Jun 25, 2015 | News
While welcoming the recent momentum towards finalizing the drafting of a new Constitution, the ICJ said that the Constituent Assembly in Nepal must ensure strong and effective protections for all human rights, consistent with its international human rights obligations.
In addition, they also must ensure that the drafting process is fully inclusive and participatory,
After seven years of political impasse, the devastating earthquake of 25 April 2015 provided Nepali political leaders an opportunity to restore public faith in public authority by reinvigorating the constitutional process.
The country’s four major political parties have now apparently reached agreement on some previously contentious issues and developed a fast-tracked process for the adoption of a new democratic Constitution.
“The horrific earthquake and the government’s response to it has led to a renewed sense of urgency about finalizing and adopting a Constitution that will help create a stable, representative government structure in Nepal consonant with rule of law principles”, Sam Zarifi, ICJ’s Asia director. “The country’s political leaders have a unique responsibility, and opportunity, to adopt a strong, progressive and human rights-compliant constitutional text”.
International law and standards require meaningful public consultation through a transparent and inclusive process. However, the lack of transparency in the current fast-tracked process, combined with the accelerated timeframe, risks undermining people’s ability to participate effectively in the development of the Constitution.
“None of Nepal’s previous Constitutions were the result of meaningful consultation and public participation”, Zarifi said. “The current government must take immediate steps to consult and ensure the participation of all stakeholders, including marginalized groups and minorities”.
The new Constitution must serve to implement the full range of human rights guaranteed under international law. Specifically, while drafting the new constitution, the ICJ urges the Government of Nepal to ensure, among other things, that:
- The new constitution guarantees all of Nepal’s international human rights obligations;
- Permissible limitations on human rights and provisions derogating from rights during emergencies in the new Constitution comply with international human rights laws;
- There is no impunity for gross violations of human rights and serious violations of international humanitarian law committed during the armed conflict, and criminal law is applicable to acts committed at the time;
- The right to effective remedies and reparation for all human rights is recognized;
- Economic, social and cultural rights are recognized as justiciable; and
- Judicial independence is reinforced.
Contact
Nikhil Narayan, ICJ Senior Legal Advisor (Kathmandu), t: +977 9851061167; Email: nikhil.narayan(a)icj.org
Jun 25, 2015 | News
The ICJ today welcomed the decisions by the Kyrgyz Supreme Court declaring illegal the recent government searches of the homes and offices of lawyers, and seizures of their legal files.
In three related cases, the Court upheld the findings of the Osh regional court that the searches of the homes of lawyers Valerian Vakhitov and Khusanbay Saliyev and lawyers’ offices at the NGO “Bir-Duyno-Kyrgyzstan” by officers of the State National Security Committee were contrary to Kyrgyz law.
The Supreme Court also dismissed the attempts by the Prosecutor’s Office to initiate disciplinary action against judges of the Osh regional court as a result of their decision in these cases.
The decisions are an important affirmation of the rule of law in the Kyrgyz Republic, and will strengthen the independence of both the judiciary and the legal profession, the ICJ said.
“These decisions of the Supreme Court are crucial for securing the independence and strengthening of the legal profession under the newly established Association of Lawyers and for the ability of judges to issue independent decisions based on law and facts,” said Olga Zimareva, one of two ICJ observers who were present at the hearing.
“It is a demonstration of the judiciary’s willingness and capacity to effectively uphold the rule of law and safeguard the fundamental role of lawyers,” she added.
The International Covenant on Civil and Political Rights, which is binding on the Kyrgyz Republic, protects the right to a fair trial including lawyer-client confidentiality.
Furthermore, Principle 16 of the UN Basic Principles on the Role of Lawyers upholds the duty of States to ensure that lawyers can perform all of their professional functions without intimidation, hindrance, harassment or improper interference.
International standards require that judges should not be subjected to disciplinary action for discharging their judicial function, as was requested by the Prosecutor’s Office in this case.
Principle 2 of the UN Principles on the Independence of the Judiciary makes clear that: “[t]he judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.
Background
On 25 March 2015, Umar Farooq, a United States national and journalist, was arrested by officers of the State National Security Committee (SNSC), who seized a number of items in his possession including the business cards of two lawyers, Valerian Vakhitov and Khusanbay Saliyev.
On 28 March, Umar Farooq was expelled from the Kyrgyz Republic on grounds of collection of information without accreditation.
The investigator sought a search warrant for the premises of the two lawyers on the grounds that they could contain documents “necessary for the investigation”. This was done despite a clear guarantee against such an interference under Article 29 of the Law On Advokatura and Lawyers’ Activity of the Kyrgyz Republic stating that “requisitioning, seizure, examination, inspection, copying documents, collection and use of information related to legal assistance in a particular criminal case are allowed only in the case involving a lawyer as a defendant …”.
Judges K.M. Matisakov and B.T. Satybaldiyev issued warrants to the State National Security Committee to search the NGO premises where the lawyers worked and to search the residence of Valerian Vakhitov and Khusanbay Saliyev, in separate proceedings on 26 and 27 March. Officers of searched the homes of lawyers and the office of the human rights organization Bir-Duyno-Kyrgyzstan” and seized certain case materials of the two lawyers.
In a statement issued on 31 March 2015, the ICJ deplored the unlawful actions against the lawyers and underscored that an independent legal profession is fundamental to ensuring the fair administration of justice and right to a fair trial for all persons who come before the courts.
The issuing of the warrants was successfully challenged by lawyers before the Osh Regional Court which issued its decision on 30 April 2015. Before the Supreme Court, the Prosecutor’s Office sought affirmation of the lawfulness of searchers of lawyer’s homes and work premises as well as recognition of the lawfulness of seizure of case materials, both guarantees clearly protected by national law in Kyrgyz Republic and international law and standards on the role of lawyers and the right to a fair trial.
The Prosecutor also sought disciplinary measures against the judges of the Regional Court who decided in favour of the protection of the professional guarantees of lawyers, ruling that the searches and seizures of documents were illegal.
Two ICJ observers attended the hearings at the Supreme Court: Olga Zimareva, a lawyer practicing in the Russian Federation and Almaz Osmanova, a lawyer in the Kyrgyz Republic and chair of the Central Asian League of Lawyers.
The Supreme Court issued its decisions finding the searches and seizures of documents illegal, on 24 June 2015. The reasons for the decisions have not yet been published.
The ICJ will publish its legal analysis of the proceedings and the judgment of the Supreme Court in due course.
Contact
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
Kyrgyzstan-Supreme Court Vakhitov Saliyev-News-Press release-2015-RUS (full text in PDF, Russian)
Jun 24, 2015 | News
The workshop took place from 22-24 June in Victoria Falls and had a special focus on children’s rights as a particularly vulnerable group.
Its primary objective was to create a pool of jurists and activists with the knowledge and ability to undertake strategic litigation before national or regional courts in the interest of victims of human rights abuse by business enterprises in the Southern/Eastern Africa region.
To this end the meeting brought together legal practitioners and Human Rights Defenders involved in human rights legal accountability of business enterprises.
This workshop gathered together a selected group of human rights advocates from Malawi, Zambia, Botswana, Zimbabwe, Uganda, Kenya and Tanzania working on cases relating to business’ human rights abuse.
In East and Southern African countries mining represents a significant part of the national economies and annual GDP.
Tanzania, Malawi, Zambia, South Africa, Botswana and Mozambique have seen the inflowing investments grow in recent years, but it is not clear that this trend has meant improvements in the realization of human rights, especially economic and social rights.
Child labour is endemic, and its occurrence in tobacco plantations subject children to additional hazards to their health and wellbeing.
Mining and oil exploration creates problems to local communities who are not properly consulted or benefit from the activity and usually bear the brunt of environmental degradation and pollution associated with those extractive industries.
Business enterprises are in many instances complicit with State’s violations of human rights.
The meeting also sought to provide legal and other tools to community representatives and litigators who want to start strategic litigation in the public interest.
This flows from the realisation that effective remedy and reparation for victims of business human rights abuses, especially in a transnational context, remains elusive as ever and confronts a series of legal and procedural obstacles.
Access to effective remedy and justice is a priority objective in the context of work relating to the human rights responsibilities of business enterprises.
Jun 21, 2015 | News
Today, one year on from the arrest and detention of human rights lawyer Yara Sallam and 22 peaceful demonstrators, the ICJ calls for their immediate and unconditional release.
On 21 June 2014, Yara Sallam, together with 22 others, was arrested and detained in the context of a peaceful demonstration in Heliopolis, Cairo.
“The Egyptian authorities must end their campaign to silence human rights defenders and all those suspected of opposing the military and the government through politically motivated prosecutions and trials,” said Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
To this end, they must immediately and unconditionally release Yara Sallam and the 22 other detainees,” he added.
The demonstrators were calling for the revocation of Law No. 107 of 2013, on public meetings, processions and protests, and the release of all those detained under it.
They were forcibly dispersed by security forces and men in civilian clothes.
The ICJ has previously noted that this law is contrary to Egypt’s obligations under international law.
It imposes overly restrictive limitations on the exercise of the right to freedom of assembly and it grants sweeping powers to security forces to disperse non-violent protests, including authorizing the use of lethal force when it is not strictly necessary to protect lives, the Geneva-based organization says.
On 26 October 2014, the 23 accused were convicted by the Heliopolis Misdemeanour court and sentenced to three years in prison and three years of police monitoring on charges of, among other things, “participating in a procession of more than five people that put public safety in danger with the aim of committing the crimes of assault on people and property and influencing public authorities in their duties by using force and violence.”
Two months later, the Court of Appeal upheld the convictions, while reducing the sentence to two years imprisonment and two years of police monitoring. A challenge before the Court of Cassation is pending.
The trial of the 23 defendants violated their rights to a fair and public hearing under international law, including the International Covenant on Civil and Political Rights, a key human rights treaty ratified by Egypt in 1982.
Their lawyers were prevented from cross-examining witnesses. Members of the public, including family members, were prohibited from entering the courtroom, without any valid reason.
Further, based on its review of the case file and court judgments, the ICJ is also concerned that both courts convicted the accused in the absence of any substantial or credible evidence of the guilt of any of the 23 defendants, and without seeking to establish the personal criminal responsibility of each individual accused.
Contact:
Alice Goodenough, Legal Adviser of the ICJ Middle East and North Africa Programme, t: +44 7815 570 834 ; e: alice.goodenough(a)icj.org
Nader Diab, Associate Legal Adviser of the ICJ Middle East and North Africa Programme, t: +41 78 89 41 877 ; e: nader.diab(a)icj.org
Egypt-Release Yara-News-Press release-2015-Arabic (full text in PDF, Arabic)
Jun 20, 2015 | News
La CIJ pide que el Ministerio Público lleve a cabo una investigación rápida y eficaz en el caso del asesinato de la defensora de los Derechos Humanos de las personas lesbianas, gays, bisexuales, trans e intersex (LGBTI).
La CIJ expresa su profunda preocupación por los ataques y discriminación que sufren defensores y defensoras de los derechos humanos de la comunidad LGBTI en El Salvador.
Es necesario, para prevenir la impunidad, que las autoridades investiguen los más de 500 asesinatos que, según las organizaciones que defienden los derechos humanos de la comunidad LGBTI, han ocurrido desde el año 1996.
Especial conmoción ha causado el asesinato de Francela Méndez, mujer trans y activista defensora de los derechos humanos de la comunidad transgénero en El Salvador, quien formaba parte de la red salvadoreña de Defensoras de Derechos Humanos. Francela fue asesinada el pasado 30 de mayo cuando se encontraba en casa de una amiga, quien también murió en el ataque.
Ante esta situación, la CIJ exige que el Ministerio Público lleve a cabo una investigación pronta y eficaz, que permita identificar a los culpables.
El asesinato de Francela Méndez no debería quedar en la impunidad; es necesario que se identifique a los culpables, para evitar que hechos similares se sigan cometiendo en el futuro.
La CIJ insta al Sector Justicia a investigar de oficio estos crímenes, y a procesar y sancionar a quienes resulten responsables.
La CIJ considera que El Salvador debe adoptar un enfoque diferenciado para garantizar los derechos a la vida e integridad de la comunidad LGBTI y de defensores y defensoras de los derechos humanos de las personas LGBTI.
En tal sentido, urge implementar una campaña pública en medios de comunicación masiva, a favor del respeto a sus derechos.
Ramón Cadena, Director del programa de la CIJ para Centroamérica expresó: “Pedimos al Fiscal General de la República, que lleve a cabo una investigación objetiva para esclarecer el caso de Francela Méndez. Además, el Organismo Legislativo del Estado de El Salvador debería aprobar una Ley de Identidad de Género para poder hacer efectivos los derechos de la comunidad LGBTI, así como abstenerse de aprobar leyes o reformas constitucionales que vayan en detrimento de sus derechos. ”
Jun 19, 2015 | News
The ICJ today called on the Moroccan authorities to amend the draft laws on the High Judicial Council, the Conseil supérieur du pouvoir judiciaire (CSPJ), and on the Statute for Judges, to ensure their full compliance with international law and standards on judicial independence.
The ICJ called on the authorities to ensure that: the CSPJ is institutionally and organizationally independent; is exclusively competent to manage the career of judges, including the selection of trainee judges; is involved in determining the budget for the judiciary; and is empowered to administer the allocation of judicial resources.
This statement comes following the conclusion of a high-level mission to Morocco from 12 to 18 June 2015 to engage with members of the executive, legislative and judicial branches, as well as representatives of civil society, on the judicial reforms initiated by the Moroccan authorities.
“The Draft Law on the CSPJ should enhance and expand the guarantees of judicial independence provided for by the 2011 Constitution, including by ensuring that the General Inspection Service (GIS) is under the authority of the CSPJ, that the organic law on the CSPJ sets out the GIS composition, competencies, and areas of intervention, and that the CSPJ oversees all issues pertaining to judicial administration,” said Philippe Texier, ICJ Commissioner and a former judge of the French Cassation Court (photo).
During this mission, the ICJ submitted to the authorities two memos analyzing the draft laws in light of international law and standards and formulating recommendations for amendments and reform.
In particular, the ICJ called for the majority of the members of the CSPJ to be judges who are chosen by their peers, for the selection and appointment of the President and the General Prosecutor of the Cassation Court to be based on objective criteria and made through transparent procedures, and for the grounds and procedure for dismissal of members of the CSPJ to be prescribed by the Law.
The ICJ is also deeply concerned that the draft law on the Statute for Judges does not contain any provisions on the criteria and procedure for selecting trainee judges.
Under the current framework, the process of selecting trainee judges is under the effective control of the Ministry of Justice.
Furthermore, while the Draft Laws entrusts the CSPJ to draft a Code of Judicial Conduct, they do not specify that, once adopted, the Code should be the basis on which judges will be held to account professionally, the Geneva-based organization says.
“The Draft Law should be amended to set out fair and transparent procedures for selecting trainee judges, to ensure that the CSPJ is fully competent to oversee the entire selection process, and to provide for the code of ethics and judicial conduct to be established in the law as the basis on which judges will be held to account professionally, including by clearly and precisely defining disciplinary offences,” said Said Benarbia, ICJ Director of the Middle East and North Africa Programme.
Contact:
Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme, t: +96 170 888 961, e: theo.boutruche(a)icj.org
Additional information:
The ICJ delegation was led by Mr. Philippe Texier, former judge of the French Cassation Court and ICJ Commissioner.
The delegation met with Mr. Driss Dahak, Secretary General of the Government; Mr. Abdelilah Lahkim Bennani, Secretary General of the Ministry of Justice; Mr. Mustapha Farès, First President of the Cassation Court; Mr. Mohamed Meddah, Prosecutor General of the Cassation Court; Mr. Mohamed Cheikh Biadillah, President of the Chamber of Counsellors; Mr. Omar Adkhil, President of the Commission of Justice, Legislation and Human Rights of the Chamber of Counsellors; Mr. Mohamed Zerdali, President of the Commission of Justice, Legislation and Human Rights of the Chamber of Deputies; Mr. Abdellatif Chentof, President of the Judges Club; Mr. Mohamed Khadraoui, vice-President of the Amicale Hassania; and Mr. Mohamed Akdim, President of the Bar Associations of Morocco (ABAM).
Morocco-Draft Law CSPJ-News-press releases-2015-ARA (full text of statement, in PDF, Arabic)
Morocco-Memo on the CSPJ-Advocacy-Briefing paper-2015-ENG (full text of memo 1 in PDF)
Morocco-Memo on the CSPJ-Advocacy-Briefing paper-2015-ARA (full text of memo 1 in PDF, Arabic)
Morocco-Memo on Statute for Judges-Advocacy-Briefing paper-2015-ENG (full text of memo 2 in PDF)
Morocco-Memo on Statute for Judges-Advocacy-Briefing paper-2015-ARA (full text of memo 2 in PDF, Arabic)
