May 17, 2013 | News
On 16 May, the ICJ and Rechters voor Rechters (Judges for Judges) observed an appeal hearing at the Supreme Administrative Court (SAC) in a case against the dismissal of Judge Miroslava Todorova.
Judge Todorova, who had been serving on the Sofia City Court, is known for critical commentary on the problems in the judiciary in Bulgaria. In this hearing, the Prosecutor’s Office supported Judge Todorova’s appeal against her dismissal, but the Court has not yet issued its decision.
The ICJ previously raised concerns over Judge Todorova’s dismissal from her position of judge and as Chair of the Bulgarian Judges Association, in July 2012. The ICJ was particularly concerned at the disproportionate sanctions for delay of several reasoned cases, which is a problematic, but usual, practice among judges in Bulgaria.
The ICJ also expressed concern at the fact that the proceedings took place some six years after the limitation period ended. Further questions arose as to the composition of the Supreme Judicial Council (SJC), the body which both initiated the proceedings and conducted the hearing, and its independence in this case.
The trial observation mission consisted of Professor Doctor Günter Witzsch (Germany), who observed the trial on behalf of the ICJ, and Judge Janneke Bockwinkel (the Netherlands, on behalf of Judges for Judges). The ICJ and Judges for Judges will continue to follow the case of the dismissal of Judge Miroslava Todorova and will issue a detailed report following the issuing of the decision by the SAC.
For further information
Róisín Pillay, Director of the Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
May 13, 2013 | Адвокаси, Новости, Статьи, Юридические заявления
Сегодня МКЮ опубликовал свои рекомендации по законопроекту, вносящему изменения в дисциплинарную систему судей в Российской Федерации.
МКЮ считает что Законопроект о внесении изменений в статьи 121 , 14 и 15 Закона Российской Федерации «О статусе судей в Российской Федерации» предусматривает целый ряд положительных изменений. Тем не менее, МКЮ с сожалением отмечает, что авторы законопроекта не воспользовались возможностью ввести в действие более обширные реформы, направленные на ликвидацию институциональных, материальных и процессуальных недостатков системы, создающих почву для злоупотреблений и способствующих произвольному и непоследовательному применению мер дисциплинарного взыскания.
Russia-judicialdisciplinelaw-comment-2013-rus (скачать комментарий на русском)
May 13, 2013 | News
On 13 May, the Hong Kong Court of Final Appeal granted W, a transgender woman, the right to marry her male partner. The ICJ, which made submissions in the case, applauds this decision.
W is a resident of Hong Kong who has undergone gender reassignment surgery, paid for by the Hong Kong Government, and who holds a national identity card and passport recording her sex as female.
In 2008 she applied to the Registrar of Marriages seeking confirmation that she could marry her male partner.
The Registrar denied her request on the grounds that “the biological sexual construction of an individual is fixed at birth and cannot be changed.”
Because “only an individual’s sex at birth counts,” the Registrar would not celebrate the marriage.
The trial court and court of appeal upheld the Registrar’s interpretation of the Marriage Ordinance and Matrimonial Causes Ordinance and ruled that it did not conflict with Hong Kong’s Basic Law or its obligations under the International Covenant on Civil and Political Rights.
These courts relied on the 1970 British case of Corbett v. Corbett, which held that sex was fixed immutably at birth.
W won her case at the Court of Final Appeal, which ruled in a 5-4 decision that the Marriage Ordinance and Matrimonial Causes Ordinance ignored the “psychological and social elements of a person’s sexual identity” and thus were inconsistent with the constitutional right to marry.
Furthermore, the ordinances were unconstitutional because they denied W the right to marry at all and thus impaired the very essence of the right.
While the Court granted the parties leave to make further submissions as to the exact nature of the declaratory relief, it held that “a transsexual in W’s situation” should in principle be granted a declaration that she is in law a woman within the meaning of the marriage ordinances and “therefore eligible to marry a man.”
Importantly, the Court also stated: “We would not seek to lay down a rule that only those who have had full gender reassignment surgery involving both excising and reconstructive genital surgery, qualify. We leave open the question whether transsexual persons who have undergone less extensive treatment might also qualify.”
“This is a historic decision,” said Alli Jernow, Senior Legal Advisor at the International Commission of Jurists. “Not only has W won her own case at the Court of Final Appeal, her courage and commitment have changed the lives of transgender people in Hong Kong.”
The parties have an additional 21 days to file written submissions. The Court’s proposed order gives the Hong Kong legislature time to respond but indicates that even in the absence of intervening legislation, the marriage ordinances would be given a remedial interpretation to include W.
Photo by K.Y. Cheng: Michael Vidler, solicitor of the appellant, holds the judgment in his hand outside Court of Final Appeal.
May 13, 2013
The ICJ today published its recommendations on a draft law introducing changes to the disciplinary system for judges in the Russian Federation.
The ICJ considers that the Draft Law amending Articles 12-1, 14 and 15 of the Law of the Russian Federation “On the Status of Judges in the Russian Federation” includes a number of positive amendments. Nevertheless, the ICJ regrets that this opportunity has not been taken to introduce more comprehensive reforming legislation, to address the institutional, substantive and procedural weaknesses in the disciplinary system that allow for abuse and facilitate arbitrariness and inconsistency in the application of disciplinary sanctions against judges.
Russia-judicialdisciplinelaw-comment-2013-eng (download the comment in English)
Russia-judicialdisciplinelaw-comment-2013-rus (download the comment in Russian)
Apr 23, 2013 | Advocacy, Cases, Legal submissions
The ICJ and Amnesty International presented a third party intervention in the case Abu Zubaydah v. Lithuania before the European Court of Human Rights.
In the third party intervention, the ICJ and AI outlined developments on the knowledge imputable to Contracting Parties at relevant times; on the obligations attached to principle of non-refoulement; on the duty to investigate credible allegations of human rights violations and other procedural obligations; and on the human rights violations that detainees previously held in the USA’s secret detention and rendition programmes are currently enduring.
Abu_Zubaydah_v_Lithuania-ICJAIJointSubmission-ECtHR-final (download the third party intervention)
