Aadel Collection
Report of the Special Rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy, submitted in accordance with Commission on Human Rights resolution 2002/43
E/CN. 4/2003/65/Add. 1
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Introduction
1. This report contains brief summaries of the urgent appeals and
communications transmitted to governmental authorities between 1 December 2001
and 31 December 2002, as well as replies to the allegations received between 1
January 2002 and 31 December 2002. In addition, the Special Rapporteur takes note
in this chapter of the activities of other mechanisms which are related to his mandate.
Where appropriate, the Special Rapporteur has briefly described developments in
particular countries or territories even when no communications have been exchanged
and, where possible, updated the facts up to the time of submission of this report
Where he has deemed it necessary, the Special Rapporteur has included his own
observations. He wishes to emphasize that the appeals and communications reflected
in this chapter are based exclusively upon information that has been transmitted to
him directly. Where information was insufficient, the Special Rapporteur was not in a
position to act. He also recognizes that problems concerning the independence and
impartiality of the judiciary are not confined to the countries and territories
mentioned. In this regard, he wishes to emphasize that readers of the present report
should not interpret the omission of a particular country or territory as indicating that
the Special Rapporteur considers that there are no problems with the independence of
judges and lawyers in that country or territory.
2. In preparing this report, the Special Rapporteur has taken note of the reports
submitted to the Commission by the country special rapporteurs/representatives and
independent experts.
Afghanistan
3. The Special Rapporteur has been monitoring the restructuring ofthe system of
justice in the light of the provisions of the Agreement on Provisional Arrangements in
Afghanistan pending the Re - Establishment of Permanent Government Institutions
(“the Bonn Agreement”), signed on 5 December 2001 in Bonn. Section 11(2) of the
Agreement provides that:
“The judicial power of Afghanistan shall be independent and shall be vested in
a Supreme Court of Afghanistan, and such other courts as may be established
by the interim administration. The interim administration shall establish, with
the assistance of the United Nations, a Judicial Commission to rebuild the
domestic justice system in accordance with Islamic principles, international
standards, the rule of law and Afghan legal traditions.”
4. Pursuant to this Agreement a Judicial Commission was set up in May 2002.
The Special Rapporteur planned to undertake a mission to Kabul in September 2002
to meet the members of the Commission and other actors in the administration of
justice, to assist in the discharge of the mandate of the Commission. However, in
August 2002, the Special Rapporteur was informed that the Commission had
suspended its work and the Chairman had resigned. Hence the Special Rapporteur was
advised to wait until a new Commission was formed. In November 2002, by
presidential decree, a new Commission was established.
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5. At the invitation of the International Development Law Organisation (IDLO),
the Special Rapporteur attended, from 16 to 17 December 2002, a round table
discussion in Rome on “The Role of Law in a Modem Afghanistan” The objectives
of the round table were to assist the Judicial Commission with the challenges it faces
in establishing a pluralistic democracy, an independent judiciary, and a new
constitutioml order. Experts, including Muslim and non-Muslim scholars world were
invited to present their research and opinions. Members of the Judicial Commission,
the Chief Justice, the Minister of Justice and the Attorney General of Afghanistan
were present, among others. The Special Rapporteur addressed the round table and
presented a paper on the “Role of the Judiciary within the Administration of Justice in
a Democracy”.
6. Severalrecommendations were adopted at the conclusion of the discussioi
including:
• The rebuilding of the legal and judicial system in Afghanistan is a task
to be performed by the Afghan people in the first place;
• The reconstruction of Afghanistan's legal and judicial system should
proceed on the basis of Islamic principles and values, Afghan legal traditions and
customs and Afghanistan's international legal obligations;
• Core human rights as well as those recognized by Islamic
jurisprudence should be enshrined in the constitutional and legal framework;
• The legal and judicial system should contain easily accessible and
effective mechanisms for the enforcement of human rights;
• The judiciary should be recognized as a separate, independent,
adequately funded (with particular emphasis on the salaries judges), fully protected
and equal branch of the State, together with the executive and the legislature, in order
to ensure access to justice and fairness for all people in Afghanistan
• An independent judiciary should also be transparent and accountable;
• Adequate attention should be paid to the development of education and
training for judges, lawyers, prosecutors and court personnel;
• All rights and principles that are fundamental for due process and fair
trial should be fully incorporated into the legal and judicial system;
• The State should ensure access to justice, including legal aid and right
to defeire counsel;
The round table also strongly recommended that the international community should
provide on an urgent basis financial and other assistance, coordinated through the
Judicial Commissio i for a modern and effective legal and judicial sector to ensure
the rule of law, peace and progressive security throughout the country and the
reconstruction of Afghanistan.
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7. These recommendations were presented to a conference on “Rebuilding the
Justice System in Afghanistan” organized by the Government of Italy on 19 and 20
December 2002, also held in Rome. This conference was attended by a large number
of donor Governments that are supporting the development of Afghanistan The
President of Afghanistan, Hamid Karzai, the Foreign Ministers of Italy and
Afghanistan and the United Nations Advisor of the Special Representative of the
Secretary-General in Afghanistan officiated. The Special Rapporteur also attended the
two-day conference. At its conclusion the conference adopted a Final Statement in
which the participating States, inter alia, declared their commitments to assist, in a
generous, efficient and coordinated way, the Afghan Government and the Judicial
Reform Commission in restoring the justice system and the rule of law in
Afghanistan.
8. Conferences and resolutions aside, the realities of the situation on the ground
in Afghanistan are a matter of concern. Rebuilding a legal system devastated after 23
years of war is no easy task. The Special Rapporteur has heard very recently,
subsequent to the meetings in Rome, that the restructuring of the judicial system is
being hampered by a lack of international action and domestic political infighting.
Courts are desperately short of trained staff and funds, and judges, particularly outside
of Kabul, are being intimidated by warlords. Various international organizations have
evaluated the situation in Afghanistan and identified the problems and made
recommendations. All these efforts, though well intentioned, are potentially
overlapping resulting in wastage of human and financial resources. Nevertheless, it is
still uncertain whether there is a body coordinating all these efforts with the requisite
political will to implement the required reforms. At the present pace the reforms
envisaged in the Bonn Agreement may not be achieved in the established time frame.
9. The Special Rapporteur ur s the Commission to address this situation
urgently.
Algeria
Communications to the Government
10. On 12 September 2002, the Special Rapporteur sent a joint urgent appeal with
the Special Rapporteur on extrajudicial, summary or arbitrary executions and the
Special Representative of the Secretary-General on human rights defenders
concerning a human rights lawyer, Mahinoud Khelili. According to the information
received, Mr. Khelili's son, Ahmed, had received an anonymous death threat on 2
September 2002 on the same day as Mr. Khelili appeared in court in Oran to defend a
person who had accused top officials in the army of trafficking in cocaine. Mahmoud
Khelili's other son, Karim, had also in the past been detained and arrested by the
authorities in an attempt to intimidate Mr. Khelili.
Observations
11. The Special Rapporteur regrets that to date the Government has not responded.
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Argentina
Communications to the Govermnent
12. On 19 February 2002, the Special Rapporteur sent a communication regarding
proceedings initiated against nine members of the Supreme Court, following its
judgement of 1 February 2002 declaring unconstitutional a government decree which
imposed restrictions on the withdrawal of bank deposits. According to the information
received, the Impeachment Committee of the lower house of Parliament (the Chamber
of Deputies) admitted several impeachment requests, some of which had been
presented several years previously. Reportedly, the accusations were still pending
before the Chamber, which had to act before the process could move to the Senate. It
was reported that the President of the Supreme Court, Julio Nazareno, and the Vice-
President, Eduardo Moliné, stated that they had been pressured to give up their
positions. It was also alleged that the impeachment process was simply a formality
and that members of the Senate believed that it was necessary to remove most of the
judges.
13. On 4 July 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
Representative of the Secretary-General on human rights defenders concerning a
lawyer, Claudio Pandolfi According to the information received, Mr. Pandolfi, who
works for the human rights organisation Coordinadora contra la Represión Policial e
Institucional, had received threatening phone calls on 29 and 30 June 2002. It was
alleged that this was in connection with his investigations of incidents that had taken
place in Avellaneda, Buenos Aires, on 26 June 2002.
14. On 7 November 2002, the Special Rapporteur sent ajoint urgent appeal with
the Special Rapporteur on extrajudicial, summary or arbitrary executions and the
Special Representative of the Secretary-General on human rights defenders
concerning a lawyei Laura Figua. According to the information received, on 28
October 2002, Ms. Figua's house was broken into but the police failed to do anything,
even though they were only 30 metres away Ms. Figua had also been threatened
repeatedly in the past. Also on same day, the house of prosecutor Emffio Ferrer was
also broken into, allegedly because he was working on a case of disappeared persons
in area of Pozo de Vargas in the province of Tucumán
Communications from the Govermnent
15. The Government sent three communications, dated 21 February 2002, 13 and
21 March2002, in reply to the Special Rapporteur's communication of 19 February
2002. The Government forwarded the reply ofthe President of the Parliamentary
Impeachment Commission of the Chamber of Deputies of the Natioi which drew
attention to article 53 of the National Constitution. This article provides that only the
Chamber of Deputies is entitled to bring impeachment proceedings in the Senate
against members of the Supreme Court in cases of misconduct, crimes committed in
the exercise of their functions and ordinary crimes. It acts only as the prosecutor once
it has been mandated to do so by a two-thirds majority of the members present and
voting and after an indictment has been handed down by the Parliamentary
Impeachment Commission. The rules governing the proceedings in the Chamber of
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Deputies guarantee due legal process and the rights of the defence. The Chamber of
Deputies must neither depart from the facts of the case nor base its accusations on
circumstances or motives which are irrelevant to it. The Senate then acts as the judge
and tries the case, and has an absolute obligation to be impartial and to afford the
persons indicted the right to a fill defence. Both the substantive rules establishing the
grounds for dismissal, as well as the rules of procedure, were drafted and in force
prior to the offences being tried, thereby guaranteeing the principles of the
presumption of innocence and the right to a fair hearing.
16. On 8 April 2002, the Government sent information concerning lawyer Maltide
Bruera (E/CN.4/2002/72, annex, para.3). The Government stated the Special
Operations Unit of the Santa Fe Provincial Police Department had conducted
extensive investigations as a result of the lodging of a complaint before the District
Criminal Court of First Instance in the 8 th District of Rosario by Mrs. Bruera. On 4
April 2001, the case was transferred to the 3 rd Federal Court of the City of Rosario,
pursuant to a decision of the Supreme Court. The investigations had not resulted in the
identification of the person responsible for the threats against Mrs. Bruera. On 7
March 2002, the Chamber of Deputies issued a declaration of solidarity with Matilde
Bruera and Rodolfo Scholer and condemned the threats made against them. [ 01
17. On 1 August 2002, the Government replied to the Special Rapporteur's joint
urgent appeal of 4 July 2002. The Government stated that on the day the incidents
took place officials from the Provincial Office for the Promotion and Protection of
Human Rights and the Secretariat for Human Rights of the Province of Buenos Aries
visited Police Station No. 1 in Avellaneda and requested a list of those individuals
detained and their situatioi as well as information concerning the authority who had
ordered the detention Those officials then took steps to identify and release the 160
detainees. As a result of investigations so far nine police officers have been
suspended, four of whom have been detained, however, two have escaped and are the
subjects of an arrest warrant. Three of those who have been arrested have been
charged with double homicide and the other has been charged with complicity in a
multiple offence and the failure to fulfil the duties of a public official.
Observations
18. The Special Rapporteur thanks the Government for its response.
Azerbaijan
Communications fmm the Government
19. On 21 February 2002, the Government replied to the Special Rapporteur's
communication of 26 October 2001 (E/CN.4/2002/72, annex. para. 12) concerning
lawyer Asian Ismailov. The Government stated that the adoption of the Legal
Profession and Legal Practice Act was a logical outcome of judicial and legal reform
in Azerbaijan. Also, the Bar Association is a fully independent and self-regulating
body, and procedures for the admission of members are still being worked out. The
handling of Mr. Ismailov's case, lies exclusively within the jurisdiction of the Bar
Association and his licence to work for the Visa law firm has been extended to 2004.
It is also noted that Mr. Ismailov actively participated in an international seminar in
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Baku in 2001, which discussed the Legal Profession and Legal Practice Act and
questions of legal ethics.
Observations
20. The Special Rapporteur thanks the Government for its response.
Bangladesh
Communications to the Government
21. On 25 July 2002, the Special Rapporteur sent an urgent appeal concerning an
attack on a lawyer, Rabindra Ghosh According to the information received, on 1
July 2002, Mr. Ghosh had been attacked while filming a meeting of the Bar
Association of the Supreme Court. It was alleged that one of the attackers accused
him of having links to the Indian Government and told him that “if you do not leave
the country, we will show you the consequences.” It was further reported that Mr.
Ghosh had received repeated threats in recent months.
Communications from the Government
22. On 31 October 2002, the Government replied to the Special Rapporteur ‘s
urgent appeal of 25 July 2002, and advised that a police inquiry had been established
by the Dhaka Metropolitan Police. The inquiry revealed that there had been an
altercation between some rowdy young lawyers and Rabindra Ghosh. The
Government further stated that Mr. Ghosh did not wish to lodge a formal complaint
regarding the incident as he had advised the police that he had submitted a complaint
to the Supreme Court Bar Association and was awaiting its decision before pursuing
the matter further.
Observations
23. The Special Rapporteur thanks the Government for its response.
Belarus
Communications to the Govermnent
24. On 27 November 2002, the Special Rapporteur sent an urgent appeal
concerning Vera Stremkovskaya, a human rights lawyer who was allegedly
prohibited by the Minsk Municipal Bar Association from leaving Belarus to
participate in international conferences abroad, including a meeting of the
independent lawyers' associations in Brussels on 10 and 11 October 2002 and a
meeting of the Democratic Forum in Seoul, on 11 to 14 November 2002.
Observations
25. The Special Rapporteur regrets that the Government has not responded to this
communication or to the recommendations made in the Special Rapporteur's mission
report (E/CN.4/200 1/65/Add. 1).
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Brazil
Communications to the Government
26. On 30 July 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
Representative of the Secretary-General on human rights defenders concerning threats
to the Brazilian Lawyers' Association (Orem dos Advogados Brasileiros) in the State
of EspIrito Santo. According to the information received, on 23 July 2002, an
anonymous caller had threatened the head of the Association, Dr. Agisandro da
Costa Pereira. On 25 July 2002, a bomb exploded in the offices of the Association
while it was holding a ceremony for new members. Subsequent to the explosion
another anonymous phone call was received, the caller allegedly stating that “We're
going to blow you all up in one go.”
27. On 10 October 2002, the Special Rapporteur sent a joint urgent appeal with
the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
Cristiano Arantes e Silva, of Comarca de Xinguara, State ofPara, who had received
death threats related to his activities as a judge. This reportedly included anonymous
letters and phone calls addressed to him and his wife. On 24 September 2002, four
shots were allegedly fired at his house.
Observations
28. The Special Rapporteur regrets that to date the Government has not responded.
Central African Republic
Communications to the Govermnent
29. On 15 February 2002, the Special Rapporteur sent an urgent appeal
concerning the trial of those suspected of having taken part in the attempted coup
d'etat of 28 May 2001. According to the information received, whenthe trial started
on 4 February 2002, before the criminal court of Bangui, many ofthe accused had not
been granted access to an attorney. It was also alleged one of the accused, Jean-
Jacques Demafouth former Minister of Defeite, had not been able to meet with his
lawyers since his arrest on 25 August 2001 and that his lawyers were not given an
opportunity to study the case file before 12 February 2002. It was reported that capital
punishment could be imposed if the accused are found guilty.
30. On 26 April 2002, the Special Rapporteur sent a second urgent appeal
concerning the trial of those suspected of having taken part in the attempted coup
d'etat. According to the information received, one of the defeite lawyers, Mr.
Zarambaud, was removed from the case by the Criminal Court of Bangui without
giving a reason. Following the court's decision, the Bar Association of the Central
African Republic decided on 7 March 2002 to withdraw from the case in protest.
Since the law provides that during a criminal trial the accused must have legal
counsel, the court case has been suspended.
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Observations
31. The Special Rapporteur regrets that to date the Government has not responded.
Chad
Communications to the Govermnent
32. On 25 September 2002, the Special Rapporteur sent a joint urgent appeal with
the Special Rapporteur on torture and the Special Representative of the Secretary-
General on human rights defenders concerning a lawyer, Jacqueline Moudeina.
According to the information received, Ms. Moudeina had been injured in the leg
during a demonstratior when a grenade was launched by anti-riot police. Ms.
Moudeina was one of 100 demonstrators who had tried to deliver a letter to the French
Ambassador to express their discontent over the French Government's support to the
Déby regime during the last elections.
Observations
33. The Special Rapporteur regrets that to date the Government has not responded.
C hina
Communications to the Government
34. On 16 September 2002, the Special Rapporteur sent a joint urgent appeal with
the Special Rapporteur on torture, the Chairman-Rapporteur of the Working Group on
Arbitrary Detention and the Special Representative of the Secretary-General on
human rights defenders concerning the alleged detention ofDr. Wan Yanhai, the
founder and coordinator of the AIZHI (AIDS) Action Project, on 24 August 2002 by
State security authorities. The Special Rapporteur expressed concern that that Dr.
Wan Yanha whose detention was allegedly in a secret place, had limited or no
possibility to contact his family and friends or to benefit from legal representation of
his choice during this time.
Communications from the Govermnent
35. On 28 November 2002, the Government replied to the Special Rapporteur's
joint urgent appeal of 16 September 2002. The Government stated that Dr. Wan
Yathai was legally detained and questioned on suspicion of the offence of unlawfully
transmitting secrets abroad. Further, Dr. Wan Yanhei had requested in writing that his
family members were not to be notified should he be detained and that he had
voluntarily renounced his right to counsel. The Government stated that Dr. Wan
Yanhai acknowledged his unlawful activities and voluntarily admitted his guilt. In
return for this acknowledgment and for his cooperation, the Beijing City State
Security Bureau granted Dr. Wan Yanhai a discharge on the condition that he make a
statement of repentance.
Observations
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36. The Special Rapporteur thanks the Government for its response.
Colombia
Communications to the Govenunent
37. On 4 July 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
Representative of the Secretary-General on human rights defenders concerning threats
to the Corporación Colectivo de Abogados “Jose Alvear Restrepo”. According to the
information received, a poster had been put up in universities accusing the
organization of being the legal arm of a paramilitary group, the National Liberation
Army (Ejército de Liberación Nacional). The poster had also called for solidarity with
members of the national army who were involved in cases alleging the commission of
human rights abuses brought by the organization.
38. On 25 October 2002, the Special Rapporteur sent a joint urgent appeal with
the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
Operation Orion in Medellin. According to the information received, this operation,
led by the police and the army, had resulted in the detention of 200 persons. Some of
the lawyers of the detained persons alleged that during the arrest and investigation
stage, the legal rights of their clients were neither guaranteed nor respected.
Communications from the Govenunent
39. On 23 July 2002, the Government replied to the Special Rapporteur's
communication of 4 July 2002. The Government stated that upon being notified of the
poster concerning the activities of the organization, Jose Alvear Resptrepo, the Office
of the Vice-President of the Republic issued a public statement rejecting threats,
attacks and other forms of intimidation against a non- governmental organization
involved in the promotion and protection of human rights. The Ministry of the Interior
issued a similar public communication. The Government also stated that the Inter-
American Commission on Human Rights had ordered protective measures for the
organization and as a result its installations would be strengthened and the case will
be reviewed by the Risk Evaluation and Regulation Committee of the Ministry of the
Interior. The Government also stated that a preliminary investigation into th
Administrative Department for National Security had been closed because of a lack of
evidence of its responsibility for the threats against the organization.
40. On 5 December 2002, the Government replied to the Special Rapporteur's
joint urgent appeal of 25 October 2002. The Government stated that the Office of the
Vice-President of the Republic had identified a number of criminal armed groups
(including FARC, CAP, ELN ard AUC) that had settled down in La Comuna 13 due
to its strategic location in MedellIn. Due to the presence of these groups, crime rates
had dramatically increased in La Comuna. Under these circumstances it was decided
to launch Operation Orion on 16 October 2002 in order to restore public order. The
Government advised tInt the following was the result of the operation: basic security
was restored in the most severely affected areas; 20 persons who had been abducted
were released; arms and munitions were found; a number of bombs and explosives
had been deactivated; and 319 persons had been arrested (244 of whom were still in
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detention upon the order of the prosecutor). The Office of the General Prosecutor and
the Ombudsman monitored the investigation and the Government advised that it has
asked the General Prosecutor to guarantee the legal rights of the detainees.
Observations
41. The Special Rapporteur thanks the Government for its response. He continues
to be concerned over the high level of violence and threats to the security ofjudges
and lawyers.
Czech Republic
Communications from the Government
42. Following the Special Rapporteur's previous communications
(E/CN.4/2002/72, annex, paras. 40-42) the Government, in a communication dated 6
March 2002, informed the Special Rapporteur of the new Law on Courts and Judges,
to take effect on 1 April 2002. The new law requires that each judge must possess
certain qualifications which are to be reassessed regularly and that judges who lack
these qualifications may be removed from office. Judges are appointed by the
President for an unlimited term. Eachjudge is assessed three years after appointment,
and then every five years. The assessment is carried out by the president of the court.
The Judicial Council gives its views on the evaluation report by the president. If
performance does not appear to meet the required standards, a special panel will be
appointed to review the judge's final decisions made during the period in question If
the panel considers the judge's performance unsatisfactory, the Professional
Qualifications Council will reassess the j dge's qualifications. The Council comprises
members of the Supreme Court and the High Courts, public attorneys, legal counsels,
jurists, notaries, etc. The decisions of the Professional Qualifications Council can be
reviewed by the Supreme Court. A judge nny then be removed from office only after
the Supreme Court decides that he or she lacks the necessary qualifications. The
Government submits that to ensure a fully impartial review, the process involves the
judicial and executive branches as well as independent experts.
43. As regards the impartiality of judges, the Government states that the new
legislation retains all safeguards previously contained in the 1991 law on the courts.
Section 86 of the law regulates the liability of judges for disciplinary breaches. The
most severe disciplinary sanction is removal from office. The legislation regulating
disciplinary proceedings (Act No. 7/2002) will also enter into force on 1 April 2002.
The disciplinary courts are the High Courts in Prague and Olomouc, and appeals can
be lodged with the Supreme Court. Disciplinary proceedings can be initiated by the
Minister of Justice (against any judge) or the president of a court (against any member
of the court). Under the Law on the Courts and Judges, continuing education is
obligatory for all judges, except for Supreme Court judges.
Observations
44. The Special Rapporteur thanks the Government for its response. He continues
to be concerned about the extensive powers that the Minister of Justice has over
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appointments, the exercise ofjudicial functions, the evaluation of the performance of
judges and discipline of judges.
Democratic Republic of the Congo
Commuuicatiow to the Government
45. On 21 March 2002, the Special Rapporteur sent an urgent appeal, together
with the Special Rapporteur on the situation of human rights in the Democratic
Republic of the Congo, the Special Rapporteur on torture and the Special Rapporteur
on extrajudicial, summary or arbitrary executions, concerning the military courttrial
of 115 persons accused of having participated in the assassination of President Kabila
on 16 January 2001. It was alleged that most of the accused had been kept in secret
detention for over a year before having been formally charged and that they had not
been allowed contact with their lawyers. It was alleged that, even at the beginning of
the trial, some of the accused had still not been in contact with their lawyers and that
most of the lawyers for the accused had not been given access to the case files. It was
reported that if convicted, the accused would face the death sentence.
46. On 27 May 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Representative of the Secretary-General on human rights defenders, the
Special Rapporteur on torture and the Special Rapporteur on the situation of human
rights in the Democratic Republic of the Congo concerning a lawyer, Wffly Wenga
ilombe. According to the information received, on 20 February 2002, Mr. Ilombe,
who is a member of the Centre africain pour la paix, la democratic et les droits de
l'homme (ACPD), was arrested based upon a summons signed by Magistrate Likulia,
prosecutor of the Cour d'ordre militaire (COM). On 22 February 2002, Mr. Ilombe
was interrogated by four magistrates of the court concerning his relationship with
Major Kamwanya Bora Uzima, one of the presumed assassins of former President
Kabila. Subsequent to this, Mr. Ilombe was placed in detention for threatening the
security of the State. It is alleged that these actions preceded the publication of a
report by the ACPD denouncing the lack of the independence of the judiciary in the
country.
47. On 18 July 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on freedom of opinion and expression, the Special Rapporteur on
torture, the Chairman- Rapporteur of the Working Group on Arbitrary Detention and
the Special Rapporteur on the situation of human rights in the Democratic Republic of
the Congo concerning the President of the Bar Association of Kasal. Oriental, Mpinga
Tshibasu According to the information received Mr. Tshibasu was arrested by the
National Information Agency (agence nationale de renseignement) after he held a
press conference concerning abuses of power by the State. After his arrest he was
transferred to Kinshasa. Neither his place of detention nor the reasons for the arrest
are known.
48. On 29 October 2002, the Special Rapporteur sent a joint urgent appeal with
the Special Representative of the Secretary-General on human rights defenders and
the Special Rapporteur on the situation of human rights in the Democratic Republic of
the Congo concerning lawyer and Chairnun of the Board of Directors of the
Congolese Human Rights Observatory (OCDH), Sebastien Nkokesha Kayembe.
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According to the information received, Mr. Kayembe was abducted on 15 October
2002 by armed men in uniform and was severely tortured and accused of being “the
devil's lawyer” and of “representing people who killed Mzee” (former President
Kabila). Mr. Kayembe was part of a team of lawyers who represented the accused
assassins. It was alleged that Mr. Kayembe had unsuccessfully tried to persuade the
court to prosecute members of Minister Mwenze Kongolo's Cabinet of Security and
Public Order. In addition, the Special Rapporteurs were informed that Mr. Kayembe
was so badly injured that he can no longer practise his profession.
Observations
49. The Government continues to ignore all communications from the Special
Rapporteur.
Ecuador
Communications to the Govermnent
50. On 15 April 2002, the Special Rapporteur sent a communication concerning
the failure of the Ecuadorian authorities to implement a decision of 14 December
2001 handed down by Constitutional Judge Juan Omar Mina Quintero, fourth Civil
Judge of Eloy Alfaro and San Lorenzo. In his judgement, Jalge Quintero confirmed
an earlierjudgement setting aside the criminal proceedings brought against Abdala
Bucaram Ortiz, and declared the detention orders against him null and void.
Communications received from the Govermnent
51. On 22 May 2002, the Government replied to the Special Rapporteur's
communication dated 15 April 2002. The Government stated that the decision of 14
December 2001 by the judge of the Fourth Civil Court, Eloy Alfaro and San Lorenzo,
in the province of Esmeraldas, had been declared by the President of the Supreme
Court on 26 December 2002 as being null and void and having no effect whatsoever.
The Government stated that this decision was based upon article 95(2) of the
Constitution, which states that judicial decisions adopted during a trial shall not be
open to applications for aniparo, as well as article 2 of the plenary decision of the
Supreme Court, which was published in the Official Gazette (Registro 0 / Ic /al) No.
378 on 27 July 2001, by which acts prohibited by the Constitution are null and void.
52. On 15 August 2002, the Government sent further information concerning the
case of Mr. Bucaram. Firstly, the Fourth Civil Court lacked jurisdiction over the
application for aniparo since the application should have been submitted in the place
where the decision being challenged had been enforced. Secondly, the summons was
not properly served on the respondent, Dr. Enrique Garcia Roman, and as a result the
respondent was unable to follow prescribed legal procedures. Thirdly, the fact that no
summons was served in accordance with the Ecuadorian Code of Civil Procedure
meant that the decision of 14 December 2001 was null and void and tint the detention
order served on Mr. Bucaram consequently remains in force.
Observations
E/CN. 4/2003/65/Add. 1
Page 16
53. The Special Rapporteur thanks the Government for its responses. He has not
received any further communication from the complainant.
Egypt
Communications to the Government
54. On 20 February, the Special Rapporteur sent an urgent appeal concerning the
detention on 20 January 2002 of eight men in Damanhour, Al-Beheira, allegedly for
debauchery. According to the information received on 23 January 2003, a lawyer who
had been instructed by friends of the eight men was refused access to the detainees by
the police and was only informed that three men had been released, without
specifying their identity. It was reported that on 26 January 2002, the accused
appeared before a judge who extended their detention for 45 days. It is alleged that the
lawyer for the accused was barred access to the hearing, and he has not yet been able
to gain access to his clients.
55. On 26 February 2002, the Special Rapporteur, jointly with the Special
Representative of the Secretary-General on human rights defenders, sent a letter
welcoming the judgement by the Court of Cassation, which ordered the retrial of
Saadeddin Ibrahiin and his co-accused, on whose behalf the Special Rapporteurs
had intervened on 22 May 2001 (E/CN.4/2002/72, annex, para. 58).
56. On 26 September 2002, the Special Rapporteur sent a communication
concerning the conviction of 51 alleged members of an Islamist group by Egypt's
Supreme Military Court on 9 September 2002. According to the information received,
it was alleged that the accused are civilians but were tried before a military court and
denied the right to be tried before an independent and impartial tribunal Further, they
are denied the right to appeal to a higher court as verdicts by military courts can only
be reviewed by the Military Appeals Bureai which is not a court.
Communications from the Government
57. On 6 March 2002, the Government replied to the Special Rapporteur's letter of
26 February 2002. The Government stated that Mr. Ibrahim and his co-defendants had
been released pending retrial. The Government also asserted that all safeguards for a
fair trial will be guaranteed in accordance with Egypt's long-standing traditions. The
Special Rapporteur has learnt that Mr. Ibrahim and his co-defendants were tried for
the third time on 3 February 2003 and Court has reserved jud ment to be delivered
on 18 March 2003.
58. On 10 October 2002, the Government replied to the Special Rapporteur's
letter of 20 February 2002. The Government stated that on 11 March 2002, the court
in Damanhour, Al-Beheira, sentenced the accused to three years in prison on charges
of debauchery and imposed a fine of 300 Egyptian pounds. The defendants filed an
appeal which was heard bythe Court of Appeal on 12 April 2002. The Court of
Appeal annulled the lower court ruling on the grounds that that the court could not be
confident about the investigation or the confessions made to the police. The
Government stated that all accused persons received legal representation and their
defence lawyers requested a stay of proceedings, which was granted by the court.
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Observations
59. The Special Rapporteur regrets that he has not received a response to his
earlier communication of 19 November 2001 (E/CN.4/2002/72, annex, para.59).
However he has since received information that the four men were sentenced on 3
February 2002 to three years' imprisonment. The Special Rapporteur awaits a
response to his communication of 26 September 2002.
Equatorial Guinea
Communications to the Government
60. On 27 May 2002, the Special Rapporteur sent a communication to the
Government coiterning the dissolution of the Bar Association (Colegio de
Abogados). According to the information received, on 10 May 2002, the Minster for
Justice and Religion had issued a resolution dissolving the Bar Association due to the
absence of a presidential decree recognizing its creation. It was alleged that the
resolution stated that this action was taken pursuant to the activities of several
members of the organization that were not in accordance with the objectives of the
organization and had the effect oftransforming it into a platform for their political and
personal views. The information also stated that the resolution of the Minister created
a General Council of Lawyers, to be chaired by the Minister, which would be
responsible for the preparation of a new statute to regulate the activities of lawyers
and the holding of new elections for the governing council. Current members of the
association could not be candidates in the election.
Other developments
61. The Special Rapporteur also received information concerning the arrest and
trial of 144 people for threatening state security. They included members or former
members of the armed forces and relations of leaders of the Fuerza Democratic
Republicana (FDR). These individuals appeared to have been arrested solely because
of their alleged links with the FDR.
62. As a result of these developments, on 12 June 2002 the Special Rapporteur
sought a mission. There was no response from the Government.
63. The Special Rapporteur has been informed that the trial was held between 22
May 2002 and 9 June 2002, and that 67 individuals were convicted and sentenced to
between 6 years 8 months to 20 years in prison Amnesty International in its report on
its trial observationconcluded, inter alia, that “at all stages of the proceedings there
were numerous irregularities both in terms of how the case was investigated and how
the judges and the prosecution behaved...”
Observations
64. The situation in this country continues to be of concern
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Guatemala
Communications to the Government
65. On 16 January 2002, the Special Rapporteur sent a communication concerning
the killing of a justice of the peace, Geovany Avila Vásquei in the municipality of
Gualán, Zacapa, on the night of 11 January2002. According to the information
received, the Mr. Avila Vásqi z had been killed by 17 bullets while driving his
vehicle. The Special Rapporteur also expressed his concern about death threats
received by a prosecutor, Miguel Angel Bermejo, who was in charge of investigating
acts of corruption within the Ministry of Internal Affairs. Reportedly, the police had
discovered the existence of a plan to murder the prosecutor.
66. On 29 August 2002, the Special Rapporteur sent a joint urgent appeal together
with the Special Rapporteur on extrajudicial, summary and arbitrary executions and
the Special Representative of the Secretary-General on human rights defenders
concerning death threats against a lawyer, Luis Roberto Romero Rivera. According
to the information received, Mr. Romero Rivera received a threatening phone call on
23 August 2002, in connection with his legal representation of the Myrna Mack
Foundation. In addition, shots were allegedly fired at Mr. Romero Rivera's house,
although no one was injured. It was also stated that the Inter-American Court for
Human Rights had recommended security for Mr. Romero and other members of the
Myrna Mack Foundation during the course of the trial against General Edgar Augusto
Godoy Gaytán, Colonel Juan Guillermo Liva Carrera and Colonel Juan Valencia
Osorio, who had been accused of being behind the murder of Myna Mack. It was
alleged that this security had not been provided.
67. On 12 December 2002, the Special Rapporteur sent a communication
concerning General Prosecutor Carlos David de Leon Argueta. According to the
information received, Mr. Argueta had received death threats by letter and telephone
since assuming this position in May 2002. On 5 December 2002, some men shot at
Mr. Argueta's car but he was not injured. It was alleged that these threats were a
result of his decision to assign prosecutors to investigate cases ofcorruption and
organized crime involving high-ranking army officials.
Communications from the Government
68. On 1 February 2002, the Government provided comments from the Supreme
Court of Justice on the Special Rapporteur's mission to Guatemala in May 2001
(E/CN.4/2002/72/Add.2). The Special Rapporteur was informed that, in general, the
report was received in a fairly positive light because the Special Rapporteur expressed
his satisfaction with various judicial developme nts. The Supreme Court of Justice
took issue with three specific points. Firstly. with respect to the EfraIn Mogollón case,
the Supreme Court stated that the Special Rapporteur's recommendation would be
contrary to the Guatemalan legal system. Secondly, to state that MINUGUA supports
the prevention of lynching programmes is inaccurate since MINUAGA is more of an
observer and not a proactive actor such as INGUAT, the Peace Secretariat, the
Ministry of Education and the Public Prosecutor's Department. Finally, the Supreme
Court clarified the fact that the ruling that stripped 23 deputies of their congressional
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Page 19
immunity was the result of a ruling on 5 March 2001 by the Supreme Court of Justice
and not the Constitutional Court.
69. On 9 December 2002, the Government replied to the Special Rapporteur's
joint urgent appeal of 29 August 2002 concerning lawyer Luis Roberto Romero
Rivera. The Government confirmed that, as ordered by Inter- American Court for
Human Rights, the Government had provided 24-hour security to Mr. Romera Rivera.
70. On 17 December 2002 the Government forwarded a communication from the
President of the Judiciary and of the Supreme Court of Justice in relation to lawyer
Erica Lorena Aifán Dávila. On 16 October 2002, the Supreme Court of Justice
appointed Ms. Dávila as a first instance judge in the municipality of Lxchiguan in the
Department of San Marcos and she commenced her functions on 14 November 2002.
Other developments
71. In paragraph 92(a)(ii) of his mission report (E/CN.4/2002/72/Add.2) on
Guatemala, the Special Rapporteur recommended that the trial of the persons accused
of Myrna Mack's murder in 1990 be expedited. The Special Rapporteur is pleased to
note that on 3 October 2002, the third sentencing court convicted Colonel Juan
Valencia Osorio on charges that he had ordered her murder and sentenced him to 30
years' imprisonment. The two co-accused were acquitted ofall charges.
Observations
72. The Special Rapporteur expresses concern over the increased incidence of
physical attacks on judges and calls upon the Government to increase security for
judges and prosecutors.
Honduras
Communications to the Government
73. On 4 December 2001, the Special Rapporteur sent a joint urgent appeal,
together with the Special Representative of the Secretary-General on human rights
defenders and the Special Rapporteur on extrajudicial, summary or arbitrary
executions, concerning lawyer Cristián Callejas. According to the information
received, Mr. Callejas had received death threats in connection with cases he had
presented to the courts against State agents accused of human rights violations.
Allegedly, unknown persons had fired shots into the air outside Mr. Callejas' house
and he had also received threatening phone calls.
Indonesia
74. The Special Rapporteur refers to his mission report (FJCN.4/2003/65/Add.2).
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Page 20
Iran (Islamic Republic of)
Communications to the Government
75. On 31 January 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Rapporteur on freedom of opinion and expression concerning lawyer
Mohammad-Ali Dadkah According to the information received, on 28 January
2002, Mr. Dadkah appeared before the Tehran High Court on charges of defamation
in relation to a plea entered on behalf of several defendants made in November 2001.
It was reported that at the November hearing, Mr. Dadkah had been expelled by the
President of the Revolutionary Tribunal before finishing his statements and had thus
not been able to provide an adequate defeite for his clients. The President of the
Tribunal then reportedly filed a criminal complaint against Mr. Dadkah for
defamation and making statements.
76. On 30 April 2002, the Special Rapporteur sent a further communication
concerning Nasser Zarafchai on whose behalf he intervened on two previous
occasions. According to the information received, in March 2002, Mr. Zarafchan had
been sentenced to five years' imprisonment and 70 lashes by the Judicial Organization
of the Armed Forces, pursuant to charges of disseminating confidential information. It
was reported that these charges stem from Mr. Zarafchan's legal representation of the
families of several Iranian writers and activists who were assassinated in 1998 and,
more specifically, from his publication of information about the assassinations. It has
also been alleged, however, that Mr. Zarafchan criticized both the shortcomings ofthe
official investigation and the absence of vital information in the court files, even
though he never discussed publicly the contents of these files.
77. On 29 May 2002, the Special Rapporteur sent anotherjoint urgent appeal with
the Special Rapporteur on freedom of opinion and expression concerning lawyer,
Mohammed- Ali Dadkah. The Special Rapporteurs had received further information
that Mr. Dadkah had been sentenced to five months in prison and suspended from the
practice of law for a period of 10 years. It was alleged that this sentence was related to
his representation of individuals who had been arrested in March and April 2001.
78. On 15 July 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Rapporteur on torture concerning a lawyer, Mr. Soltani According to the
information received, on 9 July 2002, Mr. Soltani had been sentenced by the First
Instance Tribunal of Iranto four months imprisonment and suspended from legal
practice for a period of five years. It was alleged that this sentence related to
statements made by Mr. Soltani in court in March 2002, alleging that his client had
been tortured. It was further alleged that Mr. Soltani's lawyer, Seyfzadeh
Mohanunad had also been sentenced to four months' imprisonment and suspended
from legal practice for three years.
79. On 20 August 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Rapporteur on torture and the Special Representative of the Secretary-General
on human rights defenders concerning lawyer Nasser Zarafchan According to the
information received, Mr. Zarafchan had been detained prior to the hearing of his
appeal against a decision of the Military Court of Tebran of 16 July 2002. That
decision had confirmed a sentence of five years' imprisonment and 70 lashes for the
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Page 21
offences of possession of firearms and alcohol, and the dissemination of confidential
information. It was alleged that th latter charge actually resulted from his activities as
a lawyer in the case involving the murder of several writers and activists in 1998. The
information further stated Mr. Zarafchan was suffering from liver cancer and that in
detention he was being subjected to medical tests to determine whether he is fit to
undergo the flogging sentence.
80. On 4 October 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on torture and the Special Repporteur on extrajudicial, summary
or arbitrary executions concerning Said Masouri, who had been sentenced to deatI a
sentence upheld by the Supreme Court. According to the information received, Mr.
Masouri was an activist and supporter of the People's Mojahedin Organization of Irai
an armed political group opposed to the current Government. Mr. Masouir had been
charged with acting against State security, membership of a proscribed organizatioi
and contravening other security provisions. Allegedly, Mr. Masouri was ill-treated
and was threatened with summary execution if he refused to make a televised
confession; further, he had reportedly not been allowed to choose his own lawyer and
was allocated one by the court.
Observations
81. The Special Rapporteur notes that in a press release dated 25 July 2002, the
Government extended full cooperation to the Office of the High Commissioner for
Human Rights and extended an open invitation to the thematic rapporteurs of the
Commission. While this is welcome, the Special Rapporteur urges the Government as
a first step to respond to the Special Rapporteur's communications. None of the
communications enumerated herein or in last year's report (E/CN.4/2002/72, annex,
paras. 98-99) have been responded to.
Israel
Communications to the Government
82. On 2 May 2002, the Special Rapporteur sent a joint urgent appeal withthe
Special Rapporteur on torture, the Special Rapporteur on the freedom of opinion and
expression and the Chairman-Rapporteur of the Working Group on Arbitrary
Detention concerning Manvan Barghouthi. It was alleged that on 15 April 2002, Mr.
Barghouthi hid been detained by Israeli forces in Ramallah and since his arrest he had
been prevented from sleeping and denied food, water and medical treatment. Mr.
Barghouthi had also been denied access to his lawyer, with the exception of a single
meeting on 16 April 2002. Since that time he had been kept in complete isolation.
83. On 7 May 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on torture concerning three Israeli detainees who were reportedly
arrested around 30 April 2002, on suspicion of planning attacks against Arabs and
other security offences. It was alleged that they were being held in incommunicado
detention at an unknown location and that an order prohibiting meeting with counsel
had been issued by the General Security Service (GSS). This order was issued initially
for four days but had been extended for an additional six days.
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84. On 12 June 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Rapporteur on torture concerning Ramzi Kobar, a field researcher with the
Palestinian Society for the Protection of Human Rights and the Environment (LAW),
and the General Director of LAW, Khader Shkirat According to the information
received, Mr. Shkirat had been scheduled to meet with his client, Marwan Barghouthi,
on 9 June 2002 at 3:30 p.m. at the Petra Tikva Detention Centre. Upon arrival, he was
told that he would have to wait because his client was being interrogated, and
subsequently he was refused permission to see his client because he was reportedly
late for the scheduled appointment. The information also stated that at this stage Mr.
Shkirat witnessed his car being searched by members of the GSS and when he
returned to his vehicle he was informed that Ramzi Kobar had been arrested for the
purpose of interrogation.
85. On 19 November 2002, the Special Rapporteur sent a joint urgent appeal with
the Chairman-Rapporteur of the Working Group on Arbitrary detention concerning
Dr. Khaled N. Dia1 a United States citizen of Arab origin and Head of International
Relief at the Qatar Red Crescent Society. According to the information received, Dr.
Diab had been arrested at Ben Gurion Airport, Israel and Immigration authorities told
him that he would be detained for at least eight days. It was alleged that during this
period Dr. Diab was neither allowed to make phone calls nor was he permitted to
contact a lawyer; further, the reason for his detention stemmed from the fact that the
Immigration authorities had observed several entries in his passport to countries in
situations of armed conflict, including Afghanistan and the Occupied Territories. Dr.
Diab claimed that he had to travel to thise various places for work purposes.
Observations
86. The Special Rapporteur regrets that the Government has not responded to any
of the communications.
Italy
Communications to the Govermnent
87. On 23 January 2002, the Special Rapporteur sent an urgent appeal concerning
a nationwide protest staged by hundreds of magistrates at the beginning of the judicial
year, to show their concern about government attempts to undermine the
independence of the judiciary. Judge Francesco Saverio Borelli, Milan's most senior
judge, was reported to haw said that the Government's planned reforms of the
judiciary were aimed at bringing prosecutors under the control of the executive. He
also complained about the removal of police escorts from prosecutors and judges, and
about political interference in current trials. Allegations were also made that the
Government was trying to delay trial proceedings against Prime Minister Silvio
Berlusconi on charges of bribery. It was reported that the Government is considering
legal action against Judge Borelli. In view of the situation, the Special Rapporteur
requested an urgent mission.
88. On 29 April 2002, the Special Rapporteur sent a communication after learning
that the National Association of Magistrates (NAM) had called for a nationwide strike
on 6 June 2002 in protest against planned reforms by the Government affecting the
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Page 23
administration of justice which would alle dly have implications for the
independence ofjudges and prosecutors. Reportedly, since the announcement on 20
April 2002 a dialogue had begun between the Ministry of Justice and NAM.
89. On 2 August 2002, the Special Rapporteur sent an urgent appeal concerning a
bill proposing changes to the Italian Code of Criminal Procedure. According to the
information received, the proposed law would permit the transfer of a case to another
court on the basis of a “legitimate suspicion” that a local situation could affect the
fairness of the trial. It was alleged that this law could be used in some cases involving
prominent politicians currently before the courts in Milan. It was also alleged that
these changes could contribute to the extended delays in the Italian court system.
Communications from the Government
90. On 1 November 2003, the Government replied to the Special Rapporteur's
letter of 2 August 2002 regarding draft bill No. 1578/S, on transfer of a case from a
court to another on grounds of “legitimate suspicion”.
Observations
91. The Special Rapporteur refers to his mission report (E/CN.4/2003/65/Add.4),
which contains his observations on this legislation.
Kenya
92. The Special Rapporteur is concerned about several developments in
September/October 2002. Pursuant to the Constitution of Kenya Review Act, a
Constitution of Kenya Review Commission (CKRC) was formed with a
comprehensive mandate to review the Constitution and inter alia , draft a bill for a new
Constitution. For this purpose, the Commission sought the assistance of eminent
Commonwealth judicial experts.
93. Shortly after the CKRC published a short report on its recommendations, and
before publication of the draft bill, two Kenyan judges, from the Court of Appeal and
the High Court, filed a suit against the Commission seeking 17 orders by way of
judicial review. The orders sought included directions to stop the publication and
dissemination of the draft bill and to prevent any public discussion or debate of the
report or the bill.
94. In August 2002, two lawyers filed a similar suit and obtained an injunction
from a High Court judge against the CKRC pending determination of the suit. The
CKRC ignored the injunction and proceeded to publish the report. Contempt
proceedings were filed against the members of the Commission. Similar injunctions
were ordered in the suit filed by the two judges, which were also ignored by the
CKRC. A serious constitutional crisis developed with certain judges coming forward
to use the judicial process to thwart constitutional reforms.
95. The Special Rapporteur continues to monitor developments. In 1999, the
Special Rapporteur sought a mission, however, the Government responded that it was
not necessary.
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Lebanon
Communications to the Government
96. On 27 December 2002, the Special Rapporteur sent an urgent appeal
concerning Judge Fadi Nashar. According to the information received, Judge Nashar
was shot from behind and seriously wounded inside the Palaid de Justice in Beirut on
23 December 2002. A suspect was arrested.
Observations
97. The Special Rapporteur has not received a response.
Liberia
Communications to the Government
98. On 30 April 2002, the Special Rapporteur sent a joint a urgent appeal, with the
Special Rapporteur on extrajudicial, summary, or arbitrary executions, the Chairman-
Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on
torture, the Special Rapporteur on freedom of opinion and expression and Special
Representative of the Secretary-General on human rights defenders concerning
Lawyer, Tiawan Gongloe. According to the information received, Mr. Gongloe had
been taken by police to police headquarters where he was questioned, stripped naked
and severely beaten throughout the night. It was also alleged that the police had
threatened him by calling him a dissident whom they would deal with and kill. This
encounter allegedly occurred in connection with a speech Mr. Gongloe had given in
Guinea on “Political activities for the attainment of peace and development in the
Mano River Union.”
Observations
99. The Special Rapporteur regrets that he has not received a response.
Libyan Arab Jamahiriya
Communications to the Govermnent
100. On 6 March 2002, the Special Rapporteur sent a further letter concerning the
trial of 98 persons accused of membership in the Muslim Brotheririod (see also
E/CN.4/2002/72, annex, para. 104). According to information received, the trial was
held behind closed doors and relatives were not allowed to attend the proceedings,
although on a number of occasions they were allowed to meet with the defendants
after the court hearing. Further, at the hearing on 18 March 2001, the judge told the
detainees to write to their families and ask them to appoint lawyers to defend them.
The detainees were then given a list of lawyers to choose from. The appointed lawyers
then reportedly wrote to the court for permission to meet with their clients before the
second hearing and to obtain a copy of the case files. Both requests were reportedly
refused, and at the second hearing, on 29 April 2001, the lawyers were not allowed to
enter the court. The court then reportedly appointed lawyers from the office of the
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people's counsel, who are in the employment of the court. According to the
information received, the first time these lawyers met with their clients was on 17
June 2001, at the fourth court hearing. It was also reported that at the eighth court
hearing, on 16 February 2002, the court convicted all of the accused and handed down
death sentences for two of them, while sentencing the other accused to various terms
of imprisonment, including life imprisonment.
Observations
101. The Special Rapporteur regrets that he has not received a response.
Malawi
102. The Special Rapporteur notes that in paragraph 112 of his last report
(E/CN.4/2002/72, annex, para. 112), he stated that the disciplinary charges against
judges Dunstain Mwangulu and George Chimasula Phivi, had been referred to the
Judicial Service Commission and a hearing was scheduled for 16 January 2002.
103. The Special Rapporteur has since been informed that the charges against the
two judges were dropped.
Malaysia
104. The Special Rapporteur would like to update developments since his last
report (E/CN.4/2002/72, annex, paras. 115-125).
105. Former Deputy Prime Minister Anwar Ibrahim continues to serve his
sentence of 15 years imprisonment. His appeal in the first trial was finally heard by
the Federal Court (the highest appellate court in the country) on 4 February 2002,
which delivered its jud ment on 10 July 2002 affirming the conviction and sentence.
This judgment was seen in several quarters, including by the Special Rapporteur, as a
travesty ofjustice. Mr. Ibrahim has thus exhausted all his legal avenues concerning
his conviction and sentence at the first trial.
106. On 9 August 2002 Mr. Ibrahim filed a motion in the Federal Coirt for review
of the same jud ment citing several grounds as warranting such a review. No date
has yet been set by the Court for hearing of this application.
107. The appeal against his conviction and sentence of nine years' imprisonment
for sodomy charges at the second trial is still pending before the Court of Appeal (the
first appellate court). The High Court (The Court of First Instance) convicted and
sentenced him on 8 August 2000. A notice of appeal was filed within a month. The
petition of appeal, however, was filed only on2 S July 2001 because of a delay on the
part of the trial judge in making available the notes of evidence he had recorded.
Since then more than 1 ‘/2 years have lapsed, yet the Court of Appeal has still not set a
date for the hearing of the appeal. The injustice in this whole saga was aggravated by
the denial of bail to Mr. Ibrahim pending his appeals. Moreover, the sentence of six
years imprisonment at the first trial was ordered by the court, and confirmed by the
Federal Court, to run from the date of convictioi thereby failing to take into account
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the prolonged period he was kept in custody pending trial. It was during that period,
soon after arrest, that he was brutally beaten by the then Inspector General of Police.
108. With regard to his medical condition the Government continues to refuse
permission to undergo spinal surgery in Germany (E/CN.4/2002/72, annex, para.
118). Instead, the Government has indicated that he could undergo the surgery
domestically. The Special Rapporteur was informed that Mr. Ibrahim is taking
painkillers to relieve his back pain. In this regard, the Committee on the Human
Rights of Parliamentarians of the Inter-Parliamentary Union at its 100 th session held in
Geneva from on 20 to 23 January2003, adopted a decision in which it reaffirmed that
recommendations of a national human rights commission carry special weight and
should not be dismissed by the competent authorities; called therefore once again on
the authorities, in particular the Malaysian Parliament as a guardian of human rights,
to give full support to the clear recommendations of the National Human Rights
Commission so as to obtain permission for Mr. Anwar Ibrahim to follow his personal
choice of medical treatment abroad.”
109. In another development on September 2002, the Federal Court, in what is
considered a “landmark” jud ment, adopted the ‘bbjective test” in the judicial
review of detentions without trial on police orders under the Internal Security Act.
The Court held that in adjudicating on the legality of detention it could now go
beyond the mere documentation papers to consider whether there were any elements
of mala fide.
110. Following this decisioi a High Court in Malaysia ordered the release of a
suspected militant detained administratively for alleged involvement with Kumpulan
Militant Malaysia, alleged to have indirect connections to the al-Qua'idah network.
The judge ordered the release of the suspect as there was no evidence of the suspect's
involvement with the terrorist group.
111. The suspect, upon release, was promptly rearrested and served a two - year
detention on the basis of an order signed by the Home Minister.
112. These decisions led to the Minister in the Prime Minister's Department,
Dato'Dr. Rais Yatim, reportedly saying that the Internal Secwity Act needed
tightening “to curb judicial scrutiny of the reasons for detention.”He added, “to me
this is a dangerous trend. We have to be quick to redress this inadequacy, we cannot
allow a laissez-faire attitude in security matters.”
Mauritania
Conununications to the Govenunent
113. On 29 July 2002, the Special Rapporteur sent a communication concerning
alleged interference in the elections for the President of the National Bar Association
(l'ordre national des avocats de Mauritanie). According to the information received,
the election was characterized by several irregularities contrary to Law 95-024 on the
National Bar Association, including the public display of votes and the invalidation of
postal votes. Subseqi nt to the vote, it was alleged that the police surrounded the
offices of the Bar Association to force a second vote. In the second vote, on 4 July
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2002, the supporters of the winner of the first election refused to participate and a
member of the governing political party was subsequently elected as the new
President of the Association
Communications from the Government
114. On 18 November 2002, the Government replied to the Special Rapporteur's
communication of 29 July 2002. The Government stated that the newly appointed
President of the Bar Associatioi Mr. Ould BettaI is the person who organized the
elections and then complained about them. After the first round of elections neither of
the two candidates obtained the necessary majority, and thus a second round was
mutually agreed upon. The votes received by mail were not counted during the first
round as the secrecy of the vote had been compromised since lawyers had put their
names on the ballots. Consequently, those votes were declared null and void. The
Government stated that overall, the elections took place much as they had in past, and
there was nothing political behind the elections. None of the lawyers or the President
filed a formal complaint before the Supreme Court, which is the only court competent
to rule on electoral matters. The appeal period has now passed.
Observations
115. The Special Rapporteur thanks the Government for its response.
Mexico
Communications to the Government
116. On 25 March 2002, the Special Rapporteur sent a communication concerning
lawyer Barbara Zamora, who worked together with the late Digna Ochoa and who is
now the lawyer Ms. Digna Ochoa's family According to the information received, she
had received a message by electronic mail saying: “collisions, accidents, lawyers,
urgencies...” words similar to one of the first anonymous letters that lawyers Digna
Ochoa and Pilar Noriega received in 1996. It was also alleged that not all the
preventive measures that Ms. Zamora had requested from the Inter-American Court of
Human Rights have been implemented.
117. On 10 April 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Representative of the Secretary-General on human rights defenders and the
Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
lawyer Leone! Guadalupe Rivero. It was reported that Mr. Rivero's bodyguards,
who had been appointed by the Government after the death of Ms. Ochoa, were
attacked on 6 April 2002 in front of Mr. Rivero's house and their weapons taken from
them.
118. On 23 July 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
Representative of the Secretary-General on human rights defenders concerning lawyer
Arturo Requensens Galnares. According to the infornution received, Mr. Galnares,
a member of the organization ACAT —Action of Christians for the Abolition of
Torture, had faced harassment and received threats in connection with his work
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defending victims of torture, forced disappearances and extrajudicial killings. On 16
July 2002, Mr. Galnares noted a car containing five persons parked in front of his
house. On 17 July 2002, he received a telephone call in which he heard the sound of a
gunshot.
Communications from the Government
119. On 12 and 21 February 2002, the Government sent information concerning
José Francisco Gallardo Rodriguez. The Government informed the Special
Rapporteur that Mr. Gallardo Rodriguez was released on 7 February 2002, when the
two sentences he was serving were commuted to the time he had spent in prison. Mr.
Gallardo Rodriguez' release was made possible by a presidential decree signed
on 7 February 2002, commuting the sentences on the basis of article 89, subparagraph
1, of the Constitution of the United Mexican States and articles 123, 178 and 871 of
the Code of Military Justice. Under the latter two articles, it is the sole prerogative of
the head of the executive to grant this privilege. The decision also allows Mr.
Gallardo Rodriguez, if he sees fit, to take appropriate action through the domestic
courts. In addition, from the moment he was released, Mr. Gallardo Rodriguez has
been afforded personal protection of a preventive nature, with a guard reporting to
officers of the Federal Crime Prevention Police.
120. On 29 April 2002, the Government replied to the Special Rapporteur's joint
urgent appeal of 10 April 2002. The Government stated that according to information
received from relevant sources, the assault of the bodyguards of Leonel Guadalupe
Rivero Rodriguez was apparently carried out by mistake, a consequence of federal
agents' failure to comply with security regulations. The attack therefore was not
intentionaL The Government reassured the Special Rapporteur that the injuries to the
agents were minor and that two other agents of the Federal Investigation Agency were
dispatched to permanently relieve the individuals involved in the incident.
121. On 30 April 2002, the Government replied to the Special Rapporteur's
communication of 25 March 2002. The Government stated that as a result of an offer
by the Government Procurator of the Federal District and a decision of the Inter-
American Court of Human Rights, Ms. Zamora was offered protection to ensure her
physical safety. After consultation with Ms. Zamora, a guard was placed outside her
offices on 27 November 2002 and after negotiations, the Government and Ms.
Zamora had agreed upon the action and assistance necessary for the installation of
closed-circuit equipment in her offices. With respect to the threats against Ms.
Zamora, the Government stated that a preliminary investigation was opened on 19
March 2002. Further, at a meeting between the Government Procurator of the Federal
District and Ms. Zamora, she indicated her rejection of measures being implemented
to protect her physical integrity. On 19 November 2002 the Government provided an
update on this case and advised that Ms. Zamora now has increased security, as
surveillance cameras had been installed in her office.
122. On 1 October 2002 and 5 November 2002, the Government replied to the
Special Rapporteur's communication of 23 July 2002. The Government stated that the
Federal District Government Procurator's Office had immediately initiated a
preliminary investigation into the threats and harassment of Arturo Requensens
Galnares and that the investigation was ongoing. The Inter-American Commission for
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Human Rights had requested protection for Mr. Galnares and his mother, Guadalupe
Galnares Meeza, and this was granted by the Minister for Foreign Affairs and is being
provided by judicial officers from the Federal District Government Procurator's
Office. In addition, protection was also being provided to Mr. Galnares at the ACAT.
123. On 30 October 2002 the Government responded to the Special Rapporteur's
recommendations contained in his mission report (E/CN. 4/2002/72/Add. 1). The
Government stated that the Special Rapporteur's recommendations were incorporated
into the international mechanisms and recommendations developed by the External
Relations Secretariat which were being considered by the Inter-Secretarial
Con imission. Further, it was reviewing the recommendations because it wanted to
develop an overall policy to strengthen human rights, as publicly announced by
President Fox on 20 August 2002. The Interdepartmental Commission on
Government Policy on Human Rights replaced the old Commission and has a broader
mandate which includes members of civil society. The recommendations of the
Special Rapporteur will be an important reference for the second phase of the
technical cooperation programme being undertaken with OHCHR.
124. On 22 November 2002, the Government sent information to the Special
Rapporteur regarding information it had received as a result on an unannounced visit
conducted on 12 October 2002 by the National Institute of Migration, the Office of
the General Prosecutor, the Preventative Police and observers from the National
Commission on Human Rights to a detention centre in Iztapalapa. The Government
advised that irregularities had been found resulting in an investigation by the Office of
the General Prosecutor into potential administrative and criminal offences.
125. On 18 December 2002 the Government provided confidential information on
the case of Digna Ochoa. The Government asked that the information remain
confidential as the case is still pending. In August 2002, a special prosecutor was
assigned to this case.
126. The Special Rapporteur also received a lengthy report on his mission report
compiled by the Supreme Court of Mexico.
Observations
127. The Special Rapporteur has not heard anything further about the extent to
which the Government has implemented the recommendations made in his mission
report (E/CN.4/2002/72/Add. 1).
128. As for the response of the Supreme Court of Mexico to his report, the Special
Rapporteur did not respond as he felt tiut the report was prompted by, and more of a
response to, the media reports on the Special Rapporteur's report.
Nepal
Communications to the Government
129. On 22 January 2002, the Special Rapporteur sent a joint urgent appeal together
with the Special Rapporteur on Torture and the Chairman-Rapporteur of the Working
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Page 30
Group on Arbitrary Detention concerning SlUt Baldik a 33-year-old bookseller, and
her husband, Padam Prasad Baldik a 36-year-old lawyer. Ms. Baidik was reportedly
arrested at her book stall in Tulsipur town, Dang district, in mid-western Nepal on 16
January 2002 and taken to the police office in Tulsipur. When her husband attempted
to see her in custody, he was allegedly arrested as well. The Chairman of the Appeal
Court Bar Association went to the police station to make inquiries on their behalf and
was reportedly advised that they had both been handed over to army officers from an
army camp in the district, called Bahini Adda, where they were said to be held in
incommunicado detention. They had reportedly not been charged with a criminal
offence. It is believed that they might have been arrested because of their previous
student activities with the Nepal National Free Students Union or their alleged
membership or support of the Communist Party of Nepal (CPN) (Maoist). The
Terrorist and Disruptive Activities (Prevention and Control) Ordinance is said to grant
wide powers of arrest, and to allow the holding of persons arrested under the
Ordinance for up to 90 days, extendable for another 90 days with the permission of
the Home Ministry. Fears were expressed that the above-named persons might be at
risk of torture or other forms of ill-treatment in view of the incommunicado nature of
their detention in an unknown location.
130. On 29 July 2002, the Special Rapporteur sent an urgent appeal concerning the
arrest of lawyer Tikajung ShaM. The Special Rapporteur had received information
that Mr. Shahi had been arrested on 29 May 2002 at his office, the Legal Remedy
Centre, in Nepalgunj, Banke district. It was further reported that at the time of his
arrest, security personnel stated that he was being taken for interrogation. It is alleged
that the authorities had not confirmed his whereabouts and that his location still
remained unknown.
131. On 8 August 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on torture concerning the arrest of lawyer Han Prasad Phuyal.
The Special Rapporteurs had received information that Mr. Phuya had been arrested
on 22 May 2002 at his home in Himalipath, Biratnager, held for two days at the
district police office and then transferred to Morang prison. It was alleged that Mr.
Phuyal had been arrested for his work as a lawyer representing members of the armed
CPN.
132. On 29 August 2002, the Special Rapporteur sent a joint urgent appeal with the
Chairman- Rapporteur of the Working Group on Arbitrary Detention concerning the
arrest of lawyer, Raman Kumar Shrestha, who worked at a Legal Relief Centre
which reportedly defends victims of social or political injustice. The Special
Rapporteur had received information that he had been arrested on 23 August 2002 on
the way to his office in Kanuni Uddhar Kendra, Bagbazar, Katbmandu, by members
of the army. His house was searched and his wife was told that her husband had been
arrested to help them with an inquiry, but did not give her any further explanation for
his arrest. Fears have been expressed that Mr. Shrestha may have been arrested
because of his professional legal activities or because the authorities suspect him of
being a supporter or sympathizer of the CPN. It was added that lawyers appearing on
behalf of Maoist suspects have repeatedly been targeted by the authorities.
Observations
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133. The Special Rapporteur regrets there has been no response from the
Governmert.
New Zealand
Communications from the Government
134. On 2 April 2002, the Government provided further information concerning the
case of Moti Singh and confirmed the establishment of the Lay Observer procedure
for complaints about judicial conduct not upheld by the judiciary's own internal
review. The Government informed the Special Rapporteur that the Cabinet had
concluded after careful consideration that there was no legal basis for the payment of
compensation to Mr. Singh, and that there was no basis for a possible removal of
Judge Bouchier. Cabinet decided, howevei to request a retired judge from the Court
of Appeal to look into procedure followed in the investigation of Mr. Singh's
complaint. In his report, the judge concluded that the procedure follo wd had
generally been adequate and appropriate, but suggested three aspects for further
consideration: the need for some measure of consultation with the complainant, the
need for additional consultation with Judge Bouchier, and the need for advice to the
Attorney-General of the nature of the complaint and its internal resolution. The judge
also gave as his opinion that the Chief District Court Judge should have given a more
fulsome apology.
135. On 28 June 2002, the Government sent further information concerning Moti
Singh. The Government stated that the Chief District Court Judge had written to Mr.
Singh to inform him that he had received the report of the investigating judge and
discussed it with Judge Bouchier. The Government also attached a copy of the letter
sent to Mr. Singh informing him of the Government's decision in his case.
Observations
136. The Special Rapporteur thanks the Government for the serious considerations
it gave to his concerns over the then disciplinary procedure. He appreciates the
Government's efforts in further reviewing the process adopted in the complaint by
Moti Singh and the appointment of Justice Henry to that effect. The Special
Rapporteur also appreciates the transparency in this process, particularly the
disclosure of the report of Justice Henry to Mr. Singh.
Nicaragua
Communications to the Govermnent
137. On 13 May 2002, the Special Rapporteur sent a communication to the
Government concerning lawyer Maria Luisa Acosta. According to the information
received, Ms. Acosta's husband was found murdered in their home on 8 April 2002,
with his hands tied behind his back and a gunshot wound to the chest. As nothing was
stolen from the house, the information alleged that this indicated theft was not the
motive behind the attack. It was alleged that Ms. Acosta had been the actual target of
the attack, as she had received death threats in connection with her work at the Centro
de Asistencia Legal a los Pueblos Indigenas.
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138. On 7 October 2002, the Special Rapporteur sent ajoint urgent appeal withthe
Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
Chief Judge Juana Méndez Perez of the District Criminal Court. According to the
information received, Chief Judge Perez received a threatening phone call on 30
September 2002 directing her to free detainee Bayron JCrez Solis or she and her
children would be killed. In addition, a vehicle carrying 6 men followed her and tried
to intimidate her.
Communications from the Govermnent
139. On 28 November 2002 the Government replied to the Special Rapporteur's
communication of 7 October concerning Chief Judge Perez. The Government advised
that Judge Perez and members of her family have received 24-hour police protection
and there is an ongoing investigation by the National Criminal Investigations
Department.
Observations
140. The Special Rapporteur thanks the Government for its response.
Nigeria
Communications to the Government
141. On 21 January 2002, the Special Rapporteur sent a communication regarding
the assassination of Chief James Ajibola Ige, Minister of Justice and Attorney-
General of Nigeria. According to information received, he was killed in his home in
Ibadai Osun State, on 23 December 2001. The main suspect surrendered to the police
on 14 January 2002 and reportedly stated that the Osun state deputy governor had
ordered the killing. It was also reported that Mr. Awonusi, secretary to Chief Justice
Muhammadu Uwais, had been killed in Abuja on 8 January2002.
142. On 25 June 2002, the Special Rapporteur sent a communication concerning
the murder of judge Theresa Inyang-Ngah The Special Rapporteur had received
information that on 11 June 2002, Ms. Inyang-Nyah, Chief Magistrate of the Calabar
judiciary division, Cross River State, was found murdered in her home. It was
reported that a police spokesman stated that a political motive for her death could not
be ruled out and that she might have been killed in revenge for denying bail to a group
of suspects being held in connection with the murder of a local government
councillor. The Special Rapporteur was also informed that as a result, the local branch
of the Magistrates Association of Nigeria had gone on an indefinite strike.
143. On 4 July 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on extrajudic ial, summary or arbitrary executions concerning
threats made to Justice Nkem Izuako, High Court, Anambra State. The Special
Rapporteurs had received information alleging that following the decision in a case
involving the Idemili local government, the judge was visited on several occasions in
her home by an official claiming to be from the state Ministry of Justice, who put
pressure on her to accept a bribe and revoke her decision. It is alleged that following
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Page 33
her refusal she was told she would be assassinated. Subsequently, whilst travelling to
Abuja, she was followed by several individuals and needed to be provided with a
police escort. It was further alleged that in December 2001, she was transferred to a
judicial division in a rural part of Anambra State in punishment for her refusal to yield
to pressure.
144. On 30 August 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
Ahinadu Ibrahim, Fatima Usman and Mallam Ado Baranda who have been
reportedly sentenced to death by stoning. It has been brought to the Special
Rapporteur's attention that Mr. Ibrahim, Ms. Usman and Mr. Baranda reportedly did
not have legal representation during their trials or when the sentences were handed
down. Mr. Ibrahim and Ms. Usmai from New Gawu in Niger State, were reportedly
both convicted of adultery and initially received a sentence of five years
imprisonment with a fine of N 15,000 (around £75). Nevertheless, the state judiciary
called for a retrial because it considered this sentence to be inappropriate. Mr.
Baranda is reported to have been sentenced to death by stoning in Jigawa State for the
rape of a nine-year-old girl. The sentence was pronounced despite outrage expressed
by civil society both in and outside Nigeria over the death sentences now regularly
handed out by Nigeria's Sharia's courts.
145. On 26 September 2002, the Special Rapporteur sent a communication
concerning the murder of two lawyers, Barnabas Igwe and his wife, Abigail Igwe, in
Onitsha on 1 September 2002. According to the information received, Mr. and Mrs.
Igwe were killed after returning home from a National Bar Association (NBA)
conference where Mr. Igwe, Chairman of the Onitsha branch of the NBA, publicly
criticized the Anambra state government's failure to pay the salaries of government
workers. In the days preceding the murders, Mr. Igwe had received direct threats from
senior officials in Anambra State. The Special Rapporteur was also informed that
close colleagues of Mr. and Mrs. Igwe received death threats, including a specific
threat on the day after the killings when one colleague was told that “he would be
next”.
Communications from the Govermnent
146. On 7 November 2002 the Government replied to the Special Rapporteur's
communication of 26 September 2002 concerning Barnabas and Abigail Igwe. The
Government advised that the case had been conveyed to the appropriate authorities for
investigation and a further update will be transmitted without delay.
Observations
147. Despite reminders sent the Government has not responded to the other
communications.
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Pakistan
Communications to the Government
148. On 28 February 2002, the Special Rapporteur sent an urgent appeal regarding
the Anti-Terrorism (Amendment) Ordinance 2002 promulgated by President
Musharraf on 31 January 2002, which amended the Anti- Terrorism Act 1997. The
Amendment Ordinance provides for the establishment of anti-terrorism courts
composed of two civilian serving judicial officers and one military officer nominated
by the Federal Government. According to the information received, these courts
would have jurisdiction not only to try terrorism-related offences, but also other
serious crimes like murder and kidnapping. The Amendment Ordinance provides that
these courts will function for a period up to 30 November 2002, but there is a
provision for the extension of the period by the Federal Government by simply
notifying the Official Gazette. According to information received, there was a
previous decision of the Supreme Court of Pakistan to the effect that the establishment
of military courts for the trial of civilians is unconstitutional.
149. On 27 May 2002, the Special Rapporteur sent a communication concerning
the retrial of Benazir Bhutto. The Special Rapporteur had received information that
the retrial of Ms. Bhutto had begun on 17 May 2002, at the Rawalpindi
Accountability Court, and Mrs. Bhutto was convicted on 21 May 2001 and sentenced
to three years' imprisonment in absentia. It was also reported that although Ms.
Bhutto was not present during the trial she was represented by her lawyer, Sardar
Latif Khosa. It was alleged that despite this, the case was initially adjourned and
subsequently witness statements were taken in chambers by Judge Mansoor Mi Khan
without her counsel being present.
150. On 25 June 2002, the Special Rapporteur sent an urgent appeal concerning
threats to lawyer Khaffl Tahir. The Special Rapporteur had received information that
on 28 May 2002, Mr. Khalil, who works with the National Commission for Justice
and Peace, was called at his home and threatened with death unless he stopped
defending one of his clients, Ranjha Masih, who had been charged with blasphemy
under section 295-C of the Pakistan Penal Code. The information also stated that on 8
June 2002, several individuals came to Mr. Khalil's house inquiring about his
whereabouts. The police subsequently arrested one individual who was loitering
around Mr. Khalil's house.
Communications from the Government
151. On 8 October 2002, the Government provided a response to the Special
Rapporteur's communication of 25 June 2002 concerning the case of Khalil Tahir.
The Government advised that it has directed the Ministry of the Interior, the Home
Department of the Government of Punjab and the Inspector General of Police of
Punjab to ensure the personal safety of Mr. Tahir.
152. On 30 December 2002, the Government provided a response to the Special
Rapporteur's communication of 25 June 2002 concerning the case of Benazir Bhutto,
advising that Ms. Bhutto was tried in absentia on 17 May 2002 and convicted and
sentenced on 21 May 2002 to three years' imprisonment.
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Page 35
Observations
153. The Special Rapporteur continues to receive information regarding concerns
over the state of democracy and the rule of law in Pakistan. The continued persecution
of Mrs. Benazir Bhutto is a matter of concern. The Government appears to have
completely ignored the Special Rapporteur's request for a mission.
Palestinian Authority
Communications sent
154. On 17 May 2002, the Special Rapporteur sent a communication welcoming
the statement by the Palestinian Authority that it would abide by the principle of the
separation of powers and would rebuild the political system on the basis of
democracy, the rule of law and an independent judiciary. Further, the Special
Rapporteur welcomed the signing of a law recognizing the independence of the
judiciary.
Communications received
155. On 29 May 2002, the Authority replied to the Special Rapporteur's
communication of 17 May 2002. The Authority thanked the Special Rapporteur for
the communication and stated that the changes come within the framework of the
building a Palestinian society on sound and democratic foundations, based on the rule
of law and order and the abidance by the principles of the separation of powers.
Peru
Communications to the Govermnent
156. On 27 May 2002, the Special Rapporteur sent a communication concerning
the trial of 12 military officers who participated in Operation ChavIn Huántar at the
Japanese embassy on 22 April 1997.The Special Rapporteur received information that
these individuals had been indicted for unlawfully killing seven members of the
Revolutionary Movement Tupac Amarua (MRTA), and that a preventive detention
order had been issued by Anti-Corruption Judge Cecilia Pollack. The Special
Rapporteur was also informed that on 14 May 2002 the Minister for Defence declared
his support for 11 of the 12 individuals and denounced their preventive detention.
Further, on 16 May 2002, a cross party statement was adopted by the Peruvian
Congress expressing concern at the detention of these individuals and expressing
support for the armed forces that participated in the aforementioned operation. Also,
several draft amnesty laws had been placed before Congress to exempt these
individuals from further prosecution.
Communications from the Govermnent
157. On 16 December 2002, the Government replied to the Special Rapporteur's
communication of 27 May 2002 concerning Operation ChavIn Huántar. The
Government advised that on 11 June all the persons concerned had been charged with
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Page 36
second-degree murder and were all released from detention except one. The
investigation is ongoing. The Government stated that all the persons involved in the
investigation will be provided with all the legal judicial guarantees and the
independence of the judiciary will be respected. With respect to the actions taken by
the Minister of Defence, Dr. Aurelio Leret de Mola, the Government explained it was
his way of expressing his support for his staff who were involved in the case, since
they had risked their lives to save 72 other persons taken as hostages by the MRTA.
Other Developments
158. The Special Rapporteur notes the recent ruling in early January 2003 by the
Constitutional Court of Peru that some of the country's anti-terrorist laws were
unconstitutional. The Court concluded that it was unconstitutional for military
tribunals to try civilians. The Court also ruled that life sentences handed down to
rebels convicted of terrorism were excessive, and therefore unconstitutional. The
ruling affects about 900 people who may file appeals in light of the ruling.
Observations
159. The Special Rapporteur thanks the Government for its response. He urges the
Government to respect the decision of the Constitutional Court.
Saudi Arabia
Conununications to the Govenunent
160. On 3 May 2002, the Special Rapporteur sent a communication to the
Government concerning the situation of seven individuals who had been arrested for a
series of bombings that had taken place in Saudi Arabia in 2000 and 2001. The
Special Rapporteur had received information that the individuals had been convicted
of these crimes after a closed hearing and sentenced to imprisonment. It was alleged
that the convictions were based upon confessions which according to one of their
defence lawyers, Abmed al-Tuwaijeri, had been retracted. It was further alleged that
the families of the accused had not been able to communicate with the accused during
their detention and were not aware of the legal processes taking place.
Conummications from the Govenunent
161. On 1 July 2002, the Government replied to the Special Rapporteur ‘s
communication of 3 May 2002. The Government stated that the proceedings against
the individuals are continuing and that they are fully represented by lawyers. The
judgement to be passed in the case will be made public. In this context, the
Government made clear that the executive authority has no influence over the judicial
system in Saudi Arabia.
Observations
162. The Special Rapporteur raised this issue with the competeit authorities in
Riyadh during his mission and has made his observations in his report
(E/CN. 4/2003/65/Add.3).
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South Africa
Communications to the Govermnent
163. On 3 September 2002, the Special Rapporteur sent an urgent appeal
concerning the shooting of Magistrate Tienie Langenhoven of the Parow Regional
Court, Cape Town, on 27 August 2002. According to the information received,
Magistrate Langenhoven was seriously injured in front of his home when a passing
car fired three shots that hit him in various parts of the body, including the head and
the chest. It was further reported that magistrates have previously requested the
Government to take steps to improve the security conditions under which they work,
including the provision of security guards to patrol their homes and to escort them to
their place of work.
164. On 12 December 2002, the Special Rapporteur sent an urgent appeal
concerning the attempt on the life ofJustice Nathan Erasmus of the Cape High
Court on 9 December 2002. Reportedly, Justice Erasmus had received a number of
written threats, the first back in June 2002 and most recently on 26 November, when
he was the judge on several high-profile urban terror cases. According to the
information received, there has been little progress in the investigation into the threats
against Justice Erasmus.
Communications from the Govermnent
165. On 19 April 2002 the Government replied to the Special Rapporteur's
communications dated 8 August 2001 and 4 September 2001. The Government stated
that it had taken several measures to strengthen the independence of magistrates and
separate their judicial and administrative functions, including the appointment of
office managers in certain main areas, and in 90 per cent of offices there was now a
practical separation of functions. However, in very small offices this had not been
implemented due to funding limitations. Further, magistrates have been integrally
involved in the process and as a result have not embarked upon any countrywide
action. However, magistrates have commenced proceedings in the High Court, which
are currently being considered by the Constitutional Court, concerning their situation.
166. The Government also emphasized that notwithstanding budgetary restrictions,
money has been invested to upgrade facilities ant magistrates and judges had received
substantial salary increases. The Government stated that it is in favour of a single
judiciary. With respect to the communication dated 4 September 2001, the
Government stated that the letter to regional court presidents was sent as a follow-up
to a meeting with lay assessors and was a mere request that should not be construed as
an attempt to interfere with the independence of the judiciary. Further, the letter
requested information on problems with the use of lay assessors and emphasized that
the use of these persons was aimed at fostering greater interaction between courts and
communities.
Other developments
167. Earlier in January 2003 the Special Rapporteur received information that the
Chief Magistrate of KwaZulu Natal was nearly shot dead in the early morning as he
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was leaving home for his court. Earlier, a Ganteng policeman was shot dead inside the
Alberton magistrate's court.
Observations
168. The Special Rapporteur expresses grave concern over the increased violence
against judicial officers. Despite assurances from the Ministry of Justice that security
of judicial officers will be given priority, this does not appear to be the case. Without
such security for judicial officers the rule of law will be put at risk.
Spain
Communications to the Government
169. On 1 February 2002, the Special Rapporteur sent a communication concerning
the proceedings against three judges, Carlos Cezón, Juan José Lopez Ortega and
Carlos Ollero of Section IV of the Penal Chamber of the National High Court. The
judges had ordered the provisional release of a prisoner charged with drug trafficking,
on the basis of a psychiatric report indicating that the prisoner was mentally ill and
that a suicide risk existed. Subsequently, the accused absconded. According to reports,
the Supreme Court agreed to process the complaint presented by the Attorney General
against the three magistrates for the crime of wilful neglect of duty. The General
Council of the Judiciary (GCOJ) has opened an inquiry against th three judges for
carelessness.
Communications from the Govermnent
170. On 28 February 2002 the Government sent a detailed response to the Special
Rapporteur's communication of 1 February 2002. The Government stated, as a
preliminary matter, that disciplinary or criminal investigations ofjudges are a rare
occurrence and in this instance the Asociación de Abogados Demócratas por Eurpoa
is also pressing private criminal charges against the judges concerned. With respect to
the specific case mentioned in the Special Rapporteur's communication, the
Government stated that on 10 January 2002, the GCOJ opened a formal inquiry into
the events concerning the provisional release of the prisoner, and requested reports on
each of the judges involved and the forensic physician. On 17 January the GCOJ
initiated disciplinary proceedings against the judges for allegedly committing a very
serious violation of article 4 17(9) of the Organization of Justice Act, through
negligence in the exercise of judicial power. On 6 February 2002, the three judges
were suspended from duty, in accordance with article 384(3) of the aforementioned
Act, until the criminal proceedings against them were completed. The disciplinary
proceedings were also suspended until that time.
171. With respect to the criminal proceedings, the Government stated on 10
January 2002 that the Public Prosecutor's Office had filed a complaint with the
second Division of the Supreme Court for a violation of article 446(3) of the Penal
Code, which provides that a judge or a magistrate who knowingly hands down an
unjust sentence or decision shall be punished with a fine of 12 to 24 months of salary
and a disqualification from public employment for a period of 10 to 20 years if he/she
hands down any other unjust sentence or decision. This complaint was declared
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admissible by the Criminal Division of the Supreme Court on 17 January 2002.
Preliminary hearings have now commenced and the judges concerned have been
charged and are entitled to legal assistance by a lawyer of their choice.
172. On 6 August 2002, the Government sent further information concerning the
proceedings against the three judges. The Government stated that on 23 July 2002, the
Supreme Court ordered the dismissal of the complaint against the three judges, who
are now exempt from any criminal responsibility for their actions. Further, on 29 July
2002, the GCOJ, found that that the behaviour of the judges indicated a “lax, careless
and ultimately negligent attitude” constituting a serious disciplinary offence. The
GCOJ ordered a seven- month suspension for Justice Carlos Cezón Gonzalez, and six
month suspensions for Justices Lopez Ortega and Ollero.
Observations
173. The Special Rapporteur views with concern that while the Supreme Court
acquitted the judges for knowingly handing down an unjust decisioi the GCOJ found
that the same judges were lax, careless and negligent in their judgement. Even if the
judgement were manifestly wrong or unjust surely the proper procedure would have
been an appeal to the appellate court.
Sri Lanka
Communications to the Govermnent
174. On 13 September 2002, the Special Rapporteur sent a joint urgent appeal with
the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special
Rapporteur on torture and the Chairman- Rapporteur of the Working Group on
Arbitrary Detention regarding Nandini Herat, who was allegedly subjected to sexual
torture by 5 police officers, including the officer in charge, while in police custody in
Wariyapola, near Kurunegala. It has been reported that the trial of the five police
officers for torture began in September before the magistrate's court of Wariyapola.
Although the magistrate allegedly issued a warning that the witnesses should not be
intimidated, the police officer in charge reportedly went to the remand prison where
Ms. Herat was being held, allegedly in order to ask her to withdraw the case. He was
reportedly prevented from doing so by prison officials. Other threats were reportedly
uttered against Nishanta Kumara, a correspondent of the daily newspaper Ravaya , by
Mr. Sunil, a supporter of the ruling United National Party who allegedly threatened
Mr. Kumara with a knife and asked if he was “the human rights dog who's trying to
send my brother- in- law to prison.” Fears have also been expressed that the two
lawyers who had been asked to act on Ms. Herat's behalf have withdrawn their
services as a result of intimidation.
Communications from the Govermnent
175. On 10 October 2002 the Government sent a response to the Special
Rapporteurs' communication of 13 September 2002 concerning Nandini Herat. The
Government advised that the Criminal Investigations Department (CID) of the Sri
Lanka Police had taken over the investigation on the alleged torture of Ms. Herat. The
Government further advised that the Judicial Medical Officer had been directed to
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undertake another medical examination of Ms. Herat. The CID was requested to
submit the investigation and medical reports by 31 October 2002 in order to consider
filing indictments under the Convention against Tortwe and other Cruel, Inhuman or
Degrading Treatment or Punishment Act. The Government also advised that the CID
had been directed to conduct criminal investigations into the alleged threat against
Priyantha Gamage, Ms. Heart's lawyer and Nishanta Kumara, human rights activist.
176. On 17 December 2002, the Government sent a response to the Special
Rapporteur's communication of 6 August 2001 (see E/CN.4/2001/65, paras. 206-207,
209-210 and E/CN.4/2002/72, annex, para. 166) concerning lawyer, Kumar
Ponnambalam, who was shot dead on 5 January 2000. The Government advised that
the Crime Detection Bureau of the Police Department was directed to investigate the
assassination. On 28 February 2001 the CID took over the inquiry. Based on further
investigations, the Attorney-General directed the CID to charge three suspects, one a
former reserve police constable, and the court proceedings will commence on 3
January 2003.
Observations
177. The Special Rapporteur is waiting to hear about the outcome of the
prosecution of the three accused for the murder of Kumar Ponnambalam.
178. The Special Rapporteur continues to be concerned over the allegations of
misconduct on the part of the Chief, Justice Sarath Silva, the latest being the
proceedings filed against him and the Judicial Service Commission in the Supreme
Court by two district judges which is set for hearing on 27 February 2003.
Sudan
Communications to the Government
179. On 20 February 2002, the Special Rapporteur sent a communication
concerning the emergency tribunals that were established in 2001 under the state of
emergency to deal summarily with certain specified crimes. These tribunals are
reportedly composed of two military judges and one civil judge, the right to legal
representation of the accused is seriously restricted and an appeal is only permitted to
the district chiefjustice. In particular, it was reported that on 12 December 2001, an
emergency tribunal in Nyala, Southern Dafur, convicted Abdu Ismail Tong and
Yousif Yaow Mombai for the theft of a sum of money and sentenced them to
amputation of the right hand. According to the information received, they were denied
the right to legal representation throughout the trial.
180. On 26 June 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special
Rapporteur on torture and the Special Rapporteur on the situation of human rights in
the Sudan concerning the sentencing to death by hanging of 14 prisoners by Nyala
Special Court No. 1 on 8 May 2002. The Special Rapporteurs had received
information that the Nyala Special Court had been established in accordance with
article 6(2) of the Law of Emergency and Protection of Public Safety of 1997 and
State of Emergency No. 1 of 1998. The information stated that this court is composed
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of one civil and two military judges, that lawyers are forbidden to appear before the
court and individuals can only appeal the decision of the court when sentenced to
death or amputation. The appeal must be made within seven days to the district chief
justice whose decision is final.
181. On 23 July 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special
Rapporteur on torture and the Special Representative of the Secretary General on
human rights defenders concerning the trial of 88 people by a special court in Nyala.
According to the information received, on 17 July 2002, these individuals, mostly
from the Rizeigat community, had been sentenced to death by hanging or crucifixion
for crimes committed in clashes between the Rizeigat and Maalyia ethnic groups in
Al-Tabet, Southern Dafur. It was alleged that these individuals had been subjected to
torture and tried without proper legal representation after their lawyers withdrew in
protest of the court's decision to refuse to authorize medical examinations.
182. On 3 December 2002, the Special Rapporteur sent ajoint urgent appeal with
the Special Rapporteur on torture, the Special Rapporteur on violence against women
and the Special Rapporteur on the situation of human rights in the Sudan concerning
17 women accused of adultery from the village of Munwashi, 8 km north of Nyala. It
was reported that the reason given for the charges of adultery was that all the women
were unmarried, but had given birth to babies. Summary trials were reportedly held
and on 12 November 2002 Urn Alnas Moharned Ahrned, Hanan Abduiralunan
Moharned, Hagir Moharned Ahrned, Nirnat Abakr Abdelgadir, Rasha Bahr
Aldin Adan Fatima Abdulla Adan Gada Mosa Harnid, Sharnael Ornar Fadi,
Hawa Yousif Abdelgadir, Fathia Ahrned Abdu1raIunai Laila Adarn Siraj
Kaltoum Isarn Adan Rawda Abdelgabar Moharned were reportedly found guilty
of adultery and sentenced to receive 100 lashes. Gadah Abdelgabar was allegedly
found guilty of adultery on 14 November 2002 and sentenced to receive 100 lashes.
The punishments were allegedly carried out on the same day as the sentencing. It is
reported that the women had no opportunity to seek legal advice or to make appeals.
No men have reportedly been charged in connection with the incidents. Zahra
Hassan All, Asrna Moharned Aluned and Zakia Altayeb have reportedly not yet
been brought to court. Fears have been expressed that, if taken to court and found
guilty, these three women would face the same punishment as the other 14 women.
Cornrnuuications frorn the Govenunent
183. On 25 July 2002 the Government responded generally to the Special
Rapporteur's communications and referred to the increase of terrorism in western
Sudan. The Government advised that 63 villages were burned and thousands of people
were killed. The Government advised that it had established special courts in Elfashir
and Nyala in accordance with the Constitution of 1998, under the state of emergency
which was declared in the region to address the situation. The Government further
advised that all accused were represented by a number of lawyers throughout the trial.
The accused were found guilty of organizing highly dangerous crimes and spreading
terror and killing more than 1'OOO Sudanese, including women and children. The
Government advised that five of the 36 accused in Elfashir were sentenced to death
and another 15 accused received similar sentences in Nyala.
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Observations
184. Even if crimes are terrorist related, the Government is urged to observe
General Assembly resolution 57/2 19 of 18 November 2002.
Swaziland
185. On 28 November 2002 the Prime Minister made a press statement that his
government “does not intend to recognize two judgements of the Court of Appeal (the
highest court). One of the two judgements was with regard to a ruling that King
Mswati II had no constitutional mandate over Parliament to issue decrees affecting the
law. The other ruling was with regard to an order for citing the Police Commissioner
for contempt for disobeying a High Court order.
186. This drove the government on a collision course with the judiciary. The entire
bench of the Court of Appeal resigned. On 2 December 2002 judges of the High Court
stopped work, as a mark of protest, and the Bar Association adopted a position to
demonstrate in support of the judges. There were other related developments. The rule
of law was in a state of collapse.
187. In the light of the gravity of the situation, the Special Rapporteur issued a
press release on 4 December 2002 expressing concern and stating that the refusal of
the Government to obey court orders was a blatant breach of what is implied in
principle 4 of the Basic Principles on the Independence of the Judiciary and article 26
of the African Charter on Human and Peoples' Rights
188. In a further development, the Prime Minister ignored a High Court order
demanding that he provides an assurance that the government would adhere to court
decisions. Instead, in a press statement isued on 3 January 2003 he was reported to
have said, “Two recent appeal court judgements will be addressed through
consultation between the government and its advisers, in addition to the Head of State
(King Mswati). Legal experts will be included in the consultation.”
189. These developments must be viewed with grave concern. The Special
Rapporteur urges the Commission to address them appropriately.
Syrian Arab Republic
Commimications to the Govermnent
190. On 11 April 2002, the Special Rapporteur together with the Special
Rapporteur on torture and the Chairman- Rapporteur of the Working Group on
Arbitrary Detention sent a joint urgent appeal regarding Riad Seif, an independent
member of the Syrian People's Assembly who was sentenced to five years'
imprisonment on 4 April by the Criminal Court in the capital Damascus. He was
reportedly found guilty of a number of offences, including attempting to change the
Constitution by illegal means and inciting ethnic strife. It was reported that Riad Seif
was arrested without a warrant, before his parliamentary immunity had been removed.
Further, his trial reportedly fell short of international standards for fair trials, as he
was allegedly denied an adequate public hearing as well as confidential access to his
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lawyers, who were not allowed to call in defeire witnesses. It was also reported that
several other prisoners, including Habib ‘Isa, Fawaz Tello, Habib Saleh and Kamal
al-Labwaui who weere also held at ‘Adra Prison, on the outskirts of Damascus,
began a hunger strike on 19 March. They were reportedly protesting against their
continued detention without trial, the denial of access to their lawyers and the denial
of appropriate medical care.
191. On 10 May 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Rapporteur on torture concerning Riad Turk. According to the information
received, the health of Mr. Turk's, he suffers from diabetes and hypertension, had
deteriorated significantly during his detention. He had reportedly been denied access
to adequate medical treatment and also access to a lawyer. Further, on 28 April 2002
his trial commenced before the Supreme State Military Court in Damascus. It was
alleged that Mr. Turk had not been informed that his trial was to commence and
documents related to the trial had not been made available to him.
192. On 29 July 2002, the Special Rapporteur sent a communication concerning
lawyer, Haytham Al-Maleli The Special Rapporteur had received information that
on 4 July 2002, Mr. A1-Maleh had been suspended from practising as a lawyer for a
period of three years by the Disciplinary Council of the Damascus City Branch of the
Syrian Lawyers Syndicate. It was alleged that this stemmed from a public statement
that Mr. A1-Maleh had made in defence of two of his clients. It was also reported that
the Disciplinary Council proceeded against Mr. A1-Maleh in his absence, despite the
fact that he had notified the Council that he was unable to appear on the date of the
hearing.
Communications from the Govermnent
193. On 25 September 2002 the Government replied to the Special Rapporteur's
communication dated 29 July 2002 concerning lawyer Mr. A1-Maleh. The
Government advised that that on 5 February 2002 Mr. A1-Maleh was invited to appear
before the Disciplinary Council with respect to an article he wrote in a bar association
journal but he did not appear on that date and did not provide justification for his
absence. The disciplinary Council fixed a new date of 5 March 2002. On that date Mr.
Al-Maleh appeared and asked to present a case in his defence. The Council met again
on 16 April and Mr. A1-Maleh presented his case. The case was adjourned to 21 June
2002 and on that date Mr A1-Maleh was absent, therefore the council imposed a three-
year suspension from practising law.
194. On 28 October 2002 the Government replied to the Special Rapporteurs' joint
urgent appeal dated 11 April 2002 addressing the case of Riad Seif. The Government
confirmed that Mr. Seif was sentenced to five years in jail on 4 April 2002 for
violating the Constitution and six months for organizing a secret society. Both
sentences are subject to appeal.
195. On 28 October 2002 the Government also responded to the Special
Rapporteurs' joint urgent appeal dated 10 May 2002 concerning the case of Riad
Turk. The Government advised that Mr. Turk was charged with committing crimes
against State security, the constitution and public order. The Government stated that
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Mr. Turk's trial before the High State Security Court commenced on 1 September
2001 and is still pending as he continues to enjoy his human and legal rights.
Observations
196. The Special Rapporteur thanks the Government for its responses. The Special
Rapporteur has received information that Mr. Al-Maleh now faces a military trial in
January 2003.
Timor-Leste
197. Following the Special Rapporteur's observations on Timor Leste in his last
report (E/CN.4/2002/72, annex, para. 55), he continued to monitor developments in
the country.
198. On 21 June 2002, judges in Timor-Leste sent the Special Rapporteur a
communication seeking his assistance on two matters which were of some concern to
them. The first concerned a draft Statute of Judicial Magistrates which the
Government had submitted to Parliament on which the judges alleged that they were
not consulted. They were concerned that some of the provisions in the draft would
impinge on their independence. Their second concern related to the appointments of
some of them. The affected magistrates felt that after 20 May 2002, when Timor Leste
became an independent sovereign State under a new Constitution, their appointments
expired and they no longer had the jurisdiction to adjudicate on cases. As a result
many refused to attend to their judicial duties, thereby virtually paralysing the courts.
199. In view of the seriousness of the situation, on 4 July 2002, the Special
Rapporteur wrote to the Foreign Minister, Jose Ramos Horta, expressing his concern
and sought an urgent visit to which the Minister promptly responded in a
communication dated 8 July 2002, inviting the Special Rapporteur.
200. The Special Rapporteur visited Dili from 11 to 13 July 2002. While there he
visited the National Parliament and listened to part of the debate on the bill on the
Statute on Judicial Magistrates; he met a group of the concerned judges; judges of the
Special Panel for Serious Crimes; representatives of the USAID Rule of Law
Programme; the acting Minister of Justice and Vice-Minister for Foreign Affairs; the
representatives of the Human Rights Unit and the Special Representative of the
Secretary- General for Timor- Leste, Kamalesh Sharma.
201. The concern ofthe judges regarding their appointments was resolved on 9 July
2002, when Parliament passed Bill M 1/02 on the Interpretation of Applicable Law
validating the ir judicial appointments on a transitional basis. From the discussions
with the concerned judges, the Special Rapporteur learnt that they had taken a very
strict interpretation of the Constitution and thereby overreacted to the situation.
Following the Special Rapporteur's visit the judges returned to the courts on 15 May
2002, bringing an end to the six-week shutdown of many courts in Timor- Leste.
202. The Special Rapporteur studied the bill on the Statute of Judicial Magistrates
and found that the judges had some justification for their concerns. Some of the
provisions would, if passed as law, impinge on their independence. As a matter of
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urgency, the Special Rapporteur, on 15 July 2002, addressed a communication to the
Minister for Foreign Affairs expressing his initial areas of concerns over the bill.
203. At the request of the Government, on 6 August 2002, the Special Rapporteur
subsequently submitted a more detailed memorandum expressing his concerns with
respect to some of the provisions. The Special Rapporteur has not heard further from
the Government nor the Human Rights Unit of UNMISET in Timor-Leste.
204. The Special Rapporteur reiterates his concerns expressed in his last report
(E/CN.4/2002/72, annex, paras. 45-55). The country requires considerable resources,
both human and financial to structure a sound administration of justice. The present
judges, many of whom are still on probatioi require continuous training and more
exposure both to law and practice. This includes international human rights law. The
courts do not have adequate libraries or up-to-date materials on domestic laws.
Tunisia
Communications to the Government
205. On 4 January 2002, the Special Rapporteur sent a communication concerning
the dismissal of Judge Yahyaoui. The Special Rapporteur had received information
that on 29 December 2001, Judge Yahyaoui had been dismissed by the Disciplinary
Council of Magistrates because of his presidency of an association for the
independence of the judiciary, created in September 2001. It was alleged that the
hearing before the council had not been fair as the lawyers who were representing the
judge were refused a postponement in order to adequately prepare the judge's case.
206. On 4 February 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on torture and the Special Rapporteur on freedom of expression
and opinion concerning the appeal hearing in the case of Hanuna Hanunami,
Abdeijabar Maddouri, Samir Taamallah and Amar Hamroussia, who had been
convicted for membership of the Communist Workers' Party of Tunisia. According to
the information received, the police interrupted the hearing and acted aggressively
towards the accused, following which the lawyers representing the accused withdrew
from the case out of protest It was reported that the convictions were confirmed by
the court. Several persons attending the hearing, including three foreign journalists,
were said to have been arrested by the police. The Council of the Bar Association had
reportedly called a general assembly and were planning a general strike for 7 February
2002.
207. On 6 March 2002, the Special Rapporteur sent a further communication
concerning the dismissal of Mr. Yahyaoui. According to the information received, the
Disciplinary Council had failed to issue its decision on the complaints against Mr.
Yahyaoui in writing, which would affect his right of recourse before the
Administrative Tribunal. It was alleged that the Administrative Tribunal rejected Mr.
Yahyaoui's request to order the Council to formulate its decision in writing. Further,
Mr. Yahyaoui's counsel, Abderrazaq Kilani, has allegedly been put under pressure
in order to make him withdraw from the case.
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208. On 8 April 2002, the Special Rapporteur sent an urgent appeal with the
Special Representative of the Secretary-General on human rights defenders
concerning the failure of the Government to allow Judge Yahyaoui to leave the
country in order to attend the United Nations Commission on Human Rights.
209. On 15 April 2002, the Special Rapporteur sent a letter requesting an urgent
mission to Tunisia.
Communications from the Government
210. On 12 February 2002, the Giivernment replied to the Special Rapporteur's
intervention of 4 January 2002. The Government stated that on 9 December 2001, the
Judicial Disciplinary Council decided to dismiss Judge Yahyaoui for bringing
dishonour on the judiciary and failing to comply with his professional obligations and
duty of discretion. The Government stated that this was because he had publicly
defamed the courts and failed to observe the neutrality expected of judges under the
regulations on the judiciary. The Government recalled that on 6 July 2001, Judge
Yahyaoui had published an “open letter” which contained defamatory statements
about serving law officers and the courts, which stated, inter alia , that “the title of
legal officer is associated with injustice, terror and tyranny... The Judicial Service
Commission spends its time sowing discord”. He then published an article on the
Internet, in which he stated that “the Tunisian legal officers who were behind the
promulgation of the 1967 regulations on the judiciary do not deserve divine mercy”
Pursuant to article 54 of the regulations on the judiciary, the Minister of Justice
summoned Mr. Yahyaoui before the Disciplinary Council on 17 July 2001. A
reporting member of the Council was designated to take a statement from Mr.
Yahyaoui prior to the meeting of the Council.
211. The Government stated that Mr. Yahyaoui was summoned to appear before
the Disciplinary Council within the legally prescribed time frame, i.e. eight days
before the Council met on 2 August 2001. As prescribed by law, Mr. Yahyaoui
appointed two lawyers, Abderrazak Kilani and Fayçal Triki, to represent him. They
inspected the case file on 26 and 28 July, respectively. Owing to the seriousness of the
charges against him, Mr. Yahyaoui was suspended from his duties pursuant to a
decision of the Ministry of Justice dated 14 July 2001, in accordance with articles 24,
50 and 54 of the regulations on the judiciary. On 28 July 2001, Mr. Yahyaoui
requested postponement of the Council meeting. The President of the Council acceded
to this request. Given that suspension is effective only until such time as the matter
comes before the Council, it was lifted by the Ministry of Justice on 31 July 2001. Mr.
Yahyaoui was thus reappointed to his post on full pay.
212. According to the Government, on 3 September 2001, Mr. Yahiaoui's lawyer,
Maître Kilani, filed a request that a decision should be taken on his client's case. A
similar request was filed on 19 October 2001 by Maître Triki. Mr. Yahyaoui publicly
stated this request on 23 December 2001 at a meeting of the Association of Tunisian
Legal Officers.
213. The next meeting of the Council was then scheduled for 29 December 2001.
No new evidence had been appended to the case file as submitted to the Council on
2 August 2001. However, the President ofthe Disciplinary Council, who is also the
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President of the Court of Cassation, gave the defendant another eight days to inspect
the case file prior to the meeting of the Council. On 24 December 2001, accompanied
by Maître Kilani and, on 26 December 2001, by Maître Triki, Mr. Yahiaoui re-
inspected the case file in person. During the eight-day period set aside for the
inspection of the case file, no lawyers apart from those instructed to represent the
defendant came forward. At the meeting of the Council on 29 December 2001,
however, 84 lawyers suddenly submitted their instructions to represent Mr. Yahyaoui
and requested that the case be postponed. Although the right of defence was hono ured
insofar as Mr. Yahyaoui had appointed lawyers who inspected the case file prior to
the Council meeting, out of a concern to ensure more safeguards, the Council
permitted all the lawyers who had presented themselves to attend the hearing.
However, considering that the Council was meeting after a postponement requested
by Mr. Yahyaoui himself; that no new material had been appended to the case file
originally submitted to the Council; that Mr. Yahyaoui and his lawyers had inspected
the same material on four occasions (26 July 2001, 28 July 2001, 24 December 2001
and 26 December 2001); and that another eight-day extension had been granted to the
defendant and his counsel to enable them to inspect the case file, the Council took the
view that the new request for a postponement was a delaying tactic and consequently
rejected the request following a debate in closed session.
214. As to the merits, Mr. Yahyaoui reiterated his written replies when the
President gave him the floor at the hearing. The Council, which is composed entirely
of legal officers of whom two are elected by their fellow appeal-court judges (i.e. the
same rank as the defendant), decided to dismiss Mr. Yahyaoui in view of the serious
nature of the libels and their confirmation by the defendant himself
215. The Government recalls that the Disciplinary Council is a decision-making
body and applies a quasi-judicial procedure in its meetings and acts (times fixed for
appearance, same reporting judge, right of defence, etc.). The Administrative Court,
which has supreme administrative jurisdiction in Tunisia, nevertheless allows
applications to set aside decisions of the Disciplinary Council on the grounds that the
latter has exceeded its authority and that remedy is open to the defendant.
216. The Government concludes that the disciplinary proceedings against
Mr. Yahyaoui have no connection with the right of a legal officer to form
associations, or with the right to freedom of expression. Like all other citizens, legal
officers enjoy all the rights and safeguards prescribed by law. Moreover, Tunisian
legal officers have always been free to form associations. Thus, a professional
association of legal officers was formed on 29 October 1971 and it continues to
function normally. The matter of the establishment of a “Centre for the Independence
of Legal Officers” was never raised during the proceedings and no evidence to
substantiate the establishment of this “centre” was appended to the case file.
Other developments
217. The Special Rapporteur received information that on 11 December 2002 Judge
Yahyaoui suffered violent blows to his head. The Special Rapporteur expresses his
deep concern about the violence against Judge Yahyaoui and other reported threats
against Tunisian lawyers in recent months.
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Observations
218. The Special Rapporteur has expressed grave concern about the continued
threat to the independence of judges and lawyers in Tunisia. His repeated requests for
a mission to Tunisia since 1997 have been ignored by the Government.
Turkey
Communications to the Government
219. On 23 May 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Rapporteur on freedom of opinion and expression and the Special Rapporteur
on extrajudicial, summary or arbitrary executions concerning the arrest of Salih Yilar
According to the information received, Mr. Yilar had been arrested on 14 May2002
and taken to the Anti-Terror Branch of the Diyarbakir Police Headquarters, where he
was allegedly tortured in order to force him to act as an informer. Mr. Yilar was
released from custody after being taken to Diyarbakir State Hospital and after other
police stations refused to accept him as a prisoner seeing that he had been tortured.
Mr. Yilahthen met his lawyers to give a statement and was immediately afterwards
arrested by the police and informed that the next time both his brother and his lawyers
would be arrested and placed in custody unless he signed a prepared statement.
220. On 7 August 2002, the Special Rapporteur sent a communication concerning
the trial of 27 lawyers before the Ankara Penal Court No. 1. The Special Rapporteur
had received information that the lawyers were being tried for “professional
misconduct” under Article 240 of the Turkish Penal Code, which allows for the
punishment of public servants if they abuse their duties or responsibilities. These
charges allegedly related to actioiE by the lawyers, involving the shouting of slogans
and the inciting of individuals to resist the police, in the Ankara Penal Court No. S on
5 December 2000, where they were representing their clients.
Communications from the Govermnent
221. On 15 October 2002, the Government replied to the Special Rapporteur's
intervention of 7 August 2002 and advised that the case against 27 lawyers was still
pending and that none of the accused were in custody.
222. On 29 November 2002 the Government provided further information on this
case and advised that all 27 lawyers were acquitted on 31 October 2002, due to lack of
evidence.
223. On 6 November 2002, the Government replied to the Special Rapporteurs'
joint urgent appeal of 23 May 2002 concerning Salih Yilar. The Government advised
that a decision of non-prosecution was rendered due to lack of evidence. The
Government stated that Mr. Yilar was not subjected to torture. However, as a result of
the alleged complaint, an investigation was initiated but no evidence or witnesses
were found to substantiate this allegation.
Observations
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224. The Special Rapporteur thanks the Government for its responses. With regard
to the trial of the 27 lawyers for professional misconduct, the Special Rapporteur has
seen the report of the International Commission of Jurists who sent an observer to the
trial. The trial certainly appeared to be politically motivated, having a chilling effect
on the legal profession. The Special Rapporteur urges the Government to observe the
United Nations Basic Principles on the Role of Lawyers, and in particular not to
identify lawyers with their clients' causes.
United Kingdom of Great Britain and Northern Ireland
Communications to the Govermnent
225. On 25 June 2002, the Special Rapporteur sent an urgent appeal concerning
threats made to a lawyer, Padraigin Drinan The Special Rapporteur had received
information that several loyalist paramilitary organizations were planning on killing
her in revenge for the death of another individual. It was alleged that this information
was known to the police but had not been passed onto Ms. Drinan, nor had steps been
taken to improve her safety, despite her status as a person protected under the Key
Persons Protection Scheme (KPPS).
226. On 26 July 2002, the Special Rapporteur sent an urgent appeal concerning
alleged threats to Geraldine Finucane. The Special Rapporteur had received
information that a loyalist paramilitary organization was planning to attack her at her
home, allegedly because of her campaign for an official inquiry into the alleged
collusion in the murder of her husband, Patrick Finucane. It was further reported that
Mrs. Finucane's lawyer had contacted the Police Service of Northern Ireland (PSNI),
which informed him that they were not aware of any threat. On 23 July 2002, Mrs
Finucane was contacted by the British-Irish Intergovernmental Conference Joint
Secretariat, which informed her that the PSNI had performed a threat assessment and
found a high level ofrisk and that the KPPS was investigating ways to counter the
threat. It was alleged that neither the PSNI nor the KPPS contacted Mrs Finucane to
inform her of the steps she should take to guarantee her safety.
227. On 2 October 2002, the Special Rapporteur sent ajoint communication with
the Special Rapporteur on the human rights of migrants concerning allegations that
certain procedural safeguards to guarantee human rights in the criminal justice system
were being circumvented under the Anti-terrorism Crime and Security Act (ATCSA).
According to the information received, under clauses 21 and 23 of ATCSA 2001, any
non United- Kingdom national may be detained without charge or trial for an
unspecified period of time when the Secretary of State certifies that he/she has
grounds to believe that this person is a suspected terrorist or constitutes a risk to the
national security. Since secret evidence can be entirely withheld from those against
whom it has been adduced, fears have been expressed that Special Immigration
Appeals Commission (SIAC) proceedings violate the right to a fair hearing. The
Special Rapporteurs also noted that the ATCSA does not contain provisions
guaranteeing the right to immediate access to a solicitor if a person is detained under
this Act. Further, there are no explicit provisions under the ATCSA according to
which those arrested under it have the right to bring proceedings before a court for a
prompt determination of the lawfulness of their detention.
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228. The Special Rapporteurs received information that those detained under the
ATCSA in Woodhill prison, Buckinghamshire, and Belmarsh prison, Londoi have
had restricted time and facilities to communicate with lawyers and that when legal and
social visits were granted, visitors were subjected to strip searches.
229. Finally, the Special Rapporteurs noted that on 30 July 2002, the SIAC found
that the targeting of nonUnited-Kingdom nationals was discriminatory and
disproportionate and determined that the above-described detention measures were
not compatible with the European Convention for the Protection of Human Rights and
Fundamental Freedoms. The Special Rapporteurs have been informed that the
Government has appealed the jud ment.
Communications from the Government
230. In response to the Special Rapporteur's earlier communication dated 13
December 2001 regarding the murder of William Stobie (E/CN.4/2002/72, annex,
para. 192), the Secretary of State for Northern Ireland, assured the Special Rapporteur
that the Government desired to get at the truth behind the killings of Patrick Finucane
and William Stobie and that the best way to achieve this was to complete the Stevens
investigation into the Finucane murder and the police investigation into the Stobie
murder. The Government confirmed its commitment to appoint a judge of
international standing to conduct a review of a number of cases, including that of
Patrick Finucane.
231. On 30 July 2002, the Special Rapporteur received a reply to his urgent appeal
dated 25 June 2002. The Government stated that the police had contacted Ms Drinan
on 19 June 2002 to inform her of a threat from loyalist paramilitaries to target her at
the Royal Courts of Justice on the following day. As a result the District Commander
for the South Belfast District Command Unit deployed extra patrols in the vicinity of
the courthouse and increased court security. Further, as a result of the information
contained in the Special Rapporteur's letter, an up-to-date threat assessment was
carried out which determined that Ms. Drinan was still under a significant level of
threat. The police are carrying out inquires to determine the source of the threat.
232. On 15 August 2002, the Special Rapporteur received a reply to his urgent
appeal of 26 July 2002. The Government stated that they were first informed of the
threat to Mrs. Finucane's life when her lawyer, Mr. Madden, contacted PSNI on 18
July 2002. The Government stated that PSNI had no intelligence about such a threat
prior to being informed by Mr. Madden and that it is not true that knowledge of the
threat had been withheld by Special Branch officers. As a result of the receipt of this
information, PSNI carried out a risk assessment. Although it could not confirm the
threat from its own intelligence sources, PSNI concluded that there was significant
threat based upon the information given to them by Mrs. Finucane's lawyer.
233. The Government also stated that Mrs. Finucane had declined to attend a
meeting in Dublin with the Deputy Commissioner of the Garda Siochana, Noel
Conroy, and Assistant Chief Constable Alan McQuillan, which would have afforded
an opportunity to discuss with her measures for her protection. Further, Mrs. Finucane
has been included in KPPS, but, despite a number of approaches, Mrs. Finucane and
her representatives had proved reluctant to make contact with the Northern Ireland
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Office to facilitate the performance of the necessary work. On 6 August 2002,
officials met with Mrs. Finucane's son and brother-in-law to discuss the installation of
security measures. As a result, a comprehensive range of measures had been
recommended although the family had expressed concern about the effectiveness of
one of the main recommendations.
234. On 6 November 2002, the Government replied to the Special Rapporteurs'
joint communication of 2 October 2002 concerning the ATCSA legislation. The
Government advised that on 25 October 2002, the Court of Appeal unanimously
found that Part IV of the Act was not discriminatory. The Government also explained
that this Act strikes a balance between the interests of the individual suspected
terrorist and the general community.
235. In particular, the Government provided the Special Rapporteur with the
following information: “ [ T]he detainees have the right to an independent and
impartial tribunal. Any certificate issued is subject to an appeal to the SIAC ...] which
has the power to cancel it if it considers that the certificate should not have been
issued. In addition, any persons detained have the right to challenge the derogation to
SIAC and the higher courts, which they have tried, unsuccessfully, to do. Further, it is
open to a detainee to end his detention at any time by agreeing to leave the United
Kingdom.”
236. The Government stated that there are further long-term safeguards. Sections
21 to 23 of the Act are temporary provisions which automatically expire after 15
months, subject to renewal for periods not exceeding one year at a time if both Houses
of Parliament are in agreement (sect 29(1)). This ensures periodic review by the
legislature, in addition to continuing review by the executive. Further, the detention
provisions will end with the final expiry of sections 21-23 of Part IV of the Act on 10
November 2006 (sect. 29(7)). If, in the Government's assessment, the public
emergency no longer exists or the extended power is no longer strictly required by the
exigencies of the situation, the Secretary of State will, by Order under section 29(2),
discontinue the provision.
237. In response to the conditions of detention in both Belmarsh and Woodhill
prisons, the Government clarified that prisoners are not being held under a restrictive
regime. The Government advised that detainees do not suffer impediments to contact
with the outside world. However, due to the security category of detainees, proposed
visitors undergo appropriate checks and visits may only be permitted under closed
conditions. Visitors are searched upon entry to the prison but this procedure does not
imply that the visitor has to strip. In addition, detainees have access to a complaints
system. So far, all complaints made by detainees have reportedly been investigated
and a response has been given.
Observations
238. The Special Rapporteur was advised that Cohn Port, the Deputy Chief
Constable who was brought in to lead the investigation into Rosemary Nelson's
murder, was no longer involved in the investigation There is no information on the
present state of this investigation.
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239. The Special Rapporteur notes that Mr. Justice Peter Cory was appointed by the
British and Irish Governments to determine whether there should be public inquiries
into the murders of Mr. Finucane, Lord Justice Maurice and Lady Cecily Gibson, Mr.
Billy Wright, Rosemary Nelson, Robert Hamill and two senior RUC officers, Chief
Superintendent Harry Breen and Superintendent Bob Buchanan. The Special
Rapporteur reiterates his concern that the longer a public inquiry is delayed the greater
the likelihood that more evidence will be lost. He reminds the Government of the
adage “justice delayed is justice denied.”
United Republic of Tanzania
Communications from the Government
240. On 4 April 2002, the Government replied to the Special Rapporteurs' joint
urgent appeal of 30 November 2001 (E/CN. 4/2002/72, annex, para. 206) concerning
the President, Rugemeleza Nshala and two other members, Tundu Lissu and
Augustine Mrema, of the Lawyers' Environmental Action Team (LEAT).The
Government stated that on 24 November 2001, the police made a routine and lawful
search of the LEAT premises to look for evidence to support charges of sedition. The
search and seizure of documents were conducted in the presence of independent
witnesses and representatives of the suspects. The suspects were interrogated and
released on bail. The Government stated that these charges were laid because these
members of LEAT continued to publicly allege that a massacre had taken place in
Bulyanhulu despite the fact that a police investigation concluded that no one had been
buried alive in a mine in Bulyanhulu. The Government further added that at no time
has the Government exerted any pressure to undermine LEAT's activities. The
Government does not intend to deregister LEAT unless guided by strong reasons to do
so. The Government advised that the police investigation against these three members
of LEAT is complete and the case is being studied by the Director of Public
Prosecutions.
Observations
241. The Special Rapporteur thanks the Government for its response.
United States of America
Communications to the Govermnent
242. On 14 February 2002, the Special Rapporteur sent ajoint urgent appeal with
the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
the case of Alexander Edmund Williams who was scheduled to be executed in
Georgia on 20 February 2002. Both Special Rapporteurs had already sent an urgent
appeal concerning Mr. William's case in 2000, on the basis that he had not been
represented by a competent lawyer. According to the information received, Mr.
Williams suffers from a mental illness and was convicted of the abduction, rape and
murder of Aleta Carol Bunch in 1986, when he was 17 years old. In 2000, the
Supreme Court of Georgia hid stayed Mr. Williams' execution, but since October
2001 executions in Georgia have resumed, following the Court's decision on the
constitutionality of the method of execution.
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243. On 6 March 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
Rapporteur on torture concerning the case of Tracy Lee Housel, a British national,
who was scheduled to be executed in the State of Georgia on 12 March 2002. He was
reportedly sentenced to death in February 1986 for a murder committed in April 1985.
It was reported that during the trial Mr. Housel's lawyer failed to present evidence
that his client was suffering from serious mental health problems and psychological
impairment. It is further alleged that statements taken from Mr. Housel while he was
being held in coercive conditions in pre-trial detention were used against him during
his trial. Allegedly, he was held in solitary confinement and not allowed to take a
shower for the first three months after his arrest. It is also reported that on several
occasions, he was given electric shocks from a stun- gun, including when he was
standing in a pool of water.
244. On 13 May 2002, the Special Rapporteur sent a joint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
Henry Dunn. According to the information received, Mr. Dunn had been convicted
of murder by the 241Yt District Court, Smith County, Texas, in 1995 and sentenced to
death At the appellate level, the Texas Court of Criminal Appeals appointed a lawyer,
Kerry Lee, to represent him. It was alleged that the lawyer had no experience in death
penalty cases and during the appellate process submitted a motion to the court, which
was subsequently denied, requesting that the appeal be delayed so he could attend a
seminar on how to write an appeal brief It is also alleged that the lawyer failed to
appear in court to present oral arguments. Mr. Dunn based his appeal on the grounds
that, inter alia, some of the issues were inadequately written up in the trial brief The
court rejected his arguments.
245. On 15 May 2002, the Special Rapporteur sent ajoint urgent appeal with the
Special Rapporteur on extrajudicial, summary or arbitrary executions concerning the
trial of Johnny Martinei who had been convicted of murder in 1994. According to
the information received the lawyer appointed by the Texas Court of Criminal
Appeals (TCCA) for his habeas corpus appeal had never performed this kind of
appeal before and on several occasion requested permission to withdraw from the
case. Further, the lawyer prepared the brief in the case without consulting his client
and the brief was only 5 1/2 pages long. The TCCA dismissed the appeal, although
one jud raised the issue of adequate legal representation in his dissent. Subsequent
to the decision of the TCCA, the lawyer submitted a motion for reconsideration,
raising the issue of the inadequacy of his legal representation.
246. On 18 September 2002, the Special Rapporteur sent a detailed joint
communication with the Special Rapporteur on torture and the Special Rapporteur on
the human rights of migrants regarding the detention of many individuals, particularly
non United States nationals, since 11 September 2001. According to the information
received, despite being held in custody by the Immigration and Naturalization Service
(INS), many detainees were reportedly being investigated by the Federal Bureau of
Investigation (FBI) for the commission of criminal offences. However, it was alleged
that INS detainees have fewer guarantees in their proceedings than people detained in
the context of criminal procedures.
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247. The Special Rapporteurs noted with concern the level of secrecy surrounding
these detentions and that many cases have been held before closed immigration
courts. It was reported that in August 2002, a United States District Judge ordered the
Government to disclose the names of people detained in relation to the 11 September
2001 attacks. According to the information received, the court order allegedly did not
apply to individuals detained as material witnesses and did not request the disclosure
of the dates and locations of arrests and detentions.
248. The Special Rapporteurs had also received information stating that many
detainees had not been informed in a language that they understand about their rights,
particularly their right to have the assistance of a lawyer or to have a lawyer appointed
when they lack sufficient means to pay for it, and in some circumstances had been
denied that assistance. In circumstances where individuals had legal representation, it
was reported that families and lawyers had great difficulty in locating the whereabouts
of the INS detainees as they were not informed when the detainee had been
transferred. It was also alleged that lawyers had difficulties in obtaining the
information necessary for the performance of their professional duties, for example,
information about the date of detention, the basis of detention, whether and when the
detainee has been charged with an offence, whether or not the detainee had been
subject to interrogation for the commission of criminal offences and information
about the continuing status of their case.
249. In connection with the above allegations, the Special Rapporteurs requested
specific information on the following individual cases: Hasnain Javed, Rabid
Haddad, Dr Mazen A1-Naj jar, Tiffany Hughes, All A1-Maqtari, Qaiser Rafiq,
Osama Awadallah, Shakir Baloch and Ayub All Khan.
Observations
250. Unlike previous years, the Government has not responded to any of the
communications enumerated herein.
Uruguay
Communications to the Govermnent
251. On 23 October 2002, the Special Rapporteur sent a joint urgent appeal with
the Special Rapporteur on freedom of opinion and expression and the Special
Rapporteur on extrajudicial, summary or arbitrary executions concerning journalist
Daniel Cancela. According to information received, Mr. Caneela produced a
documentary series about corruption in the management of the prison system. As a
result of Mr. Cancela's investigative journalism, Judge Pablo Egurenand other
witnesses were allegedly threatened because Judge Eguren was responsible for
inquiring into the allegations of corruption.
Communications from the Govermnent
252. On 20 December, the Government replied to the Special Rapporteur's joint
urgent appeal of 23 October 2002. The Government expressed its concern about the
statements made by the Special Minister of the Interior who confirmed that there were
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allegations of corruption among police officers of the National Directorate of Prisons,
Penitentiary Centres and Centres for Rehabilitation. An inquiry conducted by the
National Directorate of Information and Intelligence Services revealed evidence
involving three high-ranking police officers. The Government confirmed that the case
was sent to the relevant judicial body for criminal proceedings and advised that
everything was done with transparency. The Government further advised that
allegations of threats were taken very seriously and the Minister of the Interior
proposed police protection to Mr. Cancela and Judge Eguren, but both refused these
measures and did not file a complaint regarding the threats. Without a formal
complaint from the alleged victims, criminal proceedings cannot be launched.
Observations
253. The Special Rapporteur thanks the Government for its response.
Uzbekistan
Communications to the Government
254. On 22 November 2002, the Special Rapporteur sent a joint urgent appeal with
the Special Rapporteur on torture concerning the trial of Iskandar Khudoberganov,
Bekzod Kasymbekov , Nosirkhon Khakimov and three others, whose trial had
been reportedly suspended in September 2002 and resumed on 19 November 2002.
According to the information received, the men were accused of religious extremism
and charged with serious anti-State crimes, including “attempting to overthrow the
constitutional order” and “setting up an illegal group”. Mr. Khudoberganov is
reportedly at grave risk of being sentenced to death. At least three defendants were
reportedly tortured to force them to “confess” or incriminate other defendants. The
judge allegedly said to Mr. Khudoberganoy, “Come on, don't deny it. Confess and
you'll feel better”. Mr. Khudoberganov's lawyers have reportedly been denied access
to him since the trial was suspended on 26 September 2002.
Observations
255. The Special Rapporteur awaits the Government's response.
Venezuela
256. The Special Rapporteur received information from the International Bar
Association (IBA) regarding the increasing lawlessness and the critical situation in the
administration ofjustice. The IBA sent a high-level delegation to the country from 12
to 18 January 2003 and a report is expected shortly.
Zimbabwe
257. In his last report (E/CN.4/2002/72, annex, paras.215-222) the Special
Rapporteur referred to four communications sent to the Government, among them two
urgent appeals. The Special Rapporteur also expressed his extreme concern over the
deterioration of judicial independence and the rule of law in the country. None of the
communications was responded to by the Government. During the year, and in view
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of the deterioration of the situation, the Special Rapporteur issued four press
statements.
258. The Special Rapporteur also expressed regret that the Government had
reneged on its previous agreement for him to conduct a mission
259. The situation continued to deteriorate in 2002. The Special Rapporteur issued
four press statements, on 7 Marc1 6 June, 2 September and 24 September, drawing
attention to and expressing his concern about specific developments. They were:
a) President Robert Mugable defied a Supreme Court order delivered on
27 February 2002 striking down electoral legislation enacted by
Parliament. Justice Ebrahim who presided over the sifting of the
Court, resigned. He was the last of the seven Supreme Court judges to
step down since the early retirement, under pressure, of Chief Justice
Gubbay;
b) The arrest and detention of the President of the Law Society of
Zimbabwe and its Executive- Secretary in Harare on 3 June 2002 for
alleged possession of “subversive” documents relating to the mass
action allegedly planned by the Movement for Democratic Change
(MDC);
c) The violent attack on Magistrate Walter Chikwanha in Chipinge,
Manicaland. He was assaulted and dragged out of court by a group of
“war veterans”, supporters of President Mugabe, because he refused to
order custody of several individuals including five members of the
opposition party. In the incident the group tried to attack the lawyer
who acted for the accused and vandalized his car;
d) The arrest and detention and charges preferred against retired High
Court Judge Blackie for alleged corruption and obstruction of justice.
The manner in which Judge Blackie was arrested and taken into
custody for such alleged offences was most disturbing. There was
reasonable cause to believe that this was an act of vengeance by the
Government forthe earlier conviction for contempt of court and
sentencing to imprisonment and a fine ofthe Minister of Justice on 17
July 2002 by Judge Blackie. The conviction and sentence were
subsequently set aside by a Supreme Court Judge;
e) The ruling of the High Court, since affirmed by the Supreme Court,
refusing the official opposition access to the voters' roll in its
electronic form to challenge the legality of the presidential elections in
a pending court action;
f) That President Mugabe had threatened the shadow Minister of Justice,
saying that the only place in Zimbabwe for the Minister wis in prison.
Conununication from the Goveriunent
260. In a four-page letter dated 27 September 2002 addressed to the High
Commissioner, with copy to the Special Rapporteur, the Government expressed its
concern and displeasure over the press statements. The Government, stated, inter alia,
that the Special Rapporteur was biased in his assessment of the Zimbabwe courts; that
he “pandered with abundance to the whims of those in the United Nations who
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continue to imagine Zimbabwe as an appendage to their countries”. The letter
contained other derogatory remarks directed against the Special Rapporteur which he
does not wish to enumerate here.
261. The Government in the same communication defended the charges against
retired Judge Blackie. It stated that the charges arose from the judge's quashing of an
appeal against the jail term imposed on a white woman without the concurrence of the
other judge who had also sat on the appeal. In terms of the rules of court, Judge
Blackie had to seek the concurrence of the other judges before preparing and passing
judgement. Justice Makarau, the other judge who had heard the appeal with Justice
Blackie, did not even see the judgment prepared by her colleague until after it was
handed down.
Response of the Special Rapporteur
262. The Special Rapporteur, in a written communication dated 4 October 2002,
responded to the Government's communication but not to the personal attacks against
him. With regard to the charges against Judge Blackie, he said:
“With regard to the facts which your Government alleges as the grounds for
the charges preferred against retired Judge Blackie, they obviously, if true, are
grounds for discipline for judicial misconduct. It may be argued that as Mr.
Blackie has retired as a judge he could not be subjected to judicial discipline.
However, charging him for the criminal offence of obstructing the course of
justice in addition to corruption smacks of selective prosecution.
“In August 2002 a group of so called “war veterans” charged into the court of
Magistrate, Walter Chikwanha, in Chipinge, and assaulted him and thereafter
chased the lawyer and vandalized his car. This incident was the subject of a
press release I issued on 2 September 2002. To date, I have not heard of the so
called “war veterans” or anyone else responsible for the assault on the
Magistrate being charged for any offence. Was not the assault on a sifting
Magistrate a grave act of obstruction of justice? Selecting retired Judge
Blackie for prosecution for such an offence, on the alleged facts, which if true,
would amount to only judicial misconduct, d c arly and must necessarily be
perceived as an act of vendetta on the part of your Government.”
Observations
263. The trial of Judge Blackie is scheduled to commence on3O June 2003. The
Special Rapporteur reiterates his concern over the deterioration of the rule of law in
Zimbabwe and urges the Commission to respond appropriately.
