Jun 19, 2018 | Advocacy
The ICJ welcomes the proposal of the Parliamentary Assembly of the Council of Europe (PACE) in its Recommendation 2121(2018) calling for the development of a Council of Europe Convention on the Profession of Lawyer.
The ICJ believes that such a Convention could make an important contribution to strengthening the rule of law and the protection of human rights in the Council of Europe region, building on existing Council of Europe standards and jurisprudence of the European Court of Human Rights.
The ICJ particularly welcomes PACE’s call for an effective control mechanism to be put in place under a new Convention, as recent developments in a number of Council of Europe Member States show a significant gap in implementation of Council of Europe standards on the independence and security of lawyers.
Lawyers, along with judges and prosecutors, are one of the pillars on which protection of the rule of law and human rights through the justice system rests.
Recognizing this, the ICJ, since its foundation in 1952, has worked to protect lawyers under threat and to develop international standards for the independence, role and integrity of the profession.
Successive ICJ Declarations, adopted by leading jurists from all regions of the world, have affirmed that the role of the legal profession is “paramount in safeguarding human rights and the Rule of Law” (2008 Declaration on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (ICJ 2008 Declaration).
In any legal system, the legal profession plays a pivotal role in ensuring access to justice and effective remedies and accountability for violations of human rights, as well as upholding the right to fair trial, right to liberty and freedom from torture and other ill-treatment in the criminal justice process.
In defending criminal cases, in advising and representing victims of human rights violations and their relatives or in challenging before the courts national legislation or policy that is contrary to human rights , lawyers give practical effect to human rights guarantees and rule of law principles.
The importance of this role has been recognized by international standards as well as in the jurisprudence of the European Court of Human Rights, which has emphasized the “specific status of lawyers [having] a central position in the administration of justice as intermediaries between the public and the courts”.
It is thus of fundamental importance that lawyers are able to fulfill their professional duties without interference. As the European Court of Human Rights has held, “persecution and harassment of members of the legal profession strikes at the very heart of the Convention system.”
Full text in ENG (PDF): Europe-Drafting-a-EU-Convention-on-the-Profession-of-Lawyer-2018-ENG
Jun 18, 2018 | News
The ICJ today called on the Hungarian National Assembly to reject Bill No. T/333 that, if approved, would risk criminalizing the work of civil society, lawyers and other human rights defenders and lead to violations of the rights of migrants, especially refugees.
The National Assembly of Hungary is considering today Bill No. T/333 tabled by the Hungarian Government that amends immigration and criminal law.
“This draft law would effectively punish activities that aim to apply legal procedures” said Massimo Frigo. “This attack on the work of lawyers and human rights defenders does not constitute a legitimate aim that would allow for a permissible restriction on the rights of freedom of expression, assembly and association consistent with international human rights law.”
The ICJ warned that the draft law, if approved, would, in contravention of international standards, open the way to arrest, prosecute and convict lawyers or representatives of civil society who assist asylum seekers in filing their application for international protection. It would also make funding of such activities a crime.
The law would effectively prevent lawyers and civil society organizations, under threat of criminal punishment, from providing assistance to asylum-seekers unless they can verify that the person is entitled to international protection, even before the person has begun the refugee status determination procedure.
It would further criminalize any activity aimed at regularizing the position of an irregular migrant who had, for example, married a Hungarian citizen or became a parent of Hungarian children.
“This draft law should be rejected because it could in practice deny legal assistance to any asylum seeker, preventing them from defending their rights, ” said Massimo Frigo.
Bill T/333 has been criticized by UNHCR, the Council of Europe Commissioner for Human Rights and several national and international civil society organisations. An opinion of the Venice Commission on the law is expected to be published shortly.
Background
If approved in the current form, section 11 of the draft law would insert in the Criminal Code the offence of “facilitating illegal immigration”, as new section 353/A. This provision, if approved, would make it a criminal offence to carry out organized activities to facilitate the initiation of an asylum procedure for persons “who are not persecuted” in their country of origin or in a third country that they passed through, or “do not have a well-founded reason to fear direct persecution.”
This provision would also make it a criminal offence to carry out these activities to assist a person entering illegaly or residing illegally in Hungary to obtain a residence permit.
The draft law would also make it a criminal offence to provide financial means to carry out these activities.
Full Document in English (PDF): Hungary-Statement-National-Assembly-Criminalizing-Assistance-to-Migrants-Law-2018-ENG
Jun 12, 2018 | Advocacy, Cases, Legal submissions
The ICJ and others intervened before the European Court of Human Rights in a case of thirteen undocumented children held in a hotspot in Italy.
The International Commission of Jurists (ICJ), the European Council on Refugees and Exiles (ECRE), the Dutch Council for Refugees and the AIRE Centre jointly intervened in the case of Trawalli and others v. Italy.
In this case, the European Court of Human Rights is called to rule, among other issues, on whether their detention and reception conditions were lawful and/or constituted an inhuman or degrading treatment under the European Convention on Human Rights.
In their third party intervention, the three human rights organizations submitted the following arguments:
a) Taking into consideration migrant children’s status as persons in situations of vulnerability and the principle of the best interests of the child, article 5 ECHR should be read in light of the rising consensus in international law towards a prohibition of detention of children on immigration grounds, in particular based on the consolidated and clear position of the UN Committee on the Rights of the Child. This applies to all instances of deprivation of liberty irrespective of their classification under domestic law.
b) In addition to the above, detention under article 5.1 ECHR will in any event be unlawful and arbitrary where it lacks a clear and accessible legal basis, outlining the permissible grounds of detention as well as the relevant procedural guarantees and remedies available to detainees, including judicial review and access to legal advice and assistance. In light of the obligations of EU Member States under EU law, the interveners submit that detention of asylum seeking children falling within the scope of the recast Reception Conditions Directive will result in a breach of the Convention standards also where it is not used as a measure of last resort, but rather is imposed without consideration of less onerous alternative measures and where the child’s best interests assessment has not been carried out and reflected in this decision.
c) Due to children’s extreme vulnerability, their detention for immigration purposes risks leading to a violation of Article 3 ECHR because of inadequate living conditions and/or to a violation of Article 8 ECHR because of a disproportionate and unnecessary interference with their development and personal autonomy, as protected under Article 8. In this sense, Article 8 must be regarded as affording protection from conditions of detention which would not reach the level of severity required to engage Article 3.
d) When the authorities deprive or seek to deprive a child of her or his liberty, they must ensure that he/she effectively benefits from an enhanced set of guarantees in addition to undertaking the diligent assessment of her/his best interest noted above. The guarantees include: prompt identification and appointment of a competent guardian; a child-sensitive due process framework, including the child’s rights to receive information in a child-friendly language, the right to be heard and have her/his views taken into due consideration depending on his/her age and maturity, to have access to justice and to challenge the detention conditions and lawfulness before a judge; free legal assistance and representation, interpretation and translation. The Contracting Parties must also immediately provide the child access to an effective remedy.
e) In order to fully comply with their obligations under the Convention, Contracting Parties must guarantee that asylum seeking children are accommodated in reception facilities which are adapted to their specific needs and provide adequate material conditions adapted to their age, condition of dependency and enhanced vulnerability. To do otherwise results in a failure by States to comply with their obligations under Article 3 ECHR and their specific obligations under EU law.
Italy-icj&others-Trawalli&others-Advocacy-legal submission-2018-ENG (download the intervention)
May 31, 2018 | News
The European Court of Human Rights has found that Romania and Lithuania violated the human rights of Abd al-Rahim al-Nashiri and Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah.
The court underlined both countries’ complicity in the ill-treatment of the pair while they were held in US secret detention facilities in these countries.
The judgments are a key milestone in holding European governments accountable for their involvement in illegal CIA activities in the aftermath of the 11 September 2001 attacks.
“The US could not have operated the rendition and secret detention programme without its European allies. Today’s landmark rulings break the conspiracy of silence that has surrounded the presence of these secret sites in Lithuania and Romania, and publicly underlines European governments’ widespread complicity,” said Julia Hall, Amnesty International’s expert on counter-terrorism and human rights.
“The rulings are an important milestone of accountability for victims of these flagrantly illegal practices.”
Al-Nashiri and Abu Zubaydah, currently in the US Guantánamo Bay detention facility, were subjected to enforced disappearance and torture as part of the rendition programme.
The European Court held that both governments are responsible for the men’s unlawful detention and ill-treatment in CIA ‘black sites’.
A December 2014 report by the US Senate Select Committee on Intelligence included details of al-Nashiri and Abu Zubaydah’s torture, but the names of the countries where people were held in secret sites were redacted. Courts in the USA have declined to hear cases related to the CIA operations deferring to US government claims that information about the sites should be protected as “state secrets”. There has been virtually no accountability for such abuses in the US.
“These rulings are a further step towards establishing the truth about European complicity in renditions and secret detentions, and holding European states accountable for their involvement. But the Lithuanian and Romanian governments were not alone. Many other European governments colluded with the US to illegally transfer, ‘disappear’ and torture people during rendition operations and must also be held accountable,” said Róisín Pillay, Director of the International Commission of Jurists’ (ICJ’s) Europe and Central Asia Programme.
Amnesty International and ICJ intervened in both proceedings (see Al-Nashiri and Abu Zubaydah). The organizations submitted evidence, context and expert opinion in light of precedents within the court and elsewhere.
On 13 March 2018, at the US naval base in Guantánamo Bay, Abd al-Rahim al-Nashiri began his 800th week in US custody. Abu Zubaydah is also imprisoned there, but has not been charged with any crime.
Amnesty International and ICJ have repeatedly called for the closure of the facility and the fair trial or release of those detained.
The judgments follow previous rulings against Poland, Italy, and the former Yugoslav Republic of Macedonia for their roles in the illegal rendition, torture, including waterboarding and mock execution, and enforced disappearance of alleged suspects at the hands of the CIA.
The Judgment
Based on numerous expert opinions and a 2014 US Senate Select Committee on Intelligence report on the CIA programme, the Court identified detention facilities “Detention Site Black” in Romania and “Detention Site Violet” in Lithuania.
The Court also held that both governments violated the prohibition on non-refoulement by allowing the men’s unlawful rendition to other countries despite the risk of further violations of the prohibition on torture and other ill-treatment.
In addition to the complicity in their unlawful detention and ill-treatment while detained in their respective countries, the Court held that both governments violated the prohibition on non-refoulement, which obliges states not to return anyone to a territory where they would be at risk of persecution or other serious human rights violations, by allowing the men’s unlawful rendition to other countries.
It found that Romania had violated its human rights obligations by assisting Al-Nashiri’s transfer out of Romania, despite the risk that he would face a flagrant denial of justice upon prosecution in a US Military Commission trial at Guantanamo Bay.
It also found that Romania violated Al-Nashiri’s right to life by facilitating his transfer despite the substantial and foreseeable risk that he would be facing the death penalty.
In both cases, the court held that neither state satisfied their obligation to carry out an effective investigation.
Contact
Olivier van Bogaert, Director Media & Communications at ICJ, t: +41 22 979 38 08 ; e: olivier.vanbogaert(a)icj.org
Europe-Renditions Rom & Lit-News-press release-2018-ENG (full story in PDF)
May 17, 2018 | Events, News
Today, the ICJ is co-sponsoring a conference in Copenhagen to mark the conclusion of the Danish Presidency of the Council of Europe, and take stock of its contribution to protection of human rights in the Council of Europe region.
The conference, Copenhagen, Elsinore and the Future of Europe: Assessing the Danish Chairmanship of the Council of Europe is organized by iCourts and the University of Copenhagen in collaboration with the Danish Chairmanship of the Committee of Ministers of the Council of Europe, the Danish Ministry of Foreign Affairs, the ICJ and the Danish Institute for Human Rights.
This conference will assess what has been achieved during the Danish Chairmanship – and what can still be achieved at the final high-level conference in Elsinore where the Ministers of Foreign Affairs of the 47 member states will meet and are scheduled to adopt a decision on the future of the Council of Europe. The conference will focus on the priorities of the Danish Chairmanship, including:
- Reform of the European Court of Human Rights and the Copenhagen Declaration
- Equal opportunities
- Involvement of children and young people in democracy
- Changing attitudes and prejudices about persons with disabilities
- Combating torture.
At the conference, the ICJ will present its analysis of the recent Copenhagen Declaration on the future of the European Convention on Human Rights system, and its recommendations for how its conclusions and recommendations should be taken forward.
The programme is available here: http://jura.ku.dk/icourts/calendar/copenhagen-elsinore-future-of-europe/
