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
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          (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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          E/CN.4/1999/60
          page 9
          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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          E/CN.4/1999/60
          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
        
          
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          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.
        
          
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          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
        
          
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          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.
        
          
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          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
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          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
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          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
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          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.
        
          
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          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
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          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
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          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
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          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
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          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
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          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
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          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
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          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
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          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.
        
          
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          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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