Nov 18, 2019 | News
The ICJ today called on the Hungarian authorities to desist from instigating disciplinary proceedings threatened against Judge Csaba Vasvári, a judge of the Central District Court of Pest and a member of the Hungarian National Judicial Council.
The imminent threat of disciplinary action is a consequence of a preliminary reference Judge Vasvári made to the Court of Justice of the European Union.
“Judge Vasvári faces disciplinary action as a direct result of his request for a preliminary ruling of the Court of Justice of the EU on the very question of judicial independence in Hungary. This is an extremely concerning attempt to interfere with the independence of a judge in discharging his judicial function which, if it proceeds any further, will set a dangerous precedent.” said Róisín Pillay, Director of the ICJ’s Europe and Central Asia programme.
A motion to begin disciplinary proceedings against Judge Vasvári was brought by the Acting President of the Budapest Regional Court in October, following Judge Vasvári’s request in criminal proceedings before him last July, for a preliminary ruling the Court of Justice of the EU (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU).
In the request to the CJEU, Judge Vasvári raised questions regarding compliance with the principle of judicial independence under Article 19.1 of the Treaty of the European Union (TEU), in particular the appointment procedures for court presidents, and remuneration for judges, as well as questions regarding the right to interpretation in court.
Following a decision of the Hungarian Supreme Court in September that the reference was contrary to Hungarian law since it was irrelevant to the case, disciplinary action against judge Vasvári was sought on the grounds that in making the reference, he violated the requirement to conduct himself with dignity and refrain from action which would undermine the dignity of the judiciary.
The motion for disciplinary proceedings is now expected to be considered by a panel of the Service Court, which will decide if disciplinary proceedings will commence.
“The actions of Judge Vasvári in making a preliminary reference to the CJEU were an entirely legitimate exercise of his judicial functions in accordance with EU law. It is essential that judges are able to use all appropriate judicial avenues to address and uphold the rule of law, including to protect the right to a fair trial and the independence of the judiciary” said Róisín Pillay. “It is also necessary for the proper application of EU law, that judges are able refer questions to the CJEU under Article 267 of the Treaty without undue hindrance.”
The ICJ recalls that under international standards on the independence of the judiciary, judges must decide matters before them impartially, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason (Principle 2, UN Basic Principles on the Independence of the Judiciary). Council of Europe Recommendation CM/Rec (2010) 12 of the Committee of Ministers specifies that “the interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence.”
The UN Basic Principles on the Independence of Judiciary (principle 8) also affirm that “members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.”
Nov 14, 2019 | News
On 14 November 2019, the ICJ called on the Government of Cambodia to drop apparently politically-motivated charges of treason against Kem Sokha, leader of the now-defunct Cambodia National Rescue Party (CNRP).
The ICJ also called on the government to remove restrictions on the exercise of fundamental freedoms of all individuals in Cambodia.
On 10 November, Kem Sokha was released from court-imposed conditions amounting to house arrest, following his arrest in 2017 on spurious charges of treason under article 443 of the Criminal Code. This came after Phnom Penh Municipal Court partially lifted the judicial supervision conditions to which Sokha had been subject. He remains banned from participating in political activities and from leaving Cambodia, and must respond to summons from any authority. Charges of alleged “conspiracy with a foreign power” remain active against Sokha, pursuant to which he risks being imprisoned for between 15 and 30 years.
“Although the release of Kem Sokha from house arrest is a welcome development, it is not nearly enough to show that the government is committed to ending its persecution of civil society and political rivals,” said Frederick Rawski, ICJ’s Asia Pacific Director.
The release comes just after the European Commission released a preliminary report outlining the findings of an investigation triggered in February 2019 on possible removal of tariff preferences granted to Cambodia under the ‘Everything But Arms’ (EBA) trade agreement, on the basis that the Cambodian government had failed to comply with its international obligations to respect, protect and fulfil human rights and the rule of law. A fact-finding mission completed by the Commission last year found ongoing serious, systematic violations of human rights in Cambodia, particularly of the rights of free expression, association, assembly and political participation. In February 2020, the European Commission will finalize its decision.
“The fact that the charges remain in place, and Kem Sokha’s rights to freedoms of association, expression and the right to political participation continue to be suppressed is further evidence of an overall dire human rights and rule of law environment in Cambodia,” said Rawski.
Cambodia has seen a sharp deterioration in human rights and the rule of law since before the 2018 general elections, which has seen abuse of legal and judicial processes to harass and silence members of the political opposition, civil society, and independent media.
Members of the political opposition have been targeted in recent months. In 2019 alone, Cambodian authorities have charged more than 100 members of the political opposition with offences for political reasons, and detained more than half of them. The Cambodian government has also attempted to ban the return of opposition members in exile by urging neighbouring governments to stop their movement into Cambodia, and through increased monitoring of border crossings. In October 2019, the ICJ and other organizations also called for the dropping of spurious charges against former Radio Free Asia (RFA) journalists Yeang Sothearin and Uon Chhin, who are being tried for multiple offences in connection with carrying out their journalist functions.
Background
The charges against Kem Sokha appear politically-motivated. His arrest in 2017 came just months before the CNRP – the main opposition party which he led – was dissolved, and more than 100 of its members banned from political activity following a Supreme Court judgment in November 2017. Soon after, the ruling Cambodian People’s Party won the July 2018 general elections by a landslide. The ICJ has highlighted that the “single largest problem facing the Cambodian justice system is the lack of independent and impartial judges and prosecutors”, including “an endemic system of political interference in high-profile cases and an equally entrenched system of corruption in all others”.
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, e: frederick.rawski(a)icj.org
See also
ICJ, ‘Cambodia: charges against journalists Yeang Sothearin and Uon Chhin must be dropped’, 4 October 2019
ICJ, ‘Misuse of law will do long-term damage to Cambodia’, 26 July 2018
ICJ, ‘Cambodia: weaponization of the law (UN Statement)’, 22 March 2018
ICJ, ‘Cambodia: the ICJ condemns dissolution of main opposition party’, 16 November 2017
Nov 12, 2019 | News
Today, the ICJ condemned the use of civil proceedings to harass Nakorn Chompuchart and Sira Osottham, lawyers representing labour rights researcher Andy Hall.
The ICJ called on Thailand to take measures to protect lawyers so that they can perform their duties without intimidation, harassment or improper interference.
On 12 November 2019, the Bangkok Civil Court conducted its first hearing in a tort case under the Civil and Commercial Code by a Thai fruit processing company, Natural Fruit Company Ltd. (‘the Company’), against the lawyers. The two lawyers represent Andy Hall in several criminal and civil proceedings brought against him seeking damages claimed to have resulted from his research into labour rights abuses allegedly committed by the Company. In the lawsuit against the lawyers, the Company is seeking 50 million Thai baht (approximately 1.65 million USD) as compensation for lost business.
“This legal action is part of a pattern of harassment by Natural Fruit against Andy Hall,” said Frederick Rawski, ICJ Asia Pacific Regional Director. “It is a bedrock principle of the rule of law that lawyers should not be identified with their clients or their clients causes as a result of discharging their function.”
In the complaint, Natural Fruit claims that Andy Hall and his lawyers “excessively exercise their rights”, “intentionally damage the Company’s reputation”, and “caused financial loss in their business” when they brought a case in 2017 against the Company, the Company’s lawyers, and public prosecutor for allegedly “giving false testimony” and “filing false complaint” in other criminal proceedings. The case was dismissed by the Supreme Court who was of the view that the Company exercised its right in good faith.
“This is not the first time in Thailand that lawyers have faced the unwarranted threat of criminal or civil prosecution when representing their clients,” said Rawski. “As with the criminal proceedings brought against Sirikan “June” Charoensiri for her professional activities as a lawyer, such vexatious actions set a precedent that endangers the ability of lawyers to effectively represent their clients. The government must take prompt and effective measures to ensure that the safety and independence of lawyers is guaranteed in law and in practice.”
Background
This case was also initially brought against Andy Hall, but was later withdrawn because the Court could not send court writs to Andy as he does not reside in Thailand.
Criminal and civil proceedings have brought against Andy Hall were in relation to the report of a Finnish NGO, Finnwatch, published in January 2013, called Cheap Has a High Price, which alleged that labour rights violations were taking place at Natural Fruit Company.
Thailand is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 14 of the ICCPR guarantees the right of the clients of the concerned lawyers to an effective defense.
UN Basic Principles on the Role of Lawyers also provides that “governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference” and “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.” Moreover, lawyers should not be identified with their clients or their clients causes as a result of discharging their function.
To download the statement in Thai, click here. (PDF)
Contact
Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Further reading
Thailand: verdict in Andy Hall case underscores need for defamation to be decriminalized
Thailand: amicus in criminal defamation proceedings against human rights defender Andy Hall
Nov 6, 2019 | News
The ICJ today called on the Algerian authorities to reverse the decision of the Minister of Justice to transfer 2’998 judges, and instead ensure their right to security of tenure and protect the individual and institutional independence of the judiciary in the country.
The ICJ further called on the authorities to refrain from any unlawful or disproportionate use of force against the judges who are currently on strike in a protest against the Minister’s decision.
The call comes after security forces stormed the Oran’s Court of Appeal on 3 November 2019, using force against the judges to end the strike, and amidst the growing, legitimate demands for the establishment of the rule of law and the end the executive’s control over the judiciary.
“The Algerian authorities must end their interference in judicial affairs and ensure that all decisions pertaining to the management of the career of judges, including transfers, are taken by an independent High Judicial Council on the basis of objective criteria and transparent procedures,” said Said Benarbia, Director of ICJ’s Middle East and North Africa Programme.
Under Organic Law n° 04-12 on the High Judicial Council (HJC), the President and Vice-President of the HJC are respectively the Algerian President and the Minister of Justice. For this and other reasons the ICJ considers that the HJC as currently constituted is not independent of the executive, and consequently that the judiciary as a whole is both institutionally and in practice subordinated to the executive in contravention of international standards on judicial independence and impartiality.
“Instead of attacking judges who are seeking to defend the rule of law, the most urgent priority for Algerian authorities should be the reform of the HJC to ensure its full independence,” Benarbia added.
In 2018, the Human Rights Committee expressed, in its Concluding Observations on the fourth periodic report of Algeria, its concerns over the insufficient guarantees for judicial independence and the need to strengthen the independence and the powers of the HJC.
Contact:
Said Benarbia, Director of ICJ’s Middle East and North Africa Program, t: +41 22 979 38 17 ; e: said.benarbia(a)icj.org
Algeria-Judges strike-News-2019-ARA (Arabic version, in PDF)
Nov 5, 2019 | News
The ICJ today condemned the physical assault and acts of threats and intimidation taken against its Commissioner Gamal Eid, a prominent Egyptian lawyer and human rights defender.
The ICJ called on the Egyptian authorities to investigate the attacks and bring those responsible to justice. They should also take effective measures to ensure that Gamal Eid and other lawyers and human rights lawyers are protected.
Amidst the ongoing crackdown on human rights defenders and the arrest of more 4,000 individuals since recent anti-corruption protests began, Gamal Eid has been subjected to a sustained campaign of intimidation and harassment.
Two armed men in civilian clothes physically assaulted him on October 10, stole his cellphone and tried to seize his laptop. The assault resulted in injuries to his arm and leg and several cracks in his ribs.
Prior to this assault, Eid’s car was stolen on 30 September and he has repeatedly received anonymous phone calls and messages ordering him to “stop and behave.”
The ICJ believes these attacks to be related to Eid’s work as a lawyer and to his human rights activities, and are part of a pattern by the Egyptian military and government to silence people suspected of opposing them, including those documenting and reporting on the ongoing crackdown on human rights and fundamental freedoms.
“Instead of resorting to cynical, thuggish tactics to silence Gamal Eid, Egypt’s military and government must act to ensure his safety and physical integrity,” said Said Benarbia, Director of ICJ’s Middle East and North Africa Program.
“ They must also ensure that lawyers and human rights defenders are able to carry out their work free of fear, harassment or intimidation,” he added.
In the context of the recent protests against President El-Sisi, the Egyptian security forces have arbitrarily detained at least 16 lawyers in relation to the exercise of their professional functions, including Mahienour El-Massry and Mohamed El-Baqer.
Amr Imam, a lawyer and colleague of Gamal Eid at Arabic Network for Human Rights Information was also arrested on 16 October 2019.
The threats to, attacks against, and arbitrary detention of Egyptian lawyers and human rights defenders are in contravention with Egypt’s obligations under international law, and run counter to the UN Basic Principles on the Role of Lawyers and the UN Declaration on Human Rights Defenders, which respectively provide that lawyers and human rights defenders must be able to carry out their professional functions and work without hindrance, harassment, intimidation, or improper interference.
Contact:
Said Benarbia, Director of ICJ’s Middle East and North Africa Program, t: +41 22 979 38 17 ; e: said.benarbia(a)icj.org
Egypt-Gamal Eid-News-press releases.2019-ARA (Arabic version, in PDF)
