Aadel Collection
Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, submitted in accordance with Commission on Human Rights resolution 2004/33
An error occurred while trying to OCR this image.
E/CN.4/2004/60/Add. 1
Page 2
Contents
Paragraphs Page
Introduction 1 —6 4
Table 1: Communications sent and received in 2003-2004 7 5
Table 2: Tentative statistics on thematic issues addressed in 2004 7 9
Afghanistan 8—10 10
Bahamas 11—12 11
Bolivia 13 11
Brazil 14—17 11
Chile 18— 19 13
China 20—31 14
Colombia 32—39 18
Côte d'Ivoire 40—41 20
Cuba 42 21
Ecuador 43 21
Egypt 44—46 22
Eritrea 47—48 23
Guatemala 49 — 53 23
Haiti 54 —55 25
India 56 26
Indonesia 57 26
Iran (Islamic Republic of) 58 — 66 26
Iraq 67 30
Italy 68—71 30
Kazakhstan 72 31
Lebanon 73 32
Libya 74 33
Malaysia 75 —83 33
Maldives 84—85 36
Mexico 86—92 37
Nepal 93—100 40
Panama 101 — 102 43
E/CN.4/2004/60/Add. 1
Page 3
Contents front' d)
Paragraphs Page
Peru 103—107 44
Russian Federation 108 — 110 46
SaudiArabia 111—116 47
Sierra Leone 117 50
SouthAfrica 118—119 50
Sudan 120—129 51
Swaziland 130— 132 53
Syrian Arab Republic 133 — 137 54
Thailand 138— 141 56
Tunisia 142—143 57
Turkey 144—146 57
United Kingdom of Great Britain and Northern Ireland 147— 153 59
United States of America 154— 163 60
Venezuela 164—167 64
Yemen 168—169 65
Zimbabwe 170—171 66
E/CN.4/2004/60/Add. 1
Page 4
Introduction
1. The present report supplements the main report and the mission reports presented by the
Special Rapporteur on the independence ofjudges and lawyers to the Commission on Human
Rights. It includes:
(a) Summaries of the urgent appeals and allegation letters transmitted by the Special
Rapporteur to governmental authorities between 1 January and 31 December 2004 and of the
press releases issued during the same reporting period. In this connection, the Special Rapporteur
wishes to emphasize that the urgent appeals and communications reflected in the report are based
exclusively on information that has been transmitted to him directly. Where information was
insufficient and it could not be supplemented and cross-checked, or where the information
received was outside the mandate, the Special Rapporteur was not in a position to act;
(b) Summaries of all replies received from the States concerned by 31 December
2004 (including replies to cases acted upon by the Special Rapporteur in 2003 or earlier). In this
connection, it may be noted that at the time of submitting this document the Special Rapporteur
had received responses from the Governments of China, Columbia, Eritrea, the Russian
Federation and the United Kingdom to urgent appeals or communications sent during the
reporting period: The Special Rapporteur regrets that these replies were either not able to be
translated in time or were received after 31 December 2004, and therefore will be reflected in
next year's report to the Commission. Due to restrictions on the length of the report, the Special
Rapporteur has been obliged to summarize the details of all correspondence sent and received.
As a result, requests from Governments to publish their replies in their totality could regrettably
not be accommodated;
(c) Wherever possible, observations or specific comments by the Special Rapporteur;
(d) In a limited number of cases, a note on recent important developments affecting
the judiciary.
2. For the first time, the Special Rapporteur has included in this report two tables of
statistical data for an overview of the extent and nature of the problems faced by the judiciary
worldwide:
(a) Table 1 provides an overview of all actions taken by the current Special
Rapporteur and his predecessor on specific situations and cases brought to their attention during
the years 2003 and 2004, and of any replies received from the Government of the States
concerned. It should be noted that on-site missions are not reflected in the table;
(b) Table 2 provides a tentative thematic overview of the types of problems faced by
the judiciary in 2004 as reflected in the nature of the complaints brought to the Special
Rapporteur's attention. In this connection, the Special Rapporteur wishes to emphasize that the
categories presented are subject to further elaboration and analysis in future reports. He would
thus welcome comments and suggestions.
E/CN.4/2004/60/Add. 1
Page 5
3. It can be seen from table 1 that no fewer than 58 States were approached in one way or
the other during the last two years, with 17 communications, 107 urgent appeals and 20
allegation letters sent to the authorities of the States concerned, and that 15 press releases were
also issued.
4. In the year 2004, 38 States were directly approached by the Special Rapporteur who — in
addition to performing on-site missions to Kazakhstan and Brazil - sent 3 communications to 3
States, 59 urgent appeals to 28 States and 18 allegation letters to 13 States, and issued 7 press
releases regarding situations in 7 States. It will be noted that, as threats to the independence of
the judiciary often go hand in hand with other human rights violations, for the sake of efficiency,
most of these action were taken by the Special Rapporteurjointly with other colleagues.
5. Of the 58 States with which the Special Rapporteur was in contact during the last two
years, 45 offered their active cooperation by providing a response, and of the 38 States
specifically contacted in 2004, 28 sent a response, and while some replies address the concerns
raised more comprehensively than others, the Special Rapporteur highly appreciates the
responses as they are a positive indication of a Government's willingness to engage in a
dialogue. The Special Rapporteur welcomes this attitude and encourages all other States
concerned to also offer their cooperation.
6. To the Special Rapporteur's knowledge and concern, the independence and impartiality
of the judiciary is being threatened in yet other countries and territories that are not mentioned in
this report. It goes without saying that he closely monitors such situations and will, if
appropriate, report on them in due time.
Table 1. Communications sent and received in 2003-2004
7. The statistics in table 1 are a compilation from this report (E/CN.4/2005/60/Add. 1) and
last year's report (E/CN.4/2004/60/Add.) for the period between 1 January 2003 to 31 December
2004 and reflect the communications, urgent appeals, allegation letters and press releases issued
by the Special Rapporteur individually (md .) or jointly dt.) with other Special Procedures of the
Commission on Human Rights and the replies received from the country concerned.
Conununications to the Govenunent
Résumé général
Etats concernés
Communications
Appels urgents
Lettres
dallégat ions
Communiqués
de presse
Réponses des
Etats concernés
58 Etats dont38 Etats
17: dont3
107: dontS9
20: dont l8
15: dont 7
103 réponses
approches en 2004
communications
concernant3 Etats
en 2004
appels urgents
concernant
28 Etals en2004
Iettres
dallégations
concernant
13 Etats en 2004
communiqués
concernant
7 Etats en2004
provenant de
45 Etats: dont
53 réponses de
28 Etats reçues
en 2004
E/CN.4/2004/60/Add. 1
Page 6
Information pays par pays
Etats concernés
Communications
Appels urgents
Lettres
dallégations
Communiqués
de presse
Réponses des
Etats concernés
Ga date de la
réponse figure sir
la même ligne
que celle de la
démarche duRS)
1
Afghanistan
30/06/04 Ut.)
02106/04 Ut.)
30/06/04
2
Afrigue du Sud
17/02104 (jt.)
06/05/04
3
Arabiesaoudite
07/07/03 ( md. )
23/04/04 Ut.)
24/08/04 ( md. )
17/11/04 ( md. )
30/11/04 Ut.)
17/02/03 (stir
mpport de
mission)
30/10/03
12/08/04
30/09/04
---
4
Argen t ine
24/07/03 ( md.)
31/12/03
S
Bahamas
19/10/04 Ut.)
25/10/04
6
Belarus
30/01/03
7
Bolivie
02/04/03 Ut.)
07/05/03 Ut.)
13/01/04
24/09/03
8
Brésil
17/04/03 ( md.)
09/02104 Ut.)
01/11/04 ( md.)
---
9
Chine
09/01/03 (md.)
24/02/03 (md.)
19/03/04 Ut.)
08/06/04 Ut.)
22/09/04 Ut.)
15/10/04 Ut.)
25/10/04 Ut.)
01/12104 Ut.)
27/08/04 (md.)
19/10/04 (cjt)
14/04/04 Ut.)
29/04/03
29/04/03
05/07/04
---
---
---
---
31/12104
31/12104
31/12104
(reponse qui
figurem thins le
prochain mppoit)
10
Colombie
18/07/03 (md.)
15/03/04 Ut.)
06/09/04 Ut.)
13/05/04 Ut.)
07/07/04 Ut.)
14/05/04
10/05/04
21/09/04
(réponse qui
figurem thins le
prochain mppoit)
25/08/04
11
Côte dIvoire
26/07/04 (jt.)
---
12
Cuba
19/05/O3Ut.)
02/09/03
13
Egypte
10/04/03 ( md . )
09/04/03 Ut.)
02/10/03 Ut.)
08/04/04 Ut.)
22/04/03
---
25/05/04
07/05/04
14
Eguateur
28/12/04
---
15
Erythrée
11/11/04 Ut.)
(reponse qui
figurem thins le
prochain mppoit)
16
Etats-Unis
dAmérique
30/06/04 Ut.)
16 O1/03 Ut.)
11/07/03 Ut.)
19/12103 Ut.)
29/04/04 Ut.)
14/05/04 Ut.)
02107/04 Ut.)
22111/04 Ut.)
12103/03 (md.)
07/07/03 (md.)
25/06/04 (md.)
01/04/03
---
---
---
---
---
---
09/11/04
03/09/04
Information pays par pays
E/CN.4/2004/60/Add. 1
Page 7
17
Fédération de
Russie
04AJ5/04 (it.)
03/11/04 Ut.)
---
(réponse qui
figurem thins le
prochain mppoit)
18
Guatemala
16/04/03 ( md.)
01/07/03 (it.)
17/07/03 (md.)
20/01/04 (it.)
18/11/04
08/07/03 ( md.)
17/07/03 (md.)
28/06/04 &
13/08/0 3
10/12/03
---
22i07/03
28/06/04
---
09/08/04
19
HaIti
14/02/03 (it.)
22/10/04 (it.)
23/08/03 (accuse
de reception)
---
20
Honduras
08/10/03 (cit.)
19/12/03
21
Inde
24/07/03 Ut.)
---
22
Indonésie
10/04/03 Ut.)
23/06/03 Ut.)
09/07/03 Ut.)
03/12104 (it.)
---
---
07/08/03
---
23
Iraq
30/06/04 Ut.)
---
24
Iran(Rép.
Islamique d')
05/12/O3Ut.)
24/01/03 ( md . )
12103/03 Ut.)
29/09/03 Ut.)
11/03/04 Ut.)
30/04/04 Ut.)
16/11/O4Ut.)
20/02104 (it.)
11/03/04 (it.)
27/07/04 (md.)
18/05/04
24/12/03
---
---
---
---
---
---
25
Israel
28/02103 Ut.)
21/10/03
30/07/0 3
26
Italie
15/12104
17/12/04 (md.)
16/12/04
27
Jamahirya arabe
libyenne
22/09/04 Ut.)
---
28
Kazakhstan
21/06/04 (md.)
---
29
Liban
10/02 & 09AJ9 &
27/12/03
30
Liberia
29/04/03 Ut.)
---
31
Malaisie
05/05/04 Ut.)
13/05/04 Ut.)
07/07/04 Ut.)
26/10/04 Ut.)
14/06/04
22109/04
07/10/04
22112104
32
IV1ala i
26/06/03
---
33
Maldives
06/10/04 Ut.)
27/10/04
34
Mauritanie
18/07/03 (it.)
28/08/03
35
Mexique
14/02103 Ut.)
06/03/03 Ut.)
23/05/03 Ut.)
24/07/03 Ut.)
03/08/04 Ut.)
23/08/04 (it.)
01/09/04 Ut.)
11/11/03
05/01/04
29/04 & 03/12103
08/08/ & 10/11 &
24/11/0 3
02/09/04
04/11/04
---
36
Nepal
24/02104 Ut.)
26/04/04 (it.)
06/08/04 Ut.)
29/09/04 Ut.)
29/09/04 Ut.)
14/07/04 (it.)
---
---
---
---
---
23/12104
37
Nicaragua
14/01/03
38
Ouganda
13/08/03 Ut.)
39
Ouzbékistan
11/06/03 (md.)
23/04/03 @ourune
mission)
11/06/03 Ut.)
04/06/03 Ut.)
---
05i08/03
19/08/03
E/CN.4/2004/60/Add. 1
Page 8
Information pays par pays
40
Panama
28/07/04 (it.)
20/07/04
41
Perou
07/09/04 Ut.)
22/11/04(jt.)
28/12104 Ut.)
17/09/04
23/12/04
---
42
Rep. arabe
syrienne
26/06/03 Ut.)
16/07/03 Ut.)
15/07/04 (it.)
06/08/04 Ut.)
15/09/03
22105/03
01/11/04
20/09/04
43
Royaume-Uni de
Grande-Bretagne
et dIrlande du
Nord
06/08/04 Ut.)
29/09/04 Ut.)
12/02/04 ( md.)
09/02/04
11/03 & 03/05/04
14/10/04
(reponse qui
figurem thins le
prochain mppoit)
44
Serbie-et-
Montenegro
23/04/03 ( md.)
16/12/03
45
Soudan
14/05/03 Ut.)
03/07/03 ( md . )
03/07/03 Ut.)
08/07/03 Ut.)
05/02104 Ut.)
02104/04 Ut.)
04/04/04 Ut.)
15/04/04 Ut.)
03/08/04 Ut.)
01/12/04 Ut.)
03/07/03
27/10/03
29/01/04
---
29/07 & 09/09/ &
22110/03
---
07/07/04
---
---
---
46
Sri Lanka
04/04/03 @ourune
mission)
07/02/03 ( md . )
03/01/03
---
47
Swaziland
27/08/04 (Ct.)
15/04/03(mnd.)
27/07/03 (md.)
---
---
---
48
Tajikistan
11/06/03 (ct.)
---
49
Thallande
17/03/04 (Ct.)
30/03 & 06/08/04
50
Tunisie
21/01/03 (md.)
22/07/03 (Ct.)
28/07/03
09/05/04
51
Turkmenistan
09/01/03 (md.)
06/01/03 (pour
une mission)
28/01/03 ( md . )
12/02/03
12/02/03
---
52
Turquie
19/12103 Ut.)
06/08/04 Ut.)
09/02104
20/01/04
14/10/04
53
Uruguay
14/04/03 (md.)
26/02/03 Ut.)
14/05/03
54
Venezuela
18/10/03 (md.)
25/11/04 (md.)
12/02/04 (md.)
19/03/04 &
14/0 7/0 4
18/02/04
---
55
VietNam
08/01/O3Ut.)
13/03/03
56
Yemen
23/05/03 (md.)
28/05/04 (it.)
23/12/04 (it.)
12/12/03
---
---
57
Zimbabwe
17/10/03 (jt.)
12102104 (it.)
19/02/03 (it.)
03/07/03 ( m d.)
---
---
23/11/03
18/02/04
58
Autorite
palestinienne
06/06/03 Ut.)
---
E/CN.4/2004/60/Add. 1
Page 9
Table 2. Tentative statistics on thematic issues addressed in 2004
Choice of lawyer 24%
Threats to lawyers 24%
Access to a lawyer in private 11%
Independence of judges 10%
Prompt access to a lawyer 7%
Proper role of prosecutors 6%
Freedom of expression of a lawyer 6%
Fairness of judicial proceeding 3%
Separation of power 3%
Threats to judges 1%
Threats to prosecutors 1%
Equal access to a lawyer 1%
Consular protection 1%
Ordinary court 1%
Prohibitive fine 1%
ordinary court
consular protection
equal acces to a lawyer
%
threats to prosecutors
prohibitive fine access to a lawyer in
private
threats to lawyers_______
1
threats tojudges —
proper role of prosecutors
independence of ju dges freedom of expression of a
% lawyer
choice of lawyer
%
fairness of judicial
proceeding
%
— prompt access to a lawyer
%
separation of p er
%
%
E/CN.4/2004/60/Add. 1
Page 10
Afghanistan
8. On 2 June 2004, the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the question of torture and the Special Rapporteur on extrajudicial, summary or
arbitrary executions regarding Abdullah ShaI a military commander from Paghman, who was
reportedly executed, probably on 19 April 2004. Reports indicate that this was the first judicial
execution to be carried out in Kabul since the fall of the Taliban. Reportedly, the proceedings at
Abdullah Shah's trial fell short of international fair trial standards in several ways. He had
reportedly no defence at his trial, which was heard in a “special court” that was not open to the
general public. It is alleged that the chief judge at the initial trial was dismissed for accepting a
bribe and that at the second trial the judge imposed the death penalty hastily, under pressure from
the Supreme Court. Furthermore, although 23 written complaints reportedly formed the bulk of
evidence against him, there was no chance for cross-examination. He reportedly claimed in court
that he was forced to sign a confession and that he was tortured in detention, pointing to injuries
from his legions, as well as other injuries. The Special Rapporteur on extrajudicial, summary or
arbitrary executions observed the trial proceedings of Abdullah Shah while on mission to
Afghanistan in October 2002. In her report to the Commission on Human Rights
(E/CN.4/2003/3/Add.4) she expressed concerns that the domestic judicial system does not allow
for the observance of the safeguards and restrictions relating to the imposition of capital
punishment. As a result, she urged that the death penalty be suspended and that a moratorium on
executions be implemented until such standards can be met. In 2003, the Commission on Human
Rights called on the Afghanistan Transitional Administration to “declare a moratorium on the
death penalty in the light of procedural and substantive flaws in the Afghan judicial system”
(resolution 2003/77).
9. On 30 June 2004, a copy of a statement was sent to the Government, originally issued as
a press release on 25 June 2004 entitled ‘Protection of human rights and fundamental freedoms
in the context of anti-terrorism measures” (see para. 156 for the full text of the statement).
Communication from the Government
10. On 30 July 2004, the Government responded to Special Rapporteurs' joint urgent appeal
sent on 2 June 2004. The Government provided a response from the Supreme Court, which
confirmed that the execution of Abdullah Shah was the first execution that had taken place since
the establishment of the Interim and Transitional Governments. The Court pointed out that
capital punishment is applied in conformity with the Constitution and the applicable laws, and
that whenever there is the slightest doubt about a particular case, the death penalty is replaced by
a lighter punishment. In the present judicial system, there is a court for cases relating to political
and organized crimes, and Abdullah Shah's case fell into this category. Therefore, no specific
court was set up for his case. Also, the preliminary court proceedings were open to the public
and journalists, and were broadcast by government TV and radio. Concerning the judge, he was
dismissed not for bribery but for incompetence, and the new judge was not appointed specifically
for Abdullah Shah's case. Concerning the allegations of lack of a fair trial, the investigation and
prosecution were conducted by the Attorney-General's Office, which is independent, and the
results were submitted to the court. The court's decision was not made hastily: it took 2'/2 months
to review the case. The trial was fair and based on testimonies from 13 witnesses, and the
proceedings were reviewed by three courts. There were no shortcomings that would justify
E/CN.4/2004/60/Add. 1
Page 11
compensation to the family. The judiciary is independent at all levels and the Supreme Court
does not interfere with any trials. Concerning the allegation of lack of access to a lawyer of his
choice, Abdullah Shah was asked to choose his defence attorney but declined the offer.
Concerning the allegations of torture, Abdullah Shah did not confess under torture and never
complained about torture during his trial. He did not have legions. The Government advised that
the accused was put to death by firing squad, which is considered to be the most humane method.
Bahamas
Communication to the Government
11. On 19 October 2004 the Special Rapporteur sent ajoint urgent appeal together with the
Special Rapporteur on the question of torture concerning the situation of Rene Mendoza Banos
and Jorge Luis Conde, both Cuban asylum-seekers. On 1 October 2004, the two men were
detained at the Carmichael Detention Centre, were severely beaten with batons by soldiers and
subjected to a mock execution. On 10 October, several Cuban detainees, including children, were
forced to stand against a fence inside the camp from 3 p.m. to 5.30 p.m., with no water, in
temperatures of around 30 degrees Celsius. Many of the detainees have had no access to lawyers,
or to the Office of the United Nations High Commissioner for Refugees (UNHCR).
Communication from the Government
12. On 25 October 2004 the Government responded to the Special Rapporteurs' joint urgent
appeal of 19 October and advised that immediate investigations into the cases of Rene Mendoza
Banos and Jorge Luis Conde had been undertaken and that the results would be transmitted as
soon as possible. No further information was received by 31 December 2004.
Bolivia
Respuesta del Gobierno
13. Mediante comunicación del 13 de enero de 2004 el Gobierno proporcionó informacion
adicional en relacion a los llamamientos urgentes enviados el 2 de abril y el 7 de mayo de 2003,
en relacion con el abogado Cliver Rocha (E/CN.4/2004/60/Add. 1, parr. 12-13). El Gobierno
afirmo que la persecución de los hechos punibles que anteriormente habIa denunciado Cliver
Rocha no prosperó debido al desistimiento del mismo, que abandono el caso y no proporcionó
mayores elementos que prueben los hechos denunciados, pese a los constantes requerimientos
del fiscal para que Cliver Rocha presente su declaracion informativa y aporte mayores
elementos.
Brazil
Communication to the Government
14. On 9 February 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Representative of the Secretary-General on the situation of human rights defenders in relation to
the alleged killings of Erastótenes de Almeida Gonçalves, Nelson José da Silva and Joáo
E/CN.4/2004/60/Add. 1
Page 12
Batista Soares Lages, three lawyers from the Brazilian Ministry of Labour. On 28 January 2004
these three lawyers were allegedly shot in the head and killed as they were driving to the
property of a landowner in the State of Minas Gerais while they were conducting a routine
inspection. It is reported that the driver, Ailton Pereira de Oliveira, was found severely
wounded and died later the same day at a hospital in Brasilia. There is concern that the three
lawyers may have been killed in connection with their work defending workers rights in Brazil
since they had previously been threatened as a consequence of their work advocating against and
investigating conditions of slavery. The Special Rapporteurs requested that these killings be
investigated thoroughly and fairly and those responsible brought to justice, and also that
effective policies are in place to provide lawyers and human rights defenders with a safe and
secure working environment.
Press release
15. On 1 November 2004, following the conclusion of his visit to frazil, the Special
Rapporteur issued a press release (see E.CN.4/2005/60/Add.3) in which he thanked the
Government, especially the Special Secretary of Human Rights, and all the authorities and
sectors that collaborated with him during the visit. He also thanked the non-governmental
organizations (NGO5) and other representatives of civil society for the valuable information
provided and the trust given to him. The Special Rapporteur visited Brasilia, Sao Paulo, Porto
Alegre, Recife and Belem. He also met representatives of organizations and institutions of other
States of the country, namely Ceara, Rio Grande do Norte, ParaIba, MaranhAo, Roraima and
Rondonia. He had over 60 meetings and interacted with some 500 people: governmental
authorities at the federal, state and municipal levels; judges, prosecutors and lawyers, judicial
and bar associations; public defenders; and a high number of representatives of civil society. He
maintained constant contacts with the press throughout the visit. The Special Rapporteur made a
number of preliminary observations:
(a) Lack of access to justice. Most people do not have access to justice because they
are socially or economically excluded. Vulnerable groups or groups suffering discrimination are
the most affected. He referred to children, adolescents, women, indigenous people, homosexuals,
transsexuals, quilombolas, black people, sick people, and social movements like the workers
without land and the environmentalists;
(b) The judicial system is extremely slow. The many guarantees foreseen by the
system, which provides for several appeals, coupled with the excessive number of cases that get
to the Federal Supreme Court, cause significant delays and can make judicial system ineffective;
(c) The situation is not consistent throughout Brazil. The quantity and length of
proceedings are more significant, for example, in Sao Paulo, where there are some 13 millions
ongoing cases and each judge has a workload of 8,000-10,000 cases. This problem is less severe
in Rio Grande do Sul, where there is an advanced judicial system and a virtual process is being
tried. In Pemambuco and Amazonas, the impact of violence on the justice system is tangible.
Judges, lawyers, prosecutors and defenders are exposed to high risks of violence and threats,
especially those involved in the rural and environmental questions or in the fight against
organized crime. In many cities, the links between judges and the political and economic elites
affect the independence of the judiciary and explain the high levels of impunity in these cities;
(d) A major concern is the situation of children and adolescents. In the North and
E/CN.4/2004/60/Add. 1
Page 13
North-East, most sexual crimes against children and adolescents are not investigated and in some
cases representatives of the judiciary are involved in those crimes.
16. The Special Rapporteur expressed a few preliminary considerations on some elements of
the ongoing judicial reform, such as the binding opinion (süniula vinculante) and the opinion
restricting the appeal (süniula inipeditive de recurso); the federalization of the most serious
human rights violations; the establishment of the National Council of the Judiciary and the
National Council of the Public Prosecutor's Office; the creation of specialized tribunals for the
land question; the financial and functional autonomy of public defenders; and the investigative
powers of prosecutors. He also mentioned some positive experiences he identified during the
visit, such as the Integrated Centres of Citizenship in Sao Paulo; the public audits of the judiciary
in Porto Alegre; and the Rights' Desk in Belem.
17. The Special Rapporteur ended the press briefing by indicating some preliminary
recommendations:
(a) The approval of the law establishing the financial and functional autonomy of
public defenders should be a priority. States that do not have public defenders (Sao Paulo, Goiás
and Santa Catarina) should proceed to set up their system of public defenders;
(b) The judicial proceedings should be reformed with a view to simplifying the
system while preserving all guarantees;
(c) International human rights law should be applied by judges, lawyers, defenders
and prosecutors in judicial proceedings;
(d) More specialized tribunals should be created in at least two areas: crimes against
children and adolescents; and the land question;
(e) International cooperation among the different actors of the judiciary, especially in
the border areas, is essential to fight a transfrontier phenomenon like organized crime;
(1) Positive experiences at the federal and state levels should be collected and
evaluated to study their feasibility in other areas of the country. A national meeting could be
called upon to this end.
Chile
Observaciones del Relator Especial
18. El Relator Especial nota con satisfaccion algunas decisiones recientes tomadas por las
cortes chilenas a favor de la investigación de graves violaciones de los derechos humanos. En
particular, la Corte Suprema ha decidido que el antiguo Presidente Augusto Pinochet debe ser
juzgado por cargos de abusos contra los derechos humanos - nueve cargos por secuestro y uno
por asesinato - confirmando asI la decision de la Corte de Apelaciones de Santiago. Augusto
Pinochet será el primer cx jefe de Estado procesado en Chile por la comisión de abusos de
derechos humanos cometidos, en este caso en el contexto de la “Operación Condor”.
19. Por otro lado, el Relator Especial nota con preocupaciOn la sucesiva decision de la Corte
Suprema de imponer un plazo máximo de seis meses para las investigaciones en casos de
violaciones de derechos humanos cometidas durante el regimen de Augusto Pinochet. Esta
decision constituye una interferencia de la Corte Suprema en procesos de casos que están bajo la
competencia de otros magistrados.
E/CN.4/2004/60/Add. 1
Page 14
flthm
Communications to the Government
20. On 19 March 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
concerning the situation of Yang Jianli, who was reportedly arrested on 26 April 2002, and for
whom an urgent appeal was sent on behalf of the Special Rapporteur on the question of torture
and the Chairperson- Rapporteur of the Working Group on Arbitrary Detention on 11 December
2002. According to more recent information received, Mr. Yang was tried on 4 August 2003. It
is reported that the authorities had four months from that date to issue a ruling, in accordance
with provisions of the Criminal Code, but as of that date they had failed to pass sentence. It is
further reported that Yang Jianli, who was not allowed to have access to his lawyer during the
first 14 months of his detention, asked to be allowed to speak to his lawyer without prison guards
and security agents recording their conversation, and to be allowed to write letters. Yang Jianli
was editor- in-chief of the online review “Yibao” (www.chinaeweekly.com). He was arrested
when returning to China to investigate workers' strikes in the country's north-east, after his
expulsion from the country for taking part in Tiananmen Square demonstrations in 1989. He was
arrested for “failing to have a valid passport”, and was charged on 17 July 2003 with “illegal
entry into Chinese territory” and “spying for Taiwan”. However, it is believed that Mr. Yang's
critical stance vis-à-vis the authorities, in particular on the review “Yibao”, might be the reason
for his detention.
21. On 8 June 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
concerning reports that, on 18 May 2004, the trial of Du Daobin for “incitement to subversion”
before the Intermediate Peoples' Court in the city of Xiaogan, Hubei province, which
commenced in the absence of Du Daobin's lawyer. Mr. Du's lawyer, who was notified four days
before the trial, could not travel to attend the trial and Mr. Du was appointed a lawyer, who
refused to enter a not-guilty plea, despite the wishes of his client. It is further reported that the
trial was held behind closed doors. Previous urgent appeals were sent on behalf of the
Chairperson-Rapporteur of the Working Group on Arbitrary Detention on 7 November 2003 and
by the Special Rapporteur on the right to freedom of opinion and expression on 3 December
2003, as Mr. Du had previously been denied the services of his lawyer when, on 3 November
2003, his counsel reportedly had his licence withdrawn by his own law firm, preventing him
from defending his client.
22. On 27 August 2004, the Special Rapporteur sent an allegation letter concerning the
situation of Wei Jun. an attorney from the Baicheng law firm in Baise city, Guangxi province,
who had allegedly been threatened and harassed for defending Liang Changying, a Falun Gong
practitioner. Ms. Liang was sentenced to 5 ‘/2 years in prison. After the court adjourned, the
public prosecutor allegedly asked about the existence of a regulation stating that lawyers cannot
defend Falun Gong practitioners who plead “not guilty”. The same day Mr. Wei's home phone,
cell phone and office phone were put under surveillance, and several days later police officers
asked the Judiciary Bureau to suspend Mr. Wei's licence to practice law and to sentence him to
three years of forced labour. After the director of the Judiciary Bureau refused their req st, the
E/CN.4/2004/60/Add. 1
Page 15
police reportedly warned Mr. Wei that in the future he would not be allowed to defend Falun
Gong practitioners, and confiscated all of his materials regarding Ms. Liang's case.
23. On 22 September 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on extrajudicial, summary or arbitrary executions regarding the situation of two
Nepalese citizens who were reportedly sentenced to death by a Chinese court in a trial alleged to
have fallen short of international fair trial standards. Fears were expressed that the two men,
whose names remain unknown, were at risk of imminent execution. The men were reportedly
sentenced to death by a court in the Tibet Autonomous Region of China, on charges relating to
smuggling arms into Nepal During their trial, it is believed that they neither had access to legal
representation nor to an interpreter. Reportedly, the Government of Nepal announced the
sentences on 17 September 2004 and appealed to the Government of China to retry the case and
to provide the defendants with legal representation.
24. On 15 October 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the question of torture, the Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression, the Special Rapporteur on freedom of religion
or belief, the Special Rapporteur on the right to everyone to the enjoyment of the highest
attainable standard of physical and mental healtI the Special Rapporteur on extrajudicial,
summary or arbitrary executions and the Special Rapporteur on violence against women, its
causes and consequences, to express their concern at reports of systemic repression against the
Falun Gong and other “heretical organizations” (‘5cieiiao zuzhi”). Over the past five years,
hundreds of cases of alleged violations of the human rights of Falun Gong practitioners have
been brought to the attention of the Special Rapporteurs. Many of these allegations have been
reported back to the Chinese authorities and are reflected in reports of the Special Rapporteurs to
the Commission on Human Rights. The Special Rapporteurs are concerned that reports of arrest,
detention, ill-treatment, torture, denial of adequate medical treatment, sexual violence, deaths,
and unfair trial of members of so-called “heretical organizations”, in particular Falun Gong
practitioners, are increasing. They expressed concern that these allegations may reflect a
deliberate and institutionalized policy of the authorities to target specific groups such as the
Falun Gong. An analysis of reports indicates that the alleged human rights violations against
Falun Gong practitioners, including systematic arrest and detention, are part of a pattern of
repression against members of this group. Most of those arrested are reportedly heavily fined and
released, but many are detained and ill-treated in order to force them to formally renounce Falun
Gong. Those who refuse are sent to re-education through labour camps, where torture is
reportedly used routinely and in many cases has resulted in death. When charges are laid they
reportedly include allegations such as “disturbing social order”, “assembling to disrupt public
order”, “stealing or leaking State secrets”, or “using a heretical organization to undermine the
law”. According to the information received, those prosecuted have been unfairly tried and many
have received lengthy prison sentences. In this respect it is reported that on 5 November 1999, a
notice issued by the Supreme People's Court instructed all local courts to do their “political
duty” in bringing to trial ant punishing “severely” those charged with “heretical organization
crimes”, “particularly Falun Gong”, and to handle these cases “under the leadership of the Party
committees”.
25. On 19 October 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on
freedom of religion or belief and the Special Rapporteur on torture concerning Tenzin Deleg
E/CN.4/2004/60/Add. 1
Page 16
RinpocIx , a Buddhist religious leader who was at imminent risk of execution, following a
conviction based on a confession obtained under torture. It is reported that he was arrested on
7 April 2002 following a bombing incident in Chengdu, Sichuan province, on 3 April 2002. He
was found guilty on 29 November 2002 in a secret trial by the Kardze (Ganzi) Intermediate
People's Court in the Kardze Tibetan Autonomous Prefecture, Sichuan province, for “causing
explosions” and “inciting separatism”. On 2 December 2002 he was sentenced to death with a
two-year suspension of execution, which will expire on 2 December 2004. Tenzin Deleg
Rinpoche was reportedly held incommunicado for eight months from the time of his arrest until
the time of his trial. He was reportedly tortured in detention, including by being shackled hand
and foot and suspended from above, and forced to confess. His conviction was upheld on 26
January 2003 by the Sichuan High People's Court, and he was moved to a secret location
afterwards.
26. On 25 October 2004, the Special Rapporteur sent ajoint urgent appeal together with the
Special Rapporteur on the question of torture concerning the situation of Chain Yn Lan a
British citizen and a resident of Hong Kong who was tried for espionage in a trial closed to his
family by the Guangzhou Intermediate People's Court on 24 February 2004. He was convicted
based on a confession extracted under torture, and on 5 March 2004, he was sentenced to life
imprisonment. Chan Yu Lam was denied access to British consular officials during his detention
and trial, and his lawyers were threatened not to meet him by State Security officials. Mr. Lam
was abducted in Shenzhen on 31 January 2003 by persons who identified themselves as
members of the Debt Collection Group of the Guandong Province Public Security Bureau, but
were reportedly members of the Guanghzhou State Security Bureau. In June 2003, the Guandong
Province Foreign Affairs Office informed the British Consulate General in Guangzhou that Chan
Yu Lam had been arrested for an unspecified economic crime. Then in December 2003 his
family received a letter from him informing them that he had been arrested for espionage and
that they should retain lawyers for him. Therefore, since his arrest until 13 December 2003, at
which time h was first visited by his lawyers, Chan Yu Lam was held incommunicado.
27. On 1 December 2004, the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
and the Special Representative of the Secretary-General on the situation of human rights
defenders regarding Zheng Enchong, a Shanghai lawyer involved in the defence of economic
and social rights of displaced persons, who was sentenced on 28 October 2003, Zheng Enchong
has been imprisoned and denied access to his lawyer, which reportedly resulted in his not being
able to file an appeal application against his sentence before the Shanghai Supreme People's
Court. His wife reportedly filed an application on his behalf, but the Court has not acknowledged
it. Furthermore, the director of the Shanghai's Judicial Bureau and Prisons Bureau, Miao
Xiaobao, reportedly visited Zheng Enchong in Shanghai's Tilanqiao Prison on several occasions,
telling him that if he admitted wrongdoing, his three-year sentence would be reduced by one
year. However, Zheng Enchong refused to do so. Concern was expressed that the denial of Mr.
Zheng's right to see a lawyer and the right to appeal his sentence may be intended to prevent him
from resuming his work as a lawyer who defends persons displaced from their homes by real
estate projects. Such concerns are reinforced by the alleged attempts to induce Zheng Enchong to
repudiate his legal work in defence of human rights, both by offering a reduction of his sentence
and by aggravating the conditions of his detention.
E/CN.4/2004/60/Add. 1
Page 17
Conununications from the Goveriunent
28. On 5 July 2004 the Government replied to the Special Rapporteurs' joint urgent appeal of
19 March 2004 and advised that Mr. Yang Jianli was sentenced on 13 May 2004 and received
five years' imprisonment for the crime of espionage and six months' imprisonment for illegally
crossing State borders and a fine. The Government stated that the judicial authorities acted in
accordance with internal law and international human rights instruments as Mr. Yang's legal
rights were guaranteed during detention (he met with his lawyer 17 times from the investigative
to the sentencing stage) and he was sentenced in accordance with articles 110 and 322 of the
Criminal Law. The sentence was a result of illegal activities involving threats to State security
and had nothing to do with freedom of expression or opinion as the Government ensures these
freedoms under article 35 of the Constitution, but citizens must assume their corresponding
duties under the law.
29. On 31 December 2004, the Government sent replies to the Special Rapporteurs' joint
urgent appeals sent on 15, 19 and 25 October 2004. The replies unfortunately could not be
translated in time to be included in this report but will be reflected in next year's report.
Press release
30. On 14 April 2004, the Special Rapporteur, jointly with the Special Rapporteur on the
question of torture, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the
Special Rapporteur on the right to freedom of opinion and expression, and the Special
Representative of the Secretary-General on human rights defenders issued the following press
release:
“UNITED NATIONS HUMAN RIGHTS EXPERTS
EXPRESS CONCERN OVER THE SITUATION OF TIBETAN MONK
“We are deeply concerned over the continued detention under a suspended death
sentence of Tenzin Deleg Rinpoche, a prominent Lama who was involved in social work
in favour of the Tibetan community in the Kardze Tibetan Autonomous Prefecture of the
Sichuan Province and who promoted the reestablishment of Tibetan Buddhism in the
region.
“Tenzin Deleg Rinpoche was sentenced on 2 December 2002, after he was accused of
‘causing explosions' and ‘inciting the separation of the State', charges he denied. His co-
accused, Lobsang Dondrup, was executed on 26 January 2003. Numerous and credible
reports have referred to serious procedural flaws during the closed trial, in particular
violation of the right to a public trial, violation of the right to chose his own lawyer and
denial of the right to know and have the opportunity to examine the evidence presented
against him in court and to ill-treatment of the accused during the pre-trial period,
including incommunicado detention for the whole pre-trial period and ill-treatment
during interrogations.
“We are concerned that Tenzin Deleg might be executed any time until the end of the
suspension of his death sentence. We are also concerned that his death sentence will be
commuted in a life sentence after 2 December 2004, following a trial which apparently
fell short of international norms and standards. Therefore, we urge the authorities to grant
E/CN.4/2004/60/Add. 1
Page 18
Tenzin Deleg Rinpoche a new trial in accordance with international norms and standards
of due process.”
Observations of the Special Rapporteur
31. The Special Rapporteur welcomes the commutation of the death sentence passed against
Tenzin Deleg Rinpoche to life imprisonment, while reiterating his concern that the conviction
resulted from a trial that did not meet international fair trial standards.
Colombia
Comunicaciones enviadas al Gobierno
32. El 15 de marzo de 2004, el Relator Especial, Junto con el Representante Especial del
Secretario General sobre la situación de los defensores de los derechos humanos y el Relator
Especial sobre la promoción y protección del derecho a la libertad de opinion y expresión, envió
un llamamiento urgente relativo a la situación de Rodolfo RIos Lozano, abogado especialista en
derechos humanos que representa a Luz Perly Cordoba, Presidente de la Asociación Campesina
de Arauca (ACA), cuyo caso fue obJeto también de un llamamiento urgente enviado
conJuntamente el 27 de febrero de 2004 por la Representante Especial del Secretario General
sobre la situación de los defensores de los derechos humanos, la Presidente-Relatora del Grupo
de TrabaJo sobre la Detención Arbitraria y el Relator Especial sobre la promoción del derecho a
la libertad de opinion y de expresión. SegUn la información recibida, el 24 de febrero de 2004,
después de la indagatoria de Luz Perly Cordoba, Rodolfo Rio Lozano habr la recibido dos
llamadas telefonicas anónimas. En la primera llamada el autor le habria acusado de ser un “perro
terrorista de las FARC, abogado defensor de narcoterroristas”, y en la otra, dos horas más tarde,
se le diJo que deberIa escoger entre abandonar el pals, deJar los casos en los que estaba
trabaJando o morir. Ademas, se informa que Rodolfo Rios Lozano habria sido sometido a
vigilancia y que le habrian seguido unos hombres no identificados, todo ello presuntamente
relacionado con su trabaJo como abogado de defensores de los derechos humanos.
33. El 13 de mayo de 2004, el Relator Especial, Junto con el Representante Especial del
Secretario General sobre la situación de los defensores de los derechos humanos, envió una carta
de alegacion en relacion con la situación del abogado Carlos Bernal. El Relator Especial recibio
información segün la cual Carlos Bernal, miembro del Comité Permanente para la Defensa de los
Derechos Humanos y del Frente Socialy Politico, habria sido asesinado el 10 de abril de 2004 en
la ciudad de Cücuta por una persona no identificada, que le disparo varias veces en la cabeza
cuando se encontraba en un establecimiento de yenta de comida. Otra persona no identificada
habria disparado a la cabeza de su guardaespaldas Camilo Jiménez, quien fallecio horas mas
tarde. En el momento de su muerte Carlos Bernal era beneficiario del Programa de Protección
del Ministerio del Interior y de Justicia.
34. El 7 de Julio de 2004, el Relator Especial, Junto con el Representante Especial del
Secretario General sobre la situación de los defensores de los derechos humanos y el Relator
Especial sobre la promoción y protección del derecho a la libertad de opinion y expresión, envió
una carta de alegac ion en relacion con la situación del abogado Pedro Julio Mahecha Avila. D c
acuerdo con las informaciones recibidas, el 14 de mayo de 2004, Pedro Julio Mahecha Avila,
abogado y miembro de la Corporación Colectivo de Abogados “José Alvear Restrepo”, habria
E/CN.4/2004/60/Add. 1
Page 19
sufrido actos de hostigamiento por parte del Departamento Administrativo de Seguridad (DAS).
El abogado habrIa sido hostigado y seguido en la ciudad de Cartagena por personas que se
habrIan identificado como funcionarios del DAS. La misma tarde, el abogado habrIa denunciado
el supuesto hostigamiento ante la Policia. Sin embargo, el hostigamiento habrIa continuado y el
abogado habrIa abandonado la ciudad de Cartagena y cancelado un viaje a la ciudad de
Barranquilla donde se habIa comprometido a dirigir un programa auspiciado por la Union
Europea. Los informes indican que funcionarios del DAS habrIan dispuesto un operativo en la
ciudad de Cartagena con el fin de demostrar que Pedro Julio Mahecha Avila era guerrillero de
las FARC. Este supuesto hostigamiento del Pedro Julio Mahecha Avila podrIa ser relacionado
con su trabajo como abogado y defensor de los derechos humanos.
35. El 6 de septiembre de 2004, el Relator Especial, Junto con el Relator Especial sobre la
promoción y protección del derecho a la libertad de opinion y de expresión, envió un
llamamiento urgente en relacion a la situación de Diana Teresa Sierra Gómei abogada y
defensora de derechos humanos, e integrante de la Corporación Colectivo de Abogados “José
Alvear Restrepo”. D c acuerdo con la informacionrecibida, el 2 de septiembre de 2004 la Sra.
Sierra Gómez tendrIa que haber viaJado a Holanda para participar en la Asamblea de Estados
Partes de la Corte Penal Internacional. Ese mismo dIa, la Corporación Colectivo de Abogados
“José Alvear Restrepo” habrIa sido informada que el DAS estaba organizando un operativo
contra la señora Sierra Gómez en el aeropuerto El Dorado de la ciudad de Bogota. Por ese
motivo, su viaJe fue cancelado. Asimismo, el 24 de octubre de 2003 habrIa sido fotografiada y
filmadaJunto con otro miembro del Colectivo de Abogados “José Alvear Restrepo” en las
inmediaciones de las oficinas de esta organización por un hombre y una muJer desconocidos.
Posteriormente, el dIa 28 de Junio de 2004, habrIa sido fotografiada a la entrada de la sala de
espera del aeropuerto de la ciudad de Armenia (QuindIo) por un suJeto no identificado. A la luz
de estas alegaciones, se expresaron temores por la seguridad e integridad f lsica y psicologica de
Diana Teresa Sierra (I}ómez.
Respuestas del Gobierno
36. Mediante comunicación del 10 de mayo de 2004, el Gobierno proporcionó información
en relacion al llamamiento urgente enviado el 15 de marzo de 2004. El Gobierno informo que el
Sr. Rodolfo RIos Lozano hace parte del Programa Especial de Protección Integral para dirigentes
y miembros sobrevivientes de la Union Patriótica y del Partido Comunista Colombiano,
prosiguiendo a detallar que el esquema de protección del que goza Rodolfo RIos Lozano consiste
en un vehiculo corriente, dos escoltas, un celular, un radio axantel y tiquetes aéreos nacionales
para cuando lo soliciten. Adicionalmente, el 18 de mayo se habrIa aprobado el cambio del
vehiculo corriente en un vehiculo blindado. Paralelamente, el Gobierno anunció la apertura de
una investigación por parte del Fiscal 240 de la Unidad de Delitos contra la Libertad Individual,
Otras Garantias y Otros, baJo el radicado No. 749224. El Gobierno también se comprometió a
seguir el resultado de las investigaciones y a informar el Relator Especial al respecto.
37. Mediante comunicación del 14 de mayo de 2004, el Gobierno proporcionó informacion
con respecto al llamamiento urgente enviado por el Relator Especial el 18 de Julio de 2003 en
relacion con el abogado José Ramiro OreJuela Aguilar. El Gobierno informo que el Sr. OreJuela
Aguilar fue beneficiario de medidas cautelares por la Comisión Interamericana de Derechos
Humanos entre el 2 de Junio de 2003 y el 29 de Julio de 2003, cuando el Sr. OreJuela Aguilar
habrIa decidido salir del pals, lo que habria hecho dias después. El Gobierno informó también
E/CN.4/2004/60/Add. 1
Page 20
que la investigación abierta se encontrarIa en etapa previa de práctica de pruebas, sin que hasta la
fecha se haya logrado esciarecer los hechos ni identificado a los partIcipes en ci delito. En cuanto
a las investigaciones relacionadas con ci asesinato del abogado Absaion Achury, la fiscalia local
de San Juan de Aratama habrIa remitido las diligencias a la fiscaiIa delegada ante ci Guala de
Viiiavicencio, ci 9 de junio de 2003, para que se unificaran dentro dcl radicado 92517 que
adelanta dicha delegada por ci delito de secuestro.
38. Mediante comunicación de 21 de septiembre de 2004, ci Gobierno proporcionó
información en reiacion al ilamamiento urgente enviado ci 13 de mayo de 2004 en reiacion con
ci asesinato del abogado Carios Bernal. El Gobierno detaiio información relativa al esquema de
protección con ci que contaba ci Sr. Bernal, las circunstancias en las que se produjo su asesinato
y las medidas judiciales adoptadas. En cuanto al esquema de protección, ci Sr. Bernal contaba
con un esquema individual consistente en dos escoitas y una camioneta, distintos medios de
comunicación y bilietes aéreos nacionaics. En lo que se refiere a las circunstancias de su muerte,
ci dIa 10 de abril de 2004 varios desconocidos dispararon de forma indiscriminada contra ci Sr.
Bernal y su escoita Camilo Jiménez Arenas, ocasionando la muerte de forma instantánea al
primero y pocas horas después al segundo. Simuitaneamente a dichos asesinatos fueron
accionados dos artefactos expiosivos de baja potencia que no causaron vIctimas ni dafios
materiales de relevancia: presuntamente dichas expiosiones habrIan estado dirigidas a distraer la
atención de las fuerzas de seguridad y facilitar asI la huIda de los asesinos. Esta üitima acción
habrIa sido ejecutada por grupos de autodefensa urbanos GRAU que delinquen en la ciudad, y
uno de los responsabies habrIa sido capturado. La poiicIa habrIa recogido aigunos testimonios y
las investigaciones sobre este caso continuarIan.
39. El Gobierno proporcionó informacion con respecto al ilamamiento urgente enviado por ci
Relator Especial ci 6 de septiembre de 2004. TodavIa como en este informe figuran solo las
comunicaciones recibidas hasta al 31 de diciembre de 2004, un resumen de la respuesta figurara
en ci informe que ci Relator Especial presentará a la próxima sesión de la Comisión.
Côte d'Ivoire
Communication envoyée
40. Le 26 juiliet 2004, ic Rapporteur special, conjointement avec ic Rapporteur special sur la
promotion et la protection du droit a la liberte d'opinion et d'expression, a envoyé un appel
urgent sur la situation dujournaliste franco-canadien Guy-André Kieffer, disparu ic 25 juiliet
2004 a Abidjan et au sujet duquel ic Rapporteur special sur la promotion et la protection du droit
a la liberte d'opinion et d'expression avait envoyé une communication aux autorités ivoiriennes ic
22 avrii 2004. Scion ics informations communiquées, Patrick Ramaei, ic juge d'instruction
français qui enquête sur cette affaire, se serait plaint auprès de son homologue ivoirien, Koffi
Kouadio, des obstacles au bon deroulement de cette enquête que sembient ériger certaines
autorités. Ii est ainsi rapporté qu'ii na pas pu interroger deux mihtaires cites par Michel Legré,
beau- frère de Mme Simone Gbagbo et dernière personne a avoir vu Guy- Aiidre Kieffer avant sa
disparition. Ii sembierait que la hierarchic mihtaire ait évoqué ic fait queue ne pouvait pas ics
localiser pour expliquer la non comparution des deux mihtaires. Dc plus, Anseime Seka Yapo,
responsabie de la sécurité de Mme Gbagbo et Bertin Gahie Kadet, conseilier a la presidence
chargé des affaires de defense, auraient refuse de se soumettre aux convocations du magistrat. Le
juge Ramaei aurait indiqué qu'ii souhaitait se rendre une troisième fois en Côte d'Ivoire au debut
E/CN.4/2004/60/Add. 1
Page 21
du mois de septembre. Ii est également allégué que Michel Legré aurait mis en cause le Ministre
de l'économie et des finances qui lui aurait personnellement remis une enveloppe contenant un
million de francs CFA quelques heures après l'enlèvement du journaliste. Les Rapporteurs
spéciaux ont également été informés du fait que l'ordinateur et le téléphone portable du
journaliste auraient été consultés après sa disparition, cc qui semble conforter la these selon
laquelle le journaliste a bien été enlevé pour ses activités professionnelles.
Observations du Rapporteur special
41. Le Rapporteur special regrette de n'avoir pas, ace jour, reçu de réponse a son appel
urgent du 26 juillet 2004.
Cuba
Observaciones del Relator Especial en relación con alegaciones reflejadas en el documento
E/CN.4/2004/60/Add. 1
42. En relacion con el llamamiento urgente enviado el 19 de mayo de 2003
(E.CN.4/2004/60/Add.1, parr. 21) acerca de las 78 personas que han sido arrestadas y
condenadas por su oposición a las politicas del Gobierno despues de haber sido procesadas en
juicios sumarios y a puerta cerrada en abril de 2003, el Relator Especial nota con satisfaccion
que, segUn las informaciones recibidas, 14 de ellas han sido liberadas, entre ellas, los periodistas
Carmelo DIaz Fernández, Oscar Espinosa Chepe, Raül Rivero, Edel José Garcia y Jorge Olivera
Castillo. Sin embargo, el Relator Especial queda muy preocupado por la situación de las demás
personas que quedan detenidas e insta el Gobierno de Cuba a liberarlos cuanto antes.
Ecuador
Comuuicación enviada al Gobierno
43. El 28 de diciembre de 2004, el Relator Especial envió una carta de alegacion seflalando
su preocupación con relacion a la decision del Congreso ecuatoriano de sustituir la mayoria de
los jueces de la Corte Suprema. El Relator Especial he sido informado que, el 8 de diciembre
de 2004, el Presidente de la Repüblica convocó al Congreso en periodo extraordinario, para
“analizar y resolver sobre la situación juridica y constitucional de la Función Judicial en
Ecuador”, y que el Congreso resolvio sustituir 27 de los 31 magistrados de la Corte Suprema por
otros jueces elegidos por el mismo Congreso. Aunque este acto del poder ejecutivo está previsto
por la Constitución Politica de Ecuador (art. 171, numeral 8), también la Constitución prevé que
el Congreso debe sesionar sobre puntos especificos y no generales como en este caso. El otro
aspecto observado refiere que el poder legislativo habria realizado una interpretación inadecuada
de una cláusula constitucional transitoria, mediante la cual decidio declarar en funciones
prorrogadas a algunos magistrados y nombrar “a la plancha” (en lista general sin ternas) a
nuevos funcionarios. Sin embargo, el articulo 202 de la Constitución del pais establece que “Los
magistrados de la Corte Suprema de Justicia m estarán sujetos a periodo fijo en relacion con la
duracion de sus cargos. Cesarán en sus funciones por las causales determinadas en la
Constitución y la ley. Producida una vacante, el pleno de la Corte Suprema de Justicia designará
al nuevo magistrado, con el voto de las dos terceras partes de sus integrantes...”. A la luz de la
información que dispone el Relator Especial, esta decision constituiria una interferencia de los
E/CN.4/2004/60/Add. 1
Page 22
poderes ejecutivo y legisiativo en ci poder judicial, a! ser violatoria del principio de
constitucional de “independenciajudicial” (art. 199 de la Constitucion), requisito esencial del
estado de derecho y de la democracia garantizado por instrumentos internacionales de los cuales
Ecuador es parte. En este contexto, ci Relator Especial ha reiterado su profunda preocupación
por la decision tomada por ci Congreso y solicitado la cooperación del Gobierno para aciarar la
situación. También, ha invitado ci Gobiemo a garantizar los mecanismos judiciales pertinentes
que posibiliten revisar la constitucionahdad de esta decision, y a tomar todas las medidas
necesarias para asegurar y fortalecer la independencia del sistema judicial en Ecuador, en
conformidad con las normas nacionales e internacionales sobre la independencia de los jueces.
Egypt
Conununication to the Govenunent
44. On 8 April 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the question of torture, the Special Rapporteur on the right of everyone to the
highest attainable standard of physical and mental health and the Working Group on Arbitrary
Detention concerning the situation of Aluned Hussein Mustafa Kamil Agiza. He was
reportedly sentenced by a military court, in absentia, to 25 years in prison and forcibly returned
to Egypt by the Government of Sweden on 18 December 2001. Since that date, Abmed Agiza
has reportedly only met with his lawyer, Hafez Abu Saeda, once in over two years. On 3 April
2004, it was reportedly announced that a new military trial was scheduled for 10 April and
Ahmed Agiza his allegedly not been permitted to consult with his lawyer. There is concern that
Ahmed Agiza's due process rights may be denied as he is not being tried by an ordinary civil
court.
Conununications from the Govenunent
45. On 7 May 2004 the Government replied to the Special Rapporteurs' joint urgent appeal
of 8 April 2004. The Government advised that the sentence imposed on Abmed Hussein Mustafa
Kamil Agiza is currently being reviewed in the light of the decision of His Excellency the
President of the Republic to accept the petition filed by Mr. Agiza. The Government stated that
since his incarceration Mr. Agiza has received visits from members of the Swedish diplomatic
and consular services (21), his family (53) and his lawyers (4). Furthermore, according to the
Government, Mr. Agiza is receiving continuous medical treatment and has been given medical
examinations at the Manil University Hospital (38 times). He has also undergone medical tests
and has had 14 sessions of medical therapy at the Liman Turrah Hospital. The Government
advises that Mr. Agiza persists in flouting prison rules and regulations. According to the
Government, there is no evidence to support the allegations in the complaint that this person has
been tortured.
46. On 25 May 2004 the Government replied to the Special Rapporteurs' joint urgent appeal
of 2 October 2003, and advised that Mr. Ashraf Ibarhim had been acquitted by the ruling of the
court 6 March 2004.
E/CN.4/2004/60/Add. 1
Page 23
Eritrea
Communication to the Government
47. On 11 November 2004, the Special Rapporteur sent ajoint urgent appeal with the Special
Rapporteur on the question of torture, the Chairperson-Rapporteur of the Working Group on
Arbitrary Detention and the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression concerning large scale round-ups in Asmara of Eritrean men
between 18 and 40 years of age on 4 and 5 November 2004 by the Eritrean Defence Force
(EDF). More than 50,000 men were arrested over this period in the streets, their schools,
workplaces and homes in a harsh, systematic manner and without search warrants. It is reported
that the rounds-up were connected with the Eritrean National Service Policy. Eyewitnesses
reported that all those who did not comply with orders were publicly beaten. On the night of
4 November in Adi Abeto military camp, 4 km outside Asmara, a riot between detainees and
prison guards broke out sparked by the lack of food. Some detainees attempted to escape over a
wall, which subsequently collapsed. Shooting followed and at least 25 people were killed,
including five guards, and about 100 people were injured. According to Eritrean National
Service Proclamation No. 82/1995, all Eritrean citizens between 18 and 40 years old are required
to perform 18 months' military and national service. However, following the conflict with
Ethiopia, this obligation continues to be prolonged indefinitely. The Government has reportedly
called up United Nations national staff members for service, in contravention of section 18 (c) of
the 1946 Convention on Privileges and Immunities of the United Nations. Since the beginning of
2004 more than 50 staff members of the United Nations Mission in Ethiopia and Eritrea
(UNMEE) have reportedly been arrested and detained, of whom 4 are still unaccounted for. In an
incident reported in recent months, about 30 national staff of UNMEE were arrested while
returning home on an UNMEE bus. Some of these persons were immediately sent to the military
camp in Sawa. The prisoners have no access either to their families or to lawyers.
Communication from the Government
48. The Government sent a reply to the Special Rapporteurs' joint urgent appeal of
11 November 2004, too late to be reflected in this year's report.
Guatemala
Comunicaciones enviadas al Gobierno
49. El 20 de enero de 2004, el Relator Especial, junto con el Representante Especial del
Secretario General sobre la situación de los defensores de los derechos humanos, el Relator
Especial del Secretario General sobre la yenta de niflos, la prostitución de niflos y la utilizacion
de niflos en la pornografla infantil, y el Relator Especial sobre la promoción y protección del
derecho a la libertad de opinion y expresión, envió un llamamiento urgente relativo al caso de
Bruce Harris, Director Ejecutivo de los Programas pan America Latina de Casa Alianza. SegUn
la informacion recibida, tras una conferencia de prensa celebrada en septiembre de 1997 en la
cual la Oficina del Procurador General y Casa Alianza expusieron los resultados de una
investigación conjunta sobre el trafico ilegal de niflos en Guatemala y en particular casos de
adopciones ilegales, Bruce Harris habrIa sido acusado de difamacion. Durante la conferencia,
Bruce Harris habrIa declarado que personas cercanas a ciertas autoridades gubernamentales
E/CN.4/2004/60/Add. 1
Page 24
estarian implicadas en dichas adopciones. La denuncia contra Bruce Harris habrIa sido
presentada por una abogada conocida por su labor en casos de adopcion de niflos al extranjero y
un pariente del entonces Presidente del Corte Suprerna. En febrero de 1999, la Corte
Constitucional habrIa tornado la decision que, en casos corno el presente, el derecho a la libertad
de expresión solo podia aplicarse a periodistas y que, por no ser periodista, Bruce Harris podia
ser llevado ante los tribunales penales. En este contexto, Bruce Harris podria ser condenado a
cinco aims de encarcelarniento.
50. El 18 de noviernbre de 2004, el Relator Especial enviO una carta de alegaciOn relativa ala
rnagistrado Yolanda Perez Ruh integrante hasta fechas rnuy recientes de la Corte de
Apelaciones. Dc acuerdo con dichas inforrnaciones, la rnagistrado Perez Ruiz no habria sido
reelegida en la nueva cornposiciOn de la Corte de Apelaciones por rnotivos de indole politica. La
inforrnaciOn recibida indicaria que, con una sOlida reputaciOn de independencia y una trayectoria
en la que destaca el enjuiciarniento de destacados rniernbros de la vida politica guaternalteca, tras
21 aims en la carrera judicial, el rnagistrado Perez Ruiz habria sido apartada de la rnisrna
particularrnente por las decisiones adoptadas en su ültirno rnaalato. Asi, en los ültirnos cuatro
aflos, y entre otros destacados casos, el rnagistrado tuvo ocasiOn de ratificar el arresto
dorniciliario del general y cx presidente guaternalteco Efrain Rios-Montt, y se negO a otorgar la
libertad bajo fianza del cx vicepresidente Juan Francisco Reyes LOpez. Si bien, el partido
politico rnás afectado por las decisiones del rnagistrado ha sido el FRO, las fuentes indicarian
que ha sido su desernpeflo independiente corno rnagistrado lo que ha rnotivado la decision
politica de no renovar su integraciOn a la Corte de Apelaciones.
Respuestas del Gobierno
51. Mediante cornunicaciOn de 28 de junio de 2004, el Gobierno proporcionO inforrnaciOn en
relaciOn al llarnarniento urgente enviado el 20 de enero de 2004. El Gobierno inforrnO que el
30 de enero de 2004 el Tribunal DuodCcirno de Sentencia Penal dictO sentencia absolutoria en el
proceso que se sigue contra Bruce Harris. Posteriorrnente esta sentencia ha sido apelada por la
abogada Susana Luarca de Urnafia, apelaciOn cuyo fallo está pendiente. Por otro lado, el Estado
de Guaternala rnanifest o que no se habian agotado todos los recursos y rernedios de la
jurisdicci on interna, que se trataba de un asunto contencioso entre particulares y para los efectos
correspondientes el Estado habia proveido el proceso penal y la estructura respectiva, instancia
donde se estaba dirirniendo la controversia.
52. Mediante cornunicaciOn del 9 de agosto de 2004, el Gobierno de Guaternala proporcionO
inforrnacion acerca de su decision de organizar la “Unidad Coordinadora de ProtecciOnpara
Defensores de Derechos Hurnanos, Adrninistradores y Operadores de Justicia, Periodistas y
Cornunicadores Sociales” que se propone fortalecer la capacidad de protecciOn y seguridad para
las personas dedicadas a esas actividades que sean o puedan ser victirnas de violaciones a los
derechos hurnanos. La nueva unidad tiene corno fin coordinar con las instituciones encargadas de
garantizar la seguridad, y el efectivo curnplirniento de rnedidas dictadas por los Organos y
rnecanisrnos internacionales de protecciOn de los derechos hurnanos a favor de las victirnas o
potenciales victirnas de tales violaciones.
E/CN.4/2004/60/Add. 1
Page 25
Observaciones del Relator Especial
53. En relacion con ci liamamiento urgente enviado eli de Julio de 2003, ci Relator Especial
nota con satisfaccion que, segün las informaciones recibidas, la Sra. Thelma de Lam, fiscal de
derechos humanos, ha dejado de recibir amenazas.
Haiti
Communication envoyée an Gonvernement
54. Le 22 octobre 2004, le Rapporteur special, conjointement avec le Rapporteur special sur
les executions extrajudiciaires, sommaires ou arbitraires, le Rapporteur special sur la promotion
et la protection du droit a la liberté d'opinion et d'expression et la Représentante spéciale du
Secrétaire général sur la situation des défenseurs des droits de l'homme, a envoyé un appel
urgent sur la situation de Rénan Hédonvifie, avocat et Secrétaire général du Comité des avocats
pour le respect des libertés individuelles (CARLI), et de Mario Joseph, avocat travaillant pour
le Bureau des avocats internationaux. Rénan Hédouville et Mario Joseph travailleraient a la
defense de personnes dont les droits fondamentaux auraient été violés par l'armée haltienne entre
1991 et 1994, et notamment en faveur des families des victimes du massacre de Raboteau en
avril 1994. En aoüt 2004, le CARLI aurait notamment protesté contre l'acquittement d'officiels
de l'armée qui auraient été impliqués dans le meurtre en septembre 1993 d'Antoine Izméry.
Mario Joseph représenterait par ailleurs des personnes liées au parti de l'ex- Président Aristide,
Famille Lavalas, qui auraient récemment été emprisonnés sans charge. D'après les informations
reçues, Rénan Hédouville et Mario Joseph auraient reçu par téléphone des menaces de mort
anonymes s'ils ne cessent leurs activités de defense des droits de l'homme et s'ils persistent a
accuser d'anciens officiers de l'armée. Scion les informations reçues, M. Hédouville aurait a
plusieurs reprises fait part aux autorités des menaces dont ii ferait l'objet. Malgré cela, celui- ci
n'aurait bénéficié d'aucune protection. Toujours scion les informations reçues, d'autres membres
du CARLI, parmi lesquels Marie Nadia Charles, directrice executive, et Morisseau Jean Rony,
avocat, ainsi que Canine Séide, qui avait reçu l'aide de l'organisation, seraient contraints de vivre
dans la clandestinité en raison du harcèlement dont us feraient l'objet.
Observations dn Rapportenr special
55. Le Rapporteur special regrette de n'avoir pas reçu de réponse a son appel urgent du
22 octobre. En outre, ii exprime sa vive preoccupation au sujet des informations qu'il a reçues
scion lesquelles le pouvoirjudiciaire en HaIti serait fortement politise et ferait l'objet
d'interférences de la part du pouvoir exécutif. Plusieurs magistrats auraient dénoncé de telles
pressions, et certains d'entre eux auraient été révoqués ou se seraient vus dans l'obligation de
s'exiler ou de se cacher a cause de leur refus de ceder aces pressions. En février 2004, le
système Judiciaire aurait été gravement touché par des actes de violence et des pillages perpétrés
dans les tribunaux du pays. Le Rapporteur special est préoccupé par l'insuffisance de mesures
qui auraient été prises pour reconstruire l'appareil Judiciaire ainsi que pour poursuivre les
responsables de ces actes.
E/CN.4/2004/60/Add. 1
Page 26
India
Observations of the Special Rapporteur
56. The Special Rapporteur welcomes the 14 April 2004 Supreme Court ruling which
overturned the High Court's verdict in the Best Bakery case, in which 21 Hundus had been
acquitted for burning 14 Muslims to death after fearful witnesses later recanted earlier
allegations. The case has now been transferred to a more neutral venue. The ruling was also
significant because it directed the state governments of Gujarat and Maharashatra to create an
effective witness protection programme, ordered the appointment a new public prosecutor and
called for impartial investigations into who is responsible for the 2002 Gujarat riots.
Indonesia
Conununication to the Govenunent
57. On 3 December 2004, the Special Rapporteur sent a joint urgent appeal with the Special
Representative of the Secretary General on the situation of human rights defenders concerning
Mr. Munir, a human rights lawyer, Mrs. Suciwati, his wife, and relatives of Mr. Munir living in
Malang, East Java. As a lawyer, Mr. Munir represented numerous alleged human rights victims,
and he also co- founded the Commission for Disappeared Persons and Victims of Violence
(Kontras), a group that has allegedly exposed the abduction by the military of several human
rights activists in Jakarta. On 7 September 2004, Mr. Munir died in a Garuda flight from
Singapore, two hours before arriving in Amsterdam. Mr. Munir was allegedly on his wayto the
Netherlands to take part in a course on international human rights law at the University of
Utrecht. The Netherlands Forensic Institute performed an autopsy on Mr. Munir's body, and on
11 November 2004 the Government of the Netherlands handed over a copy of the forensic report
to the Indonesian Foreign Ministry. The report indicated that Mr. Munir had died from excessive
levels of arsenic in his body, in particular in his stomach, and that the concentration and location
of the arsenic indicates that it had been slipped into the food or drink he had consumed. The
Indonesian police had reportedly started an investigation into Mr. Munir's death. As of 20
November 2004, Mr. Munir's family had not received a copy of the report from the Indonesian
Government and on that same day Mrs. Suciwati received a death threat after she demanded,
together with relatives of Mr. Munir, an impartial and thorough investigation into Mr. Munir's
death. It is also reported that, on 9 September 2004, a letter was received by relatives of Mr.
Munir in Malang, East Java. The letter allegedly “congratulated” them on his death, and stated
that Mr. Munir was a traitor. There is concern that the death of Mr. Munir may be a result of his
activities to defend human rights, in particular through his work as a lawyer and in connection
with his activities for Kontras.
Iran (Islamic Republic of)
Conununications to the Government
58. On 20 February 2004 the Special Rapporteur sent a joint allegation letter with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
and the Chairperson- Rapporteur of the Working Group on Arbitrary Detention, expressing great
concern regarding Ensafali Hedayat, a freelance journalist charged with breaching national
E/CN.4/2004/60/Add. 1
Page 27
security interests due to his coverage of events, as an accredited journalist, of a conference in
Berlin in January 2004 that was sponsored by an organization which supported a non-violent
approach to establishing a new pluralistic and democratic system of government in Iran.
Mr. Hedayat's month-long detention was extended for a further 10 days on 16 February 2004, by
order of the Ministry of Intelligence. While Mr. Hedayat had access to legal counsel on at least
three occasions since his arrest on 17 January, his lawyer was apparently not permitted to be
present during the interrogation sessions. There was also a concern that the prosecutor will have
the dual role of also being the judge during Mr. Hedayat's trial and that the trial, scheduled to be
held in the Public and Revolutionary Court, may contravene the international standards for fair
trial, including the provisions set out in article 14 (1) of the International Covenant on Civil and
Political Rights.
59. On 11 March 2004 the Special Rapporteur sent ajoint allegation letter with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
expressing great concern regarding the situation of Iraj Jamshidi, editor- in-chief of the
suspended financial dailyAsia, who was arrested on 6 July. Mr. Jamshidi's trial opened on
24 February 2004 before the Tehran Revolutionary Tribunal's 26th Division, and it is reported
that, although his lawyer is allowed to attend the trial, he had no access to his client's file.
60. On 30 April 2004 the Special Rapporteur sent ajoint urgent appeal with the Special
Rapporteur on extrajudicial, summary or arbitrary executions and with the Special Rapporteur on
violence against women, its causes and its consequences regarding Kobra Rahmanpour who
was reportedly at risk of imminent execution by hanging. She had been detained in Evin Prison
in Tehran for 3'/2 years, 20 months of which were said to haw been spent on death row.
Ms. Rahmanpour was arrested in November 2000, detained and interrogated without access to a
lawyer, and subsequently convicted of “intentional murder” of her mother- in-law based solely on
a confession obtained in the absence of legal counsel. It is further reported that the judge was
also the investigator and had approved the charges as the prosecution service was allegedly
suspended at the time. There is a concern that the trial, which was closed to the public after the
first hearing, did not comply with internationally recognized standards of due process and fair
trial. The Head of the Judiciary in Iran has the power to revoke her conviction; however, it is
alleged that the judicial authorities have confirmed that all legal proceedings concerning Kobra
Rahmanpur's case are completed and that the sentence can only be commuted if the victim's
heirs forgo their right to retribution and seek instead payment of blood money (diyeh) instead. It
was reported that after a warrant for the execution of Kobra Rahmanpour failed to be carried out
on 1 January 2004, due to technical errors, the Head of Judiciary agreed to a temporary reprieve
of her execution, granting her a short time to appeal to the victim's heirs. However, reports
indicate that the heirs contacted the judicial authorities on 12 and 13 April 2004, to again insist
on Ms. Rahmanpour's execution.
61. On 26 July 2004 the Special Rapporteur sent ajoint allegation letter with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
and with the Special Rapporteur on the question of torture expressing great concern regarding
the brief trial of Mohanunad Reza Aghdam Alunadi which ended abruptly on 18 July 2004.
Mr. Ahmadi was charged with the “semi- intentional” murder of Zahra Kazemi, a journalist who
died in a Tehran jail in July 2003, after she was reportedly beaten and subjected to other forms of
ill-treatment while in custody. Allegedly, the trial did not meet international standards of fair
trial as lawyers involved in the case claimed that key evidence was either ignored or covered up,
E/CN.4/2004/60/Add. 1
Page 28
including documents and testimony by witnesses that may have disclosed incriminating evidence
against judicial officials, the prosecutor's office and the intelligence ministry. Of further concern,
journalists and other trial observers such as foreign diplomats, who were initially told they could
attend the entire trial, were barred from access to the courtroom. In addition, Tehran prosecutor
Saeed Mortazavi is said to have pressured some journalists not to report on parts of the trial. The
prosecutor was quoted as saying to a journalist, “It's in your interest to consider the murder trial
over and avoid publishing things that you should not.”
62. On 16 November 2004, the Special Rapporteur sent a joint urgent appeal with the
Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special
Representative of the Secretary-General on the situation of human rights defenders, the Special
Rapporteur on the question of torture and the Special Rapporteur on violence against women, its
causes and its consequences regarding the situation of Mahboobeh AbbasgholizadeI a
women's rights activist, editor of Farzaneh (a journal for women's studies) and director of an
NGO training centre. Ms. Abbasgholizadeh was arrested at her home on 1 November 2004 on the
order of the Prosecutor General of Iran and reportedly detained and held incommunicado and
denied access to a lawyer or family members. To date, no formal charges have reportedly been
brought against her but she was interrogated about her presentations at international meetings,
including her address to the Asia Pacific Women's Watch Beijing+10 NGO Forum in July 2004,
and her contacts with international women's rights activists.
Conununications from the Goveriunent
63. On 18 May 2004 the Government replied to the Special Rapporteurs' joint urgent appeal
of 5 December 2003 (E/CN.4/2004/60/Add. 1, para. 46). The Government advised that Nasser
Zarafshan had been sentenced to five years' imprisonment for illegal possession of weapons
and disclosure of classified information. Mr. Zarafshan is serving his term in Evin prison where
he meets with his family and attorneys on a regular basis.
64. On 15 December the Government replied to the Special Rapporteurs' joint urgent appeal
of 26 July 2004 and advised that Zaira Kazemi's case was assigned to the Tebran Public Court,
branch 1158, for consideration by the Tebran Office of the Public Prosecutor. The first session
was public and the accused, her legal counsel, a representative of the public prosecutor, the
media, the Canadian Ambassador to Iran and a number of diplomats from other countries were
present. The hearing was suspended at the request of the accused legal counsel for further
preparatory measures. The next session of the trial was convened in the presence of four legal
representatives for Ms. Kazemi's family, the accused and her counsel, the Canadian Ambassador
and two diplomats from the British and Dutch Embassies, and domestic and international media.
Both sides presented their case in a hearing that lasted 15 hours and the court issued an initial
verdict. The verdict was appealed by the victim's counsel and the case continues.
65. On 20 December the Government replied to the Special Rapporteurs' joint urgent appeal
of 16 November 2004 and advised that Mahboobeh Abbasgholizadeh had been detained for her
activities against the State and inspiring immoral acts in society, and is now released on bail.
E/CN.4/2004/60/Add. 1
Page 29
Press release
66. On 27 July 2004, the Special Rapporteur, jointly with other Special Rapporteurs, issued
the following press release:
“UN EXPERTS APPEAL TO IRAN TO COMPLY WITH HUMAN RIGHTS NORMS
IN CASE OF DEAD JOURNALIST
“The Special Rapporteur on the right to freedom of opinion and expression, Ambeyi
Ligabo, the Special Rapporteur on the independence of judges and lawyers, Leandro
Despouy, and the Special Rapporteur on torture, Theo van Boven, express their profound
concern regarding the unanswered questions which have resulted from the acquittal of an
Iranian intelligence officer on 24 July after a two-day trial for the alleged killing of
journalist Zahra Kazemi.
“Ms. Kazemi was arrested on 23 June 2003 while performing her work as ajoumalist
outside Evin prison in the Iranian capital, Tehran. She was reportedly beaten and
subjected to other forms of ill-treatment in detention; she died of her injuries on 10 July
2003.
“Many reports indicate that the proceedings did not meet international standards of a fair
trial because key evidence that might have incriminated judiciary officials, the
prosecutor's office as well as the intelligence ministry was ignored by the court. The
independent experts are also concerned that journalists and other foreign observers were
barred from full access to the courtroom after the start of the trial.
“The independent experts fear that by failing to ensure an open trial and the independent
functioning of the judiciary -- which should take into account all findings that could shed
light on this case - - the authorities are favouring a climate of impunity for law
enforcement officials and setting the ground for the recurrence of similar human rights
violations in the future.
“The experts underline the need for prompt and impartial investigations whenever acts
and practices of torture are alleged. They appeal to the authorities to comply strictly with
international human rights norms, and in particular with article 2, paragraph 3, of the
hiternational Covenant on Civil and Political Rights ratified by the Islamic Republic of
Iran, which provides that, ‘Each State Party to the present Covenant undertakes: (a) To
ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity; (b) To ensure that any person claiming such a
remedy shall have his right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy; and (c) To ensure
that the competent authorities shall enforce such remedies when granted'.
E/CN.4/2004/60/Add. 1
Page 30
Iraq
Conununication to the Government
67. On 30 June 2004, a copy of a statement was sent to the Government, originally issued as
a press release on 25 June 2004 entitled ‘Protection of human rights and fundamental freedoms
in the context of anti-terrorism measures” (see paragraph 156 for the full text of the statement).
Italy
Conununications to the Government
68. On 15 December 2004, the Special Rapporteur sent an allegation letter to the President of
Italy, Carlo Azeglio Ciampi, expressing his deep concem about the judicial reform which has
recently been approved by the Italian Parliament and was before the President for ratification.
The reform in question not only fails to address, but even runs against, the recommendations
made by the former Special Rapporteur, Dato' Param Cumaraswamy, following his visits to Italy
in March and November 2002. Further to insistent and reiterated requests by most sectors of the
Italian judiciary and constitutional lawyers, the Special Rapporteur felt bound to express his
serious apprehension about the negative impact that these reforms may have on the independence
of the judiciary in Italy. The Special Rapporteur indicated some of his specific concerns
regarding these reforms:
(a) The role of the Minister of Justice in the nomination of the Chief Prosecutor, who
will now have the power to assign cases to and withdraw them from deputy prosecutors, which
will have the effect of reducing the autonomy of deputy prosecutors and pave the way for
possible government interference;
(b) The weakening of the role and powers of the Higher Council of the Judiciary
(CSM), the independent body in charge of administering and coitrolling the judiciary, represents
a significant limitation to the guarantees of independence that, for over a decade, have been
considered to be key features of the Italian judiciary and have conferred upon Italy an enviable
international prestige and moral authority, and served as a model to other countries;
(c) Whereas qualification and merit are crucial to the judicial career, the way in
which exams are to be reintroduced may lead to a situation in which judges and prosecutors may
be bound to pass exams throughout their professional career in order to be promoted or change
their professional position. The need for judges to spend a considerable amount of their time
preparing for these exams may eventually result in further delays of an already serious judicial
backlog. In addition, the CSM will lose part of its competence over the promotion of magistrates,
as guaranteed by the Constitution, and the risk exists that the exams may be used as a means of
unduly interfering with magistrates' careers;
(d) The powers newly attributed to the Executive over the Judiciary, especially the
role of the Minister of Justice in disciplinary proceedings, are in conflict with the principle of
independence of the judiciary and, in the future, are likely to result in undue Executive
interference in the disciplinary process and decisions affecting judges.
69. In the reports on his missions to Italy (E/CN.4/2002/72/Add.3 and
E/CN.4/2003/65/Add.4), the former Special Rapporteur noted that there was reasonable cause
for the magistrates to feel that their independence was being threatened, and he rightly
recommended that all actors in the administration ofjustice, in particular the National
E/CN.4/2004/60/Add. 1
Page 31
Association of Judges (ANM) and the CSM, should be consulted and invited to collectively
address the needed reforms. One of his findings was that the administration of justice in Italy is
plagued by cumbersome and lengthy procedures resulting in undue delays in the disposal of both
civil and criminal cases. He also expressed regret that, ever since the early 1990s, when Italian
magistrates began investigating corrupt practices among public officials and prosecuted several
politicians, the tension between the executive and magistrates has steadily increased to the
detriment of the due administration ofjustice. The Special Rapporteur expressed concern that
instead of aiming at reducing this tension, which had already led to a number of magistrates'
strikes in the past two years, the reforms will only further aggravated the crisis, resulting in
another strike by both judges and lawyers in November 2004. A reason for this may be that the
above concerns and the views of magistrates' associations were broadly disregarded. The Special
Rapporteur urged the President to consider refraining from ratifying the proposed reform and to
relaunch the process, allowing for deliberation through further dialogue and consultation with all
sectors concerned, including experts in constitutional law, for a judicial reform that is consistent
with international norms and principles of an independent judiciary and preserves Italy's
reputation of high judicial standards.
Observations of the Special Rapporteur
70. The Special Rapporteur welcomed the announcement made by the President of Italy on
16 December 2004 that he had vetoed the judicial reform bill on the grounds that it was
unconstitutional. The bill, which attempted to redefine the role of magistrates, was returned to
Parliament.
Press release
71. On 17 December 2004, the Special Rapporteur issued a press release on the same issue
dealt with in his letter to the President of Italy dated 15 December 2004.
Kazakhstan
Press release
72. On 21 June 2004, following the conclusion of his visit to Kazakhstai the Special
Rapporteur issued the following press release (see E.CN.4/2005/60/Add.2):
“UNITED NATIONS EXPERT WELCOMES KAZAKHSTAN'S OPENNESS TO
FURTHER REFORMS
“The Special Rapporteur thanked the Government of Kazakhstan for their warm welcome
and for the opportunity to meet with every person he had requested to meet with. He also
expressed gratitude to the various local organizations of judges and lawyers with whom
he met for the important insight they provided. He further thanked the numerous
international organizations and local non- governmental organizations (NGO5) who met
with him and the cooperation they extended. ‘All these organizations play an important
role in the protection of human rights and have provided me with valuable information for
my report', stated Mr. Despouy.
E/CN.4/2004/60/Add. 1
Page 32
“The Special Rapporteur indicated he now had ‘a more comprehensive picture of the
country and the issues related to my mandate', in as much as was possible after a seven-
day visit. He then made a number of preliminary observations:
“1. Kazakhstan has made considerable progress in economic reforms and he noted that all
actors in the country appeared to be aware of the importance of furthering institutional
reforms, in particular judicial reforms, that were needed to match the economic
achievements;
“2. All his interlocutors showed how conscious they were of the importance of having
professional judges and wanted to increase the quality of judicial training; and
“3. All three key parties in the courtroom, the judge, the prosecutor and the lawyer, spoke
about the difficulties they each encounter and were very open about the shortcomings of
the legal system and proposed a number of changes to ensure a more transparent and
effective judiciary in the very near future.
“The Special Rapporteur ended the press briefing by saying, ‘My overall impression is
that the judicial and legal community are very aware of the progress that has already been
made and they are also very aware of the necessity for further reforms in the near future'.
“The Special Rapporteur began his mission in Almaty where he had meetings with United
Nation agencies including the United Nations Development Programme (UNDP), the
Office of the High Commissioner for Human Rights, the Office of the United Nations
High Commissioner for Refugees (UNHCR), the United Nations Development Fund for
Women (UNIFEM), the United Nations Children's Fund (UNICEF), the Organization for
the Security and Cooperation for Europe (OSCE), the European Union, the United States
Agency for International Development (USAID), the American Bar Association Central
European and Eurasian Law Initiative and other national and international NGOs and
academics. Then the Special Rapporteur travelled to Astana where he met with the
Ministers of Foreign Affairs, Justice and the Interior, and the Deputy Minister of
Education. He also had extensive consultations with the President of the Supreme Court,
the President of the Constitutional Council, the Deputy Prosecutor General, the
Ombudsmen, the National Commission on Family Issues, the National Commission on
Human Rights and a number of other judges and lawyers.”
Lebanon
Communication from the Government
73. On 24 December 2003 the Government of Lebanon responded to the urgent appeal sent
by the former Special Rapporteur on 27 December 2002 (E/CN.4/2003/65/Add. 1, para. 96)
concerning the attempt to kill Judge Fadi Nashar. The Government sent the final judgement in
which the court ruled against the perpetrator, sentencing him to a term of 18 years in prison at
hard labour. (Note: this reply was reflected in this report as it had not been translated in time to
be included in last year's report).
E/CN.4/2004/60/Add. 1
Page 33
Libyan Anib Jamahiriya
Conununication to the Govenunent
74. On 22 September 2004, the Special Rapporteur, together with the Special Rapporteur on
the question of torture, the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, the Chairperson- Rapporteur of the Working Group on
Arbitrary Detention and the Special Rapporteur on the right to everyoi to the enjoyment of the
highest attainable standard of physical and mental healtI sent an urgent appeal regarding Fathi
al-Jaluui, his wife Fawzia ‘Abdullah Gogha, and their eldest son, Muhammad Fathi a!-
Jahmi. They were taken from their home in Tripoli by the authorities on 26 March 2004 and
their arrest was allegedly linked to several media interviews given by Fathi al-Jabmi, including
to the United States-based Arabic television channel al-Hurrah and to the Dubai-based Arabic
channel al-'Arabiya, in which he called for reform within Libya. It was reported that the
authorities claimed that Fathi al-Jammi was being held for his own protection because of alleged
public outrage generated by his media interviews. During their arrest and detention Fathi al-
Jabmi, his wife and eldest son were denied access to the outside world, including to lawyers,
relatives and doctors. Fathi al-Jahmi was previously arrested in 2002 following a statement he
made at a session of the Basic People's Congress in al-Manshia, Bin Ashour, Tripoli, on 19
October 2002. At the Congress, he was reported to have stated that reform within Libya would
never take place without legal and political change such as the introduction of a constitution,
pluralism and democracy. On 10 March 2004 his case was heard before the People's Court of
Appeal and he reportedly received a suspended sentence of one year's imprisonment. According
to the information received, he was released on 12 March 2004, before being arrested again on
26 March 2004.
Malaysia
Conununications to the Government
75. On 5 May 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
and the Special Representative of the Secretary-General on the situation of the human rights
defenders regarding the arrest of P.Uthayakumar, a human rights lawyer, and of several other
people, in particular Jayathas, Ganesan, Dhaya!an, Raju, Batuma!ai, Kanthan, Devarass,
Letchuinanan, Nambirajan, Antonyanuna, during a demonstration against the alleged death in
police custody of a suspect in a theft case. On 30 April 2004, a group of 20 people gathered
outside the Brickfield police station in Kuala Lumpur to protest against police brutality, and in
particular the alleged death in custody of Francis Udayapan, and to demand to see his body. Riot
police were reportedly waiting outside the police station and while the mother of Francis
Udayapan went inside to lodge a report regarding the death of her son, police with batons
reportedly broke up the demonstration and arrested 11 of the protestors including the above-
named persons. They were allegedly released on bail shortly afterwards and were required to
report to the police on 15 May. Concern was expressed that P. Uthayakumar and other
demonstrators may have been targeted for their human rights activities, in particular their
condemnation of the death of suspects in police custody.
E/CN.4/2004/60/Add. 1
Page 34
76. On 13 May 2004 the Special Rapporteur sent another joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
the Special Representative of the Secretary. General on human rights defenders and the Special
Rapporteur on extrajudicial, summary or arbitrary executions regarding the situation of P.
Uthayakumar. Mr. Uthayakumar, who was representing the family of Francis Udayapan,
reportedly received numerous threatening phone calls related to his work and on 8 May 2004, his
brother, Wanytha Moorthy, reportedly received a call on his mobile phone from an anonymous
caller who stated that his brother should “not fool around with the police” and that if he did not
heed this warning he would be killed. On 11 May 2004 Mr. Uthayakumar was driving along
Jalan Medang in Bangsar when the windscreen and the window on the driver's side were
smashed with a sledgehammer by someone in a car driving alongside. The driver then pointed a
gun at Mr. Uthayakumar, upon which he jumped out of the passenger door and managed to
escape. He reportedly suffered injuries to his face, hands, legs and back during the incident.
Immediately after the alleged attack he filed a complaint at Brickfields police station. Mr.
Uthayakumar has filed a number of reports with the police about threatening calls that he had
received in the past but to date, no action by the police had been taken.
77. On 7 July 2004 the Special Rapporteur sent a another joint urgent appeal with the Special
Representative of the Secretary-General on the situation of human rights defenders, the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia
and related intolerance regarding P. Uthayakumar. On 20 May 2004, he was assaulted at
gunpoint by persons believed to be members of police. He sought temporary asylum in the
United Kingdom, and returned to Malaysia on 13 June 2004, with the assurances of the
Government of Malaysia that his safety wiiuld be guaranteed. Since his return,
Mr. Uthayakumar's office has been repeatedly visited by the police in response to which
Mr. Uthayakumar has lodged a complaint. The officer in charge of the Police District of
Brickfields then lodged a police report against Mr. Uthayakumar for criminal defamation of the
police. On 29 June 2004, Mr. Uthayakumar found in his letter box an envelope containing a live
bullet in a plastic casing and a note containing a death threat written on tracing paper using
letters from newspaper cuttings.
78. On 26 October 2004 the Special Rapporteur, together with the Special Rapporteur on the
question of torture, sent a joint urgent appeal concerning the continued harassment of
P. Uthayakumar thought to be linked to his work as a lawyer representing a number of clients
from the Indian minority in Malaysia. In a letter dated 21 June 2004, the Director General of
Income Tax informed Mr. Uthayakumar that he was not allowed to leave Malaysia, since he
allegedly owed income tax. On 16 July he paid the amount owed and subsequently sent three
letters asking for a certificate of release that would enable him to travel abroad again, which he
had not yet received. On 9 September 2004, Mr. Uthayakumar was arrested at his law firm in
Kuala Lumpur and brought to Brickfields police station. He was required to provide a statement
in relation to the proceedings opened against him on charges of defaming the police (see above).
He was released four hours later.
Conununications from the Govenunent
79. On 14 June 2004 the Government replied to the Special Rapporteurs' joint urgent appeal
of 5 May 2004, advising that on 29 April 2004 between 30 and 40 men and women had gathered
E/CN.4/2004/60/Add. 1
Page 35
outside Brickfields District Police Headquarters, carrying placards as well as a replica of a
coffin. Members of the group made speeches calling for the District Police Chief to be
suspended from his duties. Police officers warned the group to disperse since a demonstration
without legal permit was considered an illegal assembly. After having given three orders to
disperse, the police officers moved in to arrest those members of the group who had refused.
Eleven men and one woman were arrested and nine posters, three photographs of an Indian man
and the replica of the coffin were confiscated. Those arrested were released on bail the next day.
80. On 7 October 2004 the Government replied to the Special Rapporteurs' joint urgent
appeal of 7 July 2004 and advised that P. Uthayakumar had lodged a police report on 27 April
2004 claiming that the Brickfields police personnel had vandalized his car because of a legal
case he was working on. He requested around-the-clock police protection as he believed in was
in grave danger. An investigation was launched but no fingerprints were found on the car other
than Mr. Uthayakumar's and he refused to make any statement under section 112 of the Criminal
Procedure Code and no further evidence was found. The investigation was referred to the Office
of the Public Prosecutor and the Deputy Prosecutor closed the case as there were no suspects.
Mr. Uthayakumar filed another report on 10 May 2004 concerning an incident in which he was
beaten up by a group of men and again he alleged that the police were behind the attack. An
investigation was initiated but hampered because Mr. Uthayakumar again refused to make a
statement. On 17 June 2004 Mr. Uthayakumar was subpoenaed, pursuant to section 112 of the
Criminal Procedure Ordinance, in order to record his statement but Mr. Uthayakumar failed to
attend the police station. On 27 August 2004 the Kuala Lumpur Magistrates Court issued a
warrant to ensure Mr. Uthayakumar's compliance and he was picked up on 9 September, his
statement taken and released that same day. The Government stated that Mr. Uthayakumar's
rights were not violated and the allegations of police involvement against Mr. Uthayakumar for
his legal work against certain members of the police were thoroughly investigated. The
Government said it examined very seriously cases involving abuse of power or crimes
committed by police personnel. In 2003 alone, 41 members of the police force were charged and
a further 78 policemen were either suspended or dismissed from the force as a result of
investigations.
81. On 22 December 2004 the Government replied to the Special Rapporteurs' joint urgent
appeal of 26 October 2004 and stated that the Government failed to see how the execution of a
warrant, issued by the country's independent judiciary, for Mr. P. Uthayakumar's failure to
respond to a subpoena can be construed as a violation of his basic human rights. Further,
Mr. Uthayakumar's travel remains restricted since he has only paid part of the amount owed to
the Inland Revenue Board. This was a routine procedure, applicable to all taxpayers and in
accordance with subsection 104(1) of the Malaysian Immigration Department's Suspected List.
For Mr. Uthayakumar to travel overseas again he will need to submit a release letter to the
Immigration Department from the Inland Revue Board that he has paid the arrears in full.
Observations of the Special Rapporteur
82. The Special Rapporteur thanks the Government for its responses on the case of
Mr. P. Uthayakumar.
83. The Special Rapporteur welcomes the decision of Malaysia's highest court, the Federal
Court, to overturn the sodomy conviction of former Deputy Prime Minister Anwar Ibrahim
E/CN.4/2004/60/Add. 1
Page 36
(E.CN.4/2003/65/Add. 1, paras. 104-112) in a trial that was marred by serious due process
violations; the ruling also highlighted the issue of police abuse to elicit confessions. However,
the Special Rapporteur continues to be concerned about numerous ongoing cases that were
initiated under the Internal Security Act, under which Mr. Ibrahim was originally detained, as
detainees can be held for years without charge or trial.
Maldives
Communication to the Government
84. On 6 October 2004 the Special Rapporteur sent a joint urgent appeal together with the
Special Rapporteur on the question of torture, the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression, the Chairperson-Rapporteur of the
Working Group on Arbitrary Detention, the Special Rapporteur on violence against women, its
causes and its consequences, and Special Representative of the Secretary-General on the
situation of human rights defenders concerning Ismail Asif and Jennifer Latheet employees of
a television station who had been working to draw public attentionto human rights concerns.
Mr. Asif, also an activist for the political opposition, was arrested at his home on 17 September
2004 and was reportedly being held without charge and denied access to a lawyer. It was also
alleged that he was arrested because of his involvement in a civil society network that monitors
the conditions of detention of those arrested following the August demonstrations to ensure that
their human rights are protected. From mid-August 2004 until his arrest, Mr. Asif had been
interviewing those who had been released from detention to document human rights violations
against detainees and has been helping the families of the detainees to draft letters to the
authorities requesting the right to visit the detainees. Ms. Latheef, who has particularly focused
on the prevalence of sexual abuse in the country, was reportedly arrested in front of the National
Security Services (NSS) on 13 August 2004, as government forces broke up a demonstration
with baton charges and tear gas. It was also reported that during her detention, the police kicked
her in the back numerous times whilst she was blindfolded.
Communication from the Government
85. In 27 October 2004 the Government replied to the Special Rapporteurs' joint urgent
appeal of 6 October 2004 and clarified the issue of the detainees and advised about the positive
steps it had taken to improve the criminal justice system. Regarding Jennifer Lathe if, she was
arrested on 13 August 2004 in connection with an investigation into mob violence and was
transferred to house arrest on 26 October. The Government will file charges against Ms. Latheif
shortly and she will be provided with a fair and impartial hearing. Regarding Ismail Asif, he was
arrested on 17 August as a result of the same investigation. His arrest has nothing to do with his
involvement in a civil society network. He was detained and when investigations are complete he
will either be charged or released. The right to legal counsel is guaranteed by article 16(2) of the
Constitution. In April 2004, the right to legal representation was extended to the investigative
stage so that now legal representation is available from the time of arrest to the conclusion of
judicial proceedings. The Government advised it is fully committed to upholding the rule of law
and internationally recognized legal principles guaranteeing human rights and fundamental
freedoms.
E/CN.4/2004/60/Add. 1
Page 37
Mexico
Comunicaciones enviadas a! Gobierno
86. El 3 de agosto de 2004, ci Relator Especial, junto con ci Relator Especial sobre la
cuestión de la tortura y ci Relator Especial sobre la situación de los derechos humanos y
libertades fundamentales de los indIgenas, envió un ilamamiento urgente relativo a la situación
de inseguridad, peligro e indefension judicial que estarIan viviendo la señora Cannela C. y sus
dos hijos, F.P.C. y N.P.C., de 10 y de 8 afios de edad respectivamente, indIgenas Na Saavi
(mixtecos) del municipio de Metiatonoc, en ci Estado de Guerrero. Dc acuerdo con la
información recibida, a raIz de una denuncia del particular Sr. Lorenzo Guerrero Vásquez, ci
17 de abril de 2004 la pohcIa preventiva de Metiatonoc, ci SIndico Procurador Municipal, ci
Director de Seguridad Pübiica y ci Sr. Lorenzo Guerrero Vásquez se habrIan personado donde se
hailaban los menores, acusándoies de un delito de robo que éstos afirmaban no haber cometido, y
los habrIan ilevados a las oficinas dci SIndico Procurador Municipal. N.P.C. habrIa estado
retenida 20 Iriras en la carcei municipal y F.P.C. lo habrIa estado seis dIas, durante los cuales
habrIa sido sometido a impedimento dci sueño y a amenazas de palizas y eiectrocucion, con ci
objetivo de sonsacarie una deciaracion autoincuipatorio. Tras la intervención dci Juez de Paz dci
municipio, ci niño habrIa sido liberado. Una vez en casa, los niños habrIan sido agredidos por ci
mismo particular que ics habrIa pegado con una vara, sobretodo en la cabeza y en la espaida. Los
goipes habrIan ocasionado a F.P.C. una apertura en la parte posterior de la cabeza. La señora
Carmela C. habrIa interpuesto una denuncia penal por los delitos de privación ilegal de la
hbertad, tortura, abuso de autoridad, lesiones e intimidacion. Seguidamente, se habrIa abierto una
investigación en contra de los funcionarios municipaics y un medico forense habrIa certificado
las lesiones supuestamente infringidas a los dos menores. Sin embargo, tanto la denuncia como
la investigación habrIan encontrado la oposición dci Ministerio Pübiico de la ciudad de Tiapa de
Comonfort. Por otra parte, se informa que la Sra. Carmela C. y sus hijos estarIan siendo objeto
de nuevas intimidaciones y amenazas por parte dci Sr. Guerrero y miembros de su familia. A la
iuz de la supuesta detencion y agresión, ci 30 de abril de 2004, contra los dos menores y las
amenazas que han recibido despu Cs de haber presentado una denuncia, se han expresado temores
por la seguridad y la integridad fIsica y mental por ambos niños y su madre.
87. El 23 de agosto de 2004, ci Relator Especial, junto al Relator Especial sobre la cuestión
de la tortura y ci Relator Especial sobre la situación de los derechos humanos y libertades
fundamentaics de los indIgenas, envió un ilamamiento urgente en reiacion a la situación de
Eduardo Hernández SáncI z, un indIgena tsotsii de 19 años de edad, Carlos Navarro Pére
un indIgena tzeitai de 23 años de edad, Enrique Hernández Ramos y su madre, Romelia
Ramos Bermüdez, Heriberto Gómez Coello, abogado, Maria del Carmen Grajales
Castillejos, abogada, y Carlos Alberto Velasco. Dc acuerdo con la información recibida,
Eduardo Hernandez habrIa sido detenido en San Cristobai de las Casas, Estado de Chiapas, ci
5 de enero de 2004. En dependencias pohciaies habrIa sido sometido a actos de tortura y otras
formas de malos tratos. Eduardo Hernandez habrIa sido acusado de estar imphcado en ci
homicidio cometido en diciembre de 2003, y encarcelado ci 9 de enero de 2004. El 24 de enero
de 2004, Carios Navarro habrIa sido detenido sin orden judicial en San Cristobai de las Casas y
conducido a la SubprocuradurIa para ser interrogado sobre ci mismo homicidio. TambiCn habrIa
sido interrogado en un furgon, donde habrIa sido goipeado repetidamente y, en dos ocasiones, ic
habrIan cubierto la cara con una boisa de piastico. A la segunda vez, habrIa perdido ci
conocimiento. HabrIa sido conducido a la ProcuradurIa dci Estado de Tuxtia GutiCrrez, donde
E/CN.4/2004/60/Add. 1
Page 38
habrIa sido interrogado nuevamente y sometido a mas golpizas en presencia de 10 policias y un
miembro del Ministerio Püblico. El 26 de enero de 2004 habrIa sido obligado a firmar una
confesión en la que habrIa reconocido haber participado en el asesinato, implicado a Eduardo
Hernández, y afirmado que dicho asesinato habIa sido ordenado por Romelia Bermüdez y
Enrique Hernández. Ese mismo dia, Carlos Navarro habrIa sido encarcelado y Romelia
Bermüdez detenida. Enrique Hernandez habrIa sido detenido el 15 de abril de 2004 en la Ciudad
de Mexico y trasladado al Aeropuerto de la Ciudad de Mexico. Alli habrIa sido atado en posturas
forzadas, tales como acostado en la cama inferior de una litera, con el brazo estirado y la mano
izquierda esposada a un tubo de la litera durante mas de siete horas. Actualmente Eduardo
Hernandez, Carlos Navarro, Romelia Bermüdez y Enrique Hernandez se encontrarian en d
Centro de Readaptacion Social (CERESO) 14 en Cintapala, Estado de Chiapas.
88. El 11 de agosto de 2004, los abogados que representaban a estas cuatro personas,
Heriberto Gómez y Maria del Carmen Grajales, habrIan sido detenidos por la policia en el
municipio de Cintapala. Ambos habrian sido acusados de falsedad de declaraciones en grado de
tentativa. Se han expresado temores que ello pueda ser un intento de impedirles defender a sus
clientes. Maria del Carmen Grajales habria sido puesta en libertad bajo fianza el 12 de agosto,
pero Heriberto Gómez seguiria encarcelado en Cintapala, pues no podria permitirse el pago de
una fianza. Carlos Alberto Velasco tambiCn habria sido detenido por la policia clii de agosto de
2004. SegUn el Ministerio Püblico habria presenciado cómo Eduardo Hernandez habia cometido
el homicidio. Sin embargo, Carlos Alberto Velasco habria declarado ante unjuez que Cl no
estaba presente en el momento de los disparos y que no sabia quien habia cometido el crimen.
Seguidamente habria sido acusado de falsedad de declaracion. A la luz de estas alegaciones, se
han expresado temores por la seguridad e integrad fisica y psicologica de las personas
antemencionadas que permanecerian en detencion.
89. El 1 de septiembre de 2004, el Relator Especial, junto con el Relator Especial sobre la
promoción y protección del derecho a la libertad de opinion y de expresión, envió un
llamamiento urgente relativo a los altercados producidos y las denuncias de violacion de los
derechos humanos formuladas en el marco de la pasada cumbre UE-AmCrica Latina. Dc acuerdo
con las informaciones recibidas, entre 6 y 19 personas habrian sido torturadas antes y despu Cs de
la manifestacion de 28 de mayo de 2004 que acabo con iii detenidos. Supuestamente se habrian
formulado tambiCn amenazas de muerte y se habria incurrido en irregularidades procesales con
el fin de o bien amedrentar, o bien criminalizar a los manifestantes. Por otro lado, tambiCn se
recibieron denuncias afirmando que agentes de seguridad se habrian infiltrado entre los
manifestantes con el fin de crear un estado de confusion y violencia que sirviera de pretexto a los
agentes antidisturbios uniformados para intervenir con dureza. El Gobernador del Estado de
Jalisco, en cuya capital Guadalajara se celebro la III Cumbre de America Latina, Caribe y la
Union Europea, habria decidido junto al Ayuntamiento de dicha ciudad, no investigar las
denuncias de vulneracion de los derechos humanos por parte de las fuerzas de seguridad sobre
los manifestantes alli congregados. Asimismo, tampoco la supuesta implicacion policial en el
origen de alguno de los altercados seria investigada. Dicha decision resulta preocupante en modo
sumo atendiendo al informe del pasado 16 de agosto la ComisiOn Nacional de derechos
Humanos, organismo püblico que denuncia en dicho informe que la policia de Guadalajara
cometiO graves violaciones de los derechos humanos. Asi, de acuerdo con la ComisiOn Nacional
de Derechos Humanos, los derechos a la libertad de movimiento y a no sufrir torturas ni tratos
inhumanos o degradantes habrian sido violados mediante el recurso a detenciones arbitrarias y
vejaciones fisicas y psicolOgicas de diversa gravedad sobre los manifestantes.
E/CN.4/2004/60/Add. 1
Page 39
Respuestas del Gobierno
90. Mediante comunicación de 5 de enero del 2004, ci Gobierno proporcionó informacion en
reiacion con ci ilamamiento urgente enviado ci 6 de marzo de 2003 con respecto a la situación de
Samuel Alonso Casteilanos Piñon. En su respuesta ci Gobierno informo acerca de las medidas
protectoras adoptadas en favor del Sr. Samuel Alonso Casteilanos Piñon y de la Sra. Beatriz
Casas Areilanos. Dichas medidas cautelares consistieron en incrementar los recorridos de
vigilancia ya impiementados, y en asignar permanentemente, en horario laboral, a un elemento
de ia Policia Auxiliar. Asimismo, ci Gobierno comunicó su compromiso de revisar
periodicamente ci buen funcionamiento de las medidas acordadas.
91. Mediante comunicación dci 2 de septiembre de 2004, ci Gobierno proporcionó
información en reiacion al ilamamiento urgente enviado ci 3 de agosto en reiacion a la situación
de la Sra. Carmela C. y sus dos hijos, F.P.C. y N.P.C. En este contexto, ci Gobierno informo que
se dio inicio a una averiguación previa por los delitos de lesiones, privación de libertad personal,
amenazas, ailanamiento de morada e intimidacion en contra dci Sindico Procurador General, dci
Director de Seguridad Pübiica, elementos de la Policia Preventiva Municipal y de Lorenzo
Guerrero Vázquez.
92. Mediante comunicación dci 4 de noviembre de 2004, ci Gobierno proporcionó
información en reiacion al ilamamiento urgente enviado ci 23 de agosto de 2004 en reiacion a la
situación de Eduardo Hernandez Sanchez, Carios Navarro Perez, Enrique Hernandez Ramos,
Romelia Ramos Bermüdez, Heriberto Gómez Coello, Maria dci Carmen Grajaics Castiliejos y
Carios Aiberto Velasco. El Gobierno informo que, en reiacion a la muerte ci 9 de diciembre de
2003 en San Cristobai de las Casas dci profesor Antonio de Jesus Gómez Lopez, se dio inicio a
varias diligencias, que ilevaron fehacientemente a determinar que aiguien apodado “Lab” habia
asesinado al mencionado profesor. A continuación, un informe policial señaio que ci
sobrenombre de “Lab” correspondia a Eduardo Hernandez Sanchez, quien trabajaba en la tienda
regentada por Hemandez Ramos y Romelia Ramos Bermüdez. Con los datos mencionados, la
policia procedio a detener a Eduardo Hernandez Sanchez, quien pese a intentarlo, no iogro darse
a la fuga. En ci momento de su detencion se ic incautó un arma con cuatro cartuchos percutidos y
se procedio a supuesta a disposicion dci Ministerio Pübiico de San Cristobai. Una vez trasiadado
a Tuxia GutiCrrez, se ic puso a disposicion de la brigada de homicidios y presto deciaracion
asistido dci abogado de su eieccion. En su deciaracion, Eduardo Hernandez Sanchez desmintio la
acusación pero afirmo en cambio que en ci pasado se habia enemistado con ci director de la
escuela y que ci mismo dia dci asesinato habia acudido a la escuela para intentar restabiecer una
buena reiacion. El mismo dia se ievanto fe ministerial acerca de la integridad fisica de Eduardo
Hernandez Sanchez, lo que se repitió horas mas tarde con ci mismo resuitado positivo. Con
posterioridad, distintos testigos coincidieron en señaiar que Eduardo Hernandez Sanchez era la
persona que habia preguntado por ci director y que habian visto por los airededores dci lugar de
los acontecimientos, por la que se procedio a la consignación de Eduardo Sanchez como autor
material dci asesinato. Posteriores investigaciones ilevaron a consignar a Carios Navarro Perez,
Enrique Hernandez Ramos y Romelia Hernandez Bermüdez, ci primero como participe y los
segundos como autores intelectuales dci homicidio calificado dci profesor. El Gobierno negó que
se torturara a Eduardo Sanchez Hernandez, en primer lugar, por la ilegalidad dci mCtodo, y en
segundo lugar, porque de la detencion se reaiizo ci dia anterior a lo que afirma la presunta
victima. El Gobiemo afirmó que entre su detencion y trasiado ante ci Ministerio Pübiico
E/CN.4/2004/60/Add. 1
Page 40
transcurrió tan solo una hora, tiempo en el cual habrIa sido imposible torturarlo como afirmaba.
Por otro lado, la tortura para extraer la confesion no habrIa tenido sentido, ya que la ünica
declaracion valida en el sistema mexicano es la que se produce ante el Juez o el Ministerio
Püblico. Ademas, dicha autoinculpacion no era necesaria, por cuanto los testigos habIan
proporcionado las certezas suficientes. A todo ello debe afladirse el hecho de que declaro ante el
abogado de su eleccion y que las pruebas médicas que se le practicaron concluyeron que no
habIa lesiones recientes en su cuerpo.
Nepal
Conununications to the Government
93. On 24 February 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expressioi
the Special Rapporteur on the question of torture and the Chairperson-Rapporteur of the
Working Group on Arbitrary Detention concerning two lawyers, Bal Krishana Devkota and
Dhananjaya Khanal, who were reportedly arrested on 21 February 2004 in separate incidents.
Three security personnel in plain clothes came to Mr. Devkota's house in Sita Paila VDC Ward
No.2 Kathmandu, and started questioning him. Mr. Devkota replied that he was a lawyer at the
Supreme Court. His house was then searched and he was taken away for further questioning. His
whereabouts have been unknown since then. In a separate incident, Mr. Khanal was reportedly
arrested by a group of army personnel at his residence in Sanepa-2 Lalitpu, Kathmandu.
Mr. Khanal is from Tanahun district and has been working as a lawyer with the Central Legal
Service, Maitighar Kathmandu. His whereabouts have also reportedly been unknown since his
arrest. A number of lawyers have reportedly been arrested in recent months. There was concern
that these lawyers were possibly targeted by the authorities for being “associated” with their
clients, reportedly charged under the provisions of the anti-terrorist legislation of Nepal (TADA).
94. On 26 April 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
and the Special Rapporteur on the question of torture concerning the situation of Koirala Girija
Prasad, President of the Nepali Congress, and lawyers Shyam Kuinar Shrestha, Gopi Krishna
Thapaliya, Gopi Bahadur Bhandar, Basudev Sigdel, Krishna Silwal, Laxman Prasar Ayral
and Jeetaman Basnet On 8 April 2004, an order banning public demonstrations and the
assembly of more than five persons within the Kathmandu Ring Road and the Lalitpur areas was
allegedly issued by the Kathmandu District Administration. Following this, lawyers, journalists
and other people demonstrating to protest against the current situation in the country have
reportedly been violently repressed. On 9 April, several hundred lawyers were arrested and
subsequently released following a demonstration. On 11 April 2004, the security forces allegedly
released 50 journalists after detaining them for two hours in Kathmandu. It was believed that
these journalists were taking part in a protest against the 8 April renewal of the Government's
prohibition of public assemblies of more than five people. It was also reported that in the
afternoon of 15 April 2004, over 1,000 peaceful demonstrators were arrested and held in
warehouses and other overcrowded and unsanitary locations unsuitable for the detention of
prisoners — in many cases for a number of days — before being released without charge. In
addition, it is believed that three students and 11 political party members, who reportedly
participated in the protests, including the President of the Nepali Congress, Girija Prasad
Koirala, were held in preventive custody under the Public Security Act. It was also alleged that
E/CN.4/2004/60/Add. 1
Page 41
some of those arrested continue to be held incommunicado. According to additional reports, 200
journalists from different locations in Kathmandu were arrested by the security forces on
17 April 2004 and held at several detention centres before being released the same day. It is
reported that the journalists were protesting the alleged detention of 74 journalists who were
arrested on 16 April 2004 while reporting on a protest organized by the five main political
parties. On 21 April 2004, it is reported that 300- 500 lawyers were arrested during a peaceful
demonstration in Katbmandu, organized by the Nepal Bar Association. The demonstration was
in protest against the Government's decision to prohibit all demonstrations and to denounce the
restriction on the right to peaceful assembly. Reportedly, the lawyers were arrested and taken to
Mahindra Police Club where they were subsequently released but were not able to seek legal
representation during the time of their arrest. It appeared that lawyers and journalists in Nepal
were subject to an increasing number of incidents of harassment and interference in their
professional activities.
95. On 6 August 2004 the Special Rapporteur, with the Chairperson-Rapporteur of the
Working Group on Arbitrary Detention, sent a joint urgent appeal regarding Upendra
Timilsena, detained at Mahabir Guan Himalaya Barrack, Chauni Kathmandu, despite a Supreme
Court order of 23 July 2004 to the Chief District Officer, Katbmandu, to release him
immediately. Mr. Timilsena was reportedly illegally arrested by security personnel on 8 June
2004. For the past several months there have reportedly been a number of cases of members of
the army and the police re-arresting people immediately after they are released by court orders,
or of persons continuing to be detained in spite of a court order to release them. There is a real
concern that the security forces are trying to undermine and weaken the authority of the judiciary
by not obeying court orders.
96. On 29 September 2004, the Special Rapporteur sent ajoint urgent appeal with the Special
Rapporteur on the question of torture regarding Govinda Damal, who had been reportedly
rearrested and was feared to have “disappeared” on the same day he was released from illegal
detention. On 19 July 2004, Mr. Damai, from Kohalpur-5, Banke district, was arrested by armed
security forces from Rajhena, Banke, and on 23 July was detained on a three-month preventative
detention order pursuant to the Public Security Act. On 26 September the Appellate Court,
Nepalgunj, ruled that Mr. Damai had been illegally detained and ordered his release. However,
on 27 September Mr. Damai was re-arrested and taken away by security forces and his
whereabouts are unknown. The District Police Office, Banke, has denied knowledge of his
detention.
97. On 29 September 2004, the Special Rapporteur sent a joint urgent appeal with the
Chairperson-Rapporteur of the Working Group on Arbitrary Detention and the Special
Rapporteur on the question of torture regarding Jimdar Kewat and his father, Keshu Ram
Kewat, both residents of Betahani village, Banke district. According to the allegations received,
Jimdar Kewat and Keshu Ram Kewat were arrested by the army on 15 April 2004 in Nepalgunj,
Banke. They were blindfolded and put into an army vehicle and taken to Fultekra barracks.
During the first four days of their detention they were kept blindfolded, beaten with wooden
sticks and electric wires, and questioned about the activities of Maoist forces. They were not
given access to their family members, lawyers and medical services. On 31 May 2004 the army
handed them over to the District Police Office, Banke, and they were detained under the Public
Security Act until 19 September 2004, when the Nepalgunj Appellate Court ordered their
release. However, on 20 September their lawyers and family members were informed that Keshu
E/CN.4/2004/60/Add. 1
Page 42
Ram Kewat and Jimdar Kewat had been re-arrested by the police. They were detained in the
Wada Police Office, Nepalgunj. Concern was expressed for their physical and mental integrity.
Communications from the Govermnent
98. On 23 December the Government replied to the Special Rapporteurs' joint urgent appeal
of 29 September 2004 and advised that both Jimdar Kewat and Keshue Ram Kweat were
detained pursuant to TADA and held at the District Prison in Nepalgunj, Baanke.
Press release
99. On 14 July 2004, the Special Rapporteur, jointly with other Special Rapporteurs and
Independent Experts, issued the following press release:
“UN COMMISSION ON HUMAN RIGHTS EXPERTS REITERATE GRAVE
CONCERN OVER SITUATION IN NEPAL
“The following statement was issued today by the Special Rapporteur on torture, Theo
van Boven; the Special Rapporteur on violence against women, Yakin Erturk; the Special
Rapporteur on extrajudicial, summaiy and arbitrary executions, Asma Jahangir, the
Special Rapporteur on the independence ofjudges and lawyers, Leandro Despouy; the
Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Ambeyi Ligabo; the Special Representative of the Secretary-General on
human rights defenders, Hina Jilani; the Chair of the Working Group on Enforced or
Involuntary Disappearances, Diego Garcia-Sayán, and the Chairperson-Rapporteur of
the Working Group on Arbitrary Detention, Lella Zerrougui:
“Eight independent experts of the United Nations Commission on Human Rights reiterate
today their serious concern regarding the extremely grave human rights situation in
Nepal.
“The experts indicate that since the beginning of 2004, they have transmitted 146 urgent
appeals and other communications to the Government of Nepal regarding reported
violations of human rights. Many of the communications concern individuals arrested by
security personnel, often on suspicion of supporting or being involved with activities of
Maoist groups. It is reported that these individuals are subsequently taken to undisclosed
locations, which puts the detainees at risk of being tortured or of suffering other forms of
cruel, inhuman or degrading treatment, including rape. The experts regret that the
Government has failed to respond many of their appeals, and that it has provided virtually
no information on the fate or location of people detained in unknown locations. The
experts recall their previous public statements on human rights violations in Nepal issued
on 12 November 2003 and 9 March 2004, as well as statements by the former acting
High Commissioner for Human Rights made in the last year.
“The experts also express serious concern over the significant increase in reports of
abuses and attacks against civilians by insurgents.
“The independent experts acknowledge the Government's Commitment on the
E/CN.4/2004/60/Add. 1
Page 43
Implementation of Human Rights and International Humanitarian Law announced on
26 March 2004. They strongly urge the Government to live up to its commitments and
implement fully and without delay the 25 undertakings contained in this most important
document. They welcome the establishment of an investigative commission under the
Ministry of Home Affairs to probe the cases of disappearances, in accordance with point
22 of the Government's Commitment. They emphasize the need for the Investigative
Commission to address the serious issue of disappearances immediately.
“The experts again urge all parties to the conflict to find a peaceful solution that would
put an end to the widespread suffering in Nepal. In particular, the experts take this
opportunity to urge the Royal Nepalese Army to cooperate with the courts and the
National Human Rights Commission in providing information about the conditions and
whereabouts of those held in its custody.
“They recall Article 3 common to the four 1949 Geneva Conventions, which is binding
on all parties to a non- international conflict, and enshrines the protection of life and the
physical integrity of the human person, including the prohibition of cruel treatment and
torture at any time in any place. Article 3 applies to all persons taking no active part in
the hostilities, including members of the armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention, or any other cause. The
experts also refer to international human rights norms that strictly prohibit the use of
torture and other forms of ill-treatment under any circumstances. They recall that
according to these general principles of international law, rape during armed conflict is
considered to be a war crime and states have an affirmative duty to prevent, punish and
prosecute perpetrators of such crimes at all times.
“The independent experts call on all parties to the conflict to comply strictly with these
international human rights and humanitarian norms.”
Observations of the Special Rapporteur
100. The Special Rapporteur regrets that he has received very little information from the
Government on the status of the above-noted cases. He continues to be extremely concerned
about the deteriorating human rights situation in Nepal.
Panama
Comuuicación enviada al Gobierno
101. El 28 dejulio de 2004, el Relator Especial envió una carta de alegacion expresando su
preocupación por la informacion recibida conforme a la cual el Gobierno de Panama está
estudiando la denuncia de la Convención sobre los Derechos del Niflo para emprender una
reforma legal que permita imponer a menores de edad sentencias de mayor duracion y la
aplicacion de la pena de muerte a dichos menores.
E/CN.4/2004/60/Add. 1
Page 44
Respuesta del Gobierno
102. El 29 de Julio de 2004 el Gobierno respondio ala carta de alegacion enviada por el
Relator Especial el 28 de Julio de 2004. El Gobierno remitió información relativa al proyecto de
ley enmarcado en el plan “Mano Dura”, incluyendo el propio proyecto de ley original, las
discusiones que al respecto mantuvo la Comisión de los Asuntos de la Mujer, Derechos de la
Niflez, la Juventud y la Familia, y el proyecto de ley enmendado de acuerdo con lo dispuesto por
la Comisión de los Asuntos de la Mujer, Derechos de la Niflez, la Juventud y la Familia. AsI,
mientras en el proyecto de ley original se preveIan penas de hasta 20 aims para los menores que
cometieran aquellos delitos más graves, en el proyecto de ley enmendado contempla penas de
hasta 10 aims.
Peril
Comunicaciones enviadas ad Gobierno
103. El 7 de septiembre de 2004, el Relator Especial, Junto con la Relatora Especial sobre las
eJecuciones extraJudiciales, sumarias o arbitrarias, el Relator Especial sobre la promoción y
protección del derecho a la libertad de opinion y expresión, el Representante Especial del
Secretario General sobre la situación de los defensores de los derechos humanos y el Relator
Especial sobre la cuestión de la tortura, envió un llamamiento urgente en relacion con Luis
Alberto RaniIrez Hinostroza, quien fue vIctima de tortura durante la dictadura militar y es
actualmente uno de los testigos principales ante la Comisión de la Verdad y Reconciliacion del
Per U y en el proceso Judicial contra un general retirado acusado de la desaparicion forzada de
nueve personas en 1991. D c acuerdo con la informacion recibida, Luis Alberto RamIrez
Hinostroza habrIa recibido amenazas de muerte y ataques contra su persona en varias ocasiones
durante los Ultimos meses. El 13 de marzo de 2004, cuatro individuos habrIan disparado contra él
llamándole “bocon” mientras le perseguIan. El 6 de mayo habrIa recibido una carta con
amenazas Junto con dos fotograflas de su hiJa y su esposa. En Julio del mismo aim, habrIa
recibido otras amenazas de muerte en su casa. En otra ocasión, cuando visitó el lugar donde
habrIa sido torturado aims atras, unos soldados lo habrIan fotografiado y amenazado con
detenerle. A finales de agosto de 2004, Luis Alberto RamIrez Hinostroza habrIa notado que
alguien le estaba siguiendo. Seguidamente habrIa solicitado ayuda ante la procuradurIa de
Huancayo. Sin embargo, le habrIan informado que el funcionario solicitado no se encontraba y
habrIa tenido que irse sin protección policial. Dos dIas mas tarde, el 30 de agosto, un ho mbre y
una muJer le habrIan disparado desde un vehIculo negro cerca de su casa, en El Tambo,
Huancayo. Luis Alberto RamIrez Hinostroza habrIa resultado herido en el estómago y habrIa
sido conducido al Hospital El Carmen, donde habrIa sido operado. Antes del Ultimo ataque,
habrIa recibido una carta oficial en la que se le indicaba que se le otorgaban garantIas personales,
pero no se le habrIa proporcionado asistencia fIsica. Durante su estancia en el hospital dos
agentes de policIa estarIan encargados de su seguridad; sin embargo, no se le habrIan garantizado
la asistencia de guardaespaldas para mas adelante.
104. El 22 de noviembre de 2004, el Relator Especial, Junto con el Relator Especial sobre la
promoción del derecho a la libertad de opinion y de expresión y el Representante Especial del
Secretario General sobre la situación de los defensores de los derechos humanos, envió un
llamamiento urgente en relacion con la situación de Gloria Cano, abogada y defensora de los
derechos humanos de la organización no gubernamental Asociación Pro Derechos Humanos
E/CN.4/2004/60/Add. 1
Page 45
(APRODEH), quien habrIa recibido una amenaza de muerte. Gloria Cano habrIa sido también
vIctima de un acto de intimidacion en enero de 2003, cuando habrIa sido rodeada, insultada y
golpeada por un grupo de individws no identificados delante de las oficinas de APRODEH.
Gloria Cano denuncio la amenaza de muerte ante la FiscalIa de la Nación, el 25 de octubre. La
Comisión Interamericana de Derechos Humanos ha pedido al Estado peruano que les informe
cuales medidas está tomando para investigar esta denuncia. Segün se informa, Gloria Cano
recibio la amenaza al dIa siguiente de la publicacion de un comunicado de prensa de APRODEH
que mostraba su preocupación por la excarcelacion de Vladimiro Montesinos (cx asesor
presideitial sobre inteligencia), Nicolás Hermoza RIos (cx comandante en jefe de las fuerzas
armadas) y Roberto Huamán Azcurra (cx director del Servicio de Inteligencia Militar - SIE), que
habIan permanecido detenidos los ültimos 18 meses por su presunta implicacion en el homicidio
de tres miembros del grupo armado de oposición Movimiento Revolucionario Tüpac Amaru
(MRTA) durante una operación militar de 1997. Los acusados habrIan sido excarcelados porque,
a causa de las demoras en el juicio, habIan excedido el plazo máximo de detencion preventiva
permitido por la ley. Gloria Cano es el abogado de las familias de las vIctimas desde 2001 y se
supone que las amenazas recibidas estén relacionadas con su trabajo de abogado y defensor de
los derechos humanos en relacion con este caso.
105. El 28 de diciembre de 2004, el Relator Especial, junto con el Representante Especial del
Secretario General sobre la situación de los defensores de los derechos humanos, envió un
llamamiento urgente en relacion con la situación de Henry Cama Godoy, Fiscal Provincial
Titular de la FiscalIa Provincial Mixta de Chincha, quien habrIa recibido amenazas. Dc acuerdo
con las informaciones recibidas, el 3 de febrero de 2004, el Sr. Cama Godoy habrIa formalizado
denuncia penal contra Ricardo Enrique Guillén BalbIn, Mayor PNP Jefe del Departamento de
Investigación Policial y Prevención de Chincha, por los delitos de tortura, usurpación de
funciones, desobediencia a la autoridad y abuso de autoridad en agravio de Pablo Fabio Sanchez
Conde. El agraviado, al revisar el expediente, se habrIa encontrado con una declaracion jurada,
firmada supuestamente por él, por la cual se desistIa de la denuncia y afirmaba que la denuncia
fiscal era totalmente falsa. El agraviado no habrIa reconocido como suya la firma ni la huella
digital de la declaracion jurada, firmada también por el abogado Dario Armando Viteri Ormeflo.
El Sr. Cama Godoy, ante esta evidencia, habrIa solicitado al Juez Penal que se remitieran copias
certificadas de las piezas del proceso a la fiscalIa de turno para la investigación que corresponde.
A partir de ese momento, el Sr. Cama Godoy habrIa empezado a recibir llamadas amenazadoras
a su teléfono celular, pese a haber cambiado de nümero, y al teléfono de su despacho, asI como
denuncias penales en su contra. El 5 de diciembre 2004, aproximadamente a las 9.30 de la noche,
el personal de seguridad del Ministerio Püblico de Chincha habrIa recibido una llamada
telefonica, pidiendo se comunicara al Sr. Cama Godoy el siguiente mensaje: “Dile a ese doctor
que deje el caso que esta viendo o de lo contrario se vajoder”. Al dIa siguiente, el asistente del
Sr. Cama Godoy, Américo Mendoza Mufloz, habrIa recibido une llamada telefonica a las 8.50 de
la maflana, escuchando una voz masculina que le dijo: “Dile a ese fiscal de mierda que de parte
del Dr. Viteri si no se aparta de ese proceso lo vamos ajoder”. También, el 29 de noviembre de
2004, el abogado DarIo Armando Viteri Ormeflo habrIa denunciado ante la comisarIa de Chincha
que dos sujetos desconocidos habIan incursionado en su domicilio de parte del Sr. Cama Godoy,
con la finalidad de coaccionarlo y que acepte haber sido el autor de la falsificacion denunciada.
Estas amenazas han generado que el fiscal habrIa tenido que retirar de Chincha a su familia por
razones de seguridad y, finalmente, el 6 de diciembre, habrIa tenido que excusarse del proceso.
E/CN.4/2004/60/Add. 1
Page 46
Respuestas del Gobierno
106. Mediante comunicación dcl 17 de septiembre de 2004, ci Gobierno proporcionó
información acerca de las medidas adoptadas en reiacion a! caso de Luis Aiberto Ramirez
Hinostroza, cuya situación fue objeto de un ilamamiento urgente dci 7 de septiembre de 2004. El
Gobierno peruano proporcionó informacion sobre las medidas policiales adoptadas antes y
después del atentado contra Luis Aiberto RamIrez Hinostroza. El Gobierno seflaio que,
posteriormente a! atentado, se procedio a instalar un servicio de seguridad personal a! agraviado,
con dos efectivos policiales durante las 24 horas del dIa. Ademas, personal de la Jefatura de
Investigación Criminal y Apoyo de la Justicia fue encomendado para identificar, ubicar y
capturar a los presuntos autores. El Gobierno seflala también que antes dci atentado, ci 22 de
marzo 2004, ci Juez Penal dci Cuarto Juzgado Penal de Huancayo, Sr. Eduardo Tones Gonzales,
habIa instado a la Prefectura Regional de JunIn a que se brindaran garantIas personaics a!
agraviado. El 15 de abril, ci Prefecto habIa resoivido otorgar dichas garantIas personaics a!
agraviado y su familia, en contra de Luis Perez Document, contre ci cual Luis Aiberto Ramirez
Hinostroza tiene un proceso judicial por tortura, conminando a! Sr. Perez Document a abstenerse
de todo acto intimidatorio y amenazas en contra de Luis Aiberto Ramirez Hinostroza.
107. Mediante comunicación dci 23 de diciembre 2004, ci Gobieriri proporcionó información
en re!acion con ci ilamamiento urgente enviado ci 22 de noviembre de 2004 sobre la situación de
Gloria Cano, abogada y defensora de los derechos humanos de la organización no gubernamenta!
APRODEH, quien habrIa recibido amenazas de muerte. El Gob ierno informo que, con fecha
26 de octubre de 2004, la Fiscalia Penal ingresó la denuncia presentada por la Sra. Cano, por
dehto contra la libertad, en contra de los que resuiten responsabies, y que dicha denuncia fue
remitida a la Division de la Policia dci Ministerio Püb!ico a fin que se ileven a cabo las
investigaciones preliminares. Asimismo, ci Gobierno informo que ci S de noviembre de 2004 la
Policia Naciona! dispuso la adopcion de una serie de medidas en re!acion con la solicitud de
medidas de seguridad solicitadas por la Sra. Cano. En particular, se dispuso otorgar servicio de
seguridad y vigilancia dci local de APRODEH a cargo de la Comisaria PNP de Jesus Maria y
brindar medidas de protección personal a la Sra. Cano, asi como efectuar las investigaciones dci
caso con re!acion a su denuncia.
Russian Federation
Conununications to the Government
108. On 4 May 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the question of torture, the Special Rapporteur on the promotion and protection of
the right to freedom of opinion and expression and the Special Representative of the Secretary-
General on the situation of human rights defenders regarding Stanislav Markelov, a human
rights lawyer who has worked on behalf of victims of alleged human rights violations in
Chechnya and was representing the family of Zehmkhan Murda!ov, a Chechynan student who
reportedly disappeared in January 2001 following his arrest by Russian Special Police
Detachment (OMON) forces in Grozny in the court case opened against Sergei Lapin, a member
of OMON, in connection with his disappearance. On 16 April 2004 Mr. Marke!ov was
travelling home on the Moscow metro when he was reportedly attacked by five men, dressed in
civilian clothing, who surrounded him and shouted: “You got what you're asking for. No more
speeches from you in court.” They allegedly hit him on the head with a heavy object, causing
E/CN.4/2004/60/Add. 1
Page 47
him to lose consciousness. He reportedly regained consciousness a few hours later and
discovered that his lawyer's licence card, his passport and his entry card for the State Duma, as
well as various documents related to his cases — including those related to the trial of Sergi Lapin
- had been stolen. Mr. Markelov was taken to City Hospital No 68 where he was diagnosed as
suffering from concussion. On 19 April he reportedly presented a medical certificate of his
injuries to the Subway Security Section of the Moscow Department of Internal Affairs No. 8, but
the police officer on duty reportedly claimed that the certificate was fake and stated that he could
only file a lost property complaint. On 21 April he also reportedly filed a complaint about the
attack with the Moscow City Department of Internal Affairs. It is reported that a criminal
investigation has not yet been opened. It is reported that he also represented a journalist who
allegedly received death threats for publishing an article in relation to the same torture case.
Concern has been expressed that Stanislav Markelov has been targeted for his human rights
activities and in particular his work to defend victims of human rights violations in Chechnya.
109. On 3 November 2004 the Special Rapporteur sent ajoint urgent appeal with the Special
Rapporteur on the question of torture and the Chairperson-Rapporteur of the Working Group on
Arbitrary Detention regarding Oleg Evgenyevich Khoroshuuiu, a student who resided in Kiev,
Ukraine, and is a citizen of the Russian Federation. On 30 October 2004, he was arrested by the
Essentuki (Stavropol region) local police when he went to the station to apply for an “internal
passport”. He was beaten on his stomach and genitals. No reasons have been given for his arrest
and detention. He has been denied access to a lawyer.
Communications from the Govermneit
110. The Government sent a reply to the Special Rapporteurs' joint urgent appeal of
3 November 2004 and a summary of the reply will be included in next year's report.
Saudi Arabia
Communications to the Government
111. On 23 April 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the question of torture, the Special Rapporteur on the promotion and protection of
the right to freedom of opinion and expression and the Special Representative of the Secretary-
General on the situation of human rights defenders concerning the situation of Dr Matrouk a!-
Faith, Dr Abdullah al-Hamid, Muhammad Sa'id Tayyab, Dr Tawfiq al-Qussayyir,
Suleyman al-Rashudi, Najib Al Khunaizi, Khalid Al-Hameed, Amir Abu Khamsin, All Al
Dumaini, Adnan Al Shikes, Hamad Al-Kanhel and Abdul-Rahinan Alahim. These persons
were reportedly arrested on 15 March 2004 by the Mabahith (secret police), apparently for
criticizing the Government-appointed National Commission on Human Rights (NCHR) and for
planning to set up their own “Saudi Independent Human Rights Committee”, in a petition
delivered to the Government and signed by 116 intellectuals. They were reportedly held
incommunicado at the General Intelligence (al-Mabahith a!- ‘Amma) in ‘Ulaysha, in Riyadh.
Nine of the 12 people listed above were released between 17 and 29 March 2004, after they were
allegedly forced to sign a pledge to end their participation in any political or human rights
activities and to stop calling for reforms in the Kingdom. Dr. Matrouk al-Falih, Dr. Abdullah al-
Hamid and Ali Al Dumaini, a poet, are believed be held in incommunicado detention because of
E/CN.4/2004/60/Add. 1
Page 48
their refusal to sign this pledge. No charges have been filed against them to date and they have
been denied access to their lawyers since their arrest.
112. On 24 August 2004 the Special Rapporteur sent an urgent appeal concerning the situation
of Suliinan Al-Rashoodi, Abdallah Al-Naseri, and Abdulaziz Al-Waheebi, three lawyers who
were reportedly prevented from representing Dr. Abdalalh Al- Hamed, Ali Al- Domaini and
Dr. Matrook Al-Faleh. The trial at the Riyadh High Court started on 9 August 2004 when the
judge reportedly told the lawyers that they were not allowed to represent their clients. When the
lawyers asked judge Bin Khunain the reason why, he said that it was on the orders of the
Minister of Justice, Mohamed A1-Alshaikh.
113. On 17 November 2004, the Special Rapporteur sent an urgent appeal concerning the
situation of Abdul Rahinan A1-Lahen a lawyer and member of the Arab Commission on
Human Rights, ant part of the legal team defending the three reform activists on trial in Riyadh.
Mr. Al- Lahem was arrested by Saudi intelligence forces on 6 November 2004 following a letter
he sent to Crown Prince Abdullah, on behalf of the defendants, which accused the trial judges of
denying the three men a fair trial due to delaying tactics, judicial bias and the denial of the right
to a public trial, including the right of international and national media to attend. Concern was
expressed that his arrest may be linked to his work as legal counsel to the imprisoned reform
activists. Concern is heightened by the fact that on 17 March 2004, Mr. Al- Lahem had reportedly
already been arrested and detained for eight days in connection with his active defence and
support of the three accused.
114. On 30 November 2004, the Special Rapporteur sent a joint urgent appeal with the
Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur
on the human rights of migrants and the Special Rapporteur on the qi stion of torture concerning
the situation of Abbas Majood Akanni, Murtala Amao Oladele, Abbas Azeez Oladuni,
Nunideen Owoalade, Nunideen Sani, Mohammed Abdulahi Yussuf, Wahid Elebyte,
Ahmed Abbas Alabi, Suliainon Olyfemi, Maflu Obadina, Samiu Hamud Zuberu, Kasim
Afolabi Afolabi, and Abdullamim Shobayo, all Nigerian nationals and migrant workers
resident in Jeddah. According to the allegations received, the above-named 13 men were among
hundreds detained in Jeddah on 29 September 2002 after a policeman was killed in a fight
between local men and African nationals. Subsequent to their arrest, the 13 Nigerian nationals
were reportedly tortured and ill-treated, including being hung upside down and beaten and
subjected to electric shocks to the genitals. Since their arrest over two years ago, the men have
not had access to a lawyer or consular assistance. Moreover, translators were present on only two
of the four court appearances, and all proceedings and court documents are in Arabic. On
22 November 2004, a hearing in the case of the 13 men took place before three judges in a
closed session, without the assistance of a lawyer, a consular representative or adequate
interpretation facilities. They could not fully understand the proceedings, which were conducted
in Arabic, and were not able to fully understand whether the hearing concerned the prolongation
of their detention or constituted their trial. According to the information received, if the
policeman killed on 29 September 2002 had children (which is not known), and if the 13
Nigerians are sentenced to death, they will remain in prison until these children reach the age of
18, when they can accept or reject the payment of diya (blood money) in place of the death
penalty. Otherwise, the 13 would be at risk of imminent execution.
E/CN.4/2004/60/Add. 1
Page 49
Conununications from the Govenunent
115. On 12 August 2004 the Government replied to the Special Rapporteurs' joint urgent
appeal of 23 April 2004 concerning the arrest of a group of persons on 15 March 2004. The
Government reported that Matrouk al-Falih, Muhammad Sa'id Tayyab, Suleyman al-Rashudi,
Abdullah al-Hamid, Tawfiq al-Qussayyir and Ali Al Dumaini had been arrested and charged
with engaging in acts which, inter alia, justified terrorism, encouraged violence and incited civil
disturbance. Between 27 March and 28 April, orders were issued for the release of Tawfiq a!-
Qussayyir, Muhammad Sa'id Tayyab and Suleyman al-Rashudi after they admitted their
misguided acts and apologized, and criminal proceedings were dropped. Regarding Matrouk a!-
Falih, Abdullah al-Hamid and Ali Al Dumaini, the accusations were substantiated and their case
was referred to the court. All the accused have enjoyed the rights guaranteed under the
Kingdom's Code of Criminal Procedure, including the right to have the chirges against them
heard by a court of law. At their trial, the first hearing, on 9 August, was a public hearing
attended by their lawyers in which the Public Prosecutor read out the indictment. The trial was to
continue with a second hearing on 23 August.
116. On 30 September 2004 the Government replied to the Special Rapporteur's urgent appeal
of 24 August 2004 concerning three lawyers who were reportedly prevented, by order of the
Minister of Justice, from representing their clients. The Government replied that the information
was not new information as it was based on reports circulated in the media as the trial was a
public hearing where full details were accessible to all. In the Government's reply of 12 August
the Government had already indicated the reasons for the trial, the charges brought against the
persons concerned and the guarantees enjoyed by the accused under the judicial system,
including the right of the accused to appoint a lawyer in his defence. The accused persons
concerned were represented and defended in court by legal counsel since, under the regulations,
they have a guaranteed right to plead either in person or through lawyers appointed by them. In
fact, all the accused, together with their defence counsel, commended the transparent and public
nature of the trial proceedings. The Code of Practice for Lawyers grants lawyers the unrestricted
right to plead on behalf of their clients and embodies all the guarantees necessary to help them to
discharge their task effectively, including their right not to be held accountable for the content of
statements made in their written or verbal pleadings (article 13). The judiciary is fully
independent of any other authority and no one is permitted to interfere in the judicial proceedings
of any trial (article 1 of the Statutes of the Judiciary). The guarantees enjoyed by the lawyers are
consistent with international standards, including the rules governing the legal profession. Under
the Statues of the Judiciary, the court has the right to rule on a lawyer's eligibility to accept a
particular case and the lawyer has an obligation to respect the rules and directives governing his
activities. The rules of the Code of Practice for Lawyers states, inter alia, that a lawyer who has
previously expressed an opinion on a case in his official capacity is disqualified from accepting
the same case (article 17). These three lawyers had not only previously expressed an opinion on
the case before it came to trial, but were also direct parties thereto. Accordingly, the j dge was
entitled to take a final and independent decision on the extent of their eligibility at this full
discretion and without interference from any other body. Concerning the maintenance of order
during court hearing, pursuant to article 155 of the Code of Criminal Procedure, the judge has
the right to decide whether he wishes to hear all or part of the case in camera or to bar certain
categories of persons from attending the hearing out of regard for security or in order to
safeguard public morals. The Government referred to principle 19 of the United Nations Basic
Principles on the Role of Lawyers regarding circumstances where lawyers can be prevented from
E/CN.4/2004/60/Add. 1
Page 50
appearing before the court if disqualification is in accordance with national law and in
conformity with these principles.
Sierra Leone
Observations of the Special Rapporteur
117. The Special Rapporteur welcomes the 13 March 2004 decision by the Special Court for
Sierra Leone to refuse to recognize the applicability of a national amnesty for crimes against
humanity and war crimes. This is a significant step in combating impunity for such serious
crimes and acknowledges the international jurisprudence and international treaty body
conclusions that States cannot use national amnesties to prevent international or foreign courts
from exercising jurisdiction over crimes committed against the international community. While
the ruling did not explicitly state that the amnesty provision of the 1999 Lomé peace agreement
is void under international law and could mt be applied by the national courts of Sierra Leone,
the Special Rapporteur believes that this decision will help to strengthen such important
institutions such as the International Criminal Court.
South Africa
Conununication to the Goveriunent
118. On 17 February 2004 the Special Rapporteur sent an urgent appeal concerning Judge
Graham Travers, a magistrate of the Regional Division of Northern Transvaal. Judge Travers
currently presides over Court 12, which is a sexual offences court. It was alleged that the
National Prosecuting Authority made a decision not to put any new trials before Judge Travers
because he has a low completion rate of cases. Judge Travers suffers from muscular dystrophy, a
condition which he disclosed when he was appointed as a judge in 1990. Judge Travers'
condition has deteriorated in recent years and, as result of his condition, he takes longer to fulfil
his judicial duties because he writes slowly. There was a concern that the National Prosecuting
Authority's directive not to place any new cases before Judge Travers amounted to a de facto
suspension of his judicial authority as it did not appear to be done in accordance with proper
legal procedures and thus could be regarded as interfering with the independence of the
judiciary. Further, the fact that Judge Travers has a disability means he is entitled to protection
under United Nations General Assembly resolution on the rights of disabled persons.
Communication from the Government
119. On 6 May 2004 the Government responded to the Special Rapporteur's urgent appeal of
17 February 2004. The Government detailed the high prevalence of sexual abuse of children in
South Africa and the actions taken by the Government to face this situation, among them the
establishment of specialized courts with highly trained staff. The number of outstanding child
abuse cases is extremely high. The Government therefore took the initiative to establish three
specialized sexual offences courts. At the time of the Government response, there were 419 cases
on the rolls of these three courts. By placing new cases before Mr. Travers whilst he has many
pending ones, an already unsatisfactory state of affairs would be further worsened and the
backlogs increase. The Government pointed out that Mr. Travers was formally invited to the
E/CN.4/2004/60/Add. 1
Page 51
office of the National Director of Public Prosecutions to resolve the problem, but instead he
preferred to raise the matter in the local press and with others.
Sudan
Conununicatlons to the Government
120. On 5 February 2004 the Special Rapporteir sent a joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
the Chairperson-Rapporteur of the Working Group on Arbitrary Detention and the Special
Representative of the Secretary-General on the situation of the human rights defenders
concerning Sallh Mahmoud Osmaa a human rights defender and member of the Sudan
Organisation Against Torture (SOAT) lawyers' network, who was arrested at his home in Wad-
Madani on 1 February 2004. He was detained and interrogated at the National Security Agency
(NSA) offices in Wad Madani,. Although Mr. Osman had not yet been formally charged with
any offence, it is believed that he might have been arrested in connection with his activities in
defeite of human rights, in particular the fact that he provides free legal aid and legal
representation to victims of human rights abuses and to those who face capital punishment or
severe punishments (amputation) in the Darfur region, and to the fact that he has written articles
and published research on the current conflict in Darfur.
121. On 2 April 2004, the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
the Chairperson-Rapporteur of the Working Group on Arbitrary Detention and the Special
Representative of the Secretary General on the situation of the human rights defenders regarding
lawyers Baroud Sandal Ragab, Ismail Oman, Mohamed Haroun, Mohamed Sha rief All and
Abdalla Aldoma. They were arrested on 19 March in Khartoum, and held incommunicado in a
special section of Kober prison. Abdalla Aldoma, a prominent member of the opposition Umma
party, headed a delegation of that party to the National Committee for the Development and
Restoration of Social Infrastructure in Darfur. It is alleged that his arrest is linked to the
delegation's withdrawal from that Committee. The other four lawyers are members of the
Popular Congress, another opposition party. Their arrest was reportedly related to their
participation in a number of demonstrations with displaced persons from Darfur, denouncing the
lack of shelter and food.
122. On 4 of April 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the question of torture, the Special Rapporteur on extrajudicial, summary or
arbitrary executions, and the Special Rapporteur on violence against women, its causes and
consequences, concerning the situation of Alakor Lual Deng, from the Dinka ethnic group, who
is reportedly at risk of being executed by stoning after she was allegedly convicted of adultery
(article 146 of the Penal Code which prohibits sexual intercourse in the absence of a lawful
relationship) by the Criminal Court in Nahud, West Kordofan State, in July 2003. Alakor Lual
Deng has four children with a man from Kordofan, whom she is not “formally” married to. In
2003, on the basis of her confession, she was reportedly convicted of committing adultery with
another Dinka man, Bol Yak Akoon, with whom she had a child out of wedlock. Reportedly,
Ms. Deng was not represented by a lawyer at her trial nor was she allegedly provided with a
Dinka interpreter, even though the trial was conducted in Arabic. It was further reported that an
appeal against her sentence was sent to the Supreme Court, which will decide whether the
E/CN.4/2004/60/Add. 1
Page 52
sentence will be upheld or overturned. Meanwhile, Ms. Deng remains in prison in El Obeid,
North Kordofan State, with her 10-month-old baby.
123. On 15 April 2004 the Special Rapporteur sent a joint allegation letter with the Special
Rapporteur on the question of torture concerning the situation of Mahinoud Yahya Adan
Yahya Al-Doum Haroun, Idris Ibrahim Idris, all from Silaya village, and Abdel Karim
Abdallah Adam from Jiway. Theywere reportedly arrested by police on 29 March 2004 in the
hamlet of Jiway, Khina village, 80 km east of Nyala. They were convicted of armed robbery in a
trial where it is alleged that they had no legal representation, and they were sentenced to
amputation of the right hand and left foot by the Nyala Specialized Criminal Court on 3 April
2004. In South Darfur, the replacement of the Special Courts with the Specialized Criminal
Courts in April 2003 enables accused persons to have access to legal representation during the
trial. However, lawyers allegedly complain that they do not have access to their clients prior to
the commencement of the trial. In this specific case, it appears that these four men did not have
access to a lawyer before or during their trial. The four men allegedly lodged an appeal in
accordance with the appeal procedures of the Specialized Criminal Courts, which reportedly
must be made within seven days to the Chief Justice of South Darfur State, whose decision is
said to be final, except on cases of amputation and the death penalty, where a final appeal may
be made to the Supreme Court.
124. On 3 August 2004 the Special Rapporteur sent ajoint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
and the Special Representative of the Secretary-General on the situation of the human rights
defenders regarding Aba Zer Ahmed Abu Al Bashir, a lawyer and a human rights defender in
Nyala. He was reportedly arrested and detained by the security forces in Nyala. He has
reportedly not been formerly charged and was denied any visits by his family or lawyers.
Concern was expressed that Zer Abmed Abu Al Bashir's arrest may be related to his human
rights activities and in particular to a written request which he sent to the Governor of South
Darfur on 16 July 2004, together with 10 other peace activists, requesting that the conflict in the
area come to an end. Concern is heightened by reports that the 10 signatories of the request were
also arrested.
125. On 1 December 2004, the Special Rapporteur sent ajoint urgent appeal with the
Chairperson-Rapporteur of the Working Group on Arbitrary Detention and the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
concerning Hussein Khogali, editor- in- chief of the independent Arabic- language daily Aiwan,
who was arrested and has been held without charge by police in an undisclosed location since
22 November 2004. Hussein Khogali is believed to be in Kober prison, but neither his family nor
his lawyer was allowed to contact him. Police also confiscated the entire print run of his
newspaper's 23 November 2004 issue. Mr. Khogali had previously been imprisoned for 17 days
in September 2004, and was only released on condition that he ceases writing in his own
newspaper. He was told this verbally by members of the National Security Agency (NSA) who,
according to a local source, suspected him of continuing to write occasional articles.
Communications from the Government
126. On 29 January 2004 the Government replied to the Special Rapporteur's urgent appeal of
3 July 2003 (E/CN.4/2004/60/Add. 1, para. 76) and advised that the verdict and death sentences
E/CN.4/2004/60/Add. 1
Page 53
passed by the court in the city of Kass, South Darfur State, against Tibin Abdel Rahan Isaag,
Aihadi Abaker Hammad, Mohamed Abdel Rahmen Ibrahim, Essa Mohamed Adam and
Mohamed Abdalla Yahya were nullified due to lack of evidence against the accused.
127. On 7 July 2004, the Government replied to the Special Rapporteurs' joint urgent appeal
of 2 April 2004 advising that Ismail Oman and Mohamed Haroun were released in 18 April
2004, while Baroud Sandal Ragab and Abdalla Aldoma (aka Mhommed Abdallah Al Domah)
were still detained. The Government advised that they were well treated and have never been
subjected to any inhumane or degrading treatment. They had been given access to their family
and medical care.
Observations of the Special Rapporteur
128. Although the Special Rapporteur did not receive a reply from the Government regarding
Saleh Mahmud Osman, he welcomes the news that Mr. Osman was released from prison on
4 September as the National Security Forces had found no evidence to continue his detention.
129. The Special Rapporteur is advised that Hussein Khogali has been released.
Swaziland
Communications to the Government
130. On 27 August 2004 the Special Rapporteur sent an allegation letter concerning the
situation of Zena Mahlangu, an 18-year-old student, who disappeared from her school on
9 October 2002. Two men, Qethuka Sgombeni Dlamini and Tulujane Sikhondze, took her to the
Ludzidzini Royal Palace, where she was kept incommunicado. Her mother, Lindini Dlamini,
filed an application in the High Court for an order directing that Zena Mahlangu be restored to
her custody. In an affidavit filed in response to the application, Qethuka Sgombeni Dlamini
admitted that he had taken Zena Mahlangu to the Royal Palace, to become the wife of the King,
and that he and Tulujane Sikhondze were only obeying to the King's orders. Lindini Dlamini
requested the High Court to restore her minor child to her custody. At that stage, the Attorney
General reportedly intervened in the case, opposing the application and arguing that the King had
the right under customary law to take girls as wives without parental consent. Lindini Dlamini
alleged that in terms of the civil law the parent's consent was necessary below the “age of
majority”, which was 21 years, and recalling that the High Court had already stated that civil law
prevailed over Swazi law and custom. The Court consented to the applicant's lawyers delivering
court papers to the authorities in charge of the place where Zena Mahlangu was kept. In spite of
this, the police refused them access. At the same time, it was reported that the chiefs of staff of
the army, the police and the prison services and the Attorney General held a meeting with the
judges, telling them that they had to choose between dropping the case or resigning. The judges
refused to withdraw from the case, and continued to receive pressure. Despite the ongoing
judicial proceedings, Zena Mahlangu was in the meantime presented as the King's fiancée. It
was also reported that her mother had to postpone the case due to personal reasons.
131. The allegation letter sent on 27 August 2004 also dealt with the controversy around the
validity of the Non-Bailable Offences Order. According the Non-Bailable Offences Order No. 14
of 1993, Magistrates' Courts and the High Court cannot grant bail in any case related to a
E/CN.4/2004/60/Add. 1
Page 54
number of offences. In June 2001 the Court of Appeal stated that this legislation violated the
presumption of innocence and that excluding the jurisdiction of the courts to grant bail in certain
cases was against the Constitution (Professor Dlaniini v. The King). The Government overlooked
this judgement and passed a first decree which extended the 1993 Order and restricted the
competence of the judiciary (Decree No. 2 of 2001). This decree generated very strong reactions
and was therefore replaced by a second one (Decree No. 3 of 2001), which reportedly still
maintains the provisions of the Non-Bailable Offences Order. The following year, in the context
of the Ray Gwebu and Lucka Nhlanhla Bhembe case, the Court of Appeal ruled that under the
Constitution and the 1973 Proclamation, the King had m authority to issue Decree No. 3 of
2001, which was therefore invalid, and ordered that the cases of the two appellants should be
referred to the High Court for a decision on bail. The Prime Minister of Swaziland strongly
criticized the ruling and said that the Government would not follow it. The disparity between the
orders coming from the courts and from the Government generates a chaotic situation in which
the courts grant bail to prisoners, while criminal justice officers refuse to release them.
Observations of the Special Rapporteur
132. The Special Rapporteur cautiously welcomes developments towards an improvement of
the judicial crisis in Swaziland with the dissolution of the Court of Appeal in 2002. The Court of
Appeal has reportedly agreed to try and resume its duties following the Government's
indications that it will work to restore the rule of law in the Kingdom and uphold the
independence of the judiciary, make improvements to the national justice system and implement
and comply with two key court rulings regarding the release of persons who have been granted
bail by the courts, provided those persons meet the conditions of bail, and the right of evictees
who were forcibly evicted to return to their homes.
Syrian Arab Republic
Conummications to the Govermnent
133. On 15 July 2004 the Special Rapporteur sent ajoint urgent appeal with the Chairman-
Rapporteur of the Arbitrary Detention Working Group, and the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression concerning Abdel
Ralunan al-Shaghouri. Mr. a!- Shaghouri was reportedly arrested at a checkpoint between
Qunaytra and Damascus on 23 February 2003 for using the Internet to send articles to his
friends. He was allegedly beaten in custody before being transferred to Sednaya prison where he
is said to be held incommunicado. On 14 December 2003 Abdel Rahman al-Shaghouri appeared
before a State security court which set the date of the next court session for March 2004. He was
sentenced to three years' imprisonment by the Supreme State Security Court (SSSC) on 20 June
2004, on charges of “disseminating false information”. The charges relate to his c-mailing
articles which were mainly from the Akhbar al-Sharq Internet site. The prosecution charge sheet
noted that material on the site is considered “detrimental to the reputation and security of the
nation” and “full of ideas and views opposed to the system of government in Syria”. The
sentence was immediately reduced to 2'/2 years. It is reported that trials before the SSSC
invariably fall short of international standards for fair trial. The SSSC allegedly places severe
restrictions on the defendant's right to obtain effective legal representation and its verdicts are
not subject to appeal before a higher tribunal. In the past, concerns had been made that the SSSC
appeared to be neither independent nor impartial. During his trial ‘Abdel Rahman a!-Shaghouri's
E/CN.4/2004/60/Add. 1
Page 55
lawyers were allegedly not allowed to see all the court documents relating to the case, although
they made repeated requests.
134. On 6 August 2004 the Special Rapporteur sent a joint urgent appeal together with the
Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression and the Special Representative of the Secretary-General on the situation of human
rights defenders regarding Akhtam Naisse, a human rights lawyer and President of the
Committees for the Defence of Democratic Freedoms and Human Rights in Syria (CDF).
Mr. Naisse, who was been charged with “opposing the objectives of the revolution” and
“disseminating information aimed at weakening the State” for having published in the CDF
annual report denunciations of human rights violations in Syria and a number of press statements
by CDF members denouncing human rights violations against Kwdish citizens, was tried on
26 July 2004 at the SSSC and the verdict is pending. A very limited number of international
observers were allowed in the courtroom. Mr. Naisse, who needs daily medical treatment and has
been kept in solitary confinement since 13 April, was allegedly not allowed to consult a lawyer
in private or to communicate with his family. Of particular concern is that the SSSC is outside
the ordinary criminal justice system, is accountable only to the Minister of the Interior and is not
bound by the rules of the Code of Criminal Procedures; its verdicts are not subject to appeal. The
information received suggests that Aktham Naisse's prosecution is motivated by his human rights
activities, particularly the publications and dissemination of information on respect for human
rights in Syria, activities which are legal under numerous international human rights instruments.
Communications from the Government
135. On 20 September 2004 the Government replied to the Special Rapporteurs' joint urgent
appeal of 6 August 2004 and advised that Aktham Na'isa had been arrested on 13 April 2004 and
sent to trial before the Higher State Security Court, in accordance with relevant laws, for
disseminating false and exaggerated reports ( a petition calling for political reform with fictitious
names or names of well-known people used without their knowledge to found an unauthorized
secret association) likely to harm Syria's relations with neighbouring States. The State Security
Court held two sessions, on 26 July and 16 August, in the presence of a number of Syrian and
Arab lawyers and representatives from the European Union and the United States Embassy. On
16 August, Mr. Na'isa was released on bail pending trial, which was postponed until 24 October.
136. On 1 November 2004 the Government replied to the Special Rapporteurs' joint urgent
appeal of 15 July 2004 and advised that Abd al-Rahman al-Shaghuri had been arrested on
23 March 2003 for using the Internet to disseminate to persons in the country and abroad articles
that were detrimental to the country's security and reputation. He was arraigned before the
Supreme State Security Court on 30 June 2003.
Observations of the Special Rapporteur
137. The Special Rapporteur thanks the Government for replying to his communications. With
respect to the trial of Aktham Naisse, the Special Rapporteur understands that it was scheduled
to resume in January 2005 but has been postponed to April 2005. He wishes to express his
concern regarding the delay of this trial.
E/CN.4/2004/60/Add. 1
Page 56
Thailand
Communications to the Government
138. On 17 March 2004 the Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
the Special Representative of the Secretary. General on the situation of human rights defenders,
the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
Rapporteur on the question torture concerning Somchai Neelahphaijit, Chairman of the Muslim
Lawyers Association and human rights defender who has reportedly been missing since
11 March 2004. He was allegedly due to attend a meeting on 12 March at the Chalina Hotel in
Bang Kapi district and was also due to appear in court for a case in Narathiwat province on
15 March. He allegedly did not attend either of these events and his family has reportedly not
had any contact from him. On 16 March his wife filed a complaint with the Bang Yikhan police.
Prior to his alleged disappearance, Mr. Neelahphaijit had reportedly received anonymous
threatening phone calls, including one call from a senior official informing him that he was at the
top of the military blacklist. There was concern that Mr. Neelahphaijit may have been targeted
for his human rights work, including his involvement in petitioning 50,000 signatures nationwide
to call for an end to martial law in southern Thailand, as well as his work to defend Muslim
suspects against terrorism and treason charges.
Communications from the Government
139. On 30 March 2004 the Government replied to the Special Rapporteurs' joint urgent
appeal of 17 March 2004. The Government assured the Special Rapporteurs that the Royal Thai
Police had utilized all of its available means to locate Somchai Neelahphaijit. On 18 March2004
an independent committee under the Chairmanship of the Director-General of the Department of
Special Investigation, Ministry of Justice, was established by the Prime Minister to ensure that
full redress is given to Mr. Neelahphaijit. Three subcommittees on information analysis, forensic
evidence and investigation were also set up to assist the committee.
140. On 6 August 2004 the Government reiterated the importance it gives to the case of
Somchai Neelahphaijit and the proceedings concerning the case. The State Prosecutor's office
advised that arrest warrants were issued against five police officers charged with robbery and
coercion through death threats against Mr. Neelahphaijit, who was last seen on 12 March 2004.
These charges may change as more evidence appears. Nearly 100 witnesses will testify at the
trial. Hearings were scheduled to take place between August 2004 and December 2004.
Observations of the Special Rapporteur
141. The Special Rapporteur thanks the Government for providing an update on the status of
this case and would appreciate being informed of the outcome of the trial.
E/CN.4/2004/60/Add. 1
Page 57
Tunisia
Communication reçue du Gouvernement
142. Le 9 mai 2004, le gouvernement a répondu a l'appel urgent envoyé par le Rapporteur
special le 22 juillet 2003 relatif aux atteintes prCsumCes portCes a la libertC de reunion en
Tunisie, ainsi que sur l'agression dont aurait fait l'objet Radhia Nasraoui, avocate et prCsidente
de l'Association de la lutte contre la torture en Tunisie. Le gouvernement a indiqu C que,
concernant la suppos Ce agression dont ii est question, le 16 juillet 2003 Mme Nasraoui a dCposC
une plainte contre inconnu pour agression et violence physique perpCtrCe sur sa personne. Saisi
de l'affaire, le Parquet, en vertu de l'article 30 du code de pmcCdure pCnale, a ordonnC le
22 juillet 2003 une commission rogatoire a la direction de la SüretC au district de Tunis pour
instruction et information. L'affaire suit normalement son cours.
Observations du Rapporteur special
143. Le Rapporteur special est fortement prCoccupC par les informations qu'il a reçues selon
lesquelles le système judiciaire tunisien ne serait pas indCpendant, souffrant de graves
interferences du pouvoir exCcutif dans l'administration de la justice. A cc propos, le Rapporteur
special rappelle qu'il a envoy C une demande de visite au Gouvernement tunisien le 20 janvier
2004 et regrette de n'avoir pas reçu de rCponse ace jour.
Turkey
Communication to the Government
144. On 6 August 2004 the Special Rapporteur sent a joint urgent appeal together with the
Special Representative of the Secretary-General on the situation of human rights defenders, the
Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on
the promotion and protection of the right to freedom of opinion and expressio I and the Special
Rapporteur on the question of torture concerning Abduihekim Gider, a lawyer, Abdullah
Giindogdu, Tahsin Atak, and Ihsan Gfllmek Reportedly, on 30 July 2004, police detained
Abdullah GUndogdu, Tahsin Atak and Ihsan GUlmek in the Pervari district of Siirt province, on
suspicion of aiding and abetting an armed organization, the Kurdistan People's Congress
(Kongra-Gel), formerly known as the Kurdistan Workers' Party (PKK). Their lawyer,
Abdulhekim Gider, came to meet with them at the police station in Pervari on 1 August. While
he was waiting, a police officer asked him, “How can you defend traitors? This lot are
terrorists... Haven't you got a conscience?” When Abdulhekim Gider saw one of his clients,
Abdullah GUndogdu, he appeared exhausted and frightened and could not stand upright. He said
that he had mt been given any food since the day he was detained and had been stripped naked
and sprayed with cold pressurized water for 2'/2 hours, especially in the area of his kidneys. He
said that he had also had his testicles squeezed and been beaten about the head. When the lawyer
saw Tahsin Atak and Ihsan GUlmek, they said that they had not been given food, and they both
appeared tired and frightened. Tahsin Atak later complained that he had been severely beaten on
his body and legs. When his lawyer met with him in prison, there was still blood on his legs and
socks from the beatings. That day, Mr. Gider tried to lodge a complaint that Abdullah GUndogdu
had been tortured, but the Pervari prosecutor was reluctant and allegedly tried to persuade him
not to do so. When he returned to the prosecutor's office on 2 August, a police officer reportedly
E/CN.4/2004/60/Add. 1
Page 58
pointed his rifle at the lawyer and said to another officer, “I might accidentally pull the trigger”.
When Mr. Gider went back to the police station to meet with his clients the same day, he claimed
that he was prevented from entering by seven or eight police officers, including the local police
chief, who surrounded him and insulted and threatened him, apparently because he had lodged a
complaint of torture against them. After he appealed to a senior police officer who had come to
the station, Mr. Gider was allowed to meet with his client's who were all remanded in Siirt
prison. As the lawyer left the police station, one of the police officers who had earlier threatened
him told him, “Your job is not going to be easy any more”. When Mr. Gider asked what this
meant, the police officer told him, “Go away! I don't want to see you again. Bad things happen,
and they are going to happen.” Police have pressured the detained men's relatives to change their
lawyer, and police officers in Pervari are reported to have threatened Mr. Gider since then.
Groups of police have followed him in the street, and police vehicles have patrolled
conspicuously outside buildings where he has been condixting meetings with the families of his
clients.
Conununications from the Govenunent
145. On 20 January 2004 the Government replied to the Special Rapporteurs' joint urgent
appeal of 19 December 2003 (E/CN.4/2004/60/Add. 1, para. 92) concerning the situation of
Sezgin Tanriliulu, Sabahattin Korkmaz and Habibe Deyar. The Government advised that the
three men were acquitted on 24 December 2003. The Government also remarked that the root
cause of internal displacement in Turkey had been the scourge of terrorism, mainly coming from
the PKK/KADEK, and enclosed an information note with respect to the issue of internal
displacements in Turkey.
146. On 9 February 2004 the Government responded to the Special Rapporteurs' joint
allegation letter of 23 May 2002 (E/CN.4/2003/65/Add. 1, para. 219) pertaining to the case of
SaIih Yilar An investigation was initiated upon the complaint of Mr.Yilar by the Public
Prosecutor's Office in Diyarbakir, and following the investigation a lawsuit was filed against two
policemen at the Diyarbakir Serious Crimes Court No. 1. Mr. Yilar was examined by the
Forensic Institute, which indicated that no traces of electric shocks were found on his body, as
Mr. Yilar had alleged. During the hearings Mr. Yilar stated that the two accused policemen were
not the ones who had taken him into custody. Furthermore, there had been no witness to the
circumstances that had caused the injuries on Mr. Yilar when he was found on 14 May 2002 by
security forces. Therefore, the court acquitted the two policemen.
147. On 14 October 2004 the Government replied to the Special Rapporteurs' joint urgent
appeal of 6 August 2004 pertaining to the cases of Abduihekim Gider, Abdullah Gflndogdu,
Tahsin Atak, and Ihsan Gfllmek The Government advised that Mr. GUndogdu, Mr. Atak and
Mr. GUlmek were suspected of committing crimes of aiding and abetting the PKK/KONGRA-
Gele terrorist organizations and on 30 July, under instruction of the Public Prosecutor, were
detained at Pervari Police Station. In line with relevant legislation regulating the detention of
suspects, they underwent medical examinations and were informed of their legal rights. On
3 August the suspects were interrogated by the Public Prosecutor. The Criminal Court of Peace
at Pervari upheld their arrest, committed them to the prison in Siirt and legal proceedings were
commenced. Mr. Gider, their lawyer, visited the detainees on 1 and 2 August but did not appear
for the interrogations despite being informed of the time and venue. Before his second visit
E/CN.4/2004/60/Add. 1
Page 59
Mr. Gider refused to present his identification and an argument broke out with the security
officers, during which Mr. Gider threatened the officers.
United Kingdom of Great Britain and Northern Ireland
Communications to the Government
148. On 12 February the Special Rapporteur sent an allegation letter concerning the reported
reluctance of the Government to publish Judge Cory's reports regarding the murders of
Rosemary Nelson and Patrick Finucane. The former Special Rapporteur had closely followed
and reported on the developments of a number of Northern Ireland defence lawyers' cases since
1997 and in his 2003 report to the Commission (E/CN.4/2003/65/Add. 1, para. 230) noted that he
had received a response from the Secretary of State for Northern Ireland, John Reid, who made
assurances that the Government was committed to investigate and conduct a review of the
murders of Patrick Finucane, Rosemary Nelson and William Stobie. On 14 January 2004 an
application for judicial review was filed on behalf of Mr. Finucane in an effort to have Judge
Cory's report published; applications on behalf of the other cases may also join this action. The
hearing was reportedly set for 1 March 2004. The Special Rapporteur called upon the
Government to publish the four reports submitted by Judge Cory, to establish public inquiries in
all four of these cases, as recommended by Judge Cory, to consult with the families concerned
regarding the terms of reference of public inquiries and to disclose the full unedited version of
Judge Cory's reports to the families concerned.
149. On 23 September 2004 the Special Rapporteur sent ajoint allegation letter with the
Special Rapporteur on extrajudicial, summary or arbitrary executions to welcome the
Government's action in April 2004 to publish the four reports. Regarding recent developments in
the Patrick Finucane case, whereby Ken Barrett pleaded guilty to the murder and was sentenced
on 16 September. Since the criminal proceedings in this case have now concluded, the
Government is encouraged to commence with a public inquiry without delay and liberally apply
the terms of reference referred to in Justice Cory's report so there can be a full and open
investigation into the allegations of State collusion in the death of Mr. Finucane. It is understood
that the Government made the decision to postpone the establishment of an inquiry due to
ongoing criminal proceedings; however, in the case of Mr. Finucane, the proceedings are now
exhausted. The Special Rapporteurs inquired if the Government intends to hold a public inquiry
pursuant to the 1921 Tribunals of Inquiry (Evidence) Act and what the expected date of
commencement is.
Communications from the Government
150. On 11 March 2004 the Government sent a communication expressing its commitment to
publish Justice Cory's reports as soon as certain legal issues were solved. On 3 May 2004 the
Government sent copies of Justice Cory's published reports.
151. The Government sent a reply to the Special Rapporteurs' joint allegation of 23 September
2004 and a summary of the reply will be included in next year's report.
E/CN.4/2004/60/Add. 1
Page 60
Observations of the Special Rapporteur
152. The Special Rapporteur is aware that the Government intends to introduce new
legislation, known as the Inquiries Bill, which the Governments says is now required before
inquires such as th Patrick Finucane inquiry can be held so that the inquiry takes into account
the public interest, including the requirements of public security. The Special Rapporteur is,
however, aware and concerned about further delays that may be encountered, in particular with
respect to the cases referred in the Special Rapporteur's communications, as it had been
recommended to the Government since October 2003 that inquiries be held on a number of these
cases.
153. The Special Rapporteur welcomes the decision of the House of Lords in December 2004
that in a case brought by detainees being held indefinitely without charges in Belmarsh prison in
London, measures taken under the 2001 Anti-Terrorism Act were incompatible with provisions
of the European Convention on Human Rights concerning the right to a fair trial. The Special
Rapporteur urges the Government to modify the legislation in order to bring it into line with
international principles.
United States of America
Communications to the Government
154. On 29 April 2004 th Special Rapporteur sent a joint urgent appeal with the Special
Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the
human rights of migrants concerning the situation of Osvaldo Netzahualcóyotl Torres
Aguilera, a Mexican national who reportedly was scheduled to be executed in Oklahoma on
18 May 2004. He was sentenced to death in 1996 for the 1993 murders of Maria Yanez and her
husband, Francisco Morales. Osvaldo Torres' execution date remained set despite the
International Court of Justice (ICJ) ruling in the case of Avena and other Mexican nationals
(31 March 2004, General List No. 128), a lawsuit brought by Mexico on behalf of its nationals
arrested, allegedly denied their consular rights and sentenced to death in the United States of
America. The ICJ ruled that the United States of America had breached its international
obligations under the Vienna Convention on Consular Relations and that it must provide
effective judicial review and reconsideration of the impact of the violations on the cases of the
foreign nationals involved. The means for review and reconsideration are to be determined by
the United States of America; however, the ICJ further noted that the clemency process was not a
satisfactory forum. Osvaldo Torres is reportedly due to have a clemency hearing before the
Oklahoma Pardon and Parole Board on 7 May 2004. Further, the ICJ found that the United
States of America had violated all of its obligations under article 36 of the Vienna Convention,
including Mexico's right to be able to assist with Mr. Torres' legal representation. The ICJ noted
with “great concern” that an execution date had been set for Osvaldo Torres, whose appeals in
the domestic courts had been exhausted. At the time of his arrest, Oswldo Torres was 18 years
old, without a lawyer, and had had minimal contact with the United States criminal justice
system. He was reportedly registered with the immigration authorities as a resident alien, which
would have become known to the police when they conducted a routine background check upon
his arrest. Despite this, the authorities allegedly never informed him of his rights under the
Vienna Convention. Osvaldo Torres was represented by a court-appointed lawyer (but his lawyer
allegedly failed to raise this issue at the trial or appeal stage), and he had already been convicted
E/CN.4/2004/60/Add. 1
Page 61
and sentenced to death before the Mexican authorities learned of the case in 1996 when his
family contacted the Mexican consulate for help. It is alleged that timely assistaire from the
Mexican consulate could have prevented the imposition of the death penalty, either by
persuading the prosecutor not to seek a death sentence or by assisting the defence at the trial.
Osvaldo Tones was arrested along with George Ochoa and tried jointly on charges of first-
degree burglary and first-degree murder with malice aforethought. On the latter charge, the
prosecution had to prove beyond a reasonable doubt that each defendant intended to kill the
victims. Reportedly, one of the State's witnesses, a 15-year-old girl, testified that she had seen a
man with a gun in the company of George Ochoa before the crime. However, the gun she
described at the trial was never found and was not the weapon used in the murders. This witness
has since recanted her testimony and said that she was coerced by the prosecution into saying
that she had seen a gun. Despite her affidavit, the Oklahoma Court of Criminal Appeals relied
upon her trial testimony in upholding Osvaldo Tones' conviction for first-degree murder with
malice aforethought. The 10th Circuit Court of Appeals has in turn upheld the conviction and
death sentence, despite acknowledging that the evidence against Mr. Tones is “susceptible to
interpretation”.
155. On 2 July 2004 the Special Rapporteur sent ajoint allegation letter with the Special
Rapporteur on the question of torture and the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health concerning the
situation of Feroz All Abbasi a United Kingdom national, Moazzam Begg a United
Kingdom/Pakistani national, David Hicks, an Australian national, Salim Ahined Hamdan, a
Yemeni national, A u Hamza Ahmed Sulayman a! Bahiul, a Yemeni national, and Ibrahim
Ahmed Mahmoud a! Qosi, a Sudanese national, who are all in solitary confinement in United
States military custody in Guantánamo Bay, Cuba. They are reportedly the only detainees so far
made subject to the Military Order on the Detention, Treatment and Trial of Certain Non-
Citizens in the War Against Terrorism signed by President Bush in November 2001. Those held
under the Order can reportedly be detained indefinitely without charge or trial. They can also be
tried by military commissions whose verdicts, including death sentences, cannot be appealed in
any court. Three of them, Ali Hamza Ahmed Sulayman al Bahlul, Ibrahim Ahmed Mahmoud al
Qosi and David Hicks, have allegedly been charged with conspiracy to commit war crimes. No
dates for their trials have been set, but reportedly David Hicks may face a military commission in
August 2004. All six men are believed to be held in Camp Echo, the part of the Guantánamo
facility where pre-commission detainees are held. Each man is allegedly held for 23-24 hours a
day in a windowless cell with no possibility of communicating with other detainees. Prolonged
isolation in conditions of reduced sensory stimulation can reportedly cause severe physical and
psychological damage. In a statement signed on 31 March 2004, psychiatrist Dr. Daryl
Matthews, who visited Guantánamo in 2003 at the invitation of the Pentagon, stated that the
solitary confinement places the detainees “at significant risk for future psychiatric deterioration,
possibly including the development of irreversible psychiatric symptoms”. The announcement
that these six detainees were subject to the Military Order reportedly came on 3 July 2003, and
they were then transferred to Camp Echo. Salim Ahmed Hamdan, who has been in custody since
November 2001, was transferred to Camp Echo in early December 2003, while Feroz Abbasi
and Moazzam Begg are believed to have been held there longer. In a separate development, Ali
Hamza Ahmed Sulayman al Bahlul's military lawyer said on 22 June that he had not met with
his client for two months because of delays obtaining security clearance for an interpreter.
Concerns have been expressed that any guilty pleas or detainee testimony before the military
commissions could be the result of the coercive nature of the conditions in which the detainees
E/CN.4/2004/60/Add. 1
Page 62
have long been held without any legal process. The conditions in Camp Echo are likely to leave
the detainees there even more susceptible to psychological coercion and false confessions.
According to Dr. Matthews's statement, Salim Ahmed Hamdan has said that he has considered
confessing falsely to ameliorate his situation. Also, a legal petition filed in federal court on
behalf of Salim Hamdan's military lawyer allegedly claims that the authorities have told the
prisoner that he would remain in custody until such time as he wished to plead guilty to some
unspecified crime against the United States in a manner satisfactory to the authorities, and that
his appointed defence counsel is not authorized to mount any legal defence to either his detention
or the circumstances of his incarceration, but rather is available only to assist him in pleading
guilty to some unspecified offence. There is further concern that the military commissions will
allow for the admission of evidence based on statements allegedly obtained without regird to
national and international standards of due process. According to a February 2002 memorandum
from the Justice Department to the Pentagon, made public on 22 June 2004, “incriminating
statements may be admitted in proceedings before military commissions even if the interrogating
officers do not abide by the requirements of Miranda [ the Supreme Court decision concerning
the rights of suspects and the conduct of interrogators ” since the military commissions are
subject only to the President's directives and powers as Commander in Chief of a military
campaign.
156. On 30 June 2004, a copy of a statement 1 (originally issued as part of a press release on
25 June 2004) by the Special Rapporteur jointly with the other participants at the eleventh annual
meeting of the special rapporteurs/representatives, independent experts and chairpersons of the
working groups of the special procedures of the Commission on Human Rights and of the
advisory services programme was sent. The text is reproduced below: 2
“Protection of human rights and fundamental freedoms in the context of anti-
terrorism measures
“The Special Rapporteurs/representatives, independent experts and chairpersons of the
working groups of the Special Procedures of the Commission on Human Rights and of
the Advisory Services Programme, meeting in eleventh annual session in Geneva from 21
to 25 June 2004, reiterate the concerns expressed in their statement of June 2003
regarding the serious incidence that certain measures taken in the name of the fight
against terrorism may have on the enjoyment of human rights and fundamental freedoms.
“They once again strongly voice their unequivocal condemnation of terrorism in all its
forms. At the same time, they reaffirm their individual and collective determination to
monitor, each within the framework of his or her mandate, those policies, legislation,
measures and practices developed by States in the name of the fight against terrorism,
with a view to ascertaining that they are consistent with international human rights
standards.
“Bearing in mind a number of recent developments that have seriously alarmed the
international community with regard to the status, conditions of detention and treatment
1 A copy of this statement was also sent to the Governments of Afghanistan and Iraq on 30 June 2004.
2 The text reproduced is the first part of a three-part press statement, the other two parts being onviolations of
human rights and fundamental freedoms in the occupied Palestinian territories and the situation of migrants.
E/CN.4/2004/60/Add. 1
Page 63
of prisoners in specific places of detention, they express their unanimous desire that the
Special Rapporteur on the Independence of Judges and Lawyers, Mr. Leandro Despouy,
the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, Mrs. Leila
Zerrougui, the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health, Mr. Paul Hunt and the Special
Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
Mr. Theo van Boven, visit, together and at the earliest possible date, those persons
arrested, detained or tried on grounds of alleged terrorism or other violations, in Iraq,
Afghanistan, the Guantanamo Bay military base and elsewhere, with a view to ascertain,
each within the confines of their mandate, that internatioml human rights standards are
properly upheld with regard to these persons, and also to make themselves available to
the authorities concerned for consultation and advice on all issues within their areas of
competence. They further express the wish that t1 y present the outcome of their
approaches and visits to the sixty.first session of the Commission on Human Rights.”
157. On 22 November 2004, the Special Rapporteur sent a joint allegation letter with the
Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur
on the question of torture and the Special Rapporteur on the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health acknowledging receipt of and
thanking the Government for its letter of 9 November. The offer to organize a briefing in
Washington DC by United States Government officials to discuss detention practices was noted,
and they welcomed the Government's initiative to begin a dialogue on this matter. It was a
unified decision of the special procedures of the Commission on Human Rights to visit, at the
earliest possible date, those persons arrested, detained or tried on grounds of alleged terrorism or
other violations in Iraq, Afghanistan, the Guantánamo Bay military base and elsewhere, with a
view to ascertaining, each within the confines of his/her respective mandate, that international
human rights standards are properly upheld with regard to these persons, and also to make
themselves available to the authorities concerned for consultation and advice on all issues within
their areas of competence. Owing to the gravity of the allegations, only such a visit could
properly address the concerns of the Commission and the international community at large.
Against this background, if the suggested briefing were to lead to and serve as preparation for the
requested visit, it would be a very positive preliminary step. It would be appreciated if the
meeting could take place in Geneva.
Conununications from the Govenunent
158. On 3 September 2004 the Government provided an interim response to the Special
Rapporteurs' joint communication of 2 July 2004 regarding allegations relating to six detainees
at Guantánamo Bay and advised that the reply required coordination with a number of
government agencies.
159. On 9 November 2004 the Government replied to the statement made by participants at
the eleventh meeting of the special procedures. Stating it is aware of the concerns and interests
of the Special Rapporteurs and indicating that internal government reviews were taking place
with respect to aspects of United States detention policy. Several reports had been completed and
made public. Although the Government advised that it was not able to make provision for the
visits as requested, it was willing to provide a briefing in Washington, DC by officials of the
United States Government, including representatives of the Department of Defence, to discuss
E/CN.4/2004/60/Add. 1
Page 64
matters related to detention practices; staff would be in contact to explore further possible
modalities and logistics for such a briefing.
Observations of the Special Rapporteur
160. Although the Special Rapporteur did not receive a response to two joint urgent appeals
sent in 2003 to the Government regarding Darnell Williams (E.CN.4/2004/60/Add. 1, paras.
101-102), he welcomes the news that on 2 July 2004 Indiana Governor Kernan granted clemency
and commuted Mr. Williams' death sentence to life imprisonment without the possibility of
parole.
161. Concerning the joint urgent appeal sent on 29 April 2004, the Special Rapporteur regrets
that the Government did not provide a response. However, he notes with satisfaction that,
according to information received, the death sentence of Osvaldo Tones has been commuted to
life imprisonment.
162. On 8 November 2004, a United States District Judge suspended the military commission
proceedings at Guantánamo Bay with respect to Salim Ahmed Hamdan. He ordered that unless
and until a “competent tribunal”, as required under article 5 of the Third Geneva Convention,
determined that Mr. Hamdan was not entitled to prisoner of war status, he must be accorded the
full protections of a prisoner of war. The Government has sought an expedited appeal and it is
probable that this case will be heard by the Supreme Court.
163. While the Special Rapporteur welcomes release of a few Guantánamo detainees, he
remains very concerned about the more than 500 detainees who have spent more than three years
in legal limbo. The Special Rapporteur takes note of two important judicial decisions on the
issue of enemy combatant detainees at Guantánamo Bay. Two Supreme Court decisions were
issued in 2204, the Rasul case, in which the court ruled that United States courts had jurisdiction
to hear cases of Guantánamo detainees, and the Hanidi case, where the Court held that those
detained by the United States must be given the opportunity to contest their detention before a
neutral decision maker.
Venezuela
Comunicación enviada al Gobierno
164. El 25 de noviembre de 2004, el Relator Especial envió un llamamiento urgente en
relacion con la situación de Danio Anderson, fiscal ambiental, quien habrIa sido asesinato. D c
acuerdo con las informaciones recibidas, el 19 de noviembre 2004, el Sr. Anderson fallecio por
el estallido de una bomba que fue colocada en su camioneta. Danilo Anderson estaba encargado
de la investigación del fallido golpe de Estado que tuvo lugar en abril de 2002 en Venezuela.
Respuestas del Gobierno
165. Mediante comunicación del 19 de marzo de 2004, el Gobierno proporcionó informacion
en relacion con la comunicación enviada por el Relator Especial el 18 de octubre de 2003
concerniente al proyecto de Ley Orgánica del Tribunal Supremo de Justicia sometido a la
Asamblea Nacional para su discusion definitiva, y enrelacion con lo acaecido el
E/CN.4/2004/60/Add. 1
Page 65
23 de septiembre de 2003 en la sede de la Corte Primera de lo Contencioso Administrativo. En lo
que concieme a la constitucionaiidad de aigunas disposiciones dci proyecto de icy, ci Gobierno
venezoiano afirmo que se trataba de un proyecto de icy, todavIa en etapa de deiiberacion en ia
Asambica Nacionai. Asimismo. Ei Gobierno afirmo que independientemente de cuai fuera ci
destino finai dci texto, ci referido acto iegisiativo pertenece ai dominio de ia soberania nacionai y
dci derecho de autodeterminacion dci puebio venczoiano que corresponde tan soio a éste. En
reiacion a ios hechos ocurridos ci 23 de septiembre de 2003, ci Gobierno negó ci uso de arma
aiguna en ia sede de ia Corte Primera de io Contencioso Administrativo.
166. Posteriormente, mediante comunicación de 14 de juiio de 2004, ci Gobierno venezoiano
remitió ai Reiator Especiai un texto con comentarios expiicativos de ia nueva Ley Orgánica dci
Tribunai Supremo de ia Repübiica de Venezucia. Dc acuerdo con dicho comentario, a partir de ia
aprobacion de ia Ley, ci Tribunai Supremo de Justicia asume un dobie roi ai continuar como
maxima instancia judiciai y asumir a ia vez ci papei de órgano de direccion, gobierno y
administracion dci poder judiciai. La asunción de este üitimo roi y ia consiguiente eiiminacion
dci Cons ejo de ia Judicatura obedecerian a ia inoperancia de éste üitimo. Asimismo, ai asumir
ambos roics se pretende conseguir ia formacion armónica y coherente en ias poiIticas pübiicas
dci ambito judiciai. En referencia a ias crIticas recibidas por ia Ley, ci thbierno afirmo que, en
io que ai aumento dci nümero de magistrados se refiere, éste obedece a ia necesidad de tratar ci
voiumen de casos que ventiia ci Tribunai Supremo, voiumen que vera aün mas incrementado ai
asumir ia nueva funcion de administracion y controi dci poder judiciai. En cuanto ai modo de
seieccion de ios magistrados, ci Gobierno rechazo ias crIticas seflaiando que en ci proceso
interviene una piuraiidad de órganos y soio en üitimo término, en caso de no iograr un consenso
anterior, se procederia ai nombramiento por via de pronunciamiento mayoritario dci Pariamento.
Observaciones del Relator Especial
167. Ei Reiator Especiai expresa su preocupación en reiacion con ia adopcion de ia Ley
Orgánica dci Tribunai Supremo de ia Repübiica de Venezucia en mayo 2004, que ampiio ia
composición dci Tribunai Supremo de 20 a 32 magistrados y permitió a ia coaiicion ai poder en
ia Asambica Nacionai nombrar 12 magistrados, obteniendo asi una gran mayoria de magistrados
en ci Tribunai Supremo. La Ley también otorga a ia Asambica Nacionai ia facuitad de anuiar ias
actuaies designaciones de magistrados, y eiimina ci Consejo de ia Judicatura, órgano
independiente de direccion, gobierno y administracion dci poderjudiciai. Ei Reiator Especiai
iamenta que ia adopcion y apiicacion de esta Ley, contraria a ia Constitución venezoiana y a ios
principios dci derecho internacionai, ha creado un poderjudiciai fuertemente poiitizado. Por
tanto, insta ai Gobierno a tomar urgentemente medidas para restabiecer ia independencia dci
poder judiciai venezoiano.
Yemen
Communications to the Government
168. On 28 May 2004 the Speciai Rapporteur sent a joint aiiegation ietter with the Speciai
Rapporteur on extrajudiciai, summary or arbitrary executions regarding Fuad ‘All Mohsen al-
Shahari, who is reportediy at risk of imminent execution if the President ratifies his death
sentence, which was upheid by the Supreme Court in March 2004. Concern was expressed that
triai proceedings may have faiien short of internationai fair triais standards. According to the
E/CN.4/2004/60/Add. 1
Page 66
information received, at the beginning of May 1996, Fuad ‘Au Mohsen al-Shahari met with two
Political Security officers concerning a dispute with his brother. The officers reportedly reacted
violently to his intervention and started firing their guns at him. On 29 May 1996, a military car
reportedly blocked his way and armed men forced him out of his car at gunpoint, arrested him
but released him shortly afterwards. It is reported that Fuad ‘Ali Mohsen al-Shahari informed the
General Prosecution of the incident, but no action was taken. That same day, men reportedly
surrounded him and tried to arrest him without a warrant, allegedly threatening him with death.
A gun battle followed, the details of which remain unclear, during which Captain Mohammed a!-
‘Amen from the Political Security Department was killed and at least one shot was fired by Fuad.
On 12 November 1996 Fuad ‘Ali Mohsen al-Shahari was found guilty of the premeditated
murder of Captain Mohammed al-Amen and was sentenced to death. On 20 September 1997 the
Court of Appeal upheld the sentence. On 20 May 1999, the case went before the Supreme Court
and was sent back to the Court of Appeal. It has been alleged that his trial allegedly failed to
meet international standards of fairness. For instance, he was convicted on the basis of a
confession which is said to have been extracted under torture while he was held incommunicado
for one month. Four versions of his confession were reportedly included in the charge sheets and
the forensic evidence was contradictory. It is further reported that he was not represented by
lawyers throughout the legal proceedings against him, that defence witnesses were not allowed
to testify and that certain pieces of evidence were disregarded. It is also alleged that a personal
dispute between Fuad ‘Ali Mohsen a!- Shahari and the prosecutor may have compromised the
prosecutor's impartiality. Finally, it is reported that the death sentence was confirmed by the
Commercial Division of the Supreme Court and not the Criminal Division of the Court.
169. On 23 December 2004, the Special Rapporteur sent a joint allegation letter with the
Special Rapporteur on the question of torture concerning Ludo Mouafo, Pierre Pengou,
Baudelaire Mechoup and Zacharie Ouafo, all nationals of Cameroon. Reportedly, they had
been held incommunicado in the Political Security Organization Prison in Sana'a since they were
arrested in a raid of the Plaza Suites Hotel in March 1995. The reason for their arrest is
unknown. It is reported that they are being detained in an underground cell in harsh conditions,
including, among other things, inadequate ventilation, food and access to health services. They
have been denied contact with family, as well as visits by lawyers, doctors and human rights
organizations. Lack of access to the prisoners has prevented petitions from being brought on
their behalf, as the prisoner's consent is required.
Zimbabwe
Conununication to the Goveriunent
170. On 12 February 2004 the Special Rapporteur sent ajoint allegation letter with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
regarding the resignation of Judge Michael Majuru, President of the Administrative Court,
around 15 January 2004, after allegedly being subjected to severe pressure and harassment from
government officials following his ruling to lift a ban on The Daily News, the country's only
independent daily newspaper. It is alleged that the Government threatened Judge Majura with an
investigation following claims by the Government that he had demonstrated bias towards the
Associated Newspapers of Zimbabwe, publishers of The Daily News. In October 2003, Judge
Majuru ruled that the State-run Media Commission, which issues the licences required by
newspapers and journalists in Zimbabwe, was biased and he ordered that the body be replaced by
E/CN.4/2004/60/Add. 1
Page 67
an impartial one, effectively revoking the Commission's ban on The Daily News. The
Government reportedly ignored the court ruling and The Daily News appealed. The appeal was
heard by another Administrative Court Judge, Justice Selo Nare, who on 19 December 2003
upheld Judge Majuru's ruling and The Daily News resumed printing in January 2004. It is
reported that Judge Majuru is the seventh judge since 2001 to have either beenforced to resign
from the bench or targeted by the Government as a result of rendering judgements against the
Government.
Communication from the Government
171. On 18 February 2004 the Government replied to the Special Rapporteurs' joint allegation
letter of 12 February 2004 and advised that Judge Majuru had resigned not because of any form
of harassment but because he was not prepared to face an inquiry into remarks he made before he
delivered judgement in the Association Newspapers of Zimbabwe matter. The inquiry sought to
establish the circumstances in which former Judge Majuru is said to have communicated to
certain people in a pub the verdict he was going to deliver in this case. Judge Majuru decided to
resign and has migrated to South Africa. The Government stated that the sequence of events
received by the Special Rapporteur is incorrect. According to the Government, The Daily News
could not have appealed since it is not possible to lodge an appeal with a judge of the same court
in respect of a judgement delivered by another judge of the court. The Government stated that
Judge Majuru never delivered the judgement since he removed himself after the inquiry into his
conduct had been launched. The judgement was then delivered by Justice Selo Nare. In addition,
those judges who had exercised their right to resign from the bench did so voluntary for various
reasons and were never forced into doing so.
