UN Human Rights Treaties

Distr.
GENERAL
E/CN.4/Sub.2/1993/SR.18
23 August 1993
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND
PROTECTION OF MINORITIES
Forty-fifth session
SUMMARY RECORD OF THE 18th MEETING
Held at the Palais des Nations, Geneva,
on Monday, 16 August 1993, at 10 a.m.
Chairman: Mr. AL-KHASAWNEH
CONTENTS
Statement by the Assistant-Secretary-General for Human Rights
The administration of justice and the human rights of detainees:
(a) Question of the human rights of persons subjected to any form of
detention or imprisonment;
This record is subject to correction.
Corrections should be submitted in one of the working languages. They
should be set forth in a memorandum and also incorporated in a copy of the
record. They should be sent within one week of the date of this document to
the Official Records Editing Section, room E.4108, Palais des Nations, Geneva.
Any corrections to the records of the public meetings of the
Sub-Commission at this session will be consolidated in a single corrigendum,
to be issued shortly after the end of the session.
GE.93-14658 (E)
E/CN.4/Sub.2/1993/SR.18
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CONTENTS (continued)
(b) Question of human rights and states of emergency
(c) Individualization of prosecution and penalties, and repercussions of
violations of human rights of families;
(d) The right to a fair trial
Independence and impartiality of the judiciary, jurors and assessors and the
independence of lawyers
Human rights and disability (continued)
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The meeting was called to order at 10.15 a.m.
STATEMENT BY THE ASSISTANT-SECRETARY-GENERAL FOR HUMAN RIGHTS
1. Mr. FALL (Assistant-Secretary-General for Human Rights) said that
circumstances beyond his control had unfortunately prevented him from being
present at the opening of the Sub-Commission’s session. On that occasion,
Mr. Houshmand had transmitted the message which he had intended to make. He
welcomed the opportunity, however, to address a body which constituted a vital
cog in the United Nations machinery for promoting and protecting human rights.
The professional qualifications of its members, the quantitative
representation of States and the qualitative representivity of
intergovernmental and non-governmental organizations made the Sub-Commission
an effective forum not only for reflection and debate but also for action with
a view to the elaboration of human rights standards, as well as for
considering and averting human rights violations.
2. First of all, he wished to express his appreciation to the members of the
Sub-Commission who had made such a valuable contribution to the preparations
for the World Conference on Human Rights and the Conference itself, in which
outstanding results had been achieved.
3. The current session was particularly significant in that it followed
immediately on the World Conference and preceded the forty-ninth session of
the General Assembly. It was also taking place in the International Year for
The World’s Indigenous People; the Year was expected to lead to a
United Nations declaration on the rights of indigenous peoples. The draft
universal declaration on indigenous rights which appeared on the
Sub-Commission’s agenda under agenda item 14, was therefore of extreme
importance. It should provide the substantive intellectual framework for
promoting indigenous rights of peoples at the international level, moulding a
suitable legislative structure for those rights and opening the door to the
standardization of ways and means of defending them.
4. He wished to reaffirm the importance of the other topics on the
Sub-Commission’s agenda as well as the willingness of the Centre for Human
Rights to work in close cooperation with the Sub-Commission. The
Sub-Commission was facing a new challenge, namely, that of its mandate. There
was no doubt that the ideas put forward during the preparatory process prior
to the World Conference for updating that mandate and possibly changing the
Sub-Commission’s composition to reflect better the active and statutory
presence of indigenous peoples and to update the Sub-Commission’s role
vis-à-vis the Commission on Human Rights provided a basis on which to work
towards the future and to pave the way for a new Sub-Commission.
5. It was somewhat ironic that, after the success of the World Conference on
Human Rights, the forty-fifth session of the Sub-Commission was taking place
in the midst of a financial crisis sweeping through the United Nations as a
whole. The Centre for Human Rights was naturally affected and some of its
activities had already been paralysed. Neither had the Sub-Commission gone
unscathed, since several requests for additional meetings had not yet received
a satisfactory response.
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6. However, he wished to assure the Sub-Commission that despite the critical
financial situation, he would spare no effort to ensure that as far as
possible the session would take place in the best possible conditions. He
also wished to assure the Sub-Commission that it could count on close
cooperation with Conference Services, which were responsible for organizing
any additional meetings.
THE ADMINISTRATION OF JUSTICE AND THE HUMAN RIGHTS OF DETAINEES
(a) QUESTION OF THE HUMAN RIGHTS OF PERSONS SUBJECT TO ANY FORM OF DETENTION
OR IMPRISONMENT;
(b) QUESTION OF HUMAN RIGHTS AND STATES OF EMERGENCY;
(c) INDIVIDUALIZATION OF PROSECUTION AND PENALTIES; AND REPERCUSSIONS OF
VIOLATIONS OF HUMAN RIGHTS ON FAMILIES;
(d) THE RIGHT TO A FAIR TRIAL
(agenda item 10) (E/CN.4/Sub.2/1993/19-21, 23, 24 and Add.1-2;
E/CN.4/Sub.2/1993/NGO/2, 9, 14 and 15)
INDEPENDENCE AND IMPARTIALITY OF THE JUDICIARY, JURORS AND ASSESSORS AND THE
INDEPENDENCE OF LAWYERS (agenda item 11) (E/CN.4/Sub.2/1993/25;
E/CN.4/Sub.2/1993/NGO/15)
7. Mr. IBARRA (International Indian Treaty Council), speaking on item 10,
said that his organization had as yet had no reaction to its repeated
references to the imprisonment in the United States, since 1978, of the Indian
chief, Leonard Peltier, following his illegal extradition from Canada.
Lawyers as well as political and religious leaders in North America had
expressed concern at the irregularities involved in the case.
8. A number of organizations, including his own, had taken advantage of the
International Year for the World’s Indigenous People to pursue a campaign for
Leonard Peltier’s release and had urged the competent United States
authorities to free him as a humanitarian gesture of good-will.
9. His organization was also greatly concerned by the situation of political
prisoners in East Timor and, in particular, that of Xanana Gosmao, the leader
of the East Timorese resistance who had been arrested on 20 November 1992 by
the Indonesian occupation forces and sentenced, on 17 May 1993, to life
imprisonment. He had been held incommunicado beyond the permitted period and
denied the right to a proper defence in his trial. International observers
had not been admitted to the final stage of the case. Indonesian sources had
hinted that Xanana would shortly be transferred to Jakarta.
10. Xanana Gusmao’s trial represented only the tip of the iceberg of the
repeated and systematic violations of human rights and fundamental freedoms of
the peoples of East Timor during the past 18 years of Indonesian occupation.
Deaths and disappearances had reduced the East Timorese population from
700,000 to 500,000 since the Indonesian occupation. The number of refugees
was estimated at about 15,000. The Jakarta authorities had transferred more
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than 150,000 Indonesians to East Timor. The discriminatory practices of the
forces of occupation included: limitations on the access of East Timorese to
university; obligatory use of the Indonesian language and prohibition of the
Tetun language; the need for the East Timorese to have a special document to
travel to the interior of their own country; reservation of public office to
Indonesians. In the words of Monsignor Bello, Bishop of Dili, East Timor had
become one huge prison.
11. The International Indian Treaty Council urged the Sub-Commission to adopt
a resolution on East Timor in which it would express its grave concern at the
systematic serious and repeated violations of human rights and fundamental
freedoms and request the Jakarta authorities to comply with relevant
United Nations resolutions on the question of East Timor, and to free
Xanana Gusmao and all political prisoners. The Sub-Commission should also
declare the applicability to East Timor of General Assembly
resolution 1514 (XV).
12. Mr. MAMADOU (Movement against Racism and for Friendship among Peoples),
speaking on item 10 (c), said that, in Mauritania, violations of human rights
were inflicted not only on detainees but also on their families, so that, when
the father of a family was arrested, all family property was confiscated by
the State and the family was accordingly reduced to poverty and dependence.
The house of Lieutenant B.A. Seydi had been ransacked immediately after his
arrest and execution on 6 December 1987. Wives of detainees were dismissed
from the public service notwithstanding the provisions of the Labour Code.
13. Such terrorism destroyed family bonds and had an impact on the education
of black Mauritanian children. Teachers treated the children of Mauritanian
negro detainees as the offspring of traitors and extremists. The previous
year, the daughter of Djigo Tafsirou, a former minister and political
detainee, who had died in prison as a result of cruel, inhuman and degrading
treatment, had been refused admission to the sixth-year entrance exam.
14. In April 1989, Mauritania had taken advantage of a conflict with Senegal
to deport more than 200,000 black Mauritanians who were members of the
families of persons detained for their opinions. Those detainees continued to
live in abject poverty in camps in Senegal and Mali.
15. On 29 May 1993, Parliament had adopted a law establishing a general
amnesty for all members of the armed and security forces who had committed
crimes relating to events between 1 April 1989 and 1 April 1992.
16. In 1986, the Mauritanian Government had arrested a number of black
intellectuals for having published the Manifesto of the Oppressed Black
Mauritanian exposing the policy of racial discrimination at all levels.
Arrests, mock trials and heavy sentences had followed; torture during
detention had led to the death of four black intellectuals including a former
minister and a diplomat. In 1987 arrests affecting almost all black African
families had been made on the pretext of a military plot.
17. In 1989 there had been a massive deportation of the black Mauritanian
population to Senegal and Mali accompanied with its corollary of rape, murder,
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torture and humiliation. Those were the crimes to which the amnesty law of
29 May 1993 applied. The Mauritanian Government had therefore officially
recognized its serious and massive violations of human rights.
18. The impunity law had heightened tensions and conflicts between different
elements of the country and had undermined the national unity which the
Government claimed to be seeking. The families of victims had no national
legal remedies against the authors of that genocide.
19. The United Nations had played an important role in the denunciation of
apartheid in South Africa. The current situation in Mauritania was
characterized by brutal discrimination against black Mauritanians who sought
no more than respect for their rights and equality of status. It would be
appropriate for the Sub-Commission to designate a special rapporteur on the
issue.
20. Mrs. PEREIRA (American Association of Jurists) said that human rights
could not exist except when the legal system was organized in such a way that
those rights were protected by a legal procedure.
21. The obligation to bring a detained individual before a judge must be
unconditional, automatic and implemented in the shortest possible time. That
last phrase had been interpreted in different ways at the international level,
varying between four days, in the view of the European Court of Human Rights,
and six weeks for the Human Rights Committee. Bearing in mind that
article 286 of the Argentine Code of Criminal Procedures stipulated a maximum
delay of six hours and article 16 of the Constitution of Colombia provided for
36 hours, such international standards were to be regretted.
22. Detainees must also enjoy procedural safeguards such as the right to a
personal hearing and the presence of a lawyer at the beginning of the period
of detention. The new French Code of Criminal Procedure, adopted on
13 July 1993, represented a backward step in that it provided that persons
arrested for acts related to terrorism or drugs could be held incommunicado
and without the presence of a lawyer for 20 hours. The police were required
to establish the facts and inform the court as soon as possible, without any
precise definition of what that last phrase meant. For other infractions,
such as extortion and aggravated assault, the incommunicado period could be
stretched to 36 hours.
23. At the international level, most essential procedural guarantees were
incorporated in conventional instruments; more specific codification was
needed.
24. The right to habeus corpus was many-faceted. For example, a 1966 ruling
in the United States made it possible for prisoners or other plaintiffs who
considered that their rights had been prejudiced by a procedure at the State
level could seek justice in a federal court.
25. On the issue of impartiality and independence, the need to prohibit
special courts, particularly as used by military authorities against the
civilian population, was essential. Periodic monitoring of the legality of
detention was also essential, if necessary by use of a habeus corpus
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procedure. Detainees should be fully informed of their rights in that
connection; minimum rules had been stipulated by the General Assembly and by
the Committee of Ministers of the Council of Europe. Remedies outside the
prison administrative system must also be available, in order to minimize the
risk of torture or other inhuman treatment; the habeus corpus procedure
provided for in article 133 of the Constitution of Paraguay was a case in
point.
26. All international instruments provided for the derogation of its
obligations by the State in case of threat to the existence of the State but
each of those instruments also contained a list of non-derogable rights. The
Inter-American Court of Human Rights had found that non-derogable guarantees
included habeus corpus, amparo and any procedure designed to protect rights
and liberties, the suspension of which was not authorized by the Convention.
27. Her organization welcomed the jurisprudence of the Human Rights Committee
which opposed any suspension of habeus corpus. It could not however
agree with the view which the Special Rapporteur had expressed in
document E/CN.4/Sub.2/1991/28.
28. Extensions by the executive authority of the period during which a
detainee could be held during states of emergency represented a further threat
to the rights of detainees. The legislation of a number of countries did not
derogate from the right of habeus corpus but might authorize administrative
detention without the intervention of judicial bodies. In such cases a judge
ruling on a request for habeus corpus must decide on the legitimacy of the
state of emergency and the relationship between the circumstances justifying
the detention and those justifying the state of emergency. He should also be
empowered to examine the place where the detainee was being held.
29. The American Association of Jurists urged the preparation of a draft
declaration on the implementation of fundamental remedies for the protection
of human rights and essential procedural safeguards. The Association
had submitted practical proposals which were contained in
document E/CN.4/Sub.2/1993/NGO/2.
30. Ms. CALANDRA (France-Libertées - Fondation Danielle Mitterand) speaking
on item 10, said that her organization protested strongly against the sentence
of life imprisonment pronounced against Xanana Gusmao, the leader of the
Timorese resistance to the Indonesian occupation of East Timor.
31. Xanana Gusmao’s efforts to resist the unlawful Indonesian occupation
which contravened the most elementary principles of the Charter of the
United Nations and of international law and flagrantly violated many
resolutions adopted by the General Assembly and Security Council had led to
his arrest and sentence. The court proceedings in Dili had also been
characterized by many irregularities; the accused had been held incommunicado
apart from one visit from the International Red Cross and some televised
interviews for Indonesian propaganda purposes; he had never been allowed free
choice of a lawyer; threats had been made against him, his parents and the
witnesses for his defence; he had not been permitted to read his defence
before the court.
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32. Access to the court by journalists, diplomats and international observers
had been severely restricted. Mr. Amos Wako, the personal envoy of the
Secretary-General, had been accused of inciting the detainee to prepare a
political defence.
33. Following the Dili massacre in November 1991 many Timorese had been
detained for several months without charges being brought against them.
Others had been placed in secret detention for weeks on end before the
anniversary of the massacre as well as after the arrest of Xanana Gusmao.
Finally, in a number of political cases, those accused had been held in secret
for several months; they had been tortured and had not been given the right to
consult a lawyer of their own choice.
34. In March 1993 the Commission on Human Rights had adopted
resolution 1993/97 on East Timor which called upon Indonesia to release
without delay all those in custody who were not involved in violent
activities, to expand the access to human rights and humanitarian
organizations and to allow visits by the Special Rapporteur on the question of
torture and the Special Rapporteur on extrajudicial, summary and arbitrary
executions as well as by the Working Group on Arbitrary Detention and the
Working Group on Enforced or Involuntary Disappearances. That resolution had
been ignored by the Indonesian Government.
35. In view of those continuing violations of human rights, her organization
urged the Indonesian authorities to respect the provisions of the Fourth
Geneva Convention on the prohibition of the removal of prisoners from their
original place of residence as well as their undertaking to permit the access
of the International Red Cross to East Timor.
36. During the preceding six months, the situation in Peru had deteriorated.
Impunity and torture continued unabated. The Working Group on Disappearances,
in document E/CN.4/1993/25, emphasized that Peru was the country with the
largest number of detainee disappearances in the world.
37. The Executive had set up a legal framework to ensure total impunity; it
nominated the majority of the judges of the Supreme Court and the Procurator
General. It had suppressed the Court of Constitutional Guarantees, had
authorized military tribunals to judge civilians accused of terrorism and
prohibited the application of habeas corpus. It had virtually nullified the
right to defence and had strengthened the powers of the military chiefs in the
so-called zones of national emergency by elevating them above any civilian
authority.
38. Her organization’s misgivings concerning the reintroduction of the death
penalty had unfortunately proved to be well founded. The Constitutional
Commission of Congress was reported to have approved an article extending the
application of the death penalty. If implemented, that measure would be a
blatant violation of articles 4.2 and 4.4 of the American Convention on Human
Rights which had been ratified by Peru.
39. Mr. PATTEN (National Aboriginal and Islander Legal Services Secretariat),
speaking on item 10, said that the primary function of the Australian police
forces, when founded within the various colonies after the 1830s, had been to
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replace the military in the suppression of the fight by indigenous peoples to
retain control of their lands. The police had taken part in the massacre of
Aboriginal people and the kidnapping of children in order to deny them their
indigenous heritage. In those areas of Australia where there was still a high
Aboriginal population, there was a policy of over policing; the police were
still used as an occupying army and perceived their role in that way. The
situation had been amply demonstrated in a documentary entitled "Cop It Sweet"
broadcast by the Australian Broadcasting Commission in September 1992. There
had been an abject failure on the part of the police hierarchy to address in
any meaningful way the issues raised in that programme.
40. All available evidence including the day-to-day experience of Aboriginal
and Torres Strait Islander people endorsed the view that the attitudes
demonstrated in "Cop It Sweet" were part of a wider and deeply entrenched
police culture. Aboriginal children consistently reported that they had been
physically abused by police and a number of studies had shown that there was
identifiable police discrimination in the way Aboriginal juveniles were
arrested and dealt with by the police.
41. It was proclaimed that the Australian judiciary was independent and
administered justice fairly and impartially; it was the experience of
Aboriginal and Torres Strait islander people that it failed that test,
particularly at the lower levels of the judiciary.
42. There was strong anecdotal and other evidence to suggest that sections of
the magistracy had been used as part of the machinery to suppress Aboriginal
people. The Royal Commission into Aboriginal Deaths in Custody report for
Western Australia had referred particularly to the discriminatory practices of
justices of the peace and had recommended that they should be phased out. In
western New South Wales it had been found that, when a system of visiting
magistrates was used in place of permanent magistrates, the rate of
imprisonment of Aboriginal people had been drastically reduced. One reason
had been that the visiting magistrate did not feel the need to reflect the
community view of the dominant culture when dispensing justice and thus could
act more fairly. The systematic attacks by individual police and their
associations and the media on magistrates who were perceived to be soft on
Aborigines represented pressure to toe the line of law and order.
43. His organization was as concerned at the extent of the racism of the
judiciary as it was at its refusal to acknowledge that such racism existed and
to take steps to overcome it.
44. The practices used by the police and the judiciary had resulted in
Aboriginal people being among the most criminalized and imprisoned people
in the world. Aboriginal and Torres Strait Islander people accounted
for 30 per cent of all persons imprisoned in any year, although they comprised
only about 1 per cent of the adult population. They were 35 times more likely
to be imprisoned than the non-Aboriginal population and over 30 times more
likely to be arrested. Since the completion of the work of the Royal
Commission into Aboriginal Deaths in Custody, the rate of imprisonment had not
decreased, but had, instead, increased in all states (with the exception of
Queensland). In New South Wales there had been an increase of 72 per cent.
The pattern of imprisonment began with children: in New South Wales
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over 25 per cent of juveniles in custody were Aboriginal - in Western
Australia the figure was over 70 per cent. The juvenile justice system was
being used for the purpose of separating Aboriginal children from their
families and communities, whereas once it had been the function of Aboriginal
Welfare and Protection Boards. With regard to the role of the prison system,
the policies of the past had proved so successful in the denial of the rights
of Aboriginal and Torres Strait Islander people and in wreaking havoc on their
culture and society, that the Government of Australia sought to continue such
policies. Nowhere was that better illustrated than in the administration of
the prison system. For many people, imprisonment had become part of the right
of passage to adulthood. People were being torn from their families and
communities and therefore denied access to their culture, their land, and the
very basis of their existence.
45. In Australia, Governments spoke of "self-determination" when justifying
policies which affected the Aboriginal and Torres Strait Islander people.
However, although they used the same words as those people, the Governments
did not speak the same language. The states sought merely to indigenize the
system, to make those people turnkeys. Under such policies, they became the
lackeys for the colonial Power but were still denied the right to regulate
their own lives and to administer their own justice within their communities.
46. Imprisonment was particularly harsh on women and children. In most
states, women’s prisons and juvenile institutions were located in capital
cities, so denying them any real prospect of access to their families and
communities. That played a major role in the breakdown of families, and thus
further contributed to the breakdown of communities.
47. With regard to the role of Government, its involvement in the
administration of justice was obvious - the Government had the responsibility
for the policies and practices that had affected the Aboriginal and Torres
Strait Islander people.
48. However, Governments also had another responsibility, namely to provide
the resources whereby indigenous people could fight to achieve justice. In
Australia, there was a system of Aboriginal legal services (most were members
of NAILSS) which had been in existence for more than 20 years. Their funding
was provided through the Aboriginal and Torres Strait Islander Commission,
which was a statutory body. As a result of the Royal Commission into
Aboriginal Deaths in Custody, there had been a welcome increase in funding for
Aboriginal legal services. However, an analysis of its funding, as compared
with the funding of non-Aboriginal legal services showed an unacceptable level
of discrimination. The total funding for the non-Aboriginal legal services in
the 1992/93 financial year was in the order of $205 million, while the funding
for the Aboriginal legal services was approximately $31 million. When one
compared the workload of each of the systems, it was quite evident that the
funding of the Aboriginal legal services would need to be increased by at
least 100 per cent to put it on an equal footing. Such discrimination in
funding restricted and curtailed the ability of the services adequately to
represent Aboriginal people and to fight against human rights abuses.
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49. Thus, there was no real encouragement to believe that the Government of
Australia had a genuine commitment to the concept of self-determination and
the protection of human rights, either in its domestic or foreign policies.
50. In May 1993, Xanana Gusmao, the resistance leader of East Timor, had been
sentenced to life imprisonment after a trial which all observers concluded had
been fatally flawed and politically manipulated by the army of occupation.
Indonesia had occupied and invaded East Timor in breach of international law
and the Charter of the United Nations. In spite of the repeated affirmations
by the General Assembly and the Security Council of the right of the people of
East Timor to self-determination, Indonesia dared to challenge the entire
international community and put on trial the leader of an indigenous movement
that was fighting for self-determination.
51. The Aboriginal and Torres Strait Islander people of Australia felt that
the Australian Government’s failure to take appropriate action against
Indonesia and adequately to support the indigenous people of East Timor was
but a reflection of its own attitude to the indigenous people of Australia
and identification with Indonesia as a colonizing Power.
52. Human rights abuses in Australia were part of an historical continuum and
only through the implementation of a strong and effective declaration of the
rights of indigenous peoples could there be any hope of achieving an end to
such abuses and recognition of indigenous people’s right to
self-determination.
53. Ms. RISHMAWI (International Commission of Jurists), speaking on agenda
item 11, said that fundamental human rights and liberties could only be
preserved in a society where the judiciary and the legal profession enjoyed
freedom from interference and pressure. The involvement of the United Nations
in monitoring judicial and legal independence needed to be emphasized.
54. The fifth annual report of the Centre for the Independence of Judges and
Lawyers (CIJL) entitled Attacks on justice, clearly demonstrated that in too
many countries of the world, violence against judges and lawyers continued to
escalate. That violence had been carried out not only by Governments, but
also by opposition groups, landowners, and guerrilla and paramilitary groups.
The report catalogued the cases of 352 jurists in 54 countries who had
suffered reprisals for carrying out their professional functions. Of
those, 32 had been killed, three had "disappeared", 34 had been
attacked, 81 had received threats of violence, 95 had been detained, and 107
had been professionally sanctioned. The report also analysed various legal
systems and assessed their level of respect for judicial and legal
independence.
55. A particularly sad event had been the death of Orton Chirwa
on 20 October 1992. He had been the first African barrister in Malawi and
had died in his cell after 11 years in prison. Mr. Chirwa and his wife, the
first Malawian woman lawyer, had been unfairly tried before a traditional
court for opposing the regime of life-President Banda.
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56. The report had found that in Colombia alone, 18 judicial officers had
been killed, 10 had received death threats, seven had been kidnapped and three
had been tortured. Colombia had traditionally experienced widespread
violence. Although the Government of Colombia had set up several supervisory
and investigative organs during the previous two years, attacks against judges
and lawyers continued to occur with impunity.
57. In Haiti, pro-democracy lawyers and judges had been tortured, attacked
and killed. The CIJL sincerely hoped that the United Nations plan to restore
democracy in Haiti would help to pull the judiciary out of that tragic phase.
58. Death threats against human rights lawyers had increased, in particular,
in Northern Ireland. Thirty-nine lawyers had been subjected to threats and
intimidation by the police in 1993, as opposed to 11 such reported cases
in 1992. The CIJL had to withhold the names of the lawyers for fear of
reprisals. The failure of the Government to resolve the case of
Patrick Finucane, a leading human rights lawyer murdered in February 1989,
was a reason for continued concern over the safety of those lawyers.
Jurists also received threats in Sri Lanka, Argentina and Brazil.
59. Furthermore, in Mauritania, 23 defence lawyers were being subjected to
harassment by the Government, including excessive taxation and the severing of
contracts with governmental bodies, because they were fighting against the
impunity granted to several military officers who had been involved in
executing more than 500 black Mauritanians between 1989 and 1992.
60. In Turkey, lawyers who associated with the People’s Legal Aid Bureau
were being detained and tried. The CIJL was observing the trial of four
such lawyers. The United Nations Working Group on Arbitrary Detention had
considered that the detention of several lawyers in Turkey had been arbitrary.
Lawyers affiliated to the Turkish Human Rights Association were also targeted.
The Chairman of the Association, lawyer Metin Can, had been killed in
February 1993. Jurists were also arbitrarily detained in Nigeria, Cameroon,
Ghana and Indonesia.
61. Judicial dismissals and removal from office were also a frequent
occurrence. In Guatemala, as a result of President Elias’s coup d’état in
May 1993, the justices of the Supreme Court had been placed under house
arrest. The Supreme Court and the Congress had then been dissolved. Due to
domestic and international pressure, Guatemala had elected a human rights
lawyer as its new Head of State. The justices of the Supreme Court had
returned to their offices. Judicial officers were dismissed or removed from
office also in Albania and Argentina. Honduras subjected some of its judges
to governmental pressure.
62. The February 1993 presidential elections had posed an unprecedented
challenge to judicial neutrality in Senegal. Justice Kéba Mbaye, the
President of the Constitutional Court had resigned and the Vice-President
had been assassinated, apparently by the opposition.
63. The Islamic Republic of Iran and several other countries in the
Middle East did not permit women to enter the judiciary. Sudan dismissed
women judges.
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64. Structural defects in legal systems continued to hinder legal and
judicial independence. The United Nations Basic Principles on the Role of
Lawyers stated that Lawyers were entitled to form and join self-governing
professional associations. However, in several countries, lawyers were
prevented from enjoying that right. In Sudan and Syria there were
restrictions imposed by not only the Executive, but also by the ruling party.
The majority of lawyers had boycotted the elections on 11 March 1993 of the
Sudanese Bar due to restrictions imposed by the Registrar of Trade Unions.
Syrian lawyers were prohibited from freely joining Arab or international
jurists’ organizations without permission from the Ba’ath Party. Human rights
lawyers continued to be imprisoned in those countries.
65. In the Israeli-occupied West Bank, Palestinian lawyers were not allowed
to organize themselves in a recognized independent bar association. Since
1967, the Israeli Military Officer in Charge of the Judiciary had continued to
select, promote and dismiss judges. Human rights lawyers continued to suffer
from the sweeping power granted to Israeli soldiers to restrict freedoms.
66. In many countries, judicial independence was undermined by the creation
of special courts to deal with terrorism and violent political opposition.
The Governments of those countries claimed that special courts speeded up the
judicial process and provided greater protection for judges. As stated in
article 5 of the United Nations Basic Principles on the Independence of the
Judiciary, tribunals that did not use the duly established procedures in the
legal process should not be created to displace the jurisdiction belonging to
the ordinary courts. Justice required that every person should be entitled to
a fair and public hearing by a competent, independent and impartial tribunal.
67. In Algeria, in addition to military courts, anti-terrorism legislation
of 30 September 1992 created special courts which were presided over by
civilian judges appointed by the President of the Republic. It was of
particular concern that the courts held in camera trials. Not only were the
names of the judges not released, but the anti-terrorism legislation made it a
crime to indicate their identities. Thus, there was no way to ensure that the
trials were conducted by qualified, independent and impartial judges.
68. Similarly, in Peru, recently defined crimes of treason and terrorism were
tried by hooded judges in secret military tribunals using summary proceedings.
In Colombia, judges in special courts were given anonymity, and trials were
closed to the public.
69. Those examples illustrated the importance of continued United Nations
involvement in the protection of jurists. Through the reports of Mr. Joinet,
the Special Rapporteur on the independence and impartiality of the judiciary,
the Sub-Commission had demonstrated that monitoring the measures affecting
judicial and legal independence was a key component of human rights
protection. Now that the Sub-Commission had completed its study of the
matter, it should recommend to the Commission on Human Rights, that it appoint
a thematic rapporteur on the independence of the judiciary and the legal
profession.
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70. Mr. MANNA (International Federation of Human Rights), speaking on agenda
items 10 and 11, said that the IFHR continued to be extremely concerned by
recurrent human rights violations committed in the context of states of
emergency. The IFHR and its Syrian branch, the Organization of Committees for
the Defence of Democratic Freedoms and Human Rights (CDF) recalled that in
Syria, the state of emergency had been in place for more than 30 years.
71. Under the state of emergency, 15 human rights activists, members of the
CDF, had been detained for 20 months for having tried to win respect for
fundamental freedoms. In an effort to draw attention to their plight, on
10 August 1993 they had gone on a hunger strike which would last for the
duration of the forty-fifth session of the Sub-Commission.
72. The IFHR and the CDF had been the first organizations to inform the
international community, on 25 June 1992, of the outcome of the most important
trial in Syria since its independence. Five hundred political prisoners had,
for over a year, been brought before the State Security Court which was
considered by the IFHR and CDF as a "model" of arbitrary justice. Communists,
Baathists, Nasserians, Kurdish nationalists, private individuals and five CDF
activists had been brought before the court which on 17 March 1992 had not
hesitated in sentencing 10 human rights activists to between 5 and 10 years’
imprisonment.
73. The IFHR and the CDF had also revealed that Mr. Ayman Daghastani had,
on 24 June 1993, been sentenced to 15 years’ forced labour simply for having
been found reading a prohibited newspaper. According to Amnesty International
which had been present at the opening of the trial, Mr. Daghastani had been
held since September 1987 simply on those grounds.
74. During the same trial, 24 political prisoners had been sentenced to terms
of between 10 and 15 years’ imprisonment. The Attorney-General had, moreover,
called for the death sentence for approximately 100 political prisoners.
75. The IFHR and CDF would like the Special Rapporteurs on states of
emergency and on the independence and impartiality of the judiciary to
continue to look into the situation. They called on the Sub-Commission to
condemn Syria for its systematic violations of human rights, in particular in
the sphere of the administration of justice. The organizations were
impatiently awaiting the somewhat delayed implementation of the mandate of the
new Special Rapporteur on the promotion and protection of the right to freedom
of opinion and expression. The situation in Syria was undoubtedly an example
of the violation of those rights in view of the inordinate restrictions in
place in a society which called itself "democratic".
76. The IFHR and the League for the Defence of Human Rights in the Islamic
Republic of Iran were extremely concerned by the continued repression by the
authorities against women in that country.
77. In recent times a vast campaign of repression had recently been launched
against women accused of failing to respect the Islamic code of conduct and
moral order. According to Iranian daily newspapers, approximately 1,000 women
had been arrested. Some of them had been sentenced to be flogged.
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78. On 30 July 1993, the head of the Judiciary, Ayatollah Mohammad Yazdi had
officially recommended that the Government should dismiss women from their
employment if they failed to respect the Islamic dress code.
79. On 1 August 1993, the Iranian Parliament had refused single, women
medical students authorization to go abroad to continue their specialized
studies. The reason given was the existence abroad of fatal diseases, such as
AIDS.
80. Those measures and practices were in addition to the already extremely
discriminatory legislation in force. For example girls were considered as
having reached the age of majority at nine years of age and could be married
if their parents so decided. To be more precise, parental authority lay with
the father. In the event of his death, authority was passed on to the girl’s
paternal grandfather. As a result, a child’s mother was deprived of any
rights concerning her children.
81. The Government of the Islamic Republic of Iran continued both to threaten
and make attempts on the life of its opponents outside the country. Since
30 August 1992, several Iranian dissidents had been murdered abroad. In
France, Switzerland and Germany, it was almost certain that such
assassinations had been carried out on the direct orders of Iranian
authorities. It was beyond doubt that the murderers of Mr. Abdol Rahman
Gassemlou, in Vienna, had been able to leave Austria with the assistance of
the Iranian Embassy.
82. Those assassinations, in addition to the death sentence passed on
Salman Rushdie and the crimes which had thus ensued, constituted a transfer of
oppression to outside the country, to silence any opposition.
83. The Sub-Commission should condemn, as vehemently as possible, those
fundamental violations of human rights which thus far had been committed with
total impunity.
84. The IFHR also wished to draw the attention of the Sub-Commission to the
situation of persons who had disappeared in Morocco, concerning which it had
undertaken an investigative mission, together with the Lawyers’ Committee for
Human Rights. Information from extremely reliable concordant sources had been
gathered with regard to the death during detention of missing military
personnel at Tazmamart prison, other than those among the group of
28 prisoners released in 1991 as well as concerning the fact that a number of
civilian and military persons who had disappeared (in particular Mr. Rouissi,
Mr. Ouzzane and Mr. El Manouzi) might still be alive.
85. The IFHR believed that the Moroccan authorities should finally tell the
truth and say whether the disappeared persons were still alive or dead. Those
who were still alive, should be released immediately by the authorities.
86. Furthermore, they owed compensation for the great harm caused to the
victims and their families. For instance, the requests that the high costs of
medical treatment for the former Tazmament prisoners should be covered had so
far met with silence on the part of the authorities.
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87. The Moroccan authorities had repeated to the representatives of the IFHR
their promise to look into the fate of at least 17 disappeared persons
included in a list which had been drawn up in particular by the IFHR branch,
the Moroccan Human Rights Organization. Those promises followed on the heels
of others previously made to different organizations. They had still not been
kept. It was obvious, however, that the authorities were in a position to
confirm or deny the death of most of the disappeared persons.
88. Thus, the IFHR called upon the Sub-Commission to adopt measures aimed at
inducing the Moroccan authorities to comply with their international
commitments as soon as possible.
89. Ms. LI (International Federation of Human Rights) continuing the
statement, said that the IFHR often voiced its concerns about the systematic
violation of human rights by the authorities in the People’s Republic of
China. The serious violations committed in the framework of the
administration of justice had once again been emphasized in the report of
the second Australian human rights delegation which had been published
on 6 May 1993 and in the report drawn up following the mission led by
Lord Howe which had been published on 29 June 1993.
90. Practices which were totally incompatible with international instruments
were prevalent. They included, pre-trial detention, expedited procedures for
sentencing, labour rehabilitation camps, the death sentence and administrative
detention. During pre-trial detention, there was no habeas corpus procedure
and the detainee was denied the right to consult a lawyer before being
notified of the charge being made against him. That practice was one of the
causes of the widespread use of torture in detention centres. Expedited
procedures for sentencing were applied for many crimes and offences, including
those punishable by the death penalty. Under such procedures, the charge
could be communicated only three days before the trial and any appeal had to
be lodged within three days after the trial. The most common punishment
handed out by Chinese courts was detention in labour re-education camps. Such
punishment was also meted out for "offences of opinion". It was estimated
that approximately 16 million persons were imprisoned in such camps (Lao-Gai).
With regard to the death penalty, in 1992, at least 1,079 persons had been
executed, which meant that the Government of China had the dubious distinction
of holding the world record for the number of death sentences carried out
in 1992. During the first five months of 1993, at least 300 persons had been
executed. In May 1993, the Chinese delegation at the Committee against
Torture had refused to provide figures on the number of executions despite the
Committee’s requests.
91. With regard to administrative detention, the report compiled by Lord Howe
showed that in 1988, 1.5 million persons had been subjected to such detention
under the so-called "shelter and investigation" ("Shourong Shencha") system,
the rules of which were confidential and outside the control of the Government
Procurator’s Office.
92. The city of Beijing was one of the contenders vying for the Olympic Games
in the year 2000. The slogan used to support its application spoke of "An
open China for the year 2000". The IFHR had welcomed that declaration of
intent on the part of the Chinese authorities, and consequently, had launched
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a campaign to ensure that the openness proclaimed by the authorities came
about. The IFHR had also called on the International Olympic Committee (IOC)
to make its decision on the holding of the Olympic Games in Beijing
conditional on the introduction of a system of administration of justice which
respected international standards, with the release of political prisoners
and the closing of the so-called "Lao-Gai" labour re-education camps.
On 23 September 1993, the IOC should make its decision public. If by that
time, the openness promised had not been achieved, it should be concluded that
Beijing would not be ready to host the Olympic Games and the international
community should draw its own conclusions.
93. At previous sessions, both the Sub-Commission and the Commission on Human
Rights had called on the Government of Indonesia to honour its commitments
undertaken in the forty-eighth session of the Commission on Human Rights. So
far, no progress had been registered.
94. The people of Timor who had been given heavy sentences for their
participation in peaceful demonstrations in Dili on 12 November 1991 and in
Jakarta had not been released "without delay" as requested by the
Sub-Commission and the Commission. On the contrary, visits by family members
and the International Red Cross had been obstructed. Several prisoners had
even been transferred to other islands which meant that not only were they
being sentenced to a term in prison but also to deportation.
95. It should be remembered, that the military personnel responsible for the
summary execution of more than 200 peaceful demonstrators would have been
given only light sentences.
96. Furthermore, despite the appeals of both the Sub-Commission and the
Commission that prisoners brought to court should have access to proper legal
representation and a fair trial, the indications were that unfair trials were
the general rule. The most famous case was that of Xanana Gusmao, the leader
of the Timor resistance who, for example, had been given a lawyer who had
links with the military information services. The IFHR was also concerned by
the fact that many detainees were never brought before the courts. Their
plight remained even more uncertain than that of prisoners who had been
sentenced, as there was no official register of their detention. Many of them
were put into military units or subjected to all sorts of torture and
maltreatment until they died. The Sub-Commission had called on the Government
of Indonesia to provide information on the fate of persons who had
disappeared. The Indonesian authorities who had admitted that 91 persons had
disappeared, while failing to identify them, had since declared that 31 of
them had returned home but still refused to give their names. It should be
recalled that the Working Group on Enforced and Involuntary Disappearances had
provided the Government with a list of names of more than 200 persons who were
presumed missing. It had to be recognized that thus far, such requests had
not met with a satisfactory response and the exhortations of the
Sub-Commission and the Commission had been in vain.
97. Mr. ESHAGI (International Falcon Movement) said that since the
early 1980s tens of thousands of political prisoners had been summarily and
arbitrarily executed in the Islamic Republic of Iran. Political detainees had
been held in unlimited pre-trial detention, widespread torture had gone
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unchecked and summary trials before the clerical judges of Islamic
Revolutionary Courts in complete disregard for the guarantees of due process
of law had been the norm.
98. The Iranian authorities publicly declared that international human rights
standards had no relevance in the Islamic Republic. Their deliberate
non-compliance with international standards was manifested in the new Islamic
Punishments Act which had been given final approval in April 1993. Despite
the recommendations of the United Nations Special Representative, various
United Nations bodies and resolutions, the new law provided a range of cruel,
inhuman and degrading punishments. The long list of crimes punishable by
death had not been curtailed to the most serious crimes. A wide range of
physical punishments leading to the death, mutilation or defamation of
victims, such as stoning, amputation and crucifixion and various forms of
talion and retribution were retained. Undefined crimes categorized as
"corruption on earth" and "warring against God" which were mainly invoked
against political prisoners, were still on the statute books and were
punishable by death. Murder was still treated as a private matter to be
sanctioned by retribution by the victim’s next-of-kin or by the acceptance of
blood money. The act stipulated that testimony by women in some cases was not
valid and in other cases only pairs of women could replace one of the several
men required as witnesses, and furthermore the blood money for a Muslim woman
was half that for a Muslim man. The act also held children criminally
responsible from an early age, so that at the age of nine a girl could be
subject to the cruel punishments provided by the new penal code.
99. With regard to the independence and impartiality of the judiciary,
students and teachers from religious seminaries with only a brief judicial
in-service training could be appointed as judges. The Government’s policy was
that all such positions should eventually be occupied by clerics in order to
"purify" the guardianship of "divine" jurisprudence. Such judges presided
over the Islamic Revolutionary Courts which had jurisdiction over most
offences, offences which carried the death penalty.
100. In a state of emergency such as that following the widespread civil
unrest in spring 1992, the minimal requirements for the qualifications of
judges were overlooked in favour of rapid penal remedies and the quick and
summary execution of a number of innocent protesters with the hope of
suppressing all further manifestations of dissent and discontent.
101. In that system judges did not and should not enjoy security of tenure.
They could be dismissed at the discretion of the Head of the Judiciary who was
himself appointed every five years by the Leader. The limits of crimes,
punishment and criminal responsibility were deliberately kept unclear. On
that basis the massacre of political prisoners could be ordered and collective
death sentences pronounced on persons and groups in absentia, such as that
passed on the Mojahedin in its totality. The execution of thousands of
members of the Mojahedin had been confirmed in the book Death plus 10 years by
Roger Cooper, published in 1993.
102. Since the present regime in Iran had taken power in February 1979,
members of the Bar had been discouraged from defending prisoners in trials.
In 1982 the Prosecutor General had said that lawyers could only defend
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political prisoners if they believed that their clients were guilty and should
base their case on demands for clemency without questioning their clients’
guilt. Since 1980 lawyers had not been allowed into Islamic Revolutionary
Courts and some other courts, including civil ones, had forbidden defence
counsels. In 1981 the Government had taken over the Central Bar Association,
placing one of its supporters in charge of it and arresting those members who
had not gone into hiding. In the previous 14 years not one defence lawyer had
been briefed by the Islamic Revolutionary Courts to defend a person liable to
be sentenced to death.
103. Since 1979 more than 100,000 political prisoners had been killed in cold
blood in prisons throughout Iran by order of Islamic Revolutionary Courts.
Trials had been held illegally, in camera, without the observance of due
process of law, or the observance of the presumption of innocence and proper
investigation and more importantly, in the absence of defence lawyers.
According to laws and international norms and standards pertaining to fair
trials, trials held in the absence of defence counsels were illegal with no
judicial impact. The killings of political prisoners were therefore
premeditated murder in the first degree and those who had ordered the
extrajudicial killings and carried them out should be brought to trial for
their crimes against humanity.
104. Mr. GUISSE said that the concept of a fair trial should cover the trial
from the preliminary investigations to the implementation of the sentence. At
all those stages, the right to a fair trial was ensured by legal and judicial
guarantees. The legal guarantees were essentially preventative being
contained in legislation and covering all those responsible for rendering
justice. Judicial guarantees were repressive and were intended to sanction
any defects in the proceedings.
105. The right to a fair trial, as described above, applied to all forms of
legal proceedings, be they criminal, civil or social. However, it was not
enough to formulate a right, it was essential to put it into practice. The
exercise of the right to a fair trial required economic and financial
resources. The combination of fees to be paid to legal professionals and
indirect taxes meant that for many individuals justice was an inaccessible
luxury.
106. Some States had developed mechanisms to mitigate the cost of going to law
and included the court-appointed lawyers, the fast-disappearing provision of
legal assistance and the presence of lawyers at police stations.
107. Court-appointed lawyers were intended to put defence counsels at the
disposal of the accused. However, they were often inexperienced trainees
since low rates of pay did not attract fully qualified lawyers.
108. Legal assistance concerned the civil and commercial courts and was
designed to provide information and assistance to individuals.
109. Lastly, there was the demand for the presence of lawyers in police
stations, which together with the process of habeas corpus, would not only
help to combat torture, summary execution and enforced disappearances but
would also consolidate the right to a fair trial.
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110. The right to a fair trial was only possible when the judiciary was truly
independent, a fundamental principle based on the separation of powers.
Judges should be independent of political power and of financial power.
111. Therefore, in order for the right to a fair trial to be applied some
safeguards should be provided. The appointment and promotion of judges should
be carried out by independent bodies and not by those in political power.
Judges should be protected from financial pressure by being paid accordingly
and given the respect due to them. Physical protection should be afforded
judges, their families and their property since in many countries they were
under threat.
112. Mr. LESTOURNEAUD (International Union of Lawyers), speaking on agenda
item 11, said that once again his organization regretted the growing number of
individual and collective violations of the human rights of judges and lawyers
in the exercise of their functions. The latest report of the Centre for the
Independence of Judges and Lawyers cited inadmissible violations committed
in 54 countries, over 90 per cent of which had ratified one or several
United Nations human rights instruments. In the course of the preceding year
assassinations, disappearances, arbitrary arrest, violent attacks, threats and
other forms of pressure had all been recorded.
113. The International Union of Lawyers, which intervened each time a lawyer
was prevented from doing his or her job or an individual’s right to be
defended by a lawyer was not respected, had requested several Governments to
respect the Basic Principles on the Independence of the Judiciary which had
been adopted by the United Nations. Details of the interventions were
contained in the 1992/1993 report of the Union’s "Defence of the Defence"
Commission.
114. Among the States mentioned in the two reports, about 15 of them had
ratified the Optional Protocol to the International Pact on Civil and
Political Rights which provided for the Human Rights Committee to receive and
consider communications from victims of violations of those rights.
115. The international community and the Sub-Commission in particular should
continue to encourage the ratification of international instruments and the
acceptance of the right of individuals to address the various committees but
it had now become a priority for the international community to act to protect
the independence of the judiciary, as stipulated in paragraph 27 of the Vienna
Declaration and Programme of Action.
116. In conclusion, the International Union of Lawyers thanked the Special
Rapporteur for his efforts in favour of greater independence of the judiciary
under agenda item 11. It hoped that that theme would be included on the
Commission’s 1994 agenda and further hoped that a resolution or recommendation
to that end would be adopted in the present session of the Sub-Commission.
117. Mr. PRINCEN (Liberation), speaking on agenda item 10, said that he was
the Chairperson of the Indonesian Institute for the Defence of Human Rights
and had helped to found Infight, the Indonesian Front for the Defence of Human
Rights. On three previous occasions he had been prevented from attending the
Sub-Commission’s session because he and many of his friends representing the
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dissident voices in Indonesia had been blacklisted and could not leave the
country without special permission or have their opinions published in it. He
was Dutch-born but had joined forces with the Indonesian people when he had
deserted the Dutch army in 1946. He had been refused a visa to enter the
Netherlands because he was considered to be a "traitor" there.
118. His Institute had been founded in 1966 by several Indonesian lawyers to
uphold and restore respect for the law and human rights in Indonesia at a
bleak period when more than 1 million people had been slaughtered by army
death squads and groups operating at the instigation and with the protection
of the army. His had been the very first organization to speak out against
those killings and to call for independent investigations. At that time,
hundreds of thousands had also been detained and held without trial by the
authorities, which had used the spectre of communism to justify their
campaign. Although the untried political prisoners had been released, many
thousands of them were still suffering from discrimination, with special
initials on their identity cards preventing them from enjoying many civil
rights. They had to report to the local and military authorities, and all
their activities were controlled. Even their children were excluded from
enrolling at higher educational institutes.
119. Since 1975, when Indonesian troops had invaded and illegally annexed
East Timor, his Institute had consistently condemned human rights violations
against the people of East Timor, where an estimated one third of the
population had lost their lives as a result of the war. East Timor was an
endless story of violent violations of human rights. Despite the Indonesian
Government’s claims to the contrary, the spirit of resistance among the common
people there was not diminishing. The latest atrocity had been the grossly
unfair trial of their leader, Xanana Gusmao. According to reports from
Jakarta, the President had reduced his life sentence to 20 years’
imprisonment, although he should never have been tried by an Indonesian court
in the first place. In his defence plea, which he had not been allowed to
read in court, he had recalled that the Charter of the United Nations provided
the best reference point for the theory of people’s liberation and the
formation of nations. He and many other East Timorese languished in prisons,
and the continued presence of the Indonesian occupation forces pushed people
to the ultimate resort of armed as well as peaceful resistance, for which they
were being punished very harshly. The most recent example had been the
Santa Cruz massacre of November 1991.
120. Another region in the archipelago where Indonesian troops were wreaking
death and destruction against a defenceless population was Aceh. The Legal
Aid Institute, on whose Board of Trustees he sat, had carried out thorough
investigations of human rights violations there and was convinced that a huge
wave of extrajudicial killings, "disappearances", arbitrary detentions without
trial, torture and unfair trials had occurred. In one case, an alleged member
of Free Aceh had had his stomach torn open by troops while he was still alive.
There was a pressing need for United Nations officials to carry out detailed
and scrupulous investigations in Aceh.
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121. In Indonesia there were no free and independent political parties, no
political rights, no freedom of association, and all members of Parliament
were screened by the army for their political reliability and loyalty to the
regime. His own attempt to create an independent trade union had not been
allowed.
122. It was also highly regrettable that more advanced countries like Sweden
and Finland had ignored article 14 of the Universal Declaration of Human
Rights by refusing asylum to seven young East Timorese, who were now under his
personal protection.
123. Mr. BANDIER (International Association of Educators for World Peace),
speaking on agenda item 10, said that during the past six years his
organization had received reports of Tibetan detainees who had been maimed and
of others who had died as a consequence of torture in Chinese prisons, as well
as testimonies by former political prisoners from Tibet who had described
inhuman and degrading prison conditions. His organization had studied
detention cases in Tibet which showed that the right to a fair trial was
completely ignored when the Chinese "legal system" was implemented, the role
of the "judges" being restricted to passing sentences determined by the
political authorities. Under the Chinese rule in Tibet prisoners were not
informed of the grounds of their arrest and of their right to legal remedies.
Arrest warrants were rarely issued or produced. The authorities declared a
person in custody arrested only after several days, months or even years.
During the period of the initial detention there was no question of informing
the family, since the detained person was "legally" not arrested.
124. The People’s Republic of China was responsible for the deaths of millions
who had succumbed to atrocities inside its prisons and labour camps, most of
them unknown to the world. Nobody had been punished for that. The Government
continued to pursue an indoctrination system through its "reform through
re-education" and "reform through labour" programmes, and the ability of
prisoners to remain sane was questionable. Article 2 of the Chinese Penal
Code stated that the purpose of the Penal Code was "to use penalties and
punishments against every counter-revolutionary and penal crime to defend the
dictatorship of the proletariat". That meant that prisoners in Tibet and
China were interrogated, tortured and, at times, summarily executed if they
did not kow-tow to the dictates of the Communist Party.
125. In the Chinese legal system the most basic safeguard - the right to be
presumed innocent until proved guilty beyond reasonable doubt - did not exist.
Sentences imposed on political prisoners were often excessively severe in
relation to the alleged offence. Prisoners were often detained for an
extended period without charges and were seldom brought before a court of law.
His organization therefore urged the Sub-Commission to pay serious attention
to the violations of human rights occurring in the prisons, labour camps and
"courts" of the Chinese authorities in Tibet, where human rights violations
had been taking place without international scrutiny for the past four decades
and still continued. Furthermore, during the past 43 years no independent
visitors had been permitted to make a free study of prison conditions in
Tibet.
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126. He wished to mention cases of Mr. Gendum Rinchen, Mr. Lobsang Yonten,
Mr. Tsetan Dorje, Mrs. Damchoe Palmo and Mr. Lobsang Gyaltsen from among those
arbitrarily arrested during the past seven months in Tibet. He also wished to
mention the incommunicado detention of Mrs. Dolma, Mr. Jamphel,
Mr. Kunchok Tenzin, Mr. Tenpa Sonam, Mr. Lhodoe, Mr. Sonam Tsering, Mr. Bagdro
and Mr. Dorjee in Maldro Gungkar district since April and May 1993. His
organization urged the Chinese delegation to provide detailed information on
the well-being of those prisoners of conscience to the Sub-Commission and to
the United Nations special rapporteurs and working groups without further
delay. Of an estimated 150 to 200 persons arrested during the past seven
months, not a single one had been brought to trial. Moreover, one of the
detainees, Damchoe Palmo, was reported to have lost her unborn child while in
custody, as a result of brutal treatment for refusing to confess.
127. The use of torture had been frequent in Tibet, as Amnesty International
had reported in 1992. Moreover, many prisoners were forced to perform hard
labour or were subjected to solitary confinement. They were compelled to
attend indoctrination meetings, denied adequate medical attention, given
uneatable meals, and made to live in squalid, cold and damp cells. Political
prisoners like Lobsang Tenzin, Tenpa Wamgdrak, Tenpa Phuljung and Gyathar
reportedly suffered from symptoms of blindness and rheumatism due to squalid
and damp prison-cell conditions.
128. The administration of justice by the Chinese authorities in Tibet fell
far short of international standards, the entire objective of the Chinese
legal system being to extract confessions from prisoners rather than to
administer justice. For example, defence pleas, when permitted, were
restricted to appeals for mitigation of punishment rather than for pleading
innocence.
129. Ms. CRAMER (International Progress Organization), speaking on items 10
and 11, recalled that in previous statements to the Sub-Commission and the
Commission on Human Rights, the International Progress Organization (IPO) had
dealt with abuses in the judicial system of the United States of America,
notably in the case of the philosophical political opposition movement
associated with Lyndon H. La Rouche. For more than four and a half years now,
Mr. La Rouche had been in prison after being sentenced in a trial that had
provoked international protests by eminent jurists and other personalities.
So far all efforts to remedy the situation had failed, despite comprehensive
documentation of Mr. La Rouche’s and his associates’ innocence and
documentation of massive governmental and prosecutorial misconduct. The
Fourth Circuit Court of Appeals in Richmond, Virginia, had so far taken no
action on the appeal filed against the denial of a "2255" motion for a new
trial by Judge Albert V. Bryan, the same judge who had originally sentenced
Mr. La Rouche and several of his associates. The "2255" motion had been
accompanied by six volumes of evidence newly discovered after trial, showing
that the prosecution had conducted and participated in a conspiracy with
others to wrongfully convict Mr. La Rouche and his co-defendants by engaging
in outrageous misconduct, including financial warfare.
130. A cornerstone in the "2255" motion had been the ruling of a leading
bankruptcy court in 1989, stating that in bringing forth involuntary
bankruptcy proceedings against organizations and publishing entities
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associated with Mr. La Rouche, the Government had acted "in objective bad
faith" and had committed "fraud on the court". That ruling had been affirmed
on appeal. However, during trial, in a motion in limine, the judge had
prevented the defence from even mentioning the fact that it had been the
Government which had brought about the bankruptcy proceedings which had led to
the organizations’ and companies’ inability to repay loans taken. The
continued inaction of the Fourth Circuit Court of Appeals was a proof that the
pattern of gross violations of due process was being continued.
131. Approximately 270 parliamentarians from 25 countries had signed a
joint appeal to President Clinton to free Mr. La Rouche. Two Italian
parliamentarians had personally intervened with the United States Embassy in
Rome and demanded that justice be done and that Mr. La Rouche be set free.
The former President of Argentina, Arturo Frondizi, had written an open letter
to President Clinton calling upon him to exhaust all available means to settle
Mr. La Rouche’s case once and for all and thus give him back his freedom.
However, the expectations that the new United States administration would do
away with the pattern of misconduct perpetrated in the judicial system had so
far not been fulfilled, as other cases also clearly demonstrated.
132. IPO appealed to the Sub-Commission to see to it that all necessary
steps were taken immediately to remedy the situation. That was made even
more urgent by the fact that Mr. La Rouche would be 71 years old on
8 September 1993, and the long period of incarceration presented a serious
threat to his overall life-expectancy. Furthermore, extremely long
sentences had been imposed on several of his associates. One of them,
Michael Billington, who had been sentenced with Mr. La Rouche to three years
in Federal prison, which he had served until the Spring of 1991, had even been
sentenced by a Virginia State court to 77 years in prison on the basis of the
same evidence and the same witnesses as in the Federal case. His colleague,
Anita Gallagher had been sentenced to 39 years, her husband Paul to 34 years,
Lawrence Hecht to 33 years, Donald Phau to 25 years and Rochelle Ascher
to 10 years.
133. On 1 December 1989, Michael Billington had been sentenced by a Virginia
State court for an alleged "securities fraud" in an alleged amount of $76,000.
The funds in question had been political loans for campaigns and publishing
projects. At sentencing, the prosecutor had stated in court that the sentence
was intended to be "a message to those other people ... and to everybody
affiliated to that organization out there raising funds". Never before had
there been any ruling that the political loans at issue were "securities".
Such a ruling had been made only one month after Billington and others had
been arrested, and the political motive behind the arrests could hardly be
more obvious. In the course of his trial, Billington had, by order of the
court, been subjected to a psychiatric examination for his insistence on his
constitutional right to a trial by jury. The pattern of legal abuse had been
intensified by the behaviour of his own lawyer, who had changed sides and
allied himself openly with the prosecution. The judge had outrageously denied
him the possibility of changing lawyers during trial. During the entire time
of the competency proceedings and trial, Billington had been held in solitary
confinement in a cell measuring 3 x 4 metres for more than 100 days.
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134. The Virginia case agent in cases against Michael Billington and other
La Rouche associates had been caught out on tape lying to prospective
witnesses in order to elicit fraudulent testimony. The lead investigator had
admitted to having been engaged in multiple illegal searches to construct the
trail of false evidence. Part of that information had come to light in the
course of court proceedings for an attempted kidnapping of another La Rouche
associate, Louis Du Pont Smith, heir to the Du Pont fortune.
135. The trial judge in Billington’s case and other Virginia cases had
admitted in court to having ex parte communications with a private agency, the
Anti-Defamation League of B’nai B’rith about the alleged "cult" nature of the
philosophical movement, a slanderous allegation circulated to secure unopposed
persecution of an undesired political opponent. Published writings of
Lyndon La Rouche and his imprisoned associates gave testimony of the
intellectual strength and unbroken spirit that had characterized the
"La Rouche Movement" during the more than 20 years of its existence. IPO
urged the Sub-Commission to engage immediately in a thorough and impartial
investigation of the case so that justice could be done to the victims of the
politically motivated persecution and so that the authority of the
United States of America as a country respecting international human rights
standards could be upheld.
136. Mr. URATA (Crime Prevention and Criminal Justice Branch, United Nations
Office at Vienna) congratulated the Centre for Human Rights on the successful
conclusion of the World Conference on Human Rights held at Vienna. The Crime
Prevention and Criminal Justice Branch stood ready to assist in implementing
the relevant aspects of the Vienna Declaration and Programme of Action,
especially those relating to the administration of criminal justice.
137. While most United Nations activities in crime prevention and criminal
justice had human rights aspects, many instruments developed under the
United Nations human rights programme were closely related to the
administration of justice. For example the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on
the Rights of the Child, and the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment and other instruments were
of mutual concern to the human rights and crime prevention programmes and
their implementation was being enhanced through close cooperation between
them. That applied in particular to the human rights advisory services
programme, in which the crime prevention programme was frequently involved.
Thanks were due to the Sub-Commission for taking the initiative with a view to
improving coordination and cooperation between the two programmes.
138. The newly established Commission on Crime Prevention and Criminal Justice
had held its second session at Vienna in April 1993. The human rights
programme had made an essential contribution, as in the past. On the
recommendation of the Commission, the Economic and Social Council, at its most
recent session, had adopted nine significant resolutions. In them, the
Council had reaffirmed the priority themes for the period 1992-1996, which
were national and transnational crime, organized crime, economic crime,
including money laundering, and the role of criminal law in the protection of
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the environment; crime prevention in urban areas, and juvenile and violent
criminality; and efficiency, fairness and improvement in the management and
administration of criminal justice and related systems.
139. The programme was being reoriented towards operational activities and
technical assistance to developing countries and the new democracies in
eastern and central Europe and other regions. Efforts were being focused on
the promotion of effective and fair criminal justice systems based on the rule
of law, taking appropriate account of United Nations norms, standards and
model treaties. The programme devoted great attention to helping States, upon
request, in legislative and criminal justice reform and the elaboration and
implementation of criminal codes and international treaties and conventions
such as the development of a convention on mutual assistance in criminal
matters and the formulation of a protocol on extradition to that convention.
One of the major projects to be undertaken by the programme related to
legislative and judicial reform in the Russian Federation. Other areas of
priority concern for the programme were the effective planning and formulation
of national policies regarding crime prevention and criminal justice
strategies, as well as the organization of training courses and seminars for
criminal justice personnel and the establishment of information networks and
databases on crime issues.
140. As for the use and application of United Nations standards and norms in
the field of crime prevention and criminal justice, the Economic and Social
Council had requested the Crime Commission to establish, at its third session,
an open-ended in-sessional working group to discuss how to promote their use
and application, particularly with regard to the Standard Minimum Rules for
the Treatment of Prisoners, the Code of Conduct for Law Enforcement Officials,
together with the Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials, the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, and the Basic Principles on the
Independence of the Judiciary. The Council had further requested the
Secretary-General to commence, without delay, a process of systematic
information-gathering.
141. The third session of the Commission on Crime Prevention and Criminal
Justice was scheduled to be held at Vienna from 25 April to 6 May 1994. It
would have to review priority themes, including the role of criminal law in
the protection of the environment, violence against women, and preparations
for the World Ministerial Meeting on Organized Crime, as well as technical
cooperation, United Nations standards and norms in the field of crime
prevention and criminal justice, preparations for the Ninth Congress on the
Prevention of Crime and the Treatment of Offenders, and cooperation and
coordination of activities in crime prevention and criminal justice.
142. The Economic and Social Council had also approved the following
provisional agenda for the Ninth Congress, as finalized by the Commission on
Crime Prevention and Criminal Justice at its second session: (1)
international cooperation and practical technical assistance for strengthening
the rule of law: promoting the United Nations crime prevention and criminal
justice programme; (2) action against national and transnational economic and
organized crime, and the role of criminal law in the protection of the
environment: national experience and international cooperation;
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(3) criminal justice and police assistance: management and improvement of
police and other law enforcement agencies, prosecution, courts, corrections,
and the role of lawyers; and (4) crime prevention strategies, in particular as
related to crimes in urban areas and juvenile and violent criminality,
including the question of victims: assessment and new perspectives.
143. The Council had further endorsed the programme of work for the Ninth
Congress, including the holding of six workshops on: (i) extradition and
international cooperation: exchange of national experiences and
implementation of relevant principles in national legislation; (ii) mass media
and crime prevention; (iii) urban policy and crime prevention; (iv) prevention
of violent crime; (v) environmental protection at the national and
international levels: potentials and limits of criminal justice; and
(vi) international cooperation and assistance in the management of the
criminal justice system: computerization of criminal justice operations and
the development, analysis and policy use of criminal justice information.
Five regional preparatory meetings for the Ninth Congress would be held at
Bangkok, Thailand; at Addis Ababa, Ethiopia; at Vienna, Austria; at Santiago,
Chile; and at Amman, Jordan. The Governments of Egypt and Tunisia had
extended generous offers to host the Congress, so it would be held for the
first time in the African region.
144. The crime prevention and criminal justice programme was also organizing
an ad hoc expert meeting on model legislation to foster reliance on model
treaties at Vienna, an ad hoc expert meeting on more effective forms of
international cooperation against transnational crime, including the
protection of the environment, at Vienna; an international conference on
money-laundering and controlling the proceeds of crime at Courmayeur, Italy;
and the United Nations World Ministerial Conference on Organized Transnational
Crime, at Venice. The active participation of the human rights programme in
all meetings of special interest to it would be greatly appreciated.
HUMAN RIGHTS AND DISABILITY (agenda item 12) (continued)
145. Mr. DESPOUY, speaking on item 12, said that at last the report he had
prepared as Special Rapporteur on human rights and disability
(E/CN.4/Sub.2/1991/31) had been published, two and a half years after it had
been submitted. A way should be found to speed up publication of such
documents since it was important for them to be up to date.
146. In the course of preparing his report he had been surprised by the
absence of coordination between United Nations bodies which were directly or
indirectly connected with human rights and disability. If a draft resolution
was submitted on the subject, it should include a request for the
Secretary-General to provide information on the coordination of efforts in
that field. The lack of coordination was a cause for serious concern and
should be assessed without delay.
147. On a more positive note, the report had been widely distributed,
particularly in the developed countries, and had been well-received by the
media. He had observed that in some countries the report had served as the
basis for the implementation of national policies towards the disabled, for
instance in Paraguay it had provided the legal framework for legislation.
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148. The NGOs had put in a great deal of work locally complementing the
efforts of the United Nations. Financial and technical support had been
provided so that the disabled themselves could put their own case.
149. Some of the topics covered in the report had regional resonance, for
instance, in Latin America the issue of legal impediments had raised
considerable interest. Disabled persons did not just have a problem with the
recognition of their rights but with the implementation of those rights. In
some places the law itself was an obstacle, for instance in some countries in
Latin America the teaching profession was closed to the disabled, although
that was now the subject of many reports and studies in the region.
150. In conclusion the subject of human rights and disability was discussed
biennially under agenda item 12. It might however be a good idea to include
it as a sub-item under the agenda item "Protection, promotion and restoration
of human rights at national, regional and international levels", since then it
could be discussed every year.
The meeting rose at 12.55 p.m.