Jan 18, 2021 | News
The ICJ today condemned the arbitrary arrests in recent days of prominent Zimbabwean human rights defenders Hopewell Chin’ono, Fadzayi Mahere and Job Sikhala, who have been critical of the government led by President Emmerson Mnangagwa.
The ICJ is concerned that their arrests and potential prosecutions are based solely on their exercise of protected human rights, including freedom of expression. The ICJ calls for their immediate release and the dropping of the charges against them.
The three have been charged with contravening section 31 of the Criminal Code which prohibits “publishing or communicating false statements prejudicial to the state”.
The alleged offences arise from posts made on social media and comments issued by all three in connection with an incident at a Harare taxi rank in which a police officer is alleged to have assaulted a mother with a baby on her back.
ICJ’s Africa Director Kaajal Ramjathan-Keogh said:
“The use of judicial processes to silence these three human rights defenders constitutes a continuing assault on members of the bar and journalists and is a clear attempt to chill others from carrying out their professional functions when these activities offend government authorities. Of concern is the continued use of criminal defamation (section 31) charges which were declared unconstitutional in 2014 yet continues to be weaponised against human rights defenders.”
Chin’ono, a journalist, was arrested on 8 January and had his application for bail rejected on 14 January. He has been handcuffed and held in leg irons during court appearances, despite a Magistrate’s ruling on 12 January that forcing Chin’ono to be shackled in leg irons and handcuffing him amounts to inhumane and degrading treatment.
Mahere is a lawyer and spokesperson of the opposition political party Movement for Democratic Change (MDC) Alliance. She was arrested on 11 January. On 15 January Magistrate Trynos Utahwashe failed to hand down his ruling on her application for bail as required.
Bail was however granted today. Mahere did raise concerns about the absence of essential COVID-19 measures in her detention, including the lack of temperature checks or sanitisers at the entrance to the police station; the failure to practice social distancing in the waiting area or holding cells; the unavailability of masks in the cells and use of old masks by cellmates; as well as the failure to provide sanitary materials to female inmates.
Sikhala is a human rights lawyer, the MDC Alliance Vice National Chairperson, and MP for Zengeza West.
He was part of Chin’ono’s legal team. On 15 January Magistrate Ngoni Nduna dismissed his bail application stating that there was overwhelming evidence against him not to grant it. He remains in prison custody while he awaits trial. Sikhala has also been handcuffed and held in leg irons during court appearances.
Ramjathan-Keogh added:
“The courts have unlawfully employed the denial of bail as well as the repeated prolonged bail proceedings as a punitive tool in these cases. Pre-trial detention without the opportunity for bail, with exceptions not applicable here, is a violation of the right to liberty. The government has an obligation to provide safe and humane conditions of detention.”
The ICJ recalls that that Zimbabwe’s Constitution guarantees the rights to freedom of expression and freedom of the media (Article 61); freedom from arbitrary detention (Article 50). Zimbabwe has an international legal obligation to protect these rights under the International Covenant on Civil and Political Rights (Article 9 and 19) and the African Charter on Human and Peoples’ Rights (Articles 6 and 9).
Contact:
Kaajal Ramjathan-Keogh, Director of ICJ Africa Programme, e: Kaajal.Keogh(a)icj.org ; t: +27845148039
Tanveer Jeewa, Legal and Communications Consultant, e: Tanveer.Jeewa(a)icj.org
Background Information:
Hopewell Chin’ono has been arrested on three separate occasions. He has been denied bail on each occasion and those bail proceedings have been unduly and unfairly prolonged. He was initially arrested in July 2020 after he expressed support on Twitter for an anti-corruption protest, which was planned for 31 July. He was charged with incitement to participate in public violence and breaching anti-corona virus health regulations.
He appeared in court three times to apply for bail and was only granted bail in September 2020, nearly two months after his arrest. On 3 November 2020, he was re-arrested for contempt of court for allegedly violating section 182(1)(a) or (b) of the Criminal Code because of a tweet he posted. His tweet stated: “On day of bail hearing CJ was seen leaving court in light of what has been said by judges what does this say.” The arrest violates Zimbabwe’s constitutional provisions, in particular, section 61, which provides for freedom of expression and the right of a journalist to practice his profession. He was again arrested on 8 January 2021 for allegedly communicating falsehoods by tweeting that police beat a baby to death.
Chin’ono was in 2020 denied access to the legal representative of his choice. The magistrate’s order barring lawyer Beatrice Mtetwa from continuing as defence legal counsel for Chin’ono violated his right to a fair trial and Mtetwa’s right to express her opinions freely. See ICJ’s statement of 21 August 2020.
Jan 15, 2021 | Advocacy, Cases, Legal submissions
The ICJ and Amnesty International have submitted today to the European Court of Human Rights their intervention in the case of Judge Igor Tuleya who alleges that the seven disciplinary proceedings brought against him have affected his reputation as a judge and undermine the authority of the judiciary.
Judge Igor Tuleya contests that the disciplinary proceedings brought against him were in violation of his right to respect for private life and of his right to an effective remedy against violation of human rights.
The case takes place in the context of the “reform” of the judiciary in Poland, involving policy measures and legislative changes approved between late 2015 and 2020, which have seriously compromised the independence of the judiciary.
The intervention focuses on three main issues:
- The scope of application of Article 8 and Article 13 in cases relating to disciplinary proceedings against judges, in light of international standards on disciplinary proceedings and measures and effective domestic remedies; of the Court’s Convention jurisprudence; and of general principles on the rule of law and the role and independence of the judiciary.
- The situation of the independence of the judiciary in Poland as the context in which to assess the application of Articles 8 and 13.
- The scope of Article 10 as applied to judges, including those engaged in the administration of the judiciary.
ECtHR-AmicusBrief-Tuleya_v_Poland-Advocacy-Legal-Submission-2020-ENG (download the third party intervention)
Nov 20, 2020 | News
The ICJ expressed today its deep concern at the arrest of some 26 lawyers and the investigation of around 100, including lawyers active in the defence of human rights, in South East Turkey.
The arrests and investigations are on charges of “establishing organizations in favour of an illegal organisation”, an offence often used to arrest human rights defenders in Turkey.
Around 26 lawyers were arrested this morning, 20 November, at around 5 a.m. and taken to the Anti-Terror Branch of the Police in Diyarbakır in South East Turkey as part of an investigation against the Democratic Society Congress. The ICJ understands that around 100 lawyers are concerned by this investigation that also concerns the Lawyers Association for Freedom (ÖHD).
“We are concerned that these lawyers have been arrested under vague charges that are often used in Turkey to target human rights defenders ,” said Roisin Pillay, Director of the ICJ Europe and Central Asia Programme,
“Unless law enforcement officers and prosecutors promptly substantiate such charges with adequate evidence, as well as demonstrating valid grounds for their detention, the lawyers must be released immediately.”
The ICJ will follow the case closely to ascertain whether international law and standards are respected in any action against the lawyers concerned.
“Lawyers are often subject to bogus charges in Turkey to curb their work, including in defence of human rights, and the exercise of their freedom of expression,” added Roisin Pillay.
The ICJ stressed that lawyers should never be subject to arrest for the legitimate exercise or defence of human rights or for the exercise of their professional functions. In the event that any of the lawyers arrested on 20 November are subject to charges for cognizable crimes consistent with Turkish and international law, they must be brought promptly before a court to further consider whether specific grounds exist to justify their continued detention. If charged, they must be ensured the right of fair trial by an independent and impartial court.
Background
It is understood from documents shared by unofficial sources that lawyers’ houses in Diyarbakır have been raided as a part of an ongoing investigation conducted against the Democratic Society Congress (“DSC”). DSC was established in 2007 and continued its work at the premises of Diyarbakır municipality in between 2011-2014. Its members included deputies, mayors, and councillors. The Speaker of the Parliament of the time, officially invited the DSC to the meetings of the Constitutional Reconciliation Commission in 2012. However, following the state of emergency declared in July 2016 a criminal investigation against the DSC was initiated. In 2018, the building of the DSC was raided under this investigation and information about the Congress was gathered during that operation. It is understood that the arrests were made based on information obtained in that search. In the search warrant issued by the public prosecutor today, security forces were asked to look for “organisational documents” such as books, journals, articles, newspapers etc. as evidence. From this warrant, it is clear that the operation conducted against lawyers are not related to acts of violence.
The detained lawyers and human rights defenders are: Lawyers Association for Freedom co-chair Av. Bünyamin Şeker, İHD Adıyaman branch head av. Bülent Temel, ÖHD and İHD member lawyers Abdulkadir Güleç, Eshat Aktaç, Serdar Talay, İmran Gökdere, Diyar Çetedir, Serdar Özer, Feride Laçin, Gamze Yalçın, Gevriye Atlı, Resul Tamur, Cemile Turhallı Balsak, Ahmet Kalpak, Devrim Barış Baran, Neşet Girasun, Sedat Aydın, Mahsum Batı, Şivan Cemil Özen and Haknas Sadak, former TTB Central Council Member and still Honorary Board member Dr. Şehmus Gökalp, HRFT Diyarbakır Representation Office employee, Social Service Expert Serkan Delidere, MED Prisoner and Convict Families Association of Legal and Solidarity Associations Federation (TUHAD-FED) executive Diyar Dilek Özer and federation member Leyla Ayaz, DİVES member Süleyman Okur, Bağlar Municipality Council member Panayır Çelik,
Contact:
Roisin Pillay, e: roisin.pillay(a)icj.org
Massimo Frigo, e: massimo.frigo(a)icj.org
Nov 17, 2020 | News
The ICJ today denounced the renewed threat of criminal proceedings by prosecutorial authorities against Judge Igor Tuleya on charges arising from the judge’s independent exercise of his judicial functions, as his case is appealed before a panel of the Supreme Court Disciplinary Chamber.
Judge Tuleya faces prosecution for having allowed the presence of media in a sensitive case concerning the investigations on the 2017 budget vote in the Polish House of Representatives (Sejm) that took place without the presence of the opposition.
He has been charged with ‘failing to comply with his official duties and overstepping his powers’ for having allegedly disclosed a secret of the investigation to ‘unauthorized parties’.
The accusations stem from the initiative of the judge to allow media and the public in the courtroom while issuing his ruling. Usually rulings on investigations are issued behind closed doors in Poland, but the criminal procedure code allows judges to make the hearing public “in the interest of justice”.
“Judge Tuleya’s immunity should be maintained. Actually he should not face any criminal proceedings to begin with as its decisions were in accordance with the law and the principles of transparency and public trials,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme.
“His case is a further demonstration of the relentless attacks against the independence of judges ongoing in Poland.”
The Disciplinary Chamber, in a single-judge formation, upheld Judge Tuleya’s immunity on 9 July but the prosecution appealed the ruling that will be now decided by the same Chamber before a three-judge panel, Tomasz Przelawski, Slawomis Niedzielak and Jaroslaw Sobutka.
These proceedings are the first case of implementation the draconian Act amending the Law on the Common Courts, the Law on the Supreme Court and Some Other Laws, signed into law on 4 February and widely known as the ‘Muzzle Act’, which has given competence to waive judicial immunity to the Disciplinary Chamber of the Supreme Court.
“Immunity claims against a judge should be decided only by an independent body,” Massimo Frigo added.
“As EU Court of Justice held, the Disciplinary Chamber of the Supreme Court is not independent and is open to undue influence or interference by political authorities. It should therefore not rule on this case.”
Background
On 19 November, the Court of Justice of the European Union (CJEU) delivered a ruling in the case A.K. and others (C-585/18, C-624/18, C-625/18), on a preliminary question by the Supreme Court of Poland. The preliminary question asked whether the recently established Disciplinary and Extraordinary Chambers of the Supreme Court could be considered to be independent.
The CJEU ruled that a court cannot be considered independent “where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.”
Based on this ruling, the Labour, Criminal and Civil Chambers of the Supreme Court declared that the Disciplinary and Extraordinary Chambers of the Supreme Court were not properly constituted and independent.
According to the UN Basic Principles on the Independence of the Judiciary, judges are entitled to a fair hearing in all disciplinary proceedings (principle 17). In order for such a hearing to be fair, the decision-maker must be independent and impartial.
International and European standards on the independence of the judiciary provide that judges should have immunity from criminal prosecution for decisions taken in connection with their judicial functions in the absence of proof of malice, and any procedure for removing immunity must itself be independent (see for instance, UN Special Rapporteur on the Independence of Judges and Lawyers, paras 65-67 and 98; Council of Europe Committee of Ministers, para 68; Consultative Council of European Judges, para 20; ICJ Practitioners Guide no 13, pp. 27-30).
On 26 February 2020, the Polish Prosecutor’s Office requested a waiver of Judge Tuleya’s immunity in order to press criminal charges which might lead to imprisonment. The waiver was rejected on 9 June 2020 by the Disciplinary Chamber of the Supreme Court appointed by the government, in a single-judge formation. The Prosecutor’s Office appealed the ruling. The case will be now considered by the same Disciplinary Chamber in a three-judge formation. A first hearing was scheduled for 5 October 2020 but was postponed. It will take place on 18 November.
In an open letter of 5 February 2020, 44 ICJ Commissioners and Honorary Members denounced the recent legislative changes adopted by the Polish government threatening the role and the rights of judges and denouncing the risks faced by legal practitioners when fighting for the rule of law. Two weeks later, the risks highlighted by the letter have become reality for an increasing number of Polish judges, including Judge Tuleya.
Contact:
Massimo Frigo, Senior Legal Adviser, Europe and Central Asia Programme, e: massimo.frigo(a)icj.org, t: +41 797499949
Nov 16, 2020 | Advocacy
On 15 October 2020, Polish lawyer Roman Giertych was detained by the Central Anticorruption Bureau (CBA) on accusations of money laundering. His house and office were searched and prosecutors imposed preventive measures, including suspension of his right to practice law.
Lawyers for Lawyers, the ICJ and the Amsterdam Bar Association are concerned that the manner in which these measures were taken is inconsistent with international standards on the independence of the legal profession.
Roman Giertych has worked on a series of high-profile cases against the governing Law and Justice party. He has also represented various prominent opposition figures, including Donald Tusk, the former Polish prime minister and head of the Civic Platform opposition party, and former president of the European Council.
Mr. Giertych’s arrest happened one day before the scheduled detention hearing in another politically significant high-profile case, concerning Leszek Czarnecki, in which Roman Giertych was appointed as defence counsel.
According to the information available to Lawyers for Lawyers (L4L), the ICJ and the Amsterdam Bar Association, Mr. Giertych was arrested merely to serve him with charges. He was not given a chance to appear voluntarily.
On 22 October 2020, Mr Giertych’s defense lawyers filed four complaints with the court about the actions of the Poznań prosecutor’s office relating to his arrest and the search of his home and office.
Professional lawyers’ associations such as the National Council of Attorneys-at Law, the Association of Attorneys-At-Law “Defensor Iurius”, the Polish Bar Council and the Council of the Warsaw Bar Association of Advocates have expressed “great concern” about Mr. Giertych’s detention, the search of his house and office, and the preventive measures that were taken against Mr. Giertych.
Lawyers for Lawyers, the ICJ and the Amsterdam Bar Association are concerned about the circumstances of Mr. Giertych’s arrest, in particular the fact that the arrest seems to have only been made in order to present him with charges.
L4L, ICJ and the Amsterdam Bar Association are also concerned by the fact that the searches of his house and office were conducted without proper safeguards of attorney-client privilege and by the suspension of Mr. Giertych’s right to practice his legal profession by a public prosecutor. We will continue to monitor the case of Mr. Giertych closely.
Download
Poland-Roman Giertych-Advocacy-2020-ENG (full statement with additional information, in PDF)
