Jun 24, 2019 | News
The ICJ and the International Bar Association’s Human Rights Institute (IBAHRI) have jointly sent international observers to attend the first hearing of the criminal trial on the “Gezi Park” protest at the Silivri Prison Courthouse in Istanbul, scheduled to take place on 24 and 25 June 2019.
The International Observers who will be attending are Justice Ketil Lund, former judge of the Supreme Court of Norway and ICJ Commissioner, and Dr Mark Ellis, Executive Director of the International Bar Association.
Justice Lund and Dr Ellis will be observing a trial hearing before İstanbul 30th Assize Court with principal defendant Osman Kavala and 15 others: Ali Hakan Altınay, Ayşe Mücella Yapıcı, Ayşe Pınar Alabora, Can Dündar, Çiğdem Mater Utku, Gökçe Yılmaz, Handan Meltem Arıkan, Hanzade Hikmet Germiyanoğlu, İnanç Ekmekci, Memet Ali Alabora, Mine Özerden, Şerafettin Can Atalay, Tayfun Kahraman, Yiğit Aksakoğlu and Yiğit Ali Ekmekçi.
The observers will report directly to the IBAHRI and ICJ Secretariats on the proceedings following the mission.
The Gezi Park protests began in May 2013 as an effort by a group of environmentalists to save a park in central Istanbul from being rezoned, but soon turned into nationwide demonstrations. The protest was quelled by police with the use of tear gas and water cannons against the protesters in Taksim Square.
Following a six-year investigation into the events, the 657-page indictment issued by the Istanbul Chief Public Prosecutor’s Office was accepted by the 30th A Court in Istanbul on 4 March 2019.
The defendants are to be charged under Turkish Criminal Code Article 312 (attempt to overthrow the Turkish Government or attempt to prevent it from fulfilling its duties), Article 151 (damage to property), Article 152 (qualified damage to property), Article 174 (possession or exchange of hazardous substances without permission), Article 153 (damaging places of worship and cemeteries), Article 149 (qualified robbery), Article 86 (intentional injury); crimes under the Law on Firearms, Knives and Other Tools no. 6136, and crimes under the Law on Protection of Cultural and Natural Assets no. 2863. The total sentence asked for by the prosecution for these offences amounts to approximately 47,520 years imprisonment.
Contact:
Massimo Frigo, Senior Legal Adviser, t: +41 22 979 38 05 – e: massimo.frigo(a)icj.org
Jun 15, 2019 | News
The ICJ welcomes the recent judgment of the Tanzanian High Court condemning the Tanzanian government’s actions leading to the suspension of the SADC Tribunal and the denuding of its crucial role in maintaining the rule of law and protecting human rights in the Southern African region.
Following on a decision of the South African Constitutional Court in December 2018, the decision brings increased scrutiny to the legality and legitimacy of the decision of the SADC Summit to effectively disband the SADC Tribunal in 2010 and thereby “eviscerate the possibility of the States ever being held to account for perceived human rights violations, non-adherence to the rule of law or undemocratic practices”.
“The Tanzanian court’s decision once again raises fundamental questions about the legality and legitimacy of the SADC Summit’s attempt to strip the SADC Tribunal of its powers, following on decisions relating to land reform in Zimbabwe that upset leaders of SADC states. The ICJ endorses the views of the Tanzanian and South African courts that all decisions taken by SADC States must comply with the SADC Treaty, the right of victims of human rights abuses to access justice and the rule of law,” said Arnold Tsunga, the ICJ’s Africa Director.
The Tanzanian Court’s decision is premised on the finding that the SADC Treaty is, in terms of the Vienna Convention on the Law of Treaties, binding on all SADC member States and obligations in terms of it must be performed in good faith by all executive officials.
Having set up and empowered the SADC Tribunal to adjudicate disputes in terms of the Treaty, the Court held that “State parties including Tanzania are obliged to give effect to the Tribunal, without which the existence of the Community itself remains doubtful”.
The Court likened the system of governance set out in the Treaty to a domestic doctrine of separation of powers, noting that the Tribunal is part of an intricate set of checks and balances set out in the Treaty.
The case was brought to Court by the Tanganyika Law Society in order to hold the Tanzanian government accountable to the Constitution, the SADC Treaty and “other international law human rights norms”.
The Law Society alleged that the Tanzanian government’s actions violate the right to access to justice and are therefore “inimical to the rule of law”.
The Court’s decision makes repeated reference to international human rights law norms including United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation, the Universal Declaration on Human Rights and the African Charter concluding that crucial commitments in terms of the standards set out in these documents were violated by the Tanzanian government.
The Court reasoned that in terms of international law the State is obliged to “ensure observance of [international human rights law principles] in the conduct of its international relations”.
This, crucially, meant that State parties to the SADC Treaty must, in their conduct pertaining to international relations “ensure protection of fundamental human rights of the individual” (emphasis in original).
The SADC Summit’s attempts to protect individuals from accessing the SADC Tribunal for the purposes of vindicating their rights therefore amounted to an unlawful encroachment on individuals’ rights in terms of domestic and international human rights law.
“The Court’s decision is a strong endorsement of the universality of international human rights principles as well as the need for strong checks and balances on power in all domestic, regional and international platforms established to ensure access to remedies for rights violations. The ICJ encourages the SADC leaders to individually and collectively take note of the decisions of the Tanzanian and South African courts and take immediate action to ensure full and effective operation of an independent SADC Tribunal capable of receiving and adjudicating individual complaints,” Tsunga added.
Contact:
Arnold Tsunga, ICJ Africa Director, t: +263777283249 ; e: arnold.tsunga(a)icj.org
Timothy Fish Hodgson, ICJ Legal Adviser, t: +27828719905 ; e: timothy.hodgson(a)icj.org
Jun 12, 2019 | News
The ICJ today expressed concern at recent developments in Moldova, which are effectively paralyzing governance in the country.
During the past week, the Constitutional Court has ordered the dissolution of Parliament, suspended its functioning and invalidated its subsequent acts, including the appointment of a government and speaker, and has triggered the removal of the President.
The ICJ is particularly concerned at the excessively swift procedure through which the Constitutional Court reached its decisions to dissolve Parliament, remove a sitting President of the Republic and replace him with the Prime Minister. The ICJ calls attention to the unhelpful timing of the Constitutional Court ruling that was issued on the very day it identified as the end of the Parliamentary term, depriving Parliament of the clarity needed to exercise its powers.
These developments occur against the background of the manifest deficiencies in the institutional independence of the Moldova judiciary which were documented in a recent ICJ report.
In the report issued in March 2019, the ICJ highlighted the problematic appointment in 2018 of three judges of the Constitutional Court in circumstances that did not ensure a sufficient level of transparency, during an electoral campaign and without an open competition process. The report noted that the three appointed judges have previously been Prosecutor General, director of the intelligence service and chair of the legal committee of Parliament, part of the then ruling political majority.
The ICJ welcomes the announcement by the Secretary General of the Council of Europe that the Venice Commission has been asked to issue an urgent opinion on the constitutional crisis.
“The rule of law is the common ground on which constitutional conflicts must be solved”, said Massimo Frigo, Senior Legal Adviser of the Europe Programme of the ICJ. “We call on all institutions and parties in Moldova to seek a solution that squarely complies with the rule of law and the international law and standards to which Moldova has subscribed. In this regard, we urge all parties concerned to wait for the opinion by the Council of Europe Venice Commission in this matter and to reconsider the situation in light of its findings.”
Background
The Constitutional Court, in decisions issued on 7, 8 and 9 June 2019, held that Parliament should be dissolved for having been unable to establish a government within three months of the end of the previous Government’s term of office.
The decisions triggered the removal from office of the President of the Republic, Igor Dodon, for having refused to dissolve Parliament. This led to the interim appointment of Pavel Filip, as acting President of the Republic.
The Court also declared unconstitutional and void any act issued by Parliament after 7 June.
Neither Parliament nor President Dodon have accepted the decisions of the Constitutional Court on their removal or on the validity of their acts, nor do they consider as legitimate the appointment of Pavel Filip as acting President.
Parliamentary factions constituting the current majority in Parliament had reached a deal to form a coalition government and appointed a speaker and Prime Minister.
According to the Constitutional Court’s interpretation of article 85 of the Constitution, these agreements failed to respect the three-month deadline.
Others have put forward different interpretations of when the deadline of the three months period to appoint a Government would elapse, and of the obligation of the President of the Republic to dissolve Parliament.
Article 85 of the Constitution states:
(1) In the event of impossibility to form the Government or in case of blocking up the procedure of adopting the laws for a period of three months, the President of the Republic of Moldova, following consultations with parliamentary fractions, may dissolve the Parliament.
(2) The Parliament may be dissolved, if it has not accepted the vote of confidence for setting up of the new Government within 45 days following the first request and only upon declining at least two requests of investiture.
(3) The Parliament may be dissolved only once in the course of one year.
(4) The Parliament may not be dissolved within the last six months of the term of office of the President of the Republic of Moldova nor during a state of emergency, martial law or war.
Contact:
Massimo Frigo, ICJ Senior Legal Adviser: t: +41 22 979 3805; e: massimo.frigo(a)icj.org
Jun 6, 2019 | News
The ICJ today called on the Zimbabwe government to stop using the highly criticized offence of “subverting a constitutional government” to punish human rights defenders for the exercise of fundamental freedoms protected under international and Zimbabwe Law.
George Makoni, Tatenda Mombeyarara, Gamuchirai Mukura Nyasha Mpahlo, Farirai Gumbonzvanda, Rita Nyamupinga, and Stabile Dewa, referred to by the media as the “Zimbabwe 7”, have been charged under section 22 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and will face a bail hearing, due to be heard at the High Court in Harare on 6 and 7 June 2019.
“The Zimbabwean authorities need to desist from the growing practice of abusing the offence of subverting a constitutional government as an instrument to persecute human rights defenders through abuse of the legal system,” said Arnold Tsunga, ICJ’s Africa Director.
“The oppressive and retaliatory use of law by government violates the rule of law and human rights as guaranteed in the Zimbabwean Constitution as well as in regional and global human rights treaties to which Zimbabwe is a State party,” he added.
The ICJ has previously shown that the law of subversion in Zimbabwe has been used often against HRDs who peacefully exercise their fundamental freedoms, with no single conviction to date.
The law violates the African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights (both of which Zimbabwe is a party to), including the rights of persons to freedom of opinion and expression (Article 9 African Charter on Human and People’s Rights; article 19 ICCPR), freedom of assembly (article 11 ACHPR; 21 ICCPR) article, freedom of association (article 10 ACHPR; article 22 ICCPR), and the right to political participation (article 25 ICCPR).
The UN Declaration on Human Rights defenders, adopted by the UN General Assembly, requires that States afford particular protection to human rights defenders (HRDs) who exercise these rights.
HRDs charged with this offence can face a sentence of up to 20 years in prison and have often been denied bail for some periods, in contravention of international law, which provides that charged persons should generally not be held in pre-trial detention. Such prolonged pretrial detention effectively serves as pre-trial punishment of suspects.
“Criminal law must never be used as a means to silence opposition or persecute human rights defenders, which also necessarily has a chilling on others who perform critical human rights work. It is important that the police do not arrest to investigate but they must investigate before they arrest,” said Tsunga.
Contact
Arnold Tsunga, ICJ’s Africa Director, t: +27716405926 ; e: arnold.tsunga(a)icj.org
Background
Four human rights defenders, George Makoni, Tatenda Mombeyarara, Gamuchirai Mukura and Nyasha Mpahlo were arrested on 20th May 2019 upon arrival at Robert Mugabe International Airport, Harare from the Maldives where they had attended a workshop on human rights work. Law enforcement officials alleged in the charge sheet that,” during the workshop, the four had received training on the use of small weapons, how to mobilize citizens to turn against the government and to engage in acts of civil disobedience and or resistance to law during anticipated national protests. Law enforcement agents confiscated the HRDs’ laptops and cell phones. In similar fashion, Social Justice and Girls’ Rights advocate Farirai Gumbonzvanda was arrested upon arrival at the Harare airport on 21 May. Charged with the offence of subverting constitutional government as defined in section 22(2)(a)(iii) of the Criminal Law (Codification and Reform) Act, all five persons remain in custody as their application for bail in the High Court of Zimbabwe has been postponed to 7th June 2019.
In related circumstances, Director of Female Prisoners Support Trust, Rita Nyamupinga and Stabile Dewa, Director of Women’s Academy for Leadership and Political Excellence were arrested on 28 May 2019 soon after they arrived at the Harare airport. They were taken to Harare Central Police Station without having an opportunity to consult their lawyers. Both women have also been charged with subverting constitutional government and have been remanded in custody since 29th May 2019 pending their bail hearing today.
May 15, 2019 | News
The ICJ today condemned a series of the acts of violence directed against the Muslim community in the aftermath of the Easter attacks on 21 April in Sri Lanka directed at churches and other places.
In the most recent attacks on 13 May, at least one person was killed in anti-Muslim mob violence in Nattandiya. In addition, various attacks have resulted in the looting and destruction of mosques, Muslim-owned businesses and houses in several parts of the island including Negombo, Chilaw, Kurunegala and Gampaha.
The ICJ called upon the State authorities to conduct independent, impartial and effective investigations into the attacks and bring all perpetrators to justice in line with international standards. Furthermore, the ICJ urges the Government of Sri Lanka to send a clear public message that acts of violence against any religious minorities are not tolerated.
“Attacks perpetrated against religious minorities are more likely to occur in a climate of impunity” said Fredrick Rawski, ICJ’s Regional Director for Asia and the Pacific. “The fact that Sri Lanka has a history of serious violations of human rights of religious minorities makes it even more urgent that the Government act to safeguard the human rights of all persons and take immediate measures to protect members of religious minorities from further violence.”
Delayed action or inaction on the part of law enforcement authorities during and in the immediate aftermath of the attacks has further exacerbated the situation. Given the recurring patterns of mob violence against religious minorities in Sri Lanka, a handful of arrests will not suffice. It must be followed up by independent and impartial investigations and, where warranted, prosecutions as part of an effective preventive strategy to counter such collectively organized violence.
Under international human rights law, including the International Covenant on Civil and Political Rights, to which Sri Lanka is a party, States have a duty to protect freedom of religion, which includes persons from religious minorities against abuses committed against them by any person or group.
The Government of Sri Lanka must take appropriate security measures in response to the worst terror attack in recent years. However, it must ensure that the volatile situation is not made worse by inaction to prevent anti-Muslim violence and vigilantism. Moreover, the State must ensure that any counter-terrorism measure is adopted and implemented in line with its international human rights law obligations and does not explicitly or implicitly target a particular community.
