Jul 18, 2017 | Advocacy, Analysis briefs, News
The ICJ today called on the Tunisian authorities to adopt and apply procedures for the Specialized Criminal Chambers (SCC) that are clear and comply with international human rights law and standards.
The statement came following a high-level mission to Tunisia from 12 to 15 July 2017 in which the ICJ engaged with senior judicial officials, including the President of the Cassation Court, members of the High Judicial Council, SCC judges, and other stakeholders.
An ICJ analysis, Procedures of the Specialized Criminal Chambers in light of international standards, was published at the end of the mission.
“While the Specialized Criminal Chambers have the potential to contribute to addressing impunity and deliver justice for victims in Tunisia, ambiguity about the procedures to be followed by these Chambers risks undermining their effectiveness,” warned Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
As detailed in the ICJ analysis, the lack of clarity comes in part from the 2013 transitional justice Law, which is seen by many stakeholders as setting up a special regime, separate from the existing criminal justice system.
There is fear that the SCC may decide not to apply the existing ordinary criminal procedures, while at the same time no detailed procedures specific to the SCC have yet been adopted.
The creation of such a gap would risk serious breaches of international standards of fairness and justice.
For example, the 2013 Law seems to give the Truth and Dignity Commission (Instance Vérité et Dignité, IVD) exclusive power to refer cases to the SCC.
However, no procedures specific to the SCC implement the rights of an accused to examine witnesses interviewed by the IVD or to access all documents and evidence collected by the IVD in order to prepare his or her defence, as required by international standards and the ordinary code of criminal procedure.
The 2013 Law also fails to clarify the role of prosecutors and investigating judges in addressing such cases, including by making their own determination in relation to charges, standard of proof, and whether these cases should be brought before the SCC.
“Clarifying the procedures to be applied by the Specialized Criminal Chambers and ensuring their full compliance with international standards, including those relating to fair trial, are a prerequisite to fully establish the truth about human rights violations, hold those responsible to account, and ensure that the proceedings are fair to the victims and accused,” added Benarbia.
The ICJ set out a list of recommendations with a view to assisting the Tunisian authorities in their efforts in achieving these objectives, including by:
- Amending article 42 of the 2013 Law and related provisions to clearly provide victims of gross human rights violations with direct access to the SCC, including when victims did not submit a file to the IVD;
- Amending provisions of the IVD Guides to ensure that the review process and the possibility to challenge IVD’s decisions will apply to decisions not to transfer a case to the SCC and that such review be based on objective criteria for considering gross human rights violations in line with international standards;
- Establishing specialized prosecution services, investigating judges, and judicial police in line with international standards and with adequate resources to work in coordination with the SCC;
- Clarifying the relationship between the SCC and other ordinary criminal chambers and civil and other courts;
- Amending the legal framework to clearly provide that cases investigated by the IVD are to be transferred to specialized prosecutors who are to carry out their functions as defined in the CCP and in line with international standards;
- Ensuring that the IVD’s investigative function complements the role of the specialized judicial institutions in charge of the investigation and prosecution; and
- Amending the CCP and ensuring that any related provision of any other procedures adopted for the SCC fully respect fair trial guarantees.
Contact
Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme, tel: +33 642837354, e-mail: theo.boutruche(a)icj.org
Tunisia-Memo on SCC Procedures-Advocacy-Analysis Brief-2017-ENG (full memo in English, PDF)
Tunisia-SCC procedures memo-News-2017-ARA (full story in Arabic, PDF)
Tunisia-Memo on SCC Procedures-Advocacy-Analysis Brief-2017-ARA (full memo in Arabic, PDF)
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.
Jun 16, 2017 | News
Justice Prafullachandra Natwarlal Bhagwati, former ICJ Commissioner and Honorary Member and Chief Justice of the Supreme Court of India, passed away at the age of 95, on 15 June 2017, following a brief illness.
“The International Commission of Jurists benefited greatly from Justice Bhagwati’s engagement and leadership. He was a giant of the human rights movement, dedicated to enlarging and ensuring access to justice for everyone, including those who couldn’t seek and receive justice due to their economic or social status,” said Sam Zarifi, ICJ’s Secretary-General.
“His dedication and ground-breaking approach to human rights accountability inspired many within and outside of the ICJ, and the values he represented will continue to inspire and inform our work,” he added.
Justice Bhagwati had a long history of promoting and protecting human rights, both at home and on the international stage, particularly for the most marginalized and vulnerable individuals and groups.
Former Chief Justice of India, Justice P.N. Bhagwati held a long and illustrious career within the Indian judiciary.
He introduced many innovative reforms within the Indian judicial system that increased access to justice for the poorest and most disadvantaged, including as a pioneer of public interest litigation and absolute liability.
Outside of India, Justice P.N. Bhagwati played a prominent role in the international human rights movement, for example as a member of the Committee of Experts of the International Labour Organization and Chair of the United Nations Human Rights Committee.
He was also actively involved in a number of non-governmental organizations, including the ICJ, where he committed to a high number of missions, seminars, publications and other activities on behalf of the organization.
He also served as a long-standing Chair of the Advisory Board for the ICJ’s Centre for the Independence of Judges and Lawyers.
Jun 7, 2017 | Events, News
The ICJ organised a panel discussion on 8 June 2017, on the role of judges and lawyers in relation to refugees and migrants, at a side event to the 35th session of the UN Human Rights Council in Geneva.
The Panel was held on the occasion of the publication of ICJ Principles and Commentary on the topic, developed in consultation with judges, lawyers and other expert practitioners from around the world.
The event took place on Thursday, 8 June 2017, from 10:30 to 11:30, in Room XXI of the Palais des Nations, Geneva.
Welcome remarks were delivered by:
- Saman Zia-Zarifi, Secretary General of the ICJ.
- Olivier Coutau, Délégué à la Genève internationale, Republic and Canton of Geneva
Panelists included:
- François Crépeau, UN Special Rapporteur on the human rights of migrants.
- Carole Simone Dahan, Senior Legal Advisor on Judicial Engagement, UNHCR.
- Pia Oberoi, Advisor on Migration and Human Rights, OHCHR.
The discussion was moderated by Matt Pollard, ICJ Senior Legal Adviser.
At the event, each of the panelists emphasised the importance of access to independence courts and lawyers for securing the rights of refugees and migrants, and highlighted the importance and utlity of the ICJ Principles in this regard.
More background on the ICJ Principles and Commentary is available by clicking here.
For more information, email un(a)icj.org
A flyer for the event may be downloaded in PDF format here: Refugees-Migrants-ICJ-Event-HRC35-June2017
The consultations, development and publication of the ICJ Principles were made possible with the financial support of the Republic and Canton of Geneva, for which the ICJ is grateful.
May 10, 2017 | Advocacy, News, Non-legal submissions
The ICJ emphasised the role of judges and lawyers in protecting human rights of migrants, during consultations at the UN in Geneva, as part of the preparatory process for a Global Compact on migration.
The informal consultation was convened by the UN General Assembly and held in Geneva on 8-9 May 2017. With a focus on human rights of migrants, it was the first thematic consultation to be held in connection with ongoing efforts by States to agree a UN global compact for safe, orderly and regular migration.
In addition to a written submission, the ICJ made statements during the main discussion, and as part of the concluding discussions.
The initial statement highlighted the recently published Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants, developed by the ICJ in consultation with a wide range of relevant experts.
The concluding statement emphasised that effective protection of human rights, including of migrants, requires equal and effective access to impartial courts and independent lawyers, and urged States to ensure that the need for legal and practical guarantees for such access is reflected in the Global Compact eventually to be adopted. Indeed, the ICJ noted, access of individuals to a means of their enforcement is a key element distinguishing durable “rights” from, for instance, welcome but not necessarily permanent generosity.
For more information about the Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants, click here.
