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