Distr.
GENERAL

E/CN.4/1998/39
12 February 1998


Original: ENGLISH

COMMISSION ON HUMAN RIGHTS
Fifty-fourth session
Item 8 of the provisional agenda


QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO
ANY FORM OF DETENTION OR IMPRISONMENT


Report of the Special Rapporteur on the independence of
judges and lawyers, Mr. Param Cumaraswamy

CONTENTS

I. THE MANDATE

II. METHODS OF WORK

III. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Consultations
B. Missions/visits
C. Communications with Governments
D. Cooperation with intergovernmental and non-governmental organizations
E. Other United Nations procedures and bodies
F. Promotional activities

IV. ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT

V. COUNTRY SITUATIONS
A. Introduction
B. Situations in specific countries or territories

Bahrain
Bangladesh
Belarus
Bolivia
Brazil
Cambodia
Colombia
Croatia
Cuba
Egypt
France
Georgia
India
Indonesia
Iran (Islamic Republic of)
Kenya
Lebanon
Malaysia
Mexico
Nigeria
Pakistan
Papua New Guinea
Peru
Philippines
Rwanda
South Africa
Spain
Switzerland
Tunisia
Turkey
Venezuela
Yugoslavia

VI. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
B. Recommendations

I. THE MANDATE

Introduction
Terms of reference
(a) To inquire into any substantial allegations transmitted to him (...) and report his or her conclusions thereon;

(b) To identify and record not only attacks on the independence of the judiciary, lawyers and court officials but also progress achieved in protecting and enhancing their independence, and make recommendations including the provision of advisory services or technical assistance when they are requested by the State concerned;

(c) To study, for the purpose of making proposals, important and topical questions of principle with a view to protecting and enhancing the independence of the judiciary and lawyers.
(a) Resolution 1997/16 on the rights of persons belonging to national or ethnic, religious and linguistic minorities, in which the Commission called upon all special representatives, special rapporteurs and working groups of the Commission to continue to give attention, within their respective mandates, to situations involving minorities;

(b) Resolution 1997/27 on the promotion of the right to freedom of opinion and expression, in which the Commission invited once again the working groups, representatives and special rapporteurs of the Commission on Human Rights to pay attention, within the framework of their mandates, to the situation of persons detained, subjected to violence, ill-treated or discriminated against for having exercised the right to freedom of opinion and expression as affirmed in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and other relevant human rights instruments; and invited the working groups, representatives and special rapporteurs of the Commission, within their mandates, to take note of any deterioration in the right to freedom of expression;

(c) Resolution 1997/28 on hostage-taking, in which the Commission urged all thematic special rapporteurs and working groups to address, as appropriate, the consequences of hostage-taking in their forthcoming reports to the Commission;

(d) Resolution 1997/37 on human rights and thematic procedures, in which the Commission invited the thematic special rapporteurs and working groups to: (i) make recommendations for the avoidance of human rights violations; (ii) follow closely the progress made by Governments in their investigations carried out within their respective mandates; (iii) continue close cooperation with relevant treaty bodies and country rapporteurs; (iv) include in their reports information provided by Governments on follow-up action, as well as their own observations thereon, including in regard to both problems and improvements, as appropriate; (v) include regularly in their reports gender-disaggregated data and to address the characteristics and practice of human rights violations under their mandates that are specifically or primarily directed against women, or to which women are particularly vulnerable, in order to ensure the effective protection of their human rights; requested the thematic special rapporteurs and working groups to include in their reports comments on problems of responsiveness and the result of analyses, as appropriate, in order to carry out their mandates even more effectively, and to include also in their reports suggestions as to areas where Governments might request relevant assistance through the programme of advisory services administered by the Office of the High Commissioner for Human Rights; and suggested that the special rapporteurs, representatives, experts and chairpersons of working groups of the special procedures of the Commission on Human Rights consider how those mechanisms could make available information on the particular situation of individuals working for the promotion and protection of all human rights and fundamental freedoms and how their protection could be enhanced, taking into account the ongoing deliberations of the relevant working group of the Commission;

(e) Resolution 1997/42 on human rights and terrorism, in which the Commission urged all thematic special rapporteurs and working groups to address, as appropriate, the consequences of the acts, methods and practices of terrorist groups, in their forthcoming reports to the Commission;

(f) Resolution 1997/43 on integrating human rights of women throughout the United Nations system, in which the Commission encouraged the strengthening of cooperation and coordination among all human rights treaty bodies, special rapporteurs, special procedures and other human rights mechanisms of the Commission and the Sub-Commission on Prevention of Discrimination and Protection of Minorities, and requested that they regularly and systematically take a gender perspective into account in the implementation of their mandates, including information and qualitative analysis in their reports on violations of the human rights of women;

(g) Resolution 1997/46 on advisory services, technical cooperation and the Voluntary Fund for Technical Cooperation in the Field of Human Rights, in which the Commission invited relevant United Nations treaty bodies, special rapporteurs and representatives, as well as working groups, to continue to include in their recommendations, whenever appropriate, proposals for specific projects to be realized under the programme of advisory services and technical cooperation in the field of human rights;

(h) Resolution 1997/62 on human rights in Cuba, in which the Commission invited the Special Rapporteur on the situation of human rights in Cuba and the existing thematic mechanisms of the Commission to cooperate fully and exchange information and findings on that situation;

(i) Resolution 1997/69 on comprehensive implementation of and follow-up to the Vienna Declaration and Programme of Action, in which the Commission called upon all special representatives, special rapporteurs, independent experts and thematic working groups of the Commission to take fully into account the recommendations contained in the Vienna Declaration and Programme of Action within their respective mandates;

(j) Resolution 1997/75 on human rights and mass exoduses, in which the Commission invited the special rapporteurs, special representatives and working groups of the Commission and the United Nations human rights treaty bodies, acting within their mandates, to seek information, where appropriate, on problems resulting in mass exoduses of populations or impeding their voluntary return home and, where appropriate, to include such information, together with recommendations thereon, in their reports, and to bring such information to the attention of the High Commissioner for Human Rights for appropriate action in fulfilment of her mandate, in consultation with the United Nations High Commissioner for Refugees;

(k) Resolution 1997/78 on the rights of the child, in which the Commission, recommending that, within their mandates, all relevant human rights mechanisms and all other relevant organs and mechanisms of the United Nations system and the supervisory bodies of the specialized agencies pay attention to particular situations in which children are in danger and where their rights are violated and that they take into account the work of the Committee on the Rights of the Child, took various decisions with respect to the situation of children in various circumstances of difficulty.[back to the contents]

II. METHODS OF WORK
III. ACTIVITIES OF THE SPECIAL RAPPORTEUR
A. Consultations
B. Missions/visits
C. Communications with Governments
D. Cooperation with intergovernmental and non-governmental organizations
E. Other United Nations procedures and bodies

1. Cooperation with special rapporteurs and working groups of the Commission on Human Rights
2. Cooperation with the Crime Prevention and Criminal Justice Division
3. Cooperation with UNDP
4. Cooperation with the Activities and Programmes Branch of the Office of the High Commissioner for Human Rights (OHCHR)
F. Promotional activities
(a) In Cambodia, from 23 to 25 June 1997, the Special Rapporteur addressed the opening of the judicial training programme organized by the Cambodian Law Training Project. He held consultations with the Minister for Justice, the local OHCHR office and other donor organizations.

(b) From 25 to 30 August 1997 the Special Rapporteur attended the fifteenth LAWASIA Conference in Manila where he delivered several addresses and participated in panel discussions with several Chief Justices of the Asian-Pacific region.[back to the contents]

IV. ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT
V. COUNTRY SITUATIONS

A. Introduction
B. Situations in specific countries or territories

Bahrain

Communication from the Government
Communication to the Government
Bangladesh

Communication from the Special Rapporteur
Communication from the Government
Observations
Belarus

Communication from the Government
Observations
Bolivia

Communication to the Government
Observations
Brazil

Communications to the Government
Observations
Cambodia
Colombia

Communications to the Government
Communications from the Government
Observations
Croatia

Communication to the Government
Communication from the Government
Cuba

Communications from the Government
Observations
Communication from the Government
Observations
France

Communication to the Government
Observations
Georgia

Communication to the Government
Communications from the Government
Observations
India

Communications to the Government
Communications from the Government
Observations
Indonesia
"I. Mochtar Pakpahan

Regarding the case of Mr. Pakahan, the Indonesian Courts have supplied the following clarifications:

A. During the trial at the Central Jakarta District Court, he was found guilty of publicly inciting the people, both verbally and in writing, to infringe the law or to defy the public authority, or to commit punishable acts sanctioned by article 160 of the Indonesian Penal Code.

B. Chronology of the legal proceedings against Mr. Pakpahan:

1. On 7 November 1994, the Central Jakarta Court of First Instance sentenced Mr. Pakpahan to three years imprisonment for violating Articles 160 and 64 (1);

2. On 16 January 1995, the Jakarta Court of Second Instance increased his sentence to four years for the same offence;

3. On 29 October 1995 the Supreme Court of appeals cleared him of all charges;

4. On 6 January 1997, following a request by the Attorney-General for a review of the case, the Supreme Court reinstated the four-year sentence with immediate effect.

C. The Attorney-General decided to submit a request for a review based on the dispositions of Articles 263 (1), 263 (2)(c) and 263 (3) of the Code of Criminal Procedure (KUHAP) as follows:

Article 263 (1):

'A defendant or his heir, are entitled to appeal to the Supreme Court against a verdict which has acquired permanent legal force, unless he has been acquitted and the charges against him have been dropped. This article is to the benefit of the defendant or his heir. It goes without saying that the defendant of his heir are not going to appeal for review if there has been an acquittal. However, this article does not expressly preclude the Attorney-General from requesting for a review after an acquittal has been pronounced.'

Article 262 (2):

'The request for a review shall be made on the basis of the following: ...

... (c) If a decision clearly shows a mistake on the part of the judge or is clearly wrong.'

Article 263 (3):

'For the same reasons as intended in section (2), a request for a review can be submitted with regard to a court's decision which has acquired permanent legal force, if in the decision an allegation which has been proved is not subject to criminal proceedings.'

This last article is clearly intended for no party other than the Attorney-General.

In this connection, the Supreme Court judge made several mistakes in his review of Mr. Pakpahan's case, as follows:

1. The panel of judges only considered the case in the context of the prevalent social transformations in Indonesia while overlooking the existing law, which should be upheld;

2. The panel of judges interpreted the law in the context of the social transformations in the country to justify the wrongdoings of the defendant and cleared him of all the legal charges against him, rather than considering the social factor as one of many dimensions of the law;

3. The panel of judges focused their decision on the prevalent social problems rather than the legal system;

4. The judges did not consider the law as the basis of their verdict, but instead considered it only as a reference in drawing their conclusion;

5. In their considerations, the judges stated that legal Acts were not the only legal source of the law and that there were other sources which were more important. However, they failed to specify what more important sources there were on which they based their verdict;

6. The panel of judges stated that the defendant, Mr. Pakpahan, was not responsible for the loss of life and material as a result of his actions;

7. Clearing Mr. Pakpahan of his criminal conduct would be bound to encourage workers around the country to organize unlawful strikes;

8. The verdict was not in line with another decision of the Supreme Court which convicted Mr. Amosi Telaumbanua, one of the men who acted under the direct instruction of Mr. Pakpahan in the related case, and the fact that the judge chairing the panel in the Pakpahan case also sat on the same panel which tried Mr. Amosi Telaumbanua.

D. The Attorney-General based his request for a review on the following additional considerations:

1. Principle of balance: The right to review a case should not only be accorded to a defendant or to his/her heir, but should also be accorded to the Attorney-General;

2. Principle of public interest: According to Article 49 of Act of Parliament No. 5/1986 on the State Administration Court, by public interest one should understand the interest of the nation or the state, or the communal interest, or the interest of the state development programme according to the law. According to the Act of Parliament No. 5/1991 on the Attorney-General, public interest should be understood to mean the interest of the nation, the state and the community.

3. Principle of Common Law: Tap MPR (decision of the People's Consultative Assembly) II/MPR/1994 on the GBHN (broad guidelines of state policies) stipulates that a new law is not only created through enactment by the legislative, but also through jurisprudence. In addition, Presidential Decree No. 17/1994 on Repelita VI (five-year development plan), under the subheading 'Law' gives inter alia 'a greater role to the judiciary to develop new laws for the realization of social justice for the people through jurisprudence'.

4. Former Law: The 'Reglement op de Strafvordering' and Supreme Court regulations No. 1/1969 and No. 1/1980 state that the Attorney-General may submit for a review of a court's verdict which has acquired permanent legal force.

E. In conclusion, the decision of the Supreme Court to overturn its former decision which cleared Mr. Pakpahan of all legal charges and to reimpose the four-year sentence previously handed down by the High Court, does not violate Article 263 of the Indonesian Code of Criminal Procedure, as wrongly suggested in your communication, but instead finds its legal basis in the said article.

F. It is not true that either Mr. Pakpahan or his legal representative were not notified of the decision promptly enough to enable them to challenge the ruling, despite their request for a review of the Supreme Court decision, which is still being examined to date.

G. The judiciary concerned has confirmed that throughout the entire trial of Mr. Pakpahan, the relevant provisions of the Indonesian Code of Penal Procedure were fully observed by the panel of judges. Contrary to the allegations, the defendant and his legal counsel, as well as all the witnesses were given a fair hearing, and the rights of all parties were respected. The panel of judges carried out their task with all the independence guaranteed by the Indonesian law and throughout the trial, were entirely free to act according to their own convictions and sense of justice. At no time and under no circumstances was there any interference from the executive in the proceedings.

II. Bambang Widjojanto

The allegation to the effect that Mr. Bambang Widjojanto, defence counsel for Mochtar Pakpahan, was threatened with being forced to testify against his own client is totally without foundation. The investigation confirmed the absence of any corroborative evidence to support the allegation and Mr. Pakpahan's counsel was fully able to discharge his duties on behalf of his client. In fact, Mr. Widjojanto continues to represent Mr. Pakpahan, who has appealed for another review of his case against the decision of the Supreme Court, which rejected the conclusions of the first review after the Attorney-General ordered a re-examination of the case.

III. Megawatu Soekarnoputri

Regarding the lawsuits initiated by Megawati Soerkarnoputri against the Government after her purported removal as the elected leader of Parai Demokratik Indonesia (PDI) by decision of the PDI Congress in Medan in June 1996, the clarifications from the judicial authority concerned are as follows:

A. In the case No. 229/1996, Mrs. Megawati Soekarnoputri and Mr. Alexander Litaay, in their capacity as Chairperson and General Secretary of the PDI Central Board of the National Congress of 1993 respectively, represented by their legal proxy from the Defending Team for Indonesian Democracy (TPDI), filed against:

1. Fatimah Achmad as the representative of the Congress Committee;

2. Fatimah Achmad as the representative of the Congress Leadership;

3. Soerjadi and Buttu R. Hutapea - in their capacity as General Chairman and Secretary-General of DPP PDI of the Medan Congress;

4. the Minister of Home Affairs;

5. the Commander of the Indonesian Armed Forces;

6. the Chief of the State Police,

all of whom are directly involved in the organization and implementation of the Medan Congress.

B. The charges brought by Mrs. Megawati Soekarnoputri against Soerjadi and some of his colleagues, the Commander of the Indonesian Armed Forces, the Minister of Home Affairs and the Chief of the State Police were rejected by the Central Jakarta District Court on 10 November 1996.

C. The council of judges ruled that the organizing of the PDI Congress was an internal matter of the party which had to be resolved internally without involving the Court. As defendants 1, 2 and 3 were PDI officials, the court was not competent to handle their case. While for defendants 4, 5 and 6 as they were government officials, the court considered that their case should be brought before the Court of State Administration.

D. The Court of Second Instance of Jakarta, in its decision No. 726/PDT/1997/PT.DKI of July 1997, accepted the appeal submitted by Megawati Soerkarnoputri and Alexander Litaay and annulled the decision of the Central Jakarta District Court of 10 November 1996 which had refused to try Megawati Soekarnoputri and Alexander Litaay on the grounds that it had no competence to try the case.

E. In its ruling, the court stated that, in organizing the Medan Congress, defendants 1, 2 and 3 had infringed the Party Statutes of 1994, and that defendants 4, 5 and 6 had broken the law (article 1365 of the Indonesian Private Code) by permitting, supporting, funding and facilitating the Congress which had resulted in the losses and damage caused by the accusers. In this connection, pursuant to Article 2 (1) of Act No. 14/1997 on the Judiciary and Article 50 of the Act No. 2/1986, the Court instructed the Central Jakarta District Court to proceed with the trial of the case.

F. All the accused have appealed for a review of this decision of the Court of First Instance, which is still being examined.

G. In conclusion, the allegation that the judges in charge of the case acted under the direction of a non-judicial element, namely the Government, is totally unfounded since the decision of the Court favoured the accusers against government officials. This fact confirms that there was no inappropriate or unwarranted interference in the judicial process concerning the case of Megawati Soekarnoputri.

Regarding your request for the Government's permission to lead a mission to Indonesia to investigate and report on the state of the independence of judges and lawyers, I very much regret to have to inform you that in view of the Government of Indonesia's present engagement in the preparations for the forthcoming five-yearly session of the highest State body, the People's General Assembly, ahead of the presidential elections of March 1998, the Government would prefer to defer such a visit until a more opportune time. However, may I draw your attention to the fact that the Indonesian Government will, as always, continue to be at your disposal to provide you with any information you may request. As you may be aware, the Government of Indonesia puts high value on the work of all the United Nations human rights mechanisms, including the work of the thematic rapporteurs. In this respect, Indonesia received the visit of the Special Rapporteur on Torture in 1991, the Special Rapporteur on Summary or Arbitrary Executions in 1994 and, in 1995, the highest authority in the field of human rights, the High Commissioner. By the same token, I would also like to reiterate my Government's duty and commitment to ensuring that the independence of judges and lawyers is protected from any unwarranted interference.

I can assure you, Sir, that the independence of the judiciary, guaranteed by the State and enshrined in the 1945 Constitution, as well as all other laws are respected and observed by the Government. Similarly, the Indonesian Act on the Basic Principles of the Judiciary stipulates the principles of a fair and impartial trial and of the presumption of innocence.

Finally, I should like to reiterate the commitment of the Government of the Republic of Indonesia to cooperate fully with all the United Nations human rights mechanisms, including the Special Rapporteur, on the independence of judges and lawyers. It is my Government's sincere hope that this clarification will be submitted in toto to the fifty-fourth session of the Commission on Human Rights."

Observations
Iran (Islamic Republic of)

Communication to the Government
Communication from the Government
Observations
Kenya

Communications to the Government
(a) Regarding the trial of Koigi Wa Wamwere, presiding Chief Magistrate Tuiyot was reportedly biased in favour of the Government because he made, inter alia, numerous unwarranted interventions in the defence's case and denied defence counsel's request for a trial record;

(b) Concerning the case of lawyer Mbuthi Gathenji, it was reported that he had been arrested, detained and harassed due to his activities as a lawyer. Mr. Gathenji was retained to act on behalf of victims of violence which had occurred in 1993 in the Western and Rift Valley provinces and in pursuit of a civil action against those believed to be responsible. Mr. Gathenji took a number of statements by members of the armed forces which allegedly implicated certain government officials;

(c) Concerning lawyer Wang'ondu Kariuki, it was alleged that Mr. Kariuki was arrested and charged with belonging to an illegal guerilla organization referred to as the February the Eighteenth Movement. According to the source, Mr. Kariuki signed a confession under torture, which he later withdrew;

(d) It has also been reported that the office of Kituo Cha Sheria, a legal advice centre, was firebombed on one occasion and threatened with burning;

(e) The Law Society of Kenya was reportedly facing lawsuits challenging the constitutionality of its existence. The Society has stood up for judicial independence and human rights in Kenya.

Communication from the Government
Observations
Lebanon

Communication to the Government
Observations
Malaysia
Communication from the Government
Observations
Mexico

Communications to the Government
Communication from the Government
Nigeria
Communications from the Government
Observations
Papua New Guinea

Communication to the Government
Observations
Peru

Communication to the Government
Communications from the Government
Philippines

Communications to the Government
Communications from the Government
Rwanda

Communication to the Government
Observations
South Africa
Spain

Communication to the Government
Communication from the Government
Observations
Switzerland

Communications to the Government
Communications from the Government
Observations
Tunisia

Communications to the Government
Communication from the Government
Observations
Turkey

Communication to the Government
(a) Lawyers who repeatedly conduct defences before the State Security Court, in which case they are equated with the defendants' cause and, as such, are termed "terrorist lawyers" by the police, the public prosecutors and by the courts;

(b) Lawyers appearing in trials before the State Security Courts in cases of torture and extrajudicial killings and who have been qualified as "public enemies";

(c) Lawyers who publicly comment on the human rights practices of Turkey; and

(d) Lawyers who comment on the Kurdish situation.

It was further alleged that these lawyers were tried under emergency legislation which allows for incommunicado detention for a period of up to 30 days. It was also said that the lawyers have suffered economic sanctions and/or have been pressured, harassed, tortured, or become the target of "unknown perpetrator" killings. In addition, the Special Rapporteur referred to his letter to the Government of 16 February 1996 in which he expressed his wish to undertake a mission to Turkey.
Communication from the Government
Observations
Venezuela

Communication to the Government
Observations
Yugoslavia

Communication to the Government
Observations
VI. CONCLUSIONS AND RECOMMENDATIONS

A. Conclusions
"16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

"17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities."

Principle 18 expressly provides that "Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions."
B. Recommendations


HOME | SITE MAP | SEARCH | INDEX | DOCUMENTS | TREATIES | MEETINGS | PRESS | STATEMENTS



© Copyright 1996-2000
Office of the United Nations High Commissioner for Human Rights
Geneva, Switzerland