Aadel Collection
Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy
UNITED NATIONS Distr. Economic and Social GENERAL Council E/CN.4/1998/39 12 February 1998 Original: ENGLISH COMMISSION ON HUMP N RIGHTS Fifty—fourth session Item 8 of the provisional agenda QUESTION OF THE HUMP N RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy E GE.98—10499 (E)
CONTENTS ParaQra hs PaQe I. THEMANDATE 1- 6 4 II. METHODS OF WORK C. Communications with Governments D. Cooperation with intergovernmental and non—governmental organizations . . F. Promotional activities . . . . 27 7 7 IV. ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT . 28 - 30 11 V. COUNTRY SITUATIONS 31 - 178 A. Introduction . . 31 - 32 11 B. Situations in specific countries or territories Bahrain Bangladesh Belarus Bolivia Brazil Cambodia Colombia Croatia Cuba . Egypt . France Georgia India . Indonesia Iran (Islamic Kenya . Lebanon Malaysia Mexico Nigeria Pakistan 33 12 33—34 35—37 38—39 40— 41 42— 44 45— 48 49— 55 56— 57 58— 64 65— 67 68— 69 70— 73 74— 85 86— 95 96— 98 99 — 103 104 — 105 106 — 116 117 — 119 120 121 — 131 E/CN. 4/1998/39 page 2 III. ACTIVITIES OF THE SPECIAL RAPPORTEUR 8 - 27 7 A. Consultations 9 — 12 7 B. Missions/visits 13 - 14 E. Other United Nations procedures and bodies 8 15— 19 8 20—21 9 22—26 9 10 11 Republ i 12 13 14 14 15 15 16 18 18 20 21 21 22 24 31 32 33 34 36 36 37
E/CN.4/1998/39 page 3 CONTENTS ( continued) ParaQra hs PaQe Papua New Guinea Peru Philippines . Rwanda South Africa Spain Switzerland . Tunisia Turkey Venezuela . . Yugoslavia . 132 — 133 39 134 — 142 39 143 — 148 42 149 — 152 43 153 — 156 44 157 — 159 45 160 — 163 46 164 — 167 47 168 — 174 48 175 — 176 50 177 — 178 51 179 — 189 51 179 — 184 51 V. CONCLUSIONS AND RECOMMENDATIONS A. Conclusions B. Recorimendations 185 — 188 52
E/CN. 4/1998/39 page 4 I. THE MANDATE Introduction 1. The present report is submitted pursuant to Commission on Human Rights resolution 1997/23 of 11 April 1997. This report is the fourth annual report to the Corimission on Human Rights by Mr. Param Cumaraswamy since the mandate was established by the Commission in its resolution 1994/41 of 4 March 1994, renewed by resolution 1997/23 and endorsed by the Economic and Social Council in its decision 1997/246 of 22 July 1997 (see also E/CN.4/1995/39, E/CN.4/1996/57 and E/CN.4/1997/32). 2. Chapter I of the present report contains the terms of reference for the discharge of the mandate. Chapter II refers to the methods of work applied by the Special Rapporteur in the discharge of the mandate. In chapter III, the Special Rapporteur presents an account of the activities undertaken within the framework of his mandate in the past year. Chapter IV deals with the establishment of an international criminal court. Chapter V contains brief summaries of urgent appeals and communications to and from the Governments, along with the observations of the Special Rapporteur. Terms of reference 3. At its fiftieth session, the Commission on Human Rights, in resolution 1994/41, noting both the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights, requested the Chairman of the Corimission to appoint, for a period of three years, a special rapporteur whose mandate would consist of the following tasks: (a) To inquire into any substantial allegations transmitted to him and report his or her conclusions thereon; (b) To identify and record not only attacks on the independence of the judiciary, lawyers and court officials but also progress achieved in protecting and enhancing their independence, and make recommendations including the provision of advisory services or technical assistance when they are requested by the State concerned; (c) To study, for the purpose of making proposals, important and topical questions of principle with a view to protecting and enhancing the independence of the judiciary and lawyers. 4. Without substantially changing the mandate, the Commission endorsed in resolution 1995/36 the decision of the Special Rapporteur to use, beginning in 1995, the short title “Special Rapporteur on the independence of judges and lawyers”. 5. In resolutions 1995/36, 1996/34 and 1997/23, the Corimission on Human Rights took note of the annual report of the Special Rapporteur, expressing
E/CN.4/1998/39 page 5 appreciation for his working methods, and requested him to submit another annual report on the activities relating to his mandate to the Commission on Human Rights. 6. Several resolutions adopted by the Commission on Human Rights at its fifty—third session are also pertinent to the mandate of the Special Rapporteur and have been taken into consideration in examining and analysing the information brought to his attention with regard to the different countries. These resolutions are: (a) Resolution 1997/16 on the rights of persons belonging to national or ethnic, religious and linguistic minorities, in which the Corimission called upon all special representatives, special rapporteurs and working groups of the Corimission to continue to give attention, within their respective mandates, to situations involving minorities; (b) Resolution 1997/27 on the promotion of the right to freedom of opinion and expression, in which the Corimission invited once again the working groups, representatives and special rapporteurs of the Corimission on Human Rights to pay attention, within the framework of their mandates, to the situation of persons detained, subjected to violence, ill—treated or discriminated against for having exercised the right to freedom of opinion and expression as affirmed in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and other relevant human rights instruments; and invited the working groups, representatives and special rapporteurs of the Commission, within their mandates, to take note of any deterioration in the right to freedom of expression; (c) Resolution 1997/28 on hostage—taking, in which the Commission urged all thematic special rapporteurs and working groups to address, as appropriate, the consequences of hostage—taking in their forthcoming reports to the Corimission; (d) Resolution 1997/37 on human rights and thematic procedures, in which the Corimission invited the thematic special rapporteurs and working groups to: (i) make recommendations for the avoidance of human rights violations; (ii) follow closely the progress made by Governments in their investigations carried out within their respective mandates; (iii) continue close cooperation with relevant treaty bodies and country rapporteurs; (iv) include in their reports information provided by Governments on follow—up action, as well as their own observations thereon, including in regard to both problems and improvements, as appropriate; (v) include regularly in their reports gender—disaggregated data and to address the characteristics and practice of human rights violations under their mandates that are specifically or primarily directed against women, or to which women are particularly vulnerable, in order to ensure the effective protection of their human rights; requested the thematic special rapporteurs and working groups to include in their reports comments on problems of responsiveness and the result of analyses, as appropriate, in order to carry out their mandates even more effectively, and to include also in their reports suggestions as to areas where Governments might request relevant assistance through the programme of advisory services administered by the Office of the High Commissioner for Human Rights; and suggested that the special rapporteurs, representatives,
E/CN. 4/1998/39 page 6 experts and chairpersons of working groups of the special procedures of the Commission on Human Rights consider how those mechanisms could make available information on the particular situation of individuals working for the promotion and protection of all human rights and fundamental freedoms and how their protection could be enhanced, taking into account the ongoing deliberations of the relevant working group of the Commission; (e) Resolution 1997/42 on human rights and terrorism, in which the Commission urged all thematic special rapporteurs and working groups to address, as appropriate, the consequences of the acts, methods and practices of terrorist groups, in their forthcoming reports to the Commission; (f) Resolution 1997/43 on integrating human rights of women throughout the United Nations system, in which the Corimission encouraged the strengthening of cooperation and coordination among all human rights treaty bodies, special rapporteurs, special procedures and other human rights mechanisms of the Commission and the Sub—Commission on Prevention of Discrimination and Protection of Minorities, and requested that they regularly and systematically take a gender perspective into account in the implementation of their mandates, including information and qualitative analysis in their reports on violations of the human rights of women; (g) Resolution 1997/46 on advisory services, technical cooperation and the Voluntary Fund for Technical Cooperation in the Field of Human Rights, in which the Corimission invited relevant United Nations treaty bodies, special rapporteurs and representatives, as well as working groups, to continue to include in their recorimendations, whenever appropriate, proposals for specific projects to be realized under the programme of advisory services and technical cooperation in the field of human rights; (h) Resolution 1997/62 on human rights in Cuba, in which the Commission invited the Special Rapporteur on the situation of human rights in Cuba and the existing thematic mechanisms of the Corimission to cooperate fully and exchange information and findings on that situation; (i) Resolution 1997/69 on comprehensive implementation of and follow—up to the Vienna Declaration and Programme of Action, in which the Commission called upon all special representatives, special rapporteurs, independent experts and thematic working groups of the Corimission to take fully into account the recorimendations contained in the Vienna Declaration and Prograrime of Action within their respective mandates; (j) Resolution 1997/75 on human rights and mass exoduses, in which the Commission invited the special rapporteurs, special representatives and working groups of the Corimission and the United Nations human rights treaty bodies, acting within their mandates, to seek information, where appropriate, on problems resulting in mass exoduses of populations or impeding their voluntary return home and, where appropriate, to include such information, together with recorimendations thereon, in their reports, and to bring such information to the attention of the High Commissioner for Human Rights for appropriate action in fulfilment of her mandate, in consultation with the United Nations High Commissioner for Refugees;
E/CN.4/1998/39 page 7 (k) Resolution 1997/78 on the rights of the child, in which the Commission, recommending that, within their mandates, all relevant human rights mechanisms and all other relevant organs and mechanisms of the United Nations system and the supervisory bodies of the specialized agencies pay attention to particular situations in which children are in danger and where their rights are violated and that they take into account the work of the Corimittee on the Rights of the Child, took various decisions with respect to the situation of children in various circumstances of difficulty. II. METHODS OF WORK 7. The Special Rapporteur, in the fourth year of his mandate, continued following the methods of work described in the first report of his tenure (E/CN.4/1995/39, paras. 63-93). III. ACTIVITIES OF THE SPECIAL RAPPORTEUR 8. The following sections give an account of the activities carried out by the Special Rapporteur in the implementation of the mandate entrusted to him by the Corimission on Human Rights. A. Consultations 9. The Special Rapporteur visited Geneva for his first round of consultations from 1 to 8 February 1997 in order to finalize his reports to the Corimission. He held consultations with representatives of the Permanent Missions of Belgium, China, India and Nigeria. 10. He visited Geneva for his second round of consultations from 24 March to 8 April 1997 in order to present his report to the Commission at its fifty-third session. During this period the Special Rapporteur met with representatives of the Latin American Group, the Western Group and the Asian Group and other regional groups to brief them on his work as Special Rapporteur and to answer any questions they might have. He also held consultations with representatives of the Government of Nigeria. In addition, he held a briefing for interested non—governmental organizations and also met individually with several non—governmental organizations. 11. The Special Rapporteur visited Geneva for his third round of consultations from 20 to 23 May 1997 and to attend the fourth meeting of special rapporteurs/representatives, experts and chairmen of working groups of the special procedures of the Commission on Human Rights and of the advisory services programme, which was held from 20 to 23 May. 12. In conjunction with his missions to Belgium and the United Kingdom, the Special Rapporteur stopped over in Geneva from 31 October to 7 November 1997 for consultations. Again, in conjunction with his visit to New York, the Special Rapporteur stopped in Geneva from 22 to 29 November 1997 for further consultations.
E/CN. 4/1998/39 page 8 B. Missions/visits 13. During 1997, the Speoial Rapporteur undertook a field mission to Belgium (14 to 18 October 1997) followed by a mission to the United Kingdom (20 to 30 October 1997) . The Special Rapporteur's reports on these missions containing his findings, conclusions and recommendations can be found in addenda to the present report. 14. During the period under review the Special Rapporteur informed the Governments of Indonesia and Tunisia of his wish to carry out an in situ investigation. He reminded the Governments of Pakistan and Turkey of his previous requests to undertake a mission to those countries. C. Communications with Governments 15. During the period under review, the Special Rapporteur transmitted 18 urgent appeals to the following 12 States: Bangladesh, ColorcJiia, Egypt, India, Mexico, Pakistan (4) , Peru, Philippines (2) , Tunisia, Turkey (3), Venezuela and Yugoslavia. 16. Seeking to avoid unnecessary duplication of the activities of other thematic rapporteurs and country—specific rapporteurs, the Special Rapporteur has joined during the past year with other special rapporteurs and working groups to transmit seven urgent appeals on behalf of individuals to the Governments of the seven following countries: Bolivia, together with the Special Rapporteur on extrajudicial, summary or arbitrary executions on 6 March 1997; Brazil, jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions on 20 June 1997; Colombia, together with the Special Rapporteur on extrajudicial, summary or arbitrary executions on 17 July 1997; India, jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions on 13 June 1997; the Islamic Republic of Iran, together with the Special Representative on the situation of human rights in Iran, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur on extrajudicial, summary or arbitrary executions on 2 July 1997; the Philippines, together with the Working Group on Enforced or Involuntary Disappearances; and Rwanda, jointly with the Special Rapporteur on torture, the Special Rapporteur on the situation of human rights in Rwanda and the Special Rapporteur on extrajudicial, summary or arbitrary executions on 23 January 1997. 17. The Special Rapporteur transmitted 26 communications to the following 18 Governments: Bahrain, Brazil, ColorcJiia, Croatia, France, Georgia, India (4) , Indonesia (2) , Kenya (2) , Lebanon, Malaysia (2), Mexico, Pakistan, Papua New Guinea, Philippines (2) , Rwanda, Spain and United Kingdom (2) 18. The Special Rapporteur has also joined with other special rapporteurs to transmit three communications to the Governments of the following three countries: Switzerland, together with the Special Rapporteur on torture on 13 June 1996; Tunisia, together with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
E/CN.4/1998/39 page 9 on 4 Decer er 1997; Turkey, together with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on 7 October 1997. 19. The Special Rapporteur received replies to urgent appeals from the Governments of the following eight countries: Bangladesh, Belarus, Egypt, India, Pakistan, Peru (6), Tunisia and Turkey. Replies to joint urgent appeals were received from the Governments of India and the Islamic Republic of Iran. Replies to communications were received from the Governments of the following 12 countries: Colombia (4), Croatia, Cuba, Georgia (1), India (5), Indonesia, Kenya, Malaysia, Mexico, Philippines, Spain and United Kingdom (2) Replies to joint communications were received from the Governments of Switzerland (2) and Turkey. Other communications were received from the Governments of Bahrain and Peru (2) D. Cooperation with interQovernmental and non—Qovernmental orQanizations 20. The Special Rapporteur continued his dialogue with intergovernmental and non—governmental organizations in the implementation of his mandate. The Special Rapporteur thanks these organizations for their cooperation and assistance during the year. 21. In its previous correspondence with the Special Rapporteur, the World Bank addressed its concern at the incidence of corruption in the judiciary, particularly in developing countries. Of late, the Special Rapporteur has been receiving information of a general nature of such corruption in some countries. The Special Rapporteur will liaise with the World Bank on this issue to consider the feasibility of drawing up a programme of cooperation in this area. E. Other United Nations procedures and bodies 1. Cooperation with special ra Dorteurs and workinQ rou s of the Corimission on Human RiQhts 22. The Special Rapporteur continued to work closely with the mandate of other special rapporteurs and working groups. As previously indicated, the Special Rapporteur, in order to avoid duplications, where appropriate has joined in interventions with other special rapporteurs and working groups. The Special Rapporteur has also sought a joint mission to Tunisia with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The Special Rapporteur continued to make reference to reports of other special rapporteurs and working groups on issues relevant to his mandate. 2. Cooperation with the Crime Prevention and Criminal Justice Division 23. In his third report (E/CN.4/1997/32, paras. 26-29), the Special Rapporteur referred to the importance of the work done by the Crime Prevention
E/CN. 4/1998/39 page 10 and Criminal Justice Division in overseeing the implementation of the Basic Principles on the Independence of the Judiciary and the need for the Special Rapporteur to work closely with that Division. 24. The Special Rapporteur could not attend the Sixth Session of the Commission on Crime Prevention and Criminal Justice in Vienna, which was held from 28 April to 9 May 1997. However, he was informed by the Centre for International Crime Prevention of the Office for Drug Control and Crime Prevention in Vienna that replies to the questionnaire regarding the use and application of the Basic Principles on the Independence of the Judiciary had been received from 77 countries as of 16 Decer er 1997. The Special Rapporteur was also informed that the Crime Prevention and Criminal Justice Division is still in the process of undertaking a similar survey on the implementation of the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors. The Special Rapporteur will continue liaising with the same Division and will work closely with it for greater dissemination of the Basic Principles on the Independence of the Judiciary and its application in Mer er States. 3. Cooperation with UNDP 25. The Special Rapporteur thanks UNDP for the assistance and cooperation extended to him by UNDP offices in various countries. 4. Cooperation with the Activities and ProQrammes Branch of the Office of the HiQh Commissioner for Human RiQhts (OHCHR ) 26. As mentioned in his third report, the Special Rapporteur is collaborating with the Activities and Programmes Branch of the Office of the High Commissioner for Human Rights to develop a training manual for judges and lawyers (E/CN.4/1997/32, para. 31), as part of the United Nations Decade for Human Rights Education. The Special Rapporteur attended an expert meeting from 5 to 8 May 1997 to review the draft manual. The draft will be revised on the basis of substantive coriments made by the participants at the expert meeting and will be further piloted through forthcoming courses to be offered to judges and lawyers by the OHCHR programme of technical cooperation, before its final publication. The Special Rapporteur expects this manual to constitute a comprehensive curriculum for the training of judges and lawyers on international human rights standards, to be adapted case by case to particular national needs and legal systems. F. Promotional activities 27. As stated in his third report, the Special Rapporteur considers the promotion of the importance of the independence of the judiciary and the legal profession for respect for the rule of law in a democratic society, in the spirit of the Vienna Declaration and Programme of Action, to be an integral part of his mandate. In this regard, the Special Rapporteur continued to receive invitations to address legal forums, seminars, conferences and training programmes. Due to other commitments during the year, the Special Rapporteur could not accept all the invitations. Nevertheless, the Special Rapporteur accepted the following invitations:
E/CN.4/1998/39 page 11 (a) In Cambodia, from 23 to 25 June 1997, the Special Rapporteur addressed the opening of the judicial training programme organized by the Cambodian Law Training Project. He held consultations with the Minister for Justice, the local OHCHR office and other donor organizations. (b) From 25 to 30 August 1997 the Special Rapporteur attended the fifteenth LAWASIA Conference in Manila where he delivered several addresses and participated in panel discussions with several Chief Justices of the Asian—Pacific region. IV. ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 28. The Special Rapporteur wishes to express his appreciation for the efforts of the Preparatory Committee on the Establishment of an International Criminal Court (created by General Asser ly resolution 50/46 of 11 December 1995) which has been meeting periodically to create a draft treaty on the establishment of a permanent international criminal court to be put before a conference of plenipotentiaries in Rome in June—July 1998. The Special Rapporteur supports a strong permanent international criminal court with jurisdiction over serious violations of international human rights and humanitarian law. 29. With regard to the independence and impartiality of such a court, the Special Rapporteur is firmly of the opinion that the permanent international criminal court must have a strong independent prosecutor who can initiate investigations on his own motion without any political or other considerations. A prosecutor with the requisite independence and impartiality will add considerably to the integrity and independence of the court. 30. As the Special Rapporteur discussed in his earlier report to the Commission (E/CN.4/1997/32, paras. 45 and 46), it is important that the method of remuneration of judges of the court from its inception be seen to be compatible with their security of tenure so as to maintain their independence. It is equally important for the court's decisions, either interlocutory or final, to be complied with by States. If States are permitted to ignore its decisions, the very object of the establishment of the court will be defeated and public confidence in the integrity of the court lost. The statute therefore must provide for a procedure to secure compliance when there is a failure to do so. The Special Rapporteur hopes that these issues will be adequately addressed at the next Preparatory Committee meeting before the final draft statute is presented in Rome. V. COUNTRY SITUATIONS A. Introduction 31. This chapter contains brief surimaries of the urgent appeals and corimunications transmitted to Governments between 1 January and 10 December 1997, as well as replies to the allegations received from the Governments between 1 January 1997 and 28 January 1998, including meetings the Special Rapporteur had with government representatives. In addition, the Special Rapporteur takes note in this chapter of the activities of other mechanisms which are related to his mandate. Where he has deemed it
E/CN. 4/1998/39 page 12 necessary, the Special Rapporteur has included his own observations. He wishes to emphasize that appeals and corimunications reflected in this chapter are based exclusively upon information that has been transmitted to him directly. Where information was insufficient, the Special Rapporteur was not in a position to act. Further, he deeply regrets that lack of sufficient human resources has prevented him from acting upon all the information transmitted to him during the past year, and he apologizes to the organizations who have provided him with well—documented and well—researched reports on particular situations. The Special Rapporteur also recognizes that problems concerning the independence and impartiality of the judiciary are not confined to the countries mentioned in this chapter. In this regard, he wishes to emphasize that readers of the present report should not interpret the omission of a particular country from this chapter as indicative that the Special Rapporteur considers that there are no problems with the judiciary in that country. 32. In preparing this report, the Special Rapporteur took note of reports of his colleagues, Mr. Thomas Hammarberg, Special Representative of the Secretary—General on the situation of human rights in CarcJiodia; Ms. Elisabeth Rehn, Special Rapporteur on the situation of human rights in the territory of the former Yugoslavia, and Mr. Michel Moussalli, Special Representative on the situation of human rights in Rwanda. B. Situations in specific countries or territories Bahrain Communication from the Government 33. On 7 May 1997, the Government of Bahrain transmitted a letter to the Special Rapporteur requesting clarification on the passage in his report to the fifty-third session of the Corimission on Human Rights which expressed concern that “the trials before the State Security Court violate article 14 of the International Covenant on Civil and Political Rights owing to the apparent lack of due process in the Court” (E/CN.4/1997/32, para. 76) Communication to the Government 34. On 12 November 1997, the Special Rapporteur replied to the letter of 7 May 1997, explaining that he had received serious allegations concerning the alleged lack of due process within the State Security Court. According to the source, defendants are not allowed access to legal counsel until they are brought to the State Security Court; defence lawyers allegedly do not have access to court documents, nor do they have adequate time to prepare a defence for their clients; defence lawyers are given limited access to their clients during the trials before the State Security Court; and the sessions before the Court are allegedly held in camera. Further, article 7 of the Criminal Security Court Law provides that “the verdict passed by the court shall be final and shall not, in any manner, be appealed against, unless the said verdict has been passed in the absence of the accused, in which event, the procedure stated in the foregoing article shall apply”. It was also brought to the Special Rapporteur's attention that of three State Security Courts, two are presided by mer ers of the Al—Khalifa family which governs the State of
E/CN.4/1998/39 page 13 Bahrain. The Special Rapporteur took note of the fact that the State Security Court Law does in fact provide for procedural guarantees that address the allegations contained in the communications sent by the Special Rapporteur to the Government. However, the source presented allegations concerning specific cases in which these procedural guarantees were not followed by the State Security Court, allegations that were summarized in the communications sent to the Government on 16 October 1996 and 18 Nover er 1996. BanQladesh Communication from the Special Ra iniorteur 35. On 14 February 1997, the Special Rapporteur sent an urgent appeal to the Government of Bangladesh to express his concern over the legal situation of Mrs. Zobalda Rashid, wife of Colonel Rashid. According to the source, Mrs. Rashid was arrested on 3 November 1996 in her Dhaka residence on a remand order and held for five days, during which time she was reportedly tortured to make her confess. It has been reported that she was brought before the Chief Metropolitan Magistrate on 12 November 1996 without the presence of her attorney and that the charges against her were unclear. Attempts to manipulate the legal proceedings were also reported; in particular, her defence attorney was misinformed of the dates of Mrs. Rashid's appearances in court and he did not have access to documents relating to the case. Communication from the Government 36. In February 1997, the Government provided the Special Rapporteur with a reply to the urgent appeal sent on behalf of Mrs. Zobalda Rashid. The Government stated that Mrs. Rashid was arrested on 3 Nover er 1996 in the presence of her attorney, Mr. Forman Ali, and was prosecuted for possession of illegal arms. She was held at a police remand centre for five days and on 9 Nover er 1996, she was produced before the Chief Metropolitan Magistrate, who granted further remand for four days. The allegation that she was tortured during her detention is false and unfounded. The Government added that the investigation has established the involvement of Mrs. Rashid in a criminal conspiracy to kill the then President of Bangladesh, Bangabandhu Shelkh Mujibur Rahman, and 32 others, including pregnant women and children, but she was never charged with any subversive act against the Government and she was never detained under the Special Powers Act 1974. The Government also asserted that she has been very well treated in jail and that she was allowed to receive visitors and lawyers. The Government also listed the names of relatives and advocates who visited her in detention between 1996 and February 1997. Ob s e r vat i on s 37. The Special Rapporteur thanks the Government for its prompt response to his intervention. The Special Rapporteur has not heard further from the Government.
E/CN. 4/1998/39 page 14 Belarus Communication from the Government 38. On 10 January 1997, the Government provided the Special Rapporteur with a reply to his letter dated 12 November 1996 regarding the alleged process of suspending the Constitutional Court by the head of State following its decision concerning the referendum on two draft constitutions. The response of the Government contained information with regard to provisions embodied in the Constitution concerning the administration of justice and the appointment and independence of judges. It also gave detailed information regarding the organization of the judicial system and the status of judges as contained in the Republic of Belarus Act of 13 January 1995. The Special Rapporteur was also informed of the appointment proceedings, the activities and the competence of the Constitutional Court judges. The Government stated that the above—mentioned general information related to the period covered by the inquiry from the Special Rapporteur concerning the situation of judicial organs in Belarus. Finally, the Government added that on 24 November 1996, the Republic of Belarus adopted a new Constitution by referendum which amended the procedure for the appointment of judges. The President of the Constitutional Court, the President of the Supreme Court and the President of the Supreme Economic Court are now appointed by the President with the consent of the Council of the Republic, whereas these persons were all elected by the Supreme Council under the previous Constitution. The new Constitution has also increased the mercJiership and age limit of the Constitutional Court. Ob s e r vat i on s 39. The Special Rapporteur would like to thank the Government for its response. However, he notes that the Government did not provide him with information regarding the specific allegation he sent. He remains concerned that the judiciary may not be independent from the executive branch. Bolivia Communication to the Government 40. On 6 February 1997, the Special Rapporteur transmitted an urgent appeal jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning the case of lawyer and President of the non—governmental Permanent Human Rights Asser ly of Bolivia, Mr. Waldo Albarracin, who had reportedly been detained by eight policemen. According to the information received, he was severely beaten and threatened with death. He was recently transferred to the headquarters of the Technical Judicial Police in La Paz and then taken to a hospital. It is reported that the incident may be related to a statement made by Waldo Albarracin to the press about a violent encounter between miners and the police which took place in the Amayapampa region of Bolivia and in which nine people were killed. Ob s e r vat i on s 41. At the time the present report was finalized, no reply had been received from the Government.
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H- (DCL t h-C) (D C(D J crot R . h-hiH (D hi C H-( hi (D(D h- t 00DH- H C H-hit > • Htt r cDH-crcr J (DH h- H- > (D ht h- Ca h- t BCC hi hh hi OH- CCThDCa (D (D C(Dh-H- H (DH- ycr >(D CCa Ctt(DCt tt tc i .X hi (D h- C h-H (Dh- h- BChi t 0 > çn C)hi Q (D cL ci ] LC tH- çB H-H- 0hi0 C CH-h-H-H- H J < t (D CaU) JR C (D CaD 0 t J< hi >CH JU) C (D Cci. hi h-h- H (D JCa Nci.H- N hi C >hi i.C hiU)XCa rrCaU) (D Cah-U)ci.h- ci.L-H (D CaCaCa X Jci.C W (DC Cah- ci. Hhi (Dh- CC Ca J ci. (D ci. ci.tC Ca JHO 0H- (D i. Jhh H- tci. t h-U) JH-U) BU) a C (D 0 J 0 0 (DH- B h- h-h- (Dh-C) J Cah-h- hi . B(D E/CN. 4/1998/39 page 16 48. The Special Rapporteur associates himself with the concerns expressed by the Special Representative of the Secretary—General for Cambodia over the independence of the judiciary in Cambodia, as expressed in his recent report to the General Assembly (A/52/489) C 01 omb i a Communications to the Government 49. On 17 July 1997, the Special Rapporteur sent an urgent appeal jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning lawyer and City Ombudsman of San Calixto José Estanislao Amaya Páez. It has been reported that Mr. Amaya Paéz had received a death threat from a paramilitary group called “Autodefensas del Catatur o” which ordered him to leave the region within eight days. According to the information received, this paramilitary group is linked with the ColorcJiian security forces. 50. On 1 August 1997, the Special Rapporteur transmitted a communication to the Government concerning lawyers José Luis Marulanda Acosta and Augusto Zapata Rojas. It was alleged that mer ers of the Colombian military had submitted a report stating that both men were active members of the National Liberation Army (ENL) . Reportedly, this was based on Mr. Marulanda Acosta's defence of Jhon Jairo Ocampo Franco, who was arrested and charged with being a mer er of the ENL. The source further alleged that Mr. Maralunda Acosta and Mr. Zapata Rojas, who merely shares an office with Mr. Marulanda Acosta, began having problems following the former's refusal to allow his client to be photographed with allegedly confiscated material. The photographs were to be sent to the national press. 51. On 17 November 1997, the Special Rapporteur sent an urgent appeal concerning lawyers Alirio Uribe Munoz, Rafael Barrios Mendivil and Miguel Puerto Barrera, members of the “José Alvear Restrepo” lawyers' collective. Allegedly, the lawyers had suffered threats and harassment for several months. It was reported that Alirio Uribe Munoz, President of the collective, was accused of supporting a wing of the ENL. The accusations were reportedly made in a report submitted by the army to the Bogota regional prosecutor's office. It was also reported that Miguel Puerto Barrera, legal representative of the victims, was declared a military objective by the army. Finally, Rafael Barrios Mendivil, legal representative of the families and survivors of the Caloto massacre, had been reportedly subjected to constant tailing, harassment and threats. Communications from the Government 52. On 1 October 1997, the Government sent a reply to the communication transmitted by the Special Rapporteur concerning lawyers Luis Marulanda Acosta and Augusto Zapata Rojas. According to the Government, the Fiscalia ReQional DeleQada of the city of Armenia is investigating Jhon Jairo Ocampo for charges of rebellion. The investigation started on 7 February 1997 and on 22 April the Prosecutor ordered the arrest of Jhon Jairo Ocampo. On 9 May the Prosecutor decided to release him. The investigation is currently in the examination proceedings, collecting evidence, in order to clarify the facts.E/CN.4/1998/39 page 17 53. On 3 Decer er 1997, the Government provided additional information with regard to the above—mentioned case. The Government informed the Special Rapporteur that according to a report submitted by the judicial attorney ( Procurador Judicial en lo renal ) in the city of Armenia, there were no irregularities in the investigation of the case of Jhon Jairo Ocampo that justify the appointment of a Special Agent; however, the judicial attorney ordered special surveillance to the process. Furthermore, the Government informed that the complaint made by lawyer José Luis Marulanda Acosta was at that moment under investigation. On 16 December 1997, the Government of Colombia provided the Special Rapporteur with a reply to his comunication dated 16 November 1997 regarding the case of the mer ers of the “José Alvear Restrepo” lawyers' collective. According to the Government, the case had been studied by the competent authorities of the Government. In particular, the Committee on the Regulation and Evaluation of Risks of the Programme of Special Protection for Witnesses and Threatened Persons of the Human Rights Administrative Special Unit of the Ministry of Interior had ordered the adoption of the measures for protecting the office and the integrity of the members of the collective. These security measures, located in the “Edificio de Avancia” in the city of Santa Fe in Bogota, included the installation of a reinforced security door at the entry level, a closed—circuit security system and an entry system for staff involving an electronic keyboard and magnetic cards. Moreover, a seminar on self—protection was organized for the members of the collective. Rafael Maria Barrios, Reynaldo Villalba and Pedro Julio Mahecha had been given bulletproof vests and cellular telephones in which the telephone numbers of the security branch of the Ministry of Interior had been programed in the event that an emergency arose. The Direction of Protection of the Administrative Department of Security was requested to undertake a study of threats issued against Mr. Alirio Uribe, Mr. Rafael Barrios, Mr. Barrios Mendivil and Mr. Puerto Barrera and to evaluate the risks. The Government said that notwithstanding the previous communication, it had not been possible to obtain within the given time detailed information relating to the investigations concerning the mentioned allegations. The Government requested an extension of two months in order to present its observations concerning the allegations made by the mer ers of the wJosé Alvear Restrepo” lawyers' collective. 54. On 23 January 1998, the Government provided the Special Rapporteur with the requested additional information. According to the Government, the Public Prosecutor's Department had stated in a recent communication that the Terrorism Unit of the Bogota Regional Prosecutor's Office confirmed that the Unit was not undertaking any proceedings against Mr. Uribe Munoz, Mr. Puerto Barrera or Mr. Barrios Mendivil on the contrary, the Unit was investigating the threats against them. In addition, the Special Rapporteur was informed that the Protection Department had undertaken the study of the level of risk and intimidation of the three men. The study was being considered by the Committee on the Regulation and Evaluation of Risks, and the Special Rapporteur would be provided with the Comittee's conclusions. Ob s e r vat i on s 55. The Special Rapporteur thanks the Government of Colombia for the responses provided. However, he notes that the replies dated 1 October 1997, 3 and 16 December 1997 and 23 January 1998 do not address the SpecialE/CN. 4/1998/39 page 18 Rapporteur's concerns about lawyers Dr. Marulanda Acosta and Dr. Zapata Rojas. The Special Rapporteur will continue to monitor developments in the three complaints. Croatia Communication to the Government 56. On 4 Nover er 1997, the Special Rapporteur sent a communication to the Government containing general allegations concerning the judiciary in Croatia. According to the information received, several judges were reportedly relieved from their posts following decisions by the State Judicial Council which were alleged to have been motivated more by the national origin or political views of the judges than by their professional competence. The President of the Supreme Court, Dr. Krunislav Olujic, was reportedly dismissed following a decision of the High Judiciary Council on 4 January 1997 which was alleged to be connected to his determination to work independently of the ruling HDZ political party. Some dysfunctions of the judiciary were also brought to the Special Rapporteur's attention, in particular the pre—selection of judicial candidates by the Minister of Justice. Further, security of tenure is not guaranteed for judges. The Croatian courts have also reportedly experienced difficulties with implementing their decisions, particularly with respect to cases against members of the Croatian army and the police, or where rulings were in favour of non—Croats. It was also reported that the accused's right to have an attorney present during the investigative phase and during an appeal against investigative detention was not always respected. Communication from the Government 57. On 14 January 1998, the Special Rapporteur received a communication from the Government of Croatia in response to his letter of 4 November 1997. Save for setting out generally the constitutional provisions governing the judiciary in Croatia and stating that the removal of the former President of the Supreme Court was not motivated by political considerations, the issues raised in the Special Rapporteur's letter were not addressed. The Special Rapporteur therefore intends to follow up on the matter. Cuba Communications from the Government 58. On 25 February 1997, the Government sent a response to a letter transmitted by the Special Rapporteur on 8 July 1996 concerning the Cuban legislation on the independence of judges and lawyers and the cases of Cuban lawyers Leonel Morejón Almagro and René Gómez Manzano. 59. The Government of Cuba provided information on the reforms of the judiciary since the ending of the previous regime, particularly the law that abolished the Emergency Tribunals and the Criminal Division of the High Court. Both institutions then had the power to impose severe punishments summarily without complying with fundamental guarantees for the accused and without right of appeal to a higher tribunal. The Government further explained that the principle of the independence of the judiciary is enshrined in theE/CN.4/1998/39 page 19 Constitution and in the 1990 Law on the Tribunales Po ulares . Decree—Law 81 of 1984 provides, inter alia , that “the exercise of the legal profession is free” and that lawyers are independent and accountable only to the law. Article 5 of Decree—Law 81 defines the Organización Nacional de Bufetes Colectivos (National Organization Of Collective Law Offices) as a public interest professional legal entity, autonomous and national, whose membership is voluntary and which is regulated by the law and its own agreements and provisions. 60. The Criminal Procedure Law of Cuba contains provisions with regard to the functions of lawyers, including members of the Organización Nacional de Bufetes Colectivos. Regarding the latter, the law states, inter alia , that disciplinary measures against the mer ers of the organization may be appealed to the highest levels and that disciplinary sanctions may be applied by the courts against legal professionals for professional misconduct in the performance of their functions. 61. In addition, the Government informed the Special Rapporteur that the freedom of association and of speech of lawyers is recognized in articles 53 and 54 of the Constitution and, for the mer ers of the Organización Nacional de Bufetes Colectivos, in article 34 of its Regulations. Moreover, Decree—Law 81 states that lawyers may organize and conduct legal literacy programmes for the public. 62. The Government questioned the motives of the source who complained to the Special Rapporteur and suggested that he establish clear rules of admissibility for allegations. As an example, concerning the case of lawyer Leonel Morejón Almagro, the Government explained that he had been expelled by the Organización Nacional de Bufetes Colectivos because of repeated and serious failures to carry out his professional duties, thereby harming both his clients and the prestige of the organization. As provided for by law, Mr. Morejón had appealed to the Minister of Justice, alleging that although he had made mistakes, those were due to the number of cases with which he had to deal and to his weakness with respect to certain details. The Minister upheld the expulsion. 63. Regarding the case of Mr. Gómez Manzano, the Government explained that his request to create a lawyers' association was rejected because it would have had similar objectives to those of the existing Union Nacional de Juristas de Cuba, which would be contrary to Cuban law. Ob s e r vat i on s 64. The Special Rapporteur thanks the Government for its detailed response. From its response, it does appear that the Government, through the Minister of Justice, has some control over disciplinary sanctions on lawyers. Principle 28 of the United Nations Basic Principles on the Role of Lawyers provides: “Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review ” (emphasis added) . The fact thatE/CN. 4/1998/39 page 20 Mr. Leonel Morejón Almagro appealed to the Minister of Justice and the Minister dismissed the appeal, indicates that there may not be a provision in the legislation for an independent judicial review as provided in principle. Ecp qi t Communication to the Government 65. On 23 September 1997, the Special Rapporteur sent an urgent appeal concerning lawyers Mohammad Sulayman Fayyad and Hamdi Haykal, arrested on 17 June 1997 in the town of Banha for criticizing, in a public gathering, Law 96 of 1992. They were reportedly charged with possession of printed material critical of Law 96, which allows landowners to evict farmers, and with inciting farmers to oppose the Law, although by peaceful means. According to the information received, they were tortured in Tora penitentiary by security officers. They were then transferred to the High Security Prison in Tora. The authorities did not inform their lawyers or families of their whereabouts until 19 June and, even then, they were unable to receive visits due to a ban forbidding visits by lawyers and relatives to detainees. The Special Rapporteur was also informed that on 9 August 1997, Sayyed Ahmad al-Tokhi, a lawyer from the Egyptian Organization of Human Rights (EOHR) , was arrested at Cairo airport allegedly in connection with his peaceful activities in opposition to Law 96. For two days he was held in three different detention centres without charges being brought against him. According to the source, he was finally interrogated on 11 August in the presence of defence lawyers at the State Security Prosecution Office. Before being transferred to Mazra'at Tora prison, where he was reportedly detained at the time of the intervention, he was held in al—Mahkoum prison in Tora where he was said to have been ill—treated. He has been charged with verbally promoting ideas which contradict the fundamental principles of the ruling regime. Communication from the Government 66. On 15 October 1997, the Government provided the Special Rapporteur with a reply to his urgent appeal, in which it confirmed that all the rights of the persons in question were respected and that their cases were being dealt with in an orderly manner according to the law. Regarding the cases of Mr. Mohamed Soliman Fayed and Mr. Hamdy Heikal, the Government informed the Special Rapporteur that both persons had conducted premeditated and organized agitation instigating farmers to oppose by force the implementation of the new Law 96 of 1992 on tenancy agreements in regard to agricultural land. According to the Government, both persons have been arrested by order of the Public Prosecutor following a search of their residence where printed material calling for opposition by force to the Law was found. The Government mentioned that while the two persons were imprisoned in the Tora penitentiary, they attacked some military police working in the prison. Those incidents were investigated. Regarding the case of Mr. Ahmed Altouhky, the Government informed the Special Rapporteur that he was arrested on 9 August 1997 at Cairo airport trying to escape an arrest warrant issued by the Public Prosecutor for the same reasons mentioned in the case of Mr. Fayed and Mr. Heikal. The Public Prosecutor had begun an investigation, but had not then reached a final decision. According to the Government, nothing in the facts related to theE/CN.4/1998/39 page 21 three cases was connected to their profession as lawyers and all of their rights during investigation and detention were fully respected. Ob s e r vat i on s 67. The Special Rapporteur thanks the Government for its response. France Communication to the Government 68. On 7 Nover er 1997, the Special Rapporteur sent a communication to the Government of France regarding the strike on 6 Nover er 1997 in which most of the 33,000 French lawyers participated in order to draw the attention of the Government to the lack of human and financial resources of the French justice system, resulting in a large backlog of cases in the courts. In addition, the Special Rapporteur requested the Government to provide him with the latest developments relating to the draft reform of the judicial system in France. Ob s e r vat i on s 69. To date, the Government has not responded. GeorQia Communication to the Government 70. On 23 September 1997, the Special Rapporteur sent a corimunication to the Government expressing concern about allegations of interference of the executive in political and criminal trials and politically sensitive trials. It was also reported that judges practise self—restraint in order to retain their jobs and that sentences in politically sensitive cases are handed down by the Supreme Court of Georgia acting as a court of first instance. According to the source, the sentences of this Court are considered to be final and the right of appeal to a higher court is denied. The Special Rapporteur was also informed that the April 1995 amendments to the Criminal Code substantially restrict the rights of lawyers in defending their clients. According to the source, certain amendments have the effect of limiting a defence lawyer's access to important documents. Communications from the Government 71. On 19 January 1998 the Government responded by sending a copy of a letter dated 16 January 1998 addressed to the High Commissioner for Human Rights. The Government indicated that Georgia had adopted a new democratic Constitution on 24 August 1995 and, pursuant to this Constitution, on 13 July 1997 the Parliament of Georgia adopted the Basic Law on courts of general jurisdiction. The Government stated that the Basic Law completely transformed the status of courts in the country as regards their relations with other bodies of authority. The Government had sought the comments of the High Commissioner on the Basic Law.E/CN. 4/1998/39 page 22 Ob 5 JT Vat ions 72. Georgia obviously Is going through a period of transformation from the previous Soviet system to democracy. The Government admits that under the previous system there were many ways to influence the courts. 73. The Special Rapporteur thanks the Government for its response and will study the materials on the new Basic Law and express his comments in due course. India Communications to the Government 74. On 21 February 1997, the Special Rapporteur sent a communication to the Government of India in which he requested to be advised of the status of the investigations concerning the kidnapping and killing of Mr. Jalil Andrabi, lawyer and human rights activist. This case was the subject of an exchange of correspondence between the Special Rapporteur and the Government in 1996 and was mentioned in his 1997 report (E/CN.4/1997/32, paras. 110-115) 75. On 29 May 1997, the Special Rapporteur transmitted a communication to the Government concerning Jasved Singh, a human rights lawyer who had allegedly been threatened and harassed by the police. He was reportedly accused of harbouring terrorists and his home had been raided more than 100 times. According to the source, Jasved Singh received such treatment because of his defence of suspected terrorists and his human rights work. In the same communication, the Special Rapporteur recalled his previous letters concerning the kidnapping and murder of Jalil Andrabi and requested the Government to provide him with information on the current status of the investigations. 76. On 13 June 1997, the Special Rapporteur sent an urgent appeal jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning T. Puroshotham, lawyer and joint secretary of the Andhra Pradesh Civil Liberties Committee, who was reportedly attacked on 27 May 1997 by police in plain clothes and sustained serious head injuries. According to the source, the “Green Tigers”, a group allegedly established by the Andhra Pradesh Government in concert with the police to counter the activities of human rights defenders, claimed responsibility for the attack. 77. On 1 August 1997, the Special Rapporteur sent a communication to the Government in which he provided additional information on the harassment and intimidation of Jasved Singh. According to the information received by the Special Rapporteur, Jasved Singh resides in the State of Punjab and practises in the subregional courts. He is also a member of a local civil liberties organization. He allegedly began to have difficulties in 1987 when he was charged with terrorist and disruptive activities. He was released after 33 days of detention and acquitted of all charges. The source also alleged that in 1990 Mr. Singh was arrested for murder, jailed for 20 days and subsequently acquitted. According to the source, Jasved Singh was also aggressively questioned for his defence of two Sikh men charged with the murder of Pisham Prakesh, the President of the Congress in Khanna district.E/CN.4/1998/39 page 23 78. On 23 September 1997, the Special Rapporteur transmitted a communication to the Government concerning the harassment of three lawyers and a judge. According to the information received, a team of armed personnel of the 30th Assam Rifles, along with one Manipur police constable, searched the home of lawyer Thokchom Ibohal Singh on 4 April 1997. It was further alleged that he was accused of being a sympathizer of an underground organization and of giving financial assistance to it, although no evidence was found. The Special Rapporteur was also informed that lawyer Khaidem Mani Singh, Vice—President of the Manipur Bar Association, was arrested with his wife on the evening of 31 March 1997 and charged with harbouring armed opposition leaders. It was also reported that lawyer Chongtham Cha Surjeet's house was raided on 4 July 1997 by a team of the Indian Army and the Rapid Action police Force of the Manipur Police. Finally, the Special Rapporteur expressed his concern about allegations received concerning Judge W.A. Shishak, a judge of the Gauhati High Court, whose house was raided on 10 Decer er 1996. According to the source, the assault was related to his activities in defence of human rights in Manipur. 79. On 24 September 1997, the Special Rapporteur sent an urgent appeal to the Government of India concerning the lawyer Ravi Nair, Executive Director of the South Asian Documentation Centre, based in New Delhi. According to the source, Ravi Nair received two phone calls from a policeman, who identified himself as Deputy Commissioner of Police of the Delhi police, threatening him with arrest and physical injury. Communications from the Government 80. On 4 July 1997, the Government provided a reply to the Special Rapporteur containing additional information on the case of the human rights lawyer Jasved Singh. In the same letter, the Government enclosed information regarding the death of Jalil Andrabi. According to the Government, the Division Bench of the Jarimu and Kashmir High Court of Srinagar took into consideration the investigation report of the Special Investigation Team and issued an order on 10 April 1997 requesting efforts to secure the presence for questioning of a Territorial Army officer, Avtar Singh. The authorities concerned were also requested to collaborate with the Special Investigation Team. 81. The Special Rapporteur received a reply from the Government of India on 29 September 1997 with respect to the case of Ravi Nair. The Special Rapporteur was informed that the Permanent Mission of India to the United Nations Office at Geneva had gotten in touch with Mr. Nair regarding his alleged harassment and that the National Human Rights Corimission was currently seized of the matter. According to the Government, inquiries were being conducted into the incident. 82. On 9 October 1997, the Government provided a reply to the urgent appeal sent jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions regarding lawyer T. Purushottam. According to the Government, T. Purushottam was attacked by some unknown individuals on Station Road, Mahbubnagar. The Station House Officer of the nearest police station took T. Purushottam to the government hospital irimediately for treatment and also recorded his statement. The Government informed the Special RapporteurE/CN. 4/1998/39 page 24 that the Additional Superintendent and the Superintendent of Police of the area also visited T. Purushottam at the hospital to ascertain the facts of the case. Efforts were currently being made to identify the persons responsible for the assault. 83. On 23 October 1997, the Government responded to the Special Rapporteur regarding a raid allegedly conducted by security forces on the house of the Judge W.A. Shishak of the Giwahati High Court. According to the Government, the incident was brought to the attention of the Chief Justice of the Guwahati High Court who immediately issued orders for a formal petition impleading the Union of India and the State Government of Nagaland to be registered. The army officers concerned were directed to file their reply within a week and, in the meantime, the Superintendent of Police of Dimapur gave instructions to visit the spot and inquire into the matter. The hearing of the case took place on 7 April 1997 and affidavits were filed by army and police authorities. The Guwahati High Court concluded that the incident was a result of confusion caused by the fact that the building was not the official residence of Justice Shishak and that one of the mer ers of his staff looked like a suspect for whom the security forces were searching. The Government informed the Special Rapporteur that the information regarding other allegations raised in the communication would be provided to him as soon as it was received from the concerned officials. Ob s e r vat i on s 84. The Special Rapporteur would like to thank the Government of India for its replies and welcomes the positive steps taken in the cases. However, he remains concerned about the frequent allegations he has received of harassment and intimidation of lawyers by the police and security forces. He requests the Government to investigate systematically, thoroughly and impartially these allegations, to identify those responsible and bring them to justice. 85. Regarding the case of Jalil Andrabi, the Special Rapporteur, while expressing his appreciation for the investigations into the death of Jalil Andrabi, yet remains concerned over the delay in concluding the investigation. Indonesia 86. On 12 June 1997, the Special Rapporteur sent a letter to the Government of Indonesia with regard to previous allegations transmitted on 23 October 1996 concerning Mochtar Pakpahan and Banbang Widjojanto. The Special Rapporteur was informed that on 25 October 1996, a Supreme Court panel presided by Chief Justice Soajono overturned the acquittal of Mr. Pakpahan ordered previously by another Supreme Court panel presided by Justice Adi Andojo on 29 Septer er 1995. The process by which this reversal took place was by means of “judicial review” pursuant to article 263 of the Indonesian Criminal Procedural Code which states, inter alia , “regarding a judicial decision that has been made, except one that exonerates an accused of all his liability, the person convicted or his beneficiaries may apply for a review of the decision to the Supreme Court.” It was alleged that it was the first timeLID UO I H-U ØLO H-ØLO h- JQ (fl JCD OcLrtCD I >crtQcrCD QC H- N) tOH-H (D(DH OO tH (DOH Lo J(D cD H-(Di (D 2 QR • (D Cart t . <. (DH (DH H hh(D crrto(DH-O. 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BH- (DH-Ct C - hh 00 (D J t çn t H- J JCtH- H- Ca 0 hi(D Jhihi (DOH- (D 0(D H Ct X (D H-CaC Ca (D < hi B (D C hi Ct h-h-h- Ca B 0 H- (D 0 hiCt 0 (D 0 (D Ct Ct Ca— hi B(D H Ca Ca Ct H JCt 0 J J L hiH-cB0 N) Ct Ca ci. 0 t (DhiH- rr hh H 00CtCt0 - J (D(fl H- (D t ci.o B C t H-U)H-Ct J 0 — 0 (DH hi hi J Ct Ca (D Ca0(D t H 0hi cD t tH 0H Ct t H- hi LC F- ci.H-t H”-(D hhhi (D OCa hiH- Ct < 0 — (D Ca >(D hi(D 0 < ht(D B hThCt H-hi t i (D N) ci.o i- —- t 0 B 0CtH B(D J >0CtH- ci.H > JH- (D Ca (D 0(D hi hTh J (D (D CaCa OCt hi B h - h U) Caci. ••ci.>: Ct ci. o H- C ) hi < 0 Ct 0 0(D Ct Ca(D B Ct Ct (D CtCt 0 0 t (D (D t t hi CtO H- (D 0 h-h (D (D hi Ct Ct t E l çn U)Z N) co F- C hi 0 0 0 0 h-h Ct (D (D çn t hi 0 0 (D (D c i . H Ca çn çn H Ca Ct x hi 1:1 çn t çn çn E/CN.4/1998/39 page 27 In this connection, the Supreme Court judge made several mistakes in his review of Mr. Pakpahan's case, as follows: 1. The panel of judges only considered the case in the context of the prevalent social transformations in Indonesia while overlooking the existing law, which should be upheld; 2. The panel of judges interpreted the law in the context of the social transformations in the country to justify the wrongdoings of the defendant and cleared him of all the legal charges against him, rather than considering the social factor as one of many dimensions of the law; 3. The panel of judges focused their decision on the prevalent social problems rather than the legal system; 4. The judges did not consider the law as the basis of their verdict, but instead considered it only as a reference in drawing their conclusion; 5. In their considerations, the judges stated that legal Acts were not the only legal source of the law and that there were other sources which were more important. However, they failed to specify what more important sources there were on which they based their verdict; 6. The panel of judges stated that the defendant, Mr. Pakpahan, was not responsible for the loss of life and material as a result of his actions; 7. Clearing Mr. Pakpahan of his criminal conduct would be bound to encourage workers around the country to organize unlawful strikes; 8. The verdict was not in line with another decision of the Supreme Court which convicted Mr. Amosi Telaumbanua, one of the men who acted under the direct instruction of Mr. Pakpahan in the related case, and the fact that the judge chairing the panel in the Pakpahan case also sat on the same panel which tried Mr. Amosi Telaur anua. D. The Attorney—General based his request for a review on the following additional considerations: 1. Principle of balance: The right to review a case should not only be accorded to a defendant or to his/her heir, but should also be accorded to the Attorney—General; 2. Principle of public interest: According to Article 49 of Act of Parliament No. 5/1986 on the State Administration Court, by public interest one should understand the interest of the nation or the state, or the corimunal interest, or the interest of the state development programme according to the law. According to the Act of Parliament No. 5/1991 on the Attorney—General, public interest should be understood to mean the interest of the nation, the state and the community.E/CN. 4/1998/39 page 28 3. Principle of Corimon Law: Tap MPR (decision of the People's Consultative Assembly) II/MPR/1994 on the GBHN (broad guidelines of state policies) stipulates that a new law is not only created through enactment by the legislative, but also through jurisprudence. In addition, Presidential Decree No. 17/1994 on Repelita VI (five—year development plan), under the subheading ‘Law' gives inter alia ‘a greater role to the judiciary to develop new laws for the realization of social justice for the people through jurisprudence'. 4. Former Law: The ‘Reglement op de Strafvordering' and Supreme Court regulations No. 1/1969 and No. 1/1980 state that the Attorney—General may submit for a review of a court's verdict which has acquired permanent legal force. E. In conclusion, the decision of the Supreme Court to overturn its former decision which cleared Mr. Pakpahan of all legal charges and to reimpose the four—year sentence previously handed down by the High Court, does not violate Article 263 of the Indonesian Code of Criminal Procedure, as wrongly suggested in your communication, but instead finds its legal basis in the said article. F. It is not true that either Mr. Pakpahan or his legal representative were not notified of the decision promptly enough to enable them to challenge the ruling, despite their request for a review of the Supreme Court decision, which is still being examined to date. G. The judiciary concerned has confirmed that throughout the entire trial of Mr. Pakpahan, the relevant provisions of the Indonesian Code of Penal Procedure were fully observed by the panel of judges. Contrary to the allegations, the defendant and his legal counsel, as well as all the witnesses were given a fair hearing, and the rights of all parties were respected. The panel of judges carried out their task with all the independence guaranteed by the Indonesian law and throughout the trial, were entirely free to act according to their own convictions and sense of justice. At no time and under no circumstances was there any interference from the executive in the proceedings. II. Bambang Widjojanto The allegation to the effect that Mr. Bambang Widjojanto, defence counsel for Mochtar Pakpahan, was threatened with being forced to testify against his own client is totally without foundation. The investigation confirmed the absence of any corroborative evidence to support the allegation and Mr. Pakpahan's counsel was fully able to discharge his duties on behalf of his client. In fact, Mr. Widjojanto continues to represent Mr. Pakpahan, who has appealed for another review of his case against the decision of the Supreme Court, which rejected the conclusions of the first review after the Attorney—General ordered a re—examination of the case.E/CN.4/1998/39 page 29 III. Megawatu Soekarnoputri Regarding the lawsuits initiated by Megawati Soerkarnoputri against the Government after her purported removal as the elected leader of Parai Demokratik Indonesia (PDI) by decision of the PDI Congress in Medan in June 1996, the clarifications from the judicial authority concerned are as follows: A. In the case No. 229/1996, Mrs. Megawati Soekarnoputri and Mr. Alexander Litaay, in their capacity as Chairperson and General Secretary of the PDI Central Board of the National Congress of 1993 respectively, represented by their legal proxy from the Defending Team for Indonesian Democracy (TPDI), filed against: 1. Fatimah Achmad as the representative of the Congress Committee; 2. Fatimah Achmad as the representative of the Congress Leadership; 3. Soerjadi and Buttu R. Hutapea — in their capacity as General Chairman and Secretary—General of DPP PDI of the Medan Congress; 4. the Minister of Home Affairs; 5. the Corimander of the Indonesian Armed Forces; 6. the Chief of the State Police, all of whom are directly involved in the organization and implementation of the Medan Congress. B. The charges brought by Mrs. Megawati Soekarnoputri against Soerjadi and some of his colleagues, the Commander of the Indonesian Armed Forces, the Minister of Home Affairs and the Chief of the State Police were rejected by the Central Jakarta District Court on 10 November 1996. C. The council of judges ruled that the organizing of the PDI Congress was an internal matter of the party which had to be resolved internally without involving the Court. As defendants 1, 2 and 3 were PDI officials, the court was not competent to handle their case. While for defendants 4, 5 and 6 as they were government officials, the court considered that their case should be brought before the Court of State Administration. D. The Court of Second Instance of Jakarta, in its decision No. 726/PDT/1997/PT.DKI of July 1997, accepted the appeal submitted by Megawati Soerkarnoputri and Alexander Litaay and annulled the decision of the Central Jakarta District Court ofE/CN. 4/1998/39 page 30 10 November 1996 which had refused to try Megawati Soekarnoputri and Alexander Litaay on the grounds that it had no competence to try the case. E. In its ruling, the court stated that, in organizing the Medan Congress, defendants 1, 2 and 3 had infringed the Party Statutes of 1994, and that defendants 4, 5 and 6 had broken the law (article 1365 of the Indonesian Private Code) by permitting, supporting, funding and facilitating the Congress which had resulted in the losses and damage caused by the accusers. In this connection, pursuant to Article 2 (1) of Act No. 14/1997 on the Judiciary and Article 50 of the Act No. 2/1986, the Court instructed the Central Jakarta District Court to proceed with the trial of the case. F. All the accused have appealed for a review of this decision of the Court of First Instance, which is still being examined. G. In conclusion, the allegation that the judges in charge of the case acted under the direction of a non—judicial element, namely the Government, is totally unfounded since the decision of the Court favoured the accusers against government officials. This fact confirms that there was no inappropriate or unwarranted interference in the judicial process concerning the case of Megawati Soekarnoputri. Regarding your request for the Government's permission to lead a mission to Indonesia to investigate and report on the state of the independence of judges and lawyers, I very much regret to have to inform you that in view of the Government of Indonesia's present engagement in the preparations for the forthcoming five—yearly session of the highest State body, the People's General Assembly, ahead of the presidential elections of March 1998, the Government would prefer to defer such a visit until a more opportune time. However, may I draw your attention to the fact that the Indonesian Government will, as always, continue to be at your disposal to provide you with any information you may request. As you may be aware, the Government of Indonesia puts high value on the work of all the United Nations human rights mechanisms, including the work of the thematic rapporteurs. In this respect, Indonesia received the visit of the Special Rapporteur on Torture in 1991, the Special Rapporteur on Summary or Arbitrary Executions in 1994 and, in 1995, the highest authority in the field of human rights, the High Commissioner. By the same token, I would also like to reiterate my Government's duty and corimitment to ensuring that the independence of judges and lawyers is protected from any unwarranted interference. I can assure you, Sir, that the independence of the judiciary, guaranteed by the State and enshrined in the 1945 Constitution, as well as all other laws are respected and observed by the Government. Similarly, the Indonesian Act on the Basic Principles of the Judiciary stipulates the principles of a fair and impartial trial and of the presumption of innocence.E/CN.4/1998/39 page 31 Finally, I should like to reiterate the corimitment of the Government of the Republic of Indonesia to cooperate fully with all the United Nations human rights mechanisms, including the Special Rapporteur, on the independence of judges and lawyers. It is my Government's sincere hope that this clarification will be submitted in toto to the fifty-fourth session of the Corimission on Human Rights.” Ob s e r vat i on s 93. The Special Rapporteur thanks the Government for its responses. It is not within the mandate of the Special Rapporteur to question the correctness of domestic court decisions. But when such decisions are made by courts or tribunals alleged to be wanting in independence and impartiality, then it falls within the mandate of the Special Rapporteur to inquire into the allegations. 94. The information received by the Special Rapporteur from various sources, whose credibility he has no reason to doubt, and the contents of the Government's corimunication leave several issues relating to the independence of the courts unanswered. An application by Mr. Pakpahan for a further review before the Supreme Court is pending. It is of concern, however, that he is currently in custody serving his term of imprisonment, despite being in hospital receiving medical treatment. 95. The Special Rapporteur trusts that the Government will facilitate the carrying out by the Special Rapporteur of an in situ mission. Iran (Islamic Republic of) Communication to the Government 96. On 2 July 1997, the Special Rapporteur transmitted an urgent appeal, jointly with the Special Rapporteurs on the promotion and protection of freedom of opinion and expression, and on extrajudicial, summary or arbitrary executions, and the Special Representative on the situation of human rights in the Islamic Republic of Iran concerning the writer and editor—in—chief of the monthly Adineh , Faraj Sarkouhi. Mr. Sarkouhi was reportedly a signatory of the 1994 declaration of 134 writers appealing for an end to censorship in Iran. According to the information received, Faraj Sarkouhi was arrested on 27 January 1997 after having been held incommunicado for several weeks in November 1996. Allegedly, he was tried in a closed trial on a variety of charges including espionage, which reportedly carries a mandatory death penalty. It was also alleged that he had not been permitted to appoint a lawyer and that the trial was closed to the public and international observers. 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