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 18, 2015 | News
Today, the ICJ expressed concern at the attempt to initiate criminal proceedings against the President of the Constitutional Court of Ukraine, following interrogations of judges of the Constitutional Court and seizures of documents from the Court earlier this year.
On 16 June, the Chair of the Security Council of Ukraine, Valentin Nalivaychenko, is reported to have filed evidence alleging criminal offences by the President of the Constitutional Court of Ukraine, Jury Baulin.
The documents allege that he abused his office in violation of Article 364(2) of the Criminal Code of Ukraine, leading to the usurpation of power by the former President, Victor Yanukovich.
The allegations relate to a decision of the Constitutional Court of 30 September 2010, No 20-rp/2010, which overturned the adoption of the Constitution of 2004.
The initiation of the criminal proceedings is therefore based entirely on a ruling of the Constitutional Court on a question of constitutional law.
“It is inherent in the judicial function that courts issue rulings concerning matters on which public opinion may be divided. Prosecution of judges in relation to such decisions undermines judicial independence and erodes the rule of law,” said Wilder Tayler, ICJ Secretary General. “In all times but particularly in times of transition, such as at present in Ukraine, it is crucial that the executive refrain from any interference with the independence of the judiciary”.
The ICJ stressed that such attempts to initiate criminal proceedings against the President of the Constitutional Court are contrary to international law and standards on the independence of the judiciary, including the UN Basic Principles on the Independence of the Judiciary.
“Changes to the law or Constitution, must be sought and brought about through proper constitutional processes in the legislature and courts, not through prosecutions of judges. Criminal investigations and prosecutions against Constitutional Court judges must be discontinued and the government must ensure that the Court can operate without threats or interference,” Tayler added.
Following the change of government in early 2014, the ICJ expressed concern at the dismissals of judges of the Constitutional Court by the Verkhovna Rada (the Ukrainian Parliament) and called on the authorities to ensure the security of tenure of judges and non-interference with judicial independence.
Earlier this year, the Security Service of Ukraine interrogated sitting judges of the Constitutional Court in regard to the same case.
According to the State Security Service, at least 10 judges of the Constitutional Court have been interrogated. Moreover, the Security Service of Ukraine seized documents from the Constitutional Court in May 2015.
These investigations and prosecutions of Constitutional Court judges are taking place at a time when the Court is considering a number of highly significant cases, including the constitutionality of the Law “On cleansing of power”, the Law “On condemnation of the communist and national-socialist (nazi) regimes in Ukraine and prohibition of propaganda of their symbols” and the Law on an “All-Ukrainian referendum”.
The ICJ recalls that Article 1 of the UN Basic Principles on the Independence of the Judiciary clarifies that all governmental and other institutions must respect and observe the independence of the judiciary.
The principles further stipulate that [t]he judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law without restrictions or improper influences, inducements, pressures threats or interferences, direct or indirect, from any quarter or for any reason” (Article 2).
Recommendation No. R(94) 12 of the Committee of Ministers to Members States on the Independence, Efficiency and Role of Judges elaborates on this principle, stipulating that “judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary”.
Contact:
Róisín Pillay, Director, Europe Programme, e: roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, e: temur.shakirov(a)icj.org
External link: Official information about the criminal procedure
Jun 16, 2015 | News
On 17 June, the ICJ will observe proceedings before the Supreme Court of the Kyrgyz Republic concerning searches of the workplace and homes of lawyers Valerian Vakhitov and Khusanbay Salieyv by law enforcement agents.
The case concerns confidentiality of lawyer-client communications and seizure of lawyers’ files, in light of the prohibition of arbitrary interference with privacy, correspondence, and home.
The Supreme Court of the Kyrgyz Republic is to consider the challenge of the Prosecutor’s Office to the decision of the Regional Osh Court of 30 April 2015.
The prosecutor also seeks 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.
The ICJ trial observation mission includes 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.
Following the conclusion of the case, the ICJ will publish its analysis of the proceedings and the judgment of the Supreme Court of the Kyrgyz Republic in light of international human rights law and international standards on the independence of the judiciary and the role of lawyers.
Contact:
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
Kyrgyzstan-Trial observation-News-Web story-2015-RUS (full text in PDF, Russian)
May 29, 2015 | Advocacy, News, Non-legal submissions, Position papers
The ICJ called today on the EU institutions to bridge the final implementation gaps to ensure an effective access to justice to victims of violent hate crimes.
The contribution of the ICJ was submitted as input for the European Commission’s first annual fundamental rights colloquium to be held next October and focused on “Tolerance and respect: preventing and combating antisemitic and anti-Muslim hatred in Europe”.
In its submission, the ICJ finds that the greatest weakness in addressing violent hate crime currently lies primarily in the failure of effective national implementation, which has meant that, despite development of the law, and despite authoritative recommendations from international and EU human rights bodies, the frequency of commission of violent hate crimes appears to have increased, and impunity for such crimes has persisted.
The ICJ considers that there are two main reasons for this lack of implementation: 1) lack of political or institutional will in Member States; 2) lack of implementation tools tailored to the laws, legal institutions and culture of the single national legal system.
The ICJ concluds, in its contribution, that it is the time for the European Union institutions to take up the opportunity to unite the efforts of all those concerned in the administration of justice – judges, court administrators, lawyers, civil society, judicial organizations, bar associations and government officers – throughout the EU to work together on the detailed technical assistance needed for an effective implementation of the right to an effective remedy for victims of crimes motivated by discrimination.
EU-Colloquium2015-ICJContribution-ViolentHateCrimes-Advocacy-non legal submission-2015-eng (download the submission)
May 18, 2015 | News
From 18 to 22 May, the ICJ will carry out a mission to the Russian Federation to examine questions related to the independence and integrity of the legal profession, access to an independent lawyer and the right to an effective defence.
The mission will address the role of Bar Associations in protecting the independence of lawyers, as well as obstacles faced by individual lawyers in protecting the rights of their clients.
The ICJ mission, led by Wilder Tyler, the ICJ Secretary General, will hold meetings with leading Russian experts in the field.
The mission will also meet with the representatives of the Federal Chamber of Lawyers, government officials, and independent lawyers and will take part in two round table discussion with legal scholars and practicing lawyers.
A comprehensive report analyzing the main findings will follow the mission and will present recommendations for reform of law and practice in light of international law and standards on the role of lawyers.
Contact:
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
Apr 28, 2015 | Advocacy, News, Non-legal submissions
The ICJ is urging the European Council to immediately act to take effective measures to protect the lives of migrants at sea, after it failed to respond adequately to the repeated tragedies at a special meeting held on 23 April.
The special meeting of the European Council was called after the sinking of a boat in the Libyan Search and Rescue Zone left at least 700 persons dead. Since then, other incidents have brought the death toll in the Mediterranean to more than 1,000 in one week.
In its statement, released following the meeting, the European Council directed the EU institutions and the Member States to take a set of actions with the stated aim of preventing further loss of lives at sea.
The ICJ is deeply saddened by these tragedies that are the concern not only of the Mediterranean region and of Europe, but of the whole of the international community.
It is deeply regrettable that the reaction of the European Union and its Member States at a moment of such gravity has concentrated on presevering security of borders, and returning migrants, rather than on humanitarian and human rights concerns, particularly strengthening search and rescue operations in order to save lives, the ICJ says.
Although the European Council has affirmed that its “immediate priority is to prevent further loss of life at sea”, the measures envisaged in this statement are not designed to achieve this aim. Instead, they reflect a continuing security-based policy, centred on the need to “fight the traffickers” and on combatting irregular migration.
The ICJ supports the call of the UN Special Rapporteur on the rights of migrants, Fraçois Crépeau, urging the EU and Member States to focus their migration policies on the introduction of safe and legal migration routes and combatting the black labour market.
The framing of migration policies around narrowly perceived “security” interests and the strengthening of border controls creates a situation in which smugglers provide the only route for many migrants and this is leading to serious abuses of human rights. Migrants, many of whom are fleeing war or persecution, should not have to resort to such means of reaching safety in Europe.
“Strengthening our presence at sea”
While welcoming the increase in financial support for Frontex operations Triton and Poseidon with a view to foster its search and rescue capabilities, the ICJ is concerned that this commitment in the context of operations presently aimed to “control irregular migration flows towards the territory of the Member States of the EU and to tackle cross-border crime” risks marginalizing rescue at sea within these operations.
Resources must also be allocated directly to increase search and rescue capacities at the EU and national levels, in order to ensure that the human rights of migrants are protected, and that lives are saved.
“Fighting traffickers in accordance with international law”
The commitment in the statement to increase intelligence and police co-operation with third countries as a means of fighting trafficking, without corresponding human rights protections. Any such co-operation must be carried out in compliance with the EU Charter of Fundamental Rights, the European Convention on Human Rights and other international human rights law and standards.
Without strong safeguards in law and in practice, there is a risk that such co-operation may lead to exchange of information or evidence with, or transfer of suspects to, States in which human rights abuses are systematic or widespread or where particular individuals may be at risk.
This may lead to violations of human rights, including of the right to asylum, the right to the protection of non-refoulement, the right to be free from torture and ill-treatment and the right life.
In addition, engagement in intelligence and police cooperation, while an important tool in effective law enforcement, risks, if not undertaken with adequate safeguards, leading to infringements to the right to privacy, the right to data protection, and the prohibition of collective expulsions.
All of these rights are protected by the EU Charter of Fundamental Rights, as well as by international human rights treaties binding on EU Member States.
Regarding the commitment to take systematic action to capture and destroy vessels used by traffickers in the Mediterranean, the ICJ is also seriously concerned that any such any action risks to be in violation of international law and could lead to a risk of loss of lives.
Finally, the proposal to use Europol to detect and request removal of internet content used by “traffickers” to attract migrants and refugees may lack a sufficient legal basis in EU or national law.
While welcoming the statement’s acknowledgment that such measures must be in accordance with national constitutions, the ICJ recalls that they must also be in compliance with the EU Charter and international human rights law.
Any new measures must include safeguards and limitations to ensure that human rights, including the rights to freedom of expression and association are fully respected.
“Preventing illegal migration flows”
The ICJ is concerned that the stepping up of cooperation initiatives envisaged in the statement, with the aim of preventing irregular migration, poses a risk of complicity by the EU, i.e. aiding or assisting in violations of human rights by third countries.
The ICJ urges that any co-operation with third countries in preventing irregular migration must be in compliance with the EU Charter of Fundamental Rights and international human rights law.
Furthermore, the ICJ is particularly concerned by the decision of the European Council to promote further the readmission to third countries of “unauthorised economic migrants” and to order the establishment of a new return programme for the rapid return of “illegal migrants” from frontline member states, co-ordinated by Frontex.
While the content of the new fast return programme proposed by the Council remains unclear, as does the definition of “rapid return,” the ICJ considers that such a programme is likely to increase the possibility of European Union complicity in violations of the protections of non-refoulement, the right to asylum, the prohibition of collective expulsions and the right to an effective remedy, against its obligations under the EU Charter of Fundamental Rights.
The ICJ is concerned that the rapidity of the return could be linked to certain national expulsion practices that are at odds with the Member States’ obligations under the EU Charter and international human rights and refugee law. Furthermore, the ICJ recalls that under article 9 of the Frontex Regulation, Frontex, in its joint return operations, is not able to assess the compliance of return decisions on the merits. This lack of control increases the risk of aiding or assisting in serious violations of human rights.
“Reinforcing internal solidarity and responsibility”
Finally, in regard to the commitment to provide emergency aid to frontline Member States, the ICJ supports the rapid deployment of a long-term, sustainable programme of aid to such states, directed at the provision of search and rescue operations in the Mediterranean, and designed to safeguard the lives and rights of migrants.
The ICJ also recalls that, consistent with the dictates of the UN charter and international human rights treaties, States are under a general obligation to engage in international cooperation and assistance to protect human rights.
Conclusion
The ICJ deplores the fact that, following the tragic death of more than 1,000 people in one week, the EU Member States and the European Council, have failed to act meaningfully to protect the lives of migrants by taking decisive measures to protect the right to life of those crossing the Mediterranean.
In prioritizing border security and returns over search and rescue, the Member States of the European Union have demonstrated a reckless disregard for the human rights of migrants fleeing war, persecution or dire standards of living.
The ICJ urges the EU Member States and the EU institutions to take swift action, centred on the protection of lives and rights of migrants, in order to uphold the EU founding values of the rule of law and human rights, affirmed in article 2 of the Treaty on the European Union.
