Jul 11, 2018 | News
Today, the ICJ expressed concern at the adoption of a new law on lawyers in Kazakhstan.
The Law ‘On the Professional Activities of Advocates and Legal Assistance’, signed into law on 10 July 2018, contradicts international law and standards on the independence of the legal profession, by enabling the executive to influence or to have control over who is allowed to practice law and substantial influence on disciplinary proceedings against lawyers.
The law will have negative repercussions for protection of human rights and the rule of law in the Republic of Kazakhstan.
“Some of the key provisions of the adopted law undermine the independence of the legal profession, a cornerstone of the rule of law,” Temur Shakirov, ICJ Europe Program Senior Legal Adviser said today.
“Not only does the law weaken the legal profession, it sends an unfortunate message to the public that, as a result, their human rights, including their right to a fair trial, may be harder to uphold within the legal system,” he added.
More specifically, the ICJ is concerned that, under the new law, the role of the independent Bar Association in the composition of the disciplinary commissions is reduced.
Besides lawyers, the Disciplinary Commission will now include ‘representatives of the public’ designated by the Ministry of Justice. While the law does not specify how these members of the Disciplinary Commission would be selected, the selection is to be made by the Ministry of Justice.
The same procedure is not excluded to select members who are retired judges, which the Law requires also be part of disciplinary commissions.
While many of the specific procedures are unclear, it is apparent that these provisions would give the Ministry extensive influence over the Disciplinary Commission, especially as the law does not explicitly require these members perform their duties independently from the instructions of the Ministry of Justice.
The influence of the executive over the disciplinary proceedings of the Bar Association is contrary to the principles of independence of lawyers.
The UN Basic Principles on the Role of Lawyers provide that disciplinary proceedings against lawyers are to be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.
Furthermore, the law continues to give the Ministry of Justice control over admission to the practice of law.
It stipulates that prospective lawyers who have completed their professional training are to be assessed by the Commission for admission to practice established by territorial bodies of the Ministry of Justice.
The commissions consist of seven members, of which only three are members of the Bar Association. The composition of the commissions and the principles of their work are to be approved by the orders of the Minister of Justice of the Republic of Kazakhstan.
The Law therefore preserves the previous procedure on admission to the profession criticized by the ICJ earlier, according to which the attestation of applicants for obtaining the membership to the Bar Association and issuing a license were within the exclusive competence of the Ministry of Justice of the Republic of Kazakhstan.
At the same time, many defense rights listed in the Law are curtailed or compromised by the wording that would allow for enactment of restrictions by secondary legislation, including that the adopted Law would not allow lawyers to freely and without interference collect evidence in defense of their clients or that lawyer’s inquiries can be subject to limitation where they seek to obtain “restricted information”.
The ICJ notes that according to the UN Basic Principles on the Role of Lawyers, States must ensure lawyers have access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time (Principle 21).
Read the full text in English here
Read the full text in Russian here
Jul 10, 2018 | News
The SC is set to reconsider the criminalization of consensual same-sex relationships between adults, in response to a writ petition with significant ramifications for addressing the full range of human rights violations based on sexual orientation or gender identity in India said the ICJ.
The Indian Supreme Court commenced hearing the case, Navtej Singh Johar v. Union of India, which is joined with five connected cases, today, concerning the constitutional validity of the criminalization of consensual same-sex relations between adults under Section 377 of the Indian Penal Code in response to writ petitions filed by several LGBTI individuals.
Section 377 criminalizes “carnal intercourse against the order of nature”. Section 377 is a relic of the British colonial penal code and is replicated in several former British colonies even though it was it was finally repealed in Northern Ireland in 1982, following repeals in Scotland in 1980 and England and Wales in 1967.
“Hopefully, the Indian Supreme Court will follow and build upon the strong precedent set by the Delhi High Court in the Naz Foundation v. Govt. of NCT of Delhi that declared Section 377 and the criminalization of consensual same-sex relationships to be in violation of the Indian Constitution as well as international law in 2009,” said Sam Zarifi, ICJ’s Secretary General.
“There are real grounds for optimism as the Indian Supreme court as recently as August 2017 handed a landmark judgment in Justice K.S. Puttaswamy and Another v. Union of India and Others that declared the right to determine one’s sexual orientation and gender identity as core to the right of privacy,” he added
The ICJ has documented how section 377 has created a climate in which arbitrary arrest, extortion, harassment and blackmail of LGBTI persons in India thrives.
“The Indian judiciary’s decision to read down section 377 in Naz Foundation v. Govt. of NCT of Delhi, which was then overruled by the Supreme Court, has been used by several other jurisdictions, such as Trinidad and Tobago as support for putting an end to criminalization of same-sex relationships. So the outcome of this petition before the Indian Supreme Court is of significance not just to people in India, but to the fight against discrimination around the world,” Zarifi said.
“But even a good decision by the Indian Supreme Court will not end the discrimination against people on the basis of their sexual orientation or gender identity in India. It’s time for the Indian Parliament to repeal section 377 in its entirety and engage in a wide-ranging review to consider which gaps, if any, need to be filled, for example with respect to acts constituting rape or other sexual offences,” he added.
Contact:
Maitreyi Gupta (Delhi), International Legal Adviser for India, t: +91 7756028369 ; e: maitreyi.gupta(a)icj.org
India-Supreme Court and Section377-News-press release-2018-ENG (full story with additional information, in PDF)
Jul 9, 2018 | News
Today the ICJ called on Myanmar’s prosecutorial authorities to immediately end the prosecution of Reuters journalists Wa Lone and Kyaw Soe Oo.
The two have been subject to prosecution solely for doing their job as journalists and for exposing human rights violations in Rakhine State, including unlawful killings in Inn Dinn Village admitted to by the military.
In Yangon this morning a Northern District Court Judge accepted charges filed under the 1923 Official Secrets Act.
This decision permits ongoing prosecution of the journalists and extends their detention.
“The prosecution has failed to provide credible evidence of any wrongdoing throughout six months of hearings. It is therefore hard to imagine a valid legal rationale for allowing ongoing prosecution of the journalists,” said Mr Sean Bain, legal adviser for the ICJ in Yangon.
Section 253(1) of Myanmar’s Code of Criminal Procedure requires a judge to dismiss charges against accused persons if the evidence presented fails to warrant a conviction.
A motion for charges to be dismissed on this basis, submitted by defense lawyers, was effectively rejected by the decision today.
“Today’s decision raises real concerns about the independence and impartiality of the judiciary and prosecution when confronted with politically sensitive cases,” Bain said.
“The case significantly undermines the government’s stated commitments to reforming and building public confidence in judicial process,” he added.
ICJ legal advisers have monitored the case and were present in Court today. The journalists were first detained on 12 December 2017 and had no access to legal representation for almost two weeks.
“The case is also emblematic of the lack of adherence to fair trial rights in Myanmar,” Bain said.
“Their confinement remains unlawful given an initial period of incommunicado detention without access to lawyers, and other flagrant violations of the fair trial rights guaranteed in the Constitution, statues and international law.”
“Authorities should immediately end criminal proceedings against these men who appear to have been lawfully doing their job as investigative journalists,” he added.
The detention and prosecution of anyone, including journalists, based solely on the collection and publication of evidence relevant to serious human rights violations, is inconsistent with international law and standards on freedom of expression and on human rights defenders.
Article 14 of the 1990 UN Guidelines on the Role of Prosecutors states that prosecutors are obliged to discontinue prosecution when the investigation shows the charges to be unfounded.
Myanmar’s new Code of Ethics for Law Officers, launched in 2017, requires prosecutors to protect rights enshrined in the Constitution and to “provide a proper and fair administration of justice.”
The right to legal counsel is a bedrock rule of law principle that is set out in a range of international human rights laws and standards, including in article 11 of the Universal Declaration of Human Rights. Sections 19 and 375 of the Myanmar Constitution guarantee the right of legal defense, as does Myanmar’s Code of Criminal Procedure (section 340), Courts Manual (section 455(1)), the Police Manual (section 1198c) and the Prisons Act (section 40).
Fair trial rights, freedom of expression, and the right to liberty are also recognised by the Universal Declaration of Human Rights.
Also relevant are the UN Declaration on Human Rights Defenders, and the Global Principles on National Security and the Right to Information (The Tshwane Principles).
Contact:
Sean Bain, ICJ legal adviser, e: sean.bain(a)icj.org
Read also:
ICJ (May 2016), Handbook on Habeas Corpus in Myanmar – English and Burmese
ICJ (December 2017), Reuters Journalists in Myanmar: respect their rights, end their incommunicado detention – English and Burmese
Full text in Burmese (PDF): Myanmar-drop-charges-against-Reuters-journalists-News-Press-releases-2018-BUR
Jul 9, 2018 | News
Today, in advance of the second anniversary of the killing of political commentator and human rights defender, Kem Ley, the ICJ reiterates its call for the creation of a independent and impartial Commission of Inquiry to investigate his killing.
The ICJ remains deeply concerned at the apparent lack of progress in investigating the case, as well as the inadequacy of the investigation and prosecution of Oeuth Ang, the only person yet charged or convicted in relation to Kem Ley’s killing.
“The trial of Oeuth Ang left many unanswered questions about the investigation and the killing itself which Cambodia has an duty to resolve as part of the family and public’s right to know the truth,” said Kingsley Abbott, Senior Legal Adviser at the ICJ, who attended the trial.
“The fact that the killing occurred against the backdrop of escalating attacks against human rights defenders and the political opposition and in the context of a history of well-documented apparent extra-judicial killings makes the establishment of an independent and impartial Commission of Inquiry all the more pressing.”
On 7 July 2017, ahead of the one-year anniversary of Kem Ley’s killing, the ICJ and other organizations released a joint letter highlighting crucial concerns about the lack of progress in the investigation of his case, and calling on the Cambodian Government to establish a Commission of Inquiry to carry out an independent, impartial, effective and transparent investigation in line with international law and standards.
These include the International Covenant on Civil and Political Rights and the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016).
Background
At approximately 08:30 on 10 July 2016, Kem Ley, a prominent political commentator and human rights defender, was shot and killed at a petrol station on Monivong Boulevard in Phnom Penh.
Soon afterwards, Cambodian police arrested a suspect approximately two kilometers from the crime scene. The suspect identified himself as “Chuob Samlab”, from Banteay Meanchey province. “Chuob Samlab” means “Meet to Kill” in Khmer.
In a leaked video, “Chuob Samlab” reportedly “confessed” to shooting Kem Ley over a debt the political commentator allegedly owed him – a fact reportedly disputed by Kem Ley’s widow and “Chuob Samlab”’s own wife.
“Chuob Samlab” was later identified as Oeuth Ang from Siam Reap province, according to identity records.
On 23 March 2017, the Phnom Penh Municipal Court found Oeuth Ang guilty of the premeditated murder of Kem Ley on 10 July 2016 and sentenced him to life imprisonment.
The ICJ observed the trial which took place on 1 March 2017, following which it identified eight significant gaps in the investigation which had not been adequately addressed at trial.
Following the verdict, Oeuth Ang’s lawyer told journalists the court had created a new case-file to investigate two men named Pou Lis and Chak who may be relevant to the killing of Kem Ley.
Very little information has been revealed publicly about these possible new case-files.
Oeuth Ang appealed his sentence and, on 4 May 2018, the Court of Appeal reportedly heard the appeal.
There are no reports yet of a judgment being delivered.
Pursuant to international law binding on Cambodia, including the International Covenant on Civil and Political Rights (ICCPR) to which Cambodia is a State Party, Cambodia has a duty to promptly, independently, impartially, and effectively investigate all deaths suspected of being unlawful.
Investigations must seek to identify not only direct perpetrators but also all others who may have been responsible for criminal conduct in connection with the death.
Principle 11 of the UN Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions calls for the establishment of a Commission of Inquiry when ‘the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies.’
Read also
ICJ et al, ‘Cambodia: request to create a commission of inquiry into the killing of Kem Ley’
ICJ, HRW, Amnesty International, ‘Cambodia: Significant Questions Remain After Guilty Verdict in Kem Ley Trial’
ICJ, ‘Cambodia: Kem Ley’s killing demands immediate credible and impartial investigation’
Contact
Kingsley Abbott, ICJ Senior Legal Adviser, e: kingsley.abbott(a)icj.org
Jul 8, 2018 | News
As the government begins a process of consultations around proposed amendments to the transitional justice mechanisms, the ICJ and Human Rights Watch have called on authorities to ensure the amendments comply with international human rights standards.
The government must also take into account concerns of all stakeholders, the organizations said.
The current draft law fails to address the many gaps in Nepali law that make it difficult to prosecute, especially at senior levels, for international crimes such as torture and crimes against humanity.
The Nepal government has ensured an extension of its two transitional justice commissions while also committing to future amendments to comply with international standards and Supreme Court rulings, the groups said.
The government is holding consultations around a proposed Commission on the Investigation of Enforced Disappeared Persons (CEIDP) and the Truth and Reconciliation Commission (TRC) (Amendment) Bill.
“While Nepal has engaged in a transitional justice process over the last few years, with official commissions collecting complaints, holding meetings and generic consultations throughout the country, this is still without any tangible result, and victims say it has left them confused,” said Brad Adams, Asia Director at Human Rights Watch.
“For a successful, internationally accepted process, the authorities in Nepal should focus on providing justice to victims, and not engage in trying to get perpetrators off the hook,” he added.
Human Rights Watch and the ICJ issued the statement after the Nepal government shared a draft bill purportedly to amend flaws in the laws of the CEIDP and TRC Acts.
Ahead of submitting further analysis and recommendations in the consultative process, the organizations said that Nepal authorities should take into account concerns of all stakeholders, including the groups representing victims of serious crimes by all sides during the civil war, other civil society organizations, the National Human Rights Commission (NHRC) and the United Nations Office of the High Commissioner for Human Rights (OHCHR).
Nepal’s new government under Prime Minister Khadga Prasad Oli of the Nepal Communist Party promised that the Nepali law on transitional justice would be brought into conformity with international law and standards as had been directed several times by the Supreme Court.
After years of previous governments failing to comply with the Supreme Court rulings, the new attorney general had announced that reforms to the law were underway, which victims’ groups said gave new hope, and as explicitly requested by the United Nations Human Rights Council (UNHRC) and human rights organizations.
While positive changes are noticeable including in relation to reparations, the proposed law authorizes the two transitional justice commissions to authorize prosecutions without strengthening the commissions themselves, proposes a special court without clear guidelines on impartial investigations, and includes a section permitting non-custodial sentences for the most serious crimes.
These raise concerns that the proposed draft may not meet international standards of justice and accountability.
The two commissions, which experts say require crucial bolstering, have conducted country-wide hearings and gathered nearly 60,000 cases between them.
Victim groups complain that the process has been arbitrary and confusing.
The organizations also noted a number of continuing obstacles to justice, which the bill has not addressed.
These include the continued failure to incorporate specific crimes into Nepali law that are serious crimes under international law, including torture, enforced disappearance, war crimes, and crimes against humanity.
In addition, the bill provides for the wholly inadequate sanction of short-term community service as an alternative punishment for those convicted of serious crimes, which may constitute effective impunity.
Nor does the bill address the question of command and superior responsibility for such crimes, leaving doubt as to whether those at the highest levels of authority will be held accountable for these crimes.
The international organizations were invited to a meeting with the attorney general and other stakeholders on June 21 but did not have a translated draft available ahead of the discussion.
However, during the consultation, the groups stressed the need for meaningful consultations on the bill.
The organizations noted also that universal jurisdiction, which allows for any state to prosecute those believed to have engaged in torture, enforced disappearance, or other serious crimes under international law, will remain an available option for victims to seek justice in cases of serious abuses during the civil war.
“Without a justice process that meets international standards for prosecuting the most serious crimes, such as torture and enforced disappearances, anyone suspected of such crimes in Nepal risks arrest, extradition, and prosecution in the many countries that are committed to prosecuting such crimes,” said Ian Seiderman, ICJ Legal and Policy Director.
“It is very welcome that the Nepal government is finally looking to address longstanding demands of war victims and should use this opportunity to abide by its obligations, draw up security sector reforms, and pave the way to end impunity,” he added.
Full text in English (PDF): Nepal-ICJ-HRW-Transnational-justice-reform-News-Press-releases-2018-ENG
Jul 6, 2018 | Advocacy, News, Non-legal submissions
The ICJ today joined other NGOs in highlighting key outcomes of the 38th ordinary session of the UN Human Rights Council.
The statement, delivered by International Service for Human Rights (ISHR) at the end of the session, read as follows (text in italics was not read aloud due to the limited time available):
“Our organisations welcome the adoption of the resolutions on civil society space, peaceful protest, on violence against women and girls and on discrimination against women and girls and the Council’s rejection of attempts to impede progress on protecting civic space, peaceful protest and the rights to sexual and reproductive health.
On civil society space, the resolution recognizes the essential contribution that civil society makes to international and regional organisations and provides guidance to States and organisations on improving their engagement with civil society. On peaceful protest, it sets out in greater detail how international law and standards protect rights related to protests.
On violence against women and on discrimination against women, we consider that ensuring sexual and reproductive health and rights are vital in efforts to combat violence and discrimination against women, online and offline, as well as to ensure targeted and specific remedies to victims. We appreciate that the work of women human rights defenders towards this is recognised.
We consider the adoption of the resolution on the contribution of the Council to the prevention of human rights violations as an important opportunity to advance substantive consideration on strengthening the Council’s ability to deliver on its prevention mandate.
Following challenging negotiations, we welcome the adoption by consensus of the resolution on human rights and the Internet, reaffirming that the same rights that people have offline must also be protected online, and calling on States to tackle digital divides between and within countries, emphasising the importance of tools for anonymity and encryption for the enjoyment of human rights online, in particular for journalists, and condemning once more all measures that prevent or disrupt access to information online.
We welcome continued Council attention to Eritrea‘s abysmal human rights record. This year’s resolution, while streamlined, extends expert monitoring of, and reporting on, the country and outlines a way forward for both engagement and human rights reform. We urge Eritrea to engage in long-overdue meaningful cooperation.
We welcome the renewal of the mandate of the Special Rapporteur on Belarus under item 4 with an increased vote – as it is still the only independent international mechanism to effectively monitor human rights violations in Belarus – while remaining concerned over a narrative to shift the mandate to item 10 in the absence of any systemic change in Belarus.
We welcome the consensus resolution on the DRC, putting in place continued monitoring and follow up on the expert’s recommendations on the Kasais. However, given violations and abuses throughout several regions in the country, occurring against the backdrop of an ongoing political crisis, delayed elections, and the brutal quashing of dissent, we urge the Council to promptly move towards putting in place a country-wide mechanism that can respond to events on the ground as they emerge.
We welcome the strong resolution on Syria, which condemns violations and abuses by all parties, and appropriately addresses concerns raised by the COI about the use of chemical weapons, sexual and gender-based violence, and the need to address situations of detainees and disappearances. The Council cannot stay silent in the face of continued atrocities as the conflict continues unabated into its seventh year.
We welcome the joint statements delivered this session on Cambodia, the Philippines, and Venezuela. We urge Council members and observers to work towards increased collective action to urgently address the dire human rights situations in these countries.
On the Philippines, we emphasise that the Council should establish an independent international investigation into extrajudicial killings in the ‘war on drugs’ and mandate the OHCHR to report on the human rights situation and on moves toward authoritarianism.
The joint statement on Cambodia represents a glimmer of hope after the Council’s failure to take meaningful action against clear sabotage of democratic space ahead of elections. Close scrutiny of the human rights situation before, during and after the elections is paramount and the Council must take immediate action on current and future human rights violations in this regard.
We welcome the joint statement delivered by Luxembourg calling on the HRC President to provide oral updates on cases of alleged intimidation or reprisal, including actions taken, at the start of the Item 5 general debate of each Council session and also provide States concerned with the opportunity to respond.
Finally, the new Council member to replace the United States of America should demonstrate a principled commitment to human rights, to multilateralism and to addressing country situations of concern by applying objective criteria.
Signatories:
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- The Association for Progressive Communications
- The Center for Reproductive Rights (CRR)
- CIVICUS: World Alliance for Citizen Participation
- DefendDefenders (the East and Horn of Africa Human Rights Defenders Project)
- Human Rights House Foundation (HRHF)
- International Commission of Jurists (ICJ)
- The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA)
- International Service for Human Rights (ISHR)
