UN: Procedural safeguards and civil society’s action to prevent arbitrary detention and enforced disappearance

UN: Procedural safeguards and civil society’s action to prevent arbitrary detention and enforced disappearance

The ICJ prepared an oral statement on procedural safeguards and civil society’s action to prevent arbitrary detention and enforced disappearance, for the interactive dialogue with the UN Working Groups on Arbitrary Detention and on Enforced and Involuntary Disappearances.

Although the statement could not ultimately be read out due to the limited time for civil society statements at the Human Rights Council, the text can found  here:

“Mr President, Chairpersons of the Working Groups,

The International Commission of Jurists (ICJ) welcomes the focus of the report of the Working Group on Arbitrary Detention on “Linkages between arbitrary detention and instances of torture and ill- treatment”.

The ICJ shares the view of the Working Group that “safeguards … to prevent” torture and ill-treatment minimize and prevent “instances of arbitrary detention” (A/HRC/39/45, para. 59, and the view that “Judicial oversight of detention is a fundamental safeguard of personal liberty ” (A/HRC/39/45, para. 60).

The ICJ further welcomes the interim report of the Working Group on Enforced and Involuntary Disappearances on effective investigations (A/HRC/39/46), including the finding that “relatives of the disappeared have proven to be essential in the context of investigations and should have the right to know the truth … .” (para. 65)

The ICJ however stresses that these standards are not always upheld by States in their policies and actions.

For example, in Turkey, judicial review of detention is carried out by Judgeships of the Peace whose independence is highly questionable.

Finally, with regard to enforced disappearances, the ICJ is very concerned by the actions of Turkish authorities prohibiting the Saturday Mothers to hold their weekly protests in Galatasaray Square (Istanbul) in memory of their disappeared, in breach of their right to freedom of assembly.

Events of this kind seriously weaken the procedural safeguards and the action of civil society to protect and promote the prohibition of arbitrary detention and ensure accountability against enforced disappearances.

The ICJ urges the Council to address these worrying developments.

I thank you.”

HRC39-OralStatement-WGADWGEID-2018-draft-ENG (download the statement)

 

 

 

Azerbaijan: UN statement on threats to the independence of lawyers

Azerbaijan: UN statement on threats to the independence of lawyers

The ICJ today made an oral statement at the United Nations, on threats to the independence of lawyers in Azerbaijan.

In the statement to the Human Rights Council, the ICJ emphasised that lawyers in Azerbaijan face suspension or disbarment for statements clearly constituting protected freedom of expression. In some cases, they are subject to arrest, detention, unfair trial, and arbitrary imprisonment.

The lack of independence of the Bar Association is a serious concern. This body is increasingly initiating apparently groundless disciplinary proceedings, including leading to disbarment, against lawyers who defend the interests of clients in high profile or politically sensitive cases. Disciplinary penalties in such cases are routinely upheld by the judiciary, which does not appear to be fully independent.

This was highlighted in preliminary findings of the Working Group on Arbitrary Detention following its recent visit (Working Group on Arbitrary Detention Statement upon the conclusion of its visit to Azerbaijan (16-25 May 2016)). Representatives of the ICJ are currently visiting Azerbaijan to further assess the situation.

The cases of Khalid Bagirov, Alaif Ghasanov and Intigam Aliyev illustrate these concerns. While welcoming the release of Mr Aliyev, we remain concerned at the maintenance of his underlying conviction despite credible reports that the charges against him were politically motivated.

Lawyer Muzaffar Bakhishov is currently subject to disbarment proceedings for having criticized the lack of independence of the judicial system.

These disbarments have a chilling effect on the work of other lawyers. They undermine access to effective and independent legal assistance to protect human rights.

The ICJ urged the Council to closely monitor this worrying trend for the rule of law.

The statement may be downloaded in PDF format here: HRC32-OralStatement-Azerbaijan-2016-final-ENG

UN: ICJ welcomes principles on challenging detention, and report on forced labour in supply chains

UN: ICJ welcomes principles on challenging detention, and report on forced labour in supply chains

The ICJ today made an oral statement at the UN Human Rights Council, welcoming the presentation of UN Basic Principles and Guidelines on the right to challenge detention, and a report on forced labour and slavery in supply chains.

The statement was made during an Interactive Dialogue with the Working Group on Arbitrary Detention and the Special Rapporteur on contemporary forms of slavery.

The ICJ said that the implementation of the Basic Principles and Guidelines would help prevent governments from depriving people of liberty solely for exercising freedoms of opinion and expression; peaceful assembly and association; thought, conscience and religion; or on the basis of discrimination. Such violations are often achieved by circumventing or suspending essential legal procedural protections such as habeas corpus.

The ICJ noted that the right to challenge detention is also a key safeguard against incommunicado or secret detention, enforced disappearance, and torture and other cruel, inhuman or degrading treatment.

The ICJ welcomed the attention the Working Group has given to the challenging contexts of counter-terrorism and armed conflicts, where such concerns are particularly acute.

The ICJ also welcomed the report of the Special Rapporteur on contemporary forms of slavery, addressing the issue of modern slavery and forced labour in supply chains, and the Rapporteur’s emphasis on the right to an effective remedy. In addition to the international legal and policy frameworks and continuing efforts by States and businesses outlined in the report, the ICJ noted that UN treaty-bodies have produced useful guidance and recommendations, such as the General Comment adopted by the Committee on the Rights of the Child in 2013, on State obligations regarding the impact of the business sector on children’s rights.

The full statement may be downloaded in PDF format here: UN-Advocacy-Oral statementWGADandSRslavery-2015
Earlier in the week, the ICJ published a legal commentary on certain aspects of the Principles and Guidelines, related to situations of armed conflict. The commentary is available here.

ICJ welcomes adoption of Basic Principles and Guidelines on habeas corpus

ICJ welcomes adoption of Basic Principles and Guidelines on habeas corpus

The ICJ welcomes yesterday’s adoption, by the UN Working Group on Arbitrary Detention, of the Working Group’s “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court”.

Under its resolution 20/16 (2012), the UN Human Rights Council requested the Working Group to prepare draft basic principles and guidelines on habeas corpus. The Working Group set out a first draft set of principles and guidelines ahead of its global consultation on the subject in September 2014. From 2 to 5 February 2015, the Working Group met to continue its elaboration of the Basic Principles and Guidelines, resulting in the adoption of a second draft. The Working Group adopted its final iteration of the document at the conclusion of its session on 29 April 2015. The Basic Principles and Guidelines will be presented to the Human Rights Council during the Council’s 30th regular session, to be held from 14 September to 2 October 2015.

The ICJ welcomes the Basic Principles and Guidelines as a means of assisting States to enhance, in law and in practice, respect for the right to habeas corpus. It especially welcomes certain aspects of the document, including:

  • Paragraph 68, in which applicable qualifications are set out to any derogating measures to accommodate constraints on the application of some procedural elements of the right to habeas corpus;
  • Principle 6 and Guideline 4 which reaffirm that habeas corpus petitions must be heard by courts that bear all characteristics of competence, independence and impartiality (paras 27, 70 and 72(a)), that competence includes the power to order immediate release if detention is fund to be arbitrary or unlawful (para 27), that immediate implementation of such orders is required (para 71(c)) and that courts must give reasoned and particularized decisions (para 71(d));
  • Guideline 7, in which it is provided that individuals are entitled to take proceedings multiple times (paras 81 and 82), that expediency is required, including in cases of subsequent challenges, and especially in cases alleging, among other things, torture or ill-treatment (para 83) and that authorities remain obliged to ensure regular review of the continuing need for detention (para 84);
  • Principle 9 and Guideline 8 concerning legal representation and legal aid;
  • The clarifications in Principle 10 and Guideline that persons able to bring proceedings include counsel, family members or other interested parties, whether or not they have proof of the consent of the detainee (paras 34 and 92) and that no restrictions may be imposed on a detainee’s ability to contact such persons (para 35);
  • The express recognition in Guideline 12 that information obtained by torture or other forms of ill-treatment may not be used in evidence;
  • Guideline 13 concerning disclosure and limitations applicable to any non-disclosure of information on security or other grounds;
  • Guideline 14, reflecting authorities’ obligation to justify the need and proportionality of detention;
  • Principle 15 and Guideline 16 (on remedies), reflecting the overarching right to remedies and reparation (paras 43), the need for authorities to give immediate effect to an order for release (para 44) and the right to compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition (paras 109-112); and
  • Principle 16 concerning the application of Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR) alongside international humanitarian law (paras 45 and 47), the application of Article 9(4) to civilians in an international armed conflict (para 47), the application of habeas principles to prisoners of war (para 48), and the question of administrative detention or internment in the context of a non-international armed conflict (para 49).

The ICJ has engaged in all stages of the Working Group’s elaboration and consultations. It made written submissions in November 2013, April 2014 and March 2015. Its staff, Matt Pollard and Alex Conte, gave panel presentations at the September 2014 global consultation.

ICJ further submissions on Draft Principles and Guidelines on habeas corpus

ICJ further submissions on Draft Principles and Guidelines on habeas corpus

The ICJ has made further submissions to the UN Working Group on Arbitrary Detention on its elaboration of Draft Principles and Guidelines on habeas corpus.

In February 2015, the Working Group released for public input a revised set of ‘Draft Principles and Guidelines on remedies and procedures on the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before a court without delay, in order that the court may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is not lawful’.

The ICJ’s submission welcomes the elaboration by the Working Group of the revised Draft Principles and Guidelines as a means of assisting States to enhance, in law and in practice, respect for the right to habeas corpus and especially welcomes certain aspects of the document. It suggests means of further improving the revised Draft Principles and Guidelines, concerning:

  • The temporary nature of any derogating measures impacting upon the application of some procedural elements of the right to habeas corpus;
  • The competence of courts to make orders for immediate release;
  • The implementation of court orders for release;
  • The public nature of judicial decisions following adjudication of habeas corpus petitions;
  • Guarantees applicable to specialized tribunals;
  • The right to legal aid and legal assistance;
  • Confirming that the procedure must be available at all times and to all detained persons, including prisoners or war, as a remedy to protect non-derogable rights such as the prohibition against torture and ill-treatment; and
  • The inadmissibility of evidence obtained by torture.

The Working Group will present its final draft to the Human Rights Council’s 30th regular session in September 2015.

Attachments

ICJ-WGAD-RevisedDraftPrinciplesAndGuidelines-3rdLegalSubmission-2015-EN (The ICJ’s latest submission in PDF)

WGAD-Habeas-RevisedDraftPrinciplesAndGuidelines-2015-EN (PDF)

Additional links for reference

The ICJ’s first written submissions to the Working Group in November 2013

The ICJ’s second written submissions to the Working Group in April 2014

Panel presentations at the September 2014 Global Consultation by ICJ staff Matt Pollard and Alex Conte

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