Jul 25, 2017 | News
Today the ICJ expressed concern about the real threat of criminal prosecution against lawyers Yerlan Gazimzhanov, Amanzhol Mukhamedyarov and Assel Tokayeva (photo) in Kazakhstan.
The ICJ said the action against lawyers was aimed at their discharging of their professional functions on behalf of clients, and not for any genuine criminal misconduct.
The ICJ called on the responsible authorities of Kazakhstan to discontinue the proceedings against the lawyers, which are contrary to international law and standards on the role of lawyers and the rule of law in the administration of justice.
On 22 June, in a court hearing in the criminal case, judge Ubasheva issued interim rulings against the lawyers seeking their prosecution for a number of acts, which on their face do not consist of criminal misconduct. The conduct for which prosecution is sought includes lodging a complaint alleging unethical conduct by the judge with the Commission on Judicial Ethics and Judicial Jury of the Supreme Court of the Republic; filing a motion for recusal of the judge; stating that the crime for which their clients had been accused had in fact been committed by another defendant; and participating in an international conference, rather than attending a court hearing to defend clients.
The various legal procedures used by the lawyers, including their complaint against the judge and the request for the judge’s recusal, are not prohibited by law. On the contrary, acts such as filing motions for recusal, lodging ethics complaints through officially prescribed channels, and performing standard criminal defence functions they constitute regular procedures prescribed in legislation Kazakhstan. They are also fundamental pursuant to the proper administration of justice under the rule of law.
The interim rulings of the court did not provide an analysis of the legal provisions allegedly violated by the lawyers. Certain of the lawyers were said by the court to have “demonstrated superiority over other actors in criminal proceedings.” It was also alleged that the information posted on a Facebook page about the proceedings in which one of the lawyers took part was false. However, the ruling failed to cite any specific details or conduct of the lawyers which would support these conclusions.
Regarding the charge that two of the lawyers had chosen to participate in an international conference rather than appear at the court hearing, this at most would fall under disciplinary procedures governing the conduct of members of the bar, and not the criminal law. The ICJ notes these charges should normally be made to competent disciplinary body, the Collegium of Lawyers, and not the Ministry of Justice through the request of the judge.
In addition to the criminal prosecution, judge Ubasheva asked the Ministry of Justice to take measures against the lawyers for a breach of professional ethics, causing unjustified delays in criminal trial, and contempt of court, and asked the Ministry of Interior to undertake an inquiry to determine whether the conduct of the lawyers constituted an offence punishable under Article 407 of the Criminal Code of Kazakhstan (obstruction of justice).
On 20-21 July 2017, the Criminal Chamber of Appeals examined the lawyers’ appeals against the conviction and interim appeals against the interim rulings.
The appeal proceedings before the Astana City Court were attended by Gulnora Ishankhanova, ICJ Commissioner acting as an ICJ observer.
Kazhakstan-Trial observation 3 lawyers-News-web story-2017-RUS (story in Russian, PDF)
Jun 28, 2017 | News
Government moves to amend the regulatory framework of the legal profession in Kazakhstan may undermine its independence and are contrary to the principle of self-regulation of the profession, the ICJ said today.
The ICJ called on the authorities of Kazakhstan to refrain from interference in the governance of the independent legal profession and step back to allow the collegia of lawyers to continue to take responsibility for such matters.
The ICJ stressed that any proposals for reform put forward by the governing bodies of the profession should be developed in consultation with and enjoy the consent of the members of advokatura in accordance with international law and standards on the independence of lawyers.
The ICJ was responding to proposals put forward by the Justice Minister Marat Beketayev for reform of the legal profession in Kazakhstan.
In a statement to Parliament on 29 May 2017 (Report of the Minister of Justice on the issues of further development and reform of the institutes of notary and advokatura on 29 May 2017), the Minister outlined plans to:
- lower training and entrance fees to the profession “in order to simplify access to the profession”;
- broaden the powers of the Republican Collegium to regulate the disciplinary system for lawyers, in light of the Minister’s view that lawyers were avoiding disciplinary responsibility in many cases under the current system;
- require lawyers to undergo annual training followed by exams, which would be set not by the collegia themselves, but by universities or external training centres;
- require lawyers, in addition to the participation in state-funded legal aid scheme, to provide mandatory legal assistance without financial support from the Government, which the Minister described as “pro bono” service
The importance of an independent legal profession which is self-regulating is well recognized and accepted under international standards and by international authorities.
One of the means by which such independence may be guaranteed is the governance of the profession by an organization independent from the State or other national institutions.
International standards provide that it is an important function of the lawyer’s association “[t]o maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession” (Singhvi Declaration, para.99).
In this context, comments by the Justice Minister Marat Beketayev on the need to change the disciplinary system due to lawyers avoiding disciplinary responsibility “for violations committed” is of serious concern, the ICJ said.
While it is important that lawyers who act against the interests of their clients, or otherwise violate standards of lawyers’ ethics are subject to disciplinary responsibility, it is the function of the profession itself to decide on such matters. Disciplinary proceedings should never be used to undermine lawyers’ independence.
Lowering entrance fees for qualifying lawyers may be a positive measure that can enhance access to the profession for qualifying lawyers, in circumstances where such fees are inaccessibly high.
However the initiating and design of such proposals should not be in the hands of the executive, as this may limit the independence and effectiveness of the legal profession.
Financial sustainability of an independent legal profession largely depends on its members’ fees.
The advokatura should be able to regulate and finance its regular operations, including administration and training, the ICJ added.
As noted by the former UN Special Rapporteur on the Independence of Judges and Lawyers in his report of 2009: “… the legal profession is best placed to determine admission requirements and procedures and should thus be responsible for administering examinations and granting professional certificates. This would further help in preserving its independence and self-governance, as advised in the Basic Principles.”
The ICJ is also concerned at suggestions that, as part of continuing legal education, lawyers will be subject to examinations by institutions outside the profession.
While it remains unclear what role or effect such examinations would have, the proposal raises concerns regarding the legal profession’s self-regulation and would risk undermining its independence, the ICJ said.
It should be recalled that, Kazakhstan is required take measures to remove obstacles to the independence of lawyers.
Regarding the proposals on so called ‘pro bono legal assistance’, while it is welcome when any State adopts measures to make legal aid more accessible, such measures should not place an unreasonable burden on lawyers to provide mandatory legal assistance.
The scheme proposed by the Minister for Justice whereby lawyers become responsible for providing legal services without financial compensation for their work is of concern, and appears unlikely to ensure a high quality of legal advice, the ICJ added.
It should be the role of the government to provide regular and sufficient funding for such services, ensuring that legal aid is available for indigent clients in line with international standards.
Kazakhstan-Interference legal profession-News-2017-RUS (Russian version, in PDF)
Jun 22, 2017 | News
The ICJ welcomes the adoption today, by consensus, of two UN Human Rights Council resolutions on the independence of judges & lawyers.
The Human Rights Council adopted the biannual resolution on independence of judges and lawyers, including a number of new elements on the theme of independence of lawyers and the legal profession. In particular, the resolution highlights the ongoing threats against and interference with the independence of lawyers and the ability of lawyers to fulfil their professional functions, including in relation to human rights.
The resolution reaffirms and builds on the UN Basic Principles on the Role of Lawyers.
The Human Rights Council also unanimously renewed the mandate of the Special Rapporteur on Independence of Judges and Lawyers for a further period of three years.
The unofficial text of the two resolutions are available in PDF format below:
Official versions will eventually appear on the UN website, at this location.
Jun 22, 2017 | News
Pakistani authorities need to ensure a prompt, impartial and effective investigation into a barrage of assaults and threats against lawyers in the premises of the Lahore High Court, the ICJ, Human Rights Watch and Amnesty International said today.
The Government needs to defend the rule of law and prosecute those responsible for any criminal conduct.
On 20 June, during proceedings of a case involving the alleged abduction and subsequent “disappearance” of a 26-year old woman and her two-year old son, supporters of the accused, a prominent lawyer, physically assaulted the complainant’s counsel Shabbir Hussain and Usama Malik, and made abusive remarks and threats against another member of the complainant’s legal team, Noor Ejaz Chaudhry.
The attackers were mostly lawyers and members of the local bar association.
The attackers also made abusive and threatening remarks against Asma Jahangir (photo), a notable human rights lawyer, Honorary Commissioner of the ICJ, and former President of the Supreme Court Bar Association.
Asma Jahangir was not present in the court but was represented by her legal team comprising of Shabbir Hussain, Usama Malik, Mian Liaquat Ali and Noor Ejaz Chaudhry.
“The legal profession is one of the pillars of the administration of justice. It is deeply worrying that instead of discharging their responsibility to uphold the rule of law, certain lawyers would resort to threats and violence in a clear attempt to obstruct justice,” said Ian Seiderman, ICJ’s Legal and Policy Director.
Under international standards, including the UN Basic Principles on the Role of Lawyers, Pakistan has an obligation to ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.
Where lawyers are threatened as a result of discharging their functions, authorities must ensure they are adequately safeguarded.
“Lawyers must be able to go to court without fearing violent assaults and abuse,” Brad Adams, Asia director at Human Rights Watch said. “That such assaults take place with increasing frequency in Pakistan and without accountability represents a serious failure of the Pakistani authorities to ensure rule of law.”
It is the responsibility of the bar councils and associations to ensure that allegations of professional misconduct against their members are promptly, independently and impartially investigated, and if lawyers are found in breach of their codes of conduct after a fair hearing, disciplinary action is taken against them.
Any disciplinary action must be subject to an independent judicial review.
Threatening and assaulting opposing counsel is not just against the law, but also in breach of lawyers’ professional code of ethics,” said David Griffiths, Amnesty International’s Senior Adviser on South Asia. “The respective Bar Councils must take notice of the allegations, and use this condemnable incident as an opportunity to tackle the culture of impunity which impacts even the legal profession in Pakistan.”
Background
In May 2017, Bilquis Zareena filed a habeas corpus petition in the Lahore High Court for the recovery of her daughter Ayesha and grandson Alyan Ali, who have allegedly been missing since November 2016.
According to Bilquis Zareena, her daughter had secretly been married to Maqsood Buttar, a prominent lawyer and member of the Pakistan Bar Council, the highest regulatory body for lawyers in the country.
Bilquis Zareena claims her daughter and grandson’s lives could be in danger as Maqsood Buttar had previously threatened and even attempted to kill Ayesha.
The next hearing in the case is on Friday, 23 June 2017.
Contact:
Ian Seiderman, ICJ Legal and Policy Director, e: ian.seiderman(a)icj.org
Reema Omer, ICJ International Legal Adviser (South Asia), e: reema.omer(a)icj.org
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.
