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Defending and Protecting Lawyers Under Attack:

A Background Paper for the Pan African Lawyers Union Conference, Nairobi, October 12-15, 2016

Introduction

The authors of this paper are Gill H. Boehringer and Stuart Russell of the International Association of People’s Lawyers.  The IAPL was created in 2000 to gather lawyers involved in the legal support of collective struggles for people’s rights and in situations of gross rights violations.  The IAPL Monitoring Committee on Attacks on Lawyers was created in 2014 and maintains a very extensive blog documenting such attacks.

This paper is endorsed by:

 

the International Observatory for Lawyers in Danger (OIAD for its French acronym), was relaunched in 2015 by the Paris Bar, the French National Bar Association, as well as the Italian and Spanish National Bar Associations, and also aims to bring any kind of support a lawyer under threat may need.

 

Endangered Lawyers | Avvocati Minacciati was started in 2015, and later officially presented in 2016 to the Italian Criminal Lawyers Association (Unione Camere Penali Italiane or UCPI). It is coordinated by Italian lawyers Nicola Canestrini and Ezio Menzione.

 

Created in 2001, the European Bar Human Rights Institute (IDHAE) monitors human rights protection, the training of lawyers in international human rights law, interventions, regardless of the limitations of borders, in favour of freedom and the fundamental rights of lawyers, organizes the World Observatory for Defence Rights and attacks against lawyers, workshops, symposia and seminars related to publications on international human rights law.

 

Created in 2010, the purpose of the Day of the Endangered Lawyer Foundation is to “call attention on that day to threatened human rights lawyers with special attention to one designated country.”

 

Avocats Européens Démocrates/European Democratic Lawyers (AED/EDL), founded in 1987, is a professional confederation of lawyer unions and organizations.    On the international level it promotes the rights of defence and especially seeks to preserve the physical integrity, as well as the political and economic freedoms of lawyers.

Current situation

Today, in many countries of the world, it is dangerous to be a lawyer. This is especially true if the lawyer is attempting to protect the rights of the people against corporate or government interests or is uncovering corruption. Attacks on lawyers include both physical and non-physical interference with a lawyer’s capacity to perform his/her professional duty to the client or the court. Examples of the former could be assassination or extra judicial killing (EJKs), involuntary disappearance or wrongful detention, often accompanied by torture. Non-physical attacks are many and various e.g. threats, intimidation and harassment, unjustified professional disciplinary proceedings, illegal failure by the prosecution to make material evidence available to the lawyer, non-provision of legal aid, SLAPP suits such as libel actions. These examples are only the tip of the iceberg as we have been surprised at the extent to which lawyers are under attack and the innovative methods used to prevent lawyers from fulfilling their professional duties.

Many organisations around the globe are working to defend and protect lawyers by 1) monitoring the attacks, 2) publicizing the phenomenon, and 3) providing support for the lawyers under attack (for example, rapid response to attend and observe trials of lawyers). Our paper is a joint effort by members of some of the most prominent of such organisations. It is our hope that out of the PALU conference will come ideas and recommendations that will contribute to the worldwide movement for defending and protecting lawyers. In particular, of course, we would look to the development of a Pan African initiative tailored to your specific circumstances, which would deal with what appears to be an upward trend in attacks against lawyers in the African continent. Participants in the conference will be better equipped than we to specify what form such an initiative(s) should take. One of the purposes of this background paper is to provide information about what is (and is not) happening around the world in order to assist participants in designing a strategy for the protection and defence of African lawyers.

To provide an initial empirical basis for your discussion, we indicate the basic results of the data collection activity of the IAPL Monitoring Committee, we list below the number of countries by region where the Committee has received credible reports of attacks on lawyers:

AFRICA: 35 (36 if the self-declared Republic of Somaliland is included), ASIA: 20, CARIBBEAN: 4 (includes Puerto Rico), CENTRAL AMERICA: 7, EUROPE: 15, MIDDLE EAST :  12 (includes Israel and Turkey), NORTH AMERICA: 2 (USA, Canada), PACIFIC: 7 (includes Australia and New Zealand), SOUTH AMERICA: 8.

As for African countries, we have recorded attacks from: Algeria; Angola; Botswana; Burkina Faso; Burundi; Cameroun; Comoros; Congo; Republic of (Congo-Brazzaville); Democratic Republic of Congo; Egypt; Equatorial Guinea; Eritrea; Guinea-Bissau; Kenya; Lesotho; Liberia; Libya; Mauritania; Morocco; Mozambique; Niger; Nigeria; Rwanda; Senegal; Somalia; Somaliland; Republic of South Africa; South Sudan; Sudan; Swaziland; Tanzania; The Gambia; Tunisia; Uganda; Zambia; and Zimbabwe.

There are several comments to be made on these figures. First, countries have differing degrees of “intensity” of attacks. Thus a country may be on the IAPL list because of a single credible report of an attack, as is the case in many of the African countries. Alternatively, a number of our listed countries have a high degree of intensity. Countries such as Egypt, Honduras, Pakistan, Philippines, Turkey and China would be in the high intensity category as there have been many reported attacks in these countries, and they are continuing often with impunity for the perpetrators of human rights abuses.

Second, we believe it is certainly the case that there are many more countries where attacks on lawyers have occurred. We just have not received information on attacks in those countries. That is a gap in our monitoring that we are seeking to improve through broadening our network of informants. Another factor that makes the data incomplete is what criminologists call “the dark figure of crime”. According to this well-established concept, there are many crimes that are never reported at the country level and therefore cannot be reported even if there is a reliable source. Crimes go unreported for many reasons and, surely, the same is true of the attacks on lawyers e.g. with regard to physical attacks there may be threats of retribution. In the case of non-physical attacks it may be the lawyer-victim does not even realize the attack has occurred, e.g. prosecutor’s tricks to prevent the lawyer from fulfilling his/her duty unbeknownst to the lawyer.

 

Egypt : a test case of repression against lawyers and international solidarity

Since President Sisi came to power in 2014 Egyptian lawyers have suffered waves of repression amidst a human rights crisis resulting from his campaign against Islamists.  Lawyers have repeatedly been arrested and persecuted to force them to avoid political cases.  At its peak in November 2015 more than 200 lawyers were behind bars.

Fortunately that number has decreased to a handful of reported cases as of September 2016.  The best-known case is that of Malek Adly, a prominent human rights lawyer, founder of the Front for the Defence of Egyptian Protesters and Director of the Lawyers Network at the Egyptian Center for Social and Economic Rights (ECESR). Arrested on 5 May 2016 he endured solitary confinement until 28 August, when he was released despite a prosecution appeal.  Adly has represented countless peaceful protesters and civil society organizations, and is leading a group of lawyers who launched a legal action against Egypt’s decision to transfer two Red Sea islands to Saudi Arabia.  The State Administrative Court upheld the complainants’ case, thereby annulling the transfer of the islands. The government appealed.

He was accused of attempting to overthrow the ruling régime, affiliation to a banned organization, and broadcasting false news, inter alia, all of which he denied, although formal charges have not been laid.  However, these serious charges could still be brought against him, resulting in a re-arrest.  Adly was admitted to the prison hospital several times, and suffers severe health conditions.  Lengthy pretrial detention – in some cases lasting between one to three years – has been used by the Sisi régime against dissidents, exceeding international legal standards.

In July the Robert F. Kennedy Human Rights Center in the U.S. submitted an urgent action and petition to the UN Working Group on Arbitrary Detention and an urgent action to the UN Special Rapporteur on Torture on behalf of Adly.  Similarly, a number of international human rights organizations have taken up Adly’s cause, including the Observatory for the Protection of Human Rights Defenders, a partnership of the International Federation of Human Rights (FIDH) and the World Organisation Against Torture (OMCT), the International Observatory of Lawyers in Danger (OIAD) and the European Human Rights Institute (IDHAE).  They called for his immediate release and all charges to be dropped. A very high-profile Facebook-based support group has also been campaigning on his behalf :  Free Malek Adly مالك عدلي حر  More recently a number of international lawyers signed a petition calling for his release and for the charges to be dropped. It is now available online for additional signatures : https://www.change.org/p/egyptian-minister-of-the-interior-release-egyptian-lawyer-malek-adly

Adly’s wife and defence team filed a lawsuit against prison authorities and the Minister of Interior to end his solitary confinement.  However, in a surprise move a court ordered his release on 25 August.

There has been other good news for Egyptian lawyers recently. On 13 August human rights lawyer Mahienour El-Massry who was jailed for “storming” an Alexandria police station in 2013 but has recently been released.  She was initially sentenced to a two year sentence along with eight others on charges of “protesting without authorisation, damaging property” and “injuring policemen”. However a retrial in May 2015 saw the defendants’ sentence decreased to 15 months.  While imprisoned, El-Massry was awarded the prestigious lawyers’ 2014 Ludovic Trarieux International Human Rights Award for her contributions to the defence of human rights. She was the second lawyer to be awarded the international award while in prison since Nelson Mandela in 1985.

We believe that the strong display of international solidarity in these cases has had a significant impact on the Sisi government and exemplifies the possibilities for the lawyers of the world to defend their foreign colleagues under attack.

The situation facing Egyptian lawyers remains very dangerous and alarming.  It is important that in the case of Egypt (and other countries in Africa where similar government repression exists), that African lawyers, their organizations, Bar associations and human rights groups demonstrate their solidarity for their Egyptian colleagues, support the immediate release of those lawyers behind bars, and call for all charges to be dropped.

 

Has enough been done to defend lawyers?

The work done by the advocacy groups such as those which have authored this paper can cover a wide range of activities, in advocacy, support and solidarity. A great deal of time and energy is spent on recording and reporting attacks, passing resolutions at meetings of lawyers’ associations and writing to government ministers and international bodies about the situation of their foreign colleagues; attempting to pressure political parties, individual legislators and even governments to act positively in the matter; making visits to the country concerned, especially if lawyers are on trial, then publishing an account. These are not the only solidarity activities being carried out, as a visit to a number of groups’ websites would reveal various other programmes and activities, commissions, and research projects, but we believe that, in the main, short-term reactive initiatives are undertaken.

Is this enough? Have efforts to support lawyers been adequately coordinated? Have they been successful? With all due respect to those who have thrown themselves into the effort wholeheartedly, our answer to all three questions must be, we think probably not as successful as we would like. More needs to be done, more effectively. We say this with hesitancy as much has been done but, sadly, the killings continue and there appears to be a trend of increasing violence towards our colleagues. That certainly appears to be the case in Africa. We believe some new thinking, new methods and some new strategies should be developed.

 

Towards a strategic agenda

The basic question remains: what can be done to combat the onslaught on lawyers?  Our research has highlighted a major gap. While there are many groups taking actions to support lawyers under threat, there is insufficient coordination of these efforts. Thus we suggest, as a first and urgent step, an International Summit Conference be called to bring together groups from around the world who are involved in actions to defend the lawyers. It would be expected to develop a strategic plan, emphasising coordination, planning and funding of an agenda to protect lawyers but, importantly, to develop strategies — short and long term — to reduce the dangers they face. The Conference would feature structured practical workshops to share our knowledge and experience in order to develop a collective capacity to support those who are at risk.

Such a Conference, (or perhaps initially a regional African Conference) bringing together a wide cross section of people and support groups, including but not limited to, lawyers, victims, and activists, would also have significant spin-offs, and would surely catch the attention of the major media and social media. Such publicity as we expect would follow, would bring before the world, in a focused way, the seriousness of the problem. It would put international pressure from a newly informed public opinion on governments and lawyers’ professional associations in countries where lawyers are at serious risk and, thus far, have not been given adequate protection.

In order to develop an agenda for discussion at such an event, we offer some ideas of how we in the movement to protect and defend lawyers, can express in a practical way our solidarity with lawyers threatened with attacks. Our suggestions are in addition to the usual legal approaches in dealing with human rights violations, national and international, that will be familiar to the lawyers of PALU and their practicing colleagues inside government institutions and in private practice. Some of the elements of a comprehensive programme of support could include:

1. One of the most effective ways to defend and protect lawyers being tried for their legal work is to have a “first responder” legal team of observers from another country, or region, travel immediately to the site of the trial in order to provide on the ground support and, where useful, legal/political advice and/or pressure on the prosecution. Such teams could be organised through PALU. There are models for this operating, for example in Europe and in The Philippines.

2. Establishment of an international network specifically dedicated to the defence of lawyers would be an important step. As indicated above, we lack information from many countries, therefore we lack accurate and comprehensive macro data on the killings and disappearances of lawyers, let alone other attacks. In order to encourage the public and governments to take the problem seriously and consistently, they need to know the extent of the carnage out there.

3. The establishment of a network of regional Centres for the Support of Lawyers Under Attack (to get the Centres started, perhaps they could be organized on a country basis.) PALU would be the obvious organisation to take the lead in getting the Centres operational. The purpose of the Centres:  to monitor attacks on lawyers: collect, record, and analyse information specifically on attacks on lawyers. As the Centres develop they could provide commentary and publicity on the issue; such Centres could assist in organising, publicising and coordinating support activities in the region, such as country visits and reports back. These Centres might be organised by Bar Associations, NGOs, in an academic institution, or an alliance of such institutions.

4. Regional seminars and workshops on the problem, based on research and experience of combating the attacks. These could be organised by national or regional Centres mentioned above, but also through independent Human Rights Centres such as the Gulf Centre for Human Rights and the Asian Centre for Human Rights, or a university Human Rights Centre which may be connected with a Law Faculty. Many of the latter exist around the globe and there are various models that could be adopted.

5. An annual international lecture, widely publicised, by an outstanding human rights defender, not necessarily a lawyer, on the threats to lawyers, perhaps focusing on a different country each year, and perhaps to take place in a different country each year.

6. There has emerged in recent years an annual Day of the Endangered Lawyer (organized by the Day of the Endangered Lawyer Foundation), with activities in many countries on 24 January, especially protests of lawyers in robes in front of the designated country’s embassies and consulates. It would be an opportunity for African lawyers and their professional associations to commemorate the deaths and other attacks on lawyers in their countries and across the continent. With public events and media briefings, the problem could be brought to the attention of civil society and NGOs, religious institutions and other concerned groups and individuals, thus bringing pressure on governments to respond in a positive manner. In 2016 Honduras, with several hundred lawyers assassinated in recent years, was the country focused on. In 2017 it will be China, due to the severe and continuing crackdown on the entire community of human rights lawyers which involves lengthy detentions and serious human rights violations to the lawyers, their staff and families.

7. Support for speaking tours and visits of lawyers and other human rights defenders who have first-hand knowledge/experience of dealing with attacks on lawyers. Such visits could be to professional associations, academic campuses and other venues in the countries facing serious attacks/threats on lawyers (hereafter CFALs).

8. Visits by lawyers and human rights activists from CFALs to countries where they can have discussions with government officials, professional associations and other legal and activist groups, as well as access to the media. The purpose, to exchange information and experience, and also to build solidarity links with appropriate institutions, national and international.

9. Legal assistance whereby foreign lawyers work with local lawyers to try to get prosecutions and convictions, especially in countries where impunity exists for the perpetrators. This is not so much because locals need legal help, but because the involvement of a foreign lawyer might make government officials “try harder” under the gaze of the international legal community. There might be value in a programme of internships for law students and young lawyers as a part of such a legal assistance scheme. These suggestions, and others we are canvassing would, of course, have to be worked out with local lawyers.

10. Educational work with journalists is important. Killings of lawyers get far less publicity than those of journalists, although in some countries more lawyers are killed. Many journalists would be sympathetic given what is happening to their colleagues; we just need to give them accurate information in an easy-to-use format. We recognise that the major media is not free nor objective, and journalists operate within restrictions, nevertheless on this issue they may be able to assist in our project, even by using alternative forms of media.

11. Educational work with NGOs and civil society organisations is also important. These are organisations with the power to affect public opinion. They have an interest in the safety of lawyers in CFALs with whom they sometimes work and with whom they share the dangers of confronting human rights abuse.

12. Educational work with university law faculties, and others, could include the development of units in the curriculum (either undergraduate or postgraduate) on lawyers as heroes and victims of political systems and social structures, perhaps with the award of prizes for outstanding theses or publications arising from their study. In this way building awareness and solidarity with our future professional colleagues.

13. The creation, possibly under PALU leadership, of a monthly e-newsletter with information about the current attacks on lawyers across the continent, and other material relevant to the defence and protection of lawyers. There might also be interest in a series of working papers or reports on these phenomena.

14. Political work should be undertaken in all countries to convince political parties and governments to apply sanctions against countries where the attacks on lawyers are continuing without arrests, prosecutions and convictions. Statements of concern are not sufficient. The USA has laws restricting the supply of war materiel to countries where human rights violations are persistent and systemic. Such a policy, if enforced, could be effective in convincing governments that they need to take action to protect their lawyers and find and punish the guilty.

15. Through political work, making legislation which specifically protects lawyers. Brazil has legislation that provides a comprehensive range of rights specifically for lawyers. It would also be important, at least symbolically, to adopt in specific legislation the UN Basic Principles on the Role of Lawyers and to ensure that it is studied in law curricula. We would also see value in strengthening the understanding of the UN adopted Algiers Universal Declaration of Peoples’ Rights which culturally has great resonance to the African people. Many lawyers are attacked because they are defending peoples’ rights laid down in the Algiers Declaration.

16. A campaign should be developed for universal national “human rights budgets” with specific allocations for the protection of defenders (lawyers, journalists and others), with, of course, annual reports on the impact of such budget allocations.

17. Political work to seek governmental and/or parliamentary resolutions condemning the lack of protection of lawyers, but also requesting the institution of parliamentary hearings to expose the “protection gap” in CFALs especially. This could be an important step vis-à-vis countries vulnerable to a change in public opinion and government policy, e.g. in regard to aid and/or trade.

18. Juridical work which would see violating countries, and individuals, arraigned in the appropriate international tribunals, or in countries such as Spain which allows prosecution for extra-territorial offences.

19. An international People’s Tribunal would be an excellent vehicle for an investigation to deal comprehensively with attacks on lawyers as a major threat to a humane existence for those millions who often must rely on courageous lawyers to defend them from state power and the greed of those who employ, or are responsible for, assassins who attack lawyers. The Permanent People’s Tribunal has indicated a willingness to hold such a session. It has already been in discussions with several organisations on the possibility of such a project. African lawyers’ participation at this stage would be welcomed.

 

We are aware that the above programme, or even any part of it, would require considerable resources, financial and otherwise. One of the issues that needs to be considered urgently, and certainly at the suggested Conference, is the funding of the programmes and institutions we hope will be launched. Should a sound programme be developed, we expect that the lawyers of the wealthy countries will be able to find the money necessary. After all, with the global spread of lawyers from the USA and Europe, they have good reason to spend some of their profits seeking to ensure that they and their colleagues will be safe when working abroad.

 

Conclusion

We have abstained from a critical analysis of the fundamental causes of killings and other attacks on lawyers in Africa. That is a task for those who are working in the countries of that continent. Each country’s specific history, economic profile, cultural traditions, governmental institutions and policies, along with other factors, will have to be addressed in order to explain why the lawyers are being attacked and why at this juncture.

We regret we cannot be with you at the PALU Conference, but we stand in solidarity with you in your endeavours.

We wish you good luck in developing successful strategies for the defence of your professional colleagues in the future.

 

FOR MORE INFORMATION :

International Association of People’s Lawyers (IAPL)

Monitoring Committee on Attacks on Lawyers blog :  https://defendlawyers.wordpress.com/

Blog email : jsrussell301254@gmail.com

Facebook : IAPL – International Association of People’s Lawyers

Website : http://iapl.net/

 

Avvocati minacciati / Endangered Lawyers

Website : http://www.endangeredlawyers.org/

Facebook : Avvocati minacciati / endangered Lawyers

Twitter : https://twitter.com/EndangeredL

 

International Observatory of Lawyers in Danger (OIAD)

Website: http://cnb.avocat.fr

Email : sedillot.avocat@gmail.com

 

European Bar Human Rights Institute (IDHAE)

Website : http://www.idhae.org/

Facebook : IDHAE

 

Day of the Endangered Lawyer Foundation

Website: http://dayoftheendangeredlawyer.eu/

 

Avocats Européens Démocrates/European Democratic Lawyers (AED/EDL)

Website: www.aeud.org

Facebook: https://www.facebook.com/aed.edl1987/

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Le glas de la démocratie ne cesse de sonner en Turquie

COMMUNIQUE CONJOINT MEDEL – AED-EDL

Le glas de la démocratie ne cesse de sonner en Turquie et le référendum constitutionnel tendant à donner les pleins pouvoirs à Recep Tayyip Edogan le fera résonner une nouvelle fois.

La fin de l’état de droit démocratique en TURQUIE

Tout se passe dans un contexte de répression arbitraire allant crescendo depuis le coup d’état raté du 15 juillet pour atteindre une ampleur considérable : près de 45 000 personnes ont été arrêtées (dont 3800 magistrats, 300 avocats, 140 journalistes, des élus, notamment 12 députés, des universitaires…), plus de 150 000 ont été limogées dont un quart des magistrats en poste à la mi-juillet. Ces chiffres -pouvant varier selon les sources mais restant toujours dans le même ordre de grandeur- traduisent une volonté de faire régner la peur bien au-delà de la sphère « complotiste ».

Dire le droit, rendre la justice, défendre un accusé, écrire un article, couvrir un évènement, enseigner … cela n’est plus possible sauf à se soumettre aux exigences du pouvoir.

La liberté d’expression, la liberté académique, l’indépendance et l’impartialité de la justice, le droit à une défense libre, la liberté d’association et de syndicalisation, autant de principes démocratiques qui n’ont plus de place dans le régime turc. La liste des violations des principes démocratiques est sans fin. Sans oublier le rétablissement de la peine de mort, annoncé « au nom de la volonté du peuple » et retentissant comme un énième acte de défi envers l’Europe et ses valeurs.

Il n’y a plus de justice en TURQUIE

Après l’échec du putsch, la démocratie n’a pas triomphé même si le régime politique civil a été sauvé. Et l’épicentre de ce séisme démocratique est la détérioration de la justice et la mise à mal, qui n’en finit plus, de l’Etat de droit.

Des juges menacés en permanence de destitution et d’arrestation ne peuvent juger de façon indépendante et impartiale. Sans compter la quasi annihilation de la défense par des dispositifs procéduraux d’exception (entretien limité et enregistré avec l’avocat, accès au dossier entravé par « l’ordonnance de confidentialité »…) ou par l’intimidation répressive.

En outre, l’instauration de l’impunité d’Etat crée un climat propice à des abus de pouvoir à large échelle. Les ONG Human Rights Watch, Amnesty, l’ONU …tous font état de tortures et de mauvais traitements. Or, dans les décrets-lois pris en application de l’état d’urgence, désormais en place depuis plus de 8 mois, a été insérée une disposition accordant l’immunité aux forces de police pour les crimes commis pendant cette période trouble.

En pleine tempête politique : un référendum constitutionnel pour donner les pleins pouvoirs au président

Dans un tel contexte d’état d’exception permanent, de répression arbitraire et d’écrasement des libertés fondamentales, on ne peut imaginer une consultation électorale sereine sur un texte constitutionnel censé organiser la vie publique des prochaines générations et sceller le sort de la Turquie pour les années à venir.

Tout Etat a le droit de choisir son propre système politique, que ce soit présidentiel ou parlementaire, ou mixte. Ce droit n’est cependant pas inconditionnel : les principes de séparation des pouvoirs et de primauté du droit doivent être respectés et pour cela des contre-pouvoirs doivent être intégrés dans le système politique. Alors que le manque d’indépendance de la justice en Turquie est depuis longtemps préoccupant, les modifications proposées ne feraient qu’affaiblir le rôle de la justice. La mainmise du pouvoir exécutif sur le fonctionnement de la justice serait accentuée, notamment, grâce à un contrôle des décisions de nomination, mutation, discipline et révocation des magistrats via le Conseil des juges et procureurs dont les treize membres seraient nommés directement ou indirectement par le président. Il en serait de même pour les 15 membres de la Cour constitutionnelle.

Et bien d’autres dispositions sont considérées comme dangereuses par la commission de Venise dans un avis récent [-29-CDL-AD (2017) 005] qui souligne la dégénérescence démocratique du système proposé s’orientant clairement vers un régime autoritaire et personnel.

L’Europe, empêtrée dans la gestion des flux migratoires, peine à agir efficacement pour soutenir les mouvements des démocrates en Turquie et la Cour Européenne des droits de l’homme déçoit, pour le moment, la confiance mise par ceux-ci en cette justice des droits de l’homme.

Nous ne devons pas rester silencieux face à ce qui se passe en Turquie et Nous MEDEL et AED continuerons à nous mobiliser aux côtés des démocrates turcs en faveur d’un avenir serein de leur pays dans la plénitude d’une démocratie laissant toute sa place à une justice indépendante et une défense libre.

PARIS le 25 April 2017

 

 

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CALL ON CHINA TO ENSURE THE RIGHT TO A FAIR TRIAL

A Joint Statement by Legal Professional Groups & Human Rights NGOs on the forthcoming trials of the cases of the 709 Crackdown  

 

To:

   All Press and Media (for immediate release)

 

From:   China Human Rights Lawyers Concern Group (CHRLCG)

Taiwan Support China Human Rights Lawyers Network (TCLN)

 

Subject:   A Joint Statement To the Chinese Government Calling on Fair Trial

 

Date: 23/03/2017

 

Enquiries/ Interview:  Kit Chan, Executive Director, CHRLCG (+852 2388 1377) Chou Ching-Chang, General Secretary, TCLN (+886 0912 561 284)

(23 March 2017 – Hong Kong/ Taiwan) Since 9 July 2015, the Chinese government has questioned, summoned and/or detained over 300 human rights lawyers, law firm staff and human rights defenders in a manoeuvre now commonly known as the “709 Crackdown”. Some of these individuals were subsequently indicted for their “crimes”. In early August 2016, four individuals – human rights lawyer Zhou Shifeng and defenders Hu Shigen, Gou Hongguo and Zhai Yanmin – were convicted and sentenced in a deeply flawed trial process that breached both domestic and international laws. [1]

Lawyers Li Heping, Xie Yang and Wang Quanzhang as well as legal activist Wu Gan have been indicted following the Crackdown. It has remained a concern that no trial arrangements have thus far been made for the cases. To caution against repeating the rights violations that took place in the August 2016 hearings, we, the undersigned, solemnly call on the Chinese government to abide by its laws and Constitution as well as international human rights standards by ensuring that respective judicial processes, when take place, will be conducted in full compliance with the basic principles of due process, including the right to a fair trial. Specifically, we are concerned about violations related to independent and impartial courts; the presumption of innocence; the right to counsel; and an open trial. We also express our grave and continued concern about the status of lawyer Jiang Tianyong, who has been held in secret detention since 21 November 2016. We also express our grave and continued concern about the status of lawyer Jiang Tianyong, who has been held in secret detention since 21 November 2016.[2]

Case Background

Lawyers Li Heping and Wang Quanzhang were taken by police on 10 July 2015 from different locations in Beijing; they were charged with “subverting state power” on 5 December 2016 and 14 February 2017, respectively. However, their families have thus far not been provided with any formal documents on their indictment. For the past 20 months, lawyers Li and Wang have been held incommunicado. However, their family members have been pressured by the police to make videos to persuade the lawyers to plead guilty.

The Chinese authorities’ decision not to respond to credible allegations regarding the torture suffered by the two lawyers, which came to light in January 2017, is both deeply regrettable and deeply irresponsible.

Lawyer Xie Yang was captured in Huaihua, Hunan, on 11 July 2015, and was indicted on 16 December 2016 for the alleged crimes of “inciting subversion of state power” and “disruption of court order”. Xie was not allowed to meet the defence counsels appointed by his family until the end of November 2016. As relayed by his defence counsels after meeting him, Xie suffered long-term sleep and food deprivation during his detention. He was also reported to have been physically assaulted and suffered inhuman treatment. [3] Xie’s lawyers have been barred from meeting him since testimonies of his alleged torture was publicized in January 2017. Wu Gan, activist and staff member of the Fengrui Law Firm, is also awaiting trial for allegedly “subverting state power”. Wu has also detailed, through conversations with his lawyers, the torture experienced during his detention.

Our Calls

Due process, including the right to a fair trial, is the bedrock of the rule of law. The right to fair trial is an essential component of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) signed by China in 1998. It is stipulated not only in the Constitution of the People’s Republic of China (the PRC Constitution), but also in the country’s Criminal Procedure Law (CPL). As a right stipulated by both domestic and international laws, the protection of the right to fair trial without undue delay is a legal obligation that the Chinese government must uphold.

We remind the government that any further trespass of the rule of law and the basic human rights of individuals will result in perpetuating the country’s reputation for, and image of, injustice.

In this light, we urge the Chinese government and the People’s Court in charge of the cases (the Court) in particular, to ensure that the following minimum requirements are met in the forthcoming trials aforesaid:

  1. Independent and Impartial Court [4]

While the UDHR stresses “an independent and impartial tribunal”, the PRC Constitution has gone further to stipulate that “(t)he people’s courts exercise judicial power independently, in accordance with the provisions of law, and not subject to interference by any administrative organ, public organization or individual.” The necessity for courts to maintain independence and impartiality is highlighted also in the ICCPR and in the domestic CPL.

We urge the Chinese government not to intervene or interfere with the Court in its handling of the cases. We also call on the Court and the presiding judges to adhere to all principles of due process, including fair trial and all other rights and principles set forth in the UDHR, the ICCPR, the PRC Constitution, the CPL, and including the rights identified herein.

  1. Presumption of Innocence [5]

Presumption of innocence is the starting point of equality before the law. Accordingly, defendants to be tried should not be treated in a manner that presumes guilt until proven otherwise.

We hence condemn the authorities’ efforts to enforce self-incrimination via state media and to attempt to coerce family members to persuade the accused lawyers to plead guilty. We strongly condemn the use of torture and inhuman treatments to extract confession.

We urge the Court to investigate the complaints of torture and the unlawful practices used to extract confessions and self-incrimination so as to ensure that any confessions are properly and legally admissible. We similarly urge authorities to undertake prompt, independent and effective investigations into such allegations so that all perpetrators are held legally accountable. We call on the Court to act in accordance with the law, and to exclude all illegal evidence, including that obtained via means of the above. [6]

  1. Right to Counsel [7]

The right to counsel is a constitutionally protected right in China. We, however, remain greatly disturbed by the four 709 Crackdown trials held in early August 2016, in which none of the accused was defended by counsel of their or their family’s free choosing.

We are also gravely concerned that lawyers Li Heping and Wang Quanzhang have thus far not been able to meet the lawyers appointed by their families. While the CPL permits derogation of rights to meet with counsel during investigation of state security-related crimes, we are of the view that the restriction should no longer apply at a stage when investigation is completed and both lawyers are now indicted and awaiting trials.

We hence urge the Chinese authorities to immediately arrange for lawyers Li and Wang to meet the counsels appointed by their families. In case where the detained lawyers intend to dismiss their counsels, as the police have once claimed, we maintain that article 8 of the Provisions of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and Other Departments on Legally Protecting Lawyers’ Practicing Rights (2015) should be observed to allow the defence counsels to meet their clients and affirm their intention in person.

Along these lines, we call on the Chinese authorities to ensure that the accused individuals will be provided with adequate opportunities, time and facilities to consult their counsels of choosing in full confidentiality. [8]

We also call on the Court to ensure that the prosecutors and defence counsels will be treated equally and fairly during the trials and that the defendants will have all the guarantees necessary for their respective defence.

  1. Open Trial [9]

The PRC Constitution stipulates that court hearings should be open. Accordingly, all trials, unless implicating state secrets, protection of minors or matters of privacy, should be open to the public.

We take note of the four trials held in August 2016. We deem it regrettable that dates and information about the trials was released either on the eve of the trials or on the day they were to take place. It also remains a deep concern of ours that the courtrooms for those trials were attended by authority-invited media and that none of the family members or defence counsels appointed by them was allowed to attend the hearings.

Referring to the CPL and the PRC Court Rules of the People’s Courts (the Court Rules), [10] we urge the Court to abide by its judicial obligations, and ensure that the date, time and venue of the trials be duly announced in accordance with the law; that next-of-kin to the defendants shall be given priority to attend the court hearings; and that all media and members of the public have equal access to the hearings.

We also strongly caution against any attempt to hold a secret trial. The abusive use of the broad and imprecise definition of state secrecy against rights defenders in China has long and often been criticized both in and out of the country.

We call on the Court to take note of the Johannesburg Principles, and ensure (1), that no restriction to the right to open trial should be allowed unless and until evidence is legally sufficient to prove actual harm to a legitimate national security interest; and (2), that restriction of access to the trials should only be made “to the extent strictly necessary for the purposes of considering evidence that has been classified as a secret”. [11]

We, the undersigned, will continue to monitor the status of the human rights lawyers and defenders implicated in the 709 Crackdown, including the protection of their basic human rights.

Initiators

China Human Rights Lawyers Concern Group (CHRLCG)

Taiwan Support China Human Rights Lawyers Network (TCLN)

 

Co-signatories

  • Legal Professionals

Bar Human Rights Committee of England and Wales

Committee to Support Chinese Lawyers (CSCL)

Council of Bars and Law Societies of Europe (CCBE)

European Democratic Lawyers (AED)

International Association of People’s Lawyers (IAPL)

International Commission of Jurists (ICJ)

Lawyers for Lawyers (L4L)

L’Institut des droits de l’homme des avocats européens (IDHAE)

L’Observatoire international des avocats en danger (OIAD)

Union Internationale des Avocats (UIA)

Boehringer, Gill, Honorary Associate of School of Law, Macquarie University, Australia

Italianer, Joost, Dutch lawyer, part-time judge, member of the Dutch Disciplinary Court of Appeals for lawyers

MNA Rehan & Partners, Member of Islamabad Bar Association and Islamabad High Court Bar Association

Pils, Eva, Reader in Transnational Law Dickson Poon School of Law, King’s College London

Russell, Stuart, Co-director of International Association of People’s Lawyers Monitoring Committee

  • Human Rights Organisations

Christian Solidarity Worldwide (CSW)

CIVICUS: World Alliance for Citizen Participation (CIVICUS)

Human Rights in China (HRIC)

Human Rights Now, Japan (HRN)

Human Rights Watch (HRW)

International Service for Human Rights (ISHR)

Justice and Peace Commission of the Hong Kong Catholic Diocese

Taiwan Association for China Human Rights (TACHR)

Taiwan Association for Human Rights (TAHR)

Taiwan, Judicial Reform Foundation (JRF)

Tibet Justice Center

 

 

 

[1] See details in a report prepared by the China Human Rights Lawyers Concern Group on 7 August 2016   https://goo.gl/WTvO5l

[2] For more details http://www.chrlawyers.hk/sites/default/files/Day%20of%20the%20Endangered%20lawyer%20English.pdf

http://www.chrlawyers.hk/en/%E6%96%87%E7%AB%A0%E9%A1%9E%E5%9E%8B/%E8%81%B2%E6%98%8E

[3] Transcription of interviews with lawyer Xie Yang by his counsel Chen Jiangang (1-4)   https://chinachange.org/2017/01/19/transcript-of-interviews-with-lawyer-xie-yang-1/

[4] UDHR (art. 10), ICCPR (art. 14.1), the PRC Constitution (art.126) and CPL (arts. 3 and 5)

[5] UDHR (art. 11), ICCPR (art. 14.2), CPL (art. 12)

[6] CPL (arts. 18, 50 and 54)

[7] The PRC Constitution (art. 125), CPL (art. 11), ICCPR (art. 14.3d), the Basic Principles (art. 1, 19, 27)

[8] UDHR (art. 11), ICCPR (art. 14.3b) and the Basic Principles (art. 8)

[9] The PRC Constitution (art. 125), UDHR (art. 10), ICCPR (art. 14.1)

[10] CPL (art. 182), the Court Rules (art. 9)

[11] Joshua D. Rosenzweig, “Public Access and the Right to a Fair Trial in China”, the Dui Hua Foundation, http://duihua.org/wp/?page_id=2542 , visited on 3 March 2017

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Report on the International lawyer conference in Ankara

Report by Hans Gaasbeek about the international lawyer conference held in Ankara (Turkey) between the 13th and 15thof January, 2017

The ‘International Conference On Law, State of Emergency And Judicial System in Turkey’ was co-organized by different European lawyer organizations like: the AED (European Democratic Lawyers), the ELDH (European Association of Lawyers for Democracy and World Human Rights) and the Foundation Day of the Endangered Lawyer.

The conference was also co-organized by the European organization of judges MEDEL (Magistrats Européens pour la Démocratie et les Libertés). A great number of bar associations of cities in all corners of Turkey was co-organizer and had a big impact on the programme and organization of the conference.

The conference was held in Hotel Plaza in Ankara, where a lot of international colleagues were staying for the weekend.

This was a pleasant hotel with a very well-equipped conference room. There was no special security, except for one unarmed person at the entrance of the hotel. There was a huge interest from Turkish lawyers in the conference. They were coming from over 30 Turkish cities. There were 300/400 lawyers and judges taking part. 6 panels were organized with different speakers, who highlighted their specific subject. The subject of the speeches was the actual situation of the disappearing state of law in Turkey.

It was very different from other lawyer conferences. In this conference there was a lot of attention for the other professionals who are also endangered. There was a journalist panel, a judges panel, a panel of members of parliament. The panels of the journalists, judges and members of parliament and also the international panel and the Turkish lawyer panels have painted a very accurate picture of the actual situation and how the different professions are threatened and have to work in an atmosphere of fear and intimidation.

In the international panel I informed the public about the way the Dutch social lawyers association VSAN works and about the way of working of the Foundation Day of the Endangered Lawyer. I also invited the lawyers of the 30 Turkish cities to manifest themselves on the Day of the Endangered Lawyer for the general position of the lawyers and the attacks on the Rule of Law. I explained how the actual difficult situation in Turkey is seen by the politicians and press in Holland. During the congress I was in contact with a journalist of the Dutch newspaper Algemeen Dagblad a couple of times; he published a small interview with me on the internet (a copy of this interview is attached to this report). I was the only person from the Netherlands present on this international conference.

Because of the fear for tensions and possible problems for the organizors of the conference, I had informed and invited the Dutch embassy to take part in the conference. After a few contacts via e-mail we were able to establish a good working relationship with the second secretary of the embassy, who was present during the afternoon programme on the second day of the conference. I introduced him to a lot of judges and lawyers who represented the different Turkish bar associations and the international organizations. He was the only diplomatic visitor, which gave the conference an extra dimension, also from the point of view of safety.

The former German judge Ingrid Heinlein was also present at the conference. We had already been in touch with her in 2016, when the Day of the Endangered Lawyer focused on the difficult situation of the lawyers and judges in Honduras. This judge had taken part in a fact-finding human rights mission in Honduras two years ago. She has already been a member of the international European judges organization MEDEL for more than 20 years, and is also a member of the German ‘judges for judges’-association. I also contacted the Dutch foundation Rechters voor Rechters (Judges for Judges) about the Ankara conference. The president of this foundation had also thought about taking part in this conference.

During the conference, there were no real problems with the Turkish police or justice authorities, apart from one incident: the Italian lawyer Barbara Spinelli – who was going to speak at the conference – was stopped at the airport in Istanbul. They arrested her and made her spend one night imprisoned, before sending her back to Italy the next day. She was hindered in taking part in the conference, while she was one of the speakers of the international panel.

During the conference a lot of information was given to the lawyers and judges present. After the failed coup attempt 70.000/80.000 people were put in prison. Among them were 3007 judges and prosecutors and about 300 lawyers.

Detaining so many judges and lawyers is a very, very intimidating action for these professions and, in my view, it means the abrupt end of the Rule of Law in Turkey. We cannot possibly speak of an independent judicial system anymore, in which no political or other state power influences decisions. At the moment the government exercises extreme power over the judiciary. This is an unacceptable situation for a democracy.

Those present in the conference were told that many radio stations and television stations and newspapers were closed by the government. The speakers in the panels were under the impression that after the coup, many people were arrested arbitrarily and for not very logical reasons. Judges, lawyers and prosecutors were arrested randomly. Furthermore, at the conference it was said that the Turkish government didn’t do any serious investigation on the real perpetrators after the coup. It was even said that the investigation had already been closed or would close very soon.

At one lawyers office 7 lawyers were arrested. One of the people still representing this office gave me a small file with a request for help. The last remaining lawyer at this office – who had not yet been arrested – had to offer legal assistance to his own colleagues.

After being arrested, judges and lawyers are being kept in detention, according to their Turkish colleagues, in opposition to the rules of the European Convention on Human Rights and against the standards of the Turkish detention laws. Arrested lawyers and judges are not allowed to see a lawyer, and if they are, it is – in the best case – only half an hour per week. All contacts with their lawyer and with third parties are being recorded and monitored by police officers in prison. Official papers are being copied by the prison authorities. Besides that, lawyers are directly identified with their clients who are often accused of being part of the Gülen movement.

I was impressed by the very strong solidarity between all the lawyers coming from more than 30 Turkish cities from all over the country. The Turkish lawyers were very happy to have the support of the co-organizing European lawyer organizations and the organizations of judges. All the international guests were treated with big hospitality and personal support.

Among the many arrested lawyers and judges there are also many presidents from local bar associations and even from courts. The Turkish media who are pro-Erdogan and who are pro-the Turkish government are often accusing the arrested jurists of being terrorists, which makes it easier for the government to treat the arrested more severely and facilitates even more restrictions during their detention.

Since July 2016, the Turkish government has lifted c.q. suspended the working of the ECHR, by declaring a state of emergency and prolonging this afterwards. In Turkey groups and individual persons are often being accused of being a member of a criminal organization. Furthermore there have been many house and office searches in the homes and working places of arrested lawyers and judges. There have been many complaints about the treatment of people in detention. Many detained lawyers and judges complain about the fact that they were harmed psychologically and physically because the lights in their cells were on the entire night, so they couldn’t sleep. The detained lawyers and judges are often humiliated; they complained of being exposed in handcuffs in court houses.

There seems to be a situation of growing lawlessness, which is not only increasing for the arrested judges and lawyers, but also for those who have not yet been arrested.

We have been informed that the prosecution of judges and lawyers in Turkey is done with many faults and in a very careless manner. Many people are accused, without any real evidence or proof. Also, most of the times the actual exact accusation is very unclear. Often, it appears that the accusations are quite bizarre like undermining the state, doing terrorist acts or being a member of a criminal organization. Especially since the Turkish government has forbidden many, many organizations, also two well-known lawyer organizations, OHD and CHD, people can now be arrested quickly and be seen as an offender when they are a member of such forbidden lawyer organizations or active in such organizations.

The Turkish colleagues took very good care of their foreign colleagues. We were picked up and brought back to the airport and treated with a lot of hospitality.

From my contacts with many Turkish colleagues at the conference, it appears to me that many people are exhausted because of the continuous pressing political situation. It was clear that the colleagues are suffering because of this actual political situation. In Ankara, there was a lot of police on the street and it was no longer a town with atmosphere.

At the diner in the building from the bar of Ankara, the situation was quite different. After a very nice dinner, we heard people singing Turkish songs and dancing. After saying goodbye to our colleagues we took the bus to the airport and left with mixed feelings. We were leaving while they had to continue living in this difficult situation.

Hans Gaasbeek

International coordinator of the Day of the Endangered Lawyer, president of the Foundation Day of the Endangered Lawyer and vice president of the Dutch League of Human Rights

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« Le système judiciaire sous l’état d’urgence, en Turquie »

Mes Chers confrères,

Comme vous le savez, je me suis rendue à ANKARA les 13, 14 et 15 janvier dernier, pour participer à une conférence internationale portant sur conférence organisée par 22 Barreaux turcs (entre autres Ankara, Adana, Antalaya et Diyarbakir), l’AED, la Fondation de la  Journée de l’Avocat Menacé, l’ELDH et le MEDEL avec le soutien de quelques organisations internationales européennes et Barreaux.

J’étais en compagnie de Robert SABATA, secrétaire général de l’AED, de Jean-Philippe DE WIND, membre du SAD et de Hans GAASBEEK du VSAN et de la Fondation de la Journée de l’Avocat Menacé.

A titre d’information, je joins à la présente le texte de présentation de la conférence, la liste de participants, le communiqué de presse et les différents thèmes qui ont été abordés.

C’est en qualité de Présidente de l’AED que j’ai été amenée à intervenir dans ce colloque, tant en ouverture de séance, que sur deux tables rondes, ainsi que lors de la conférence de presse qui a été organisée par nos confrères turcs.

Il s’agissait pour nous, participants étrangers, de marquer notre solidarité avec les confrères, magistrats, journalistes et députés qui, depuis que l’état d’urgence a été déclaré en juillet dernier, vivent des moments particulièrement difficiles, subissant des arrestations arbitraires, des séquestrations, des destitutions, des tortures, pour des faits de terrorisme qui n’ont absolument rien à voir avec la réalité de leurs activités.

Entre 200 et 300 personnes étaient présentes pendant ces trois jours de travaux et je ne peux que louer le courage des ces différents participants dont de nombreux bâtonniers, confrères, juges, parquetiers, journalistes, enseignants et parlementaires, qui du simple fait de leur présence lors de cette rencontre se sont exposés durablement.

Je dois signaler que l’une de nos consœurs italiennes, Barbara SPINELLI, qui devait participer à la conférence pour le compte de l’ ELDH, a été empêchée d’entrer sur le territoire turc, retenue à la frontière à Istanbul et expulsée vers l’Italie, en raison du fait qu’elle a, par le passé, assuré la défense d’accusés kurdes.

Les témoignages que nous avons pu entendre sont accablants quant à l’irrespect total de l’état de droit en Turquie. Des confrères sont arrêtés pour avoir défendu leur clients ; des magistrats sont arrêtés ou destitués pour avoir tenté de dire le droit ; des journalistes sont arrêtés ou licenciés pour avoir été présents sur le lieu d’évènements considérés comme contraires au régime ; des parlementaires sont insultés et brutalisés dans l’hémicycle…

Le Président Erdogan a maintenant pris la décision de changer la constitution turque pour installer un régime présidentiel à la place du régime parlementaire. Pour cela il fait voter les modifications par un parlement totalement réduit à néant puisque l’ensemble des députés susceptibles de s’opposer à son projet ont été, soit incarcérés, soit destitués. Il faut faire une mention spéciale pour les MP du HPD qui poursuivent la mise en place d’un processus de paix au Kurdistan. La légalité démocratique et l’État de Droit sont sur le point de disparaître en Turquie.

Cette conférence était d’une grande importance pour les juristes turcs attachés aux valeurs de la démocratie, et la présence d’organisations étrangères leur a permis de se sentir moins isolés, sans pour autant, soyons en conscients, leur accorder une véritable protection pour l’avenir.

Il nous faut donc être particulièrement vigilants pour eux.

Pour finir, je souhaite remercier les confrères turcs pour la qualité de l’organisation de cette conférence.

En tout cas, ils nous ont donné une belle leçon de courage.

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Day of the Endangered Lawyer

7th Day Of the Endangered Lawyer with the focus on the persecuted and harassed Chinese lawyers on the 24th of January 2017 in appr. 30 cities*

 

 

Every January 24th lawyers around the world support endangered lawyers in other countries by holding protests in front of the Embassies and Consulates of a designated country, holding meetings, press conferences and other activities. This time the designated country will be China, which unleashed a massive crackdown against lawyers in July 2015.

Before these mass arrests, many lawyers were in the previous years already harassed or arrested because of taking up cases with Human Rights implications.

On this Day Of The Endangered Lawyer in as many cities is possible a centralized petition will be handed over at the same time to Ambassadors, Consuls and other official legal institutions.

In this petition we ask the attention of the Chinese government for the problematic situation of the endangered Chinese lawyers. We will also put pressure on the Chinese Government to take care that the situation of the lawyers will be ameliorated as soon as possible. And that the persecution and harassment of these lawyers will be stopped.

The aim of the Day is to try to get a dialogue with the Ambassadors or other representatives of thePeoples Republic of China.

In other cities there will be organized press conferences, colloquia and other manifestations about this subject.

JCCP treaty and Havana Principles of the UN

China has signed but not ratified beside other International Treaties the following Treaty:
● International Covenant on Civil and Political Rights (signed in 1998)

China has also supported the un-Basic Principles on the Role of Lawyers adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana, Cuba, in 1990, which inter alia, obliges the supporting States to protect lawyers who are harassed and persecuted or even severe.

 

 

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State of Emergency and Judicial System in Turkey

We greet you as organizers of the conference entitled “State of Emergency and Judicial System in Turkey”.

This conference has historical significance, for the following reasons:.

● The conference is organized in Ankara, the capital of Turkey, in an environment dominated by the oppressive and coercive practices of the State of Emergency in Turkey.
● The conference brings together lawyers, judges and prosecutors. Together they are the foundations of judicial system. There is also a place for academics, who have crucial importance for the production of legal interpretation and knowledge; for journalists whose importance is undeniable in the distribution of information; and also for parliamentarians. All significant actors who can discuss the impacts of the State of Emergency on the judicial system in Turkey are present at this conference.
● The significance of this conference is not limited to Turkey .​ ​Today no one can claim that the political and economic problems of any location are unique to that location. Whether these problems concern the State of Emergency, martial law, anti-terror practices, deterioration of the judicial system, democracy, or access to justice. Regardless of their severity and location, they are all our shared problems.​ With ​this perspective, this conference is a conference where international experiences can be shared, discussed and put together in proposals for a solution.
● This conference is not just a transfer of information. This conference is a tool for analysis, diagnosis and plans for the future.

It is precisely for these reasons that this conference has a historical significance. The conference is held at a time when thousands of Turkish judges and prosecutors are in custody, and thousands who are still at liberty, are fettered by the fear of imprisonment , and in fact live in an environment where they have lost their independence. The slightest criticism is persecuted through the apparatuses of oppression and coercion.

The location and the date of the conference are not a coincidence, but a product of conscious choice. We hope that this conference is going to become a means of struggle for the peoples of Turkey and the world.

Turkey has already ceased to be a state governed by the rule of law. In a country where judges are deprived of the power of independent decision-making and where lawyers are not allowed practise their profession, it is not possible to talk about the principle of the rule of law nor about a real judicial system. This is because the judicial system is not the sum of procedural rules. The only valid diagnosis for a state of affairs in which the right to access to justice is restricted, or the right to a fair trial is blocked, is that lawlessness and arbitrary rule have replaced the rule of law.

An examination of the current Constitution of the Republic of Turkey and the State of Emergency Law shows us the following;

● The scope of the State of Emergency and the way it was declared are unlawful in themselves.

  •  The Decree Laws issued behind the curtain of the State of Emergency are unlawful.
  •   The dismissals and the privatizations of and the bans of the associations, newspapers and the TVs through the Decree Laws are unlawful.

● Any kind of parliamentary activity and all kinds of interventions carried out in the context of the Constitutional amendment during the State of Emergency period are unlawful.

In essence, there has not been a single step that can be described as lawful since the declaration of the State of Emergency in Turkey. On the contrary, under the cover of anti-terrorism, judges, lawyers, journalists, academics, and anyone who raises a voice in the face of the presidential regime under construction in Turkey today, are arrested, and subjected to inhumane treatment during detention . Today, an issue such as a constitutional amendment, which should require a the agreement of the whole of society , has been forced onto the agenda under the conditions of the State of Emergency, and the country is being dragged into a state of irreversible regime change. .

We, as lawyers from many countries of the world, declare that we are concerned about this dangerous course. Our commitment to the rule of law tells us that this trend is not unique to Turkey, and we want to share our experiences as well. War, martial law, dictatorship, State of Emergency are all legal guises of oppression and coercion. In short, all these can be described as the dark side of the moon, which was always there even before they were declared.

Today and here, we are bringing together the experiences of those who look at the dark side of the moon. But more importantly, we are building the knowledge of hope. Law is an area of ​​struggle for rights and freedoms, not just for its subjects, but for all societies. With this consciousness, we inform the public of the whole world that we will not remain silent in the face of what is going on in Turkey today and that we will make our stand against this darkness!

In Turkish newspapers:

http://www.sozcu.com.tr/2017/gundem/son-dakika-haberi/dunya-capinda-348-gazeteci-cezaevinde-bunlarin-143u-turkiyede-1625031/

http://www.dihaber.org/TUM-HABERLER/content/view/6404

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The judicial system under the state of emergency in Turkey

The Judicial System under the State of Emergency in Turkey is an international conference, which will be held on the 14th and 15th of January 2017 in Ankara, at the Ankara Plaza Hotel, Kavaklidere Bestekar Sk. No: 5 06680 Çankaya.

The conference is organized by the:

• European Association of Lawyers for Democracy and World Human Rights, www.eldh.eu
• European Democratic Lawyers, https://www.aeud.org/
• International Association of Democratic Lawyers, http://www.iadllaw.org/newsite/
• The Day of the Endangered Lawyers Foundation, http://dayoftheendangeredlawyer.eu
• Together with the 19 Bar Associtions of the following Turkish cities: Ankara, Adana, Adiyaman, Agn, Antalya, Batman, Bingöl, Bitlis, Diyarbakir, Hakkari, Igdir, Kars-Ardahan, Mardin, Mus, Siirt, Sanliurfa, Sirnak, Tunceli, Van (some other Bar Associations in Turkey will suport the conference.)
• and judges’ Associations: Democratic Judges, The Syndicat of Judges
• The platform of Lawyers against State of Emergency: The platform of 11 different lawyer group

 

and has the following program

14.01.2017 – SATURDAY

Opening: Bill Bowring, The President of ELDH – Pascale Taelman – The President of EDL-AED

09.30-10.45 The rights, duties and the repression faced by Bar Associations and their members under State of Emergency

Moderator: Mengücek Gazi Çıtırık

Speakers: Ahmet Özmen – The president of Diyarbakır Bar Association, Hakan Canduran – The president of Ankara Bar Association, Polat Balkan– The president of Antalya Bar Association, Veli Küçük – The president of Adana Bar Association, Gürkan Altun – The president of Bursa Bar Association, Robert Sabata – Barcelona Bar Association

11.15 – 13.00 Under the State of Emergency: The guarantee for the independence and impartiality  of Judges

Moderator: İlhan Cihaner / Murat Aydın

Speakers: Orhan Gazi Ertekin, Leyla Tarhan Köksal, Mustafa Karadağ, Ingrid Heinlein

LUNCH (13.00 – 14.00)

14.00 – 15.45 State of Emergency and the Media

Moderator: Gökçer Tahincioğlu

Speakers: Zeynep Yüncüler, Erdem Gül, Cem Gurbetoğlu, Kenan Kırkaya

16.00 – 17.45 Being of a lawyer under the State of Emergency

Moderator: Ayşe Acinikli

Speakers: Selçuk Kozağaçlı – ÇHD, Özgür Erol – ÖHD, Thomas Schmidt – ELDH, Pascale Taelman – AED, Hans Gaasbeek – Day of the Endangered Lawyer Foundation, Jan Fermon – IADL, Barbara Spinelli – ELDH/GD

15.01.2017 -SUNDAY

09.30 – 10.45: The legislative prerogative under the state of emergency and parliamentary immunity

Moderator: Ali Haydar Hakverdi

Speakers: Meral Danış Beştaş, Şenal Sarıhan, Filiz Kerestecioğlu, İlhan Cihaner, Mithat Sancar

11.00 – 13.00: Practices of Anti-Terror, State of Emergency and State of Siege in Turkey and in the World.

Speakers: Berke Özenç, Şebnem Korur Fincancı, Cihan Aydın, Clemens Lahner – ELDH, Florian Borg – AED

 

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Basic Report about the oppression of lawyers in China

Approximately 300,000 lawyers are practising in China. Lawyers in China are closely monitored by the State for their work. Apart from direct intervention from the judicial bureaus and the lawyers association, lawyers are kept under control also by a controversial Annual Inspection system. In order to continue their practice, lawyers have to submit their lawyer’s licence to the judicial bureau, the executive branch of the judiciary, for inspection on an annual basis. They will be scrutinised for the cases they handled, especially the so-called “politically sensitive” ones, which are often with human rights and/or rule of law implications. A lawyer who fails the inspection will not be given a stamp on his or her licence. The stamp, which is an administrative measure and without legal basis, will determine if a lawyer can continue his or her practice in the following year. The authorities may also suspend the lawyer’s practice by holding the licence for a prolonged period of time, hence stopping the lawyer from practising.

 

In their daily practice, lawyers also encounter harassment and intimidation by the public security officers, a special branch of the police, and by the courts. They could be forbidden to meet their clients and/or to have access to files, often and again for the so-called politically sensitive cases. Situations of this kind may result in lawyers being criminally detained or subjected to violence if they insist that their procedural rights or due process be observed. Other measures against the rights of lawyers include forcing them and their family to constantly move home and/or forbidding them from travelling outside the country.

International treaties

China has ratified the following international human rights treaties (date of ratification):

  • Convention on the Elimination of All Forms of Discrimination against Women (1980); International Convention on the Elimination of All Forms of Racial Discrimination (1981);
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988);
  • Convention on the Rights of the Child (1992);
  • International Covenant on Economic, Social and Cultural Rights (2001);
  • Convention on the Rights of Persons with Disabilities (2008)

 

China has signed but not ratified the following treaty:

  • International Covenant on Civil and Political Rights (signed in 1998)

 

China has also supported the Basic Principles on the Role of Lawyers adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana, Cuba, in 1990, which inter alia, obliges the State to protect lawyers.

In China, the defects in the Criminal Law (CL) and the Criminal Procedure Law (CPL) have also put the rights of lawyers at risk. While the CL provides the authorities with arbitrary powers to bring criminal charges against lawyers, articles 306 and 309, for instance, the CPL can subject detained lawyers to prolonged pre-trial detention with deprivation of rights under various pretexts, articles 37 and 73, for instance. As past experiences reveal, lawyers held under this kind of situation could be subjected to torture or inhuman treatment.

Lawyer Pu Zhiqiang was sentenced on December 22, 2015 after being detained for over 19 months. He was found guilty of “inciting ethnic hatred” as well as “picking quarrels and provoking trouble”. Another lawyer recently imprisoned is Tang Jingling. He was sentenced to five years imprisonment in January 2016, 20 months after his first detention in May 2014, for “inciting subversion of state power”. Most recently, the director of the Fengrui Law Firm, which is at the centre of the 709 crackdown, was sentenced to seven years imprisonment for allegedly “subverting state power”.

 

709 Crackdown of Human Rights Lawyers and Defenders

On July 9, 2015, human rights lawyer Wang Yu and her family disappeared in the middle of the night. Thereafter, a large numbers of human rights lawyers and defenders were persecuted in a concerted manner on an unprecedented scale. The crackdown resulted in an outcry and attention from the international community including legal professionals.

So far over 300 lawyers and defenders have been targeted. They were either summoned or temporarily detained, and subsequently 24 were formally arrested. Many of these 24 were arrested after being held for six months incommunicado.

From August 2 to 5, 2016, four of the lawyers were sentenced during controversial trials. The four cases involved human rights lawyer Zhou Shifeng (director of the Beijing Fengrui Law Firm) as well as human rights defenders Hu Shigen, Zhai Yanmin and Gou Hongguo. All were charged with the crime of “subverting state power”.

According to Amnesty International 245 lawyers and activists have been targeted since July 9, 2015, when the crackdown started.

Many different lawyers organisations and human rights organisations have expressed their outrage about the mass arrests. For example, the Lawyers for Lawyers foundation, the International Association of People’s Lawyers monitoring committee on attacks on lawyers, Lawyers’ Rights Watch Canada and the Hong Kong-based China Human Rights Lawyers Concern Group. Amongst other issues, they have focused on the forced disappearances and the detention of lawyers as criminal suspects and intimidation. Many lawyers organisations, Bar associations and human rights organisations have signed joint letters to express their worries about the detention and harassment of lawyers.

The CCBE, the Council of Bars and Law Societies of Europe, has recently sent a protest letter to the Chinese government urging the Chinese government to take effective steps to drop all charges against the lawyers and to order the immediate release of the detained lawyers; it is believed that the charges against these lawyers are solely motivated by their legitimate and peaceful defence of human rights.

It is sad and shocking that the charges against the lawyers and also their legal assistants fall under security-related crimes. Most of the arrested lawyers are accused of subversion of state power or inciting subversion of state power. With the effect that their rights to due process are suspended and that they suffer extended detention periods during which they are often deprived of access to their lawyers.

Many of these arrested lawyers and there assistants have been detained incommunicado. It is outrageous that even after many months in jail they were still not able to meet their defence counsel. Incommunicado detention often makes torture and inhuman treatment possible.

Even the families of arrested lawyers were requested to persuade these lawyers to “confess their mistakes” on a film and to incriminate themselves, which is in our opinion an attack on the integrity of evidence collection during police investigations.

We refer to the report of Lawyers’ Rights Watch Canada http://www.lrwc.org and to the very detailed information in this report, as well as the open letter to the President of the People’s Republic of China of July 9, 2016, about the due process for lawyers in detention. Finally, we refer to the report on the 709 crackdown.

 

English: http://www.chrlawyers.hk/en/content/report-709-crackdown

 

Report 1/8/2016 by:

Imane Aynan

Hans Gaasbeek

International coordinators of the Day of the Endangered Lawyer

http://www.dayoftheendangeredlawyer.eu