Jul 30, 2020 | Advocacy
The ICJ is concerned that in Kazakhstan, Kyrgyz Republic, Tajikistan and Uzbekistan the COVID-19 pandemic, and measures taken purportedly to contain it, have significantly curtailed access to justice. Restrictions have affected the operation of the courts and impeded lawyers’ ability to provide effective legal assistance to their clients.
In the context of the COVID-19 pandemic — whether under a state of emergency or not — States’ obligations under international human rights law to uphold the fundamental guarantees of a fair trial, and to ensure access to effective remedies for violations of human rights endure.
The right to a fair trial entails the right to adequate time and facilities to prepare a defense, which, in turn, requires the opportunity to communicate with one’s lawyer effectively and in confidence.
In light of this, the ICJ calls on Central Asian States to ensure that, while COVID-19 restrictions are in place, access to a lawyer continues to be ensured, and that measures be put in place so that lawyers are able to communicate with their clients safely, effectively and confidentially, including in places of detention or during online hearings.
In addition, wherever and whenever the authorities put in place restrictions on physical meetings or travel with the stated purpose of containing the COVID-19 pandemic, the ICJ calls on Central Asian States to ensure that access to court is guaranteed through specific legal, administrative and practical measures.
ICJ research and discussions with lawyers have shown that across Central Asia, regulations adopted during COVID-19 relating to the administration of justice have suffered from vague language, inconsistencies and unclear guidance.
In practice, this had serious implications for the right to fair trial of defendants: in some cases defence lawyers were not allowed to meet their clients who were charged with serious crimes; in other instances lawyer-client meetings were very short, undermining the ability of lawyers to take proper instructions from their clients and to advise them accordingly; in other cases defence lawyers met their clients in circumstances where the confidentiality of their communication was compromised as a result of the virtual communication platforms they were forced to use.
The restriction measures relating to the administration of justice that the authorities have imposed have also had negative consequences for access to justice and effective remedies for victims of human rights violations; notably, access to legal assistance in domestic violence cases was impeded across the region.
In many court buildings social distancing requirements were not adjusted in such a way as to uphold the right to a public hearing. There has been a lack of sufficient guidance on how the right to a public hearing may be ensured online, including as to how the right to equality of arms and the right to legal representation would be protected.
Download
Central Asia-Statement COVID-19-Advocacy 2020-ENG (full article with additional information, in PDF)
Jul 8, 2020 | News
Draft law reduces leading bar associations’ authority, leads to creation of rival groups, the ICJ and Human Rights Watch said today. The Turkish government’s plan to allow for multiple bar associations appears calculated to divide the legal profession along political lines and diminish the biggest bar associations’ role as human rights watchdogs, they added.
The current bar associations have not been consulted, and 78 bars out of 80 signed a statement opposing the plan.
The ICJ and Human Rights Watch have published a question and answer document explaining the draft law, scheduled for a vote in parliament in the coming days. The document outlines the government-led effort to reduce the influence of leading bar associations, reflecting the executive’s growing dissatisfaction with the bar associations’ public reporting on Turkey’s crisis for human rights and the rule of law.
“Turkey’s prominent bar associations play a key role in defending fair trial rights and scrutinizing human rights at a time when flagrant violation of rights is the norm in Turkey,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch.
“The government move to create multiple bars and dramatically cut leading bars’ representation at the national level is a clear divide-and-rule tactic to diminish the bar associations’ authority and watchdog role,” he added.
The proposed amendments provide that in provinces with over 5,000 lawyers, a group of at least 2,000 lawyers can establish alternative bar associations.
In big cities such as Istanbul, Ankara, and Izmir, several bar associations could be established. The amendments would also greatly reduce the representation of the largest bar associations at the national level within the Union of Turkish Bars, the Ankara-based umbrella body with significant financial resources it controls and distributes to provincial bars.
The fact that the vast majority of elected legal profession representatives oppose the move and that the likely impact will be to greatly diminish the authority of leading provincial bars that have been critical of certain government initiatives demonstrates that the aim of the proposed change is to shield the government from justified criticism, the ICJ and Human Rights Watch said.
Drastically cutting the number of delegates from large bar associations representing thousands of lawyers to the national Union of Turkish Bar Associations would reduce the influence of the large bar associations in electing the national group’s president and participating meaningfully in other decision-making functions.
A provincial bar association with fewer than 100 lawyers, such as Ardahan in northeastern Turkey, for example, would be represented by 4 delegates, compared with 3 at present.
But a bar association such as Izmir in western Turkey, with over 9,500 lawyers, which sends 35 delegates, would be entitled to only 5. Istanbul, Ankara, and Izmir Bar, which represent 55 percent of the lawyers in Turkey, would be entitled to only 7 percent of all delegates within the national union.
The atmosphere of conflict in which the draft law has been introduced, its timing, and the lack of consultation with the bar associations themselves provides credible grounds for great concern and skepticism over the government’s motives, the groups said.
Over the past year, Turkey’s presidency and government have made public statements strongly criticizing leading bar associations in response to the bars’ legitimate expression of concerns about Turkey’s rule of law crisis and executive interference in the justice system.
The government has reacted strongly against the bars’ scrutiny of its failure to uphold human rights obligations through bar association publication of reports on torture, enforced disappearances, and other rights abuses ignored by the authorities.
For these reasons, the government’s proposed amendments are clearly designed to achieve a political purpose unrelated to an effort to advance or strengthen standards in the legal profession, the ICJ and Human Rights Watch said.
The government’s move is politically divisive and will contribute to undermining the appearance of independence and impartiality in the justice system.
“The government should immediately withdraw the current proposed amendment and embark on a process of full consultation with bar associations,” said Róisín Pillay, Director of ICJ’s Europe and Central Asia Programme.
“The government’s plan as it stands will only deepen mistrust in Turkey’s justice system as lacking independence by dividing the legal profession along political lines. This could have disastrous long-term consequences for upholding the role and function of lawyers and for fair trial rights.”
Contact:
Róisín Pillay, Director of ICJ’s Europe and Central Asia Programme, t: +32-2-734-84-46 ; e: roisin.pillay(a)icj.org
Massimo Frigo, Senior Legal Adviser, ICJ’s Europe and Central Asia Programme, t: +41-79-749-99-49 ; e: massimo.frigo(a)icj.org ; Twitter: @maxfrigo
Download
Turkey-Q and A on the bar associations-Advocacy-2020-ENG (Q & A, in PDF)
Turkey-Q and A on the bar associations-News-Press releases-2020-TUR (Story in Turkish, PDF)
Turkey-Q and A on the bar associations-Advocacy-2020-TUR (Q & A in Turkish, PDF)
Jun 19, 2020 | Advocacy, Non-legal submissions
The ICJ has responded to a call for input by UN human rights experts, for their upcoming reports on COVID-19 and human rights.
The written submission, in response the joint call for submissions questionnaire issued by a number of UN Special Procedures, highlights key issues in relation to access to justice and the operation of courts, the right to food and the right to housing, and impacts on LGBTi persons and persons living in poverty, in a number of countries where the ICJ is active.
The submission can be downloaded in PDF format here: ICJ-UN-SP-COVID19SUBMISSION-2020-EN
Apr 2, 2020 | News
The ICJ welcomes the decision by the Constitutional Court of Zimbabwe to invalidate the enactment of Constitutional Amendment Bill (No. 1) of 2017 in Gonese and Anor v Parliament of Zimbabwe and 4 Ors. The judgment restores important Constitutional guarantees for the independence of the judiciary in Zimbabwe.
Zimbabwe adopted a new Constitution in 2013 and one of the progressive elements of this Constitution was its provisions regulating the appointment of judicial leaders such as the Chief Justice, Deputy Chief Justice and Judge President of the High Court. These judicial leaders perform important administrative functions with a huge impact on access to justice for the public.
For example, the Chief Justice is the head of the Judicial Service Commission (JSC) and therefore, presides over processes to select and recommend candidates for judicial appointment.
The Judge President is responsible for case allocation in the High Court and therefore, selects judges to sit on cases. It is important that the procedures for appointing these judicial leaders be transparent and independent of executive control in order to maintain the independence and impartiality of judges as well as promote public confidence in the judiciary.
The 2013 Constitution ensured this by prescribing procedures which accorded the executive a constrained role in the selection and appointment of these judicial leaders.
For example, the process of selecting these office bearers was to be led by an independent Judicial Service Commission (JSC) which would publicly advertise the vacancies, shortlist candidates, conduct interviews that are open to the public and recommend candidates for appointment by the President. The President was required to appoint only from the shortlist submitted by the JSC.
In 2017, the then-President of Zimbabwe Robert Mugabe signed into law a constitutional amendment bill which sought to change these provisions and give the President the authority to select and appoint these judicial leaders without conducting public interviews and without being constrained or restricted to the shortlist provided by the JSC.
The enactment of this constitutional amendment bill was challenged in the Constitutional Court on grounds that the amendment had been adopted and enacted into law without following due process.
In its judgment, the Constitutional Court concluded that, “It is declared that the passing of Constitutional Amendment Bill (No. 1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of s 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No. 1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).”
The Court directed the Senate to conduct a vote in accordance with the procedure for amending the Constitution prescribed by s 328(5) of the Constitution within one hundred and eighty days of the order given. Failure to do so will render the declaration of invalidity of Constitutional Amendment Bill (No. 1) of 2017 final, said the Court.
Commenting on this judgment, ICJ Africa Director Arnold Tsunga said: “This is a positive judgment which underscores the vital principle of legality, particularly that changes to the Constitution must be processed and enacted in strict accordance with the laid out procedures. Respect for the Constitution, and ensuring the independence of the judiciary, are fundamental elements of the rule of law; both are advanced by this judgment.”
The decision by the Constitutional Court comes at a time when the Parliament of Zimbabwe has gazetted further proposed changes to the Constitution, which amongst other things seek to give the executive a stronger role in the selection and appointment of judges to the Supreme Court and Constitutional Court.
These proposed changes would undermine judicial independence and undercut public confidence in the independence and impartiality of the judiciary. Further, these proposed changes are contrary to international and African standards. For instance, the United Nations Basic Principles on the Independence of the Judiciary enjoin member states to ensure that “Any method of judicial selection shall safeguard against judicial appointments for improper motives.”
The African Commission on Human and Peoples’ Rights’ Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa further provide that, “The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged.” The ICJ therefore, calls upon the government of Zimbabwe to reconsider its decision to proceed with these proposed changes to the Constitution.
Contact
Arnold Tsunga, t: +26377728 3248; e: arnold.tsunga@icj.org
Mar 11, 2020 | Advocacy, Non-legal submissions
ICJ has joined other NGOs in urging India, Pakistan and the Human Rights Council, to take action to address the grave situation for human rights in Jammu & Kashmir.
The joint statement read as follows:
“Our organizations express grave concern over the human rights situation in Jammu & Kashmir, where the authorities imposed severe restrictions after a decision to revoke constitutional autonomy on 5 August 2019, including one of the world’s longest internet shutdowns, which the Indian Supreme Court has said violates the right to freedom of expression.
Hundreds were arbitrarily arrested, and there are some serious allegations of beatings and abusive treatment in custody, including alleged cases of torture. Three former chief ministers, other leading politicians, as well as separatist leaders and their alleged supporters, remain in detention under the Public Safety Act (PSA) and other abusive laws, many without charge and in undisclosed locations outside of Jammu & Kashmir. This violates fair trial safeguards of the criminal justice system and undermines accountability, transparency, and respect for human rights. Journalists and human rights defenders have been threatened for criticizing the clampdown. These violations, as those committed over the past decades, are met with chronic impunity.
We urge the government of India to ensure independent observers including all human rights defenders and foreign journalists are allowed proper access to carry out their work freely and without fear, release everyone detained without charge, and remove restrictions on the rights to freedom of expression and freedom of movement, including where they have been denied the right to leave the country by being placed on the ‘Exit Control List’.
We also call on the governments of India and Pakistan to grant unconditional access to OHCHR and other human rights mechanisms to Kashmir.
We further urge the Council to establish an independent international investigation mechanism into past and ongoing crimes under international law and human rights violations by all parties in Kashmir, as recommended by the UN High Commissioner for Human Rights.
Thank you.
- Amnesty International
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- CIVICUS – World Alliance for Citizen Participation
- Human Rights Watch
- International Commission of Jurists
- International Federation for Human Rights Leagues (FIDH)
- International Service for Human Rights
- World Organisation Against Torture (OMCT)”
