UNITED
NATIONS E
Economic and Social Distr.
Council
GENERAL
E/CN.4/2000/6 1
21 February 2000
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-sixth session
Item 11(d) of the provisional agenda
CIVIL AND POLITICAL RIGHTS, INCLUDiNG THE QUESTIONS OF:
INDEPENDENCE OF THE JUDICIARY, ADMINISTRATION
OF JUSTICE, IMPUNITY
Report of the Special Rapporteur on the independence ofjudges and
lawyers, Mr. Param Cumaraswamy, submitted in accordance with
Commission resolution 1999/31
CONTENTS
Paragraphs Page
Executive summary 5
Introduction 1 -2 6
L TERMSOFREFERENCE 3-6 6
II. METHODS OF WORK 7 8
III. ACTIVITIES OF THE SPECIAL RAPPORTEUR 8-26 8
A. Consultations 8 - 10 8
B. Missions/visits 11 - 15 9
C. Communications with governmental authorities 16 - 20 9
GE.00-11177 (E)
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118
127
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133
- 328
- 42
- 45
- 49
- 56
- 69
- 76
- 78
- 82
- 89
- 92
- 98
- 100
-117
- 126
- 128
- 132
- 136
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16
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21
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22
23
24
25
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30
32
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33
Paragraphs Page
21 10
22-26 10
27-32 12
27-28 12
29-30 12
31-32 12
33-35 13
36 - 37
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CONTENTS ( continued )
D. Cooperation with intergovernmental and
non-governmental organizations
E. Cooperation with other United Nations procedures
and bodies
IV. THEORETICAL ISSUES
A. Honour killings
B. Judicial corruption
C. Human rights defenders
V. STANDARDS
VI. JUDICIAL DECISIONS REFLECTING THE INDEPENDENCE
AND IMPARTIALITY OF THE JUDICIARY
VII. SITUATIONS IN SPECIFIC COUNTRIES OR
TERRITORIES
Argentina
Australia
Babrain
Belarus
Belgium
Belize
Bolivia
Boznia and Herzegovina
Brazil
Cambodia
Cameroon
Chile
China
Colombia
Croatia
Cuba
Democratic Republic of the Congo
E/CN. 4/2000/61
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CONTENTS ( continued)
Paragraphs Page
Djibouti 137- 142 34
Egypt 143 - 147 35
Equatorial Guinea 148 - 149 36
Gambia 150- 152 37
Guatemala 153- 156 37
Haiti 157- 159 38
Indonesia 160 - 163 39
Iran (Islamic Republic of) 164- 166 39
Israel 167- 169 40
Japan 170- 186 41
Kenya 187- 190 44
Lebanon 191 - 192 44
Malaysia 193 - 207 45
Mexico 208-210 48
Nepal 211-212 49
NewZealand 213-217 49
Pakistan 218-230 51
Palestine 231 - 232 53
Paraguay 233 - 234 54
Peru 235 - 237 54
Philippines 238 - 239 55
Rwanda 240 - 242 55
Saudi Arabia 243 - 244 56
South Africa 245-246 56
SriLanka 247-259 56
Sudan 260 - 264 59
Suriname 265 - 269 60
Switzerland 270 - 272 61
Trinidad and Tobago 273 - 274 61
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CONTENTS ( continued)
Paragraphs Page
Tunisia 275 - 286 62
Turkey 287- 302 64
United Kingdom of Great Britain and Northern Ireland 303 - 322 67
Yemen 323 - 324 71
Yugoslavia 325-328 71
VIII. CONCLUSIONS AND RECOMMENDATIONS 329 - 341 72
A. Conclusions 329 - 334 72
B. Recommendations 335 - 341 73
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Executive summary
This is the sixth annual report of the Special Rapporteur whose mandate, created by
Commission resolution 1994/41, called upon him:
(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.
The report contains seven chapters dealing with his methods of work, the activities
undertaken during the year, some theoretical issues, some judicial decisions reflecting the
independence and impartiality of the judiciary, situations in 51 countries or territories and his
conclusions and recommendations. During the year the Special Rapporteur sent out several
interventions including 11 urgent appeals and 19 urgent appeals in association with other special
rapporteurs.
In the course of the year, the Special Rapporteur undertook a visit to Guatemala and a
separate report on this mission will be before the Commission. The Special Rapporteur has
expressed his disappointment and embarrassment over the abrupt cancellation of a mission to
South Africa in November owing to the non-availability of funds.
The Special Rapporteur has included in the present document a report of his follow-up
mission to Belgium from 24 to 26 November (see E/CN.4/1998/39/Add.4). He has also
summarized the developments concerning the implementation of the Advisory Opinion of the
International Court of Justice by the Government of Malaysia and the courts. With regard to the
United Kingdom of Great Britain and Northern Ireland, the Special Rapporteur has expressed his
continued concerns over the investigations into the murders of Patrick Finucane and
Rosemary Nelson. With regard to Switzerland, the Special Rapporteur has urged the
Government to offer adequate compensation to Mr. Clement Nwankwo.
The Special Rapporteur has also drawn the attention of the Commission to the invitations
extended to him by the Governments of South Africa, Belarus and Mexico; he would plan to
undertake missions to those countries in April, June and September, respectively. He has also
drawn attention to the invitation by the Government of Saudi Arabia to undertake a mission to
that country. The details, including the dates, are currently being discussed.
Among the recommendations, the Special Rapporteur has once again called upon the
Government of the United Kingdom of Great Britain and Northern Ireland to establish an
independent judicial inquiry into the murder of Patrick Finucane. He has also urged the
Commission to give serious consideration to provide a monitoring mechanism to implement the
Declaration on the Right and Responsibilities of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,
adopted by the General Assembly by its resolution 53/144.
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Introduction
1. The present report is submitted pursuant to Commission on Human Rights
resolution 1999/31. It is the sixth annual report to the Commission by the Special Rapporteur
since the mandate was established by the Commission in its resolution 1994/4 1, 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, E/CN.4/1998/39 and
E/CN.4/1999/60).
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 his 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 ofjudicial independence.
Chapter VII contains brief summaries of urgent appeals and communications to and from
governmental authorities, along with observations of the Special Rapporteur. Chapter VIII
contains the conclusions and recommendations of the Special Rapporteur.
I. TERMS OF REFERENCE
3. At its fiftieth session, the Commission on Human Rights, in resolution 1994/41, noting
both the increasing frequency of attacks on the independence ofjudges, 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 Commission 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 “Special Rapporteur on the independence ofjudges and lawyers”.
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5. In resolutions 1995/36, 1996/34, 1997/23, 1998/35 and 1999/3 1 the Commission 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-fifth 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 1999/16 on cooperation with representatives of United Nations human
rights bodies, in which the Commission called upon all representatives of United Nations human
rights bodies to continue to take urgent steps, in conformity with their mandates, to help prevent
the occurrence of intimidation and reprisals against persons offering such cooperation and to
continue to include in their respective reports a reference to allegations of intimidation or reprisal
and of hampering of access to United Nations human rights procedures, as well as an account of
action taken by them in this regard;
(b) Resolution 1999/27 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;
(c) Resolution 1999/29 on hostage-taking, in which the Commission urged all
thematic special rapporteurs and working groups to continue to address, as appropriate, the
consequences of hostage-taking in their forthcoming reports to the Commission;
(d) Resolution 1999/34 on impunity, in which the Commission invited the special
rapporteurs and other mechanisms of the Commission to continue to give due consideration to
the issue of impunity in the discharge of their mandates;
(e) Resolution 1999/36 on the right to freedom of opinion and expression, in which
the Commission invited the working groups, representatives and special rapporteurs of the
Commission on Human Rights to pay attention, within the framework of their mandates, to the
situation of persons detained, subjected to violence, ill-treated or discriminated against for
having exercised the right to freedom of opinion and expression as affirmed in the relevant
human rights instruments;
(f) Resolution 1999/41 on integrating the human rights of women throughout the
United Nations system, in which the Commission requested all mechanisms of the Commission
on Human Rights and the Sub-Commission 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 human rights of women and girls, and encouraged the
strengthening of cooperation and coordination in that regard;
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(g) Resolution 1999/48 on the rights of persons belonging to national or ethnic,
religious and linguistic minorities, in which the Commission called upon special representatives,
special rapporteurs and working groups of the Commission to continue to give attention, within
their respective mandates, to situations involving minorities;
(h) Resolution 1999/80 on the rights of the child, in which the Commission
recommended that, within their mandates, all relevant human rights mechanisms, in particular
special rapporteurs and working groups, regularly and systematically take a child's rights
perspective into account in the implementation of their mandates, especially by paying 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 sixth year of his mandate, continued following the
methods of work described in his first report (E/CN.4/1995/39, paras. 63-93).
III. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Consultations
8. The Special Rapporteur visited Geneva for his first round of consultations
from 5-10 April 1999 in order to present his report to the Commission at its fifty-fifth session.
During this period the Special Rapporteur met with representatives of the regional groups to
brief them on his work and to answer any questions they might have. He also held consultations
with representatives of the Governments of Paraguay and Turkey. In addition, he held a briefing
for interested non-governmental organizations and also met individually with several NGOs.
9. The Special Rapporteur visited Geneva from 26 May to 5 June 1999 for his second round
of consultations and to attend the sixth meeting of special rapporteurs/representatives, experts
and chairpersons of working groups of the special procedures of the Commission on Human
Rights and of the advisory services programme, which was held from 31 May to 3 June. The
Special Rapporteur also attended the Workshop on Gender Integration into the Human Rights
System which was held from 26 to 28 May. During his visit, the Special Rapporteur met with
the Permanent Representatives of Guatemala, Turkey, Australia, Ireland, Sri Lanka, Pakistan and
Indonesia. The Special Rapporteur also met with the Special Rapporteur on the right to
education and the Special Rapporteur on the situation of human rights in the Democratic
Republic of the Congo.
10. The Special Rapporteur then travelled to Northern I reland in order to participate in the
Criminal Law Review Workshop on 8 and 9 June 1999. He also had several consultations,
including with Deputy Commissioner John Stevens of the Metropolitan Police, who was called
to reopen investigations into the murder of Patrick Finucane. He also met the late
Rosemary Nelson's husband, Paul Nelson, and her sister.
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B. Missions/visits
11. During 1999, the Special Rapporteur undertook a field mission to Guatemala
(16-26 August 1999). The report on his mission, containing his findings, conclusions and
recommendations, can be found in an addendum to the present report.
12. The Special Rapporteur was invited by the Government of South Africa to undertake a
field mission from 22 to 26 November 1999. On 20 November 1999, the Special Rapporteur had
to call off the mission owing to financial constraints of the Office of the High Commissioner.
On 23 November 1999, the Special Rapporteur sent letters to the Permanent Mission of
South Africa in Geneva and the Minister for Justice in Pretoria, and all the judges, lawyers and
institutions he was supposed to meet during the mission expressing his deep regret over its
cancellation.
13. During the period under review the Special Rapporteur also informed the Governments
of Belarus, Mexico, Saudi Arabia and Sri Lanka of his wish to carry out in situ investigations.
He also reminded the Governments of Cuba, Egypt, Indonesia, Pakistan, Turkey and Tunisia of
his previous requests to undertake missions to those countries.
14. During his visit to Geneva from 24 to 28 January 2000, the Special Rapporteur had
meetings with the Permanent Representatives of South Africa, Mexico and Belarus and is
pleased to report that the respective Governments have invited him to undertake in situ missions
this year to South Africa in late April, Belarus in mid-June and Mexico in mid-September.
15. The Special Rapporteur is pleased to report that the Government of Saudi Arabia has
welcomed a mission from the Special Rapporteur to that country. Details and the dates are being
discussed with the Permanent Mission.
C. Communications with governmental authorities
16. During the period under review, the Special Rapporteur transmitted 11 urgent appeals to
the following States: Australia, Belarus (2), Belize, Brazil, Colombia, Paraguay, Pakistan (1),
Philippines, and Sri Lanka (2).
17. Seeking to avoid unnecessary duplication of the activities of other thematic and country
rapporteurs, the Special Rapporteur has joined during the past year with other special rapporteurs
and working groups to transmit 18 urgent appeals on behalf of individuals to the Governments of
the following 12 countries: Brazil (2), together with the Special Rapporteur on extrajudicial,
summary or arbitrary executions; Bahrain, together with the Chairman-Rapporteur of the
Working Group on Arbitrary Detention and the Special Rapporteur on freedom of opinion and
expression; Colombia, together with the Special Rapporteur on extrajudicial, summary or
arbitrary executions; Democratic Republic of the Congo, together with the Special Rapporteur on
torture; Indonesia (2), together with the Chairman-Rapporteur of the Working Group on
Arbitrary Detention and the Special Rapporteur on torture; Israel (2), together with the
Chairman-Rapporteur of the Working Group on Arbitrary Detention and the Special Rapporteur
on torture; Nepal, together with the Special Rapporteur on torture; Pakistan, together with the
Special Rapporteur on extrajudicial, summary or arbitrary executions; Sudan (2), together with
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the Chairman-Rapporteur of the Working Group on Arbitrary Detention and the Special
Rapporteur on the situation of human rights in the Sudan, and with the Special Rapporteur on
torture; Turkey (3), together with the Special Rapporteur on extrajudicial, summary or arbitrary
executions and the Special Rapporteur on torture; United Kingdom of Great Britain and
Northern Ireland, together with the Special Rapporteur on extrajudicial, summary or arbitrary
executions; and Yemen, together with the Special Rapporteur on extrajudicial, summary or
arbitrary executions and the Special Rapporteur on torture.
18. The Special Rapporteur transmitted 26 communications to the governmental authorities
of the following: Argentina, Brazil, China, Chile, Cameroon, Colombia, Democratic Republic
of the Congo, Djibouti, Egypt, Gambia, Guatemala, Japan, Kenya, Lebanon, Mexico, Pakistan,
Palestine, Peru, Philippines, Sri Lanka, South Africa, Sudan, Switzerland, Tunisia,
United Kingdom of Great Britain and Northern Ireland and Yugoslavia.
19. The Special Rapporteur received replies to urgent appeals from the Governments of
Australia, Belize, Sri Lanka, Sudan and Turkey.
20. Replies to communications were received from the Governments of Argentina, Belize,
Colombia, China, Djibouti, Egypt, Guatemala, Japan, Kenya, New Zealand, Pakistan, Sri Lanka,
Sudan, Switzerland, Tunisia and Turkey. Other communications were received from the
Governments of Colombia and Turkey.
D. Cooperation with intergovernmental and non-governmental organizations
21. 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 rapporteurs and working groups of the Commission on Human Rights
22. 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/or 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
23. In his third, fourth and fifth reports (E/CN.4/1997/32, paras. 26-37; E/CN.4/1998/39,
paras. 23-24; E/CN.4/1999/60, paras. 28-34), the Special Rapporteur referred to the importance
of the work done by the former Crime Prevention and Criminal Justice Divisions in overseeing
the implementation of the Basic Principles on the Independence of the Judiciary. The Special
Rapporteur was unable to attend the eighth session of the Commission on Crime Prevention and
Criminal Justice in April 1999. However, he continued to receive assistance from the secretariat
as and when needed with regard to standards.
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24. The Special Rapporteur has received an invitation from the Executive Director
of the United Nations Office for Drug Control and Crime Prevention to attend the
Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in
Vienna in April 2000. The Special Rapporteur has indicated his interest in attending the
Congress.
3. Activities and Programmes Branch of the Office of the High Commissioner
for Human Rights
25. As mentioned in his third, fourth and fifth reports (E/CN.4/1997/32, para. 31;
E/CN.4/1998/39, para. 26; E/CN.4/1999/60, para. 35), 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 apologizes for having been
unable to devote sufficient time to this project.
4. Promotional activities
26. As stated in his third, fourth and fifth reports, the Special Rapporteur considers
promoting the importance of the independence of the judiciary and the legal profession and the
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 and conferences.
Owing to other commitments, the Special Rapporteur could not accept all the invitations.
Nevertheless, he did accept the following invitations:
(a) On 8 and 9 June to attend, at the invitation of the International Commission of
Jurists, the Committee on the Administration of Justice and the Centre for International and
Comparative Human Rights Law, Queen's University, Belfast, an experts' workshop on the
review of the criminal justice system in Northern Ireland;
(b) From 31 July to 7 August, to attend a colloquium in Salzburg, Austria, on
“Personal Responsibility of Judges”, along with distinguished jurists from the different regions
and the High Commissioner for Human Rights;
(c) From 15 to 17 September, to participate, at the invitation of article 19, in the
International Colloquium on Freedom of Expression and Defamation in Colombo, along with the
Special Rapporteur on freedom of opinion and expression; on 18 September, at the invitation of
the Bar Association of Sri Lanka, to address lawyers and journalists;
(d) From 11 to 14 October, at the invitation of Transparency International, to address
the ninth International Anti-Corruption Conference in Durban, South Africa;
(e) On S and 6 November, at the invitation of Stichting Juridische Samenwerking
Suriname - Nederland (SJSSN) and the Due Process of Law Foundation (DPLF), to address the
opening of the conference on “Constitutional Guarantees for the Independence of the Judiciary -
A Safeguard for the Consolidation of the Rule of Law and the Democratic Process in Suriname”.
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IV. THEORETICAL ISSUES
A. Honour killings
27. In the report submitted to the fifty-fifth session of the Commission on Human Rights,
the Special Rapporteur stated that the Special Rapporteur on extrajudicial, summary or arbitrary
executions had drawn his attention to the problem of so-called “honour killings” where
husbands, fathers or brothers had gone unpunished after having murdered their wives, daughters
or sisters in order to defend the honour of the family. It was also reported that those who commit
“honour killings” normally receive considerably shorter sentences, as the court view defence of
the honour of the family as a mitigating circumstance. The Special Rapporteur expressed his
concern and informed the Commission that he would continue to work with the Special
Rapporteur on extrajudicial, summary or arbitrary executions to study this phenomenon
(see E/CN.4/1999/60, paras. 41 and 42).
28. In this connection, the Special Rapporteur has been informed that during the period
covered by this report, the Special Rapporteur on extrajudicial, summary or arbitrary executions
sent three communications, two to Pakistan and one to Bangladesh, involving cases relating to
the problem of “honour killings”. The cases are described in the relevant report. The Special
Rapporteur wishes to express his concern in regard to these cases of summary execution, and
urges the Governments concerned to bring those responsible to justice. Further, the Special
Rapporteur reminds the Governments of their responsibility under international law to prevent,
to investigate and to punish human rights violations.
B. Judicial corruption
29. Considerable concerns are beginning to be expressed over judicial corruption. The issue
was on the agenda of the ninth International Anti-Corruption Conference organized by
Transparency International in South Africa in October 1999 which the Special Rapporteur
attended. Transparency International is pursuing its activities to curb corruption within the
judiciary. It intends to work closely on this matter with the United Nations Centre for Crime
Prevention and Criminal Justice, the United Nations Development Programme, the International
Commission of Jurists, the Commonwealth Secretariat and the various international financial
institutions, including the World Bank and the Asian Development Bank. In this regard the
Centre for the Independence of Judges and Lawyers, in cooperation with Transparency
International, is convening a workshop of experts on combating judicial corruption
from 23 to 25 February 2000 in Geneva.
30. The Special Rapporteur welcomes these initiatives and looks forward to close
cooperation with the organizations concerned.
C. Human rights defenders
31. The Special Rapporteur continues to receive complaints of attacks against human rights
defenders who are not lawyers or who are lawyers but attack other than in the course of the
discharge of their professional duties in defence of human rights. Owing to the need to confine
himself within the parameters of his mandate, the Special Rapporteur may not intervene in
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defence of human rights defenders, however serious the attacks against them. The situation
becomes embarrassing when several are attacked collectively but only some of them are lawyers
attacked while exercising their professional duties.
32. The Declaration on the Right and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognized Human Rights and Fundamental
Freedoms will be meaningless if there is no effective monitoring mechanism to oversee its
implementation.
V. STANDARDS
International Association of Prosecutors
33. On 23 April 1999 the International Association of Prosecutors adopted a set of Standards
of Professional Responsibility and a Statement of the Essential Duties and Rights of Prosecutors.
Based on the United Nations Guidelines on the Role of Prosecutors, these standards deal with the
professional conduct, independence and impartiality of prosecutors as well as their duty to
cooperate with colleagues around the world and their right to fair and proper terms of
employment. Provisions deal with the proper conduct of criminal proceedings, including
measures which will ensure the fair prosecution of offences while protecting a defendant's right
to a fair trial.
Council of Europe
34. In his last report (E/CN.4/1999/60, para. 46), the Special Rapporteur referred 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. The European Charter on the
Statute for Judges was adopted in July 1998 and in April 1999, representatives from Ministries
of Justice of 25 European countries met in Lisbon and approved the flexible and open nature of
the modalities laid down in the European Charter and, having examined the problems which
confront them in their own countries, confirmed the usefulness of the Charter and called for its
greater dissemination and translation into as many languages as possible.
35. The Special Rapporteur, while continuing to express his appreciation to regional and
international associations, both intergovernmental and non-governmental, for their concern to set
standards to promote and protect the independence of the judiciary, he remains concerned over
the proliferation of standards. The Special Rapporteur would rather see greater efforts made
towards the implementation of current standards.
VI. JUDICIAL DECISIONS REFLECTING THE INDEPENDENCE
AND IMPARTIALITY OF THE JUDICIARY
36. In his last report (E/CN.4/1999/60, para. 50 (b)) the Special Rapporteur drew the
attention of the Commission to a decision of the Norwegian Supreme Court in the case of
Jens Vikter Plabte v. The State , 1997, in which the Court held that temporary judges did not have
the requisite security of tenure to ensure their independence and impartiality. The Special
Rapporteur is pleased to note that the Court of Appeal of the High Court of Judiciary of Scotland
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delivered a similar decision on 11 November 1999 to the effect that temporary sheriffs
(magistrates) who are appointed by the Secretary of State (but in essence by the Lord Advocate,
who is part of the Executive) and subject to recall by him at any time did not have the requisite
security of tenure and were therefore inconsistent with judicial independence. The Special
Rapporteur finds the following paragraph in the Court's judgement very pertinent vis-à-vis
the importance of the judiciary being independent of the Executive:
“The Solicitor-General emphasized that it is inconceivable that the Lord Advocate would
interfere with the performance ofjudicial functions. I readily accept that; but that is not
the point. Judicial independence can be threatened not only by interference by the
Executive, but also by a judge's being influenced, consciously or unconsciously, by his
hopes and fears as to his possible treatment by the Executive. It is for that reason that a
judge must not be dependent on the Executive, however well the Executive may behave;
‘independence' connotes the absence of dependence. It also has to be borne in mind that
judicial independence exists to protect the integrity of the judiciary and confidence in the
administration of justice, and thus society as a whole, in bad times as well as good. The
adequacy of judicial independence cannot appropriately be tested on the assumption that
the Executive will always behave with appropriate restraint; as the European Court of
Human Rights has emphasized in its interpretation of article 6, it is important that there
be ‘guarantees' against outside pressures. In short, for the judiciary to be dependent on
the Executive flies in the face of the principle of the separation of powers which is central
to the requirement of the judicial independence in article 6.” (See: Stars and
Chalmers v. Procurator Fiscal (PF Linlithgow) appeal No. 2570/99. )
37. The Special Rapporteur has been informed that the Lord Advocate has decided not to
appeal the decision of the Court of Appeal to the Privy Council. He has also been informed of
the ramifications of this decision on the large number ofjudicial appointments of a part-time
nature in the United Kingdom. The Special Rapporteur will continue to monitor developments.
VII. SITUATIONS IN SPECIFIC COUNTRIES OR TERRITORIES
38. This chapter contains brief summaries of the urgent appeals and communications
transmitted to governmental authorities between 11 December 1998 and 30 November 1999, as
well as of replies to the allegations received between 6 January 1999 and 24 December 1999. 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 chapter are based exclusively upon information that has been transmitted to him
directly. Where information was insufficient, the Special Rapporteur was not in a position to act.
He also recognizes that problems concerning the independence and impartiality of the judiciary
are not confined to the countries and territories mentioned in this chapter. In this regard, he
wishes to emphasize that readers of the present report should not interpret the omission of a
particular country or territory from this chapter as indicating that the Special Rapporteur
considers that there are no problems with the judiciary in that country or territory.
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39. In preparing this report, the Special Rapporteur has taken took note of the reports
submitted to the Commission by the country special rapporteurs/representatives and independent
experts.
Argentina
Communication to the Government
40. On 5 July 1999, the Special Rapporteur sent a follow-up to his urgent appeal
dated 26 August 1998 concerning the case of Federal Judge Roberto Marquevich. According
to the information provided to the Special Reporter, Judge Marquevich and his family have been
subjected to death threats (see E/CN.4/1999/60, para. 54).
Communication from the Government
41. On 13 October 1999, the Government replied to the letter of 5 July 1999 regarding the
situation of Judge Marquevich. The Government informed the Special Rapporteur that Federal
Judge Roberto Marquevich had entered a complaint with Criminal and Correctional Federal
Tribunal No. 2 of San Isidro concerning threats he had received. The Tribunal opened file
No. 1055 on his case. Judge Marquevich presented a letter containing the threats, signed by the
Autonomous Anti-Subversive Command General Cesáreo Cardozo, which was sent to a
laboratory for analysis; however, no results have been made available yet. By the time of the
filing of the complaint, the former Director of the San Isidro police had offered to increase the
number of Judge Marquevich's security guards, but Judge Marquevich indicated that it was not
necessary at that time. Currently, 10 police officers are assigned to protection duties. A police
officer has also been assigned to watch Judge Marquevich's house.
Observation
42. The Special Rapporteur thanks the Government for its reply and is pleased to learn of the
measures taken to guarantee the security of Judge Marquevich.
Australia
Communications to the Government
43. On 14 December 1998, the Special Rapporteur sent an urgent appeal to the Government
concerning the case of Mr. Shek Elmi, a Somali national seeking asylum in Australia who was at
risk of being deported to his homeland where it was alleged he was at risk of being subjected to
torture or extrajudicial execution. It was reported that the applicant was transferred on
21 November from the Immigration Detention Centre (IDC) at Marybyrnong in Melbourne to
the Immigration Detention Centre located at Port Hedland in Western Australia. It was further
reported that (a) the applicant had entered Australia at Tullamarine Airport in Melbourne and
had no connection with Western Australia; (b) as of 21 November 1998, the applicant had
been detained for almost 12 months at the Melbourne IDC; (c) all of the applicant's legal
representatives are located in Melbourne and are acting pro bono for the applicant because he is
impecunious; (d) the applicant's impecunious state means that his access to telephone facilities at
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the Port Hedland IDC is restricted because of the significant cost of telephone calls from there to
Melbourne; (e) the remote location of the Port Hedland IDC means that it is prohibitively
expensive for the applicant's legal representatives to visit him when they are acting pro bono.
Communication from the Government
44. On 21 January 1999, the Government sent a letter in reply to the letter concerning the
case of Mr. Shek Elmi. The Government informed the Special Rapporteur that Mr. Shek Elmi
was returned to the Maribyrnong IDC in Melbourne on 8 January. Mr. Elmi had accepted the
offers by the Department of Immigration and Multicultural Affairs to provide him with free
telephone calls for the purpose of contacting his legal representatives, and to ensure that any
documents he wished to send to his legal representatives would be sent immediately and
unopened by the Department.
Observation
45. The Special Rapporteur thanks the Government for its response. There have been no
further complaints on this matter.
Bahrain
Communication to the Government
46. On 6 July 1999 the Special Rapporteur sent ajoint urgent appeal with the Working Group
on Arbitrary Detention and the Special Rapporteur on freedom of opinion and expression in
regard to the situation of Mr. Shaikh Al-Jamri, a 62-year-old religious scholar and poet and
former member of the now defunct National Assembly. According to the information received,
Mr. Al-Jamri, who had been in prison without a trial for nearly 3'/2 years for his opposition
activities, was scheduled to have a court hearing on 6 July 1999.
47. Mr. Al-Jamri was arrested in January 1996, along with seven other prominent
Shi'a Muslim clerics, apparently in connection with a petition he had circulated calling for
constitutional change. On 21 February 1999 he was finally brought before the State Security
Court in Jaw, some 18 miles south of the capital, Manama. It was alleged that the judge was a
relative of the ruling Al-Khalifa family. No international observers were allowed to attend and
the session was held in camera. Mr. Al-Jamri was allowed access to a lawyer only one hour
before the session began. He was reportedly charged with responsibility for all the public
disorder and acts of sabotage in Babrain since December 1994, despite the fact that he had never
advocated violence and had actually been imprisoned for most of the period. Mr. Al-Jamri
pleaded not guilty.
48. On 7 July 1999, the Special Rapporteur learned that Mr. Al-Jamri was sentenced
to 10 years in jail by a three-judge panel in Jaw for spying and inciting unrest against the royal
family and ordered to pay a fine of 5.7 million dinars (USS 1.52 million). Mr. Al-Jamri was
widely expected to be released as part of a wider amnesty of political and common criminals by
Bahrain's ruler, Sheik Hamad ibn Isa al Khalifa. Subsequently, the Special Rapporteur learned
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that on 8 July 1999, Mr. Al-Jamri was released and returned to his village of Bani-Jamra. It has
been reported that he is now in his house with police officers on guard outside, and his village
has been sealed off.
Observations
49. While expressing his appreciation for Mr. Al-Jamri's release, the Special Rapporteur is
nevertheless concerned at the lack of independence of the tribunal which tried and convicted
him.
Belarus
Communication to the Government
50. On 8 January 1999, the Special Rapporteur sent an urgent appeal concerning further
information he had received regarding the case of Ms. Vera Stremkovskaya. According to the
source, Ms. Stremkovskaya had been summoned to further meetings with Belarus officials,
including the Chief Justice of the Supreme Court, the Chairman of the Belarus Collegium of
Advocates and the Director of the Justice Department. It was alleged that each official had
accused her of spreading “false” information about the Government, berated her for seeking
intervention by international human rights groups, and again threatened her with disbarment.
It was further alleged that she had been warned that she must choose between her support for
human rights and the practice of law.
51. Moreover, the Special Rapporteur was informed that the harassment of
Ms. Stremkovskaya was not an isolated case, but rather a reflection of systematic government
interference with the independence and impartiality of judges and lawyers in Belarus. According
to the source, the Collegium of Advocates regulates and controls all aspects of the practice of
law in Belarus. Under Presidential Decree 12, the Collegium, which is controlled by the
Ministry of Justice, alone allocates legal work and remuneration to lawyers.
52. On 5 March 1999, the Special Rapporteur sent an urgent appeal concerning the detention
of Viktar Hanchar, Chairman of the democratically elected Central Electoral Commission of
Belarus. According to the source, Viktar Hanchar was arrested along with 13 others on
1 March 1999 and charged with organizing an unlawful meeting. It was further reported that
Viktar Hanchar was treated roughly by the police when he was detained and that he suffered
injuries, as well as the breaking of his car window. It was alleged that he was denied access to
his lawyers and that he was tried in closed court proceeding. It has been reported that he had not
received a copy of the court's ruling against him. In protest against his treatment, Mr. Hanchar
announced he would go on hunger strike.
53. On 11 October 1999, following the recommendations made by the Chairman of the
fifty-first session of the Sub-Commission on the Promotion and Protection of Human Rights, the
Special Rapporteur sent a letter to the Government requesting an invitation to visit the country in
order to study the situation of the independence of the judiciary and lawyers.
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Communication from the Government
54. On 12 February 1999, the Government sent a note verbale to the Special Rapporteur in
reply to his urgent appeal concerning Ms. Vera Stremkovskaya. The Government informed
the Special Rapporteur that article 13 of the Law on Lawyers provides for lawyer-client
confidentiality and article 3.3 of the Rules of Professional Ethics of Lawyers in Belarus provides
that a lawyer cannot disseminate information that is considered to be confidential under the
lawyer-client privilege. Ms. Stremkovskaya had violated the rules of professional ethics by
disclosing to the mass media information concerning the investigation of a criminal case which
became known to her through her professional work. On 27 October 1998, the Presidium of the
Minsk Bar Association, after examining the case of Ms. Stremkovskaya, addressed a warning
note to her calling on her to refrain from such conduct in the future. The disciplinary
measures against Ms. Stremkovskaya adopted by the Minister of Justice were based on the
recommendations made by the Bar and the “Qualifying Commissions” which are composed
of judges and representatives of the Minister of Justice. The measures were not related to
Ms. Stremkovskaya's presentation in New York at the International League of Human Rights
as was alleged.
55. The Government has yet to respond to the Special Rapporteur's communication
of 5 March 1999 with regard to the case of Viktar Hanchar.
56. On 29 November 1999, the Permanent Mission of Belarus sent a letter to the Special
Rapporteur in response to his letter of 11 October 1999 requesting an invitation to undertake
a visit. The Deputy Permanent Representative informed the Special Rapporteur that in
accordance with the recommendations made by the Chairman of the fifty-first session of the
Sub-Commission, the Government of the Republic of Belarus was ready to invite the Special
Rapporteur to visit Minsk in June 2000.
Belgium
57. At the fifty-fourth session of the Commission on Human Rights the Special Rapporteur
presented an interim report of his fact-finding mission to Belgium in October 1997
(E/CN.4/1998/39/Add.3). The Special Rapporteur noted in that report that the impetus for
seeking that mission had been the massive public demonstrations held in Brussels following
the dismissal of a magistrate ( juge d'instruction ) investigating a case of child prostitution,
kidnapping and murder. The removal of the judge gave rise to a perception that the system by
which magistrates and judges were appointed, promoted and dismissed was motivated by
political and/or partisan interests. As a result of the public outcry concerning this case, the
Government took immediate steps to reform the entire judicial system, including a proposal to
revise article 151 of the Constitution providing for the appointment of justices of the peace and
judges of the Police Tribunal and the Tribunals of First Instance by the King.
58. At the time of the Special Rapporteur's visit the key reforms had not yet been presented
to the Parliament, in particular the revision of article 151 of the Constitution. Following his visit,
the revision was debated in Parliament and after further revisions the amendment was adopted;
the revision to article 151 was published in the Official Gazette on 20 November 1998.
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59. The Special Rapporteur undertook a short follow-up mission to Belgium from 24
to 26 November 1998 but was able to submit only an oral report to the fifty-fifth session of the
Commission. As the Special Rapporteur has already dealt with the facts leading to the massive
demonstrations of 1996 and expressed his findings, he will now confine himself to the judicial
reforms, and in particular to the amendment to article 151 of the Constitution.
60. Article 151 of the Constitution was amended to provide for a Superior Council of the
Magistracy composed of a French-speaking college and a Dutch-speaking college in equal
proportion of the 44 members. Twenty-two would be magistrates elected from within the
judiciary and the other 22 per cent elected by the Senate by a two-thirds majority. They would
be jurists, for example retired magistrates, practising lawyers or legal academics. The Council
makes recommendations for the appointment of magistrates and evaluates their performance
and has the power to impose penalties, including withholding of salary, for unsatisfactory
performance.
61. The Council makes its recommendations to the Minister of Justice, who has the power of
veto. When such power is exercised the Minister has to give his reasons in writing. The
Council, however, can renominate the same candidate for appointment, in which event the
Minister is obliged to accept. The Government justified this power of veto as part of its political
responsibility and accountability for judicial appointments to the Parliament. All appointments
are made by the King on the advice of the Minister of Justice.
62. The Council also makes recommendations to the King concerning the appointment of the
First Presidents of the Courts of Appeal and the Court of Cessation for a non-renewable period
of seven years. Previously, the Presidents were elected by the magistrates of the respective
courts.
63. The Government was then considering a suitable mechanism for disciplining judges. In
the prevailing system discipline was left to the judiciary itself, which was felt to be very
satisfactory.
64. The judiciary had no centralized records or statistics of the number of complaints
received or the actions taken in disciplining magistrates.
Observations
65. The Special Rapporteur views the establishment of the Superior Council of the
Magistracy for the appointment of judges as a step in the right direction.
66. The Government's original proposal to have a larger number of Senate-appointed
members in the Council was of some concern to the Special Rapporteur. He told the
Government that the judiciary itself should have a greater say in the appointment of its
magistrates; the composition of the Council should at least be balanced, with an equal number
appointed by the Senate and by the judiciary. Such a mechanism would be in accordance with
principles 10 and 13 of the United Nations Basic Principles on the Independence of the
Judiciary, though the veto power reserved for the Minister of Justice is inimical to the concept of
an independent mechanism. As the Senate appoints 50 per cent of the members of the Council,
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the Special Rapporteur fails to see the rationale of the argument that the Government needs to
retain a supervisory role because of its responsibility and accountability to Parliament.
67. The Special Rapporteur also refers the Government to the European Charter on the Status
of Judges, and in particular paragraphs 2 and 3 regarding Selection, Recruitment, Initial
Training, Appointment and Irrevocability.
68. At the time of submission of this report the Special Rapporteur had not been informed of
the status of the reform of the disciplinary procedure. During his mission the Special Rapporteur
expressed to the President of the Parliamentary Commission on judicial reform the importance of
ensuring that the composition of the mechanism was left to sifting magistrates, and that it have at
least 50 per cent participation of such magistrates. While Parliament could be the forum that
ultimately decides an impeachment procedure, the initial investigations and inquiries, with
guarantees of due process, and recommendations or sanctions must be left to sifting magistrates.
In this regard, the Special Rapporteur refers to principles 17 to 20 of the Basic Principles on the
Independence of the Judiciary and paragraph 5 of the European Charter on the Statute for
Judges.
69. In conclusion, the Special Rapporteur thanks the Government of Belgium for the
cooperation it extended throughout.
Belize
70. In his last report (E/CN.4/1999/60, paras. 60-61) the Special Rapporteur expressed
concern over certain measures the Government was then considering to rescind the appointment
of the Chief Justice, Manuel Sosa. The Government had not then responded to the
18 October 1998 communication of the Special Rapporteur in that regard. In his oral statement
to the Commission the Special Rapporteur expressed grave concern that the Chief Justice had
indeed been removed by a court order in February 1999.
71. Subsequently, the Government of Belize communicated with the Special Rapporteur
through its High Commissioner in London. The Special Rapporteur, while in London on two
occasions, met with the High Commissioner.
72. The High Commissioner explained that the Government had not received the 18 October
communication but did receive the subsequent reminder. The Government made available to the
Special Rapporteur all relevant correspondence, court judgements and orders on this matter.
From these materials the Special Rapporteur ascertained the following.
73. Mr. Manuel Sosa was appointed Chief Justice of Belize on 24 August 1998 for a period
of three years. He had been ajudge of the Supreme Court. On 16 February 1999 an application
was filed in the Supreme Court to determine whether Justice Sosa's appointment was valid
pursuant to sections 97(1) and 129 (2) of the Constitution. The Attorney-General was the
Respondent to this suit. The Chief Justice was neither a party to the suit nor was notified of it.
The application was heard by the Supreme Court on 18 February 1999, which found that the
appointment was unconstitutional and therefore null and void. The Court ordered that
Justice Sosa be prohibited from continuing to act as Chief Justice.
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74. Section 97(1) of the Constitution of Belize provides: “The Chief Justice shall be
appointed by the Governor-General acting in accordance with the advice of the Prime Minister
given after consultation with the Leader of the Opposition ” (emphasis added). Section 129 (2) of
the Constitution defines “consultation” as “where any person or authority, or any other law to
consult any other person or authority before taking any decision or action, that other person or
authority must be given a genuine opportunity to present his or its views before the decision or
action, as the case may be, is taken ” (emphasis added).
75. The Court found that there had been no genuine consultation with the leader of the
opposition before the appointment. The Special Rapporteur, having examined the various
materials, including the grounds ofjudgement of the Court, cannot find any fault with the
Court's finding. However, the Special Rapporteur expressed concern over the failure to notify
the Chief Justice of the proceedings, thereby depriving him of the opportunity to defend the
appointment, which amounted to denial of due process. Further, the swift manner in which the
suit was filed, heard and the order made, all within two days, and the fact that Justice Sosa was
asked by policemen to remove his personal belongings from his chambers and leave, left little to
be said for justice for judges.
76. Justice Manuel Sosa appealed to the Court of Appeal. However, the matter was
amicably resolved by the Government appointing him to the Court of Appeal in consideration of
Justice Sosa having withdrawn his appeal.
Bolivia
Communication to the Government
77. On 5 July 1999, the Special Rapporteur sent a follow-up letter to the Government
requesting updated information concerning the case of lawyer Waldo Albarrain.
Observation
78. The Special Rapporteur awaits a response from the Government to this communication.
Bosnia and Herzegovina
79. In his report to the General Assembly (A154/396, paras. 23-25), the Special Rapporteur
on the situation of human rights in Bosnia and Herzegovina, the Republic of Croatia and the
Federal Republic of Yugoslavia (Serbia and Montenegro) reported that there was a need for
some type of “quality control” ofjudicial officials in Bosnia and Herzegovina. Unlike police,
judges and prosecutors had never undergone a recertification process after the war. The
appointment procedures for new judicial officials were often motivated by political
considerations. Many qualified professionals had left the country during the war, and substantial
numbers of judicial personnel were either incompetent or inadequately trained, and corruption
and political influence tainted the judicial system. Additionally, there was a lack of judges and
other personnel, partly because of low salaries or non-payment and delays in the payment of
salaries. It was contended that the infrastructure of the judicial system remained inadequate.
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80. The Human Rights Chamber had raised some concerns about the judiciary in a decision
on judicial appointment procedures, access to the courts and discrimination against minorities.
The case, DM v. Federation of BiH , involved a Bosniak applicant who in 1993 had been evicted
from her property in Croat-administered Livno by a Croat police officer. Since her return to
Livno in 1997 she had unsuccessfully tried to obtain a court decision awarding her repossession
of her property. The Chamber found that the judicial appointment process in canton 10, where
only members or supporters of the ruling Croat nationalist party had been appointed, prevented
minorities from filing claims with the courts. The Chamber ordered the Federation to take
immediate steps to reinstate the applicant into her house, and to pay damages. The decision also
addressed fair trial issues. The Chamber confirmed a pattern of discrimination against Bosniaks
and found that the applicant's rights to a fair hearing and an effective remedy before the courts
had been violated.
81. Another case which had raised concerns in regard to the right to fair trial was proceedings
against the so-called Zvornik 7 in the Republika Srpska. On 12 December 1998, the Bijeljina
(Republika Srpska) District Court sentenced three Bosniaks to lengthy prison terms for the
murders of four Serb woodcutters in the beginning of May 1996. Following an appeal, the
Republika Srpska Supreme Court set aside the verdict and ordered a retrial, based on
irregularities in the reasoning of the first instance court. International observers had expressed
disappointment with the Court's reasoning, as evidence of the use of coerced confessions and the
denial of the right to effective assistance of counsel, among other violations of due process, were
not mentioned in the decision.
Observation
82. The Special Rapporteur views the current situation of the judiciary with serious concern
and will liaise with the Special Rapporteur on the situation of human rights in Bosnia and
Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and
Montenegro).
Brazil
Communication to the Government
83. On 22 April 1999, the Special Rapporteur sent a letter concerning the case of human
rights lawyers Roberto Monte and JoAo Marques who have allegedly received death threats. It
was reported that both lawyers were witnesses in the official investigation into the 1996 murder
of human rights lawyer Francisco Gilson Nogueira and that they received death threats following
the killing of another witness, human rights lawyer Antonio Lopes. Mr. Lopes was allegedly
killed by a death squad believed to have links to the State authorities.
84. On 5 July 1999, the Special Rapporteur sent a follow-up letter to the Government
requesting updated information regarding the cases of Mrs. Edna Flor and Mr. Donizetti Flor,
lawyers of the Centro de Defensa dos Direitos Humanos Antonio Porfirio dos Santos, in
Aracatuba, São Pãolo State.
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85. In 30 August 1999, the Special Rapporteur sent an urgent appeal jointly with the Special
Rapporteur on extrajudicial, summary or arbitrary executions concerning the case of alleged
death threats against lawyer Valdecir Nicasio Lima allegedly in connection with a report he
issued on the criminal activities of a federal congressman from Acre who has reportedly been
linked to a death squad operating in the State. It has been reported that at the beginning of
August 1999 Mr. Lima spoke about the investigations in an interview broadcast on a national TV
show. According to the information received, during the interview four armed men went to the
house of one of his friends and said they were going to shoot Valdecir. Furthermore, according
to the source, Mr. Lima had been told by the police that his safety could not be guaranteed in the
State.
86. On 16 November 1999, the Special Rapporteur, together with the Special Rapporteur on
extrajudicial, summary or arbitrary executions, sent an urgent appeal concerning the situation of
lawyer Joilce Gomes Santana, a human rights defender in Natal, state capital of Rio Grande
do Norte. According to information received, since March 1999 Ms. Santana has been
repeatedly threatened. She has received no State protection despite repeated requests from
national and international human rights organizations. Moreover, it was alleged that in
September 1999, a federal police investigator in charge of her file voiced concern for her
security. In September 1999, an employee hired recently by Ms. Santana left the office with
cheques, office equipment and some cash. On 20 October 1999, Ms Santana contacted the
former employee who stated that she had been forced to commit the thefts in order to scare
Ms. Santana. Ms. Santana filed a case on 21 October with the Superintendent of the Rio Grande
do Norte Federal Police regarding her concern that both her personal and professional security
were threatened.
87. It has been reported that Ms. Joilce Gomes Santana handles sensitive files, like those of
Mr. G. Lopes and Mr. A. Lopes who were killed by the Federal Police. She defends prisoners
who have been victims of torture and other ill-treatment and publicly denounces violations of
human rights in Rio Grande do Norte.
Communication from the Government
88. The Permanent Mission acknowledged receipt of the letters of the Special Rapporteur
dated 22 April, 5 July and 30 August 1999.
Observation
89. The Special Rapporteur is awaiting a response from the Government to his
communications.
Cambodia
Report of the Special Representative of the Secretary-General on the situation of
human rights in Cambodia
90. In his report to the General Assembly, the Special Representative of the
Secretary-General on the situation of human rights in Cambodia (A154/353, paras. 63-69)
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welcomed the work being undertaken by the Ministry of Justice on the draft Code of Criminal
Procedure, the draft Statute of Magistrates and the Statute on Court Clerks. He noted, however,
that the Supreme Council of the Magistracy had been convened only once since it was
established in 1994. The salaries ofjudges and prosecutors, together with those of court clerks,
had been slightly increased by government decision. However a further increase in the salaries
of judges and prosecutors was necessary to provide the basic minimum necessary to sustain a
reasonable standard of living.
91. The Special Representative has reported that lack of cooperation from and cases of actual
interference with court activities by various authorities still persists. The Special Representative
is concerned about the confusion in interpretation of the respective jurisdiction of civilian and
military courts. Under Cambodian law, only current military personnel who commit offences
against military discipline or property may be tried by the Military Tribunal. Of equal concern to
the Special Representative is a case of abuse of power by a court official at Sihanoukville
Municipal Court.
Observation
92. The Special Rapporteur will continue to monitor the transition process, in particular with
regard to the independence of the judiciary.
Cameroon
Communication to the Government
93. On 26 October 1999, the Special Rapporteur sent a joint urgent appeal together with the
Chairman-Rapporteur of the Working Group on Arbitrary Detention concerning the trial of three
individuals sentenced to life imprisonment, Mr. Edwin Jumbien, Mr. Hassan Jumban and
Mr. Simon Ngekqwei, and 30 others sentenced to prison terms of up to 20 years by a military
tribunal in Yaoundé. Some 40 other defendants were acquitted. According to the information
received, most of the defendants were held for more than two years in custody before being
brought before the military tribunal, where they were charged on 14 April 1999. The trial began
on 25 May 1999, with further hearings being conducted over the following months before the
verdict was pronounced on 6 October 1999. Defence lawyers have said that appeals against
conviction and sentence will be lodged with the Court of Appeal in Yaoundé.
94. It was reported that the defendants had no access to defence counsel throughout the
period of their pre-trial detention, and that even after the start of the trial they had little
opportunity to communicate with their lawyers. It was also reported that they had no access to
the indictment against them and thus were unable to prepare their defence adequately or to
challenge the charges against them. Some 70 defendants were allegedly represented by
12 lawyers. Prosecution witnesses, namely members of the security forces who had conducted
preliminary investigations, claimed that the defendants had confessed their guilt. Some
defendants, however, testified that they had been tortured and ill-treated during interrogation,
and had confessed under duress.
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95. Those convicted, all civilians from Cameroon's English-speaking minority, were charged
with offences, including murder, attempted murder, grievous bodily harm, attempted destruction,
illegal possession of firearms, arson and robbery, in connection with armed attacks in
North-West Province in March 1997 during which 10 people, including three police officers,
reportedly were killed.
96. The authorities apparently blamed the attacks on the Southern Cameroon's National
Council (SCNC), which supports independence for Cameroon's two English-speaking provinces,
North-West and South-West Provinces, and the affiliated Southern Cameroon's Youth League
(SCYL). Although prosecution witnesses said that written materials were seized, proving that
members of the SCNC and the SCYL had planned and coordinated the attacks in
North-West Province, no such documents or other evidence are reported to have been produced
in court.
97. A law passed in April 1998 in Cameroon is said to have extended the jurisdiction of
military tribunals to offences involving firearms. The military court which tried the above cases
is said to operate under the authority of the Minister of Defence, and the prosecution is said to be
under the authority of the Minister of State in charge of Defence. It is therefore feared that the
defendants were tried by the armed forces, which had also detained and charged them.
Observation
98. The Special Rapporteur is awaiting a reply from the Government.
Chile
Communication to the Government
99. On 21 May 1999, the Special Rapporteur sent a letter to the Government concerning the
case of indigenous lawyer, José Lindoqueo, who was arrested on 6 May 1999. According to the
information received, Mr. Lindoqueo was arrested in connection with his work as legal adviser
to the Mapuches indigenous people, in a dispute with companies in the Arauco and Malleco
regions of Chile. It was reported that after several incidents between Mapuches and the
companies, ajudge ordered 18 people, including Mr. Lindoqueo, detained. It was later reported
to the Special Rapporteur that on 9 May 1999 a petition of habeas corpus was filed on behalf of
Mr. Lindoqueo and he was released on 13 May 1999. However, Mr. Lindoqueo was deprived of
his liberty for a period of seven days.
Observation
100. The Special Rapporteur is awaiting a response from the Government to his
communication.
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China
Communications to the Government
101. On 14 December 1998, the Special Rapporteur sent a communication to the Government
of China concerning allegations he received concerning Mr. Li Bifeng, who was reportedly
sentenced to seven years' imprisonment by the Mianyang People's Court in Sichuan on a charge
of fraud following his reports on the grievance of laid-off workers to foreign organizations and
his criticism of the Communist Party in a letter to it. It is reported that the trial of Li Bifeng
lasted only one day. No witnesses appeared to testify against or on behalf of the defendant and
the only piece of evidence was an IOU slip that supposedly linked Li Bifeng to an embezzlement
scheme. Further, it is alleged that prior to the trial, Li Bifeng's lawyer had been threatened by
the police and warned that the case was complicated and that he should not offer a strong
defence on his client's behalf
102. On 31 May 1999, the Special Rapporteur sent a communication concerning
developments arising from the two decisions of the Court of Final Appeal of the Hong Kong
Special Administrative Region (HKSAR) handed down on 29 January 1999. These decisions,
inter alia , enabled children of Chinese nationality who were born outside Hong Kong, one of
whose parents is a HKSAR permanent resident to qualify as a HKSAR permanent resident; such
qualification was not related to the status of the parents at the time of birth or whether the child
was born within or outside marriage. The Special Rapporteur was further informed that attempts
were made to oust the execution of these decisions, including a request to the National People's
Congress to interpret the Basic Law.
103. On 22 November 1999, the Special Rapporteur sent a communication concerning
information he had received relating to the situation of the practitioners of Falun Gong.
According to the information received, following the Government's ban upon the spiritual
practice on 22 July 1999, the Beijing Bureau of Justice issued on 29 July a notice setting out a
procedure for reporting all requests for consultations and legal representation relating to
Falun Gong. The notice required all legal units, including all attorneys' offices and Bureaux of
Justice in all counties and districts, to immediately report, tally and record all requests for
consultations and legal representation relating to Falun Gong. The notice stipulated that no
contract for legal representation was to be signed without prior approval from the Office of Legal
Administration.
104. Furthermore, it has been alleged that Falun Gong followers have been sentenced without
trial or notification to their relatives, including Li Zhiling, Tian Xiuhua, Sui Dali, Chang Yu,
Zhang Jiezi and Zhou Ximeng, who have been sentenced to between one and three years in a
labour camp. It is further reported that several Falun Gong followers will be facing proceedings.
Communication from the Government
105. On 24 June 1999, the Government sent a letter in reply to the Special Rapporteur's letter
of 14 December 1998 concerning the case of Mr. Li Bifeng. The Government informed the
Special Rapporteur that Li Bifeng had been arrested for economic crimes in April 1998. The
Mianyang People's Court held a public hearing during which the results of the investigation in
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the case of Li Bifeng were presented. Li Bifeng was a sales representative for a factory in
September 1996. In that capacity, he had sold many of the sample products of the company
without reporting the earnings to the company, for an amount of approximately USS 10,000. In
November 1996, Li Bifeng sold products of the factory for a similar amount, again without
reporting his earnings to the factory. During the public hearing, several witnesses from the
factory had provided testimony in this regard. Li Bifeng had admitted his wrongdoing. The
Mianyang People's Court considered that Li Bifeng should be punished severely for his repeated
illegal actions in view of the provisions of the Criminal Code, particularly articles 12, 65
and 266. Consequently, Li Bifeng was sentenced to seven years' imprisonment and a fine
of 2,000 [ local currency on 24 August 1998. During the hearing, Li Bifeng was assisted by a
lawyer. Li Bifeng did not appeal the judicial decision. The Government indicated that the right
to defence is guaranteed by Chinese law. Further, Li Bifeng was not sentenced as a result of his
alleged activities as a dissident, but for his illegal activities. The judiciary had consequently
rendered ajudgement based on the facts, including the testimony provided by the witnesses, and
the law.
106. On 15 September 1999, the Government sent a letter to the Special Rapporteur in reply to
his letter dated 31 May 1999 concerning developments arising from the two decisions of the
Court of Final Appeal of the HKSAR of 29 January 1999. The Government informed the
Special Rapporteur that the independence of the judiciary and the rule of law remain intact in
the HKSAR. The two judgements of the court dealt specifically with article 22 (4) and
article 24(3) of the Basic Law relating to the entry into Hong Kong of people from other parts of
China and the permanent resident status of Chinese nationals born outside the HKSAR,
respectively. The judgements conferred the right of abode, or permanent resident status, on
persons who previously did not have that right in Hong Kong, i.e. persons born outside
Hong Kong whose parents were not HKSAR permanent residents at the time of the person's
birth but either or both of whom subsequently became HKSAR residents, and persons born out
of wedlock and outside Hong Kong whose father was a HKSAR permanent resident while the
mother was not. The court also held that mainland residents who had the right of abode in
Hong Kong were not bound by the existing requirement to obtain approval from the central
government authorities to settle in Hong Kong.
107. In the view of the HKSAR government, the court's interpretation of articles 22 (4)
and 24 (2) (3) of the Basic Law might not accord with the true legislative intent of these
provisions. The HKSAR government holds the view that the true legislative intent is reflected in
the documents relating to these Basic Law provisions and the drafting history of the immigration
laws.
108. The HKSAR government estimated that by reason of the court's interpretation, the right
of abode was extended immediately to some 690,000 mainland residents and in due course (after
a qualifying mainland parent had completed seven years' ordinary residence in Hong Kong) to
their estimated 900,000 mainland-born children. The situation would be aggravated by the
court's decision that these people were not subject to the requirement that persons from the
mainland obtain approval for settlement in Hong Kong in accordance with a quota system. It
would therefore be extremely difficult to ensure their orderly entry. The socio-economic
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consequences would be unmanageable, bearing in mind that the new settlers, if admitted, would
amount to a population increase of some 24 per cent on top of the present 6.8 million living in a
city with a land mass of only 1,100 square kilometres.
109. The HKSAR government has carefully considered all options which might provide a
remedy, including seeking an amendment of the relevant provisions of the Basic Law and
seeking an interpretation of these provisions. The powers to amend and to interpret the Basic
Law are set out in articles 159 and 158 of the Basic Law, respectively. Under article 159 (1), the
power of amendment of the Basic Law is vested in the National People's Congress (NPC).
Under article 158 (1), the power of interpretation of the Basic Law is vested in the NPC Standing
Committee (NPCSC). Both amendment and interpretation are lawful and constitutional under
the Basic Law.
110. The HKSAR government's decision to seek an NPCSC interpretation was based on the
principle that there is a fundamental difference between an interpretation and an amendment. An
interpretation is based on the true legislative intent of a provision; an amendment changes the
legislative intent. In seeking an interpretation from the NPCSC, the HKSAR government only
sought to clarify the true legislative intent of the relevant provisions of the Basic Law, and not to
change the legislative intent. In this regard, it is important to note that the HKSAR government
has not sought an interpretation in respect of the eligibility for right of abode of children born out
of wedlock. This is because the existing legislation of both the mainland and the HKSAR have
already given children born within and outside marriage equal status.
111. The interpretation made by the NPCSC on 26 June 1999 stated expressly that it does not
affect the right of abode in the HKSAR which has been acquired under the judgement of
29 January 1999 of the Court of Final Appeal on the relevant cases. Accordingly, the status of
about 3,700 mainland-born persons would be determined in accordance with the court's
judgement, not the NPCSC's interpretation.
Observations
112. The Special Rapporteur thanks the Government for its responses to his communications
of 14 December 1998 and 31 May 1999. He awaits the Government's reply to his
communication of 22 November 1999.
113. With regard to the two controversial judgements of the Court of Final Appeal of
January 1999, the Special Rapporteur has followed developments, particularly since his
communications of3l May 1999. On 26 February 1999, on a motion of the Director of
Immigration, the Court took the unprecedented step of clarifying its judgements
of 29 January 1999. The Court said that:
(a) Its judicial power is derived from the Basic Law;
(b) Article 158 (1) vests the power of interpretation of the Basic Law in the Standing
Committee of the National People's Congress (NPCSC);
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(c) The courts' jurisdiction to interpret the Basic Law in adjudicating cases is derived
by authorization from the NPCSC;
(d) The 29 January judgements did not question the authority of the NPCSC to
make an interpretation under article 158 of the Basic Law;
(e) The courts cannot question that authority.
114. On 26 June 1999, the Standing Committee of the Ninth National People's Congress
interpreted the relevant articles of the Basic Law which had the effect of overturning substantial
parts of the court's judgements of 29 January. However, it did not affect the immediate rights
already acquired by litigant parties by virtue of the 29 January judgements.
115. Subsequently, on 25, 26 and 27 October 1999, the court heard an appeal, inter alia
challenging the interpretation by the NPCSC. The court delivered its judgement
on 3 December 1999, confirming that the NPCSC had the power to make the interpretation
under article 158 (1), and that its interpretation was valid and binding and that the courts in the
HKSAR were obliged to follow it.
116. The peculiar arrangement for the interpretation of certain provisions of the Basic Law,
which the Chief Justice referred to as “excluded laws”, being vested in the legislature as opposed
to the courts was most aptly described in the judgement of Sir Anthony Mason, a former Chief
Justice of Australia, who sat as a non-permanent member of the court. He said, inter alia :
“The Basic Law is the Constitution of the Hong Kong Special Administrative Region of
the Peoples' Republic of China established under the principle of ‘one country, two
systems'. It is a national law of the PRC, being an enactment of the National People's
Congress made in the exercise of legislative powers conferred upon the NPC by the PRC
Constitution.
“Article 8 of the Basic Law preserves the common law in Hong Kong, Article 80 vests
the judicial power in the courts of the Region and Article 81 maintains the judicial system
previously practised in Hong Kong, except for changes consequent upon the
establishment of the Court of the Final Appeal of the HKSAR. Article 81 is followed by
Article 82 which vests the power of final adjudication in the Region in the Court of Final
Appeal. By these and other provisions, the Basic Law maintains the common law and a
common law judicial system in the Region. This conjunction of a common law system
under national law within the larger framework of Chinese constitutional law is a
fundamental aspect of the principle of ‘one country, two systems' which is recited in the
Preamble to the Basic Law.
“As is the case with constitutional divisions of power, a link between the courts of the
Region and the institutions of the People's Republic of China is required. In a
nation-wide common law system the link would normally be between the regional courts
and the national constitutional court or the national Supreme Court. Here, however, there
are not only two different systems, but also two different legal systems. In the context of
‘one country, two systems', Article 158 of the Basic Law provided a very different link.
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That is because the article, in conformity with Article 67 (4) of the PRC Constitution,
vests the general power of interpretation of the Basic Law, not on the People's Supreme
Court or the national courts, but in the NPC Standing Committee.”
Sir Anthony went on to say, “this conclusion may seem strange to a common lawyer, but in my
view it follows inevitably from a consideration of the text and structure of Article 158, viewed in
the light of the context of the Basic Law and its character as the Constitution for the HKSAR
embodied in a national law enacted by the PRC”.
117. There is no doubt that the judicial power of the courts in the HKSAR is restricted with
regard to the interpretation of the Basic Law. Judicial power, however, cannot be unlimited.
Courts too are subject to the law so long as the law is rational and constitutional. The Court of
Final Appeal has acknowledged this restriction on its judicial power. Though it may appear that
the interpretation, in this case, by the Standing Committee had the effect of revising to some
extent the 29 January 1999 judgements of the court, in violation of principle 4 of the Basic
Principles of the Independence of the Judiciary, yet the peculiarity and the constitutional
arrangements of the “one country, two systems” principle should be given due effect, as was
done by the Court of Final Appeal, and the interpretation should not be viewed as an
encroachment on the independence of that court. In any event, the interpretation of the Standing
Committee did not overturn the rights of the litigating parties acquired by virtue of the two
judgements.
Colombia
Communication to the Government
118. On 18 May 1999, the Special Rapporteur sent an urgent appeal to the Government
regarding information he had received concerning proposed legislation providing for the
continuance of the use of “faceless” judges and prosecutors and secret witnesses in terrorism,
torture, drug trafficking and illicit enrichment-related criminal trials. The proposed Statutory
Laws Nos. 144 and 145, which also provide for preventive detention without trial, describe the
“faceless” judicial officers as district judges and district prosecutors, presumably to give the
system a semblance of judicial propriety.
119. This proposed legislation appears to be inconsistent with the Government's assurances
that it would abolish these exceptional procedures by 30 June 1999.
120. The Special Rapporteur was further informed that on 2 May 1999 the Office of the High
Commissioner for Human Right in Colombia issued a statement that the proposed legislation
was not fully in accordance with the international human rights treaties. He was also informed
that the Minister of Justice, Mr. Parmenio Cuellar Bastides, resigned on S May 1999 expressing
in his letter of resignation that while it was legitimate for the State to take appropriate security
measures to enable magistrates to carry out their duties without fear or terror, such measures
should not lead to or seem to lead to curtailment of procedural guarantees and universally
accepted principles of due process.
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121. On 22 July 1999, the Special Rapporteur sent ajoint urgent appeal with the Special
Rapporteur on extrajudicial, summary or arbitrary executions concerning the case of lawyer José
Humberto Tones DIaz, a member of the Committee for Solidarity with Political Prisoners.
According to the communication received, Mr. Tones DIaz had received death threats over the
phone at his office and at his home. It was reported that on three occasions, unknown people had
tried to enter his home by using the names of public companies, including the electricity
company. Subsequently, Mr. Tones DIaz called these companies to learn that none of the
companies had sent workers to his home. It was also reported that during a meeting held at the
headquarters of the Second Brigade of the National Army in Bananquilla, Mr. Tones DIaz's
name was mentioned as being the leader of one of the sections of the National Liberation Army.
Some members of the Parliament attended this meeting. It was also reported that
on 10 May 1999, as Mr. Tones DIaz was leaving Simon Bolivar University, where he was a
professor, armed men were sunounding the area.
122. It has been reported that the Ministry of the Interior had given assurances that the security
of Mr. Tones Diaz would be protected. However, for budgetary reasons, only two vehicles had
been assigned to the task; it was alleged that this was insufficient.
Communications from the Government
123. On 23 August 1999, the Permanent Mission sent to the Special Rapporteur a note verbale
in reply to his communication dated 19 April 1998 regarding the murder of lawyer Eduardo
Umafia Mendoza. (see E/CN.4/1999/60, para. 76). The Government informed the Special
Rapporteur that the Attorney-General's Office had reported that the investigation into the murder
was at the pre-trial examination stage and involved Teresa de Jesus Leal Medina, Fabio
Mosquera Uribe, alias “El Mico”, Regner Antonio Mosquera Velasco, Victor Hugo Mejia
Campusano and José Bernardo Hernandez Ossa. In addition, wanants had been issued for the
anest of two other individuals suspected of involvement in the assassination.
124. On 2 September 1999, the Permanent Mission sent a note verbale to the Special
Rapporteur in reply to his communication dated 17 July 1997 regarding the allegations of death
threats against lawyer José Estanislao Amaya Páez (see E/CN. 4/1998/39, para. 49). The
Government informed the Special Rapporteur that the Prosecutor's Office had reported that a
preliminary investigation was under way into the murder of Mr. Amaya Paéz on
16 December 1997; it had not so far been possible to establish the identity of or locate the
perpetrators or accomplices in the crime.
125. On 30 July, 3, 15 and 22 September and 8 October, the Government sent letters to the
Special Rapporteur providing information concerning the Government's advance in the field of
human rights, particularly the document “Policy on the Promotion, Guarantee and Respect for
Human Rights and the Application of International Humanitarian Law”. On 5 August 1999, the
Human Rights Ombudsman sent to the Special Rapporteur a copy of his sixth annual report for
the year 1998.
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Observations
126. The Special Rapporteur thanks the Government for its replies to his previous
communications. The Special Rapporteur, however, is awaiting replies to his communications
submitted during the course of the year.
Croatia
Communication to the Government
127. The Special Rapporteur took note of the report of the Special Rapporteur on the situation
of human rights in Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of
Yugoslavia (Serbia and Montenegro) to the General Assembly, in which he considered that the
continued judicial vacancies were a danger to the rule of law. Nearly all the branches of the
judiciary had vacant positions: for example, as of October 1998, the Supreme Court and the
Administrative Court, two branches of the judiciary that are crucial to the protection of human
rights, had vacancy rates of over 30 and 35 per cent, respectively. The Korenica and Udbina
civil courts were without judges from May 1998 until April 1999 while the Donji Lapac civil
court had been without judges since 1995. Commendably, the Government has instituted an
interim arrangement for existing judges to visit districts where there were shortages to relieve
those courts of congestion, though this would not solve the problem of the large number of
pending cases. All other courts in those communities were operational, a situation that enabled
the Government to deliver justice in cases of crimes and misdemeanours while leaving citizens
unable to resolve their civil disputes, such as those involving housing, effectively hindering the
property-related aspects of the Return Programme.
Observations
128. The Special Rapporteur will continue to liaise with the Special Rapporteur on the
situation of human rights in Bosnia and Herzegovina, the Republic of Croatia and the Federal
Republic of Yugoslavia (Serbia and Montenegro) concerning the independence of the judiciary
and the legal profession in Croatia.
Cuba
Communication from the Government
129. On 4 June 1999, the Permanent Mission of Cuba sent a reply to the Special Rapporteur to
his letter dated 17 May 1999 in which he reiterated his request to undertake an in situ visit. The
Permanent Representative informed the Special Rapporteur that the Government of Cuba
recognized the important role that the conventional and extraconventional mechanisms of the
United Nations play in their objective of promoting and protecting all human rights in all parts of
the world. However, some urgent measures needed to be adopted in order to guarantee the
objectivity, impartiality and non-selectivity of these mechanisms, and to rationalize and simplify
them.
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130. Based on these political considerations, the Government had kept a close and permanent
cooperation with the thematic mechanisms of the Commission on Human Rights and the organs
of the treaty bodies. This cooperation had gone beyond extending invitations to undertake in situ
visits and included the systematic exchange of information and prompt replies to requests for
information, as well as active participation in the debates and the negotiation process at the
sessions of the Commission. Extending invitations to the thematic mechanisms was one form of
cooperation. The Cuban authorities had always considered that such visits could take place as
long as they were opportune and would provide a substantive input to their work or, in other
words, when they were in the interest of and convenient for the country. But most importantly,
the Cuban authorities had always said that these types of actions would be more viable when the
politically motivated aggression and unfair, selective and discriminatory treatment by the
United States of Cuba at the sessions of the Commission on Human Rights for the past
seven years ended.
131. Based on these premises, the Government of Cuba had extended invitations to the Special
Rapporteurs on violence against women and on the use of mercenaries, whose visits would take
place in June and September 1999. However, the fifty-fifth session of the Commission on
Human Rights had been characterized by a high level of confrontation and politicalization, and
did not facilitate this particular form of cooperation as the Government of Cuba had intended.
The Permanent Representative added that the results of the current process of reform of the
mechanisms and methods of work of the Commission remained unknown and uncertain. The
Government reiterated its intention to continue its close cooperation with the mandate of the
Special Rapporteur.
Observations
132. While the Special Rapporteur appreciates the Government's comments, particularly with
regard to the need for some guarantee of objectivity, impartiality and non-selectivity in the
special procedures mechanisms, he notes that the Government should not place itself in a
position where it can be said that it too is practising a form of selectivity in its selection of
special rapporteurs to undertake in situ visits to its country. The Special Rapporteur first sought
a mission to Cuba on 13 June 1996.
Democratic Republic of the Congo
Communications to the Government
133. On 22 June 1999, the Special Rapporteur sent a letter to the Government concerning
information provided by the Special Rapporteur on the situation of human rights in the
Democratic Republic of the Congo, concerning the situation of the judiciary in the country.
According to the information provided, there were two areas of main concern in regard to the
judiciary: the dismissal of 315 magistrates by executive decree last year and the wide
jurisdiction of military courts.
134. It was reported that on 6 November 1998, President Kabila issued Presidential Decree
No. 144 by which 315 magistrates were dismissed. It was alleged that this presidential decree is
in violation of Constitutional Decree No. 003 that provides for the Superior Council of
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Magistrates as the organ responsible for disciplining or removing magistrates after due process.
It was reported that the 315 magistrates were removed without according them the fundamental
right to due process.
135. It was further indicated that on 23 August 1997, Decree-Law No. 19 was issued
establishing a military court. According to article 4 of Decree-Law No. 19, this military court
had competence to try civilians, under military rules of procedure, and the decisions of the court
could not be appealed against or contested. It was indicated that those convicted faced death
sentences and that several executions had been carried out.
Observations
136. The Special Rapporteur has not received a response from the Government.
Djibouti
Communication to the Government
137. On 19 January 1999, the Special Rapporteur sent a communication to the Government
concerning human rights lawyer Aref Mohamed Aref. According to the information received, a
travel ban was imposed on Mr. Aref, allegedly by the Chef de Cabinet of the President. It is
reported that Mr. Aref first learned about this ban on 5 December 1998 at Djibouti airport as he
was preparing to travel to the Paris Forum for Human Rights Defenders being held in
commemoration of the fiftieth anniversary of the Universal Declaration of Human Rights.
Measures to challenge this ban have reportedly failed. It was further reported that Mr. Aref has
been suspended from practising law for the past two years as a consequence of an ambiguous
case. The source expressed concern that Mr. Aref was being punished for his professional
functions, which included the promotion and protection of human rights.
Communication from the Government
138. On 16 February 1999, the Government sent a letter to the Special Rapporteur in reply to
his letter dated 19 January 1999, concerning the case of human rights lawyer, Aref Mohamed
Aref The Government informed the Special Rapporteur that it had embarked on a wide-ranging
overhaul and readjustment of the judicial system to ensure that it meets the requirements of a
State governed by the rule of law. The Government informed the Special Rapporteur that the
charges Mr. Aref had levelled against the State of Djibouti were absolutely groundless and the
serious offences for which he was to stand trial were not related to his role as a civil rights
campaigner. Mr. Aref's case involved an offence under ordinary law committed in the
performance of his duties as a lawyer; the plaintiffs were British mutual insurance companies,
United States and Cypriot shipowners and a Danish international trading company whose
interests Mr. Aref was supposed to be representing in a commercial case before the Djiboutian
courts. The Djiboutian State was completely unaware of Mr. Aref's handling of the case prior to
the filing of a complaint by the plaintiffs. A fax dated 30 March 1995, which was sent to the
then Chairman of the Djibouti Bar, by Mr. Jackson Parton, on behalf of the companies referred
to above, contained a complaint against Mr. Aref for not preventing a cargo of wheat flour from
Houston, Texas, aboard the vessel Amadeus , from being auctioned off for less than the reserve
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price, while simultaneously representing the only bidder which met the preconditions for
participating in the sale, namely the 50 01K company. Mr. Aref was entrusted with protecting
the interests of the three members of P&I Club UK (namely the insurers, the charterers of the
vessel, the shipowners and the consignors of the cargo). Mr. Aref could have prevented the
auction from going ahead because he was the only lawyer involved and all bids had to be made
through a lawyer. The plaintiffs believe that Mr. Aref wilfully betrayed their interests in order to
collect fees from a party whose interests were diametrically opposed to theirs. The Chairman of
the Djibouti Bar referred the complaint to the Principal State Counsel, who is responsible for
disciplining lawyers. The Principal State Counsel decided to prosecute Mr. Aref for fraud and
malpractice.
139. An investigating judge indicted Mr. Aref on the count of fraud on 23 January 1997, but
the fact that he was a lawyer saved him from being remanded in custody.
140. The Djibouti Bar decided to suspend Mr. Aref on 3 February 1997. Following a series of
delaying motions on the part of Mr. Aref and his lawyers designed to stay proceedings, a trial
date of 15 February 1999 was set. Djibouti judicial authorities decided to confiscate his
passport. Furthermore, the Government informed the Special Rapporteur that Mr. Aref had been
implicated with dozens of other people in an abortive coup d'etat in Djibouti in January 1991.
He was acquitted in July 1992.
141. It was learned that Mr. Aref was sentenced to six months in prison on criminal charges in
February 1999. He was released on 11 May 1999 under an amnesty proclaimed by the new
President, Ismail Omar Guellen, who had taken office three days earlier. Mr. Aref was one of 47
convicted prisoners released under the amnesty. Mr. Aref has been suspended from practising
law for a period of five years following a decision of the Court of Appeal on S May 1999 on his
appeal against his six-month prison term.
Observations
142. The Special Rapporteur thanks the Government for the detailed response. If it was
indeed a fact that Mr. Aref was convicted, sentenced and later suspended/banned from practising
law because of his professional misconduct, as asserted by the Government, then the action taken
against him cannot be faulted. However, the Special Rapporteur continues to receive
information indicating otherwise. It was learned that Mr. Aref's trial for attempted fraud was
flawed. It is also alleged that the five years' suspension from legal practice ordered by the court
was against the law. It is further alleged this course of action by the Government is a reprisal
and to stifle Mr. Aref's practice as he has been known for defending unpopular causes before the
courts. The Special Rapporteur fears that the Government may be in breach of principle 16 of
the Basic Principles on the Role of Lawyers.
Egypt
Communication to the Government
143. On 28 May 1999, the Special Rapporteur sent a follow-up letter concerning the
dissolution of the Egyptian Bar Association (EBA) and of the country's regional bar
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associations, and the subsequent appointment of sequestrators to administer the EBA and the
regional associations. The Special Rapporteur drew the government's attention to recent
information he had received according to which the office of the EBA had been closed by armed
members of the security forces, and that the authorities continued to refuse to hold elections for
the leadership of the Egyptian Bar. Owing to the seriousness of these allegations, the Special
Rapporteur sought an invitation to carry out an in situ mission to study the situation of the
independence ofjudges and lawyers in the country.
Communication from the Government
144. On 23 July 1999, the Government sent to the Special Rapporteur a letter in reply to the
Special Rapporteur's letter dated 28 May 1999. The Government informed the Special
Rapporteur that it was endeavouring to strengthen the role of all components of civil society, in
particular professional associations, the independent jurisdiction of which in regard to all affairs
of their members and their internal administration is protected by law. The current crisis in the
Bar Association, one of the oldest professional associations, was attributable to internal disputes
over financial misappropriations. Lawyers who were members of the Association had initiated a
legal suit seeking to remove the sequestration placed on the Association with a view to ending
the transgressions of various members of its administrative council. On that basis, legal
proceedings in connection with the imposition of the sequestration had been instituted, together
with the ensuring measures and effects, and legal judgements had been delivered in that regard.
The present events thus related to the execution of these judgements, in which connection no
executive authority may intervene.
145. A Cairo appeal court pronounced a final judgement on 13 July 1999 to end the
sequestration and ruled that a judicial committee should organize elections for the suspended
administrative council. Lawyers who support the sequestration submitted grounds for contesting
the judgement in a process which stays execution until a decision concerning those grounds is
made.
146. Asserting the full compliance of the Government with court judgements, the Minister of
Justice reaffirmed in a press statement that the Egyptian Government was not responsible for the
crisis in the Bar Association and that it had nothing to do with the legal judgement to end the
sequestration or with seeking a stay of its execution.
Observation
147. The Special Rapporteur thanks the Government of Egypt for its reply; however, he awaits
a reply from the Government to his request for an invitation to undertake an in situ visit.
Equatorial Guinea
Observations
148. In his last report the Special Rapporteur referred to information he had received
concerning lawyer José Olo Obono, who was detained at the police station in Malabo
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on 21 July 1998 (see E/CN.4/1999/60, para. 88). The Special Rapporteur has subsequently been
informed that Mr. Olo Obono was released from Black Beach prison in Malabo
on 15 January 1999, at the end of his prison term.
149. Concern has been expressed that Mr. Olo Obono was compelled to serve a sentence for
charges that were allegedly meritless, particularly since the prosecutors had dropped the charges
prior to sentencing. It is regrettable that the Government to date had not responded to the
Special Rapporteur's communication of 26 April 1998.
Gambia
Communication to the Government
150. On 16 November 1999, the Special Rapporteur sent a communication concerning the
situation of a former Judge of the High Court of the Gambia, Mr. RHO. Robbin-Coker.
According to the information received, Justice Robbin-Coker had a two-year contract beginning
on 31 January 1996, which upon expiry was renewed for one year. At the end of the
year, Justice Robbin-Coker was given a further two-year contract. It was reported that
on 6 September 1999, while on vacation, Justice Robbin-Coker learned that the Government had
decided to terminate his contract in an article published by a local newspaper. It was alleged that
the official communication concerning the termination of the contract of Justice Robbin-Coker
was transmitted to him on 14 September 1999 without giving the reasons for such a decision as
provided by article 141 of the Constitution of the Gambia. It has been pointed out that no query
had been raised by the Government about either the work of Justice Robbin-Coker, his conduct
or his health, as provided in the above-mentioned constitutional provision.
151. Prior to the termination of the contract of Justice Robbin-Coker, it was alleged that the
Government had questioned some of his judicial decisions, particularly in the case of
two employees of the Gambia Telecommunications Company Limited (GAMTEL) whose
contracts were terminated allegedly in circumstances similar to those of Justice Robbin-Coker's
termination. It was alleged that the Government had claimed that the decision of
Justice Robbin-Coker was embarrassing to the Government.
Observation
152. The Special Rapporteur views with concern such an abrupt termination of ajudicial
appointment administratively and awaits a response from the Government to his communication.
Guatemala
Communication to the Government
153. On 13 October 1999, the Special Rapporteur sent a letter to the Government concerning
information he received regarding prosecutor Celvin Galindo. According to the information
received, Mr. Galindo, who was investigating the murder of Archbishop Gerardi, went into exile.
The Special Rapporteur requested information from the Government as to the reasons for
Mr. Galindo's decision.
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Communication from the Government
154. On 25 October 1999, the Special Rapporteur received a reply to his letter
of 13 October 1999. The Presidential Commission for Coordinating Executive Policy in the field
of Human Rights (COPREDEH) informed the Special Rapporteur that on 3 September 1999,
during a meeting with Mr. Galindo, the President and Executive Director of COPREDEH offered
to mediate with the authorities to provide Mr. Galindo with additional police protection.
On 24 September 1999, the Inter-American Commission on Human Rights requested the
Government to adopt all necessary measures to ensure the life and integrity of
prosecutor Galindo and prosecutor's deputy Marcos AnIbal Sanchez.
155. On 29 September 1999, COPREDEH transmitted the request from the Inter-American
Commission on Human Rights to the Minister of Government. COPREDEH asked the
Attorney-General's Office if Mr. Galindo and Mr. Sanchez were provided with security
measures by the public prosecutor's office as well. On 1 October 1999, the Attorney-General
sent a letter to COPREDEH indicating that the office of the public prosecutor had indeed taken
the appropriate measures. The Director of the National Civil Police also informed COPREDEH
that a police car patrol had been assigned to the residence of Mr. Galindo and for Mr. Sanchez.
On 7 October 1999, the local newspaper, Siglo XXI , published Mr. Galindo's letter of
resignation from the prosecutor's office alleging telephonic surveillance, persecution, threats and
intimidation as the main reasons for his decision. Mr. Galindo subsequently left the country with
his family.
Observations
156. The Special Rapporteur was not surprised at this development. Allegations of threats,
intimidation and harassment ofjudges and prosecutors have been rampant in Guatemala, as set
out in his mission report.
Haiti
157. On 31 July 1999, the President of the Economic and Social Council addressed a letter to
the President of the General Assembly (A154/274) in which he referred to Economic and Social
Council resolution 1999/4 of 7 May 1999 in which the Council decided to create an Ad Hoc
Advisory Group on Haiti with the mandate of submitting to the Council at its substantive session
of 1999 recommendations on how to ensure that international community assistance to the
efforts to support the Government of Haiti in achieving sustainable development was adequate,
coherent, well coordinated and effective.
158. In resolution 1999/11 of 27 July 1999 the Council confirmed the essence of all of the
Advisory Group's recommendations, including recommendations for consideration by the
General Assembly, as well as requests addressed to the Secretary-General and the different
components of the United Nations system. In that resolution, the Council, inter alia , called upon
the Secretary-General to take the necessary steps to develop a long-term development
programme of support for Haiti to address the issues of capacity-building of governmental
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institutions, especially in areas such as governance, the promotion of human rights, the
administration of justice, the electoral system, law enforcement, police training, and other areas
of social and economic development.
Observation
159. The Special Rapporteur will liaise with the independent expert on Haiti concerning the
reform proposals.
Tndonesia
Communication to the Government
160. On 1 March 1999, the Special Rapporteur sent an urgent appeal jointly with the Special
Rapporteur on torture concerning 11 men reportedly arrested on 22 February in the village of
Vatuvo, Maubara subdistrict, Liquisa district, by a team of soldiers of the Tndonesian Armed
Forces and an armed paramilitary group called Besi Merah Putih. According to the information
received, they were part of a group of 18 men arrested and taken to police headquarters in the
town of Liquisa. All 18 were allegedly denied food for the first days of their detention and 7
were reportedly released for medical treatment after human rights lawyers intervened. They
reported that they had been beaten and ill-treated. The 11 still in custody are reportedly denied
access to independent legal counsel, although they are now allowed visits from representatives of
the Catholic Church. In view of the fact that the 7 men who had been released were believed to
have been subjected to ill-treatment while in custody, fears were expressed that the 11 men
remaining in custody may be at risk of torture and other forms of ill-treatment.
161. On 20 July 1999, 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 the situation of 20 people who were reportedly arrested by the Indonesian
National Army (TNT) on 9 July 1999 in Teunom subdistrict.
162. According to the information received, the 20 men were arrested on the basis of claims
by the TNT that the armed opposition group Gerakan Aceh Merdeka had used the area around the
plantation where the arrests took place. All 20 were believed to be detained at the District
Military Command in West Aceh. Tt was further reported that they had been denied access to
lawyers and to a local government official who attempted to visit them.
Observation
163. The Special Rapporteur awaits a reply from the Government to these communications.
Tran (Islamic Republic of )
164. The Special Rapporteur has taken note of the report of the Special Representative on the
situation of human rights in the Islamic Republic of Tran (E/CN.4/2000/35). In his report, the
Special Representative noted that the issue of fair trial was coming more and more to the fore in
Iran as it sought to establish the rule of law and, in particular, as commitments were made by
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government officials that persons charged with offences would be properly treated. However, it
is clear from the incidents reported that one or more of the rights provided by international
standards concerning due process are often not available to defendants in Iranian courts. For
example, the Special Representative referred to the case of 13 Jews being detained in Shiraz on
suspicion of espionage who are reportedly being denied access to a lawyer of their choice; given
the time elapsed since their arrest, they have certainly not been brought to “trial without delay”.
165. The Special Representative noted that a new chief of the judiciary, Ayatollah Mahmoud
Hashami Shahroudi, had been appointed in August.
Observation
166. The Special Rapporteur will continue to liaise with the Special Representative to obtain
more information on these developments.
Israel
Communications to the Government
167. On 13 January 1999, 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 Taysar Muhmed Aouwda. According to the information received,
Mr. Muhmed was reportedly arrested on 30 December 1998 at the General Security Service
Interrogation Unit of the Jerusalem Russian Compound. It was reported that he suffered from a
chronic illness and has been denied medication he had brought with him to the Russian
Compound. On 4 January 1999, an ad hoc military proceeding was reportedly held and extended
his detention for 15 days. It was also said to have ordered that he be examined by a prison
physician. Although he was reportedly not interrogated during the first five days of his
detention, he was denied access to his attorney. A petition to the High Court of Justice
demanding that all forms of illegal interrogation immediately cease and that the Order
Prohibiting Meeting with Counsel be immediately lifted was filed and then withdrawn
on 6 January, when the State Attorney reportedly indicated that no physical pressure was being
placed upon Taysar Muhmed Aouwda.
168. On 2 February 1999, 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 Ali Mustafa Tawbeh. According to the information received, he was
reportedly arrested in Arnoun by Israeli armed forces on 6 October 1997 and taken to the Khiam
Detention Centre in south Lebanon. Israeli armed forces in south Lebanon have reportedly
claimed that he was arrested for “planning a military operation against them”. Since then, he has
allegedly been denied legal counsel and it is believed that no charges have been brought against
him.
Observation
169. The Special Rapporteur awaits a reply from the Government to his communication.
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Japan
Communications to the Government
170. On 14 December 1998, the Special Rapporteur sent a communication concerning
disciplinary action against Judge Teranishi. According to the information provided,
Judge Teranishi was scheduled to participate as a panellist at a citizens' meeting to protest
against a bill that would allow wire-tapping. Prior to this meeting, the Chief Justice of the
Sendai District Court, where Judge Teranishi has been assigned, warned him against attending
the meeting, reportedly on the basis of information given to him by the General Secretariat of the
Supreme Court. Judge Teranishi did attend the meeting, but did not speak as a panellist. In
May 1998, the Sendai District Court petitioned the Sendai High Court for disciplinary action
against Judge Teranishi for unlawful “active engagement in a political movement”.
171. It was further reported that the High Court rendered a decision in July 1998 to discipline
Judge Teranishi by admonition in a proceeding closed to the press and the public, and that
Judge Teranishi was not given adequate notice or opportunity to speak for himself, as is
reportedly required by law. The source reported that Judge Teranishi had appealed against the
High Court's decision in August 1998, and the case was pending before the Supreme Court.
172. On 11 May 1999, the Special Rapporteur sent a letter to the Government concerning the
case of lawyer Yoshihiro Yasuda. According to the information received, Mr. Yasuda was
detained in police custody for one month after his arrest on 6 December 1998 on suspicion of
financial irregularities and he continued to be held in solitary confinement in a
suicide-prevention cell in Tokyo Detention Centre, despite repeated appeals for his release on
bail. It was reported that before his arrest Mr. Yasuda had acted as the main defence lawyer for
the leader of the religious group that had carried out the fatal Tokyo subway gas attack in 1995.
It was further reported that his work as a defence lawyer in this case has brought him
considerable media criticism. Moreover, it was reported that the Tokyo District Court had ruled
Mr. Yasuda's prolonged detention legal, and it appeared to have accepted the prosecutor's
argument that he should be refused bail.
173. It was alleged that the prolonged detention of Mr. Yasuda was due to his role as a
defence lawyer in the above-mentioned case and his ongoing detention would effectively deprive
his client of his legal services and therefore jeopardize his right to a fair trial, as provided by
article 14.3 of the International Covenant on Civil and Political Rights.
Communications from the Government
174. On 28 January 1999, the Government sent a letter to the Special Rapporteur in response
to his letter of 14 December 1998. The Government informed the Special Rapporteur that the
allegations were not grounded in the facts found lawfully and duly by the relevant judicial
bodies. Under the Japanese judicial system, disciplinary actions against judges shall be taken not
by the administrative authorities but by the judiciary with a view to guaranteeing the independent
status ofjudges. The Sendai High Court, after a hearing lasting two sessions, gave its decision to
discipline Judge Teranishi by means of a warning administered in a consultation with
five judges. The hearings were held in the conference room of the High Court with attendance
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of 35 advocates and Judge Teranishi himself On 1 December 1998, the Japanese Supreme
Court dismissed the appeal from Judge Teranishi on the basis that it was groundless.
175. On 9 April 1998, prior to the protest meeting, the Chief Justice of Sendai District Court
told Judge Teranishi that his participation as a panellist against the bill would constitute unlawful
“active engagement in a political movement”, which was prohibited by the Court Organization
Law, and that he might be subjected to disciplinary action.
176. At the meeting, Judge Teranishi announced that he had to cancel his participation as a
panellist because he was warned by the Chief Judge of his District Court that he would be
subjected to disciplinary action as a result. He did, however, express his opposition to the
proposed legislation. The Government contended that by making these comments as a judge,
Judge Teranishi played a role in supporting and promoting a campaign against the bills.
177. The Supreme Court defined unlawful “active engagement in a political movement”
prohibited by the Court Organization Law as “systematic, calculated or continuous political
activities which would prejudice the independence or impartiality” of a judge. In deciding
whether the conduct in question constituted “active engagement in a political movement”, the
Supreme Court took into consideration subjective factors such as the intention of the conduct, as
well as objective factors such as the contents of the conduct, the circumstances of the conduct or
the site of the conduct. Based upon the facts mentioned above, the Supreme Court ruled that
Judge Teranishi had in fact actively engaged in a political movement.
178. The disciplinary proceedings against Judge Teranishi were conducted in camera in
accordance with the law. The Sendai High Court repeatedly advised Judge Teranishi to speak
for himself during the hearing but Judge Teranishi, having commissioned about 1,000 advocates
to speak for him, argued persistently that if the High Court would not accept his request
for 50 advocates to appear for him at the hearing he would not make any statement.
Furthermore, after the hearing, the High Court gave Judge Teranishi another opportunity to
submit his story in writing, but he did not submit any statement.
179. According to the Japanese Code of Conduct for Judges, judges should be impartial and
fair. In this spirit, the Court Organization Law prohibits active engagement in a political
movement and prescribes disciplinary measures for violation thereof The procedures for
judicial discipline are provided for in the Law concerning Status of Judges and the Rules of the
Supreme Court. Since the disciplinary action against Judge Teranishi was taken in accordance
with these laws and rules, it was not in conflict with the Basic Principles on the Independence of
the Judiciary.
180. On 9 July 1999, the Government sent a letter to the Special Rapporteur in reply to his
letter of 11 May 1999 concerning lawyer Yoshihiro Yasuda. The Government informed the
Special Rapporteur that Mr. Yasuda was appointed by the court as one of the defence counsels of
Mr. Chizuo Matsumoto, the leader of the Aum Shinrikyo (“Sect of Supreme Truth”) religious
group on 30 October 1995. Mr. Matsumoto was charged on 17 counts, including conspiring with
other members of the sect in the killing of 12 people and the injuring of 14 on the Tokyo
subway using sarin gas on 20 March 1995. Mr. Yasuda worked for Mr. Matsumoto along
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with 11 other defence lawyers until he was dismissed from his position as appointed counsel
on 23 March 1999. He was subsequently hired by Mr. Matsumoto's daughter as a private
defence lawyer.
181. Mr. Yasuda was arrested by the police for financial misdealings on 6 December 1998.
He was detained on a warrant issued by a judge on 8 December, and prosecuted at the Tokyo
District Court on 25 December. According to the indictment, Mr. Yasuda was a legal and
adminstrative consultant for Sunzu Enterprise real estate company. Mr. Yasuda conspired with
the company's director and an employee, who were his co-defendants, to illegally conceal
property for the purpose of manipulation of funds.
182. Mr. Yasuda has maintained his innocence of the charges against him. However, the
Tokyo District Court convicted his co-defendants on 17 May 1999, finding that the
co-defendants had acted illegally on Mr. Yasuda's advice. Mr. Yasuda applied to the court for
bail six times between 25 December 1998 and 9 June 1999. The court dismissed all his
applications, finding that there were reasonable grounds to suspect that the accused might
destroy evidence.
183. With respect to principle 16 of the Basic Principles on the Role of Lawyers Mr. Yasuda's
prosecution and detention are based on his own criminal act and are in no sense a sanction for
action taken in accordance with recognized professional duties, standards and ethics.
Mr. Yasuda's continued detention is based on the court's judgement that there are reasonable
grounds to suspect that he might destroy evidence and has nothing to do with the fact that he is
one of the defence counsels for Mr. Matsumoto.
184. With respect to the allegation that Mr. Yasuda's detention would jeopardize
Mr. Matsumoto's right to a fair trial as provided by article 14 (3) of the International Covenant
on Civil and Political Rights, Mr. Matsumoto has been provided with legal advice from other
lawyers. Therefore, he has not been put in a position where his right to a fair trial is jeopardized.
Observations
185. In the case of Judge Teranishi, the Special Rapporteur considers that the course of action
taken against him may have been justified on the facts. The conduct of Judge Teranishi appears
to have been inconsistent with the role of a judge, in particular that a judge should not be seen to
be involved in any forums which could be construed as political so as to preserve his impartiality
and the appearance of impartiality.
186. In the case of Mr. Yasuda, though he was one of 11 counsels for the defence of
Mr. Matsumoto and appointed by the court, his removal from the appointment and the
subsequent criminal charges preferred against him obviously had the appearance of harassment
of this lawyer.
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Kenya
Communication to the Government
187. On 28 October 1999, the Special Rapporteur sent a letter to the Government concerning
the case of the editor and publisher of the Post on Sunday Tony Gachoka. According to the
information received, Mr. Gachoka was detained in connection with articles in his newspaper
about alleged corruption in the judiciary. He was convicted of contempt of court and sentenced
to six months' imprisonment, and fined 1 million Kenyan shillings (approximately USS 13,500)
by the Court of Appeal on 20 August 1999, for publishing articles alleging that several judges
had received bribes in connection with a financial scandal.
188. It was alleged that Mr. Gachoka may not have received a fair trial for the following
reasons: the full bench of the Court of Appeal, the highest court in Kenya, sat as the trial court
and among the seven judges were judges mentioned in the articles as being implicated in the
scandal; Mr Gachoka was denied the fundamental right to give oral evidence and deprived the
right to call witnesses in his defence as provided by Order 52 of the Rules of the Supreme
Council, and as indicated in the dissenting judgement of the presiding judge; and, by the highest
appellate court having invoked original trial jurisdiction. Mr. Gachoka was deprived of a right of
appeal.
Communication from the Government
189. On 5 November 1999, the Permanent Mission sent a letter to the Special Rapporteur in
reply to his letter of 28 October 1999. The Permanent Mission informed the Special Rapporteur
that the letter had been forwarded to the appropriate authorities in Nairobi for a comprehensive
response to the concerns expressed. However, Mr. Gachoka had been released from prison on
3 November 1999 following a presidential pardon.
Observations
190. The Special Rapporteur thanks the Government of Kenya for its reply and is pleased to
note that Mr. Gachoka has been released. However, he remains concerned over the allegations
of lack of fair trial procedure by the highest court of Kenya. The Special Rapporteur has sought
an in situ mission to Kenya.
Lebanon
Communication to the Government
191. On 25 June 1999, the Special Rapporteur sent a letter to the Government concerning the
killing of four judges. According to the information provided, Judges Hassan Osman,
Assem Abu Daherm, Jmad Shehab and Walid Harmooush were gunned down in an attack. It
was reported that all the perpetrators escaped after the shooting and the motives were not known.
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Observation
192. The Special Rapporteur awaits a reply from the Government to his communication.
Malaysia
193. In his last report (E/CN.4/1999/60, para. 121) the Special Rapporteur drew attention to
his communications dated 28 September, 9 October and 30 November addressed to the
Government in connection with allegations of harassment of defence lawyers engaged in the trial
of Anwar Ibrahim, the former Deputy Prime Minister of Malaysia.
194. In response to the communication of 28 September the Special Rapporteur received a
communication dated 19 March 1999 from the Government stating, inter alia , that “in connection
with a series of illegal assemblies where police permits were not obtained several were arrested.
There were also those who had been summoned to police stations to give statements in
accordance with Section 112 of the Criminal Procedure Code. In that regard, the lawyers could
have been among those who were summoned to give statements. It is our view that this was
done in accordance with the laws. Obtaining statements from them should not have any effect
on their work as lawyers for ... Anwar Ibrahim”.
Observations
195. While appreciating that obtaining statements from these lawyers may have been strictly
in accordance with the law, the several working hours they spent at the police stations deprived
them of time spent preparing the defence for their client. That could amount to interfering with
their professional duties and may be viewed as harassment.
Defamation suits against the Special Rapporteur
196. The Special Rapporteur also drew the attention of the Commission to the ongoing four
defamation suits against him before the Malaysian Courts (ibid., paras. 115-120 and
E/CN.4/1988/39/Add.5).
197. The Secretary-General, having exhausted all efforts, including the dispatch of a Special
Envoy twice to Kuala Lumpur to resolve the dispute or agree with the Government on the terms
of reference for referring the dispute to the International Court of Justice in July 1998, sought a
resolution of the Economic and Social Council to refer the dispute to the Court. The Council
adopted a resolution and referred the dispute for an advisory opinion pursuant to section 30 of
the Convention on the Privileges and Immunities of the United Nations. The Court, after
receiving written submissions from the United Nations and the Government of Malaysia and
several interested Member States, heard oral arguments on 7, 8 and 10 December 1998 at
The Hague. In the course of her oral arguments the Solicitor General of Malaysia assured the
court that “Malaysia fully recognized the provisions of section 30 of the Convention which
accords binding quality to the Advisory Opinion of the Court”.
198. The Court delivered its opinion on 29 April 1999. The Court, by a majority of 14 to 1,
held that article VI, section 22, of the Convention applied to the Special Rapporteur and that he
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was entitled to immunity from legal process of every kind for the words spoken by him during an
interview as published in an article in the November 1995 issue of International Commercial
Litigation . The Court also held that the Government should have informed the Malaysian courts
of the finding of the Secretary-General. It unanimously added that the Special Rapporteur
should be “held financially harmless for any costs imposed upon him by the Malaysian courts, in
particular taxed costs”. The Court then directed that since it held that the Special Rapporteur
was an expert on mission who under section 22 (b) was entitled to immunity from legal process,
the Government was obliged to communicate the Advisory Opinion to the competent courts, in
order that Malaysia's international obligations be given effect and the Special Rapporteur's
immunity respected (emphasis added). In its resolution 1999/64 of 30 July 1999, the Economic
and Social Council inter alia took note of the stated commitment by the Government of Malaysia
to abide by the Advisory Opinion and stressed Malaysia's obligation as a party to the Convention
on the Privileges and Immunities of the United Nations “to make further efforts, in order that its
international obligations thereunder be given effect and Dato'Pamam Cumaraswamy's immunity
be respected, in accordance with the Advisory Opinion of the International Court of Justice”.
199. Despite the communication of the Court's Advisory Opinion to the Malaysian courts by
the Attorney-General and the Minister for Foreign Affairs, the Malaysian courts have failed to
strike out or dismiss the suits. On 18 October 1999 the Registrar of the High Court in
Kuala Lumpur, in a decision given in the fourth suit, dismissed the Special Rapporteur's
application to strike out the same suit holding that his court was not bound by the opinion of the
International Court of Justice. The Special Rapporteur has appealed against that decision. That
appeal together with the Special Rapporteur's applications to strike out the second and third suits
and submit the first suit for case management are all scheduled to be heard by a judge of the
High Court on 19 January. On that date the judge heard part of the appeal. In the course of the
proceedings, the judge observed that there were two conflicting points in the Advisory Opinion
and inquired whether the Malaysian court had to be bound by a decision “when it is conflicting
in itself'. He then postponed further hearing to 9 February 2000 for counsel to address him on
this issue. He also postponed hearings in the other three suits to 9 February.
200. In another development, on 29 September 1999, the Prime Minister of Malaysia, in the
course of his address to the General Assembly, without naming him attacked the Special
Rapporteur and the Commission for having appointed him to his office. The Prime Minister
made the following four points, inter alia :
(a) That the United Nations chose a person well known for his virulent attacks
against the Malaysian judiciary to report on that institution;
(b) That the United Nations then conferred on him total immunity against the law of
his country without reference to consent of the country;
(c) That Governments are told that they must not interfere with the judiciary;
(d) Yet in this case the Government was expected to instruct the judiciary not to act
against this “United Nations commissioner for breaking the laws of the country”. He added,
“nor do I think it is proper to hint at dire consequences for the Malaysian nation if this man is not
freed from court action for open contempt and defamation”.
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201. The Prime Minster's speech, and in particular what he said about the Special Rapporteur,
was given front-page coverage in most of the Malaysian dailies on 30 September.
202. On 1 October 1999 the Special Rapporteur issued a press statement in which he
responded to the aforesaid points by stating the following:
‘lAy statements on the Malaysian judiciary were all in relation to protecting and securing
its independence, impartiality and integHt Indeed, the attached press clippings clearly
show how in the late eighties I came in defence of the independence of the Malaysian
judiciaryagainstattacksonitbythePrimeMinisterhimseif. IcalluponthePrime
Minister to identifr any statement of mine made before or about the time of my
appointment as Special Rapporteur, which was a ‘virulent attack on the Malaysian
judiciary'.
“The iu.uu..unity from legal process claimed by the United Nations in my case was
pursuant to the Convention on Immunities and Privileges of the United Nations of 1946.
Malaysia ratified this Convention without any reservation whatsoever in 1957. By its act
of ratification Malaria consented to the application of this Convention including its
application to its own citizens. Hence the assertion that the United Nations confeffed on
me the iu.uu..unity without the consent of Malaysia is untenable and baseless.
“It is a cardinal principle in consular and diplomatic law that when iu.uu..unity from legal
process is claimed by a diplomat it is the executive which asserts the same in a court of
law either in person or in writin& Generally there is a domestic legislation to that effect
Indeed, inthe case of international organizations, there is in Malaysiathe International
Organisations (Privileges and Immunities) Act 1992. Section 7 of that Act provides:
‘7.1(1) The Minister may give a certificate in writing certifying any fact relating
to the question whether a person is, or was at any time or in respect of any period,
entitled, by virtue of this Act or the regulations, to any privileges or immunities.
‘(2) In any proceedings, a certificate given under this section is
evidence of the facts certified.'
‘Where the law itself provides for the executive to intervene in the legal process how
could it be said that such intervention would interfere with judicial independence? In fact
there is ajudgement of the highest court in England to the effect that such intervention
does not amount to executive interference in the independence of the judiciary.
“ [ The Prime Minister] alluded to the fact that I had broken the laws of the country. No
court of law has found me in contempt, or liable for defamation or that I had broken the
laws of the country. Yet the Prime Minister has prejudged and delivered his verdict, thus
being judge and jury.”
203. In yet another development atthe meeting of the Economic and Social Council
on 16 December 1999, the Legal Counsel, was invited by the President of the Council to brief
Member States on the developments in the legal suits against the Special Rapporteur. In the
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course of this briefing the Legal Counsel referred to the letter dated 15 December 1999
(E/1999/124) from the Secretary-General to the President of Council in which the
Secretary-General notified the Council that as the United Nations had maintained that the Special
Rapporteur had acted within the course of the performance of his mission when he spoke the
words giving rise to the subject proceedings, the United Nations was obliged to indemnify him
for any costs, expenses or damages arising out of the proceedings. He added that the
United Nations had therefore submitted a claim for reimbursement to the Government of
Malaysia for legal expenses it had paid on behalf of the Special Rapporteur in connection with
the proceedings in the four suits. Those expenses had been accumulating since January 1997 and
amounted at that time to USS 110,886.91 (see Press Release ECOSOC/5880).
204. The Representative of Malaysia, in a statement to the Council said that the suits in
question were suits between private parties, to which the Government was not a party. The
judicial arm of the Government was expected to enjoy independence, as provided for in the
Constitution of Malaysia, and for that reason the Malaysian Government could not direct either
the Malaysian court or the concerned parties to accept the Court's Advisory Opinion.
205. At the conclusion of the discussion on this matter the President of the Council said that
the Council would continue to be seized of the matter, but additional consultations would be
necessary.
Observations
206. It is a well-established rule of international law that the conduct of any organ of a State
must be regarded as an act of that State. The judiciary being one of the organs of the State, it is
expected to give effect to the treaty obligations of the State. Failure to do so will make the State
liable for breach of its treaty obligations.
207. The Government's contention that the suits were commenced by private parties and that
it therefore cannot be seen to interfere is no justification for its failure, to date, to invoke its
domestic legislation, namely section 7 of the International Organisations (Privileges and
Immunities) Act 1992, and give an amended certificate to the court expressing the finding of the
International Court of Justice. This failure, coupled with the speech of the Prime Minister before
the General Assembly attacking the Special Rapporteur personally, calls into question the
Government's neutrality and objectivity in the application of the law, including international law
as advised by the International Court of Justice in this matter.
Mexico
Communication to the Government
208. On 13 August 1999, the Special Rapporteur sent a letter to the Government concerning
the case of human rights lawyer Israel Ochoa Lara. According to the information received,
Mr. Ochoa, who represents indigenous communities in southern Mexico, was subjected to
prosecution as a result of his work. It was reported that for more than two years he has faced
criminal charges, and on 25 June 1996 an arrest warrant was issued against him. It was indicated
that the warrants stem from charges preferred in February 1997 under article 232 of the Federal
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Penal Code, which prohibits sponsoring or assisting two parties with conflicting issues in the
same activity. One of Mr. Ochoa's clients had allegedly implicated another of his clients in
criminal wrongdoing in a confession to authorities. It was reported that Mr. Ochoa first learned
of the possible conflict in a hearing on 11 February 1997. He immediately withdrew from
representing the client allegedly named in the confession of the other, and from taking any steps
in the case.
209. There was serious doubt as to whether Mr. Ochoa's actions were even covered by the
provision under which he was charged. The provision appears to be intended for commercial
and other civil matters rather than criminal matters. It was alleged that it was fairly common
practice in rural Mexico for a single attorney to represent more than one defendant in a criminal
case. It was further reported that in the course of his representation, Mr. Ochoa had accused
members of the Public Prosecutor's Office and the Federal Police of using torture and other
improper tactics to extract involuntary confessions from various persons detained on suspicion of
involvement with a rebel group.
Observation
210. The Special Rapporteur is pleased to learn that a judge declared both the arrest warrant
and the criminal investigation invalid and subsequently the Attorney-General's Office allowed
the appeal period to expire.
Nepal
Communication to the Government
211. On 19 February 1999, the Special Rapporteurjointly sent an urgent appeal with the
Special Rapporteur on torture to the Government concerning the case of Sahadev Jung Shah, the
Chairman of the Jajarkot District Bar Association and President of the People's Rights Concern
Movement, Jajarkot, and Shiva Prasad Sharma, a librarian at the Bheri Gyanodaya Campus,
Jajarkot. They were reportedly arrested on 12 January 1999 and have since then been detained
incommunicado at Jajarkot district jail. According to the information received, they were
arrested on suspicion of involvement in the Communist Party of Nepal (Maoist) “people's war”.
Habeas corpus writs have reportedly been filed by their legal representatives in the Supreme
Court.
Observation
212. The Special Rapporteur is awaiting a reply from the Government to this communication.
New Zealand
Communication from the Government
213. In his last report (E/CN.4/1999/60, para. 124) the Special Rapporteur drew the attention
of the Commission to a communication dated 11 November 1998 to the Government regarding a
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complaint by Moti Singh. On 7 April 1999 the Special Rapporteur received the Government's
response. The Government indicated that the Chief District Judge had looked into the complaint
and made the following observations.
214. Firstly, it should be clarified that while Judge Bouchier acknowledged that she had made
the alleged comments in public, she denied that any were made in private. Secondly,
Judge Bouchier was never the trial judge in the particular case involving Mr. Singh as the
complainant. Thirdly, Judge Bouchier acknowledged that she had made an error, expressed
regret at the comments and apologised for any embarrassment. The Chief District Court Judge
has pointed out that there is no more that could have been done. There is no power in
New Zealand law to discipline or reprimand a judge. This is, of course, to protect the
independence of the judiciary, in that each judge functions independently from the other arms of
the Government and from other members of the judiciary, in whatever position. In New Zealand
criminal law, a complainant has no status in a prosecution for a crime; the parties are the police,
representing the State, and the defendant. Mr. Singh in that sense is therefore not party to a
prosecution.
215. The Government noted that the Special Rapporteur had drawn attention to principles 2
and 6 of the Basic Principles on the Independence of the Judiciary. The Government pointed
out, with respect to principle 2, that the judge in fact did not decide anything. She had accepted
that she acted unfairly in making the comments about Mr. Singh's credibility. Ultimately,
however, it was for the police to decide whether they wished to proceed with the prosecution.
216. The question of compensation for Mr. Singh's alleged financial loss arising from the
complaint of criminal conduct is a matter entirely separate from the criminal proceedings. As
has been pointed out to Mr. Singh, he has a right to bring civil proceedings to try to recover the
money that was the subject of the criminal complaint. Even if the criminal prosecution had
proceeded and if it had resulted in a conviction, there is no guarantee that the criminal process
could have been used to compensate Mr. Singh as an order for reparation is a discretionary order
in criminal proceedings.
Observations
217. There appears no doubt that the police withdrew the prosecution based on the injudicious
comments of Judge Bouchier on the credibility of Mr. Moti Singh, who was the complainant.
Judge Bouchier was not the judge in the trial in which Mr. Singh was the complainant.
Judge Bouchier's conduct is tantamount to her having interfered in the administration of criminal
justice in the matter, resulting in the integrity of the judge being brought into question. The
Special Rapporteur expresses surprise and concern over the fact that there is no procedure in
New Zealand to discipline judges for such misconduct. Mere expression of regret by the judge
concerned for such misconduct may not help to command respect for the independence of the
judiciary. Legislation providing for a disciplinary procedure to deal with complaints against
judges with adequate safeguards as provided in principles 17-20 of the Principles on the
Independence of the Judiciary is not inconsistent with judicial independence.
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Pakistan
Communications to the Government
218. On 14 January 1999, the Special Rapporteur sent a letter to the Government concerning
the harassment of the defence counsel for the former Prime Minister, Benazir Bhutto, and
Senator Asif Ali Zardari. According to the information received, on 24 December 1998, the law
offices of defence counsel, Babar Awan, were allegedly broken into by the Pakistan authorities
and ransacked, with voluminous defence files concerning Senator Zardari and Mrs. Bhutto
stolen. It was also reported that Mr. Awan's clerk was arrested. It was further alleged that this
incident had been preceded by a series of acts of intimidation, coercion and threats against the
defence counsels of Mrs. Bhutto and Senator Zardari. These acts included: the kidnapping of
defence counsel Pir Mazhar; three arrests of defence counsel Abu Bakar Zardari; a travel ban on
defence counsel Farooq Naek; the issuance of a tax notice to defence counsel Aitzaz Ahsan; a
head injury to defence counsel Raza Rabbani; issuance of tax notices to defence counsel
Sattar Naj am; the freezing of bank accounts of defence counsel Sardar Latif Khosa; the arrest of
Babar Awan; issuance of fresh tax notices to Farooq Naek; and issuance of tax notices to
Babar Awan.
219. On 22 February 1999, the Special Rapporteur sent an urgent appeal jointly with the
Special Rapporteur on extrajudicial, summary or arbitrary executions regarding the case of
Mr. Ansar Burney, a human rights lawyer and Chairman of the Ansar Burney Welfare Trust
International. According to the information provided, Mr. Burney, his family members and
staff/volunteers were receiving death threats, allegedly from terrorist groups in Pakistan.
According to the information received, the threats have been received by telephone, e-mail and
letter. It was further reported that during the past four years, Mr. Burney's home and office have
been attacked. In these attacks, staff members of the Trust and four of his brothers, Burney Syed
Muzaffar Burney, Syed Sarim Burney, Syed Altamash Burney and Syed Haroon Burney, were
injured. During this period, other staff members of the Trust have been murdered in other
attacks by alleged terrorists.
220. On 12 April 1999, the Special Rapporteur sent an urgent appeal to the Government
concerning the case of lawyer Asma Jahangir. According to the information provided,
Ms. Jahangir, who is also the United Nations Special Rapporteur on extrajudicial, summary or
arbitrary executions, has received death threats as a result of her legal representation of a woman
seeking a divorce. The client was murdered on 6 April in the office of Asma Jahangir at the
behest of the family, and the gunman was killed by the office guard. It was further reported that
the Sarhud Chamber of Commerce and Industry and local Ulama in Peshawar have asked the
Government to file double murder charges against Asma Jahangir and to withdraw murder
charges against Ghulam Sarwar, the father of the client, and his family members.
221. On 21 May 1999, the Special Rapporteur sent a letter to the Government concerning the
alleged attempted murder of Senator Asif Ali Zardari (husband of former Prime Minister Bhutto)
in police custody in Karachi, on 17 May 1999. It was alleged that the Government of
Prime Minister Nawaz Sharif intended to register the death as a suicide. It was further reported
that during his detention Mr. Zardari has restricted access to lawyers.
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222. On 31 May 1999, the Special Rapporteur sent a follow-up letter to the
Government concerning his earlier communication of 12 April 1999 and the Government's
response dated 22 April 1999. The Special Rapporteur had since received further information
with regard to the possibility of both Asma Jahangir and her sister, lawyer Hina Jilani, being
arrested pursuant to a complaint preferred against them for the murder of the persons referred to
in his earlier communication. The Special Rapporteur also learned that Ms. Jilani had applied
for and was given protection for 30 days by the court.
223. On 8 October 1999, the Special Rapporteur sent a letter to the Government in reference
to his earlier communications dated 28 September 1995, 17 January 1996, 23 September 1997,
16 October 1997, 11 December 1997 and 16 September 1998 in which he requested to lead a
mission to investigate the state of independence of the judiciary and lawyers in Pakistan. The
Special Rapporteur informed the Government that he has continued to receive communications
concerning alleged breaches of the independence and impartiality of the judiciary and threats
against lawyers.
Communications from the Government
224. On 21 January 1999, the Permanent Representative of Pakistan acknowledged receipt of
the letter of the Special Rapporteur dated 14 January 1999. He informed the Special Rapporteur
that the letter was forwarded to the authorities in Islamabad.
225. On 16 March 1999, the Permanent Representative of Pakistan again acknowledged
receipt of the letter of the Special Rapporteur dated 14 January 1999 regarding the alleged
harassment of the defence counsel for the former Prime Minister, Mrs. Benazir Bhutto, and
Senator Asif Ali Zardari. He informed the Special Rapporteur that the Constitution of the
Islamic Republic of Pakistan guarantees basic human rights and fundamental freedoms. The
Government respects the independence of the judiciary and realizes the important role of
lawyers, who must enjoy complete freedom in performing all their professional functions
without intimidation, harassment, hindrance or improper influence. The alleged instances will be
investigated and, if established, those responsible would be punished.
226. On 22 April 1999, the Permanent Representative of Pakistan sent a letter to the Special
Rapporteur in reply to his letter dated 12 April 1999 concerning the alleged threats received by
Ms. Asma Jahangir, Special Rapporteur on extrajudicial, summary or arbitrary executions. He
informed the Special Rapporteur that, as an interim response, he had been advised by his
Government to inform the Special Rapporteur that it has provided security guards for the
protection of Ms. Jahangir and her colleagues, consisting of one head constable and four police
constables, together with a commando. Also, the local police as well as the special mobile police
squad have been directed to pay random visits to ensure the security of Ms. Jahangir and her
colleagues.
Observations
227. The Special Rapporteur thanks the Government for its reply and is pleased to learn that
measures have been adopted to ensure the safety and integrity of Asma Jahangir. However, the
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Special Rapporteur awaits a response from the Government to his other communications. The
Special Rapporteur continues to receive communications relating to concerns in the
administration of justice.
228. Just at the time of the completion of this report, the Special Rapporteur learned of a most
disturbing development. Pursuant to the issuance of Oath of Office (Judges) Order 2000 by the
Chief Executive, General Pervez Musharaf all judges have been called to take a fresh oath of
office declaring their allegiance to the Provisional Constitutional Order. The then
Chief Justice Saiduzzaman Siddiqui and five seniorjudges and several provincial judges refused
to take the oath. The Chief Justice was reported to have said that the judiciary cannot be made
subservient to anybody and taking such a fresh oath was a clear violation of the Constitution. It
was learned that 89 out of 102 judges took the fresh oath.
229. The Chief Justice and the other judges who refused instantly lost their offices, i.e. they
were virtually dismissed. The judges who took the oath remained in office. One senior judge
among them was appointed the new Chief Justice. This development will seriously undermine
the independence of the judiciary. The rule of law will remain in jeopardy so long as the
Government is perceived as a Government of men and not of laws.
230. The Special Rapporteur is most saddened that there was no solidarity within the judiciary
on this very crucial issue going to the core ofjudicial independence. He will continue to monitor
developments.
Palestine
Communication to the Permanent Observer Mission of Palestine
231. On 28 May 1999, the Special Rapporteur sent a letter to the Permanent Observer Mission
of Palestine concerning the situation ofjudicial institutions in the areas under the Palestinian
Authority. According to the information received, the Palestinian Bar Association declared a
one-day strike on 15 April, protesting the lack of judicial independence and demanding judicial
reforms. It was further learned that Palestinian lawyers suspended work at Jenin Magistrate's
Court on 17 May 1999 to protest the poor state of the Palestinian court administration. It was
reported that the lawyers' protest action came after a sit-in, which was held the previous day, and
that it followed a decision by the Jenin Magistrate's Court to postpone court cases for extended
periods. Finally, concerns were expressed at the long-standing vacancies in the two key
positions of Attorney-General and Chief Justice, which are also reportedly negatively affecting
the effective administration ofjustice.
Observation
232. The Special Rapporteur awaits a reply to his communication. Some additional
information has been received.
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Paraguay
Communication to the Government
233. On 25 March 1999, the Special Rapporteur sent an urgent appeal to the Government
concerning information he had received regarding attacks made against Supreme Court
President Raul Sapena and Supreme Court Judge Elixeno Ayala. It was reported that
on 27 January 1999, unknown persons threw Molotov cocktails and shot at the homes of the
two judges. It was alleged that the perpetrators were supporters of General Lino Oviedo, the
jailed former army chief Further, the attack was apparently connected with the Supreme Court's
decision that declared the presidential decree pardoning General Oviedo unconstitutional and
ordering the General sent back to jail. Moreover, it was reported that these attacks followed a
series of previous attacks on the Supreme Court premises and threats against Supreme Court
judges. General Oviedo himself has reportedly demanded the resignation of the
above-mentioned judges.
Observations
234. On 4 April 1999, during his second round of consultations in Geneva, the Special
Rapporteur met with the Permanent Representative of Paraguay who provided the Special
Rapporteur with a copy of a report on the investigations carried out by the prosecutor's office
and the police into the attempts made against Justices Sapena and Ayala. In the report the
National Police stated that it was not possible to determine the identity of the persons who
attacked the homes of the two judges owing to a lack of fingerprints.
Peru
Communication to the Government
235. On 1 July 1999, the Special Rapporteur sent a letter to the Government concerning the
case of Judge Antonia Saquicuray. According to the information received, Judge Saquicuray
was transferred to an administrative body of the judiciary by Administrative
Resolution No. 244-99-P.CSJL-PJ which provides that the President of the Superior Court can
name, ratify, remove and promote provisional and alternate judges. However, the source
indicated that Judge Saquicuray did not fall into any of these categories because she had a
permanent contract and she had not been consulted about the transfer. It was reported that
article 146 of the Peruvian Constitution provides that the State should guarantee that magistrates
are not removed from their posts and are not transferred without their consent.
236. The source indicated that Judge Saquicuray was transferred immediately after she opened
an investigation on a complaint filed by a group ofjournalists against the Association for the
Defence of the Truth (APRODEV). It was reported that the Association had publicly attacked
and discredited this group ofjournalists on its Web site. According to the source, it is presumed
that the Association has ties with the National Intelligence Service.
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Observation
237. The Special Rapporteur awaits a response from the Government to his communication.
Philippines
Communication to the Government
238. On 8 January 1999, the Special Rapporteur sent an urgent appeal to the Government
expressing his grave concern regarding the demonstrations that were taking place on the streets
of Manila as a result of a recent Supreme Court decision. The Special Rapporteur was
particularly alarmed by the calls for the abolition of the Supreme Court. In light of these popular
demonstrations, the Special Rapporteur requested an invitation to undertake an urgent mission to
Manila.
Observation
239. The Special Rapporteur awaits a response from the Government to his communication.
Rwanda
240. In his report to the General Assembly (A154/359, para. 127), the Special Representative
of the Commission on Human Rights on the situation of human rights in Rwanda reported that
the Government had undertaken a series of bold moves, most notably the plan to use traditional
justice ( gacaca ) to try those suspected of genocide, in view of the current crisis in the prisons.
The crisis in the prisons is part of the greater challenge to rebuild Rwanda's judiciary, because
overcrowding is due primarily to the slowness of the justice system in processing cases and
completing trials.
241. The Special Representative reported that between 1994 and 31 December 1998,
1,274 persons were tried on charges related to genocide. Of these, 18.2 per cent were
condemned to death; 32 per cent to life imprisonment; 31 per cent to jail terms of
between 1 and 20 years; and 18 per cent were acquitted. The Special Representative
complimented this process. Trials are closely monitored and found to conform with international
standards. The Danish Centre for Human Rights has trained Rwandan defenders, and defence
lawyers are provided by Avocats sans Frontières (Lawyers without Borders). This has pushed up
the rate of acquittals appreciably.
Observation
242. The Special Rapporteur will continue to liaise with the Special Representative concerning
the situation of the judiciary in Rwanda.
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Saudi Arabia
Communication to the Government
243. On 11 October 1999, the Special Rapporteur sent a letter to the Government requesting
an invitation from the Government to undertake an in situ visit in order to meet directly with all
the relevant parties with regard to the state of independence ofjudges and lawyers.
Observations
244. The Permanent Mission has responded and initiated dialogue with the Special Rapporteur
in this connection.
South Africa
Communication to the Government
245. On 22 July 1999, the Special Rapporteur sent a letter to the Government concerning
information he had received that the Policy Unit of the Department of Justice of South Africa
had produced a White Paper pertaining to policy in the judiciary (including the magistracy). It
was learned that the document, while containing some positive statements, provides for a narrow
interpretation of judicial independence and a broad definition ofjudicial accountability. The
Special Rapporteur requested a copy of the document.
Observations
246. The Special Rapporteur received a copy of the White Paper. In view of the then
impending mission in November 1999 to South Africa, the Special Rapporteur refrained from
pursuing the matter by correspondence with the Government. Since then the Special Rapporteur
has received further information that a draft bill to establish a judicial complaint committee with
a view to greater judicial accountability was being circulated and the views of those within the
administration of justice system sought. The Special Rapporteur had received a copy of this
draft bill. Some judges and magistrates have expressed concern over the implications of the bill,
if enacted into law, on the independence of the judiciary. As stated earlier, the Special
Rapporteur is currently in discussions with the Permanent Mission of South Africa in Geneva
with regard to restructuring the cancelled mission for April 2000. He intends to discuss issues
pertaining to the independence of the judiciary, and in particular the independence of the
magistrates and the implications of the White Paper and the draft bill, during the mission.
Sri Lanka
Communication to the Government
247. On 9 December 1998, the Special Rapporteur sent a letter to the Government concerning
the case of Kumar Ponnambalam, a well-known defence lawyer and General Secretary of the All
Ceylon Tamil Congress. It was reported that there had been a widespread and well-publicized
call by Sri Lankan newspapers that Mr. Ponnambalam should be taken into custody and charged
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with criminal defamation of the President and with supporting the Liberation Tigers of
Tamil Eelam (LTTE). The source claimed that the calls for his arrest were based upon his work
as a criminal defence lawyer and for speeches or statements he had made before various
international bodies concerning the human rights situation in Sri Lanka. Fears were expressed
that Mr. Ponnambalam would be arrested upon his return to Colombo on 25 December.
248. On 18 May 1999, the Special Rapporteur transmitted an urgent appeal to the
Government concerning further developments in the country and in particular the case of
Percy Wijesiriwardene, a Grade 1 Judicial Officer. According to the information provided,
Mr. Wijesiriwardene was removed from office by the Judicial and Legal Service Commission
without being accorded due process and in particular without being shown the charges against
him. Furthermore, it was reported that Mr. Wijesiriwardene had been intimidated into
submitting a letter seeking retirement. Mr. Wijesiriwardene's petition to the Supreme Court for
leave to challenge the removal on the grounds of breach of his fundamental rights pursuant to
articles 12 (1) and 14 (1) (g) of the Constitution was dismissed without any reason given.
249. The Special Rapporteur also requested an invitation from the Government to carry out an
in situ mission to Sri Lanka to study matters relating to the independence of the judiciary and the
independence of lawyers, including the role and impartiality of prosecutors.
250. On 22 June 1999, the Special Rapporteur transmitted a letter to the Government
concerning an incident at Ratnapura Magistrate's Court. It was reported that on 19 May 1999
the Magistrate of Ratnapura was threatened, insulted and humiliated by an unruly mob for
having performed his lawful judicial function. Though the Minister for Justice had condemned
the action of the mob, the alleged incident was of concern.
251. On 13 September 1999, the Special Rapporteur sent an urgent appeal to the Government
concerning information he had received regarding the appointment of a new Chief Justice.
According to the information provided, the Chief Justice was retiring and a controversy had
arisen over the appointment of his successor. The Special Rapporteur informed the Government
that his attention had been drawn to the fact that, save in a very few cases, the general practice
had always been to appoint the next most senior judge of the Supreme Court as Chief Justice.
However, he was informed that the Government was considering appointing the current
Attorney-General to the post who, although he had been a Supreme Court judge when he was
appointed Attorney-General, was the most junior of the judges. His attention had also been
drawn to two petitions before the Supreme Court to strike the Attorney-General off the rolls of
advocates for misconduct.
252. On 28 October 1999, the Special Rapporteur sent an urgent appeal to the Government
concerning the criminal prosecution of Jayalath Jayawardena, a member of Parliament, whose
trial had been postponed several times since it began on 30 May 1997 at the behest of the
prosecution for flimsy reasons, very often for the non-availability/absence of counsel for the
prosecution. International foreign observers had been present in court to observe the trial on
several occasions and the postponements had been costly in terms of effort, time and expense.
The trial was called for hearing once again on 14 October 1999, when all the witnesses were
present, but prosecuting counsel was not present for “personal reasons”. The court once again
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postponed the trial until 11 November 1999. It was also alleged that the trial is politically
motivated and the postponements were orchestrated by the Government to frustrate international
observers.
Communications from the Government
253. On 26 January 1999, the Government sent a letter to the Special Rapporteur in reply to
his letter of 9 December 1998. The Government informed the Special Rapporteur, inter alia , that
Mr. Ponnambalam had reportedly made a public statement on national television that he was a
supporter of a well-known terrorist group, the Liberation Tigers of Tamil Eelam (LTTE).
The LTTE is banned in Sri Lanka. In view of the statement, the law enforcement authorities
were obliged to carry out investigations as to the nature of Mr. Ponnambalam's support. There
was no prior decision to arrest Mr. Ponnambalam. Action would be taken to conduct an inquiry
to ascertain the facts and if any wrongdoing is discovered appropriate legal proceedings would
be instituted. Like any other citizen of Sri Lanka, Mr. Ponnambalam can challenge these legal
proceedings, if and when they are instituted, in the courts, in particular in the Supreme Court,
which has jurisdiction over fundamental rights in accordance with the Constitution of the country
and the International Covenants on Human Rights.
254. On 7 July 1999, the Government sent a letter to the Special Rapporteur in reply to his
letter of 18 May 1999. In view of the confidentiality of the material disclosed in this
communication and the request of the Government for confidentiality, the Special Rapporteur
will limit himself to a very short summary of the communication, which stated that the
Commission which was chaired by the Chief Justice did communicate the allegation to
Mr. Wijesiriwardena. The allegations were quite serious in nature. Because of the seriousness,
and rather than face disciplinary proceedings, Mr. Wijesiriwardena agreed to take early
retirement. There was no pressure exerted on him by the Commission.
255. On 29 October 1999, the Permanent Mission acknowledged receipt of the letter of the
Special Rapporteur of 28 October 1999. The contents of the communication had been
transmitted to the authorities concerned in Sri Lanka for clarification.
256. On 19 November 1999, the Government sent a letter to the Special Rapporteur in reply to
his letter of 13 September 1999. The Government, inter alia , drew the attention of the Special
Rapporteur to article 107 (1) of the Constitution which provides, inter alia , that the Chief Justice
shall be appointed by the President of the Republic. The Honourable Sarath N. Silva,
Attorney-General of Sri Lanka, was appointed Chief Justice in accordance with the above
provision on 16 September 1999.
Observations
257. The Special Rapporteur notes with great concern the assassination of
Mr. Kumar Ponnambalam on 5 January 2000. The Special Rapporteur sent a communication to
the Government in regard to this assassination.
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258. With regard to the case of Mr. Wijesiriwardena, having read the Government's response,
the Special Rapporteur considers that being a judicial officer with some experience,
Mr. Wijesiriwardena ought to have appreciated the implications of his agreement to take early
retirement rather than face disciplinary proceedings.
259. With regard to the appointment of the Attorney-General as Chief Justice, as the
appointment is now being challenged before the Supreme Court which will continue its hearings
on 7 and 8 February 2000, the Special Rapporteur has decided not to disclose the full text of the
Government's response to his communication. He also reserves his observations on this issue in
view of the proceedings before the Supreme Court.
Sudan
Communication to the Government
260. On 9 April 1999, the Special Rapporteur sent an urgent appeal jointly with the Special
Rapporteur on the situation of human rights in the Sudan, the Chairman-Rapporteur of the
Working Group on Arbitrary Detention and the Special Rapporteur on torture, concerning the
arrest of lawyers Ghazi Suliman, Mohamed Elzeen El Mahi, Wagdi Salih, El Taieb Idris,
Mohamed Abdulla El Nago, Nasr El Din, Mamoon Faroug and Satia Mohamed El Hag. It was
reported that 40 lawyers were detained by members of the security forces on 7 April 1999 in
Khartoum following a rally by members of the Sudanese Bar Association. It was further
reported that several persons were injured as a result of the beatings inflicted by the security
forces and some needed to be hospitalized. Thirty-one of the lawyers were released early the
following morning, but the above-mentioned nine lawyers were arrested on charges of disturbing
public order and are being held at an unknown location.
261. On 6 August 1999, the Special Rapporteur transmitted an urgent appeal to the
Government jointly with the Special Rapporteur on the situation of human rights in the Sudan
and the Chairman of the Working Group on Enforced or Involuntary Disappearances, concerning
the case of lawyer Hameed Mustafa Abdu. It was reported that Mr. Mustafa Abdu was abducted
on 31 July 1999 between 9.00 and 9.30 a.m. outside his offices located at No. 53 Square 4,
el Jirave East town, by an armed group reportedly linked to the security forces. He was taken to
an unknown location. The security forces and the local police denied all knowledge of his
whereabouts. Other steps taken by his relatives to determine his whereabouts have given no
result.
Communication from the Government
262. On 8 May 1999, the Government sent a letter to the Special Rapporteur in reply to his
letter dated 9 April 1999. The Government informed the Special Rapporteur that the
nine lawyers had criminal charges filed against them on 7 April 1999 because they had used
force to enter the building of the Bar Association. On 8 April 1999, the court sentenced
Chazi Suliman to 15 days' imprisonment and a fine of 50,000 Sudanese pounds (which is less
than USS 200). On 10 April 1999 the court dropped the criminal charges against the other
eight lawyers and they were released. The Court of Appeal affirmed the conviction of
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Mr. Suliman but decided to set aside the sentence provided that he sign a promise of good
conduct. He refused to do so. He was released after serving the 15-day sentence.
263. On 9 September 1999, the Government sent a letter to the Special Rapporteur in reply to
his letter of 6 August 1999. The Government informed the Special Rapporteur that based on the
information received from the appropriate authorities, Mr. Mustafa Abdu had never been
arrested or detained.
Observations
264. The Special Rapporteur thanks the Government for its responses to his communications.
He remains concerned over the disappearance of Mr. Mustafa Abdu.
Suriname
265. As stated earlier, the Special Rapporteur was invited to address an international
conference on “Constitutional Safeguards for the Independence of the Judiciary - A Guarantee
for the Consolidation of the Rule of Law and the Democratic Process in Suriname” held in
Paramaribo on S and 6 November 1999. The Special Rapporteur delivered an address on “The
Judiciary and Constitutionalism in a Democratic Society” soon after the opening of the
conference by the President of the Republic of Suriname. This conference was organized by
two organizations involved in the democratic processes in Suriname, Stichting Juridische
Samenwerking Suriname - Nederland (SJSSN) and Due Process of Law Foundation (DPLF), to
address a particularly serious problem relating to the administration ofjustice in Suriname.
266. In July 1998, after the retirement of the President of the High Court of Justice, the
Executive made two controversial appointments. It appointed the acting Attorney-General as the
new Attorney-General to the High Court of Justice, and appointed a sifting member of the High
Court of Justice as the President of the High Court. Both appointments were opposed by the rest
of the judges of the High Court of Justice on the grounds that the Executive had failed to follow
the constitutional procedure for such appointments. A serious conflict between the Executive
and the High Court of Justice ensued. This resulted in a number ofjudges not cooperating with
the President of the Court. The President refrained from distributing files and constituting
hearing panels. This led to the High Court of Justice coming to a standstill. Cases were not
heard. There were public demonstrations outside the courts.
267. Efforts to resolve the impasse so far have not been successful. Lawyers have filed a suit
before the High Court of Justice to challenge the constitutionality of the appointment. Decision
has been postponed pending an out-of-court resolution of the dispute.
268. While in Paramaribo the Special Rapporteur met the President of the Court and the other
judges at separate meetings in order to gain an insight into these rather unfortunate events which
have resulted in the rule of law in Suriname being threatened. He also met members of the legal
profession. The Special Rapporteur continues to monitor developments and, if necessary, would
seek an official mission to Suriname.
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269. The Special Rapporteur expresses his appreciation for the work of SJSSN and DPLF in
the resolution of the dispute and for drawing his attention to the events.
Switzerland
Communication to the Government
270. In his report to the fifty-fourth session of the Commission (E/CN.4/1998/39,
paras. 16 1-163), the Special Rapporteur drew attention to the case of Clement Nwankwo. The
Special Rapporteur recommended to the Government that it offer adequate compensation to
Mr. Nwankwo in the light of the Government's apologies for the conduct of its police officers
over the manner in which Mr. Nwankwo was treated during arrest and in detention. The
Government had also indicated then that an administrative inquiry had concluded that the
treatment Mr. Nwankwo received was not in conformity with acceptable principles of police
behaviour. Since then disciplinary actions were taken against the four police officers involved in
the case.
271. The Special Rapporteur has since received a communication dated 24 November 1999
from the Government. He is informed that the sanctions imposed on the four officers in the form
of caution, warning and reprimands by the administrative authority were set aside by the Appeals
Commission of the Police.
Observations
272. While noting the decision of the Appeals Commission of the Police with some regret, the
decision should not discourage the Government from offering adequate compensation to
Mr. Nwankwo. The Government had apologized for the conduct of the police officers.
Mr. Nwankwo was assaulted, suffered personal injuries and humiliation. Rather than subjecting
Mr. Nwankwo to spend time and money to prosecute a civil claim for compensation, it is only
proper and fair that Mr. Nwankwo be offered adequate compensation and that this rather ugly
and unpleasant episode be laid to rest.
Trinidad and Tobago
Observations
273. In October 1999, the Special Rapporteur was informed that Pamela Ramjattan, who was
sentenced to death in 1995 for being involved with two other men in the killing of her husband
in 1991, had her sentence set aside and replaced by a sentence of five years' imprisonment on a
reduced charge of manslaughter (see E/CN.4/1999/60, para. 168). This decision by the Court of
Appeal came after two appeals to the Privy Council. According to a fresh psychiatrist's report,
Ms. Ramjattan was suffering from diminished responsibility at the time of the killing. It was
reported that she was subjected to ill-treatment for 11 years by the deceased. The Chief Justice
acknowledged that Ms. Ramjattan had been tormented by her husband and stated, in reference to
domestic violence, that “it is a phenomenon we are very conscious about. It has become
endemic in our society and is a blot on the men in society”.
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274. The Special Rapporteur welcomes this judicial decision as it reflects a more sensitive
approach on the part of the judiciary towards issues related to domestic violence against women.
Tunisia
Communication to the Government
275. On 22 June 1999, the Special Rapporteur sent a letter to the Government concerning the
situation of the following 25 Tunisian lawyers: Radia Nasraoui, Bida Jameleddine,
Bouthelja Mohamed, Ben Rhouma Ezzedine, Kousri Anouar, Bhiri Noureddine, Ekrmi Saida,
Mourou Abdelfateh, Ben Amor Samir, Assoued Yahia, Abdallah Abdelhamid, Oba Abderraouf,
Hosni Nejib, Raoani Amor, Rabia Mohsen, Yagoubi Najet, Ben YoussefNejib, Ouelati Zinc
El Abidine, Noun Mohamed, Boudhib Naziha, Ben Amor Sonia, Ayachi Hammami,
Rafai Mohamed, Hamrouni Leila and Chaouchi Saida. According to the information received,
these lawyers had been deprived of their passports by the Tunisian authorities as a result of their
legal activities.
276. On 13 August 1999, the Special Rapporteur sent a letter to the Government concerning
the situation of lawyer Radhia Nasraoui. According to the information received, Ms. Nasraoui, a
human rights lawyer, was condemned by the Tunis Appeal Court to a six-month suspended
prison sentence on 6 August 1999. It was reported that the sentence had been handed down
when Ms. Nasraoui's lawyers were not present.
277. Furthermore, the Special Rapporteur referred to his previous intervention
dated 1 July 1999 concerning the confiscation of Ms. Nasraoui's passport, along with those of
the other 24 lawyers. The Special Rapporteur has not received a reply to this communication.
Also, the Special Rapporteur referred to his earlier communications expressing concern about the
safety of Ms. Nasraoui, dated 12 March 1998 and 1 August 1997. The Government replied to
the communications on 3 June and 30 September 1998, respectively. In both replies the
Government indicated that an investigation had been opened on the breaking into and ransacking
of Ms. Nasraoui's office. To date, the Government has not provided information concerning the
results of this investigation.
Communications from the Government
278. On 24 December 1999, the Permanent Mission of Tunisia sent a letter to the Special
Rapporteur in reply to his communication of 1 July 1999. The Permanent Mission informed the
Special Rapporteur that the following lawyers, listed in the letter of the Special Rapporteur, now
had their passports: Mohamed Bouthelja (passport No. M 100259, issued on 20 July 1999);
Zinc El Abidine Oueslati (passport No. M 058993, issued on 19 June 1999); Sonia Ben Amor
(passport No. M 061552, issued on 17 June 1999); Mohamed Raféi Krisi (passport
No. M 058945, issued on 14 June 1999); SaIda Chaouachi (passport No. M 078251, issued on
20 July 1999); Neziha Boudhib (passport No. M 093497, issued on 20 July 1999); and
Leila Hamrouni (passport No. L 993284, issued on 18 February 1999).
279. In regard to the passports of Noureddine Bhiri, Salda Akremi, Amor Raouani and
Mohamed Néjib Ben Youssef, it was reported that they had expired and the lawyers had not
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requested a renewal. In regard to Ayachi Hammami, it was indicated that he had lost his
passport twice (passport no. K 905133); it will expire on 18 December 1999.
280. The Permanent Mission also indicated that Radhia Nasraoui had been prevented from
travelling as a result of a decision issued by the Dean of the examining magistrates, dated
31 March 1998. Ms. Nasraoui was found responsible for the commission of illegal acts,
including membership of an illegal association and the publication of defamatory statements
against public authorities. She received a suspended sentence of six months injail.
281. Finally, lawyers Ezzedine Rhouma, Abdelfattah Mourou, Yahia Lassaoued,
Abderraouf Abba, Anouar Ksouri, Mohamed Noun, Samir Ben Amor, Mohamed Néjib Hosni,
Abdelhamid Ben Abdallah, Mohamed Mohsen Rbei and Jamel Bida, are advised to follow the
procedures provided by Tunisian law in order to obtain their passports. Tunisian law guarantees
to all of its citizens the right to judicially contest the decisions of the administration, including on
the issuance of passports.
282. On 24 December 1999, the Permanent Mission sent a letter to the Special Rapporteur in
reply to his letter of 13 August 1999. The Government informed the Special Rapporteur that
during the judicial proceedings Ms. Nasraoui has benefited from all the judicial guarantees
provided by Tunisian law. She was sentenced, along with others, by the sixth correctional
tribunal of first instance of Tunisia.
283. On 10 July 1999, 25 lawyers intervened during the judicial hearing. They were
given 10 hours in order to present their client's defence. A subsequent lawyer wanted to read a
document in a foreign language, however he was not authorized and left the room.
Consequently, according to the provisions of the Criminal Procedural Code of Tunisia, the
tribunal closed the hearing and decided on 14 July 1999 for the deliberations on the case and for
the reading of the judgement. The fact that the judgement was pronounced in the absence of the
lawyers does not constitute a contravention of the articles of the Criminal Procedure Code,
including article 162 and subsequent articles. It was noted that the act of reading the sentence
does not require the presence of lawyers, even though it is a public act.
284. Ms. Nasraoui and the Public Ministry have submitted their case to the Court of Cassation.
The decision is pending.
285. In regard to the previous allegations concerning the ransacking of the office of
Ms. Nasraoui, it was noted that the said allegations have been investigated by the Public Ministry
which has issued two reports containing the findings of the investigation. The first report was
submitted to the Special Rapporteur on 30 September 1999. The second report indicated that it
has not been possible to identify those responsible for the above-mentioned allegations.
Observations
286. The Special Rapporteur thanks the Government for its replies. The Special Rapporteur
would like to point out that he has not received the first report of the Public Ministry concerning
the findings of the investigation in the case of Ms. Nasraoui.
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Turkey
Communication to the Government
287. On 17 February 1999, the Special Rapporteur transmitted an urgent appeal to the
Government concerning the case of Abdullah Ocalan. It was reported that his
attorney, Britta Bohler, was not allowed to enter Turkey to visit her client. According to the
information received, Dr. Bohler and two of her colleagues flew to Istanbul on the evening of
16 February, but they were required by the Turkish authorities to remain in the transit area of
Istanbul airport and to return to the Netherlands on the first flight scheduled for 17 February. It
was further reported that Abdullah Ocalan has been denied access to his attorney in
Turkey, Feridum celik.
288. On 23 February 1999, the Special Rapporteur transmitted an urgent appeal jointly with
the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
Rapporteur on torture concerning the alleged detention of eight lawyers from the local
headquarters of the People's Democracy Party (HADEP) in Diyarbakir, including Mr. celik,
who is the Provincial President of HADEP. A delegation from the Diyarbakir Bar Association
reportedly requested the State Security Court Prosecutor to ensure that the eight lawyers are
questioned by a prosecutor rather than the police, as required by Turkish law in cases where
lawyers have been detained. The prosecutor reportedly responded that this would not be
possible. Relatives' petitions seeking confirmation of the detention have allegedly not been
accepted by the prosecutor. Moreover, it was also reported that there have been large-scale
detentions of HADEP members throughout the country.
289. On 4 March 1999, the Special Rapporteur transmitted a joint urgent appeal together with
the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning the case of
lawyers representing Abdullah Ocalan, who were allegedly being persecuted. It was reported
that Ahmet Zeki Okuoglu and Hatice Korkut, who visited Abdullah Ocalan on the prison island
of Jmrali where he was being held, were particularly at risk. Both lawyers were reportedly
kicked and punched as they arrived at the quayside at Mudanya to set off for the prison island.
Both lawyers and their families allegedly received death threats.
290. Further information was received concerning an incident involving four lawyers working
on Abdullah Ocalan's case: the two above-mentioned lawyers, and Osman Baydemir and
Medeni Ayhan. It was reported that the four lawyers held a press conference at the Press
Museum in the Cagaloglu district of Istanbul on 26 February 1999. As they entered the museum,
they were reportedlyjostled by an angry crowd. Osman Baydemir was arrested in connection
with a statement he had made some weeks earlier regarding the Ocalan case; he was
subsequently released. After the press conference, the lawyers were unwilling to leave the
building as there was a large crowd shouting slogans and threats. The police eventually had to
escort the four to safety. As a result of the threats and harassment, the lawyers are reported to
have suspended their representation of Abdullah Ocalan, saying that they cannot continue in
their duty under the current circumstances, and that his trial cannot be considered fair unless he
is properly assisted by competent and committed defence counsel.
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291. Moreover, alleged death threats have also been received by several lawyers and human
rights defenders. In this regard, the Special Rapporteur notes that an urgent action concerning
these individuals was transmitted on 26 February 1999 by the Special Rapporteur on
extrajudicial, summary or arbitrary executions.
292. On 5 March 1999, the Special Rapporteur sent a letter to the Government concerning his
urgent appeals of 17 February 1999, 23 February 1999 and 4 March 1999, as well as his prior
letters of 16 February 1996, 21 May 1997 and 7 November 1997 in which he requested to
investigate, in situ , allegations concerning the independence ofjudges and lawyers. Owing to
the recent allegations that a large number of lawyers had been arrested and/or threatened as a
result of carrying out their functions, the Special Rapporteur sought as a matter of urgency an
invitation from the Government to undertake an in situ visit to the country at the earliest time
possible.
293. On 3 May 1999, the Special Rapporteur sent an urgent appeal jointly with the Special
Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on
torture concerning lawyers representing Abdullah Ocalan who were allegedly assaulted and
intimidated by police and others. The lawyers involved are: Ahmet Zeki Okçuolu,
Jrfan DUrdan, Niyazi Bulgan, (Ms.) MUkrime Tepe, Ercan Kanar, (Ms.) Fatma Karaka,
Refik Ergun, Ahmet Avar, Turgay Kaya, (Ms.) Derya Bayr, Hasip Kaplan, Niyazi cem,
Sait Karabakan, (Ms.) Zeynei Polat, (Ms.) Hatice Korkurt, Doan Erba, Filiz Kalayc and
Fehim GUne.
294. According to the information received, Niyazi Bulgan and Irfan DUndar were beaten by
uniformed police officers inside the court building during a hearing in the trial of
Abdullah Ocalan on 30 April 1999. It was reported that the plaintiffs, who were families of
soldiers supposedly killed by the PKK, applauded when somebody in the courtroom shouted,
“They are beating up a lawyer”; in response to this disturbance, the judge reportedly told the
plaintiffs to calm down and did not call for an investigation into the alleged attack against the
defence lawyers. It was further reported that the observers saw projectiles, including stones and
metal objects, being thrown at the defence lawyers, who had to leave the courtroom through a
cordon of police officers. All the defence lawyers were reportedly taken to the police station
adjoining the court, supposedly for their own safety. It was alleged, however, that the police
officers who eventually took them away in a police van threatened to kill them. The lawyers
were then taken to the marketplace of Yeniehr where police officers allegedly beat and kicked
them. Ms. Tepe, Ms. Bayr, Mr. Avar, Mr. Bulgan and Mr. DUndar were injured as a result. It
was reported that the Ankara Medical Chamber examined the lawyers and confirmed that they
had suffered severe bruising and cuts from sharp instruments.
Communication from the Government
295. On 26 February 1999, the Permanent Mission sent to the Special Rapporteur the text of
the press conference of the Prime Minister held on 21 February 1999 concerning the arrest of
Abdullah Ocalan by the Turkish security forces. The Prime Minister stated that Abdullah Ocalan
would receive a fair trial as the judiciary in Turkey was independent. Further, the
Prime Minister stated that at the end of the custody period Mr. Ocalan would be brought before
the judge, after which he could meet with his lawyers and hire the lawyers he preferred. if this
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did not happen, the State would provide him with a lawyer. With regard to the possibility of
having observers at the trial of Mr. Ocalan, the Prime Minister indicated that it was up to the
judge to admit the public and members of press to the trial.
296. On 9 March 1999, the Permanent Mission sent to the Special Rapporteur a “fact sheet”
regarding the apprehension and forthcoming trial of Abdullah Ocalan. According to the
information provided, proceedings regarding the testimony of the accused were completed
on 22 February 1999 by the Public Prosecutor. Following his interrogation by the Office of the
Reserve Judge of Ankara State Security Court, he was arrested under article 125 of the Turkish
Penal Code for the crime of acting to establish a separate State by separating a part of the State
territory from the State administration. He was taken to Imrali Closed Prison on the same day.
297. Lawyers Abmet Okçuoglu and Hatice Korkut visited Abdullah Ocalan
on 25 February 1999, their security being safeguarded. The lawyers held a press conference
on 26 February 1999 and announced their withdrawal from the case as their security had not
been safeguarded. The allegations of these lawyers were baseless. The security of these lawyers
was safeguarded during their transport to and from Imrali and they were accompanied by the
Judge of Mudanya Criminal Court of Peace. The lawyers did face the reaction of the people
during their departure from Mudanya.
298. On 22 March 1999, the Permanent Mission sent a letter to the Special Rapporteur in reply
to his urgent appeal of 4 March 1999. According to the information provided, lawyers
Abmet Okçuoglu and Hatice Korkurt went to the island of Jmrali and met the accused detainee
on 25 February 1999, their security being provided. On 8 March 1999, Mr. Abmet Zeki
Okçuoglu and his brother, lawyer Selim Okçuoglu; lawyers Niyazi Bulgan and Irfan DUndar
were given power of attorney by Abdullah Ocalan. Consequently, Mr. Ahmet Zeki Okçuoglu
met Ocalan for a second time on 11 March 1999. The meeting lasted for 45 minutes.
Subsequently, Mr. Okçuoglu revealed at a press conference that he had found the accused
detainee in very good health. Lawyers Selim Okçuoglu, Niyazi Bulgan and Irfan DUndar visited
Ocalan on 16 March 1999 and stayed for four hours. Mr. Ahmet Zeki Okçuoglu stated that
Abdullah Ocalan had given him power to appoint further legal representatives for his trial, thus
15 lawyers will be present during the hearings.
299. On 27 May 1999, the Permanent Mission sent to the Special Rapporteur the unofficial
translation of the statement made by the Chief Prosecutor of the State Security Court of Ankara
on 25 May 1999, regarding the trial of Abdullah Ocalan which was planned to commence on
31 May 1999 on the island of Jmrali. The Permanent Mission also sent to the Special Rapporteur
a list of the local and foreign persons who were authorized to follow the hearings. The list was
prepared on the basis of accepting 12 people each day, in accordance with the capacity of the
premises of the court.
300. On 9 July 1999, the Permanent Mission sent a letter to the Special Rapporteur in reply to
his letter of 23 February. The Ministry of Justice and the Ministry of the Interior reported that
the lawyers concerned had been taken into custody on 16 and 17 February by the Directorate of
Security of Diyarbakir, on the grounds of protesting and demonstrating against the arrest of
Abdullah Ocalan. They were released on 22 February, following their interrogation, their cases
being continued. It was established through medical reports that the lawyers were not subjected
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to any torture or ill-treatment during their stay in custody. Further, it was not possible to provide
concrete information on allegations of “large-scale detentions”; however, a list of the persons
detained and released in the provinces which were mentioned in the letter of the Special
Rapporteur was provided.
301. On 24 June and 1 and 27 July 1999, the Permanent Mission sent letters to the Special
Rapporteur providing information concerning amendment of article 143 of the Turkish
Constitution and further legislative reforms relating to an ongoing human rights reform process.
According to the constitutional reform, the military member of the three-judge panel of State
Security Courts was removed.
Observations
302. The Special Rapporteur thanks the Government for its replies and responses. The Special
Rapporteur records his disappointment that he was not permitted to visit Turkey for an in situ
mission at the height of the various alleged incidents so that he might verify the allegations of
harassment and intimidations of Mr. Ocalan's defence lawyers.
United Kingdom of Great Britain and Northern Ireland
303. Following his report to the fifty-fourth session of the Commission on Human Rights on
his mission to the United Kingdom (E/CN.4/1998/39/Add.4) the Special Rapporteur dealt with
two issues, namely, intimidation and harassment of defence lawyers and the murder of
Patrick Finucane, in his report to the fifty-fifth session (E/CN.4/1999/60, paras. 185-198). Since
the report the tragic and brutal murder of well-known defence lawyer Rosemary Nelson on
5 March 1999 in Belfast stunned and shocked many and left once again a chilling effect on the
independence and security of defence lawyers in Northern Ireland. The Special Rapporteur
reported this sad development in his oral statement to the Commission on 12 April 1999. There
was earlier a memorial service for Ms. Nelson in the Palais de Nations, attended by many
including the Chairperson of the Commission and the High Commissioner for Human Rights.
304. The Special Rapporteur continued to monitor developments and to this end exchanged
considerable communications in writing and had oral discussions with all concerned in this
matter. In his meeting with the then Secretary of State for Northern Ireland, Ms. Mo Moland, in
London on 14 April 1999 the Special Rapporteur, inter alia , expressed his appreciation for the
initiative taken by the Government to call an independent investigation into the murder of
Rosemary Nelson. However, he expressed the view that the involvement of officers of the Royal
Ulster Constabulary (RUC) in the investigation could adversely affect the integrity of the
investigation. He also reiterated his earlier call for an independent judicial commission inquiry
into the murder of Patrick Finucane. He said that he was more concerned over possible State
collusion in that murder than in the actual person who had committed the murder. The Secretary
of State in response said, inter alia , that investigation into the Rosemary Nelson murder needed
the assistance of the RUC. With regard to the Patrick Finucane murder, she said that she was
interested in apprehending and bringing to justice the person or persons who actually committed
the murder. The Special Rapporteur continued to correspond with the office of the Secretary of
State on these issues.
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305. While in London, on 14 April 1999 the Special Rapporteur had discussions with
John Stevens, the Deputy Chief Constable of the Metropolitan Police, who had been called upon
to investigate the Patrick Finucane murder for the third time. On 15 April 1999, he also met
Mr. Cohn Port, the Deputy Chief Constable of Norfolk who was called in to investigate the
Rosemary Nelson murder. Since then the Special Rapporteur continued contacts with both
Mr. Stevens and Mr. Port, in person and by correspondence, in connection with their respective
investigations. On 21 January 2000 the Special Rapporteur met again with Mr. Port in London
and had detailed discussions on developments, problems and progress with regard to his
investigations into the Rosemary Nelson murder.
306. On 15 April 1999 the Special Rapporteur met two members of the Commission on
Policing in Northern Ireland (the “Chris Patten Commission”), including Sir Chris Patten
himself, and expressed concern over the relationship between defence lawyers and the RUC, and
the investigations into the two murders.
307. The Special Rapporteur continued to receive considerable materials from NGOs,
particularly the British Irish Watch who have done close monitoring of developments in
Northern Ireland with regard to these issues. The Special Rapporteur was pleased to note the
improved cooperation extended to these NGOs by the authorities concerned, including the two
lead investigators. In this regard, the Special Rapporteur met representatives of the NGOs in
London on 20 January 2000 and received a detailed input on the latest developments.
308. In another development, in a communication dated 10 January 2000, the Northern Ireland
Office informed the Special Rapporteur that the Director of Public Prosecutions (DPP) of
Northern Ireland had considered the findings of the investigation by Commander Mulvihill into
allegations of threats made against Rosemary Nelson and had directed, on grounds of insufficient
evidence, that there should not be any prosecution.
309. lii yet another development, the Special Rapporteur learned that on 23 June 1999 one
William Stobie was charged in court with the murder of Patrick Finucane. hi a communication
dated 14 September 1999 from the Office of John Stevens, the Special Rapporteur was informed
that the investigation into aspects of collusion arising from the report by British Irish Watch was
still in progress.
310. hi response, on 23 September 1999, the Special Rapporteur informed the Office of
John Stevens that while he was pleased to note that a suspect had been charged with the murder
of Patrick Finucane, the background of the investigation leading to this charge and Mr. Stobie's
revelations to the court raised serious concerns. (Mr. Stobie was charged in June 1991 with
firearms offences relating to the murder but the prosecutor offered no evidence and he was
acquitted.) The Special Rapporteur again reiterated his main concern about State collusion in the
murder and expressed his previous call for a judicial commission of inquiry into that aspect of
the case.
311. hi the light of the charge preferred against Mr. Stobie, the Special Rapporteur has learned
that the Government has taken the stand that any form of commission of judicial inquiry into the
murder would have a prejudicial effect on the pending criminal proceedings.
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312. With regard to harassment of defence lawyers, the Special Rapporteur is pleased to note
that since the introduction of audio recording of interviews at the Castlereagh holding centre on
10 January 1999 there have been no complaints against RUC officers abusing lawyers during
interrogations, though there have been complaints of such abuse outside Castlereagh.
Observations
313. The Special Rapporteur wishes to express his appreciation to the Government of the
United Kingdom, and in particular the Northern Ireland Office, John Stevens, Cohn Port and the
NGOs, particularly Ms. Jane Winter of British Irish Watch, for their ready cooperation and
assistance. Despite the sensitive, delicate and confidential nature of the two investigations, both
John Stevens and Cohn Port were open and, as far as possible, transparent in their discussions
and communications with the Special Rapporteur. hi view of the confidential nature of some of
the information the Special Rapporteur received, he had to exercise restraint in disclosure.
Again, owing to space constraints the Special Rapporteur is unable to set out all the information
and materials he has gathered on these issues. The Special Rapporteur is also conscious of the
delicate peace process in Northern Ireland. It is against this backdrop that the Special
Rapporteur makes the following observations.
Murder of Patrick Finucane
314. hi a communication to the Special Rapporteur in November 1999, John Stevens indicated
that he would require another six months with regard to his investigations, including into the
aspects of alleged collusion. hi an earlier correspondence, dated 27 May 1999, to the Committee
on the Administration of Justice in Belfast and copied to the Special Rapporteur, Mr. Stevens
indicated that at no time during his previous two investigations did he investigate the murder of
Patrick Finucane. Patrick Finucane was murdered on 12 February 1989. It now appears that the
murder itself was not thoroughly investigated until John Stevens was called for a third time in
April 1999. Any earlier investigation could only have been carried out by the RUC.
315. When William Stobie was charged in court in June 1999 for the murder of
Patrick Finucane, his lawyer informed the court, inter alia , that the bulk of the evidence against
his client was known to the authorities for almost 10 years. If that was the case, why was
Mr. Stobie not prosecuted for murder earlier? He was charged only with a firearms offence, and
even that was dropped by the DPP when the trial commenced on 23 January 1991. The court
then recorded a finding of “not guilty”. Responding to the murder charge, Mr. Stobie said to the
court, “Not guilty of the charge that you put to me tonight. At that time I was police informer for
the Special Branch. On the night of the death of Patrick Finucane I informed the Special Branch
on two occasions by telephone of a person who was to be shot. I did not know at that time who
was to be shot.”
316. The Special Rapporteur notices the inconsistencies and contradictions emerging in the
statements of the various personalities involved in this whole saga. Such inconsistencies and
contradictions generally arise in cases where there have been cover-ups by interested parties,
including State organs. More than 10 years after a murder a person is charged. Yet the same
person was charged back in 1991 for another offence related to the murder. It is now alleged that
the bulk of the evidence now in the possession of the prosecution was then available. Questions
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of the credibility and integrity of initial investigations are emerging and will continue to emerge.
In the last 11 years, John Stevens was called in three times. It is now claimed that in the
previous two investigations he did not investigate the actual murder. It should not be seen that
every time when there is a public outcry for ajudicial commission of inquiry fresh investigations
are called to stall such an inquiry. To date, the report of Mr. Steven's second investigation has
not been made public.
317. In the circumstances, the Special Rapporteur once again reiterates that only ajudicial
commission of inquiry can get to the truth of what really happened and the circumstances
occurring prior to the murder in 1989 and put to rest all doubts and suspicions. With respect, the
Special Rapporteur does not consider that a judicial commission of inquiry would be prejudicial
to any criminal proceedings in the matter. In any event, that the DPP will indeed eventually
proceed with the prosecution of William Stobie is not certain. As happened in 1991, Mr. Stobie
may yet be found not guilty if the DPP decides not to proceed any further with the prosecution.
Hence, after having delayed prosecution for 10 years, prosecutions or possible prosecutions
should not be used as a reason not to set up a public judicial commission of inquiry into the
murder to ascertain all the circumstances, including whether there was State collusion.
Murder of Rosemary Nelson
318. While appreciating the decision of the DPP not to prefer any charges on the grounds of
insufficient evidence, with regard to the complaints of Rosemary Nelson against RUC officers
based on the Mulvihill report, the Special Rapporteur remains concerned over the extent and
thoroughness of the investigation. The full Mulvihill report should be made public.
319. With regard to the investigation into the murder by the Cohn Port team, though the
Special Rapporteur views the delay with concern, he is aware that this investigation is unlike an
ordinary murder investigation and hopes that it can be expedited. What is of concern to many
with whom the Special Rapporteur has spoken is that the investigation will end the same way as
did the Patrick Finucane investigation. This should be avoided.
320. The Special Rapporteur appeals to the Government of the United Kingdom to take the
necessary steps to avoid any allegation of impunity being levelled against it in connection with
the murders of the two lawyers.
Harassment of defence lawyers
321. While the introduction of audio recording had deterred RUC officers from uttering abuse,
it is still vital that solicitors should be present during interrogation. Detainees must contend with
complex laws concerning the drawing of adverse inferences from the failure to answer questions,
and lawyers can only adequately advise their clients if they are present. For detainees held under
the Police and Criminal Evidence Order, lawyers are allowed to be present during interviews in
Northern Ireland, but not during interviews in Northern Ireland of detainees held under the
Prevention of Terrorism Act. In England, lawyers are allowed to be present during both types of
interview. The police in England do not say that their ability to investigate terrorist-related
crimes is hampered by having solicitors present.
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Chris Pattern report
322. While welcoming this report, the Special Rapporteur notes that there is no reference to
police harassment of defence lawyers or the need for police and lawyers to understand each
other's roles and to work in harmony without confrontation.
Yemen
Communication to the Government
323. On 11 January 1999, the Special Rapporteur transmitted an urgent appeal jointly with the
Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur
on torture, concerning the cases of Abu al-Hassan al Medhar, Ahmed Mohammad Ali Atif and
Sa'ad Mohammad Atif who were reportedly arrested in connection with the kidnapping of 16
tourists, which led to an armed clash in which several persons were killed. According to the
information received, the three men may face execution if found guilty as charged. There were
allegations that these persons have been held in incommunicado detention, some in shackles, and
denied legal representation. It was further reported that statements made by the defendants have
been released to the press by the authorities.
Observation
324. The Special Rapporteur is awaiting a reply from the Government to his communication.
Yugoslavia
Communication to the Government
325. On 2 November 1999, the Special Rapporteur sent a letter to the Government concerning
the situation ofjudges who are members of the Association of Judges of Serbia. According to
the information received, the President of the Supreme Court of Serbia, Balsa Govedarica,
threatened judges who are members of the Association with removal from office unless they
revoked their membership. In this connection, it was reported that the Supreme Court of Serbia
had ruled on 17 February 1999 against the appeal submitted by the Association of Judges of
Serbia, thereby upholding the decision of the Serbian Ministry of the Interior not to permit the
Association to be entered into the Register of Associations of Citizens. The Supreme Court
upheld the view that only those associations of citizens which are considered to be legal entities
have to be registered in the public records. It was alleged that the presidents of various courts
had recently started to summon judges to meetings to investigate their membership in the
Association. It was further alleged that judges were threatened with removal from office if it
was proven that they were members of the Association.
Observation
326. The Special Rapporteur is awaiting a response from the Government.
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Report of the Special Rapporteur on the situation of human rights in Bosnia and Herzegovina,
the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro )
327. The Special Rapporteur has also taken note of this report in which it is reported that the
first casualty of the war was the rule of law (A154/396, para. 100). Within the Federal Republic
of Yugoslavia, formal declaration of martial law gave officials of the Ministry of the Interior and
the Yugoslav army vast powers over most areas of civil activity. Moreover, even in substantive
areas where such power had not been formally extended to the military by the civil authorities,
the Special Rapporteur noted that the Yugoslav army and the Serbian police either took or were
granted effective control. The Republic of Montenegro did not recognize the declaration of
martial law, but actions by the Yugoslav army on the territory of Montenegro challenged and
threatened civil authority in that republic. Federal authorities denied the immunity of elected or
appointed officials by attempting to mobilize them, and the army moved to arrest several
officials in Serbia and in Montenegro for refusing mobilization notices. Charges were brought
against the elected mayor of Cacak for disturbing public order, based on statements the mayor
had made attributing responsibility for the social dislocation caused by the war. Changes to the
Law on Criminal Procedure removed many legal protections of the accused and substituted
expedited procedures that allowed, for example, for searches without prior warrants and police
investigations without prior request of the court or State prosecutor.
Observation
328. The Special Rapporteur will continue to liaise with the Special Rapporteur concerning
related issues.
VIII. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
329. Preparations for in situ missions require considerable efforts on the part of Governments
and the special rapporteur concerned. Consequently, precautionary measures should be adopted
by the Office of the High Commissioner for Human Rights in order to avoid situations similar to
the cancellation of the mission to South Africa about which the Special Rapporteur was not
informed until the very last minute when he realized that there were no instructions given to
local agents for the issuance of the travel ticket. The Special Rapporteur trusts that the
administration of the Office of the High Commissioner will take note of the several missions the
Special Rapporteur will undertake this year and make available the financial resources for the
same.
330. The Special Rapporteur has noted that there has been an increase in the responses
submitted by Governments to his communications. However, the Special Rapporteur continues
to observe that Governments do not reply to urgent appeals in a timely manner. The Special
Rapporteur has also noted that there has been an increase in the number of urgent appeals
submitted by him jointly with other thematic mechanisms and country rapporteurs. The Special
Rapporteur considers this development to be a positive one in light of the general appeal to better
coordinate the work of the thematic mechanisms created by the Commission on Human Rights.
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331. The Special Rapporteur has noted that there has been an increase in the number of
allegations received involving human rights defenders who have been the target of attacks. The
Special Rapporteur wishes to emphasize the elements of his mandate, which confines him to
attacks on practising lawyers who have been subject to any form of harassment, intimidation or
threat resulting from their carrying out their professional duties as lawyers.
332. The Special Rapporteur continues to be 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 on the Independence of the Judiciary are found to be too
general and basic in substance, then there may be a justification for reviewing them.
333. The Special Rapporteur will continue working closely with the Activities and
Programmes Branch of the Office of the High Commissioner for Human Rights to assist with
activities concerning technical assistance requested by Governments.
334. The Special Rapporteur continues to be concerned over the difficulties in the Office of
the High Commissioner for Human Rights in having laws, legislation and documents, including
correspondence, translated professionally into the English language. A recent incident is a
glaring and embarrassing example. A two-page letter was addressed to the Special Rapporteur
by the Government of Switzerland. The Special Rapporteur, while in Kuala Lumpur, noticed a
difficulty and delay over the translation at the Office of the High Commissioner. He called for
the letter and requested the Embassy of Switzerland in Kuala Lumpur to assist him in the
translation! The Embassy obliged.
B. Recommendations
335. 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.
336. In the case of the United Kingdom and Northern Ireland, the Special Rapporteur
reiterates his earlier recommendations that the Government should establish an independent
judicial inquiry without any further delay to investigate the murder of Patrick Finucane, with
particular reference to whether there was any State collusion in that murder. In this regard, the
Special Rapporteur urges the Government to make public the second report of John Stevens.
With regard to the murder of Rosemary Nelson, the Special Rapporteur urges Cohn Port and his
team to expedite their investigations. In this regard, the Special Rapporteur urges the
Government to make public the Mulvihill report on the investigations into the complaint lodged
by Rosemary Nelson with RUC.
337. With regard to Switzerland, the Special Rapporteur once again urges the Government to
offer adequate compensation to Mr. Clement Nwankwo.
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338. With regard to human rights defenders, the Special Rapporteur urges the Commission to
give serious consideration to providing a monitoring mechanism to implement the Declaration
on the Right and Responsibilities of Individuals, Groups and Organs of Society to Promote and
Protect Universally Recognized Human Rights and Fundamental Freedoms.
339. In paragraph 4 of resolution 1994/41 creating the 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 to respond positively
to his requests to undertake in situ missions.
340. The Special Rapporteur calls on Governments, national judiciaries, Bar Associations and
NGOs to submit to him any court judgements and any legislation affecting the independence of
the judiciary and the legal profession for his consideration, irrespective of whether such
judgements and legislation have the effect of enhancing or restricting the independence ofjudges
and lawyers.
341. The Special Rapporteur requests that the Office of the High Commissioner for Human
Rights take note and make available both financial and human resources for the several missions
that the Special Rapporteur would be undertaking this year.
