Promotion and protection of all human rights/Independence of judges and lawyers – Special Rapporteur report/HRC 11th session – Situation in specific countries, territories (excerpts)

PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS,

CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL

RIGHTS, INCLUDING THE RIGHT TO DEVELOPMENT

Report of the Special Rapporteur on the independence of

judges and lawyers, Leandro Despouy

Addendum

SITUATION IN SPECIFIC COUNTRIES TERRITORIES*

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*  The present document is being circulated in the languages of submission only as it greatly exceeds the page limitations currently imposed by the relevant General Assembly resolutions.

Introduction

1. The present report supplements the main report submitted by the Special Rapporteur on the independence of judges and lawyers to the Human Rights Council (A/HRC/11/41). It reflects specific situations alleged to be affecting the independence of judges or lawyers or violating the right to a fair trial in 52 countries. Further, it includes replies received from the Government of the country concerned in response to specific allegations together with the Special Rapporteur’s comments and observations. Readers will thus find in it:

(a) Summaries of the urgent appeals and allegation letters transmitted by the Special Rapporteur to governmental authorities between 16 March 2008 and 15 March 2009, and of press releases issued during the same reporting period. In this connection, the Special Rapporteur wishes to emphasize that the communications presented in the report exclusively reflect allegations he received and subsequently acted upon. Where information was insufficient and could not be supplemented, or where the information received was outside the mandate, the Special Rapporteur was not in a position to act. Hence such allegations were not included in the report.

(b) Summaries of the replies received from several States concerned between 1 May 2008 and 10 May 2009. In certain instances, the Government reply was obtained late and referred to allegations that were presented in the previous reports (A/HRC/8/4/Add.1 and A/HRC/4/25/Add.1). In those cases, the Special Rapporteur has included the respective allegation in the section of communications sent, in order to facilitate the reader’s comprehension. On the other hand, it may be noted that certain responses to urgent appeals or allegation letters sent during the reporting period, and for which the Special Rapporteur wishes to thank the Governments, could not be included in the report owing to the fact that they were either not translated in time or received after 10 May 2009. To the Special Rapporteur’s regret, they will therefore be reflected only in next year’s report. Finally, due to restrictions on the length of the report, the Special Rapporteur has been obliged to summarize the details of all correspondence sent and received. As a result, requests from Governments to publish their replies in their totality could regrettably not be accommodated.

(c) Observations and specific comments by the Special Rapporteur.

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II.  SUMMARY OF CASES TRANSMITTED AND REPLIES RECEIVED

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Israel

Communications sent

162. On 28 July 2008, the Special Rapporteur sent a joint allegation letter, together with the Special Rapporteur on the situation of human rights defenders and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, regarding the case of Mr Shawan Jabarin, general director of Al-Haq, a Palestinian human rights organization based in the occupied West Bank. On 16 March 2007, Mr Shawan Jabarin was the subject of a joint urgent appeal sent by the Special Rapporteur on freedom of opinion and expression and the Special Representative of the Secretary General on the situation of human rights defenders. The urgent appeal referred to travel restrictions against Mr Shawan Jabarin imposed on 23 March 2006. No response had been received from the Government. According to information received, on 7 July 2008, the Israeli High Court rejected Mr Shawan Jabarin’s petition to have the travel restrictions against him lifted. Previous petitions filed by Mr Shawan Jabarin against the travel restrictions were rejected in December 2006 and June 2007. With the travel restrictions in place Mr Shawan Jabarin was not permitted to leave the West Bank. The High Court’s refusal to lift the travel restrictions against Mr Shawan Jabarin was reportedly based on secret information provided by the military and examined ex parte. This information allegedly justifies the Israeli High Court’s decision by proving that Mr Shawan Jabarin was a security risk. Given that neither Mr Shawan Jabarin nor his lawyer has been able to gain knowledge of why the travel restrictions are in place, it has been impossible to defend Mr Shawan Jabarin. Because he cannot leave the West Bank, Mr Shawan Jabarin has been unable to represent his organization at various events in other countries. The Special Rapporteurs were concerned that no reasons for the travel ban imposed against Mr Shawan Jabarin have been given and as a consequence he cannot effectively continue his non-violent activities in defence of human rights in the occupied West Bank territory.

163. On 31 October 2008, the Special Rapporteur sent a joint urgent appeal, together with the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, regarding the situation of S.S. and S.S., both aged 16, and cousins, living in Bethlehem. According to information received, both were reportedly due to be released on 4 October 2008. On 5 October 2008, S.S. and S.S. were issued a second administrative detention order for a further three-month period. On 6 October 2008, their appeal was rejected. The military judge Eyal Noon reportedly upheld the order for a further three months until 3 January 2009. The judge reportedly considered that these girls were still ‘dangerous’. Furthermore, the military prosecutor has provided no evidence since their arrest. On 5 June 2008, at approximately 02.00 a.m., S.S. and S.S. had been arrested by Israeli police and Israeli Security Agency (ISA) officers at their respective homes in Bethlehem. In both cases, it was alleged that officers used excessive force and abusive ill-treatment at the time of arrest, including by handcuffing and blindfolding. Following their arrest, S.S. and S.S. were taken briefly to Telmond Prison and then transferred to Ofer Prison where they were interrogated for one hour. During the interrogation, they were allegedly asked about their activities and relations with any political group. S.S. and S.S. did not confess anything. The ISA reportedly claimed that the girls were involved in militant activities; although to date, no charges have been issued against them. S.S. and S.S. were then taken back to Telmond prison, where they were kept for two days. They were then transferred to Addamoun prison, where they had been detained with other Palestinian adult female detainees. With regard to the military administrative detention orders, it was reported that they were issued on 12 June 2008, and allegedly justified S.S.’ and S.S.’ detention on the basis of their supposed involvement in militant activities, deemed by authorities as “endangering the security of the area”. These orders set for four and five months respectively. A military court reportedly confirmed these orders on 18 June 2008. On 15 July 2008, S.S. and S.S. were brought from Addamoun prison to Al Ramle prison, in view of the appeal hearing set for 16 July 2008. They endured abusive behaviour during this transfer and at the place of destination. At Al Ramle prison, S.S. and S.S. were undressed and had undergone a full body search conducted by a female officer. On 16 July 2008, S.S. and S.S. were brought before an appeal hearing which confirmed the orders, although S.S.’s administrative term was reportedly reduced from 5 to 4 months. It was further alleged that according to the administrative detention procedure in Israel, a Military commander was able to renew the administrative detention order for up to 6 months, every 6 months, subject to review by a court (within 8 days of each order being issued); and the renewal can be extended perpetually. This exists even in the absence of any charge or trial during the whole period of detention. It was understood that a military order by the commander would be confirmed by a military court, and furthermore may be subject to an appeal. Both S.S. and S.S. have had access to legal counsel, and their families were able to visit them only three times since their arrest. Concerns were expressed at the physical and psychological integrity of Ms. Salah and Ms. Siureh, particularly in light of their status as minors and in the alleged absence of charges.

164. On 4 December 2008, the Special Rapporteur sent a joint urgent appeal, together with the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, regarding the case of Mr. Rami Ibrahim Mohammed Samarah, aged 22, Palestinian, identity document No. 938010287, usually residing at Zeita village, Tulkarm. According to the information received, Mr. Samarah was arrested without a warrant by a member of the Israeli national security forces on 28 June 2007 at Zatarah checkpoint. He has been ordered to remain in detention for security reasons for 36 months and was currently held at Naqib and Majido prisons, between which he was regularly transferred back and forth. The authority ordering the detention had not been reported, and the legal basis for the detention was not known. Mr. Samarah had a lawyer, however, up to date no charges had been brought against him. During the investigation Mr. Samarah was allegedly severely beaten. It was alleged that he was being detained in poor conditions. Prior to his arrest his house was searched by Israeli soldiers who were said to have destroyed parts of the interior and his personal computer. In view of allegations of ill-treatment, concerns were expressed as regards Mr. Samarah’s physical and mental integrity.

Communications received

165. On 11 December 2008, the Government replies to the urgent appeals sent on 31 October 2008, stating that Israel has been struggling with terrorism from the day it was founded. In recent years, the number of terrorist attacks grew significantly, and Palestinian terrorists have been targeting Israeli civilians more viciously than ever before, including in pizzerias, shopping malls, cafeterias, and buses. Particularly horrendous was March 2002, when more than 80 Israeli civilians were killed, and more than 400 were injured. Overall, from September 2000 until February 2007, 1,121 Israeli civilians were killed and 8,147 were injured. One of the most effective and lawful counter-measures against such continuous terrorist attacks is the use of administrative detentions. However, it is important to note that this measure is only used in exceptional circumstances. Where sufficient and admissible evidence exists against an individual, the authorities are required to bring that individual to trial, rather than adopt such measures as administrative detention. Nonetheless, in some situations, there may be clear, concrete and trustworthy evidence against an individual, but for reasons of confidentiality and protection of intelligence sources, it cannot be presented as evidence in ordinary criminal proceedings. It is under such circumstances that administrative detentions are imposed. Issuance of administrative detention orders against detainees who pose a danger to public security in a defined area, in situations such as outlined above, is recognized by international law and are in full conformity with Article 78 of the Fourth Geneva Convention 1949. Moreover, the measure is only used in cases where there is corroborating evidence that an individual is engaged in illegal acts that endanger the security of a particular area and the lives of civilians, and each order is subject to judicial review. It is important to note that an administrative detention order is limited to six months in duration, and its extension requires a re-evaluation of the relevant intelligence material, as well as further judicial review. Furthermore, local legislation governing the process grants all relevant individuals the right to appeal the order to the Military Court of Appeals, for judicial review. Petitioners may be represented by counsel of their choice at every stage of these proceedings. All detainees have the additional right to petition the Israeli High Court of Justice for a repeal of the order. The judicial organs reviewing each and every order carefully examine whether the criteria outlined in case law and legislation are fully met. Regarding the cases at hand, Ms. Siureh was arrested on 5 June 2008. Thereafter, on 12 June 2008, an administrative detention order for a period of five months was issued against her due to her activities jeopardizing the security of the area. In a judicial review regarding the order, in light of Ms. Siureh being a minor, the Court decided to shorten the administrative detention order to a period of four months. Thus her detention was scheduled to end on 4 October 2008. An appeal regarding the above-mentioned decision was denied by the Court. Ms. Saleh was also arrested on 5 June 2008. Thereafter, on 12 June 2008, an administrative detention order for a period of four months was issued against her due to her activities jeopardizing the security of the area. In a judicial review regarding the order, the Court noted that it would have been appropriate to sentence Ms. Saleh to a longer detention period, but in light of her status as a minor, the original sentence of four months would stand. Thus her detention was scheduled to end on 4 October 2008. An appeal regarding the abovementioned decision was denied by the Court. On 28 September 2008, the administrative detention orders against Ms. Siureh and Ms. Salèh were extended for an additional three months. In a judicial review regarding this extension, which took place on 6 October 2008, the Court affirmed the order and stated that there is reliable, high-quality intelligence material indicating that there is a definite threat to the security of the area if Ms. Siureh and Ms. Saleh were to be released. It should be noted that the Court also examined if alternative and less severe procedures could be taken against the two appellants, but found that it was not possible at that time. An appeal regarding the abovementioned decision was denied by the Court who affirmed the order “in light of willingness of the appellants for dangerous security activity.” Ms. Saleh and Ms. Siureh are thus due to be released on 3 January 2009.

Special Rapporteur’s comments and observations

166. The Special Rapporteur wishes to thank the Government of Israel for its reply to his letter of 31 October 2008. While he appreciates the detailed information on the questions of administrative detention, he remains concerned that military justice is used to try civilians. In this connection, he refers to paragraph 22 of General Comment No. 32 of the Human Rights Committee, in which it stated that “Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.” Consequently, the Special Rapporteur is looking forward to receiving relevant information from the Government in this regard.

167. The Special Rapporteur is concerned at the absence of an official reply to the communications of 28 July 2008 and 4 December 2008. He urges the Government of Israel to provide at the earliest possible date a detailed substantive answer to the above allegations.

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