Tunisia: victims’ right to reparation and guarantees of non-recurrence must be at the forefront of the Specialized Criminal Chambers’ work

Tunisia: victims’ right to reparation and guarantees of non-recurrence must be at the forefront of the Specialized Criminal Chambers’ work

Victims of gross human rights violations must be provided with effective reparations and guarantees of non-recurrence by Tunisia’s Specialized Criminal Chambers (SCC), judges and prosecutors asserted during a workshop held by the ICJ and the Association of Tunisian Magistrates (AMT) on 3 and 4 April.

The workshop highlighted the need for the SCC to adopt restitution, compensation, rehabilitation and satisfaction measures to achieve to the fullest extent possible reparation for material and moral damage suffered by victims of gross human rights violations in Tunisia.

Participants further emphasized that SCC decisions should include recommendations on guarantees of non-recurrence, including on legal and institutional reforms.

The workshop was attended by more than 25 Tunisian judges and prosecutors attached to the 13 Specialized Criminal Chambers. Discussions involved also international experts and ICJ representatives.

“It is important that the SCC, consistent with international standards, adopt a comprehensive notion of victims and persons entitled to reparation,” said Philippe Texier, ICJ Commissioner.

“In this respect, reparative measures should  focus  not only on direct victims, but also indirect victims, including the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims,” he added.

Federico Andreu-Guzmán, international expert, noted the non-derogable nature of the right to reparation under international law and that SCC should seek to ensure that all their decisions comply with this right.

“SCC decisions should include wide-reaching recommendations in order to guarantee that the violations will not be repeated,” said Said Benarbia, Director of ICJ’s Middle East and North Africa Programme.

The workshop also offered the opportunity to participants to discuss a set of recommendations targeting the High Judicial Council and its role in supporting the SCC.

The recommendations, which were developed by a group of SCC judges and prosecutors following the ICJ’s roundtable of 13-14 March, aim to find joint approaches to address ongoing procedural obstacles before the SCC and will be subject of future meetings and roundtable discussions organized by the ICJ and the AMT.

Contact

Valentina Cadelo, Legal Adviser, ICJ Middle East and North Africa Programme, e: valentina.cadelo(a)icj.org

Asser Khattab, Research and Communications’ Officer, ICJ Middle East and North Africa Programme, e: asser.khattab(a)icj.org

 

Turkey : Immediately free lawyer and human rights defender Öztürk Türkdoğan

Turkey : Immediately free lawyer and human rights defender Öztürk Türkdoğan

The ICJ called today on the Turkish authorities to immediately release human rights defender and lawyer Öztürk Türkdoğan, who was arrested this morning after an unlawful search of his home.  The charges against him, if any, are unkown and he is currently being held without access to his lawyer.

Öztürk Türkdoğan is the chair of the Human Rights Association and a lawyer and member of the Ankara Bar Association.

“The arrest and search of Öztürk Türkdoğan’s continues a systematic pattern of misuse of the criminal law to harass and persecute human rights defenders and lawyers in Turkey in recent years,” said Roisin Pillay, ICJ’s Europe and Central Asia Programme Director. “Öztürk Türkdoğan must be released immediately. If he remains in detention then he must be ensured immediate and confidential access to a lawyer, and be informed of the nature of any charges against him and brought promptly before a court.”

The arrest occurred during a search of Öztürk Türkdoğan’s home without the presence of a lawyer, which is in direct contravention of Turkish criminal procedural law.

While no information has been made available on the charges against Öztürk Türkdoğan, he is currently being detained without access to a lawyer for 24 hours, which indicates that the charges are likely related to terrorism or to offences against the State. These offences, contrary to obligations under international human rights law, are vaguely and broadly defined and have been long used and abused by prosecutors in Turkey to suppress human rights defenders, lawyers and political opponents.

Under international human rights law, anyone arrested has a right to prompt and confidential access to a lawyer, and to information on the charges against them.  Arrests and searches of homes must not be arbitrary and must be carried out in compliance with international standards and national laws and procedures.

“Hundreds of lawyers, judges and prosecutors have been improperly arrested, harassed and detained in the past few years by Turkish authorities  ” said Roisin Pillay.  “Using the criminal justice system in this way is contrary to the most fundamental principles of the rule of law.”

Background

Systematic violations of human rights in investigation and prosecution of counter-terrorism offences in Turkey have also been documented by the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, the UN Special Rapporteur on the situation of human rights defenders, the UN Special Rapporteur on the independence of judges and lawyers, theWorking Group on Arbitrary Detention, the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and the Commissioner for Human Rights of the Council of Europe.

The ICJ has extensively documented these violations:

 

 

 

 

 

Czech Republic: ICJ and Forum for Human Rights celebrate landmark European Committee decision upholding procedural rights for children

Czech Republic: ICJ and Forum for Human Rights celebrate landmark European Committee decision upholding procedural rights for children

All children regardless of their age must have access to procedural rights when they are accused of criminal acts, the Council of Europe’s European Committee of Social Rights decided in a landmark case (No. 148/2017) brought by the International Commission of Jurists (ICJ) with support from the Prague-based Forum for Human Rights.

The ICJ and Forum lodged a complaint challenging the failure of the Czech Republic to provide for legal assistance to children under the age of 15 (the age of criminal responsibility in the Czech Republic) in the pre-trial stage of proceedings and failure to provide alternatives to formal judicial proceedings for them.

The European Committee of Social Rights, which is responsible for oversight of the European Social Charter of 1961, found the Czech Republic was violating the rights of children under 15, who face proceedings in the child justice system but are below the age of criminal responsibility. The Committee found that the failure to provide these due process safeguards violated the rights of the children to social protection under Article 17 of the 1961 Charter. Human rights protected under the European Social Charter are legally binding on States party to it.

“The Committee’s decision is ground-breaking in many ways, yet two implications are revolutionary. First, it clearly emphasises the inter-dependence between fair-trail rights and child’s well-being. In modern human rights law, there is no such a thing as a clear-cut division between civil and political rights and social rights. But most importantly, the decision undermines paternalistic attitudes towards young children who enter the juvenile justice system and makes clear that all children – regardless their age – must be ensured adequate procedural protection in the course of the whole proceedings, based on the restorative justice principles,” said Maroš Matiaško, senior legal consultant of Forum.

The decision of the European Committee on Social Rights should lead to fundamental changes in the Czech child justice system, Forum for Human Rights and the International Commission of Jurists said today.

“We brought this case to ensure that children below the age of criminal responsibility do not have lower standards of protection of their rights compared to the older children in the child justice system,” said Karolína Babická, ICJ Legal Adviser. “We expect the Czech Republic to swiftly implement the decision of the Committee and ensure that all children regardless their age have access to procedural rights and alternative procedures like settlements and conditional termination or withdrawal of prosecution.”

Background

The legal findings come following a collective complaint submitted to the European Committee on Social Rights by Prague-based Forum for Human Rights and the International Commission of Jurists in 2017.

The Committee’s decision is built on two legal grounds, (I) mandatory legal representation for all children in conflict with the law regardless of age already in the pre-trial stage and (II) their access to alternatives in line with restorative justice principles.

On the first ground, the Committee found that the State must ensure mandatory legal assistance to children below the age of criminal responsibility already in the pre-stage of the proceedings. The reasoning is built on four grounds:

–Children below the age of criminal responsibility are not always able to understand and follow pre-trial proceedings due to their relative immaturity. It cannot therefore be assumed that they are able to defend themselves in this context.

–Children below the age of criminal responsibility should be assisted by a lawyer in order to understand their rights and the procedure applied to them, so as to prepare their defence. The failure to ensure legal assistance for children below the age of criminal responsibility in the pre-trial stage of proceedings is likely to impact negatively on the course of the proceedings, thereby increasing the likelihood of their being subjected to measures such as deprivation of liberty.

–Legal assistance is necessary in order for children to avoid self-incrimination and fundamental to ensure that a child is not compelled to give testimony or to confess or acknowledge guilt.

–The assistance of a lawyer is also necessary in situations where parents/legal guardians have interests that may conflict with those of the child and where it is in the child’s best interest to exclude the parents/legal guardians from being involved in the proceedings. Therefore, the Committee concluded that mandated separate legal representation for children is crucial at the pre-trial stage of proceedings.

In relation to the second legal ground, the Committee emphasised that diversion (alternatives to proceedings, such as settlement or conditional termination or withdrawal of criminal proceedings) from judicial proceedings should be the preferred manner of dealing with children in the majority of cases and diversion options should be available from as early as possible after contact with the system, before a trial commences, and throughout the proceedings. The principle applies to an even greater degree to a situation in which children below that age can still be engaged in the child justice system.

It may be left to the discretion of States Parties to decide on the exact nature and content of diversion measures, and to take the necessary legislative and other measures for their implementation, though there are relevant standards that should be taken into account, especially those developer by the UN Committee on the Rights of the Child.

Collective complaints alleging violations of obligations under the European Social Charter, may be brought against States which have ratified the 1995 Additional Protocol to the European Social Charter. On the basis of the European Committee on Social Rights’ decision on a collective complaint, the Council of Europe Committee of Ministers may recommend that the State take specific measures to implement the decision.

Read the full decision here.

See more information about the case here.

Watch our talk on the case and its importance:

Contact:

Karolína Babická, Legal adviser Europe and Central Asia Programme; karolina.babicka(a)icj.org

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