Oct 9, 2023 | Access to justice, Advocacy, Cases, News
Today, the International Commission of Jurists (ICJ), the AIRE Centre (Advice on Individual Rights in Europe), the Dutch Council for Refugees (DCR), and the European Council on Refugees and Exiles (ECRE), submitted a third-party intervention to the European Court of Human Rights in the case S.M.H. v Lithuania, concerning the deprivation of liberty of an asylum seeker.
S.M.H., an Iraqi citizen, who entered Lithuania irregularly and sought asylum, was subsequently arrested and detained in various centres. The applicant claimed that his detention was not justified, lacking both individualised assessment and effective legal assistance.
In its intervention, the ICJ and its partners focus on Article 5.1 and Article 5.4 of the European Convention of Human Rights (ECHR). In particular, the interveners analyse the requirements for lawful deprivation of liberty, the right to have the lawfulness of detention promptly examined by a Court, and the right to have effective legal assistance. The intervention considers both the EU and international law and standards related to deprivation of liberty and the right to an effective remedy against unlawful detention and material conditions of detention.
The key points of the intervention are as follows:
- The interveners submit that under Article 5.1 detention must not be arbitrary, and be prescribed by law both substantively and procedurally. The intervention highlights that detention must be a measure of last resort, it should follow an individualised and exhaustive examination, and it may be imposed only when less strict measures cannot be effectively applied.
- Regarding Article 5.4, the interveners clarify that an effective judicial review of detention prescribed by law and accessible in practice constitutes a safeguard against arbitrary detention. Legal aid and competent legal representation are essential elements in ensuring the accessibility and effectiveness of judicial review of the lawfulness of detention.
- Finally, the interveners stress that lack of access to clear information, lack of access to a lawyer, and lack of access to an effective remedy contravene the guarantees under Articles 3 and 13 ECHR, rendering them ineffective, theoretical, and illusory.
Read the full intervention here.
Oct 6, 2023 | Cases, Uncategorized
The International Commission of Jurists (ICJ), together with the AIRE Centre (Advice on Individual Rights in Europe), the Dutch Council for Refugees and the European Council on Refugees and Exiles (ECRE) submitted today a third party intervention in the Communicated case No. 193/2022, before the UN Committee on the Rights of the Child.
The case concerns immigration detention of an 11-year-old girl from Afghanistan together with her older sister and parents, pending transfer to another EU Member State according to the EU Dublin Regulation.
The interveners focus in their submission on the prohibition of immigration detention of children, including when accompanied by family members, the right to be heard, access to information and legal representation and age assessment in the migration context.
The full intervention can be read here.
Sep 21, 2023 | Advocacy, News
Between 18 and 20 September 2023, the International Commission of Jurists (ICJ), the Access to Justice Knowledge Hub and the Andes University’s Programme of Action for Equality and Social Inclusion (Programa de Acción por la Igualdad y la Inclusión Social -PAIIS) jointly held a regional workshop in Bogotá, Colombia, on the discriminatory, disproportionate and often arbitrary use of criminal justice systems against marginalized individuals and groups in Latin America. The event brought together approximately 30 members of civil society organizations, justice actors, judges and representatives of government institutions. Participants came from a range of Latin American countries, including Argentina, Chile, Colombia, Ecuador, Mexico, Paraguay, and Peru.
The workshop centred around the ICJ’s “8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty” (8 March Principles) as well as the UN Special Rapporteur on the rights of persons with disabilities’ “International Principles and Guidelines on Access to Justice for Persons with Disabilities”. Participants agreed that the alarming worldwide trend of over-criminalization was evident in Latin America too. This trend hinders the advancement of human rights, especially the rights of marginalized individuals and groups, such as LGBTI+ persons, people living with HIV, women with disabilities and women living in poverty.
In his keynote presentation, ICJ Commissioner Rodrigo Uprimny discussed “the inevitability of criminal law”, describing it as “a bitter necessity for social coexistence”. Certain conduct, he argued, such as acts constituting human rights abuses, must inevitably be criminalized by States. Against this background, Uprimny also noted that there is tendency towards “penal populism” in Latin America, often resulting in the disproportionate and discriminatory use of criminal law in various contexts, such as social protest, drug use and abortion. Commenting on the importance of the 8 March Principles in Latin America, he therefore said:
“Reality shows that the conduct addressed by the Principles is precisely the conduct where the discriminatory impact of criminal law tends to be very strong (…) on all grounds of discrimination: gender, race, disability, poverty, etc. (…). The Principles call for caution against the tendency toward over-criminalization. (…). overcriminalization is not only a matter of authoritarian right-wing governments in Latin America. In the human rights world, there is a movement towards retributivism. (…) [The use of criminal law] may sometimes be justified, but sometimes it can have perverse effects.”
The participants reflected on common predicaments and barriers that criminal justice systems impose against marginalized groups and individuals in Latin America, including in relation to the disproportionate impact of criminal law on women, homeless persons, persons living with HIV, people who use drugs and persons with disabilities.
A central element of the discussion was that human rights violations as a result of criminal proceedings involve the failure of a range of actors — including judges, prosecutors, police officers and other justice actors, but also of psychiatrists and social services — to understand and apply international human rights standards. In this regard, participants highlighted, inter alia, the lack of knowledge and application of the Convention on the Rights of Persons with Disabilities and of the jurisprudence of the UN Committee on the Rights of Persons with Disabilities in relation to access to justice for persons with disabilities. As a result, persons with disabilities in Latin America, and particularly those with psychosocial disabilities, face serious obstacles in exercising their right to legal capacity in the context of criminal proceedings.
Participants committed to a common agenda for joint advocacy, including through the provision of workshops to justice actors, such as judges, in Latin America. In particular, more in-depth knowledge of international human rights law and standards in the criminal justice context, as well as disability rights, is needed.
Contacts:
Rocío Quintero M, ICJ Legal Adviser for the Latin America Programme, e: rocio.quintero@icj.org
Timothy Fish Hodgson, ICJ Senior Legal Adviser, Economic, Social and Cultural Rights, e: timothy.hodgson@icj.org
