Jun 16, 2016 | Advocacy, Non-legal submissions
The ICJ today joined a statement delivered by the International Bar Association on indicators of independence of justice systems.The statement came during the interactive dialogue with the UN Special Rapporteur on the Independence of Judges and Lawyers.
It read as follows:
As international organisations of legal professionals, we endorse the recommendation made by the Special Rapporteur to develop a set of international indicators to assess the independence of justice systems.
The Special Rapporteur has previously stated: ‘No ideal justice system exists; rather, there are universal principles that must be respected in the structure and functioning of any judicial system, so that it can duly fulfil its purpose’. (Report of the Special Rapporteur on the independence of judges and lawyers, (2014) UN Doc A/69/294, para 92.)
Achieving Sustainable Development Goal 16 – that is, providing access to justice for all and building effective, accountable and inclusive institutions – will require respect for the universal principles of independence and impartiality of justice systems and the independence of the legal profession.
In 2015, the International Bar Association (IBA) and the International Commission of Jurists (ICJ) proposed two indicators under SDG16, regarding the independence of the judiciary and an independent and self-governing legal profession. The IBA is currently developing ‘indicia of independence’ that can be used to assess the state of independence of the legal profession in a given jurisdiction. The Commonwealth Lawyers Association (CLA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) continue to monitor judicial and legal independence through the Commonwealth Latimer House Working Group.
We therefore, Madam Special Rapporteur, fully support your endeavour to develop universal indicators that complete the UN Rule of Law Indicators, and build on the UN Basic Principles on the Independence of the Judiciary, the Basic Principles on the Role of Lawyers, and the Guidelines on the Role of Prosecutors.
We further call upon States to ensure that national targets and indicators duly align with international indicators and international principles.
Thank you, Mr President
The following organisations endorsed the statement:
- Avocats Sans Frontières -Suisse
- Commonwealth Magistrates’ and Judges’ Association
- Commonwealth Lawyers Association
- International Bar Association’s Human Rights Institute
- International Commission of Jurists
- Judges for Judges
- Lawyers for Lawyers
- Southern Africa Litigation Centre
The statement can be downloaded in PDF format here: HRC 32- Joint Oral Statement Item 3 SR IJL_FINAL
May 31, 2016 | News
Myanmar’s Supreme Court engages in 2nd High Level Dialogue with the ICJ on Drafting and Implementing a New Judicial Code of Ethics and Accountability.
The ICJ, the United Nations Development Program and the Office of the Supreme Court of the Union (OSCU) held a High Level Dialogue on “Implementing a Code of Judicial Ethics” in Nay Pyi Taw on 30-31 May 2016.
This dialogue followed a commitment by the OSCU to draft a code and to ensure it is informed by and implemented in accordance with international best practice. The OSCU’s Judicial Ethics Review Committee, Supreme Court and High Court Judges and other senior court administrators participated in the dialogue.
Building on the previous dialogue’s focus on the contents of a code of ethics, the participants and their international counterparts from the ICJ and UNDP discussed international standards for accountability and implementation mechanisms to accompany a code of ethics.
In opening the dialogue, the Honourable Supreme Court Justice of the Union, U Mya Thien explained that the new code reflected international standards and would enhance public trust and promote accountability in the Judiciary.
In his opening remarks, ICJ Commissioner and Justice of the Supreme Court of South Africa, Azhar Cachalia, explained the importance of the code as a basis for legitimacy and independence.
He stressed that the judiciary must become accountable to the public.
“Myanmar has an historic opportunity to make decisions that will shape the judiciary for generations to come,” he said.
During the dialogue, the UNDP’s Elodie Beth outlined research on regional judicial accountability and its lessons for Myanmar.
Sam Zarifi, the ICJ’s Regional Director shared experience and international standards on implementing a code of ethics Zarifi explained that “in order for it to be effective, the Supreme Court must establish mechanisms and institutions to hold judges accountable to the code of ethics.”
All participants agreed that implementing a proper code of ethics would strengthen the accountability and independence of Myanmar’s judiciary.
Both the UNDP and the ICJ congratulated the OSCU for following its Strategic Plan for 2015-2018 and engaging in a dialogue designed to further this process.
Both expressed willingness to continue working with Myanmar’s judiciary on the issues of judicial independence, the rule of law and human rights.
May 12, 2016 | News
The ICJ is concerned at the reported resignations of federal judges in the Chechen Republic of the Russian Federation following apparent pressure by the acting Head of the Republic Ramzan Kadyrov who had suggested that resignation would be the “most correct decision of their lives”.
The ICJ considers these statements, which appear to have led directly to the resignations of federal judges, to be inappropriate interference with the functioning and independence of the judiciary.
The ICJ calls on the Russian Federation judicial authorities to take all measures within their power to ensure that all judges’ security of tenure is preserved and that any allegations of misconduct are addressed through appropriate disciplinary proceedings that respect the right to a fair hearing.
The ICJ further calls on the executive authorities to refrain from any comments which may undermine the independence of the judiciary.
On 5 May, Ramzan Kadyrov, currently acting Head of the Chechen Republic, recommended that several named judges should step down.
In his post on social media, Kadyrov identified as problems unfair decisions of courts, procrastination in criminal cases, decisions regarding housing and inconsistent decisions.
He mentioned that although examples of such decisions were sporadic, they did not help build trust in the judiciary.
He then recommended that the President of the Supreme Court of the Chechen Republic, Magomed Karatayev (photo) and three other judges, Takhir Murdalov, Sulyan Yandarov and Zayndi Khusainov, should resign “if they had a notion of honour and professional ethics”.
It was reported that two judges of the Urus-Martan City Court and Grozny District Court, Sulyan Yandarov and Zayndi Khusainov, submitted their resignations on the same day.
The President of the Supreme Court of Chechnya, Magomed Karatayev, and his deputy Takhir Murdalov, are reported to have already filed a request for resignation.
The resignations, apparently in direct response to criticism by the executive, undermine the separation of powers and the independence of the judiciary in the Russian Federation.
Under international law, including the right to a fair trial protected, inter alia, by Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights, the independence of the judiciary must be guaranteed.
The UN Basic Principles on Independence of the Judiciary enshrines “the duty of all governmental and other institutions to respect and observe the independence of the judiciary” and provides the judiciary shall not be subject to “any restrictions, improper influences…pressures, threats or interferences, direct or indirect from any quarter or for any reason.”
While judges have an obligation to adhere to judicial ethics and should be held accountable for professional misconduct, the representatives of the executive must refrain from statements which jeopardize the independence of the judiciary.
The Council of Europe’s Recommendation on judges specifies that “the executive and legislative powers should avoid criticism that would undermine the independence of or public confidence in the judiciary.”
Public pressure from the executive on judges to resign can nullify the security of tenure of judges protected under national and international law and standards.
According to Principle 12 of the Basic Principles on the Independence of the Judiciary, “[j]udges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.”
Under international standards, allegations of misconduct against judges should be dealt with by the self-governing institutions of the judiciary, through fair disciplinary procedures.
Under the Basic Principles, the only basis for removal of judges is “incapacity or behaviour that renders them unfit to discharge their duties.
The comments by Ramzan Kadyrov also run contrary to the legislation of the Russian Federation, which spells out in detail the procedure for disciplinary measures against judges in case of alleged professional misconduct.
RUSSIA-Chechen judges statement-News-web story-2016-RUS (full text in Russian, PDF)
May 10, 2016 | News
The ICJ today called on the Egyptian authorities to immediately release human rights lawyer Malek Adly and to drop all charges against him. He was arrested on Thursday 5 May 2016, pursuant to an arrest warrant.
Malek Adly has been charged with a number of offences, including “attempting to overthrow the regime,” “spreading false rumors,” and “using force against a public servant.”
The Prosecuting authorities have not provided information on specific behaviour that would constitute criminal conduct.
The ICJ is concerned that the charges may be in retaliation for Malek Adly’s work as a lawyer and human rights defender, and are aimed to chill him and others from engaging in work perceived as threatening to or disfavoured by Egyptian authorities.
They came at the backdrop of his work as a human rights lawyer, his critical views on the rule of law situation in Egypt, and his legitimate and peaceful exercise of freedom of expression and assembly in opposing transferring the sovereignty of Tiran and Sanafir islands from Egypt to Saudi Arabia, the ICJ says.
“Malek Adly’s arrest, detention and prosecution for carrying out his work as a lawyer and human rights defender and for peacefully expressing his views is yet another attempt by the Egyptian regime to muzzle lawyers, the last line of defence for victims of human rights violations in Egypt,” said Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
“The regime’s crackdown on fundamental rights and freedoms has been worryingly extended to the very lawyers whose role is to challenge and protect against such crackdown,” he added.
Over the last three years, the ICJ has documented numerous cases of lawyers who have been subjected to human rights violations and reprisals in relation to the representation of their clients.
These include the cases lawyers Imam Afifi and Karim Hamdi who were allegedly subjected to torture and subsequently died while in police custody.
International standards aiming to safeguard the role of lawyers provide that States have a duty to ensure that lawyers are able to perform their functions “without intimidation, hindrance, harassment or improper interference” and that lawyers must not be subject to prosecution or other sanction for carrying out their professional responsibilities, the Geneva-based organization reminds.
International standards on human rights defenders require States protect human rights defenders from attacks, threats, retaliation and arbitrary action.
The Egypt 2014 Constitution guarantees the “independence of the lawyer’s profession and the protection of its interests as a guarantee to protecting the right to defence”. In addition, it prohibits the arrest of a lawyer while he or she is exercising the right to defence, except in flagrante delicto crimes.
“The Egyptian authorities must live up to their obligations under the Constitution and international law and put an immediate end to their attacks against lawyers,” concluded Benarbia.
Contact
Nader Diab, Associate Legal Adviser of the ICJ Middle East and North Africa Programme, t: +216 51727023; e: nader.diab(a)icj.org
Egypt-HR Lawyer MalekAdly-News-Press Releases-2016-ARA (full text in Arabic, PDF)
May 3, 2016 | News
The ICJ is concerned at the reported improper interrogation as a witness of lawyer Marina Moshko and searches of her apartment and office by investigators of the Investigative Committee of Russia together with officers of the St. Petersburg and Leningrad Region Federal Security Service.
The interrogation was in connection with a criminal case against her client, Natalia Koltsova, related to alleged criminal business activities.
Targeting a lawyer in the investigation of the lawyer’s client runs contrary to international law and standards, and to principles of lawyer-client confidentiality enshrined in both Russian and international law.
The ICJ therefore calls on the law enforcement authorities to refrain from any measures which obstruct access to a lawyer and the right to an effective defence, including improper interrogation of lawyers as witnesses, and searches of lawyers’ premises.
The Russian authorities must uphold Russian law and the country’s international legal obligations on this matter and must take steps to ensure that lawyers are effectively protected against any form of harassment or improper interference.
During the searches, authorized by the Basmannyi District Court of Moscow, the files Marina Moshko’s clients were examined and photographs were taken of one file, which contained evidence in the same criminal case in which Marina Moshko is acting for the defence (see additional information below).
In addition to the searches of the lawyer’s premises, the investigators conducted a “confrontation” (a form of investigatory interview) between the lawyer and her client’s mother.
Marina Moshko was thereafter excluded from representation of her client as she was herself considered to be a witness in the case.
This case is hardly the first of its kind.
In a recent report entitled Towards a Stronger Legal Profession in the Russian Federation, the ICJ expressed concern at “cases of interrogations of lawyers in order to exclude them from representing a party to the proceedings”.
The report concluded that “[i]nterrogation of a lawyer as a witness constitutes a serious interference with the work of lawyers in clear contradiction to Russian legislation and international standards on the role and independence of lawyers.”
The ICJ recalls that the Russian Federation Code of Professional Ethics of Lawyers prohibits lawyers from making witness statements about any facts known to him or her in the context of professional activities (Article 6 (6)).
Both the Law “On advocates’ activities and advokatura in the Russian Federation” (Article 8 (2)) and the Russian Criminal Procedure Code (article 56 (3)) prohibit summoning lawyers as witnesses in cases in which they represent clients.
Furthermore, searches of lawyers’ premises and interference with clients’ files are contrary to international law and standards on lawyer-client confidentiality, which is an element both of the right to respect for private life, and of the right to a fair trial.
In particular, the UN Basic Principles on the Role of Lawyers, in Principle 22, stipulate that: “[g]overnments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential”.
The UN Human Rights Committee has also underscored that such practices may breach the obligation of States to ensure the right to a fair trial under the International Covenant on Civil and Political Rights (ICCPR), particularly where “lawyers are released from their obligation of professional confidentiality and obliged to testify or face the risk of imprisonment”
This case apparently represents such an instance in which a lawyer is excluded from representing a party, and lawyer-client confidentiality is breached, through questioning her as a witness. Such exclusions interfere with a defendant’s access to effective legal representation and may damage the effectiveness of the defence, contrary to the right to fair trial protected, inter alia, by Article 6 of the European Convention on Human Rights and Article 14 of the ICCPR.
Contact:
Róisín Pillay, Director, Europe Programme, roisin.pillay@icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov@icj.org
Additional information:
Marina Moshko represents Natalia Koltsova, a suspect in the case on a criminal group allegedly created by Dmitry Zarubin, owner of the Cartier boutique. Dmitry Zarubin was arrested in autumn 2015 and charged with creation of an organized criminal group which brought expensive electronic goods as cheap building materials. Natalia Koltsova is charged with heading one of the units of the alleged criminal group. These searches are reportedly related to the representation of Natalia Koltsova.
The ICJ understands that the Council of the Chamber of Lawyers of Leningrad Region has addressed a letter to the Prosecutor General of the Russian Federation regarding this problematic case of the searches of lawyers.
Read also ICJ’s Report Towards a Stronger Legal Profession in the Russian Federation
Russia-Marina Moshko statement-News-Web story-2016-RUS (story in Russian, PDF)
