Civil and political rights/Independence of judges and lawyers – CHR – Special Rapporteur’s report (excerpts)

CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS OF:

INDEPENDENCE OF THE JUDICIARY, ADMINISTRATION OF JUSTICE, IMPUNITY 

Report of the Special Rapporteur on the independence of judges and lawyers,

Leandro Despouy, submitted in accordance with

Commission on Human Rights resolution 2003/43

Addendum 

Situations in specific countries or territories ^*

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Introduction 

1. The present report contains summaries of the urgent appeals and communications transmitted to governmental authorities between 1 January and 31 December 2003, as well as replies received during the same period. In addition, the report contains summaries of the press releases issued during the current reporting period. 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.

2. The Special Rapporteur wishes to emphasize that the urgent appeals and communications reflected in the present report are based exclusively on information that has been transmitted to him directly. Where information was insufficient, the Special Rapporteur was not in a position to act. He also recognizes that problems concerning the independence and impartiality of the judiciary are not confined to the countries and territories mentioned. In this regard, he wishes to emphasize that readers of the present report should not interpret the omission of a particular country or territory as indicating that the Special Rapporteur considers that there are no problems with the independence of judges and lawyers in that country or territory.

3. The Special Rapporteur wishes to inform the Commission that during the period under review a total of 70 urgent appeals, communications and press releases were transmitted to 39 countries or territories.

4. At the time of submitting the present report the Special Rapporteur has received responses from the Governments of Bolivia, Lebanon, Mexico, Sudan and Turkey to urgent appeals or communications sent during the reporting period but these replies were either not able to be translated in time or were received after 31 December 2003, so they will be reflected in future reports to the Commission.

5. The Special Rapporteur would like to point out that all communications, allegations and press releases sent before 25 July 2003 were transmitted by his predecessor, Dato’ Param Cumaraswamy.

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Israel

Communications to the Government

47. On 28 February 2003, the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on the question of torture and the Special Representative of the Secretary-General on the situation of human rights defenders regarding Mr. Daoud Dirawi, who was reportedly detained on the evening of 21 February 2003 in Jerusalem. According to the information receieved, Mr. Dirawi was taken by Israeli soldiers to Qeshle Police Station in Jerusalem. Fatmi Dirawi, his wife, was reportedly told by officers at the police station that her husband would be held for 24 hours and then brought before a judge. The following morning, she was reportedly told that her husband had been taken away by personnel from Shin Bet (the Israeli Secret Intelligence Service), that he would be detained for interrogation purposes for 12 days, that his place of detention would not be revealed and that he would not be able to meet with a lawyer during this period.

48. On 24 July 2003, the Special Rapporteur sent a joint communication with the Special Rapporteur on the question of torture regarding the detention of several individuals who are being held at the Russian Compound Detention Center (RCDC) in Jerusalem. According to the information rceived between 9 and 11 June 2003, Yasser Ali Abu Dia, Bassam Sharawi and Yunes Abu-Sneineh were reportedly arrested and held in incommunicado detention. It is reported that after their arrest they were held at a number of locations, first in the Etzion Camp, then transferred to the General Security Services (GSS) Interrogation Unit at RCDC. It is alleged that during that period they did not have access to a lawyer as an Order Prohibiting Meeting with Counsel had been in place and that a petition to the High Court of Justice for its removal had been rejected on 22 June 2003.

Communications from the Government

49. On 30 July 2003, the Government replied to the Special Rapporteurs’ joint urgent appeal of 19 November 2002 (E/CN.4/2003/65/Add.1 para. 85). The Government advised that Dr. Diab was arrested on suspicion of invovlement in terrorist activities against the State. As Dr. Diab is an American citizen, the United States authorities were notified immediately upon his arrest and detention. Upon examination of his case by the relevant Israeli authorities, Dr. Diab was released on 26 November 2002 and he left the country.

50. On 21 October 2003, the Government replied to the Special Rapporteurs’ joint urgent appeal of 7 May 2002 (E/CN.4/2003/65/Add.1, para. 83). The Government stated that the three detainees are members of a terrorist cell and were arrested on 30 April 2003 and indicted by the Jerusalem District Court for their involvement in placing a cart of explosives in east Jerusalem on 29 April 2002. The detainees’ meeting with their legal counsel was lawfully postponed in accordance with Israeli law (by order of the Supreme Court sitting as the High Court of Justice) on the basis that the meeting would impede efforts to find additional explosive devices and capture other members of the cell. According to the Government, since the expiration of the order postponing the meeting, the detainees have been free to confer with their lawyers.

Lebanon

Communications from the Government

51. On 10 February 2003 the Government replied to the Special Rapporteur’s urgent appeal of 27 December 2002 (E/CN.4/2003/65/Add.1, para. 96) regarding the attempted murder of Judge Fadi Nashar and advised that according to the investigation conducted by the judicial authorities the attempted murder of Judge Nashar was an isolated incident with no political or judicial implications. This incident has been referred to a public hearing at which the defendant has been afforded all means of defence and freedom of speech.

52. On 9 September 2003 the Government sent additional information to the Special Rapporteur concerning Judge Fadi Nashar (E/CN.4/2003/65/Add.1, para. 96) in handwritten Arabic but it could not be translated for technical reasons. On 26 December 2003 the Government sent a typed copy of the court decision but unfortunately the decision could not be translated in time for this report but will be summarized in next year’s report to the Commission.

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Syrian Arab Republic

Communications to the Government 

83. On 16 April 2003, the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on the question of torture and the Special Representative of the Secretary-General on the situation of human rights defenders regarding Hassan Saleh and Marwan 'Uthman who have reportedly been transferred from the Criminal Section to the Political Section of ‘Adra Prison, to the north of Damascus where they have allegedly been denied visits by lawyers, relatives and doctors. According to the information received, the Military Court recently changed the charge against both prisoners from “membership of an unauthorized organization” to “inciting sectarian strife”, which meant that the case had to be referred to the Supreme State Security Court (SSSC), which,in turn, added the charge of “attempting to sever a part of the Syrian territories”. It was alleged that in June 2002, SSSC indefinitely banned the defendants’ lawyer Anwar al-Bunni from appearing before SSSC. Other lawyers are now said to be following the case and will represent Mr. Saleh and Mr. 'Uthman. The concern is that SSSC operates outside the ordinary criminal justice system and is only accountable to the Ministry of the Interior. In addition, its verdicts are not subject to appeal and its trials are not conducted in accordance with the Code of Criminal Procedure.

84. On 26 June 2003, the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on the question of torture and the Chairman-Rapporteur of the Working Group on Arbitrary Detention regardingAbdel Rahman Shaghouri who was reportedly arrested by secret police agents without warrant on 23 February 2003 at a checkpoint between the town of Qunaytra and Damascus. It is believed that his detention is linked to his accessing web sites and passing on information of a political nature about his country. It is reported that since his arrest he has been denied access to his lawyer and relatives and that he is currently held at the Military Security Branch prison in Damascus.

Communications from the Government 

85. On 22 May 2003, the Government replied to the Special Rapporteurs’ urgent appeal of 16 April 2003 and stated that Mr. Saleh and Mr. ‘Uthman were members of an outlawed political party and were responsible for inciting acts of violence and unrest and for distributing literature that was critical of national policy and in breach of the Associations Act. Both men are being tried before the courts.

86. On 15 September 2003, the Government replied to the Special Rapporteurs’ urgent appeal of 26 June 2003 and advised that the competent authorities had arrested Mr. Shaghuri for using the Internet and distributing articles to persons outside the country. The competent authorities believe that in view of the contents of those articles the accused was in breach of State security and was arraigned before the Higher State Security Court to admit or deny the charge.

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Palestinian Authority 

Communications to the Government

128. On 6 June 2003, the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on extrajudicial, summary or arbitrary executions regarding Sergeant Rani Darwish Khalil Shaqqura , a member of the Palestinian security services from Jabalya refugee camp in the Gaza Strip, who was reportedly sentenced to death by firing squad on 17 May 2003 by a special military court. It is reported that his death sentence must be approved by President Yasser Arafat, after which he could be executed at any time. According to the information received, Mr. Shaqqura was found guilty of the murder on 15 April 2003 of another member of the Palestinian security services, Captain Hani ‘Atiya al-Madhoun. It appears there was no legal basis for convening a military court, since such courts usually hear cases of security service employees in connection with offences committed during or as part of their work However, in this case, the killing was not carried out in the context of Mr. Shaqqura’s work in the security services. It was reported that the charge sheet was not presented to the prosecutor until the court reconvened for the second time, on 26 April, and did not bear the signature and stamp of the civilian general prosecutor who had carried out the investigation, making it invalid. The defence lawyer reportedly objected to these and other irregularities. Nevertheless, the court overruled all the points he raised and the defence lawyer reportedly withdrew from the case in protest. Consequently, the court allegedly appointed two security officers to act as defence lawyers for Mr. Shaqqura. However, despite their law degree they are reportedly not registered with the Bar Association and do not practise law. They allegedly received the documents relating to the case only hours before the hearing. According to reports, no witnesses were called to testify in Mr. Shaqqura’s defence.

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