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.4/1999/60
13 January 1999
Original: ENGLISH
COMMISSION ON HUMP N RIGHTS
Fifty—fifth session
Item 11 (d) of the provisional agenda
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTION OF:
INDEPENDENCE OF THE JUDICIARY, ADMINISTRATION OF
JUSTICE, IMPUNITY
Report of the Special Rapporteur on the independence
of judges and lawyers, Mr. Param Cumaraswamy
CONTENTS
Introduction
I. TERMS OF REFERENCE
II. METHODS OF WORK
III. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Consultations . .
B. Missions/visits
C. Communication with Governments
D. Cooperation with intergovernmental
non—governmental organizations
E. Cooperation with other United Nations
procedures and bodies . .
Paragraphs
Page
1— 2 4
3— 6 4
7 6
8 — 37 7
8—16 7
17 — 18 8
19 — 25 8
27 — 37 9
and
26 9
E
GE.99—10104 (E)
E/CN. 4/1999/60
page 2
CONTENTS ( continued)
ParaQra hs PaQe
IV. THEORETICAL ISSUES 38 - 42 12
A. Establishment of an international
criminal court 38 - 40 12
B. Honour killings 41 - 42 13
V. STANDARDS 43 - 49 13
VI. JUDICIAL DECISIONS REFLECTING THE INDEPENDENCE
AND IMPARTIALITY OF THE JUDICIARY 50 - 51 14
VII. COUNTRY SITUATIONS .
A. Introduction
B. Situations in specific counties or
territories 54 - 203 16
Argentina . . 55 16
Bahrain . . . 57 16
Belarus . . . 59 17
Belize . . . . 61 17
Bolivia . . . 63 18
Bosnia and He . 68 18
Brazil . . . 70 19
Carcjiodia . . 75 19
Colombia . . 79 20
Croatia . . 83 21
Djibouti . . 85 22
Egypt . . . 87 22
Equatorial Gu 89 23
France . . . 94 23
Georgia . . 24
Haiti . . . 98 24
India . . . 101 25
Indonesia . 103 26
Iran (Islamic 107 26
Israel . . . . . 111 27
Kenya . . . . . 114 27
Malaysia . . . . 123 28
New Zealand . . 125 29
Nigeria . . . . 132 30
Pakistan . . . . 32
Peru . 141 32
Philippines . . . 150 34
152 36
155 36
159 37
52 — 203 15
52 — 53 15
rzegovina
in ca . .
Republic of)
54 —
56 —
58 —
60 —
62 —
64 —
69 —
71 —
76 —
80 —
84 —
86 —
88 —
90 —
95
96 —
99 —
102 —
104 —
108 —
112 —
115 —
124 —
126 —
133
134 —
142 —
151 —
153 —
156 —
Russian Federation
Rwanda
Sri Lanka . . .
CONTENTS ( continued )
Sudan
Trinidad and Tobago
Tunisia
Turkey
United Kingdom of Great Britain
and Northern Ireland
Yugoslavia (Federal Republic of)
E/CN.4/1999/60
page 3
VIII. CONCLUSIONS AND RECOMMENDATIONS
ParaQra hs PaQe
160 — 167 37
168 — 169 39
170 — 172 40
173 — 184 41
185 — 198 43
199 — 203 46
204 — 210 47
A. Conclusions 204 - 209 47
B. Recommendations
210
48
E/CN. 4/1999/60
page 4
Introduction
1. The present report is submitted pursuant to Commission on Human Rights
resolution 1998/35. It is the fifth annual report to the Corimission by
Mr. Param Cumaraswamy since the mandate was established by the Commission in
its resolution 1994/41, renewed in resolution 1997/23 and endorsed by the
Economic and Social Council in its decision 1997/245 (see also E/CN.4/1995/39,
E/CN.4/1996/57, E/CN.4/1997/32 and E/CN.4/1998/39).
2. Chapter I of the present report contains the term 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 provides a brief
discussion on theoretical issues which the Special Rapporteur considers to be
important for the development of an independent and impartial judiciary.
Chapter V describes standards and guidelines for judges and lawyers that have
been adopted or are in the process of being adopted by various associations
around the world. Chapter VI contains a brief summary of judicial decisions
asserting the importance of and the principle of judicial independence.
Chapter VII contains brief summaries of urgent appeals and communications to
and from Governments, along with observations of the Special Rapporteur.
Chapter VIII contains the conclusions and recommendations of the Special
Rapporteur.
I. TEPI1S 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 or
her 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
its resolution 1995/36 the decision of the Special Rapporteur to use,
beginning in 1995, the short title wSpecial Rapporteur on the independence of
judges and lawyers”.
E/CN.4/1999/60
page 5
5. In resolutions 1995/36, 1996/34, 1997/23 and 1998/35, the Corimission on
Human Rights took note of the annual reports of the Special Rapporteur,
expressing appreciation of 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—fourth 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 various countries.
These resolutions are, in particular:
(a) Resolution 1998/19 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 1998/39 on human rights in the administration of
justice, in particular of children and juveniles in detention, in which the
Commission called upon special rapporteurs, special representatives and
working groups of the Corimission to continue to give special attention to
questions relating to the effective protection of human rights in the
administration of justice, and to provide, wherever appropriate, specific
recommendations in this regard, including proposals for measures of advisory
services and technical assistance;
(c) Resolution 1998/42 on the right to freedom of opinion and
expression, in which the Corimission invited once again the working groups,
representatives and special rapporteurs 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;
(d) Resolution 1998/47 on human rights and terrorism, in which the
Commission urged all relevant human rights mechanisms and procedures, as
appropriate, to address the consequences of the acts, methods and practices of
terrorist groups, in their forthcoming reports to the Commission;
(e) Resolution 1998/51 on integrating human rights of women throughout
the United Nations system, in which the Corimission requested all human rights
treaty bodies, special procedures and other human rights mechanisms of the
Commission and the Sub—Commission on Prevention of Discrimination and
Protection of Minorities regularly and systematically to take a gender
perspective into account in the implementation of their mandates, and to
include in their reports information on and qualitative analysis of violations
of human rights of women and girls, and encouraged the strengthening of
cooperation and coordination in that regard;
E/CN. 4/1999/60
page 6
(f) Resolution 1998/57 on advisory services, technical cooperation and
the Voluntary Fund for Technical Cooperation in the Field of Human Rights, in
which the Commission invited relevant United Nations treaty bodies, special
rapporteurs and representatives, as well as working groups, to continue to
include in their recommendations, whenever appropriate, proposals for specific
projects to be realized under the programme of advisory services and technical
cooperation in the field of human rights;
(g) Resolution 1998/73 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 Commission;
(h) Resolution 1998/74 on human rights and thematic procedures, in
which the Commission requested the thematic special rapporteurs and working
groups to: (a) make recommendations for the prevention of human rights
violations; (b) follow closely the progress made by Governments in the
investigations carried out within their respective mandates; (c) continue
close cooperation with relevant treaty bodies and country rapporteurs;
(d) 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; (e) include regularly in their
reports gender—disaggregated data and address the characteristics and practice
of human rights violations under their mandates that were specifically or
primarily directed against women, or to which women were particularly
vulnerable, in order to ensure the effective protection of their human rights;
also 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,
experts and working groups of the special procedures of the Commission, acting
within their mandates, consider how they could also promote public awareness
about human rights and about the particular situation of individuals, groups
and organs of society that promoted and protected human rights and fundamental
problems;
(i) Resolution 1998/7 6 on the rights of the child, in which the
Commission recommended that, within their mandates, all relevant human rights
mechanisms 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 Committee on the Rights of the Child.
II. METHODS OF WORK
7. The Special Rapporteur, in the fifth year of his mandate, continued
following the methods of work described in his first report (E/CN.4/1995/39,
paras. 63-93).
E/CN.4/1999/60
page 7
III. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Consultations
8. The Special Rapporteur visited Geneva for his first round of
consultations from 24 March to 2 April 1998 and in order to present his report
to the Commission at its fifty—fourth session. During this period, the
Special Rapporteur met with representatives of the Latin American Regional
Group, the Asian Regional Group and the Western Group to brief them on his
work as Special Rapporteur and to answer any questions they might have. He
also met with the High Commissioner for Human Rights, representatives of the
Parliament of Zanzibar and Mr. Pierre Cornillon, Secretary—General of the
Inter—Parliamentary Union. In addition he held a briefing for interested
non—governmental organizations, met individually with representatives of
several non—governmental organizations and participated in a briefing on
Northern Ireland. The Special Rapporteur also conducted a press briefing
during this period.
9. The Special Rapporteur visited Geneva for his second round of
consultations from 26 to 30 May 1998 and to attend the fifth 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. During this period he also held consultations with
representatives of the Governments of Indonesia and Tunisia.
10. At the invitation of the Chairman of the Sub-Committee on International
Operations and Human Rights of the Committee on International Relations of the
Congress of the United States, the Special Rapporteur participated in a round
table discussion on his report on his mission to the United Kingdom of
Great Britain and Northern Ireland (E/CN.4/1998/39/Add.4) , held in Washington
on 29 September 1998.
11. From Washington the Special Rapporteur proceeded to New York and had
consultations in the Office of the Legal Counsel at United Nations
Headquarters with regard to the proceedings before the International Court of
Justice on the question of immunity of experts on mission for the
United Nations.
12. While in Washington and New York, the Special Rapporteur had meetings
with NGOs and lawyers on matters of interest to his mandate.
13. The Special Rapporteur visited Geneva for his third round of
consultations from 8 to 10 October 1998. During this period he met with the
Permanent Representatives of Pakistan and Belgium to the United Nations Office
in Geneva, as well as with the High Commissioner for Human Rights and the
Chief of the Activities and Programmes Branch.
14. In conjunction with his mission to Belgium from 24 to 26 May 1998, the
Special Rapporteur stopped over in Geneva for one day of consultations.
Following the mission, he returned to Geneva from 27 Nover er to
1 Decer er 1998 to draft the present report.
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Equatorial Guinea, Kenya, India, Indonesia, Malaysia, New Zealand, Pakistan,
Peru, Philippines, Russian Federation, Sri Lanka, Sudan (2) , Tunisia,
United Kingdom of Great Britain and Northern Ireland.
22. The Special Rapporteur has also joined with other special rapporteurs to
transmit two corimunications to the Governments of the Sudan, together with the
Special Rapporteur on the situation of human rights in the Sudan, and of
Turkey, together with the Special Rapporteur on violence against women, its
causes and consequences.
23. The Special Rapporteur received replies to urgent appeals from the
Governments of the following four countries: Colombia, Philippines, Sudan,
Turkey.
24. Replies to communications were received from the Governments of the
following 8 countries: Colombia, France, India, Kenya, Sri Lanka, Sudan (2),
Tunisia, Turkey. Other communications were received from the Governments of
Bahrain and Peru (3)
25. In addition to the Special Rapporteur's participation in the special
rapporteurs' meeting, as well as in joint urgent actions and corimunications
transmitted to Governments, the Special Rapporteur reiterated his request to
undertake a joint mission to Tunisia with the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression, in
order to assess the human rights situation regarding freedom of opinion and
the independence of judges and lawyers.
D. Cooperation with interQovernmental and
non—Qovernmental orQanizations
26. The Special Rapporteur has continued the dialogue with intergovernmental
and non—governmental organizations in the implementation of his mandate and
thanks these organizations for their cooperation and assistance during the
year.
E. Cooperation with other United Nations
procedures and bodies
1. Special ra iniorteurs and workinQ rou s of the Corimission
on Human RiQhts
27. The Special Rapporteur has continued to work closely with other special
rapporteurs and working groups. As previously indicated, in order to avoid
duplication he has, where appropriate, made joint interventions with other
special rapporteurs and working groups. On issues relevant to his mandate,
the Special Rapporteur makes reference in the present report to reports of
other special rapporteurs and working groups.
2. The Centre for International Crime Prevention of the
United Nations Secretariat
28. In his third and fourth reports (E/CN.4/1997/32, paras. 26-37;
E/CN.4/1998/39, paras. 23—24), the Special Rapporteur referred to the
E/CN. 4/1999/60
page 10
importance of the work done by the former Crime Prevention and Criminal
Justice Division in overseeing the implementation of the Basic Principles on
the Independence of the Judiciary, and to the need for the Special Rapporteur
to work closely with that Division.
29. The Special Rapporteur attended the seventh session of the Commission on
Crime Prevention and Criminal Justice on 22 and 23 April 1998 and made a
statement on 22 April 1998, in which he said that crime prevention and bribery
in international commercial transactions required the cooperation not only of
the international community but the political will of Governments to organize
their domestic systems of justice to meet the challenges. One of the main
institutions must necessarily be the judiciary, complemented by an effective
prosecutorial service and an independent legal profession. Nevertheless,
cooperation among Member States to combat those global menaces could only be
effective if uniform international standards were approved and used by Mer er
States for the organization of their judicial systems. The Basic Principles
on the Independence of the Judiciary, the Basic Principles on the Role of
Lawyers and the Guidelines on the Role of Prosecutors provided general
guidelines for Member States to apply in their domestic justice systems.
30. He added that in the four years since the creation of his mandate and
his appointment, in his interventions concerning alleged attacks on the
independence of judges and lawyers, he had drawn the attention of Member
States to these standards. The responses could be classified into four
categories: (a) Member States who were fully aware of and endeavouring to
apply them; (b) Mer er States who were aware of them but resisted applying
them for one reason or another; (c) Member States who were aware of them but,
for want of resources, both financial and human, were unable to apply them;
(d) Mer er States who were not aware of the standards.
31. The Special Rapporteur welcomed the work undertaken by the Commission on
Crime Prevention and Criminal Justice through the Centre for International
Crime Prevention to monitor the use and application of the standards. He
noted that two years previously the Centre had sent out questionnaires to
Member States to ascertain the use and application of the Basic Principles on
the Independence of the Judiciary. Although less than 50 per cent of the
Member States had responded to the questionnaire, that should not deter the
Centre from pursuing its information gathering. In that regard, he urged the
Commission to give its approval to two draft questionnaires before the seventh
session, on lawyers and prosecutors.
32. He also urged that there should be meaningful follow—up to the responses
by processing and evaluating them to ascertain the actual situation in the
countries concerned, and suggested that NGO's like Bar Associations and other
groups involved in the administration of justice should be consulted. In that
regard, he welcomed the recommendations of the 1998 Onati Workshop on the
Impact of International Crime Prevention and Criminal Justice Standards on
National Practices.
33. The Special Rapporteur also pointed out that many Member States,
particularly countries in transition, were aware of the standards but were not
able to apply them because of resource constraints. Those States needed
considerable expert and technical assistance in structuring their judicial
E/CN.4/1999/60
page 11
systems. He welcomed the efforts by the Centre to address that serious
problem. Similarly, the High Commissioner for Human Rights was giving
priority to technical assistance to those States in that area. One project
being undertaken by the High Commissioner was a comprehensive training manual
for judges.
34. He concluded by welcoming the opening statement of the Executive
Director, Mr. Pino Arlacchi. In the mid—term plan for 1998—2001, he had
identified six objectives for the Centre. The Special Rapporteur noted that
all of them were pertinent. In so far as standards were concerned, the
Special Rapporteur wholeheartedly supported the need to raise public awareness
of the United Nations standards and norms.
3. Activities and Proc rames Branch of the Office of the
HiQh Commissioner for Human RiQhts
35. As mentioned in his third and fourth reports (E/CN.4/1997/32, para. 31;
E/CN.4/1998/39, para. 26), 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 in the
context 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 comments made by
the participants in the expert meeting and will be piloted through forthcoming
courses to be offered to judges and lawyers under the OHCHR programme of
technical cooperation, before 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.
4. Promotional activities
36. As stated in his third and fourth reports, the Special Rapporteur
considers promoting the importance of the independence of the judiciary and
the legal profession for respect of 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. Owing to other commitments, the Special
Rapporteur could not accept all the invitations. Nevertheless, he accepted
the following invitations:
(a) 23 March, in Brussels, at the invitation of the Commission
Nationale D c La Magistrature, he addressed the first—ever Belgian National
Conference of Judges on the subject of “Judicial independence”.
(b) 4—6 June, at the invitation of the Norwegian Association of
Judges, he addressed the Norwegian Triennial Conference of Judges in Trondheim
on “A global view of the independence of the judiciary — attacks, dangers and
today's status”.
E/CN. 4/1999/60
page 12
(c) 12-14 June, in Hong Kong, at the invitation of the Human Rights
Institute of the International Bar Association, he spoke on the “Independence
of the judiciary” at a conference on the worldwide application of the
International Covenant on Civil and Political Rights.
(d) 20-22 July, in Cape Town, South Africa, at the invitation of the
International Commission of Jurists to its triennial meeting and conference on
the rule of law in a changing world, he addressed a panel discussion on “The
United Nations Basic Principles and the work of the Special Rapporteur on the
independence of judges and lawyers”.
(e) 5—7 October, in Larnaca, Cyprus, at the invitation of the
Commonwealth Magistrates and Judges Association, he spoke on the subject
“international and regional standards for the protection of judicial
independence and the role of the Special Rapporteur on the independence of
judges and lawyers” at a seminar on the role of the judiciary in developing
and maintaining a vibrant human rights environment in the Corcmonwealth.
37. The addresses delivered by the Special Rapporteur at these conferences
and seminars are published by the organizers for further dissemination.
IV. THEORETICAL ISSUES
A. Establishment of an international criminal court
38. The Special Rapporteur is pleased to note the important strides the
international community has taken towards the establishment of the
International Criminal Court. The Rome Statute of the International Criminal
Court, adopted on 17 July 1998 by the United Nations Diplomatic Conference of
Plenipotentiaries, contains a number of provisions that safeguard the
independence of the Prosecutor, but in a manner that promises judicial
oversight of prosecutorial discretion. In particular, the Court may exercise
its jurisdiction if, pursuant to article 13 of the Statute, either the
United Nations Security Council or a State Party to the Statute refers a
situation to the Prosecutor. Alternatively, pursuant to article 15.1, “the
Prosecutor may initiate investigations ro rio motu on the basis of
information on crimes within the jurisdiction of the Court”. Paragraphs 2
to 6 of article 15 set out the powers and responsibilities of the Prosecutor
in this connection, including the obligation of the Prosecutor to submit the
grounds upon which he or she believes “there is a reasonable basis to proceed
with an investigation” to the Pre—Trial Chamber of the Court. Article 15.6
provides: “If, after the preliminary examination referred to in paragraphs 1
and 2, the Prosecutor concludes that the information provided does not
constitute a reasonable basis for an investigation, he or she shall inform
those who provided the information. This shall not preclude the Prosecutor
from considering further information submitted to him or her regarding the
same situation in the light of new facts or evidence.” The Special
Rapporteur believes these, along with certain other provisions, sketch out an
adequate measure of independence for the Prosecutor.
39. However, article 16, entitled “Deferral of investigation or
prosecution”, gives considerable cause for concern. Article 16 stipulates:
“No investigation or prosecution may be corimenced or proceeded with under this
E/CN.4/1999/60
page 13
Statute for a period of 12 months after the Security Council, in a resolution
adopted under Chapter VII of the Charter of the United Nations, has requested
the Court to that effect; that request may be renewed by the Council under the
same conditions.” Article 16 leaves the Security Council a large role by
authorizing it to delay investigations or prosecutions for a year or more.
The political role of the Security Council in triggering the Court's
investigation and prosecution powers, may, depending on how this role is
played, substantially undermine the judicial independence of the Court by
precluding judicial review of situations politically sensitive to one or other
of the permanent members of the Council, who, of course, wield the power of
veto.
40. Thus, the Special Rapporteur is pleased that the Rome Statute has been
adopted, but retains serious misgivings about the potential for political
interference from Security Council members in the functions of the Prosecutor.
It can only be hoped that the Security Council will exercise its authority
wisely and in the interests of the international community as a whole.
B. Honour killinQs
41. The Special Rapporteur on extrajudicial, summary or arbitrary executions
has drawn the Special Rapporteur's attention to the problem of so—called
whonour killings”, which are reported to take place in some countries of the
Middle East, Latin America and South Asia, where husbands, fathers or brothers
have gone unpunished after having murdered their wives, daughters or sisters
in order to defend the honour of the family. She has also received reports of
such cases in Turkey. The Special Rapporteur on extrajudicial, summary or
arbitrary executions has been informed that men who commit “honour killings”
normally receive considerably shorter sentences, as the courts view defence of
the honour of the family as a mitigating circumstance (see E/CN.4/1999/39,
paras. 74-75).
42. This information is of grave concern to the Special Rapporteur. He will
continue to work with the Special Rapporteur on extrajudicial, summary or
arbitrary executions to study this phenomenon. They will report their
findings to the Commission on Human Rights at its fifty-sixth session.
V. STANDARDS
43. In his second and third reports the Special Rapporteur made reference to
the Beijing Statement of Principles on the Independence of the Judiciary in
the LAWASIA region.
44. The Commonwealth Magistrates and Judges Association drew the Special
Rapporteur's attention to the Latimer House Guidelines for the Commonwealth on
Parliamentary Supremacy and Judicial Independence. This set of guidelines
were adopted at a meeting of the representatives of the Commonwealth
Parliamentary Association, the Commonwealth Magistrates and Judges
Association, the Commonwealth Lawyers' Association and the Commonwealth Legal
Education Association, held at Latimer House in the United Kingdom from 15 to
19 June 1998. The Guidelines, which cover, inter alia , matters relating to
judicial autonomy, funding, training, ethics and accontability mechanisms,
E/CN. 4/1999/60
page 14
will be proposed for consideration by the Commonwealth Heads of Government
meeting and for effective implementation by member countries of the
Commonwealth.
45. The Special Rapporteur was invited to Larnaca, Cyprus, by the
Commonwealth Magistrates and Judges Association on 5 and 7 October for a
seminar on these Guidelines and in particular for discussion on a mechanism
for implementation. In his address to the seminar the Special Rapporteur said
that when the Guidelines had been adopted by the Corcmonwealth Heads of
Government he would refer to these Guidelines in addition to the
United Nations Basic Principles and the Beijing Declaration when intervening
with Commonwealth Governments.
46. In this regard the Special Rapporteur would also like to refer to
Council of Europe Recommendation No. R (94) 12 on the independence, efficiency
and role of judges, adopted by the Committee of Ministers on 13 October 1994
at the 518th meeting of the Ministers' Deputies.
47. With the adoption of the Latimer House Guidelines for the Corcmonwealth
there are today two sets of intergovernmental standards in addition to the
United Nations Basic Principles.
48. The Special Rapporteur has also learnt that the International
Association of Judges, a non—governmental association, is in the process of
adopting a set of standards described as “The Universal Charter of the Judge”.
49. The Special Rapporteur, while expressing his appreciation to these
organizations concerned to set standards for the promotion and protection of
judicial independence, also expresses some concern over possible proliferation
of standards. If these additional standards are needed to supplement the gaps
in the United Nations Basic Principles then it may be that the Basic
Principles need to be reviewed.
VI. JUDICIAL DECISIONS REFLECTING THE INDEPENDENCE AND
IMPARTIALITY OF THE JUDICIARY
50. The Special Rapporteur welcomes the following decisions of the apex
courts of Canada, Norway and India asserting the importance of and the
principle of judicial independence.
(a) The Canadian Supreme Court, in the case of Reference re:
Remuneration of JudQes of the Provincial Court of Prince Edward Island and
others 1997 , in interpreting sections 96 to 100 of the Constitution Act 1867
and S.11 (d) of the Canadian Charter of Rights and Freedoms held that judicial
independence was an unwritten norm and had grown into a principle that
extended to all courts, not just the superior courts of Canada.
(b) The Norwegian Supreme Court, in the case of Jens Viktor Plabte vs.
The State December 1997 in case No.82 B/1997 No.108/1957 , held that temporary
judges who did not have the same protection of security of tenure as
permanently appointed judges were incompetent to adjudicate on certain
disputes to which the State or any of its organs were parties. The court
said, inter alia :
E/CN.4/1999/60
page 15
wThe courts guarantee the rule of law for citizens in their
relations with the legislative power and the executive power — they can
try the constitutionality of laws and have judicial power to review the
decisions of the executive. Since the State is a party in a
considerable amount of cases decided by the courts, it is especially
important that the law-seeking public can have full confidence in the
individual judge making his judgement without having to consider any
negative consequences for his position. The judges' irremovability in
accordance with section 22 of the Norwegian Constitution is therefore
fundamental for the trust that the law-seeking public can have in their
objectivity.
wTemporary judges do not have the same protection of their
positions as permanently appointed judges in office have. For practical
reasons one cannot completely avoid the use of temporary appointed
judges, but because of the difference in the protection of their
positions, the use is open to objections and should be restricted as far
as possible. This has also been emphasized by the Supreme Court, see
especially in Rt. 1984 , page 979 and Rt. 1995 , page 506.”
(c) Very recently, in October 1998, the Supreme Court of India, in the
case of Special Reference No.1 of 1998 (JT 1998 (5) S.C. , reviewing its own
earlier decision of 1993 on the procedure for the appointment of judges to the
Supreme Court and High Court as laid down under the Constitution held,
inter alia , that the expression “consultation with the Chief Justice of India”
required consultation with a plurality of judges in the formation of the
opinion of the Chief Justice of India. The sole individual opinion of the
Chief Justice does not constitute wconsultation within the meaning of the
Constitutional provisions. This decision removed the doubt which arose in the
1993 decision of the same court (commonly referred to in the legal fraternity
as the “second Judge's case”) that the sole opinion of the Chief Justice had
primacy.
51. Principle 10 of the Basic Principles on the Independence of the
Judiciary provides, inter alia , “Any method of judicial selection shall
safeguard against judicial appointments for improper motives”. It is
therefore imperative that the selection mechanism should never reside in the
personality of a single person, however high and eminent his office may be.
This judgement of the Indian Supreme Court will add lustre to the
jurisprudence of judicial independence.
V. COUNTRY SITUATIONS
A. Introduction
52. This chapter contains brief surimaries of the urgent appeals and
communications transmitted to Governments between 11 Decer er 1997 and
30 November 1998, as well as of replies to the allegations received from the
Governments between 29 January 1998 and 15 December 1998. 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
necessary, the Special Rapporteur has included his own observations. He
wishes to emphasize that the appeals and communications reflected in this
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page 17
statement alleged that the Chairman of the fifty-fourth session of the
Commission on Human Rights had asked the delegation of Bahrain which
participated in the meetings of the said Commission twice to stop the torture
and humiliation to which Shaikh Al Jamry was exposed. The Permanent
Representative informed the Special Rapporteur that H.E. Mr. Jacob S. Selebi,
Chairman of the fifty—fourth session of the Commission had never raised the
issue of Al—Jamri with the delegation of Bahrain during the whole session.
The Permanent Representative called upon the Special Rapporteur to note “the
extent of lies and propaganda of these terrorists groups, which try by all
means to manipulate the United Nations organs and system.”
Ob s e r vat i on
57. The Special Rapporteur thanks the State of Bahrain for this
communication and has taken note of its contents.
Belarus
Communication to the Government
58. On 18 October 1998, the Special Rapporteur sent an urgent appeal
concerning Ms. Vera Stremkovskaya, an attorney, who, it was reported, had been
summoned for conversations to the Collegium of Advocates and the Ministry of
Justice. According to the source, Ms. Stremkovskaya had been informed that
she had been accused of violating legal ethics, evidently in connection with
remarks she had made at a briefing for the International League for Human
Rights on 23 Septer er 1998. She had been informed that she would be
disbarred. It was believed that the Collegium presidium would meet the
following week to set up a commission to disbar Ms. Stremkovskaya on the
grounds of unethical and illegal behaviour while abroad.
Ob s e r vat i on
59. The Special Rapporteur awaits a response from the Government to this
communication.
Belize
Communication to the Government
60. On 18 October 1998, the Special Rapporteur sent an urgent appeal
concerning the possible removal from the bench of Chief Justice Manuel Sosa of
the Belize Supreme Court. According to the information received, Chief
Justice Sosa had been appointed by the Prime Minister. In accordance with the
Constitution, the Prime Minister had requested the view of the leader of the
opposition party, at the time the People's United Party (PUP), on this
appointment, but the latter requested deferment of the required consultation.
Nevertheless, the appointment was made. Upon the return to power of PUP
following the general elections, it was reported that the Attorney General
would imminently take certain measures to rescind the appointment. It was
alleged that the measures to be taken were contrary to the procedures
established by the Constitution for the removal of the Chief Justice.
E/CN. 4/1999/60
page 18
Ob 5 JT Vat ion
61. The Special Rapporteur awaits a response from the Government to this
communication.
Bolivia
Communication to the Government
62. On 19 February 1998, the Special Rapporteur sent an urgent appeal to the
Government concerning Mr. Waldo Albarracin, a lawyer and President of the
Permanent Assembly of Human Rights of Bolivia and a candidate for the position
of Ombudsman. It was reported that Mr. Albarracin and his two children had
been threatened on the telephone on 5 February 1998. In this regard, the
Special Rapporteur recalled that he and the Special Rapporteur on
extrajudicial, summary or arbitrary executions had sent jointly an urgent
action appeal on 24 February 1997 concerning previous death threats that
Mr. Albarracin had received.
Ob s e r vat i on
63. The Special Rapporteur awaits a response from the Government to this
communication.
Bosnia and HerzeQovina
64. In his report to the General Asser ly (A/53/322, paras. 27-29), the
Special Rapporteur on the situation of human rights in Bosnia and Herzegovina,
Croatia and the Federal Republic of Yugoslavia reported that on 20 May 1998,
the Ministers of Justice of the Federation of Bosnia and Herzegovina and the
Re ublika Sr ska signed a memorandum of understanding on the regulation of
legal assistance between institutions of the Federation of Bosnia and
Herzegovina and the Re ublika Sr ska .
65. On 31 July 1998, the High Representative imposed a law on courts in the
Herzegovina—Neretva Canton, restructuring the judiciary of the canton
consistent with the new system in the Federation. Under the new law, there
will be one common court for the canton at Mostar, and the ethnic composition
of judges in the canton will reflect the results of the 1991 census.
66. Following an agreement among relevant cantonal authorities, this year,
Central Bosnia became the first canton in which a Judicial Appointments
Commission was established to review all applications and ensure an impartial
and just selection process.
67. In a joint press statement, the Office of the High Representative, the
Office of the United Nations High Corimissioner for Human Rights and the
Organization for Security and Co—operation in Europe (OSCE) expressed their
serious concern about the fairness of the trial of Ibrahim Djedovic, who was
convicted on charges of war crimes against the civilian population and
sentenced to 10 years' imprisonment by the Sarajevo Cantonal Court on
6 October 1998. On account of several observed irregularities, such as the
E/CN.4/1999/60
page 19
violation of the right to legal counsel and the summary rejection by the court
of 30 defence witnesses, there are serious concerns over the impartiality of
the court in this case (A/53/322/Add.1, para. 8)
Ob s e r vat i on
68. The Special Rapporteur views the trial of Ibrahim Djedovic with serious
concern and will liaise with the Special Rapporteur on the situation of human
rights in Bosnia and Herzegovina, Croatia and the Federal Republic of
Yugoslavia.
Brazil
Communication to the Government
69. On 2 July 1998, the Special Rapporteur sent an urgent appeal jointly
with the Special Rapporteur on torture concerning Mrs. Edna Flor and
Mr. Donizetti Flor, lawyers of the Centro de Defensa dos Direitos Humanos
Antonio Porfirio dos Santos in Aracatuba, São Paolo state. They were believed
to have received death threats from an unidentified man on the telephone, on
13 and 14 June 1998, following which two handmade bombs were allegedly thrown
in front of their office. The source alleged that these death threats might
constitute a retaliation for the lawyers' denunciation of several cases of
torture perpetrated by members of the civilian and military police.
Ob s e r vat i on
70. The Special Rapporteur awaits a response from the Government to this
communication.
C ar 0 di a
Communication to the Government
71. On 11 March 1998, the Special Rapporteur sent a communication to the
Government concerning an order issued by Minister of Justice Chem Snguon
suspending three Appeal Court judges and ignoring their decision of
26 December 1997 to overturn on appeal the conviction of Chau Sakhon by a
municipal court in June 1997. According to the source, there was no legal
provision under which the Minister has the authority to suspend a judge.
Report of the Special Representative of the Secretary—General on the
situation of human riQhts in Cambodia
72. In his report to the General Asser ly, the Special Representative of
the Secretary—General on the situation of human rights in CarcJiodia (A/53/400,
paras. 73—80) reported that in general, some progress had been made in
establishing institutions called for by the Cambodian Constitution and
essential for the strengthening of the rule of law in Cambodia. The Supreme
Council of the Magistracy had been convened for the first time in
December 1997 and was facing a heavy backlog.
E/CN. 4/1999/60
page 20
73. Further, there had been considerable debate on both the legality of the
appointment processes and about the qualifications of the individuals
appointed to CarcJDodia's Constitutional Council in 1998.
74. The report also indicated that the problem of frequent executive
interference and military intimidation in judicial matters, and the lack of
independence of the judiciary were continuing in 1998.
Ob s e r vat i on
75. The Special Rapporteur will continue to monitor the transition process,
in particular with regard to the independence of the judiciary.
C 01 omb i a
Communication to the Government
76. On 19 April 1998, the Special Rapporteur sent a communication to the
Government concerning the assassination of Mr. Eduardo Umana Mendoza, a
well—known lawyer and human rights defender. According to the source, this
murder was perpetrated on 18 April 1998 in the city of Bogota at Mr. Umana's
office by two unidentified men and an unidentified woman who were posing as
journalists. It was further reported that Mr. Umana had been the recipient of
numerous death threats for several years owing to his work as a human rights
lawyer. In this regard, the Special Rapporteur recalled that his report on
his mission to Colombia contained testimony provided to him by Mr. Umana
concerning the nature of the death threats made against him and the reasons
why he had refused security from the State (see E/CN.4/1998/39/Add.2,
paras. 123 and 124). It was also reported that the murder of Mr. Umana was
preceded by the murders of two other human rights defenders, Ms. Maria Arango
Fonnegra, on 16 April 1998 in Bogota, and Mr. Jesus Maria Vallen Jaramillo,
on 27 February 1998 in Medellin; Mr. Vallen Jaramillo was a lawyer and the
President of the Committee of Human Rights in Antioquia.
Communications from the Government
77. On 11 February 1998, the Permanent Mission of Colombia sent a note
verbale to the Special Rapporteur regarding the allegations of threats and
persecution which had been brought to his attention concerning the lawyers
Alirio Uribe Munoz, Miguel Puerto Barrera and Rafael Barrios Mandivil, mer ers
of the “José Alvear Restrepo” lawyers' collective. The Government informed
the Special Rapporteur that the terrorism unit of the Regional Directorate of
Authorities of Santa Fe de Bogota, after having gone through its files, had
not found any evidence of the existence of the denunciation of the
13th Brigade of the National Army concerning the lawyers. On the contrary,
the terrorist unit was investigating the threats against those persons. In
that regard, the terrorism unit had asserted that the investigation into the
threats received by Rafael Barrios Mendivi was making progress. That inquiry
had started on 10 August 1994, with the investigations being handed over to
the proper authorities. On 15 December 1997, it was integrated into the
investigations being carried out in the cases of threats against Alirio Uribe
Munoz and Miguel Puerto Barrera. Additionally, the Administrative Department
of Security had informed the Director—General that the Directorate of
E/CN.4/1999/60
page 21
Protection was making a technical study of the threats against these lawyers.
That study would be given to the Committee of Regulation and Evaluation of
Risks. Any steps taken by the Corimittee would be transmitted to the Special
Rapporteur.
78. On 16 April 1998, the Government sent a letter in reply to the Special
Rapporteur's letter of 17 Nover er 1997 concerning the death threats received
by and the persecution of the lawyers Alirio Uribe Munoz, Miguel Puerto
Barrera and Rafael Barrios Mendivil. The Colombian authorities reaffirmed
that there was no evidence of the existence of an intelligence document
accusing Alirio Uribe Munoz of belonging to a support network for the Union
Camilista del Ejercito Nacional de Liberacion. Additionally, no judicial
evidence had been found that he had been declared a target by the 13th Brigade
of the National Army. On the contrary, they expressed their interest in
receiving information from the denunciators that would lead to clarification
of when and by whom those threats had been made, so that they could initiate a
disciplinary or penal investigation.
Ob s e r vat i on s
79. The Special Rapporteur thanks the Government for its responses.
However, he notes that he has not yet received a response to his letter
of 19 April 1998 concerning the assassination of Eduardo Umana Mendoza.
Croatia
80. The Special Rapporteur took note of the report of the Special Rapporteur
on the situation of human rights in Bosnia and Herzegovina, Croatia and the
Federal Republic of Yugoslavia to the General Assembly, in which he noted
that, although promoted and supported by local and international civil rights
organizations, a wholly independent judiciary was still a distant goal in the
Republic of Croatia. For example, in late May 1998, the President of the
Supreme Court, Milan Vukovic instructed the country's courts not to provide
international organizations with information about their work. That action
has been interpreted as an attempt to curtail legitimate monitoring activities
(A/53/322, paras. 56-57)
81. The Special Rapporteur on the situation of human rights in Bosnia and
Herzegovina, Croatia and the Federal Republic of Yugoslavia also reported that
on 1 October 1998, at the conclusion of controversial disciplinary
proceedings, the State Judicial Council had ruled in favour of the final
dismissal of the former President of the Supreme Court of Croatia,
Krunislav Olujic, who could now lodge an appeal with the House of Counties.
Questions had been raised as to whether Mr. Olujic's right to defence had been
curtailed during the trial (A/53/322/Add.1, para. 21)
82. The war crimes trial of four defendants belonging to the so—called
Sodolovci group, which began on 10 September 1998, is continuing. The four
defendants were granted a retrial without being subject to detention - which
would be mandatory for the charges that they are facing. Also, another
hearing in the ongoing war crimes trial of Goran Vusurovic, scheduled
for 1 to 3 September 1998, was postponed.
E/CN. 4/1999/60
page 22
Ob 5 JT Vat ions
83. The Special Rapporteur will continue to liaise with the Special
Rapporteur on the situation of human rights in Bosnia and Herzegovina, Croatia
and the Federal Republic of Yugoslavia concerning the independence of the
judiciary and the legal profession in Croatia.
Di ibouti
Communication to the Government
84. On 11 March 1998, the Special Rapporteur sent a communication to the
Government concerning the case against Mr. Ahmed Boulaleh, Mr. Ali Mahamade
Houmed and Mr. Moumin Bahdon Farah, three former mer ers of the Parliament of
Djibouti. According to the source, on 15 June 1996, the parliamentary
immunity of the above-mentioned individuals was lifted to permit their
prosecution for offending the Head of State. In a press communiqué they had
launched a “solemn appeal to all militants ... and Djiboutians to come
together and mobilize to thwart, by all legal and peaceful means, this
deliberate policy of President Hassan Gouled Aptidon to rule by terror and
force while trampling underfoot our Constitution and republican institutions”.
Seized of an appeal against this decision, the Constitutional Court found
on 31 July 1996 inter alia that wthe lack of a hearing of the deputies
concerned . . . constitutes a flagrant violation of the right of defence”.
However, this decision of the highest judicial instance in the country
notwithstanding, the lower court found them guilty of offending the Head of
State and sentenced them, in August 1996, to a six months' prison term, a
heavy fine and, in particular, forfeiture of their civic rights for a period
of five years, which meant that they would not be able to stand for
parliamentary election. The source asserted that the trial in question was
not fair and, in particular, that shortly before it took place, the Minister
of Justice transferred and dismissed four judges of the Appeal Court and
members of the Correctional Chamber, in violation of the prevailing law. The
source further reported that the President of the Constitutional Court had
been dismissed and one of the lawyers of the three former MPs, Mr. Aref
Mohamed Aref, stood accused of fraud, allegedly without any facts having been
adduced to substantiate the accusation.
Ob s e r vat i on
85. The Special Rapporteur awaits a response from the Government to this
communication.
Ecp qi t
Communication to the Government
86. On 18 October 1998, the Special Rapporteur sent a letter concerning the
dissolution of the Egyptian Bar Association (EBA) and of the country's
regional bar associations, and the subsequent appointment of sequestrators to
administer the EBA and the regional associations. It was reported that the
court—appointed sequestrators played a role in disciplinary proceedings of the
legal profession. The source further alleged that the Government had been
E/CN.4/1999/60
page 23
stalling the electoral process for the Bar Council of the EBA, on the pretext
of the inadequacy of information in the registry concerning those individuals
who would be eligible to vote for the leadership of the Bar Council.
Ob s e r vat i on
87 . The Special Rapporteur awaits a response from the Government to this
communication.
Equatorial Guinea
Communication to the Government
88. On 26 August 1998, the Special Rapporteur sent a corimunication to the
Government concerning a lawyer, José Oló Obono, who was arrested at his home
on 21 July 1998 and detained at the police station in Malabo before being
provisionally released on 21 August 1998. It was alleged that Mr. Oló Obono
was arrested solely because he sought to prevent the admission, as evidence,
of statements made under torture by detainees on trial for alleged involvement
in an attack on a military barracks on Bioko Island on 21 January 1998. The
source also reported that both Mr. Oló Obono and another lawyer involved in
the case, Colonel Lorenzo Ondó Ela Mangue, received death threats after they
had informed the court of systematic torture of those detainees. Further, the
source reported that Mr. Oló Obono was treated in a degrading way while in
detention. Specifically, the Special Rapporteur was informed that he was
forced to wash a car and sweep the street, and to use a cardboard box in his
cell as a toilet.
Ob s e r vat i on
89. The Special Rapporteur awaits a response from the Government to this
communication.
France
Communication from the Government
90. On 13 February 1998, the Government sent a letter to the Special
Rapporteur in reference to his letter of 7 November 1997 in which he had asked
for information regarding the strike by lawyers of the French Bar Association,
organized on 6 November 1997, to protest the lack of resources available to
the judiciary (see E/CN.4/1998/39, para. 68) . The Bar Association claimed
that that situation impaired the independence of the French judicial system.
91. The Government informed the Special Rapporteur that while it was true
that the numerous jurisdictions in France were encur ered by their workload
and that, often, delays in hearing of cases were abnormally long, the public
powers completely recognized the problem and were now in the process of
resolving it. In that regard, the Government enclosed with its letter the
text of the justice reform presented by the Garde des Sceaux. The reform was
intended to make the institutions of justice more efficient, while reinforcing
their independence. Concerning this reform, the Government stated that it was
E/CN. 4/1999/60
page 24
premature at that stage to say more: there would be a debate on the proposed
reform in the National Asser ly later in the month. The planned laws would
then be prepared and put in place by the Government.
92. The Government conceded that the delays in the justice system continued
to be a major cause of the strike of 6 November 1997, but felt it was
difficult to make a direct link between that situation and the independence of
the French judicial system, pointing out that France was a party to
international instruments that called upon States parties to respect the
independence of the judiciary, but also noting that those instruments allowed
for reasonable delays in judicial procedures. The Government also informed
the Special Rapporteur that while it was true that France was sometimes
criticized for such delays, notably before the European Court in Strasbourg,
France was not criticized on the fundamental independence of the judiciary.
93. The Government concluded by stating that the fundamental principles of
the independence of the judicial system, to which the Special Rapporteur
referred, were not compromised by delays in judicial proceedings.
Ob s e r vat i on s
94. The Special Rapporteur will continue to monitor reform developments in
France.
GeorQia
95. In his report to the fifty—fourth session of the Corimission on Human
Rights (E/CN.4/1998/39, para. 71), the Special Rapporteur made reference to a
letter dated 19 January 1998 from the Government transmitting the Basic Law on
courts of general jurisdiction, which had been adopted by the Parliament on
13 July 1997, and a document containing an assessment of the judicial
situation in Georgia. The Government had sought the comments of the High
Commissioner on the Basic Law. The Special Rapporteur regrets that he has
been unable to complete his study of these materials. He will transmit
directly to the Government of Georgia his views on these documents.
Haiti
96. In his report to the General Asser ly (A/53/355, para. 22), the
independent expert on Haiti reported that over the past year, Haiti had begun
facing the challenge of putting into place a modern, effective, independent,
democratic, equitable and accessible justice system. In undertaking that
reform Haiti had benefited from a programme of technical assistance to the
Preparatory Commission for the Reform of Justice (CPRDJ) , sponsored by the
European Commission. CPRDJ would provide a report recommending the necessary
components of, and a plan of action for, justice system reform in Haiti.
97 . In addition, the Ministry of Justice had set up a “Bureau de controle de
detention preventive” to deal with the large number of preventive detainees,
that is, detainees who were incarcerated, but who had not been tried and
convicted. In the context of that initiative, judges had regularly visited
prisons in order to hear some of the backlog of cases.
E/CN.4/1999/60
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Ob 5 JT Vat Ions
98. The Special Rapporteur will continue to liaise with the Independent
expert on Haiti over the reform proposals.
India
Communication to the Government
99. On 1 September 1998, the Special Rapporteur sent a communication to the
Government of India to express concern over allegations he had received
regarding lawyer and human rights defender, Daljit Singh Rajput, who was
allegedly arrested by Punjab police on 27 July 1998. It was reported that
two cases had been filed against him in connection with a conspiracy to secure
the escape of prisoners from Burail jail, Chandigarh. His application for
bail was rejected on 4 August 1998, reportedly because the charges against him
were thought too serious. It was further reported that the police had
interrogated those in detention and had attempted to persuade them to
implicate human rights lawyers in the conspiracy. As a result, several
lawyers personally presented the Chief Justice of the Punjab High Court with a
petition on 11 August 1998 appealing to him to prevent their arbitrary arrest
and requesting him to ensure that lawyers should only be arrested with the
prior permission of the High Court. The petition was signed by Nakiran Singh,
Amar Singh Chahal, Rajvinder Singh Bains, Ranjan Lakhanpal, Puran Singh Hundal
and Arunjeev Singh Walia.
Communication from the Government
100. In a note verbale dated 9 March 1998 to the Office of the High
Commissioner for Human Rights, the Government of India transmitted a response
to the Special Rapporteur's letter of 1 August 1997 concerning the harassment
and intimidation of Mr. Jagmohan Singh (E/CN.4/1998/39, para. 77) . The
Government of Punjab informed the Special Rapporteur that it had inquired into
the allegations forwarded by him and found that the allegations were without
basis. The Government stated that it was true that the residence of
Mr. Jagmohan Singh had been searched by police officers. This was, however,
in connection with criminal complaints which had been filed in the Khanna
police station alleging that Mr. Singh was harbouring known terrorists.
Mr. Singh had been arrested and questioned in order to inquire into those
complaints and two cases had been registered against him. He had, however,
subsequently been acquitted of all charges. The allegations that Mr. Singh's
home had been raided over 100 times were without foundation. There was also
no substance to the allegation that Mr. Singh had been aggressively questioned
and that his picture had been displayed publicly in a police station. The
above incident had taken place several years previously and Mr. Singh had
since informed the concerned authorities through a sworn affidavit that he was
enjoying a normal and tranquil life and had no complaint against the behaviour
of the local police.
E/CN. 4/1999/60
page 26
Ob 5 JT Vat ion
101. The Special Rapporteur thanks the Government and Is pleased to note that
Mr. Singh was acquitted. The Special Rapporteur is awaiting a response to his
communication dated 1 Septer er 1998.
Indonesia
Communication to the Government
102. On 11 March 1998, the Special Rapporteur sent a letter to the Government
concerning the disappearance of Mr. Desmond J. Mahesa, a lawyer, aged 33, who
is the director of the Jakarta Branch of the Nusantara Legal Aid Institute
(LBH Nusantra) . According to the source, Mr. Mahesa had not been seen since
3 February 1998, when he was visited by military intelligence agents. The
source reported that Mr. Mahesa was suspected to be in the illegal custody of
the military intelligence agency, BIA. The source also expressed fears that
he might be subjected to psychological and/or physical torture.
Ob s e r vat i on
103. The Special Rapporteur awaits a response from the Government to this
communication.
Iran (Islamic Republic of )
104. The Special Rapporteur has taken note of the report of the Special
Representative on the situation of human rights in the Islamic Republic of
Iran (E/CN.4/1999/32) . In this report, the Special Representative notes the
emergence of debate in Iran about the judiciary and the legal system. The
Special Representative has been informed that a court reform bill concerning
the civil and revolutionary courts (containing some 800 articles) which has
been under discussion in the Majlis Judiciary Corimittee for two years, is to
be debated in the Majlis this month.
105. The Special Representative reports the need for reform of the Clerics
Court, which has tended to be an arbitrary and secretive tribunal. Such
practices serve to deny a defendant the right to a fair trial.
106. In 1997, following the enactment of a new Majlis law (under which
candidates are screened by the Judges Court) , elections were held for
positions on the Bar Executive Council. The Bar Association is beginning to
address the issue of the shortage of lawyers, and the issue of access to
lawyers in Iran.
Ob s e r vat i on s
107. The Special Rapporteur will continue to liaise with the Special
Representative for more information on these developments.
E/CN.4/1999/60
page 27
Israel
108. The Special Rapporteur has taken note of the report to the General
Assembly of the Special Committee to Investigate Israeli Practices Affecting
the Human Rights of the Palestinian People and Other Arabs of the Occupied
Territories (A/53/661, paras. 118—119) . The Special Committee reported on the
situation of persons detained in Israel without legal entry permits and who
are subjected to summary trials with no qualified legal assistance. It was
reported that many prisoners were not aware of their rights and that since
there were no lawyers to advise them, such persons often received heavy
penalties for offences not requiring detention and paid large fines.
109. The Special Committee also reported that there was no due process of
law. Military courts were often composed of officers without legal
background, some being settlers who were known by Palestinians to hold
extremist views.
110. The Special Committee also reported that Palestinian lawyers were not
eligible to represent prisoners before Israeli courts because they were not
members of the Israeli Bar. Also, not all prisoners could afford to pay the
fees of an Israeli lawyer, although some Israeli lawyers are hired for
Palestinians through human rights organizations. Further, Palestinian lawyers
were denied access to centres of detention and to their clients since they
were often unable to obtain the necessary permits to enter Israel, in
particular if they were from the Gaza Strip.
Ob s e r vat i on s
111. The Special Rapporteur will continue to liaise with the Special
Committee concerning these issues.
Kenya
Communication to the Government
112. On 26 August 1998, the Special Rapporteur sent a corimunication to the
Government concerning Mr. Juma Kiplenge, a lawyer and human rights defender,
who was on bail at the time awaiting trial on charges of incitement to
violence and unlawful assembly. According to the source, Mr. Kiplenge and 13
others were arrested and charged after organizing and attending a day—long
cultural event in October 1997 which was violently broken up by the police.
The source claimed that the charges of unlawful assembly and incitement to
violence had been brought despite the fact that no licence was required for
such a gathering and the only violence that occurred was on the part of the
police. The source further reported that the next hearing in the case was due
to take place on 31 August 1998. It was alleged that the magistrate hearing
the case had reportedly stated at another hearing of the case in November 1997
that he would convict the defendants regardless of the evidence produced in
court “because they are troublemakers”. The case was being heard at the
Magistrate's Court in Kabarnet in western Kenya. The magistrate hearing the
case was reportedly a lay magistrate with no legal training.
E/CN. 4/1999/60
page 28
Communication from the Government
113. On 6 Nover er 1998, the Deputy Solicitor—General of Kenya sent a letter
in reference to the Special Rapporteur's letter of 26 August 1998 concerning
Mr. Juma Kiplenge and 13 others. The Deputy Solicitor-General informed the
Special Rapporteur that the Attorney-General had entered a nolle rosegui in
respect of all the cases.
Ob s e r vat i on s
114. The Special Rapporteur thanks the Government of Kenya and is pleased to
note that the charges against Mr. Kiplenge were withdrawn.
Malaysia
115. In his fourth report to the Corimission on Human Rights, the Special
Rapporteur drew attention to the continuation of the four lawsuits filed
against him for defamation. In an addendum (E/CN.4/1998/39/Add.5) , the
Special Rapporteur described how the Federal Court of Malaysia had refused to
grant him leave to appeal to that court. As such, the Special Rapporteur had
exhausted all his legal remedies on the issue of immunity before the Malaysian
courts.
116. Following this refusal the United Nations Secretary—General sent
Maître Yves Fortier to Kuala Lumpur as his special envoy in late February 1998
to seek with the competent authorities in Malaysia a resolution of the
dispute on the immunity issue. After failure to reach a resolution the
Secretary—General sent the same envoy again, in July 1998, to Kuala Lumpur to
resolve the dispute. That attempt too failed.
117. Having exhausted his diplomatic efforts, the Secretary—General urged the
Economic and Social Council at its session in New York, on 28 July 1998, to
seek a resolution by referring the dispute, under section 30 of the Convention
on the Privileges and Immunities of the United Nations, to the International
Court of Justice (ICJ) for an advisory opinion. On 5 August the Council
adopted a resolution without a vote and referred the dispute to ICJ.
118. Upon directions given by ICJ to Member States to submit written
statements, seven Member States did so. In addition to Malaysia, they were:
Costa Rica, Germany, Italy, Sweden, the United Kingdom of Great Britain and
Northern Ireland and the United States of America. The Office of Legal
Affairs of the United Nations also submitted a written statement. ICJ heard
oral submissions at the Hague from 7 to 10 December. The Office of Legal
Affairs of the United Nations, Malaysia, Costa Rica and Italy made oral
submissions.
119. At the conclusion the President of ICJ stated that the Court would
deliver its opinion sometime in the spring of 1999.
120. In the meantime, the Malaysian courts have programmed hearings of the
Special Rapporteur's appeals/applications in the four lawsuits for the first
E/CN.4/1999/60
page 29
week of February 1999. ICJ was informed by the Government of Malaysia that
those hearings would be further postponed in the event that the ICJ opinion
had not been delivered by then.
121. In another development, the Special Rapporteur sent three communications
to the Government of Malaysia on 28 September, 9 October and 30 November 1998
in connection with allegations of harassment of defence lawyers engaged in the
trial of Datuk Anwar Ibrahim, the former Deputy Prime Minister of Malaysia.
The 30 November communication was with regard to the committal of lawyer
Zainur Zakaria, one of Datuk Anwar's lawyers to three months' imprisonment for
contempt of court for having filed an application in court on behalf of his
client.
Ob s e r vat i on s
122. The Special Rapporteur is awaiting the Government's response to these
communications.
123. In the event that the ICJ advisory opinion is delivered before the
Commission session, the Special Rapporteur will prepare a summary for the
Commission.
New Zealand
Communication to the Government
124. On 11 November 1998, the Special Rapporteur sent a letter to the
Government concerning the case of Mr. Moti Singh and the conduct of
Judge Bouchier of the Otahuhu District Court in the adjudication of that case.
Allegedly, Mr. Singh had lodged a criminal complaint against a third party,
who was accused of theft. The police investigation initially determined that
there were sufficient grounds for proceeding with the prosecution on
6 July 1996; however, after certain specific comments made by Judge Bouchier,
the police decided not to proceed with the prosecution on 4 December 1996.
Reportedly, Judge Bouchier made comments, in private and in public, that
resulted in the police decision not to prosecute. Of particular concern is
the allegation that the Judge made these comments without considering the
facts of the case. Supposedly, her conclusions were based solely on her prior
experiences with Mr. Singh, when he had appeared as a defendant in her court.
After an investigation by Judge R.L. Young, the Chief Judge of the District
Court, Judge Bouchier was not formally reprimanded (although she did express
regret at making those comments and provided an apology for any embarrassment
that may have resulted) . Judge Young indicated that although the criminal
complaint had been dropped, Mr. Singh could still seek compensation through
the exercise of his civil rights.
Ob s e r vat i on s
125. The Special Rapporteur awaits a response from the Government.
E/CN. 4/1999/60
page 30
Ni Qeria
Press statement
126. On 1 May 1998, the Special Rapporteur joined the High Commissioner for
Human Rights, the Special Rapporteur on the situation of human rights in
Nigeria and the Special Rapporteur on extrajudicial, summary or arbitrary
executions in issuing a press statement expressing deep concern at the
sentencing to death in Nigeria of six defendants on charges of treason on
28 April 1998. A total of 30 persons had been charged in connection with an
alleged coup plot announced by the Government of Nigeria in December 1997.
The ad hoc military tribunal which convicted and sentenced the individuals
failed to meet regional and international standards protecting the defendant
and ensuring a fair trial. The tribunal was comprised of military officers
operating outside of the normal judicial system, most of the evidence was
heard in secret and no right of appeal was provided to the defendants.
Communication to the Government
127. On 18 March 1998, the Special Rapporteur sent an urgent appeal jointly
with the Special Rapporteur on the situation of human rights in Nigeria
concerning the arrest of the following individuals:
(a) Felix Morka, lawyer and Executive Director of the Social and
Economic Rights Action Centre in Lagos was reportedly detained by the State
Security Service on 16 March at the Lagos Murthala Mohammed International
Airport upon his arrival at approximately 2 p.m. to board a plane to Nairobi
to attend a meeting with the Ford Foundation. The source reports that
Mr. Morka is thought to be in custody at Awolowo Road, Ikoyi, Lagos;
(b) Lawyer and human rights activist Femi Falana was reportedly
arrested on 12 March with seven other people. According to the source, Falana
and the others were arrested at a hotel in Ilorin during a conference and are
being held without charge at the Ilorin corimand of the State Security Service;
(c) Olisa Agbakoba, ex—President of the Civil Liberties Organization
(CLO) , President of AFRONET and President of the United Action for Democracy
(UAD) was reportedly arrested on 3 March 1998. According to the source,
Mr. Agbakoba was attacked and then arrested by members of the Nigerian
Police when he tried to speak at a pro—democracy rally, organized by UAD in
Yaba Lagos. During the rally, 36 other people were reportedly arrested.
Mr. Agbakoba was detained for 24 hours and then brought before a magistrate
who released him under caution. The arrest was later justified by the Police
Commissioner on the grounds that the meeting had not been authorized.
Mr. Agbakoba launched an appeal in the High Federal Court challenging his
arrest and requesting that he be awarded damages.
128. On 8 June 1998, the Special Rapporteur sent an urgent appeal jointly
with the Chairman-Rapporteur of the Working Group on Arbitrary Detention, the
Special Rapporteur on the situation of human rights in Nigeria and the Special
Rapporteur on freedom of opinion and expression concerning the case of
Mr. Niran Malaolu, the editor of an independent Nigerian daily newspaper,
The Diet . According to the source, Mr. Malaolu was arrested at the editorial
E/CN.4/1999/60
page 31
offices of the newspaper on 28 December 1997, allegedly by armed soldiers of
the Military Intelligence Directorate (DM1) . Mr. Malaolu was held without
charges until 14 February 1998, when he was brought before a Special Military
Tribunal constituted under the Treason and Other Offences (Special Military
Tribunal) Decree No. 1 of 1986, on secret charges. Prior to his arraignment
before the tribunal, Mr. Malaolu was denied access to a lawyer, a doctor and
members of his family, and remanded at a military detention facility in Lagos,
until he was moved to the northern city of Jos, where the trial took place.
After a secret trial, the tribunal's president announced, on 28 April 1998,
that Mr. Malaolu had been found guilty of concealment of treason and sentenced
him to life imprisonment. According to the source, Mr. Malaolu was punished
by the Nigerian military authorities for news stories published by his paper
concerning an alleged coup plot involving Lieutenant—General Oladipo Diya, as
well as other military officers and civilians who were also convicted by the
tribunal and given sentences ranging from prison terms to death by firing
squad.
129. On 8 June 1998, the Special Rapporteur sent an urgent action jointly
with the Chairman-Rapporteur of the Working Group on Arbitrary Detention and
the Special Rapporteur on the situation of human rights in Nigeria concerning
the 27 crew members of the cargo ship Dubai Valour , who reportedly had been
kept forcibly on board the ship since 8 August 1997. According to the
information received, upon completion of the discharge of the cargo in Nigeria
on 8 August 1997, the cargo's receivers, Lonestar Nigeria, impounded the ship
for a claim equivalent to US$ 17 million. Although the ship's owner hired
local lawyers and various attempts were made to bring the matter before the
local courts, these attempts were frustrated by the claimants. On
22 August 1997, the Federal High Court in Lagos ordered that the ship be
released against a letter of undertaking in the amount of US$ 1 million. This
letter was provided, but the ship was unable to leave port, owing to
difficulties encountered with local agents appointed by Lonestar. Thereafter,
the Area Naval Commander refused to accept the release order; in addition, the
Nigerian Port Authority advised that it had received a letter from Lonestar
advising that the ship should not be allowed to leave port. The shipowner's
lawyer then met with the Chief of Naval Staff and asked for his intervention,
and also requested the intercession of the Chief Judge of the Federal High
Court; his efforts were to no avail. On 30 September 1997, the High Court
order facilitating the release of the cargo was stayed, after an application
by the claimants. There has been no movement since then.
Report of the Special Ra orteur on the situation of human riQhts in NiQeria
130. The Special Rapporteur has taken note of the report to the Commission on
Human Rights of the Special Rapporteur on the situation of human rights in
Nigeria (E/CN.4/1999/36) . In his report, the Special Rapporteur on the
situation of human rights in Nigeria informs the Corimission that for the first
time in 19 years, the Supreme Court acquired, on 25 November 1998, its full
complement of justices, with the appointment of six new justices. The nur er
has thereby been brought to 15 in addition to the Chief Justice of Nigeria (as
provided for by the 1979 Constitution of the Federal Republic of Nigeria) . In
addition, 24 new justices of the Court of Appeal were appointed by the
E/CN. 4/1999/60
page 32
Provisional Ruling Council, bringing their total nur er to 50 (including the
President) . This brings the Court of Appeal to its full capacity in
accordance with the Court of Appeal Act.
131. General Abubakar's promise to ensure the financial independence of the
judiciary by providing it with funds from the consolidated revenue is a
further sign of the substantial efforts being made to unfetter the judicial
system in Nigeria.
Ob s e r vat i on s
132. The Special Rapporteur awaits a response from the Government to the
joint urgent appeals. He is pleased to note that some improvements are being
made in the justice system in Nigeria.
Pakistan
Communication to the Government
133. On 16 September 1998, the Special Rapporteur sent a letter to the
Government recalling his corimunications dated 28 Septer er 1995,
17 January 1996, 23 September 1997, 16 October 1997 and 11 Decer er 1997 in
which he had requested to lead a mission to investigate the state of
independence of the judiciary and lawyers in Pakistan, and seeking a response
from the Government as to whether it would be possible to undertake such a
mi 55 i on.
Peru
Communication to the Government
134. On 1 May 1998, the Special Rapporteur sent an urgent appeal to the
Government concerning Mrs. Delia Revoredo, a former mer er of the
Constitutional Court of Peru and the current Dean of the Colegio de Abogados
of Lima. It was reported that Mrs. Revoredo had announced at a press
conference on 12 April 1998 that she was leaving the country because she had
received death threats. Mrs. Revoredo stated that the threats against her had
commenced when she had publicly expressed her opposition to the decision of
President Alberto Fujimori to seek a third term in office. In 1996,
Mrs. Revoredo was one of seven judges elected by the Congress to be a member
of the Constitutional Court of Peru. In 1997, she and two other judges,
Manuel Aguirre Roca and Guillermo Rey Terry, held that it was unconstitutional
for President Fujimori to present himself for a third term in the presidential
elections to be held in the year 2000. The Congress of Peru then removed her
and the two other judges from the Constitutional Court. In December 1997,
Mrs. Revoredo was elected Dean of the Colegio de Abogados of Lima. She
publicly announced that she would implement a policy in favour of the defence
of human rights and against corruption, and she called upon the National
Council of the Magistracy to initiate investigations against various judges
suspected of corruption. It was reported that Mrs. Revoredo had departed for
Costa Rica with her husband Jaime Mur to seek political asylum. Her children,
however, remained in Lima, where they were continuing to receive threats on
the telephone.
E/CN.4/1999/60
page 33
135. On 13 May 1998, the Special Rapporteur sent an urgent appeal to the
Government concerning Heriberto Benitez Rivas, a human rights lawyer. It was
reported that he had begun receiving death threats at his home in Lima in
December 1997 and that they had continued during the month of April 1998.
Reportedly, the threats were related to his work for human rights.
Mr. Benitez is the lawyer for Leonor Rosa Bustamante, a former agent of the
Intelligence Service of the Army (SIE) who was tortured by SIE members to
extract information about security plans. Mr. Benitez also represents
Gustavo Adolfo Cesti Hurtado, a retired army Captain who had been sentenced to
four years' imprisonment by a military tribunal for the crime of fraud.
Mr. Benitez had also informed the United Nations of the case of
Mrs. Delia Revoredo, who had fled the country and sought political asylum
in Costa Rica after receiving death threats.
136. On 14 July 1998, the Special Rapporteur sent an urgent appeal to the
Government concerning Mr. Francisco Soberón, President of the Peruvian
Association for Human Rights (APRODEH) and Vice-President of the International
Federation of Human Rights (FIDH) . It was reported that, on 19 June 1998, a
message containing threats against Mr. Francisco Soberón appeared on the
association's fax. This letter accused Mr. Soberón of being the accomplice of
numerous terrorists and of being in contact with Mr. Salas and Mrs. Zanata,
who are described in the letter as traitors and made the subject of degrading
comments. Mr. Salas is a captain in the police and Mrs. Zanata is a secret
agent. Both were, at the time, refugees in the United States because of
threats directed against them. In addition to the threats contained in this
letter, the language seemed to indicate that Mr. Soberón was closely watched.
137. On 19 November 1998, the Special Rapporteur sent a letter to the
Government concerning the safety of Ms. Elba Greta Minaya Calle. According to
the source, Ms. Calle has been the target of intimidation because of her
independent exercise of professional duties. On 22 Septer er 1998, she is
alleged to have been stopped by a police officer based at the Cotabambas
police station, for no apparent reason. This action and previous allegations
of harassment appear to delineate a concerted effort to discourage Ms. Calle's
independence as a judge.
Communication from the Government
138. On 3 March 1998, the Government sent a note verbale informing the Office
of the High Commissioner for Human Rights about recent steps it had taken in
the development of human rights. The Government reaffirmed its firm intent to
promote and protect human rights and its desire to use all of its resources to
raise the level of human rights in Peru. An example of this firm political
intent was the adoption of Law No. 26926, modifying several articles of the
Penal Code and recognizing genocide, enforced disappearances and torture as
crimes against humanity. The text of the law was attached to the note
verbale.
139. On 28 April 1998, the Government sent a note verbale to the Office of
the High Commissioner for Human Rights stating that on 3 April 1998 Law
No. 26940 had been promulgated. A copy of the law was attached to the
note verbale. The Government requested that the information be transmitted to
the special rapporteurs and working groups of the Commission on Human Rights,
E/CN. 4/1999/60
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in particular the Working Group on Arbitrary Detention, as well as the
relevant Committees. The Government indicated that that law would have the
effect of increasing the powers of the ad hoc corimission created by
Law No. 26655, the Pardons Commission, enabling it better to know, evaluate,
qualify and propose to the President of the Republic the commutation of
sentences (on an exceptional basis) by which people have been deprived of
their liberty. The mandate of that ad hoc corimission had been extended until
31 December 1998.
140. On 14 August 1998, the Government sent a note verbale to the Office of
the High Commissioner of Human Rights in response to the urgent appeal
transmitted by the Special Rapporteur on 14 July 1998 concerning
Mr. Francisco Soberón. The Government wished to corimunicate to the Special
Rapporteur that it had taken note of his communication and had ordered an
investigation of the case, the results of which he would be informed of in due
course. Further, the Government had ordered that all the necessary measures
be taken to guarantee the security and physical integrity of Mr. Soberón, in
the framework of the policy of the promotion and protection of human rights
that he had pledged to expand.
Ob s e r vat i on s
141. The Special Rapporteur is awaiting a response to his communications
of 1 May, 13 May and 19 November 1998. He thanks the Government for its
response of 14 August 1998 and is pleased to learn of the measures taken to
guarantee Mr. Soberón's security. He has also taken note of the other
communications sent to the Office of the High Corimissioner for Human Rights.
Phili ines
Communication to the Government
142. On 20 February 1998, the Special Rapporteur sent a letter to the
Government of the Philippines concerning lawyers Romeo T. Capulong,
Marie Yuviengo and Rolando Rico Olalia. According to information received,
they have been the subject of harassment related to their legal representation
of State witnesses in the case against military officers implicated in the
torture and murder of the labour leader Rolando Olalia in 1986. The source
further reported that on or around 2 February 1998, the office of the Public
Interest Law Center was broken into, confidential case files were forced open
and searched, and the central processing unit of a computer was removed along
with 1,700 pesos in cash. Moreover, it was reported that, prior to that
incident, the above—mentioned lawyers had received telephone calls from
anonymous persons requesting information about their movements. In addition,
their office had been visited by several suspicious persons purporting to be
seeking legal assistance. One of those persons had produced an identity card
dating from 1967 under the name of a former deceased governor of a province.
It had also been reported that attorney Capalong had been subjected to
surveillance. On 13 January 1998 at midnight, a van was reportedly seen being
driven around his home and this action was repeated at about 9 p.m. on
2 February 1998. The source further reported that the van was believed to be
a Tamaraw Fx bearing the nur er plate 347, and that three men had been seen
E/CN.4/1999/60
page 35
inside it. All of those acts reportedly were connected with the murder
charges filed against several high—ranking former and current military
officers on 12 January 1998 by the above—mentioned lawyers.
143. On 12 May 1998, the Special Rapporteur sent an urgent action jointly
with the Special Rapporteur on extrajudicial, summary or arbitrary executions
concerning José Manuel Diokno, Vice—Chair of the Free Legal Assistance
Group (FLAG) . It was reported that Mr. Diokno had received a written death
threat in connection with his representation of State witnesses in the
Kuratong Baleleng case, a case involving the killing of 11 persons by members
of the Philippine National Police in May 1995.
Communication from the Government
144. On 18 March 1998, the Government sent a letter to the Special Rapporteur
in response to his letter of 10 Decer er 1997 concerning the case of lawyer
Nicolas Ruiz and Mr. Jevee Patalita. The Government provided the following
information.
145. On 18 July 1997, the Supreme Court issued a writ of habeas corpus
directing the respondents to respond to the writ not later than 22 July 1997
to Executive Judge Estrella Trias Estrada, Regional Trial Court, Quezon City,
and to appear and produce the disappeared persons, attorney Ruiz and
Mr. Patalita, at a hearing before that judge, also on the same date.
Judge Estrada was further directed to try and decide the case on its merits
and thereafter furnish the High Court with a copy of her decision.
146. On 22 July 1997, the respondents in the petition for habeas corpus of
attorney Nicolas Ruiz and Jevee Patalita, docketed as G.R. No. 129635 and
entitled “Benedicta N. Ruiz and Nicolas Giovanni N. Ruiz, Petitioners,
versus Brig. Gen. Benjamin Libarnes, Brig. Gen. José Calimlim and
Director Santiago Toledo, Respondents” made a return of the writ stating
therein that they did not have custody of attorney Ruiz and Mr. Patalita.
However, the respondents filed with the Court of Appeals a petition for
certiorari and prohibition (with an urgent plea for the issuance of a
temporary restraining order and/or writ of preliminary injunctions) docketed
as CA—G.R. No. SP. 41980 and entitled “Maj. Gen. Benjamin Libarnes, et al.,
Petitioners, versus Hon. Estrella Estrada and Benedicta N. Ruiz et al.,
Respondents”.
147. On 20 August 1997, a temporary restraining order was issued by
the 10th Division of the Court of Appeals restraining the respondent judge
from continuing with proceedings in the petition for habeas corpus.
Accordingly, the hearing of the petition for habeas corpus was suspended.
148. On 27 October 1997, a writ of preliminary injunction was issued by the
Court of Appeals directing the public and private respondents therein to cease
from taking any further action in G.R. No. 129635 pending the final resolution
of the petition. As of the date of the Government's letter, the Court of
Appeals had not made a final decision in connection with the petition.
149. The corcJiined efforts of elements of the Philippine National Police and
the National Bureau of Investigation were being exerted to locate the
E/CN. 4/1999/60
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whereabouts of the alleged disappeared persons. The case was part of a larger
drug—related case involving an alleged drug lord whose extradition was being
sought from Hong Kong. The Government emphasized that it took the matter
seriously in the light of its determination to combat the drug menace in
the Philippines. Since its investigations were still continuing and
considering that the case of Mr. Ruiz and Mr. Patalita was before the courts,
detailed information could not be provided at that time.
Ob s e r vat i on s
150. The Special Rapporteur thanks the Government for its response. However,
he has heard nothing further concerning the investigations into the
disappearances of Nicolas Ruiz and Jevee Patalita
Russian Federation
Communication to the Government
151. On 19 November 1998, the Special Rapporteur sent a letter to the
Government concerning the case of Vasiliy Rakovich. Allegedly, Mr. Rakovich
was attacked on 23 October 1998, during a lunch break in the trial of
Vasiliy Chaikin. Mr. Rakovich was Mr. Chaikin's defence counsel at the time;
the case was being heard in the City Court of Stanitsa Leningradskaya, in the
Krasnodar region. Supposedly, the attack was motivated by Mr. Rakovich's call
for an investigation into Sergey Tsaturyan's interrogation of witnesses in the
Chaikin case. Mr. Tsaturyan is the chief investigator in Vasiliy Chaikin's
case.
Ob s e r vat i on
152. The Special Rapporteur awaits a response from the Government.
Rwanda
153. In his report to the General Asser ly (A/53/402, paras. 40-49), the
Special Representative of the Commission on Human Rights on the situation of
human rights in Rwanda reported that there had been some improvement in the
administration of justice in Rwanda in the past year. For example, the Office
of the Prosecutor—General had initiated “group trials” in an attempt to
alleviate the burden on the justice system, and there had been an improvement
in access by civil parties to legal representation in Rwanda. Further, the
Special Representative commended the rulings handed down by the International
Criminal Tribunal for Rwanda and hoped that those verdicts would serve as the
first step on the path to eradicating impunity.
154. There remained, however, concerns about the lack of adequate financial
and human resources to support the effective functioning of an independent and
impartial justice system in Rwanda.
Ob s e r vat i on
155. The Special Rapporteur shares the concerns of the Special Representative
over the lack of resources for the judiciary.
E/CN.4/1999/60
page 37
Sri Lanka
Communication to the Government
156. On 11 August 1998, the Special Rapporteur sent an urgent appeal jointly
with the Chairman-Rapporteur of the Working Group on Arbitrary Detention and
the Special Rapporteur on torture concerning Mr. Weerasinghe Arrachige
Janaka Chaminda. According to information received, he was arrested on
6 August 1998 at 3.15 p.m. and allegedly brought to the Ja—ela police station,
where he was detained. He was reportedly beaten by a police inspector on
several occasions during the day and the night of his arrest. Mr. Milroy, who
reportedly went to visit him, was said also to have been detained at the same
police station, where he was allegedly beaten by a police constable. It was
alleged that they had not been brought before a judicial authority since their
arrest, had not been charged and had been denied access to a legal adviser.
Both are said to have been denied access to their families. Furthermore,
fears were expressed that the above—named persons might continue to be at risk
of torture and other forms of ill—treatment.
157. On 11 November 1998, the Special Rapporteur sent a letter to the
Government concerning allegations reported in the Sunday Observer , a prominent
Sri Lankan newspaper. An article printed on 7 June 1998 alleged inappropriate
conduct by an unnamed High Court judge. Specifically, the judge was accused
of privately meeting with a defendant, whose case was pending in the judge's
court, and another High Court judge. Although no names were provided, the
resolution of this matter, either through the identification and sanctioning
of the persons involved or through their exoneration, was of particular
importance.
Communication from the Government
158. On 17 November 1998, the Permanent Representative of Sri Lanka to the
United Nations Office in Geneva sent a letter to the Special Rapporteur
informing him that the contents of his letter of 11 November 1998 had been
transmitted to the relevant authorities in Sri Lanka and that a further
communication would follow upon receipt of information from the authorities in
Sri Lanka.
Ob s e r vat i on s
159. The Special Rapporteur awaits a response to his communication
of 11 August 1998.
Sudan
Communication to the Government
160. On 16 January 1998, the Special Rapporteur sent an urgent appeal jointly
with the Special Rapporteur on the situation of human rights in the Sudan and
the Chairman—Rapporteur of the Working Group on Arbitrary Detention concerning
the arrest and detention of lawyers Zaki Mansour and El Eden Mohamed Ahmed,
both arrested on 21 Decer er 1997, and Yahya El Hussain, Margani El Hibir and
Mahjoub Abdalla Mohamed, arrested on 1 January 1998. It was reported that
E/CN. 4/1999/60
page 38
Margani El Hibir was released on 7 January 1998. According to the information
received, they had been arrested in relation to a peaceful demonstration
organized in Khartoum by Sudanese lawyers on 20 December 1997, in which
between 1,000 and 2,000 lawyers marched to the High Court and the Ministry of
Justice in Khartoum protesting the violation of human rights and the arrest
and harassment of lawyers. The report expresses grave fears for their
physical and psychological integrity. It was also reported that a memorandum
had been distributed to the Minister of Justice requesting independence of the
judiciary; the closure of all public order courts; the withdrawal of the
1993 amendments to the Advocacy Act of 1983 that denies Sudanese lawyers the
right to confidentiality and places the Bar Association under the control of
the Registrar of Trade Unions and the Minister of Labour; the discontinuing of
arbitrary arrests and detentions and the release of all persons detained
without charge; respect for the rule of law, the annulment of all
constitutional decrees and laws that contradict international human rights law
that has been agreed to by the Government of the Sudan; and the resumption of
democracy and civil rights in the Sudan. It was also alleged that among the
persons and lawyers forced to report daily to security headquarters were
Ms. Ilhlam Nassir, a civil servant with the Omdurman local Council;
Professor Mohammed Osman Maki, a lecturer in philosophy; and Mr. Hamid El Nur,
a businessman. Moreover, lawyers El Sheik Mohamed, Ali Adam, Ms. Fatima Abu
El Gasim and Abd El Hameed Khalaf Alla had been forced to stay at Security
Headquarters from 6 a.m. until midnight.
161. On 23 January 1998, the Special Rapporteur sent a letter jointly with
the Special Rapporteur on the situation of human rights in the Sudan
concerning the arrest and detention of Mr. Gazi Suleiman, a human rights
defender and lawyer. According to the information received, Mr. Suleiman was
arrested in Khartoum on 20 January 1998 at 2 p.m. and brought to trial the
same day at 4 p.m. It was also reported that after an adjournment of
four hours, at approximately 9 p.m., a summary trial was held in which
Mr. Suleiman was convicted under section 66 (spreading false news) and
section 94 (failure to obey an order or summons by a government official) of
the 1991 Penal Code. The basis for the charges was reportedly Mr. Suleiman's
refusal to obey a summons by the Security on Saturday 17 January 1998 and
public statements he had made concerning the Sudanese Bar Association and,
more generally, the rule of law in Sudan. According to the source,
Mr. Suleiman had reasonable grounds under the law to refuse the summons
because the security officers did not present their identification papers.
The source further reported that Mr. Suleiman denied the allegations of
spreading false news. It was reported that Mr. Suleiman had been sentenced to
five months' imprisonment and fined 500,000 Sudanese pounds and was reportedly
being held at Security Headquarters before being transferred to Kober Prison.
162. On 12 May 1998, the Special Rapporteur sent a letter to the Government
concerning the arrest of advocate Ali Alsayed, a leading member of the
Alliance for the Restoration of Democracy (ARD) , and other opposition lawyers,
including Khalid Abu Elrous. According to the source, Mr. Ali Alsayed was
arrested on 7 May 1998 by armed security men. He was then taken to his
office, which was searched. He was detained in an unknown location and fears
had been expressed for his physical and psychological integrity. The source
E/CN.4/1999/60
page 39
also alleged that advocate Khalid Abu Elrous was recently arrested, along with
83 other lawyers, members of ARD. The source reported that the arrests
occurred during the referendum on the new Constitution.
163. On 23 August 1998, the Special Rapporteur sent a letter to the
Government concerning Mr. Mostafa Abdel Gadir, who was reportedly detained in
Khartoum in early July. The source alleged that advocate Gadir had been
detained as a result of his legal representation of a number of mer ers of the
political opposition arrested in late June 1998, who had announced, pursuant
to provisions of the newly enacted Constitution, that they would restart party
activities irimediately.
Communication from the Government
164. On 8 May 1998, the Government sent a note verbale to the Office of the
High Commissioner for Human Rights, which provided, inter alia , a response to
the Special Rapporteur's letter of 16 January 1998. The Government informed
him that lawyers Zaki Mansour, Alla Eldin Mohamed Ahmed, Yahia Elhussein,
Ihlam Nasir, Mohamed Osman Mekki, Hamid Elnur, El Sheikh Mohamed Ahmed,
Ali Adam, Fatima Abuelgasim and Abdel Hameed Khalafalla had been subjected to
preliminary investigation, which was conducted in a very short time and in
accordance with the law. No one was detained.
165. On 11 July 1998, the Rapporteur of the Advisory Council for Human Rights
of the Republic of the Sudan sent a letter to the Special Rapporteur
acknowledging receipt of his letter concerning the detention of some
Sudanese lawyers. After investigating the matter, the Government informed
the Special Rapporteur that the allegations were not true. In particular,
advocate Ali Alsayed and advocate Khalid Abu Elrous were continuing their
normal life and practising their profession. However, some security officers
had corimunicated with them on the dates mentioned in the Special Rapporteur's
letter about certain incidents which had taken place at the buildings of the
Bar Association in the Sudan, but they had not been detained.
166. On 26 October 1998, the Government sent a letter to the Office of the
High Commissioner for Human Rights in response to the Special Rapporteur's
letter dated 23 August 1998 concerning the alleged detention of
advocate Mustafa Abdel Gadir. The Government informed the Special Rapporteur
that advocate Abdel Gadir had never been detained as alleged and that he was
free, conducting his profession and other activities.
Ob s e r vat i on s
167. The Special Rapporteur thanks the Government for its responses.
However, he expresses some concern that lawyers appear to be under some form
of harassment from security forces.
Trinidad and TobaQo
168. On 10 October 1998, the Special Rapporteur sent an urgent appeal to the
Government concerning Ms. Pamela Ramjattan, sentenced to death for the murder
of her corimon—law husband, Mr. Alexander Jordan. Ms. Ramjattan now faces
imminent execution. Based upon the information received, it appeared that a
E/CN. 4/1999/60
page 40
failure of justice may have occurred insofar as the court did not take into
consideration salient, mitigating factors in defence of the accused. The
Special Rapporteur requested the Government to stay the proceedings to allow
him to study the facts of the case in greater detail and to prepare a detailed
intervention that might be submitted to the Advisory Committee on the Power of
Pardon.
Ob s e r vat i on s
169. The Special Rapporteur has not yet received a response from the
Government. He is also awaiting further materials from the source.
Tunisia
Communication to the Government
170. On 12 March 1998, the Special Rapporteur sent a letter to the Government
concerning lawyer Radhia Nassraoui. According to the information received,
her office was broken into and ransacked on 11 February 1998 around 3 a.m. and
the majority of her materials were stolen. The main door of her office was
forced open and badly damaged and the contents of her office, including her
files, law books, telephone, fax and computer were stolen. Additionally, it
was reported that Ms. Nassraoui has allegedly been the object of such attacks
because of her activities in the area of the defence of human rights. It was
also reported that Ms. Nassraoui has been frequently placed under surveillance
by security agents and that on the day of the incident witnesses reported
having seen security agents near her office.
Communication from the Government
171. On 3 June 1998, the Government sent the Special Rapporteur a response to
his letter dated 12 March 1998. The Government informed the Special
Rapporteur that on 12 February 1998 Ms. Nassraoui had presented through her
lawyer a request to the Procurator of the Republic of the Court of First
Instance of Tunisia, in which she also alleged that her office had been the
object of damaging theft. On the basis of this complaint, the Procurator of
the Republic had decided to open an investigation of damaging theft to the
property of another. He had charged the senior judge with the investigation,
who had ordered the judicial police to handle the matter. The police agents
came to the site and proceeded to interview and to gather testimony in the
presence of Ms. Nassraoui, who was invited by the investigators to present
herself at the office of the judicial police for the purpose of making a
statement. However, the interested party had not followed up on this
invitation. The Government also informed the Special Rapporteur that the
investigation was following its normal course with the purpose of discovering
the truth and establishing the facts.
Ob s e r vat i on s
172. The Special Rapporteur thanks the Government and awaits further
information on the outcome of the investigation.
E/CN.4/1999/60
page 41
Turkey
Communication to the Government
173. On 12 March 1998, the Special Rapporteur sent an urgent appeal to the
Government concerning the detention of Mr. Kemal Yilmaz, a lawyer of the Bar
Association of Istanbul and mer er of the Contemporary Lawyers Association and
of the Human Rights Association of Turkey (IHD) . According to the source,
Mr. Yilmaz had been arrested on 21 February 1998 in Yozgat, while he was
leaving the city after having visited his client in the local prison. He had
been interrogated by the police, although, according to Turkish law, lawyers
can only be interrogated by a prosecutor. According to the source, he was
detained in Yozgat E-type prison. Mr. Yilmaz was allegedly suspected of being
a liaison officer of an illegal organization. The source expressed fears that
he may be subjected to psychological and/or physical torture.
174. On 26 August 1998, the Special Rapporteur sent a corimunication jointly
with the Special Rapporteur on violence against women, its causes and
consequences to the Government concerning lawyer Mrs. Sevil Dalkiliç, who was
sentenced to 30 years' imprisonment in 1995, allegedly on the basis of
statements which she made under torture. According to the source,
Mrs. Dalkiliç was detained in March 1994 and held in the Ankara police
headquarters for 15 days. During this time, she was allegedly subjected to
death threats and threats of rape, sexually abused, beaten, subjected to
electric shocks, hosed with pressurized water and deprived of food, sleep and
access to toilet facilities. She allegedly suffered a bilaterally dislocated
jaw as a result of the beating. The source further reported that the
statement she had made in police custody was brought as evidence in her trial
at Ankara State Security Court on charges of membership of the illegal Kurdish
Workers' Party, handling explosives and separatism. The statement was not
supported by any forensic evidence or eyewitness testimony. Reportedly, the
only other evidence brought before the court was police statements and
statements, apparently also made under duress, by other defendants in the
trial. In court, Mrs. Dalkiliç retracted her statement, alleging that it had
been extracted under torture. The source claims that the court conducted no
investigations into her complaint.
Communication from the Government
175. On 6 May 1998, the Government sent a letter to the Special Rapporteur
enclosing an information note pertaining to the case of Mr. Kemal Yilmaz. The
Government informed the Special Rapporteur that Mr. Kemal Yilmaz, a lawyer,
was taken under custody on 21 February 1998 in Yozgat and after his first
interrogation by the Chief Prosecutor in Yozgat, he was arrested by the
Criminal Court of First Instance, and kept at the Yozgat prison, on the
grounds of serving the illegal, terrorist organization TKP/MI—TIKKO as a
courier and providing shelter and assistance to its mer ers.
176. During the visit paid to his clients (Mr. Hasan Durna,
Mr. Erdal Cetinkaya, Mr. Ismet Cetkinaya and Mr. Ali Gocmen, all of them
convicted of mercJiership of the illegal terrorist organization TKP/MI—TIKKO)
at the Yozgat prison, messages for the members of the said organization,
E/CN. 4/1999/60
page 42
disguised in layers of paper tissues, as well as a written document reflecting
the views and strategies of the said illegal organization were discovered on
Mr. Kemal Yilmaz.
177. Mr. Yilmaz's case was later deferred to the State Security Court of
Ankara on 23 February 1998. He was transferred to the Ankara Ulucanlar prison
on 31 March 1998. His case was pending in the Ankara State Security Court.
178. It had been established through medical reports that he had not been
subjected to torture or ill-treatment, either during the period of detention
or at the time of his arrest.
179. On 27 October 1998, the Government sent a letter to the Special
Rapporteur and the Special Rapporteur on violence against women, its causes
and consequences in response to their letter dated 12 October 1998 concerning
the case of Mrs. Sevil Dalkiliç. The Government provided the following
information to the Special Rapporteurs.
180. First, Mrs. Sevil Dalkiliç, a lawyer and the Director of the Kaman local
house, as well as a member of the Human Rights Association, had been taken
under custody in the aftermath of an operation carried out in collaboration by
the Kirehir and Ankara Security Forces on 3 March 1994 on the grounds of her
participation in the illegal action group consisting of Mr. •brahim Halil Ata
and Mr. • smet Ayaz, the central regional province and political
representative, respectively, of the terrorist organization PKK. She was
kept under custody for 14 days, according to the relevant articles of the
Turkish Code of Criminal Procedures then in force, and was arrested on
17 March 1994.
181. Secondly, as a result of the interrogation of Mrs. Dalkiliç, she was
found guilty of the following offences: an attempt to set fire to a forest
zone in Ankara—Oran, on 15 August 1993; borcJiing of the Kirehir Palace of
Justice on 23 September 1993; using explosives at the Emlak Bank building in
Kirehir on 1 October 1993; using explosives at the Kirehir Governorate
building on 14 October 1993; bombing of a building belonging to a political
party in Ankara on 22 December 1993; borcJDing of the government lodges
belonging to the Ministry of Justice in Kirehir on 1 January 1994.
182. Thirdly, Mrs. Dalkiliç's case was considered by the State Security Court
of Ankara and she was sentenced to 15 years' imprisonment and payment of a
fine of 1,920,000 Turkish liras, on 7 February 1995, on the grounds of her
membership of an armed gang and using explosives. The verdict was appealed
against to the Supreme Court of Appeals and the decision of the Ankara State
Security Court was upheld on 13 October 1995.
183. Fourthly, Mrs. Dalkiliç and her lawyer had submitted, on 8 July 1994
and 14 November 1994, respectively, allegations of torture during her stay in
custody. However, the forensic report issued at the end of the period she
spent in custody, on 16 March 1994, confirmed that she had not been subjected
to torture or ill—treatment. Moreover, Mrs. Dalkiliç, at the hearing of the
State Security Court on 17 March 1994, accepted her testimony, received during
her interrogation by the Security Department, and did not claim for any acts
of torture or ill—treatment directed against her physical integrity.
E/CN.4/1999/60
page 43
Ob 5 JT Vat Ions
184. The Special Rapporteur thanks the Government for Its responses, but he
has not been able to verify the information transmitted by the Government.
United KinQdom of Great Britain and Northern Ireland
185. In his report to the Commission on Human Rights at its fifty-fourth
session on his mission to the United Kingdom (E/CN.4/1998/39/Add.4), the
Special Rapporteur raised several matters of concern and made recorimendations.
The Government of the United Kingdom did respond. The Special Rapporteur
wishes to deal with just two issues, namely, intimidation and harassment of
defence lawyers and the murder of Patrick Finucane.
Intimidation and harassment of defence lawyers
186. In paragraph 38 of his report, the Special Rapporteur asserted that he
was satisfied that there had been harassment and intimidation of defence
lawyers by Royal Ulster Constabulary (RUC) officers. The Government responded
by stating, inter alia : “This obviously is a matter of considerable concern.
We would ask, however, to be provided with specific details on which the
allegations are made. If there is new evidence, we will want to ensure that
that is looked into”. The Chief Constable of the RUC was reported to have
said, “All of his complaints relate to hearsay. I'm not saying that they
should not be taken seriously, but he has come to conclusions without any firm
evidence”. ( The Sunday Business Post , 10 October 1998)
187. Special Rapporteurs on mission have no powers to compel witnesses to
appear before them and record evidence on oath to substantiate any allegation,
if that is what the Chief Constable meant when he called for substantiation of
allegations. During his mission the Special Rapporteur listened to various
personalities and studied the materials supplied to him. The fact remained
that the RUC was fully aware of these complaints through NGO reports, both
domestic and international. It failed to take note. In the view of the
Special Rapporteur, the RUC showed complete indifference to the allegations
contained in the reports from NGOs. The lawyers concerned were only about
30 of the 1,700 solicitors in Northern Ireland and could easily be identified.
The Chief Constable could easily have called them for a meeting and inquired
why they were complaining to the NGOs and not the RUC. Through such a
dialogue, confidence in the RUC investigation mechanism could have been
restored. This the Chief Constable failed to do and allowed the situation to
deteriorate.
188. Recently a solicitor made a nur er of formal complaints, the
investigations of which were supervised by the Independent Commission for
Police Complaints (ICPC) . The Special Rapporteur received information that
ICPC expressed dissatisfaction with the manner in which these complaints were
investigated. As a result, the Metropolitan Police of London were appointed
to investigate them. The investigation is yet to be completed. This once
again illustrates the lack of confidence in the RUC investigation mechanism
and demonstrates further why the lawyers concerned refused to complain to
the RUC.
E/CN. 4/1999/60
page 44
189. The Special Rapporteur trusts that when the audio/video recording of
interrogation is fully operational and the police Or udsman scheme comes into
existence on 1 March 1999, cases of harassment and intimidation of defence
lawyers will be minimized. However, these mechanisms can only be effective if
those who are entrusted with their implementation are committed and adequately
trained to respect the rights of suspects under investigation and the role of
lawyers representing them. The Special Rapporteur hopes that the Chris Patten
Commission will address this issue.
The murder of Patrick Finucane
190. With regard to the murder of a prominent lawyer, Patrick Finucane, the
Special Rapporteur in his report expressed his conviction that there were
compelling reasons for an independent judicial inquiry. He in fact called on
the Government to invoke the provisions of the Commission of Enquiry Act as
was done in the case of the Bloody Sunday incident.
191. The Government's response was that there was no new evidence to justify
such an inquiry. The Special Rapporteur is of the view that the Government
may have misunderstood the reason for his call for such an inquiry. His
concern over this murder was over doubts as to whether there was State
collusion, i.e. military and/or RUC collusion, in this murder. From the
materials seen by the Special Rapporteur, there is at least prima facie
evidence of such collusion. His conclusion to this effect is fortified by the
refusal up to now by the Government to make public the report of John Stevens'
second inquiry. Even a summary of the report was not made public as was done
in the earlier inquiry. The Special Rapporteur was not calling for the
prosecution of anyone for the murder, in which event new evidence may be
necessary.
192. In this regard, the Special Rapporteur was surprised to learn from a
news report of a statement attributed to the Chief Constable of the RUC. He
was reported to have said, “There never was a suggestion of RUC collusion.
What John Stevens (the British Chief Constable who succeeded John Stalker to
investigate RUC collusion) found was that part-time military regiment (RIR)
people had been involved. There was no hint of collusion by the RUC with
paramilitaries” ( The Sunday Business Post , 4 October 1998)
193. The Special Rapporteur finds such a statement coming from the
Chief Constable surprising. At the end of the mission in Belfast, the
Special Rapporteur sought another meeting with the Chief Constable,
Mr. Ronnie Flanagan. At this meeting the Special Rapporteur requested answers
on this issue. The Chief Constable said that as he was not the Chief
Constable at the time of the investigation he could not provide the answers
and directed the Special Rapporteur to Mr. John Stevens. The Chief Constable
even volunteered to call Mr. John Stevens to give him the green light to
answer the Special Rapporteur's questions. When the Special Rapporteur wrote
to John Stevens posing some questions (see E/CN.4/1998/39/Add.4, para. 70), he
(Stevens) declined on the grounds, inter alia , that “The reports are highly
classified and the authority of the above persons will be required before
information is released” (E/CN.4/1998/39/Add.4, para. 71)
E/CN.4/1999/60
page 45
194. What is puzzling here is that the Chief Constable, at the meeting with
the Special Rapporteur, volunteered to instruct John Stevens to answer the
Special Rapporteur's questions. But John Stevens declined to answer unless he
obtained permission from the Secretary of State and/or the Chief Constable.
But the Chief Constable is reported to have divulged at least part of the
John Stevens report to the Sunday Business Report . If a salient part of that
report, considered highly classified, could be divulged to the press by the
Chief Constable then why could not the entire report be made public?
195. Since the report of the Special Rapporteur was issued, his attention has
been drawn to an illuminating article written by a journalist, Mr. John Ware,
in the New Statesman of 24 April 1998. In the article, Mr. Ware gives details
of British army collusion in murders such as that of Patrick Finucane. The
article also deals with the Patrick Finucane murder. The Special Rapporteur
met Mr. John Ware in London and discussed with him the contents of the
article. The Special Rapporteur considers that the revelation in the article
further substantiates his conclusion that there was possible security force
collusion in the murder of Patrick Finucane. If new evidence is needed, there
appears to be ample in the article referred to. The Chief Constable's
reported disclosure to The Sunday Business Post “that part—time military
regiment (RIR) people had been involved” adds further substance to the Special
Rapporteur's conclusion.
196. The Special Rapporteur therefore reiterates his earlier call for a
royal commission of inquiry into this murder. Only such an inquiry could
finally lay to rest the lingering doubts about this brutal murder, which
had a chilling effect on the independence of the legal profession in
Northern Ireland.
Communication to the Government
197. On 12 August 1998, the Special Rapporteur sent a corimunication to the
Government concerning the alleged assault of Miceal Caraher, Martin Mines and
Bernard McGinn by the police following a court appearance in the Craigavon
Magistrates Court in Northern Ireland. Of particular concern was the fact
that the alleged assault occurred in the precincts of the court building.
Further, according to the source, the allegations were raised by the
solicitors of the above—named individuals with the resident magistrate,
Mr. Ken Nixon. The source reported that the resident magistrate indicated to
the solicitors that he had not seen anything and therefore he would not take
the matter any further. The source also reported that the above—named
individuals claim that their visits to court are the occasion of regular minor
assaults and verbal abuse. In this regard, the Special Rapporteur had been
informed by the Special Rapporteur on torture, Mr. Nigel Rodley, that he had
transmitted on 28 April 1997 prior allegations concerning Mr. McGinn and
Miceal Caraher. The Special Rapporteur on torture had also provided a copy of
the Government's response dated 30 June 1997, in which it indicated that the
allegations were the subject of an internal investigation of complaints
against officers of the Royal Ulster Constabulary supervised by the
Independent Commission of Police Complaints.
Ob s e r vat i on s
198. The Special Rapporteur awaits a response on the investigation into these
allegations.
E/CN. 4/1999/60
page 46
YuQoslavia (Federal Republic of)
Communication to the Government
199. On 6 August 1998, the Special Rapporteur transmitted an urgent appeal
jointly with the Special Rapporteur on torture concerning the arrest of
Mr. Destan Rukigi, a human rights lawyer who has defended ethnic Albanian
political prisoners in Kosovo in recent years and reportedly has provided
information on war crimes committed by Serbian special police forces in
Kosovo to the International War Crimes Tribunal for the Former Yugoslavia in
the Hague. According to the source, Mr. Rukigi was arrested on 23 July 1998
in the presence of staff of the Office of the High Commissioner for Human
Rights and sentenced that same day in an expedited procedure to the maximum
60 days in prison for disturbing public order under article 6, paragraph 3 of
the Serbian Law on Public Order. The source further alleged that Mr. Rukigi
was severely beaten by the police following his arrest and was hospitalized on
30 July in serious condition because of injuries to his kidneys caused by the
beatings. The charges against Mr. Rukigi were based on an investigative
judge's claim that Mr. Rukigi had insulted her by saying she had behaved like
a policeman. The court decision indicated that he had made the remark in the
office of the investigative judge, when she would not allow him to take notes
on, but only to read, court documents relating to the defence of one of his
clients. In this regard, the Special Rapporteurs had been informed that the
Law on Criminal Procedure guarantees unconditional review of court files
relating to a client. The source also reported that another human rights
activist, Ms. Zahrida Podrimcaku, was arrested in Pristina on 9 June 1998.
Ms. Podrimcaku had been investigating an incident that occurred on 31 May 1998
in the village of Poklek, in which police detained 10 ethnic Albanian men
during an attack on the village. According to the source, the body of one of
the men, Ardian Deliu, was found the next day, while the other nine men remain
missing and are presumed dead.
Ob s e r vat i on s
200. The Special Rapporteur is awaiting a response from the Government.
Report of the Special Ra orteur on the situation of human riQhts in Bosnia
and HerzeQovina. Croatia and the Federal Republic of YuQoslavia
201. The Special Rapporteur has also taken note of the report to the
General Asser ly of the Special Rapporteur on the situation of human rights in
Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia
(A/53/322), in which he stated that the need for independent investigations
into mass crimes against civilians in Kosovo was urgent. Following three
comprehensive field missions in 1998, the Special Rapporteur on the situation
of human rights in Bosnia and Herzegovina, Croatia and the Federal Republic of
Yugoslavia, cited the continuing disregard of both domestic and international
standards pertaining to police conduct and the treatment of detainees
(A/53/322/Add.1, para. 36)
202. Trials on criminal charges relating to terrorism and anti—State activity
began in the district of Prizren, resulting so far in the conviction and
sentencing of all those charged. Trials were scheduled for every other
E/CN.4/1999/60
page 47
weekday until the end of October and November 1998. The Office of the High
Commissioner for Human Rights monitored these proceedings throughout Kosovo
(A/53/322/Add.1, para. 37)
203. The Milosevic-Holbrooke agreement of 13 October 1998 (points 11 and 12)
provides amnesty for persons who took part in armed activity in Kosovo. Prior
to the implementation of these regulations, the portions relating to criminal
prosecution must be reviewed, approved and codified in regulations by the
federal Parliament and then published in the official gazette of the Federal
Republic of Yugoslavia. At the time of writing of the present report, it is
unclear when regulations for amnesty for persons who took part in armed
activity in Kosovo will be adopted. It was also reported by the Special
Rapporteur on the human rights situation that the Serbian Ministry of Justice
can issue interim instructions to suspend relevant criminal proceedings of
persons charged with terrorism, until the federal Parliament has taken action
(A/53/322/Add.1, para. 37)
VIII. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
204. From the number of interventions made, it will be seen that many
Governments do not respond in a timely manner. The Special Rapporteur
generally seeks a response from a Government within a month.
205. Several Governments to which the Special Rapporteur has made requests
for in situ missions have not responded positively. In this connection, the
Special Rapporteur would state that he seeks in situ missions not only to
countries where judges and lawyers face problems of threats to judicial
independence, but also countries where efforts are being made to improve and
enhance judicial independence, so that those positive developments can be
reported to the Corimission. Such reports could encourage other States to
emulate their efforts.
206. On the question of standards, the Special Rapporteur, while welcoming
intergovernmental organizations addressing the issue of judicial and lawyers'
independence, is concerned over the possible proliferation of standards.
Unless standards are uniform and consistent there can be confusion. The
Special Rapporteur will continue to work closely with intergovernmental
organizations on this matter. If the United Nations Basic Principles are
found to be too general and basic in substance then there may be a
justification for reviewing them.
207. There has been an increase in the interest shown by organizations of
judges and lawyers in the work of the Special Rapporteur and the status of
independence globally. It is reflected in the number of invitations the
Special Rapporteur has received to participate in meetings in the different
regions.
208. With the increase in requests by countries, particularly countries in
transition, for technical assistance and training programmes for the
implementation of human rights standards, support for the rule of law and the
strengthening of the administration of justice, the Special Rapporteur will
work closely with the Activities and Programmes Branch of the Office of the
High Commissioner for Human Rights to assist with these activities.
E/CN. 4/1999/60
page 48
209. The Special Rapporteur's mandate often requires analysis of laws and
legislation. When such laws and legislation are in a language other than
English, the Special Rapporteur encounters considerable difficulties in the
Office of the High Corimissioner for Human Rights in having such laws and
legislation translated into the English language professionally. These
difficulties not only impede and delay the work of the Special Rapporteur but
affect the quality of his work.
B. Recommendations
210. Arising from some of the observations made earlier under country
situations, his activities and the conclusions, the Special Rapporteur wishes
to make some specific recommendations:
(i) In the case of the United Kingdom of Great Britain and
Northern Ireland, the Special Rapporteur reiterates his earlier
recommendation in paragraph 95 of his report to the Commission on
Human Rights at its fifty-fourth session (E/CN.4/1998/39/Add.4)
that the Government should establish an independent judicial
inquiry to investigate the murder of Patrick Finucane. In this
regard, the Special Rapporteur urges the Government to make public
the second report of John Stevens.
(ii) In paragraph 4 of resolution 1994/41 creating this mandate, the
Commission urged all Governments to assist the Special Rapporteur
in the discharge of his mandate and to transmit to him all the
information requested. In the spirit of this paragraph, the
Special Rapporteur once again appeals to Governments to respond to
his interventions promptly and attend positively to his requests
to undertake in situ missions.
(iii) The Special Rapporteur calls on Governments, the national
judiciaries, Bar associations and NGOs to submit to him any court
judgments and any legislation affecting the independence of the
judiciary and the legal profession for his consideration,
irrespective of whether such judgments and legislation have the
effect of enhancing or restricting judicial and lawyer
independence.
(iv) The Special Rapporteur requests that he be provided with
professional translation assistance in the Office of the High
Commissioner for Human Rights to enable him to discharge his
mandate effectively.
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