May 26, 2021 | News
Prosecutors must perform an active role in proceedings before Tunisia’s Specialized Criminal Chambers (SCC), including by prosecuting the cases referred by the Truth and Dignity Commission (IVD) without indictment, and by ensuring the effective and timely execution of court decisions, such as judicial summons and other orders to compel the presence of the accused in court, the ICJ said today.
هذا البيان الصحفي متوفر باللغة العربية أيضاً
To date, prosecutors have automatically transferred around 200 cases, to the SCC pursuant to the Law on Transitional Justice. Beyond this, however, they have played little or no part in the conduct of trials thus far.
“Prosecutors are abdicating their primary responsibility to uphold the rule of law and the rights of victims, and, in so doing, they are contributing to perpetuate decades of impunity in Tunisia,” said Said Benarbia, ICJ MENA Director.
Accused are absent in most of the SCC trials. Measures ordered by the courts to compel their presence have remained mere ink on paper.
“The systematic absence of the accused defeats the very purpose of setting up the SCC as transitional justice mechanisms, including their role in establishing the truth about past abuses, and in granting victims their long overdue day in court,” added Benarbia.
Tunisian prosecutors and law enforcement officers acting under their authority must ensure that court summons and related orders be implemented in a timely manner.
Prosecutors should also ensure that effective investigations be conducted, evidence collected, and prosecutions instituted, when warranted, in those cases that the IVD referred to the SCC without indictment.
“The automatic transfer of cases to the SCC does not absolve prosecutors from their obligations under Tunisian and international law, including in respect of their duties as public interest representatives,” Benarbia added. “It’s high time for the prosecutorial authorities to live up to these obligations and uphold the rights of victims to truth, justice and effective remedies.”
Background information
The Specialized Criminal Chambers were established in 2014 to adjudicate cases involving alleged “gross human rights violations” perpetrated between 1955 and 2013 and referred by the Truth and Dignity Commission (Instance Verité et Dignité, IVD) to the SCC.
The 2013 Transitional Justice Law empowered the IVD to investigate crimes, collect evidence and refer cases to the SCC for prosecution.
At the end of its mandate in December 2018, the IVD’s referred to the SCC 200 cases of arbitrary deprivations of life, arbitrary deprivations of liberty, torture and other ill-treatment, enforced disappearance, rape and sexual assault and crimes against humanity committed by the past regime.
For more information see the ICJ Practical Guide Series on Accountability Through the Specialized Criminal Chambersand findings on the role of international law and standards in proceedings before the SCC (Practical Guide 1), the investigation and prosecution of gross human rights violations under Tunisian and international law (Practical Guide 2), and the application of principles and best practices on evidence in the administration of justice before the SCC (Practical Guide 3).
Download this press release in PDF form here.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
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
May 20, 2021
The ICJ has published a briefing paper on decrees of the President of Ukraine on removal of judges of the Constitutional Court. These decrees are assessed in terms of their compliance with international law and standards and the national law of Ukraine.
Based on an analysis of international law and standards on the independence of the judiciary as well as national law, the ICJ concluded that the decrees of the President of Ukraine in respect of the judges of the Constitutional Court of Ukraine (CCU) fail to comply with international law and standards on the independence of the judiciary as well as Ukraine’s own national legal framework.
In particular, a series of measures including the legislative initiative of the President to dismiss the CCU judges, presidential decrees to withdraw appointment of the CCU judges, followed by a criminal investigation against the CCU president, appear to be linked to a CCU judgment with which the government disagreed. If this is the case, it would amount to retaliation against the CCU and individual judges of the CCU as a result of the legitimate exercise of their judicial powers within their competence. This constitutes a violation of the rule of law and the independence of the judiciary.
More precisely, an attempt to dismiss judges of the CCU, by revoking the decrees appointing them seven years after their adoption in a due manner, is not provided for by the law of Ukraine and as such constitutes an extra procedural means to dismiss a judge of the CCU. Dismissal of individual judges by Presidential decree outside the existing procedure strips judges of guarantees of security of tenure, contrary to international law and standards on the independence of the judiciary.
The ICJ stressed that the well-established principles of separation of powers and the independence of the judiciary require that there must be no interference by the executive in the exercise of the judicial functions by the judiciary. This includes disguised means of dismissals of judges duly appointed in accordance with the established procedure.
The ICJ recommended that the State authorities of Ukraine take all legal actions to respect and ensure judicial independence in Ukraine, in particular, by providing effective remedies and reparation to the judges of the CCU concerned in line with the principle restitutio in integrum as recognised in international law, including by revoking their removal and restoring them to their terms of office.
Read full briefing paper here: Ukraine Const Court-ICJ_legal brief_final_eng
May 5, 2021 | News
The ICJ today condemned the dismissal of all five of the justices serving in El Salvador’s Supreme Court Constitutional Chamber by the country’s newly elected Legislative Assembly, backed by El Salvador’s President Nayib Bukele.
The dismissal on 2 May was justified on vague allegations of arbitrariness and dereliction of functions particularly relating to judicial decisions taken striking down government action related to the COVID-19 Pandemic. The Legislative Assembly also dismissed El Salvador’s Attorney General.
The ICJ stressed that the dismissal violated core tenets of the independence of the judiciary, by which judges are subject to dismissal only “for reasons of incapacity or behaviour that renders them unfit to discharge their duties.” (United Nations Basic Principles on the Independence of the Judiciary). Any decision must also be subject to a fair hearing of individual judges, with full due process guarantees.
The dismissal process was carried out without any individualized hearings, and without a clear expression of a legitimate basis for the dismissal.
The ICJ is concerned that this summary dismissal will undermine the independence of the judiciary, including by intimidating other judicial authorities in the country.
The dismissal of judges and the Attorney General was followed by the immediate appointment and swearing in office of other judges in replacement. This decision violates the procedural rules of selection and appointment, which are essential to safeguard the independence and impartiality of the judges serving in the Constitutional Chamber.
The decision to dismiss the judges was taken by a qualified majority of legislators, shortly after the new legislative assembly started its functions, in a swift procedure that lasted just a few hours.
The ICJ urges the government of El Salvador to restore respect to fundamental rule of law principles to prevent the arbitrary use of power and impunity.
The country is particularly vulnerable to impunity for human rights violations, where an independent judiciary is not in place to assess the lawfulness of government actions.
The ICJ calls on the responsible authorities of the Inter-American Commission for human rights and the United Nations human rights system to address the situation as a matter of priority.
May 4, 2021 | News
The removal of Lebanese public prosecutor Ghada Aoun from financial cases she had been overseeing constitutes a further attack on the independence of an already enfeebled judiciary, the International Commission of Jurists said today.
On 15 April 2021, Lebanon’s General Prosecutor removed Ghada Aoun, Mount Lebanon Public Prosecutor, from the financial cases she had been overseeing, including high-profile corruption and illegitimate gains cases. Aoun had charged Riad Salameh, the Governor of Lebanon’s Central Bank, with dereliction of duty and breach of trust, and had charged former Prime Minister Najib Mikati with illegitimate gains. She had also been overseeing and issuing arrest warrants in other high-profile cases.
“The Lebanese judiciary has a long history of utter subordination to the ruling political class in Lebanon,” said Said Benarbia, the Director of the ICJ MENA Programme.
“Removing prosecutors and investigating judges from cases solely because they carry out their legitimate functions flies in the face of the independence of the judiciary and sends a chilling message to others who might dare challenging the authorities.”
Aoun’s ouster followed the removal of investigative judge Fadi Sawan from the 2020 Beirut port blast case. Sawan was removed on 18 February 2021 by the Court of Cassation after bringing criminal negligence charges against the acting President of the Cabinet and former ministers in relation to the devastating explosion on 4 August 2020, in which nearly 200 people died and thousands more were injured. His removal by the Court of Cassation came after two former Ministers who were facing criminal charges filed a complaint against Fadi Sawan before the General Prosecutor, requesting his removal from the case.
The Lebanese authorities, including judicial authorities, should comply with their obligations under international law and ensure that judges and prosecutors be able to exercise their functions independently, free of any influences, pressures, threats or interference from any quarter or for any reason.
In August 2020, the ICJ urged the Lebanese authorities to work with the United Nations to establish a special, independent mechanism to probe the Beirut blast in line with international law and standards with a view to establishing the facts and making recommendations for appropriate accountability measures, including criminal prosecutions.
The call was informed by the ICJ publications and findings on the independence and functioning of the judiciary in Lebanon, including recommendations to ensure that the judiciary is not subject to any form of undue influence by political actors and confessional communities, and that it is able to fulfill its responsibility to uphold the rule of law and human rights.
This press release is also available in Arabic.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Asser Khattab, Research and Communications Officer, ICJ Middle East and North Africa Programme, e: asser.khattab(a)icj.org
May 3, 2021 | News
The ICJ today condemned the detention, interrogation and searches of premises of lawyer Ivan Pavlov, a prominent lawyer and head of the human rights legal group Team 29.
Pavlov was detained by Federal Security Service (FSB) agents on 30 April after a raid on his Moscow hotel suite and released later that day. According to the order to initiate criminal proceedings, Pavlov was charged with “disclosing the information of preliminary investigation” under Article 310 of the Criminal Code of the Russian Federation.
According to the charging order, Pavlov is accused of transmitting to the Vedomosti Newspaper a copy of a charging order against his client, journalist Ivan Safronov. Furthermore, Pavlov is charged with disclosing the nickname of one of the witnesses in the case.
According to the decision of the Basmanny Court on a preventive measure for Pavlov, he is prohibited from communicating with witnesses in his criminal case, except for close relatives, using the Internet and other means of communication.
“Russian authorities must stop this harassment of Ivan Pavlov and Team 29, which is almost certainly due to their representation of clients in several high profile cases,” said Roisin Pillay, ICJ’s director for Europe and Central Asia.
“These raids clearly interfere with lawyer-client privilege. The case files seized during the search should be returned to the lawyers and Pavlov should be able to continue his work in defence of all his clients free of harassment or fear of retaliation, as required by international standards,” she added.
According to the UN Basic Principles on the Role of Lawyers governments must ensure that lawyers “ … are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; […] and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics” (Principle 16). Furthermore, lawyers cannot “be identified with their clients or their clients’ causes as a result of discharging their functions” (Principle 18).
Ivan Pavlov represents clients in a number of high-profile cases, including many who have been the subject of investigation by the FSB. His clients have included the Foundation Against Corruption of the Russian opposition leader Alexey Navalny, the case of Russia’s Electric Energy Company (Inter RAO) manager Karina Tsurkan, physicist Victor Kudryavtsev, journalist Ivan Safronov and journalist Grigory Pasko.
Besides the raid on Pavlov’s hotel suite, authorities searched the office of Team 29 in St.Petersburg and the apartment of Pavlov’ wife. As a result of the searches, almost all of the case materials on Pavlov’s client Ivan Safronov were taken by law enforcement officers. These searches cannot be justified by allegations of disclosing information related to the investigation and raise concern that there may be illegitimate reasons for the criminal prosecution of the lawyer.
“While secrecy of a preliminary investigation may be a legitimate procedure, it does not afford justification for interference with the work of lawyers, including by accessing lawyers’ premises and files, and should never be misused as a means of intimidation and retaliation against lawyers”, said Roisin Pillay.
“The ICJ urges the Russian investigative authorities to cease any investigative actions which may breach the rights of the lawyer and to respect lawyer-client privilege in cases where he represents clients no matter how sensitive the cases may be perceived to be”.
Communications and documentation that lawyers maintain in respect of their professional relationship with their clients is legally protected, under international and Russian law, from seizure and disclosure pursuant to the lawyer-client privilege principle. In particular, the rights to a fair trial, and family and private life are guaranteed under the European Convention for Human Rights (articles 6 and 8 respectively) and the International Covenant on Civil and Political Rights (articles and 14 and 17 respectively).
As the European Court of Human Rights repeatedly stated “[…] persecution and harassment of members of the legal profession strikes at the very heart of the Convention system. Therefore the searching of lawyers’ premises should be subject to especially strict scrutiny. ” (Kolesnichenko v. Russia (Application no. 19856/04 para 31). This right is equally protected by Russian legislation, in particular Article 8 of the Law on Lawyers’ Activity and Advokatura in the Russian Federation, and as shown by the decision of the Constitutional Court of the Russian Federation in the Balayan and Dzhuba case (see below).
The full story with additional information can be downloaded here:
Russia-end-harassment-of-lawyer-Ivan-Pavlov-2021-ENG
