Jan 13, 2014
The ICJ today asserted that the draft Constitution to be voted on in a referendum on Tuesday and Wednesday is highly flawed and should be modified if it is to serve as a suitable basis for upholding the rule of law in a democratic Egypt.
The referendum campaign has taken place within a context of fear, intimidation, and repression, calling into question the fairness of the entire process, the ICJ says.
The deficiencies are manifested in the content of a number of the draft Constitution’s provisions and the procedure under which the draft was elaborated, which are incompatible with rule of law principles and international human rights standards, the Geneva-based organization adds.
If the draft Constitution is to be approved, the next elected House of Representatives should remedy these deficiencies by amending the Constitution and initiating legal and policy reforms in line with international standards.
In a position paper published today, the ICJ details how the process of adopting a new Constitution in Egypt contravenes basic principles of inclusive participation, representation, and transparency.
It says the manner of selection and the criteria upon which the members of the expert committee and the committee of 50 were chosen lacked any semblance of democratic legitimacy and representation.
The ICJ is also concerned that the draft Constitution resulting from this procedure reproduces most of the provisions and omissions of Egypt’s past Constitutions, and therefore does not serve as an appropriate foundation on which the rule of law can be established.
The draft Constitution would continue to shield the armed forces from accountability and civilian oversight, would not limit the jurisdiction of military courts to try civilians, provides few guarantees for judicial independence, and would subject various rights and freedoms to “the regulations of the law.”
The ICJ is concerned that such “regulations” might have the potential to erode the very essence of these rights.
For example, while Article 73 of the draft Constitution guarantees the right to freedom of assembly, Law 107 of year 2013 gives the authorities wide powers to ban public meetings and peaceful demonstrations if deemed a “threat to public order”.
The law also empowers the security services to forcibly disperse peaceful protests, including by using lethal force even when it is not strictly necessary to protect lives.
“The current constitution-making process resembles the muddled and highly flawed processes of 2011 and 2012 and is yet another missed opportunity to break with the practices of the past,” said Said Benarbia, Director of ICJ’s Middle East & North Africa Programme. “The Egyptian authorities should undertake a legitimate and participatory process to amend the draft Constitution to ensure its full compliance with international standards, including those guaranteeing independence of the judiciary, ensuring the accountability of the armed forces and their subordination to legitimate civilian authorities, and recognizing universally accepted human rights.”
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: + 41 22 979 38 17, e-mail: said.benarbia(a)icj.org
Egypt-PolicyPaper new Constitution-advocacy-2014 (download position paper in pdf)
Photo: Carolyn Cole/Los Angeles Times/MCT
Nov 29, 2013 | Advocacy, Non-legal submissions
The ICJ’s Director of the International Law and Protection Programmes, Alex Conte, today delivered the keynote address at the launch of the OSCE manual on Human Rights in Counter-Terrorism Investigations.
Responding to the challenges faced by some OSCE participating States in operationalizing human rights when conducting counter-terrorism investigations, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the OSCE Secretariat’s Transnational Threats Department / Strategic Police Matters Unit jointly developed a manual on Human Rights in Counter-Terrorism Investigations. The manual adopts an operational approach to different phases of counter-terrorism investigations and linking them to relevant human rights standards.
The keynote address focussed on the link between human rights protection and effective counter-terrorism practices; and on how human rights are themselves useful tools to successfully prevent and counter terrorism. It identified five law, policy and practical reasons that human rights compliance is required and/or contributes to the prevention and countering of terrorism:
- Human rights compliance while countering terrorism is an international obligation, recalling that States’ right and duty to combat terrorism is part of international and regional human rights law stemming from the duty of States to protect individuals under their jurisdiction from interference with their enjoyment of human rights, including the rights to life and security;
- Human rights compliance at the investigative stage of counter-terrorism cases means that there will be an exponentially greater chance that the precious resources dedicated to terrorist investigations will result in the admissibility of evidence;
- Human rights compliance at the investigative and pre-trial stages of counter-terrorism cases (considering the impact of prolonged detention without trial or without charge) gives rise to a greater prospect of achieving a sound conviction;
- Bringing perpetrators of terrorist acts to justice through effective (i.e. human rights-compliant) investigation and prosecution contributes to the realisation for victims of terrorism of their rights to truth and reparation; and
- Human rights compliance not only assists the short-term objectives of effective counter-terrorism investigations and prosecutions, but is also the essential basis for a sustainable, long-term approach to the countering of terrorism by avoiding further conditions conducive to the spread of terrorism.
ICJ-OSCE-ManualOnHumanRightsInCounterTerrorismInvestigations-LaunchEvent-KeynoteAddress-NonlegalSubmission-2013 (download keynote address in PDF)
OSCE_HRCT_Manual (download manual on Human Rights in Counter-Terrorism Investigations in PDF)
Nov 11, 2013
The ICJ today submitted to the UN its recommendations for a draft set of “Basic Principles and Guidelines” on the right of anyone deprived of liberty to challenge the lawfulness of his or her detention, and the right of victims of arbitrary or unlawful detention to an effective remedy.
The United Nations Working Group on Arbitrary Detention, which will meet in Geneva 13 to 22 November 2013, was requested last year by the Human Rights Council to prepare the draft “Principles and Guidelines” before the end of 2015. The ICJ submission responds to a call by the Working Group for input to the drafting process.
Among the key aspects highlighted by the ICJ submissions are:
- the elements of an effective remedy for unlawful or arbitrary deprivation of liberty;
- the requirement that anyone deprived of liberty for any reason have access to a proper court to seek release;
- the broad grounds such courts must consider in determining whether the detention is lawful;
- the requirement that the proceedings lead to a prompt decision that is actually implemented by the detaining authorities;
- the right of the detainee to have confidential access to a lawyer of his or her choosing, promptly after arrest or detention;
- the right of the detainee to be present for the proceedings;
- necessary guarantees for the fairness of such proceedings, including that the person and his or her lawyer have access to the evidence and allegations on which the detention is based;
- the right to challenge the lawfulness of detention continues to apply in situations of emergency.
UN-ICJ-WGAD68-SubmissionHabeas-advocacy-non-legal submission-2013 (full text in pdf)
Oct 29, 2013 | News
The ICJ welcomes the report of the UN Special Rapporteur on the independence of judges and lawyers presented to the UN General Assembly today.
The report calls for the adoption by the Human Rights Council of the draft principles governing the administration of justice through military tribunals, known as the ‘Decaux Principles’.
“This is a major step forward towards the establishment of universally applicable minimum standards to regulate the use and operation of military courts and tribunals”, said Alex Conte, Director of the ICJ’s International Law and Protection Programmes.
“The investigation and prosecution of alleged offences involving serious human rights violations is in many countries undertaken by military courts for the purpose of avoiding the accountability of perpetrators of such acts. It is therefore significant that the UN Special Rapporteur has reaffirmed that the jurisdiction of ordinary courts should prevail in such cases,” he added.
“It is also important that the Special Rapporteur has reiterated the recommendation of many human rights experts that the trial of civilians in military courts should in principle not occur and should be limited to strictly exceptional cases,” Conte further said.
The ICJ closely followed and contributed to the development of the Decaux Principles and has repeatedly called for their adoption and implementation by all States.
These principles were elaborated in 2006 in consultation with human rights experts, jurists and military personnel from throughout the world, and include specific provisions relating to the establishment and functioning of military tribunals.
They are based on the principle that military justice should be an integral part of the normal judicial system and should operate in a way that guarantees full compliance with human rights, including the need to ensure accountability for perpetrators of human rights violations.
Contact:
Alex Conte, ICJ International Law and Protection Programmes Director (Geneva), t: +41 79 957 2733; email: alex.conte(a)icj.org
Oct 21, 2013 | News
The ICJ welcomes today’s ruling by the Grand Chamber of the European Court of Human Rights in the case of Inés Del Rio Prada, affirming that changes made retroactively to the remission of her sentence violated her rights.
The ICJ, which intervened as third-party in the case, says the judgment reinforces and makes effective the principle of non-retroactivity of criminal law, an essential element of the rule of law.
“This is a highly significant judgment that affirms and strengthens the rule of law in criminal sentencing,” said Róisín Pillay, Director of the ICJ Europe Programme. “Rules and practices that have a significant impact on the calculation and remission of sentences must not be applied retroactively to the detriment of a convicted person.”
“The key principle that the Grand Chamber has upheld today is that the rules that apply to the calculation of the sentence to be served, must be clear and foreseeable under the law at the time of conviction. Subsequent re-interpretation by the courts cannot fundamentally revise the principles that apply to a sentence already handed down. While States have the responsibility for setting sentencing rules for crimes, any changes to those rules which would result in an increased penalty must not applied retroactively in breach of (Article 7 of) the European Convention on Human Rights,” she added.
BACKGROUND:
Inés Del Rio Prada had been convicted of terrorism offences and sentenced to a total of over 3,000 years of imprisonment.
According to Spanish sentencing rules in force at the time, this theoretical sentence was tantamount to an effective sentence of 30 years imprisonment.
While at that time, the benefit of sentence reduction for work performed in prison was applied to the 30-year period, in 2008 the Spanish courts decided to deduct such benefits from the 3,000 years of nominal imprisonment instead, thereby significantly reducing their impact, and leading to a considerably longer sentence in the case of the applicant.
In its judgment, the Grand Chamber held that the application of changes to Spanish sentencing rules as applied to applicant Inés Del Rio Prada had violated the prohibition on retroactive penalties guaranteed in Article 7 of the European Convention on Human Rights.
It held that a 2006 decision of the Spanish Supreme Court, which altered the system of calculation of maximum terms of sentences, leading to reduced remission of sentences for work done in prison, constituted a retroactive redefinition of the sentence previously imposed, which could not have been foreseen.
As such, the Court held that Spain had violated its obligations under article 7 of the European Convention on Human Rights (ECHR).
The Court also found that the applicant’s continued detention violated the right to liberty under Article 5(1) ECHR, and required her release at the earliest possible date.
Contact:
Róisín Pillay, Director, ICJ Europe Programme, t +32 2 734 8446; e-mail : roísín.pillay(a)icj.org
Read also:
Third Party Intervention in Del Rio Prada v. Spain
