Feb 17, 2014 | News
The ICJ today expressed concern at a ruling of the Italian Constitutional Court which denies full accountability of Italian officials in the case of the 2003 unlawful rendition, enforced disappearance and torture of Osama Mustafa Hassan Nasr, also known as Abu Omar.
In a ruling making no mention of the international human rights law obligations of Italy, the Court agreed with the contention of the Italian Government that it may protect from disclosure and use in court what it considers to be “secrets of state” even if to do so would prevent the revelation of the truth about serious crimes and human rights violations and the holding of those responsible to account.
The Court ruled that, under the Italian Constitution and the law on secrets of state, it is the sole prerogative of the President of the Council of Ministers, exercising “a wide discretionary power”, to establish the width of application of the secret of state doctrine.
The Court affirmed that such decisions cannot be questioned by ordinary courts.
A number of Italian and United States intelligence agents, including the former Director of the Italian Military Secret Service, Nicolò Pollari, had been found guilty of criminal offences in connection with the rendition.
The Constitutional Court’s ruling is likely to effectively annul the convictions of the top Italian secret agents involved in the rendition.
“This ruling constitutes a serious blow to the fight against impunity for some of the most serious crimes under international law”, said Massimo Frigo, Legal Adviser for the Europe Programme. “It disregards fundamental pillars of international human rights law, including the right to truth and the duty to investigate, prosecute and ensure accountability for gross violations of human rights”.
“The doctrine of “secret of state” must never be used as a means to cover up responsibility for crimes under international law or gross violations of human rights,” Frigo added. “The United States, which is primarily responsible, deplorably has abdicated its responsibility to meaningfully investigate and hold officials to account for gross human rights violations in its rendition and secret detention programme. Italy, by contrast, had been the only country in which the courts had imposed convictions for the US-led renditions. After this judgment, there is a real risk that the Italian complicity in this crime will never be fully ascertained and accounted for.”
The ICJ is concerned at reports that time limits for the conclusion of criminal proceedings in this case could expire in two months, despite the fact that, under international standards, limitation periods should not be imposed in respect of serious of crimes such as torture and enforced disappearance.
The expiry may foreclose any further investigation or criminal trial on Italian involvement in this rendition, which should occur irrespective the obstacles caused by the secret of state doctrine.
The ICJ is particularly concerned that successive Italian governments since 2007 have either proposed or refused to withdraw government applications before the Constitutional Court affirming that the executive prerogative on secret of state takes precedence over the fight against impunity.
The ICJ considers that the law and practice regarding the “secret of state” must be reformed to be into compliance with Italy’s duty to investigate crimes under international law and gross human rights violations.
While States may protected a limited amount of information when strictly necessary for legitimate national security purposes, they may not do so with respect to information concerning gross violations of human rights.
Background
Hassan Mustafa Osama Nasr, also known as Abu Omar, was been kidnapped in 2003 in the streets of Milan by CIA operatives and subject to rendition to Egypt where he had been subject to enforced disappearance, arbitrary detention and torture.
The case of Abu Omar was one of at least 136 known cases in the rendition and secret detention carried out since 2001 by the United States, with the participation of some 54 other States, which typically involved multiple human rights violations, including torture and ill-treatment, enforced disappearance, and arbitrary detention.
The Constitutional Court judgment effectively reversed the ruling of the Court of Cassation that ordered the reopening of the trial against the former Director of the Italian Military Secret Service, Nicolò Pollari, his deputy, Marci Mancini, and other Italian military secret services operatives for their alleged complicity in the operation.
The Court of Cassation had held that the doctrine of “secret of state”, which barred their conviction, would not apply to them, because the Italian secret services have no authority to conduct such illegal operations and they had therefore effectively acted in private capacity.
Following that judgment, the Court of Appeal convicted, among others, for complicity in the kidnapping Nicolò Pollari to ten years of imprisonment and Marco Mancini to nine years.
The Court of Cassation upheld in absentia the convictions and sentences of 23 US agents involved for the offence of kidnapping.
On 5 April 2013, the President of the Italian Republic, Giorgio Napolitano, granted a pardon for US Colonel Joseph L. Romano III, who had been convicted by Italian courts of the offence of complicity with the US in kidnapping for his role in the rendition of the Milan cleric Abu Omar in 2003.
Contact:
Massimo Frigo, Legal Adviser, ICJ Europe Programme, massimo.frigo(a)icj.org
Feb 13, 2014 | News
The ICJ continued its observation of the trial of Malaysian opposition leader Anwar Ibrahim on sodomy charges under the colonial-era Section 377B of the Penal Code, which criminalizes consensual same-sex sexual relations.
ICJ Commissioner Justice Elizabeth Evatt AC, the first woman judge to be appointed to an Australian Federal Court and a former member of the United Nations Human Rights Committee, observed a hearing on the appeal of Anwar Ibrahim at the Court of Appeal in Putrajaya yesterday.
“The ICJ will continue to monitor this case and evaluate the fairness of the proceedings in light of relevant international standards,” said Emerlynne Gil, ICJ international legal advisor for Southeast Asia. “The ICJ will also assess whether the prosecution under Section 377 is being used in this case to suppress political dissent, contrary to the right to freedom of expression.”
The hearing is an appeal against the High Court’s decision on 9 January 2012, which acquitted Anwar Ibrahim of sodomy.
“The ICJ has previously condemned Malaysia’s continuing use of colonial-era criminal charges of ‘sodomy’ to cover even consensual sexual relations between adults,” Gil said. “The ICJ believes that Article 377B of the Malaysian Penal Code is inconsistent with respect for the right to privacy under international standards.”
The Court of Appeal heard and eventually dismissed an interlocutory application filed by the lawyers of Anwar Ibrahim seeking to recall for testimony Jude Blacious s/o Pereira, the investigating officer and key witness in the sodomy case.
Pereira was recently found unfit to be a practicing lawyer in another case in a High Court decision of 10 January 2014.
In that decision, the High Court relied on a 2009 Human Rights Commission of Malaysia’s (SUHAKAM) report, which determined Pereira to be an unreliable witness in a public inquiry established to investigate the arrest and detention of 5 legal aid lawyers.
The Court of Appeal dismissed the application on the grounds that Anwar Ibrahim had failed to satisfy the court that additional evidence in the appellate stage was necessary in dispensing justice and that it fell in the category of “most exceptional” cases, particularly as the SUHAKAM report had already been available since 2009.
The Court of Appeal postponed the hearing on the appeal itself to allow Anwar Ibrahim’s lawyers to file a notice of appeal with the Federal Court on the dismissal of the interlocutory order.
Anwar Ibrahim’s counsel immediately filed a notice of appeal to the Federal Court on the dismissed interlocutory application.
The case management for the sodomy appeal has been fixed on 28 February 2014.
The appeal proper was initially scheduled on 17 and 18 September 2013 but has faced continuous delays due to a series of interlocutory matters.
Feb 11, 2014 | News
The seminar was on “The Role of Judicial Independence and Integrity in Improving the Effectiveness of the Rule of Law”, with the participation of the ICJ.
The event, hosted by the Office of the Supreme Court of the Union (OSCU) in collaboration with the United Nations Development Programme (UNDP) and the ICJ, took place in Nay Pyi Taw on February 10th and 11th 2014.
It was attended by more than 40 judges and senior court administrators from all states and regions in Myanmar.
Discussions at the seminar focused on the ways in which Myanmar’s judicial system can continue to develop its functional independence and deliver justice for all.
In opening the seminar, the Honourable Chief Justice of the Union, U Htun Htun Oo, remarked that judicial independence and integrity are essential to building a reliable judicial system in which the people of Myanmar can trust, and which can uphold the rule of law.
During the seminar, Justice Kalyan Shrestha of Nepal, and ICJ Vice President Justice Michèle Rivet of Canada shared their experiences of the challenges of preserving judicial independence as a key pillar of a democratic society.
In her opening remarks, Ms. Renata Lok-Dessallien, UN Resident Coordinator, also noted that in addition to the importance of a fair legal framework, a trained judiciary and well-functioning court system, “the other half of the equation is from the bottom up: it is people’s perceptions of the professionalism, integrity and fairness of the system.”
Sam Zarifi, ICJ’s regional director for Asia and the Pacific added that “access to an independent and impartial tribunal is a human right”.
Both UNDP and ICJ expressed their willingness to continue working with Myanmar’s judiciary on the issues of judicial independence, and justice for all for the long-term.
Photo: ICJ Vice President Justice Michèle Rivet, Justice Kalyan Shrestha and Chief Justice U Htun Htun Oo
Feb 11, 2014 | News
The ICJ condemned the Cambodian Court of Appeal’s decision to deny bail to 21 workers and activists who were arrested in connection with protests by garment factory workers.
They have been held in detention since their arrests on 2 and 3 January 2014.
The court upheld an earlier decision of the Phnom Penh Municipal Court.
Garment factory workers were protesting to seek a higher minimum wage.
“International law is clear that pre-trial detention may only be ordered in exceptional circumstances and avoided if suitable alternatives are possible,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific. “The ongoing detention of these protesters, and the failure of the government to provide accountability for the death of five unarmed protesters on 3 January, demonstrates the government’s efforts to stop protesters exercising their rights to assemble freely and express their opinions.”
“Not only is this a very disappointing outcome for the 21 detainees and their families, but it also sets a worrying precedent in what is still a developing area of the law in Cambodia,” he added.
Article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a party, guarantees the right to liberty.
It states, “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.” Such guarantees include bail.
Articles 19 and 21 of the ICCPR guarantee the rights to freedom of opinion and assembly.
Contact:
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002, e-mail: sam.zarifi(a)icj.org
Craig Knowles, ICJ Media & Communications, (Bangkok), t:+66 819077653, e-mail: craig.knowles(a)icj.org
Feb 11, 2014 | News
The personal decision of Khil Raj Regmi to resign and not return to his post as Chief Justice safeguards the independence of the judiciary and maintains the rule of law in Nepal, the ICJ says.
Caretaker Council of Minister Chairman Khil Raj Regmi announced this afternoon that he would not return to his former post of Chief Justice after acting as the Chairman of the Council of Ministers since March 2013.
“Khil Raj Regmi’s decision is one that will help to preserve the Supreme Court’s hard-earned reputation as an independent institution,” said Ben Schonveld, ICJ’s South Asia Regional Director.
International standards, including the International Covenant on Civil and Political Rights (ICCPR) and the UN Basic Principles on the Independence of the Judiciary, clarify that all governmental officials and institutions as well as judges must respect and preserve the independence and integrity of the judiciary.
The 2007 Interim Constitution of Nepal enshrines guarantees for the independence of the judiciary and contains safeguards for the separation of executive, legislative and judicial powers.
Article 106 of the 2007 Interim Constitution explicitly bans sitting and retired judges from assuming any appointment in government service apart from a role in the national human rights commission.
To enable former Chief Justice Regmi to act as caretaker Prime Minister, the President amended several provisions of the Interim Constitution, including Article 106.
These amendments were made in contravention of the Constitution, which required a two-thirds majority of a sitting Parliament.
“The return of Khil Raj Regmi to the post of Chief Justice would have significantly undermined the appearance of independence of the Supreme Court and the judiciary as a whole,” Schonveld added.
The Bangalore Principles of Judicial Conduct clarify that judges must not only be free from any inappropriate connections with the executive and legislative branches of government but also must appear to a reasonable observer to be free therefrom.
The ICJ applauds the personal decision of Chairman Khil Raj Regmi to resign as Chief Justice.
The ICJ calls on the new Government under the leadership of the Nepali Congress Chairperson, Sushil Koirala as well as the other elected political parties of the Constituent Assembly to honour the commitments made during the election and work to end impunity for gross violations of human rights.
Contact:
Ben Schonveld, ICJ South Asia Director, (Kathmandu); t: 977 9804596661; email: ben.schonveld(a)icj.org
Govinda Bandi Sharma, ICJ Senior Legal Adviser, Nepal (Kathmandu), t: +977 9851061167; email: govinda.sharma(a)icj.org
Sheila Varadan, ICJ Legal Adviser, South Asia Programme (Bangkok), t: +66 857200723; email: sheila.varadan(a)icj.org
Feb 7, 2014 | News
La actual Fiscal General y Jefa del Ministerio Público, Claudia Paz y Paz, fue nombrada el 10 de diciembre de 2010 para dirigir la institución por un período de 4 años, que legalmente vence el 9 de diciembre de 2014.
Su nombramiento ocurrió, hasta dicha fecha, como resultado de la repetición del proceso de selección debido a acusaciones que cuestionaban la honorabilidad e idoneidad de la persona previamente electa.
La actual Fiscal General y Jefa del Ministerio Público se ha constituido por sus resultados de gestión ante el Ministerio Público, como una figura democrática e independiente que ha realizado una importante labor en la protección y defensa de derechos humanos y en el desmantelamiento de estructuras criminales importantes. Esta figura contraviene los intereses de oscuros grupos que buscan interrumpir la continuidad del trabajo de la Fiscal.
Por ello, un abogado, ha puesto en marcha acciones jurídicas promoviendo que la Corte de Constitucionalidad acceda a reducir el período de gestión de la actual Fiscal.
El 05 de febrero del presente año, la Corte de Constitucionalidad emitió una resolución en que concede un amparo provisional y ordena al Congreso de la República convocar a la conformación de un nuevo proceso de elección para cambio de Fiscal General.
De confirmarse este amparo provisional por parte de la Corte de Constitucionalidad, se tendría como resultado que la fiscal sea removida de su cargo y se estaría violentando el Estado de Derecho.
Guatemala-Commuicado en defensa del estado de derecho-news-web story-2014-spa (full text in pdf)
Photo credit: ICTJ
