
The report sets out instances of discrimination in the workplace, at all stages of employment, and throughout the formal and informal sectors.
It also documents obstacles faced by LGBTQ persons seeking access to public spaces, including discriminatory policing, gendered toilets and transport, harassment and abuse by State officials, and discriminatory targeting through the application of public nuisance, sex work and anti-beggary laws.
The report offers a set of recommendations meant to make existing law and policy more protective of LGBTQ persons’ rights and calls for the amendment or repeal of certain existing laws.
“There is no single law or policy solution to ending long-standing and systemic discrimination. But legal and policy reforms are essential to addressing the abuses suffered by LGBTQ persons and these must include the effective, inclusive and meaningful participation of a diverse range of LGBTQ individuals and advocacy groups,” Rawski said.
The report also recommends the convening of a nationwide consultation geared towards the enactment of a comprehensive anti-discrimination law prohibiting discrimination on the grounds of sexual orientation and gender identity as is required by international human rights law.
In a preface to the report, ICJ Commissioner and former Chief Justice of the Delhi High Court, Justice Ajit Prakash Shah, indicates his hope that the report will “be used as a tool by lawyers, human rights defenders and policymakers” and “contribute to enhancing public discourse on LGBTQ rights, as well as broader issues of discrimination and the rule of law in India”.
Download
Report: Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India (English)
Executive Summary (English)
Infographics
SOGIE-based Human Rights violations in Housing
SOGIE-based Human Rights violations at Work
Barriers experiences by LGBTQ people in accessing Public Spaces
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Adviser for India, e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Frederick Rawski, ICJ Asia Pacific Region Director, e: frederick.rawski(a)icj.org, t: +66 644781121
Read also
Briefing Paper on Navtej Singh Johar et al. v. Union of India and Others, July 2018.
Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity, February 2017.
ICJ Briefing Paper on Implementation of NALSA Judgment, 2016.
Watch the video
