Jun 20, 2021 | News
On 19-20 June, the ICJ, in partnership with the Tunisian Association of Judges (AMT), organised a workshop on ‘Legal reasoning and judgment drafting in the cases before the Specialized Criminal Chambers (SCC)’ in Tunis, Tunisia.
Twenty-five SCC judges and prosecutors from across the country participated in the two-day workshop.
Said Benarbia, ICJ’s Middle East and North Africa Programme Director; Anas Hmedi, AMT’s President; and Martine Comte and Philippe Texier, ICJ Commissioners, were the main speakers.
On the first day, speakers and participants focused on legal reasoning and interpretation challenges before the SCC.
ICJ Commissioner Philippe Texier spoke about the principles of legality and non-retroactivity, res judicata and the non-applicability of statutes of limitations, which are all recognised under Tunisian law.
Texier underlined that, when properly understood and applied, both the principle of non-retroactivity of the criminal law and the non-applicability of statutes of limitations would not necessarily be a bar to the prosecution of crimes and gross human rights violations within the jurisdiction of the SCC, since international law, including customary international law, already proscribed them at the time of their commission.
Said Benarbia stressed the importance of applying international law and standards, especially with regard to international crimes that Tunisian domestic penal law does not proscribe yet, such as the crime under international law of enforced disappearance. With respect to the hierarchy of norms, he underscored that the Tunisian Constitution clearly recognises that international law and treaties are superior to national law.
As a result, SCC judges are required to have regard to and apply relevant international law and treaties ratified by Tunisia in adjudicating the cases before them. Judges have the power and the responsibility to interpret Tunisian law in light of international law, including, whenever necessary, by filling certain gaps in domestic legislation.
ICJ Commissioner Martine Comte then spoke about the attribution of individual criminal responsibility and modes of liability, procedural guarantees and the rights of victims and the accused, as well as reparations and guarantees of non-repetition. She emphasised that, under the 2013 Tunisian law on Transitional Justice, guarantees of non-repetition are a constitutive and fundamental element of the transitional justice process.
Comte also explained that the doctrine of command responsibility is a well-recognised general principle of international law, established and applied in many jurisdictions, and therefore to be applied, as relevant, in cases before the SCC.
Comte underlined the importance of enforcing and monitoring the respect of procedural guarantees and the rights of both the victims and the accused, including the right to the presumption of innocence, the principle of equality of arms and the right to adversarial proceedings.
She added that the first reparation of all is the establishment of the truth and of the facts of each case, which, in turn, aims to restore the dignity of victims and their families by recognizing the harm they suffered.
Finally, Comte and the other speakers talked about conviction and sentencing and the challenges faced by SCC judges when the sentence is not defined in nor international law nor Tunisian law.
On the second day, expert speakers and participants discussed judgment drafting in cases before the SCC. They discussed how SCC judges, while addressing the challenges related to the complexity of the cases at hand, can ensure organized, clear, and effective judgment drafting, including through the establishment of a coherent judgment outline; and by providing a clear analysis of factual issues and how they should be resolved.
Texier stressed that the SCC are not exceptional in their nature: they are composed of ordinary judges and have to adhere to the standards of fair trial. SCC judgments differ from ordinary judgments in that they carry a historic significance, by establishing a negated truth and contributing to the duty of remembrance, both of which are crucial elements of the transitional justice process.
Said Benarbia spoke of one of the main challenges facing the work of the SCC, namely, the voluntary absence of the accused who do not appear before court despite being summoned. Drawing on examples from other transitional justice contexts, he concluded that in this respect Tunisia is an exception, as the transitional justice process is typically accompanied by a political will that ensures the presence of the accused.
Benarbia also stressed the importance of the presence of the accused before the Court as one of the fundamental guarantees of the right to a fair trial.
Comte underscored the need to comply with the law regarding the admissibility of evidence (e.g., ensuring that a confession has not been obtained by torture or other cruel, inhuman or degrading treatment or by any other coercive means).
She then addressed the need for the judgment to provide a thorough analysis of the admissible evidence presented at trial on which the ultimate decision is rendered in light of the applicable law and stated that, under Tunisian law, the judges’ decision must be based on firm conviction, beyond any reasonable doubt.
Finally, Benarbia presented an outline for judges to rely upon when drafting the first SCC judgments, based on several judgments rendered by international tribunals. He underscored that such a structured and comprehensive outline would help judges in drafting coherent and exhaustive judgements.
Contact:
Said Benarbia, Director of the ICJ’s Middle East and North Africa programme, email: said.benarbia@icj.org phone number: +41 79 878 35 46
Asser Khattab, Research and Communications Officer at the ICJ’s Middle East and North Africa programme, email: Asser.khattab(a)icj.org
Jun 16, 2021 | News
The International Commission of Jurists (ICJ) called today on Turkish authorities to immediately drop charges of ‘propaganda for terrorism’ against Cihan Aydın, a lawyer and former President of the Diyarbakır Bar Association.
Cihan Aydın learned that he was the subject of a criminal investigation on May 26, apparently based on a statement of the Women Rights Centre of the Diyarbakir Bar Association in 2019 calling for an end to Turkish military action in Syria and calling for diplomatic resolution of the conflict.
Aydın, the President of Diyarbakır Bar Association until April 2021, is known for his human rights litigation and advocacy before domestic courts as well as the European Court of Human Rights including in high-profile and sensitive cases.
The charges amount to an unjustified interference with freedom of expression, the ICJ said.
“This criminal investigation is yet another case of the misuse of criminal proceedings to attack lawyers and human rights defenders in Turkey,” said Roisin Pillay, ICJ’s Europe and Central Asia Director. “The charge against Cihan Aydin of propaganda for terrorism, based on a call for peace by an institution within the Bar Association, is clearly arbitrary, in violation of freedom of political expression, and should be dropped. The criminal law should never be applied to suppress a call on the government to pursue a peaceful solution to conflict.”
Turkey has obligations under international human rights law, including under Article 10 of the European Convention on Human Rights (ECHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR) to uphold freedom of expression, which can only be restricted to the extent strictly necessary and proportionate to a legitimate aim. Speech on matters of public interest, including political debate or criticism of government policy, must be particularly protected. Moreover, under Article 20 of the ICCPR, states have a duty to protect against war propaganda, and that duty is likely to be undermined if a state seeks to prohibit and punish views that may be critical of war.
Background
On 26 May 2021, Aydin was requested to give his statement about the accusation of “propaganda for terrorism”.
This prosecution follows other investigations against the Diyabakir Bar Association: following a statement about the statement on Armenian Genocide and a statement denouncing the Head of Religious Affairs Directorate for his comments about LGBTI.
The ICJ has extensively documented government persecution of lawyers in Turkey as well as improper restrictions on freedom of expression:
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.
