Oct 28, 2020 | News
On Friday, 30 October 2020, the Military Court of Suriname (“Krijgsraad”) is expected to resume the appeal process against Suriname’s former president Desi Bouterse. The ICJ will maintain its longstanding monitoring of this trial, which began in 2012.
As of 2020, the trial monitoring exercise will be led by Godfrey Smith SC who is a Senior Counsel, former Attorney General of Belize, and a former High Court judge and acting Justice of Appeal of the Eastern Caribbean Supreme Court.
The Court has announced that the general public will not be permitted to attend the hearing due to the COVID-19 measures.
While Suriname has a general obligation to ensure that trials are public, some restriction on public attendance of a trial maybe appropriate and even necessary to protect public health.
However, the authorities retain a duty to make accommodation for public access to the proceedings, for example by making the proceedings available through video transmission. In this respect, it is critical that efforts be made to ensure transparency, both in the process and in the outcome of the hearing.
Background to the 2020 Hearing
Desi Bouterse was sentenced on 29 November 2019 to 20 years in prison while he was still president of the country. He was found guilty of planning and ordering the murder of 15 political prisoners on 8 December 1982 at the military barracks of Fort Zeelandia. No arrest warrant has ever been issued in relation to either the charge, the conviction or the sentence.
The appeals process started on 22 January 2020. However, after one of the judges fell ill, the case was postponed to 31 March 2020. The merits of the case have not yet been heard.
As with many pending matters in Suriname, the trial was postponed several times due to the COVID-19 pandemic.
The ICJ maintains that the judicial process should run its course with due impartiality, independence and fairness to all parties concerned, and insists that the principles of the rule of law be respected by all.
The ICJ reminds the authorities of the State’s obligation to ensure a fair trial by a competent, independent, and impartial tribunal as guaranteed under article 14 of the International Covenant on Civil and Political Rights, to which Suriname is a party. It also recalls the obligation to ensure accountability for gross human rights violations, including the extrajudicial killings of which Desi Bouterse is accused.
Contact:
Godfrey Smith SC, ICJ monitor of the trial of former President Bouterse, t: 501-610-3114, e: godfrey(a)byronsmithlaw.com
Oct 27, 2020 | Advocacy, Cases, Legal submissions
The ICJ and Amnesty International have presented today a third party intervention before the European Court of Human Rights in the case of the premature dismissal of Judge Waldemar Zurek from his position in the National Judicial Council.
In the case Zurek v. Poland, the ICJ and Amnesty International presented submissions on the scope of application of the right to a fair trial under Article 6.1 of the European Convention on Human Rights (ECHR) in cases relating to the role of an independent judiciary and its members through self-governance mechanisms (such as the National Council of the Judiciary) in light of international standards on judicial councils, judicial appointments, the judicial career and security of tenure; of the Court’s Convention jurisprudence; and of general principles on the rule of law and the role and independence of the judiciary.
They further submitted obervations on the scope of the right to freedom of expression under Article 10 ECHR as applied to judges, including those engaged in the administration of the judiciary.
ECtHR-AmicusBrief-Zurek_v_Poland-Advocacy-Legal-Submission-2020-ENG (download the third party intervention)
Oct 27, 2020 | Events, News
On 2-3 December 2020, the ICJ will convene the 11th annual Geneva Forum of Judges & Lawyers, on the Role of Indigenous and other Traditional or Customary Justice Systems in Access to Justice, the Rule of Law and Human Rights.
The Geneva Forum of Judges and Lawyers is an annual global meeting of senior judges, lawyers, prosecutors and other legal and United Nations experts, convened by the International Commission of Jurists (ICJ) through its Geneva-based Centre for the Independence of Judges and Lawyers.
The 8th Forum, in 2017, the 9th Forum in 2018 in Bangkok, and the 10th Forum in 2020 in Nairobi, considered the role of indigenous and other traditional or customary justice systems at the global level, as well as in the particular regional contexts of Asia and Africa.
Interim findings and recommendations were set out in the reports from the 8th, 9th and 10th Fora. The September 2019 report of the UN Special Rapporteur on the rights of indigenous peoples following her participation in the 9th Forum addressed indigenous justice..
As a reference for the Forum discussions and to assist the broader range of stakeholders, the ICJ published, and has subsequently updated, a Compilation of International Sources on Indigenous and other Traditional or Customary Justice Systems, including relevant provisions of global and regional treaties, UN and other inter-governmental declarations, and the jurisprudence and recommendations of expert Committees and Special Procedures established by treaties and the UN Human Rights Council.
The culmination of the Geneva Forum process on indigenous and other traditional or customary justice systems will be the 11th Geneva Forum on 2 and 3 December 2020, followed by publication by ICJ of a final set of global recommendations.
Due to the COVID-19 pandemic, the 11th Geneva Forum will be convened online, with participants from around the world.
Participation in the Forum is by invitation only and the Forum discussions will not be broadcast.
The concept note for the Forum may be downloaded here (PDF): GF2020 Concept Note 27-10-2020
The programme for the Forum may be downloaded here (PDF): GF2020 Programme 21-10-2020
The list of participants (subject to final confirmation) can be downloaded here (PDF): Public list of Participants_2020 ICJ Geneva Forum
For more information contact matt.pollard(a)icj.org.
The 2020 Geneva Forum of Judges & Lawyers is made possible by the support of the Republic and Canton of Geneva, Switzerland.
Photo: Traditional leaders preside over a case in B-Court, Nyang Payam, Torit County, South Sudan. Photo Credit: UNDP South Sudan2016Angelique Reid ©2016 United Nations
Oct 27, 2020 | News
The ICJ today condemned the adoption of amendments to the Sri Lankan Constitution, which serve to expand the powers of the President, while encroaching on the powers of the parliament and courts.
The 20th Amendment to the Constitution was passed into law on 22 October, with 156 of the 225 parliamentarians voting in favour of the amendment, after a mere two-day debate, overruling the Opposition’s request for at least four days of deliberation.
The ICJ noted that the Amendment undoes most of the reforms brought about by the 19th Amendment adopted only in 2015. Critically, it introduces judicial appointment procedures which are incompatible with principles of the justice by reintroducing the Parliamentary Council, consisting only of political actors.
That body serves to merely advise the President, regarding appointments to the judiciary and other key public institutions.
The 20th amendment gives the President sole and unfettered discretion to appoint all judges of the superior courts. Under international standards, appointments to the judiciary should not be vested solely with the executive.
Given the gravity of the constitutional changes, the ICJ expressed regret that the Government had suspended Standing Order 50 (2), which requires every bill to be referred to the relevant Sectoral Oversight Committee for consideration prior to being debated in parliament.
“It is appalling that Constitutional amendments with such far reaching consequences on the constitutional governance of the country were rushed through in such haste, especially at a time Sri Lanka battles with its largest COVID-19 outbreak to date,” said Ian Seiderman, ICJ’s Legal and Policy Director.
The ICJ welcomes the alteration made to some of the problematic provisions of the 20th Amendment Bill during Committee Stage, particularly in relation to presidential immunity and the time period within which the president can dissolve Parliament.
The ICJ nonetheless is particularly concerned with the decision of the Minister of Justice to introduce entirely new provisions at Committee Stage, particularly in relation to the increase of the number superior court judges. The Supreme Court Bench will be increased from 11 to 17 and Court of Appeal from 12 to 20. These substantive amendments were not part of the gazetted 20th Amendment bill, the provisions of which were challenged before the Supreme Court by as many as 39 petitioners.
“While an increased number of judges may reduce court delays and expedite the judicial process, introducing substantive amendments such as this at Committee Stage is problematic at multiple levels,” Seiderman added.
“Sneaking in substantial changes at the last stage of the legislative process where there is no opportunity for public comment or judicial review is not consistent with democratic processes under the rule of law.”
Oct 21, 2020 | News
The ICJ condemned the dismissal of eight judges and three prosecutors by Turkey’s Council of Judges and Prosecutors (CJP) on 14 October 2020, for alleged membership of or connections with the Gülenist movement as a violation their right to a fair trial.
The ICJ calls on the CJP to revoke its order. In case any further is to be taken, the cases should be re-examined under the ordinary dismissal procedures. The ICJ also urges the Turkish Government and Parliament to modify the constitutional rules on the CJP to ensure its full independence.
“This decision not only affects the rights of the judges and prosecutors at stake, but also the Turkish population as whole, which damages the functioning of a fair and independent justice system bound by the rule of law,” said Massimo Frigo, Senior Legal Adviser with the ICJ Europe and Central Asia Programme.
The decision by the Council of Judges and Prosecutors (CJP) is particularly problematic because it was not accompanied by any reasoning on the individual situation of each judge and prosecutor.
International law provides that judges may be dismissed only through a fair hearing before an independent authority. The lack of individual reasoning in dismissal decisions strikes at the heart of the right to a fair hearing.
As the ICJ demonstrated in the 2018 report Justice Suspended, within the current constitutional framework, the Council of Judges and Prosecutors (CJP) is itself not provided with the guarantees necessary to ensure its institutional independence.
Despite the state of emergency having been lifted since July 2018, extraordinary powers given to the Council of Judges and Prosecutors to dismiss judges and prosecutors during the State of Emergency still apply, having been extended for three years by Law no. 7145.
“It is unacceptable in a State governed by the rule of law that judges and prosecutors – whatever charges may be against them – be dismissed without a fair procedure, in disregard of international law,” added Massimo Frigo.
Background
On 14 October the Council of Judges and Prosecutors made use of special powers to dismiss judges and prosecutors without complying with the ordinary procedure, invoking extraordinary powers enacted by Law No 7145 of 31.07.2018. The decision was issued in the Official Gazette on 30 October 2020. This legislation inserted into ordinary law several powers that had previously applied under the state of emergency legislation. More than 30 judges have so far been dismissed under this procedure since the end of the state of emergency.
One of the amendments made by Law No 7145 of 31.07.2018 was to the Decree Law No 375 dated 1989. A Temporary Article (Article 35) was added to the Decree. On the basis of this article, the General Assembly of the Constitutional Court, the Presidency Councils of Court of Appeal, the Council of State, the General Assembly of the Council of Judges and Prosecutors, a Commission set up by the Ministry of National Security, and the Presidency of the Court of Audit, were each authorized to take dismissal decisions for public officials/judges and prosecutors under their mandate for three years from the date of the endorsement of the law No 7145
The decision to dismiss the nine judges and two prosecutors was made on 14 October 2020 and published in the Official Gazette on 20 October 2020. After recalling Law no 7145 that enables the dismissal of judges and prosecutors by the Board, the decision states that all defendants have asked to submit their written defences. The decision also indicates that this is not a criminal conviction. The decision is based on complaints received and refers to investigations on their social environment, criminal investigations and prosecutors conducted by judicial authorities in general on the Gülenist organisation/FETÖ, minutes of hearings, contents of the communication app Bylock, statements by witnesses and suspects. However, the decision does not include any reasoning relating to the individual situation of each judge or prosecutor.
International law and standards provide that disciplinary proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.
The UN Basic Principles on the independence of the judiciary set out international standards for discipline, suspension and removal of judges, including in order to ensure impartiality and independence of courts and tribunals as required by international law, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The Basic Principles state that a “charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.”
The Consultative Council of European Judges (CCJE) adds that “a Head of State, Minister of Justice or any other representative of political authorities cannot take part in the disciplinary body.”
Contact
Massimo Frigo, ICJ Senior Legal Adviser for the Europe and Central Asia Programme, t: +41 22 979 3805, e: massimo.frigo(a)icj.org
