Mar 11, 2013
The ICJ has brought to the attention of the UPR mechanism issues concerning migration and asylum, criminalization of abortion and recognition of gender identity and marriage in Malta.
The ICJ’s submission comes ahead of the consideration of the human rights situation in Malta by the Human Rights Council’s Working Group on the Universal Periodic Review (21 October to 1 November 2013). It includes suggested recommendations to be taken up in the UPR of Malta.
Malta-UPR17-StakeholderSubmission-LegalSubmission-2013 (download full submission in PDF)
Malta-UPR17-AdvocacyNote-LegalSubmission-2013 (download short advocacy note in PDF)
Malta-UPR17-ComparisonChart (download comparison of ICJ suggested recommendations against UPR first cycle recommendations)
Feb 25, 2013
The ICJ and ECRE presented a second joint detailed submission on the situation of detention, application procedures and remedies for asylum seekers in Greece to the Committee of Ministers of the Council of Europe.
The submission was presented in occasion of a meeting of the Committee of Ministers of the Council of Europe on the implementation by Greece of the European Court of Human Rights’ judgment in the case of M.S.S. v Belgium and Greece. The submission highlighted legal and practical shortcomings in the Greek system on detention of asylum seekers, conditions of detention, judicial review and access to an effective remedy, living conditions of asylum seekers, access to information and non-refoulement.
Greece-ICJECRE-MSS-CommitteeMinisters-2ndsubmission-legal submission-2013 (download the submission)
Photo credit: © notfrancois (the author has no involvement in nor does support this submission)
Feb 25, 2013 | Advocacy, Cases, Legal submissions
The ICJ and Amnesty International presented additional observations in the case Al Nashiri v Poland before the European Court of Human Rights.
In their supplementary third party intervention, the ICJ and AI outlined developments in light of the case El-Masri v the Former Yugoslav Republic of Macedonia on enforced disappearances, on diplomatic representations in light of the Grand Chamber’s findings on responsibility for violations outside the jurisdiction, on the gross human rights violations that detainees previously held in the USA’s secret detention and rendition programme are currently enduring, and on relevance of the Grand Chamber’s observations in El-Masri in relation to any potential resort to ex parte materials and procedures.
Poland-ICJAI-SupplAmicusBrief-AlNashiri v Poland-legal submission-2013 (download the third party intervention)
Feb 21, 2013
Reform of the Moldovan judicial system needs further commitment from parliament, government, the judiciary and judicial bodies, if recent legislative measures are to bring real change, according to a new report.
The report Reforming the Judiciary in Moldova: Prospects and Challenges, launched today by the International Commission of Jurists (ICJ) and the Soros Foundation-Moldova (SFM), follows an ICJ mission to this country in September 2012 and analyses the recent progress made in reform of the Moldovan judicial system.
Today’s report welcomes many of the comprehensive legislative reform that have been enacted in the past year, but warns that further measures are needed to build a strong and independent judiciary, in practice as well as in law, and to ensure that effective mechanisms of judicial accountability are applied fairly and are compatible with judicial independence.
“Judges are responsible for one of the most important functions in any society – the fair and effective administration of justice. The priority that is being given in Moldova to judicial reform is therefore welcome,” said Róisín Pillay, Director of the ICJ Europe Programme. “A strong and independent judiciary is essential to ensure that everyone can be confident of a fair hearing when they come before the Courts, and of an effective remedy when their rights have been violated.”
“Judicial independence goes hand in hand with judicial accountability – judges are not above the law. But the reforms must always ensure that there are effective safeguards against any improper interference so that judges can adjudicate impartially without fear of victimization,” Pillay added.
“The Soros Foundation-Moldova is particularly concerned with the lack of equal attention to accountability, independence and transparency of the judiciary. We are confident that this could not be achieved unless every judgment is properly reasoned,” said Victor Munteanu, Justice Program Director at SFM.
The report calls the current reforms the most ambitious undertaking in decades, but warns against poor implementation of good laws and initiatives.
Among other measures, the report recommends reconsideration of the necessity of the initial five-year appointment period for newly appointed judges and modification of the system of security checks on judges.
It also stresses that any periodic evaluation of judges must not lead to the dismissal of judges before they have been given an adequate opportunity to redress any failings, and must not serve as a back door for dismissing judges.
In addition, the report emphasizes the need to raise judicial salaries as a matter of priority, and supports enhanced judicial training, in particular on human rights law.
In parallel with raising judicial salaries, consideration must be given to the current laws on early retirement of judges and the system of receiving salaries and pensions in parallel.
It further underlines the importance of reasoned judgments in ensuring a fair hearing and expresses serious concerns at the recent amendment to the Civil Procedure Code, which removes the requirement for first instance judges to give reasons for decisions in civil cases.
The ICJ recommends that the impact of this amendment should be monitored, and consideration should be given to repealing it, should it be shown to give rise to any barriers to access to justice.
Regarding accountability measures, the report finds that the removal of the requirement for the Superior Council of Magistracy’s authorization for prosecution of a judge, in regard to crimes of judicial corruption, may help to re-establish the credibility of the judiciary.
However, given the concerns as to the potential abuse, any prosecutions of judges on corruption charges under the new legal provisions, must be carefully monitored and scrutinized.
Clear and detailed procedures for disciplinary action, including for hearings before the Disciplinary Board as well as the Superior Council of Magistracy, should be developed, to ensure the greatest possible consistency and predictability in the application of disciplinary measures, the report says.
The ICJ also expresses concern at the presence of the Minister of Justice and the Prosecutor General on the Superior Council of Magistracy, and in particular their resulting power to initiate disciplinary proceedings, and recommend their removal as ex officio members.
The report was developed within the “Improving the observance of the Right to Liberty and Security of Person in Moldova” project, implemented by Justice Program of the SFM in partnership with the Superior Council of Magistracy and the Supreme Court of Justice.
The project advocates for the development of coherent and sustainable accountability mechanisms for judges.
Contacts:
Róisín Pillay, Director, ICJ Europe Programme, m +41 79 742 7128; e-mail: roisin.pillay(at)icj.org
Victor Munteanu, Director, SFM Justice Program, m + 373 22 27 00 31; e-mail: vmunteanu(at)soros.md
Moldova-ICJ-SFM Report judicial reforms-publication-2013-ENG-ROM (full text in pdf)
Moldova-Report judicial reforms-press release-2013 (full text in pdf)
Moldova-Report judicial reforms-press release-2013-ROM (full text in pdf)
Feb 19, 2013 | News
The European Court of Human Rights today ruled that an Austrian ban on same-sex second-parent adoption is discriminatory.
The European Court of Human Rights delivered its judgment in the case of X and Others v. Austria and ruled that Austria’s Civil Code discriminates against a partner in a same-sex relationship by making it legally impossible to adopt the biological child of the other partner while permitting second parent adoptions for unmarried heterosexual couples.
The organisations that provided written submissions in this case (FIDH, ICJ, ILGA-Europe, BAAF, NELFA, and ECSOL) welcome this judgment and consider it a landmark judgment applying the European Court of Human Rights’ case law on equal treatment of unmarried couples to same-sex couples applying for second-parent adoption.
Children in same-sex families are highly vulnerable due to a lack of legal recognition and their inability to establish legal links to both of their parents.
Currently, second-parent adoption is possible in 11 European countries: Belgium, Denmark, Finland, Germany, Iceland, the Netherlands, Norway, Slovenia, Spain, Sweden and Great Britain. New legislation that would allow it is planned in France, Luxembourg and Switzerland. Moreover, as a result of the Court’s judgment, it would follow that the legislation of Austria, Andorra, parts of Bosnia and Herzegovina, Liechtenstein, Portugal and Romania should be amended to allow same-sex couples to apply for second-parent adoption, because these countries already permit unmarried heterosexual couples to do so.
Martin K.I. Christensen, Co-Chair of ILGA-Europe’s Executive Board:
“This is a very significant and important victory for rainbow families in Europe. We hope that this judgment will pave the way towards the removal of the remaining legal barriers for these families in Europe. The lack of recognition and the inability for partners in same-sex families to establish legal links to their children is not only discriminatory and creates a number of legal uncertainties, but also has a profound and detrimental impact on the everyday lives of these families and the wellbeing of the children in those families. The principle of the best interests of the child needs to be upheld without exception.”
Alli Jernow, Senior Legal Adviser, International Commission of Jurists, stated:
“With today’s decision, the Court clearly asserts that families are families, regardless of the sex of the parents, and that barriers to legal recognition and protection based on sexual orientation serve the interests of neither parents nor children.”
Souhayr Belhassen, President of FIDH, said:
“The Court recognised the right of a partner in same-sex couple to adopt another partner’s biological child when such adoptions are available for heterosexual couples. This is an important step forward towards the application of the principle of non-discrimination based on the sexual orientation and strengthening legal security and certainty for children. This ruling should guide not only domestic courts, but also the legislator in European states that have not yet amended their legislation in that direction”.
Juha Jämsä, the Vice-President of NELFA, said:
“This is an important day for European LGBT families. We feel very hopeful that this case will lead to our children’s rights gaining better recognition throughout Europe. No group of children should be discriminated against because of their parents’ sexual orientation, gender identity or gender expression”
