Jul 11, 2018 | News
Today, the ICJ expressed concern at the adoption of a new law on lawyers in Kazakhstan.
The Law ‘On the Professional Activities of Advocates and Legal Assistance’, signed into law on 10 July 2018, contradicts international law and standards on the independence of the legal profession, by enabling the executive to influence or to have control over who is allowed to practice law and substantial influence on disciplinary proceedings against lawyers.
The law will have negative repercussions for protection of human rights and the rule of law in the Republic of Kazakhstan.
“Some of the key provisions of the adopted law undermine the independence of the legal profession, a cornerstone of the rule of law,” Temur Shakirov, ICJ Europe Program Senior Legal Adviser said today.
“Not only does the law weaken the legal profession, it sends an unfortunate message to the public that, as a result, their human rights, including their right to a fair trial, may be harder to uphold within the legal system,” he added.
More specifically, the ICJ is concerned that, under the new law, the role of the independent Bar Association in the composition of the disciplinary commissions is reduced.
Besides lawyers, the Disciplinary Commission will now include ‘representatives of the public’ designated by the Ministry of Justice. While the law does not specify how these members of the Disciplinary Commission would be selected, the selection is to be made by the Ministry of Justice.
The same procedure is not excluded to select members who are retired judges, which the Law requires also be part of disciplinary commissions.
While many of the specific procedures are unclear, it is apparent that these provisions would give the Ministry extensive influence over the Disciplinary Commission, especially as the law does not explicitly require these members perform their duties independently from the instructions of the Ministry of Justice.
The influence of the executive over the disciplinary proceedings of the Bar Association is contrary to the principles of independence of lawyers.
The UN Basic Principles on the Role of Lawyers provide that disciplinary proceedings against lawyers are to be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.
Furthermore, the law continues to give the Ministry of Justice control over admission to the practice of law.
It stipulates that prospective lawyers who have completed their professional training are to be assessed by the Commission for admission to practice established by territorial bodies of the Ministry of Justice.
The commissions consist of seven members, of which only three are members of the Bar Association. The composition of the commissions and the principles of their work are to be approved by the orders of the Minister of Justice of the Republic of Kazakhstan.
The Law therefore preserves the previous procedure on admission to the profession criticized by the ICJ earlier, according to which the attestation of applicants for obtaining the membership to the Bar Association and issuing a license were within the exclusive competence of the Ministry of Justice of the Republic of Kazakhstan.
At the same time, many defense rights listed in the Law are curtailed or compromised by the wording that would allow for enactment of restrictions by secondary legislation, including that the adopted Law would not allow lawyers to freely and without interference collect evidence in defense of their clients or that lawyer’s inquiries can be subject to limitation where they seek to obtain “restricted information”.
The ICJ notes that according to the UN Basic Principles on the Role of Lawyers, States must ensure lawyers have access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time (Principle 21).
Read the full text in English here
Read the full text in Russian here
Jun 22, 2018 | News
Conclusions of the Conference on Judicial Independence, Guatemala City, 18-19 June 2018
The ICJ is deeply concerned about the increase in the abuse of disciplinary measures against independent and impartial judges and about crimes committed against human rights defenders. These attacks are putting the rule of law at risk in Guatemala.
The ICJ therefore urges the Inter-American Commission on Human Rights, the Subcommittee on Human Rights of the European Parliament and the UN Special Rapporteur on the Independence of Judges and Lawyers to carry out visits to the country so as to verify the situation.
Judges facing malicious disciplinary proceedings
From 18-19 June 2018, the ICJ hosted a conference on the independence of judges with participants from different Central American judges’ associations.
The conference was able to verify that impartial and honourable judges face on-going disciplinary actions that seek to have then recused from trials or have them removed from office on account of their judicial decisions.
Judges are facing the malicious use of the judicial disciplinary system by groups or persons who disapprove of judicial rulings in high-impact cases.
The meeting was an opportunity for different justice sector institutions and judges, victims of attacks, to analyse fundamental concepts and international standards on the judiciary.
The conference concluded, the judicial career system must guarantee that a higher judicial authority can only sanction judges for legally established reasons as set down by international standards.
There was a full agenda of discussions with the participation of the Association of Guatemala Judges for Integrity (AGJI), the President of the Supreme Electoral Tribunal, the Supervisor General of Courts, judges from the Penal Chamber of the Supreme Court, the Commissioner of the International Commission against Impunity in Guatemala (CICIG) and the plenary of the Council of the Judicial Career.
The conference examined attacks against judges and their impact, case by case, in the light of international standards. The conference concluded that judges including Ericka Aifán, Yassmín Barrios, Miguel Ángel Gálvez, Carlos Ruano and Pablo Xitumul are facing disciplinary measures because they have acted independently and impartially.
The spurious complaints presented against them before the judicial disciplinary system or other State institutions should be excluded “in limine”.
Read the full Article in English (PDF): Guatemala-Conference-of-Judges-News-Web-stories-June-2018-ENG
Jun 20, 2018 | News
The Trump administration’s broader rejection of multilateralism and rule of law, its actual practices, and paralysis of other States, are the real issues, says the ICJ.
On the evening of 19 June, the United States of America announced it was formally abandoning its membership of the UN Human Rights Council.
“The withdrawal of the United States from the United Nations Human Rights Council is symptomatic of its broader rejection of multilateralism and rule of law, and how it acts in practice, both at home and abroad,” said ICJ Secretary General Sam Zarifi in reaction.
The inhuman caging of thousands of migrant and refugee children, and turning a blind eye to the grave human rights violations in North Korea, are but two recent and glaring examples, along with a recent highly critical report by the UN Special Rapporteur on extreme poverty and human rights, Philip Alston, following his visit to the US last year.
Even more concerning, the US retreat comes at the same time as openly racist and nationalist authoritarianism rises across Europe. Even where they are not immediately succeeding in coming to power, such movements are slowly paralyzing Europe at exactly the time its moderating or progressive influence on world affairs in general, and human rights in particular, is most needed.
The US in fact is cooperating in New York with the very same countries it publicly condemns, to cut the funding and mandate for the day-to-day human rights work of the UN – whether through the Office of the High Commissioner for Human Rights, the Secretary General’s Rights up Front Initiative, or UN country offices. And many many other countries are complicit in that exercise by their silence.
With moves by other powerful States to seize and dilute the UN’s human rights machinery, it has never been more important for other States sincerely committed to defending human rights and the rule of law to step into the empty seats the US is leaving behind.
Jun 20, 2018 | Advocacy, News
Today, the ICJ held a joint side event at the 38th Regular Session of the Human Rights Council on freedoms of expression, association and assembly in the context of elections in Asia.
The event was co-organized by the ICJ, in collaboration with Forum Asia and Human Rights Watch.
Kingsley Abbott, ICJ Senior Legal Adviser, spoke at the event, highlighting the regression in human rights and the rule of law in the Southeast Asian region, focusing on Thailand and Cambodia in the lead up to elections.
He identified recent developments in the misuse of the law to violate human rights in Thailand and Cambodia, and called for a necessary push back against the weaponization of the law and the misuse of the principle of the ‘rule of law’ in both countries.
Other speakers at the event included Iniyan Ilango, from Forum Asia, who spoke about fundamental freedoms in the context of elections in Bangladesh and the Maldives and other countries in Asia; and UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Clément Nyaletsossi Voule, who addressed the event more broadly on the protection and promotion of freedom of assembly and association in the context of elections.
The event was moderated by by Laila Matar, Deputy Director, United Nations, Human Rights Watch.
Contact
Kingsley Abbott, Senior Legal Adviser, ICJ Asia Pacific Regional Office, t: +66 94 470 1345, e: kingsley.abbott(a)icj.org
Thailand-Cambodia-Side-event-HRC38-Freedoms-of-Expression-Advocacy-2018-ENG (full speech in PDF)
Jun 19, 2018 | Advocacy
The ICJ welcomes the proposal of the Parliamentary Assembly of the Council of Europe (PACE) in its Recommendation 2121(2018) calling for the development of a Council of Europe Convention on the Profession of Lawyer.
The ICJ believes that such a Convention could make an important contribution to strengthening the rule of law and the protection of human rights in the Council of Europe region, building on existing Council of Europe standards and jurisprudence of the European Court of Human Rights.
The ICJ particularly welcomes PACE’s call for an effective control mechanism to be put in place under a new Convention, as recent developments in a number of Council of Europe Member States show a significant gap in implementation of Council of Europe standards on the independence and security of lawyers.
Lawyers, along with judges and prosecutors, are one of the pillars on which protection of the rule of law and human rights through the justice system rests.
Recognizing this, the ICJ, since its foundation in 1952, has worked to protect lawyers under threat and to develop international standards for the independence, role and integrity of the profession.
Successive ICJ Declarations, adopted by leading jurists from all regions of the world, have affirmed that the role of the legal profession is “paramount in safeguarding human rights and the Rule of Law” (2008 Declaration on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (ICJ 2008 Declaration).
In any legal system, the legal profession plays a pivotal role in ensuring access to justice and effective remedies and accountability for violations of human rights, as well as upholding the right to fair trial, right to liberty and freedom from torture and other ill-treatment in the criminal justice process.
In defending criminal cases, in advising and representing victims of human rights violations and their relatives or in challenging before the courts national legislation or policy that is contrary to human rights , lawyers give practical effect to human rights guarantees and rule of law principles.
The importance of this role has been recognized by international standards as well as in the jurisprudence of the European Court of Human Rights, which has emphasized the “specific status of lawyers [having] a central position in the administration of justice as intermediaries between the public and the courts”.
It is thus of fundamental importance that lawyers are able to fulfill their professional duties without interference. As the European Court of Human Rights has held, “persecution and harassment of members of the legal profession strikes at the very heart of the Convention system.”
Full text in ENG (PDF): Europe-Drafting-a-EU-Convention-on-the-Profession-of-Lawyer-2018-ENG
