Apr 12, 2019 | News
Today, the ICJ expressed concern at the criminal proceedings against Andriy Domanskyi, a lawyer practicing in Ukraine, known for representing individuals facing political prosecution and defending journalists.
The ICJ has called on the Ukrainian authorities to drop any criminal proceedings which may result from the identification of the lawyer with his clients and to ensure that the lawyer’s rights are protected and that he can continue to carry out his professional activity without improper interference, intimidation or threat.
On 5 April Domanskyi was issued a note of suspicion in a criminal proceeding reportedly initiated in 2013 concerning the “privatization of municipal premises”.
Criminal proceedings were initiated one day after the commencement on 4 April of a trial of his client Kirill Vyshynskyi, Chief Editor of RIA Novosti Ukraine recently changed with high treason and a number of other crimes.
Domanskyi considers these criminal proceedings against him are linked with his professional activity and are a means of putting pressure on him as a result of work on this high-profile case.
Earlier this year, on 17 January, while Domanskyi represented Vyshynskyi in a court hearing on the lawfulness of his arrest in Kherson, the lawyer’s home, office premises and his assistant’s relatives’ premises in Kyiv were searched by the officers of the General Prosecutor’s Office.
This took place only a few days after the Security Service of Ukraine (SBU) publicly announced that the investigation regarding Vyshynskyi had been terminated.
While these searches were sanctioned by the court, another search was conducted on the same day and was sanctioned by an investigator rather than the Prosecutor General or his Deputy or the Prosecutor of Kyiv City, as provided by the Law of Ukraine “On advokatura and advocates’ activity”.
The lawyer connected these searches to the fact that at that time he repeatedly filed motions to release Vyshynskyi on bail, with himself acting as a guarantor on the bail.
Any criminal proceedings against the lawyer amounting to harassment or reprisals for his professional activities would be highly problematic.
In recent years, the ICJ has witnessed an alarming increase in the number of cases of interference with the work of lawyers, including use of legal proceedings, threats or physical attacks on lawyers in Ukraine.
As was confirmed during an ICJ mission carried out only last month, searches of lawyers’ premises are often performed without due respect to procedures prescribed by law and result in undermining the independent work of lawyers and respect of procedural rights guarantees under national and international law.
Principle 18 of the UN Basic Principles on the Role of Lawyers states that, “lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
As affirmed by the Basic Principles, governments must 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.”
“Investigative and other law enforcement authorities in Ukraine must stop harassment of lawyers, including by improperly associating them with their clients or their clients’ causes, and carrying out searches of lawyers’ offices and documents in violation of national law and procedure as well as international human rights standards,” said Temur Shakirov, ICJ Senior Legal Adviser.
“In this regard, the ICJ stresses that this troubling pattern of attacks affects not only individual lawyers but also the legal professional as a whole. The Ukrainian authorities should take prompt and effective measures to ensure that lawyers are not identified with their clients or their client’s causes and that the safety and independence of lawyers is guaranteed in law and in practice,” he added.
Additional information:
On 4-8 March, the ICJ carried out a research mission to Ukraine on the independence and security of lawyers. Following the mission, the ICJ called on the Ukrainian authorities to take urgent steps to ensure the physical safety of lawyers and to bring to justice those responsible for a series of violent attacks against them.
Ukraine-Domansky statement-Advocacy-2019-UKR (story in Ukrainian, PDF)
Mar 29, 2019 | News
As leaders gather for the League of Arab States (LAS) Summit beginning on 31 March 2019 in Tunis, the ICJ called on them to place human rights and accountability for violations at the forefront of their agenda.
In particular, the ICJ urged the Summit to take immediate steps to revise the Statute of the Arab Court of Human Rights in line with international standards to allow access by victims of human rights violations in the region to such a Court.
“We’ve been witnessing a spike in gross human rights violations across the Arab region, including in extrajudicial executions, enforced disappearances, arbitrary detentions, and torture and other ill-treatment,” said Said Benarbia, the ICJ’s MENA Programme Director.
“The region is in dire need of a credible and independent judicial mechanism to provide justice for human rights violations, the overwhelming majority of which presently go unaddressed,” he added.
The ICJ called on external participants to prioritize human rights in their discussions with League member States at the Summit.
Expected attendees include United Nations Secretary-General Antonio Guterres, the European Union High Representative for Foreign Affairs and Security Federica Mogherini, the Head of the African Union Commission Moussa Faki Mahamat, and the Secretary General of the Organization of Islamic Cooperation Yousef bin Abdul Al-Othaimeen.
Many States in the region are plagued by widespread and systematic violations.
These range from torture, enforced disappearance and arbitrary detentions in Egypt, attacks against human rights defenders and journalists in Saudi Arabia, including the high profile enforced disappearance and killing of Saudi journalist Jamal Khasshogi, as well as the judicial harassment of human rights defenders and political activists throughout the region.
Civilian populations have borne the brunt of violations and crimes through military operations by governments and armed groups in Yemen, Syria and Libya, and in the context of the Israeli-Palestinian conflict.
“International leaders mustn’t sit back and follow the agendas of rights-violating States at this Summit, which will no doubt be directed towards further entrenchment of their authoritarian regimes at the expense of victims,” said Benarbia.
“Instead, they should urge LAS members States to ensure accountability for human rights violations in the region, including by revising and then making operational the Statute of the Arab Court,” he added.
The ICJ said that the process of revision should only be done with the participation of a wide range of stakeholders, civil society, judges, academics, bar associations, and victims of violations.
Contact:
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Background
The Statute of the Arab Court of Human Rights, which aims to establish a regional human rights court for Arab States, was approved by the LAS Ministerial Council on 7 September 2014, but is yet to come into force.
The ICJ and others have identified significant flaws in the Statute, highlighted in the 2014 ICJ report. The report notes that the Statute does not allow victims themselves to submit complaints directly to the Court, making access to justice an illusion. In addition, the Statute does not provide for sufficient guarantees to ensure judicial independence and impartiality; does not provide adequate protective measures for petitioners, their representatives or witnesses; and fails to require the Court to interpret the Arab Charter in line with international human rights obligations.
MENA-Arab Court HR-News-2019-ARA (full story in Arabic, PDF)
Mar 26, 2019 | News
The ICJ condemns the sentencing of Venezuelan Judge Maria Lourdes Afiuni to a further five years of imprisonment.
On 21 March, a court in Caracas sentenced Judge Afiuni on unfounded charges of “corruption”.
“This further five-year sentence against Judge Afiuni is both the latest in a long series of severe violations of her human rights, and also illustrates the grave extent to which independence of the judiciary in Venezuela has been more broadly undermined,” said Matt Pollard, ICJ Senior Legal Adviser and UN Representative.
Judge Afiuni was arbitrarily arrested and detained in 2009 after then-President Hugo Chavez publicly demanded she be imprisoned for 30 years, as she had released an accused person citing a decision by the UN Working Group on Arbitrary Detention that his detention was unlawful.
While in detention, she was subjected to torture and other ill-treatment.
In 2010, the UN Working Group on Arbitrary Detention issued an opinion declaring Judge Afiuni Mora’s detention arbitrary.
She was held in prison for 14 months before being transferred to house arrest for health reasons in 2011.
In 2013 she was granted parole but ordered not to leave the country or to use social media.
The UN Special Rapporteur on the Independence of Judges and Lawyers reacted earlier today to the latest sentencing by reaffirming the arbitrariness of her deprivation of liberty and the fact that her treatment amounts to reprisals for having implemented the UN Working Group’s decision.
The Rapporteur also said that the ruling “underscored his serious concerns about the independence of the judiciary in Venezuela, the impartiality of judges and prosecutors and the pressures they faced in handling politically sensitive cases.”
Further background on the situation for the judiciary in Venezuela, and Judge Afiuni’s case, is available here.
Mar 15, 2019 | News
The ICJ called on the Government of Malaysia to take immediate steps to protect the right of all persons in the country to freedom of expression and assembly, after seven organizers of the International Women’ Day (IWD) March were summoned for questioning by police authorities on 14 March 2019.
“It is very concerning that the Malaysian authorities continue to rely on repressive legislation to control and undermine freedom of expression and freedom of assembly in the country,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
The Women’s March took place in Kuala Lumpur, on 9 March 2019. The demands of the participating groups included an ‘end of all violence based on gender and sexual orientation’, the ban of all child marriages, and the setting of RM1,800 as a minimum wage.
A statement by the Dang Wangi District Police Deputy Chief identified the organizers as individuals who had spoken at an ‘LGBT’ rally.
There were reportedly taken in for questioning on 18 March for potential violations of Section 4(1) of the Sedition Act and Section 9(5) of the Peaceful Assembly Act. They remain at risk of being charged for these offences.
The ICJ considers the Sedition Act 1948 and the Peaceful Assembly Act 2012 to be incompatible with international standards. The ICJ has previously called on the Government of Malaysia to abolish both laws, which have historically been used to silence voices of those challenging governmental policy.
The laws place restrictions on the exercise of freedom of expression that are overbroad, unnecessary and disproportionate, and inconsistent with rule of law and human rights principles. The Pakatan Harapan Government committed itself to abolishing the Sedition Act 1948 and the Peaceful Assembly Act 2012, but has not done so to date.
“The vague definition of ‘seditious tendencies’ in the Sedition Act has been used as a tool for silencing government critics and human rights defenders by previous administrations. It is disappointing that the Malaysian authorities have ended the moratorium on the use of the Sedition Act 1948, and continue to use it, instead of moving towards its abolition,” said Gil.
According to international standards, any limits on the right to peaceful assembly should not require prior authorization by the authorities. Notification requirements must not be unduly bureaucratic and be used only for the purpose of allowing the authorities to facilitate the exercise of the right to peaceful assembly, and to protect public safety.
In a 14 March statement, the organizers claimed to have been in regular communication with the police and to have been in compliance with the relevant notice provisions of the Peaceful Assembly Act.
The ICJ calls on the Malaysian authorities to end any investigations targeting the organizers of the Women’s March pursuant to the Peaceful Assembly and Sedition Act. It also calls on the Government to abolish the Peaceful Assembly Act and the Sedition Act.
Contact
Emerlynne Gil, ICJ Senior International Legal Adviser, t: +66 840923575, e: emerlynne.gil(a)icj.org
Malaysia-Womens March-News-web stories-2019-ENG (full story with additional information, in PDF)
Dec 19, 2018 | News
The Transgender Persons (Protection of Rights) Bill, 2018 fails to protect the human rights of transgender people as guaranteed under the Indian constitution and international law and standards and must not be passed in its present form by the Rajya Sabha.
The Bill was passed by the Lok Sabha (Lower House of Indian Parliament) on 17 December, 2018. The next step in order for the Bill to progress is for the Rajya Sabha (Upper House of Indian Parliament) to pass it.
The ICJ considers this Bill to be a missed opportunity to address the serious problem of discrimination against transgender people in India. The ICJ calls for the rejection of its problematic parts by the Rajya Sabha and for the elaboration of a revised Bill in line with rights upheld by the Indian Supreme Court and India’s obligations under international law.
The 2018 Bill, if adopted, would effectively deny to most transgender people their right to self-identification, by providing an overly complex bureaucratic procedure requiring an individual’s application for a transgender certificate to be approved by two different sets of authorities, despite earlier widespread condemnation of this process by the transgender community.
“As the ICJ reported in 2017, the transgender community is continually harassed, stigmatized, and abused by the police, judges, their family and society. This Bill, if it becomes law would further serve to facilitate and compound human rights violations against people from a marginalized community”, said Ian Seiderman, Legal and Policy Director at the ICJ.
The Bill has also introduced mandatory sex reassignment surgery for those transgender people who seek to identify their gender within the binary (male/female) framework. This requirement would be in contravention of the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention.
Further, the Bill would collapse all offences against transgender people into one provision which includes offences ranging from “sexual abuse” and “physical abuse”, to “compel[ing] or entice[ing] a transgender person to indulge in the act of begging” among others. These crimes have not been defined in the Bill.
It also would provide for the same six-month to two-year sentence for all offences against transgender people. In some cases, this could be a significantly lighter sentence than when the same crime is committed against others, including discriminated groups such as cis-gendered women, under the general criminal law. In addition, the identification of “beggary” as an offence under the Bill is problematic since for many transgender people in the country, it remains one of the limited livelihood opportunities.
Further, the Bill does not address the question of reservations in employment and education despite specific directions by the Supreme Court in NALSA v. UOI.
Lastly, while the proposed law guarantees the right to non-discrimination to transgender people against persons, state and private sector bodies, it does not provide a definition of discrimination, nor does it provide an enforcement mechanism for ensuring transgender people’s right to non-discrimination.
The ICJ calls on the Rajya Sabha to substantially revise the problematic provisions of the Bill before resubmitting it for parliamentary consideration.
Background
The provisions identified above do not accord with protection of the rights of transgender people to equality, non-discrimination, equal protection of the law, enshrined in the Constitution and international law, including the International Covenant on Civil and Political Rights, which India ratified in 1979. Further, they are incompatible with international standards such as the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity.
The ICJ, as part of SAATHII Vistaara Coalition, earlier this year drafted a Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
Additional Reading Material
- ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
- ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Advisor for India
e: maitreyi.gupta(a)icj.org, t: +91 7756028369
