Jul 25, 2017 | News
Today the ICJ expressed concern about the real threat of criminal prosecution against lawyers Yerlan Gazimzhanov, Amanzhol Mukhamedyarov and Assel Tokayeva (photo) in Kazakhstan.
The ICJ said the action against lawyers was aimed at their discharging of their professional functions on behalf of clients, and not for any genuine criminal misconduct.
The ICJ called on the responsible authorities of Kazakhstan to discontinue the proceedings against the lawyers, which are contrary to international law and standards on the role of lawyers and the rule of law in the administration of justice.
On 22 June, in a court hearing in the criminal case, judge Ubasheva issued interim rulings against the lawyers seeking their prosecution for a number of acts, which on their face do not consist of criminal misconduct. The conduct for which prosecution is sought includes lodging a complaint alleging unethical conduct by the judge with the Commission on Judicial Ethics and Judicial Jury of the Supreme Court of the Republic; filing a motion for recusal of the judge; stating that the crime for which their clients had been accused had in fact been committed by another defendant; and participating in an international conference, rather than attending a court hearing to defend clients.
The various legal procedures used by the lawyers, including their complaint against the judge and the request for the judge’s recusal, are not prohibited by law. On the contrary, acts such as filing motions for recusal, lodging ethics complaints through officially prescribed channels, and performing standard criminal defence functions they constitute regular procedures prescribed in legislation Kazakhstan. They are also fundamental pursuant to the proper administration of justice under the rule of law.
The interim rulings of the court did not provide an analysis of the legal provisions allegedly violated by the lawyers. Certain of the lawyers were said by the court to have “demonstrated superiority over other actors in criminal proceedings.” It was also alleged that the information posted on a Facebook page about the proceedings in which one of the lawyers took part was false. However, the ruling failed to cite any specific details or conduct of the lawyers which would support these conclusions.
Regarding the charge that two of the lawyers had chosen to participate in an international conference rather than appear at the court hearing, this at most would fall under disciplinary procedures governing the conduct of members of the bar, and not the criminal law. The ICJ notes these charges should normally be made to competent disciplinary body, the Collegium of Lawyers, and not the Ministry of Justice through the request of the judge.
In addition to the criminal prosecution, judge Ubasheva asked the Ministry of Justice to take measures against the lawyers for a breach of professional ethics, causing unjustified delays in criminal trial, and contempt of court, and asked the Ministry of Interior to undertake an inquiry to determine whether the conduct of the lawyers constituted an offence punishable under Article 407 of the Criminal Code of Kazakhstan (obstruction of justice).
On 20-21 July 2017, the Criminal Chamber of Appeals examined the lawyers’ appeals against the conviction and interim appeals against the interim rulings.
The appeal proceedings before the Astana City Court were attended by Gulnora Ishankhanova, ICJ Commissioner acting as an ICJ observer.
Kazhakstan-Trial observation 3 lawyers-News-web story-2017-RUS (story in Russian, PDF)
Jul 24, 2017
In a report published today, Judges for Judges and the ICJ analyze disciplinary proceedings against Bulgarian Judge Miroslava Todorova in relation to international standards on judicial independence and accountability.
On 12 July 2012, the Supreme Judicial Council of Bulgaria dismissed Judge Miroslava Todorova, at that time a judge of the Sofia City Court and Chairperson of the Bulgarian Judges Association, on the grounds that she was responsible for delays in a number of cases.
Subsequently, Judges for Judges and the ICJ followed the disciplinary proceedings against Todorova and sent trial observers to Sofia on two occasions, in May 2013 and November 2014.
In their findings, the ICJ and Judges for Judges do not address whether, and if so which, disciplinary sanctions may have been appropriate in this case.
They note, however, that the disciplinary proceedings concerned delays, constituting judicial misconduct, in a context where according to many internal and external observers the workload between the courts is divided unevenly and may be very high for some.
The two organizations also note that, as the second three-judge panel pointed out, the overall organization of the workflow was never properly considered in considering and reaching a determination n the disciplinary case.
With the quashing of the second three-judge panel’s decision, likewise other relevant circumstances were not taken into account.
Furthermore, the report finds, disciplinary practice in Bulgaria is deficient in respect of its lack of predictability and consistency, and doubts expressed by many observers as to the independence of the Judicial Service Council muddy the waters further.
The 2013 amendments to the legal framework only partially served to remedy the disciplinary practice’s deficiencies.
In particular, a full right of defence that includes the opportunity for the defendant to address all arguments and evidence remained wanting at the time of the Todorova proceedings.
In the report, the ICJ and Judges for Judges also note the animosity towards Todorova from certain quarters in the Executive and SJC for her activities as the chair of the BJA in defence of judicial independence.
Under the circumstances, there is an appearance that the disciplinary proceedings against Todorova were instituted and pursued selectively, and the system of the disciplinary proceedings in Bulgaria does not provide sufficient safeguards to dispel this appearance.
The disciplinary proceedings against Todorova demonstrate why it is crucial that accountability mechanisms be independent not only in theory but in practice, and for such mechanisms to be in some way themselves publicly accountable.
Bulgaria-The Todorova Case-Publications-Reports-Trial observation reports (full report, in PDF)
For additional background, see:
ICJ Practitioners Guide no 13, Judicial Accountability (2016, in PDF)
and more generally:
ICJ Practitioners Guide No 1, International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors (2007, in PDF)
Jul 14, 2017
The ICJ submitted observations in a case brought with Forum for Human Rights, against the Czech Republic, in defense of children in the juvenile justice system.
The submission is a reply to the Government’s observations in this collective complaint before the European Committee of Social Rights.
In this case, the ICJ and Forum for Human Rights argue that the Czech Republic fails to ensure equal legal protection and participation of children below the age of criminal responsibility in the pre-trial stage of juvenile justice procedures.
The ICJ and FORUM submit that serious systemic flaws in the Czech juvenile justice system deprive a specific group of particularly vulnerable individuals – children below the age of criminal responsibility – of an adequate level of social protection and leave them at risk of inappropriate or unfair procedures leading to arbitrary punitive measures, in violation of Article 17 of the European Social Charter, both alone and read in conjunction with the principle of equality in the preamble to the Charter.
This situation concerns more than one thousand children every year and as a matter of urgency, it requires a structured response.
CzechRepublic-ECSR-juvenilejustice-legalsubmission2-ENG-2017 (download the submission)
Jul 14, 2017
The ICJ and the International Detention Coalition (IDC) have presented their observations on the draft European rules for the administrative detention of migrants.
In their submissions, the two human rights organizations noted that the current detention practices in most Council of Europe member States raise serious questions as to their compatibility with human rights law.
They stressed that, under international human rights law, immigration detention must always be an exceptional measure of last resort in full respect of the norms of necessity, proportionality and non-discrimination.
The ICJ and IDC expressed concern that the current draft document fails to adequately distinguish between criminal and administrative immigration detention regimes.
In doing so, the document risks normalizing unlawful detention practices and codifying prison standards that are wholly inappropriate in the context of migration.
The two organizations submitted that, as a general rule, persons in situations of particular vulnerability should never be detained merely for the purposes of enforcing immigration control.
Finally they called on the drafting Committee to prioritize alternative measures to detention.
Europe-ImmigrationDetentionRules-JointSubmission-ICJIDC-ENG-2017 (download the joint submission)
Background
The Council of Europe’s European Committee on Legal Co-Operation is currently drafting a set of European rules for the administrative detention of migrants.
This is a codifying exercise on a set of immigration detention rules based on existing international and regional human rights standards relating to the conditions of detention of migrants. The stated objective of the draft instrument is twofold:
- Protect migrants held in administrative detention by providing them with individual guarantees on the conditions of their administrative detention (i.e. detention not based on a criminal conviction);
- Provide guidance to both national authorities responsible for the closed centres and persons working closely with migrants.
The process to draft this codifying instrument started in May 2016.
The European Committee on Legal Co- Operation launched a written consultation procedure to involve civil society and key actors in the elaboration process of this codifying instrument.
This submission is the reply of the ICJ and the IDC to this written consultation.
Contact
Massimo Frigo, ICJ Legal Adviser, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org
Jul 12, 2017 | News
The ICJ is alarmed at ongoing attacks on the rule of law in Poland.
On 12 July 2017, the Government tabled in Parliament draft bill no. 1727, that, if approved, would automatically dismiss all judges of the Supreme Court and let the Minister of Justice decide which judges are to be reinstated or newly appointed.
“This draft law is a direct blow to the principle of separation of powers, the bedrock of the rule of law,” said Massimo Frigo, Legal Adviser with the ICJ Europe Programme.
“The security of tenure and conditions of service of individual judges are essential to judicial independence,” he added.
Draft bill no. 1727 follows another piece of legislation, recently approved by Parliament, by which the Parliament empowered itself to appoint the majority of the members of the National Council of the Judiciary, the body which selects and governs the judiciary.
That law gives political powers in the Polish legislature and executive, which have increasingly demonstrated deep disregard for human rights and the rule of law, undue influence over the judiciary.
Such deficiencies were also highlighted by the Office for Democratic Institutions and Human Rights of the OSCE in May 2017.
“These series of legislative attacks to the independence of the judiciary in Poland must stop. These actions are inconsistent with the international obligations of Poland to ensure the independence of judges,” said Massimo Frigo.
“The European Union must intervene. A EU Member State that directly undermines the checks and balances of its own legal system threatens the founding values of the EU of the rule of law and respect for human rights,” he added.
Contact
Massimo Frigo, ICJ Legal Adviser, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org
International standards
Particularly in a context like present day Poland, mass removal of all judges from a court, by another branch of government, without a fair and evidence-based individual process for each judge, is incompatible with international standards such as the UN Basic Principles on the Independence of the Judiciary (See, ICJ Practitioners Guide no 13 on Judicial Accountability, pp. 99-104). The UN Basic Principles affirm, among other things, that:
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
10. …Any method of judicial selection shall safeguard against judicial appointments for improper motives. …
12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
Similar mass removals with politicization of the procedure for reinstatement and new appointments have been condemned as violations of States’ international human rights obligations by, for instance, the UN Human Rights Committee acting under the International Covenant on Civil and Political Rights, to which Poland is also party (see Busyo, Wongodi, Matubaka et al v. Democratic Republic of the Congo, UN Doc CCPR/C/7878/D/933/2000 (2003), and the Inter-American Court of Human Rights (see e.g. Supreme Court of Justice (Quintana Coelle et al) v. Ecuador, Series C No. 266 (2013) and Constitutional Tribunal (Camba Campos et al) v. Ecuador, Series C No. 268 (2013).
Council of Europe standards, in the form of Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, provide among other things as follows:
26. Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system.
27. Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.
44. Decisions concerning the selection and career of judges should be based on objective criteria pre-established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.
45. There should be no discrimination against judges or candidates for judicial office on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, disability, birth, sexual orientation or other status. A requirement that a judge or a candidate for judicial office must be a national of the state concerned should not be considered discriminatory.
46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.
47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.
48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.
49. Security of tenure and irremovability are key elements of the independence of judges. Accordingly, judges should have guaranteed tenure until a mandatory retirement age, where such exists.
50. The terms of office of judges should be established by law. A permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions. Early retirement should be possible only at the request of the judge concerned or on medical grounds.
69. Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such 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.
