DEVELOPMENT OF HUMAN RIGHTS STANDARDS

 

In addition and complementary to its regional programmes, INTERIGHTS aims to improve legal protection of certain key rights worldwide through the development of jurisprudence, strengthening relevant mechanisms and providing education and training. The rights it prioritises are those to equal treatment without discrimination, freedom of expression, liberty and security and economic, social and cultural rights. In the first two areas INTERIGHTS has developed a dedicated programme. In the other two areas, work is conducted primarily under the regional programmes, except as noted below.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

INTERIGHTS� work on the role of law in implementing economic, social and cultural rights (ESCR) continued to grow this year. It has aimed to elaborate and exploit the potential for legal enforcement of ESCR and increased awareness of this possibility through:

1)      Use of regional human rights systems  including:

�        assistance to the African Commission on Human and Peoples� Rights in preparing and organising a seminar to formulate strategies for implementing ESCR under the African Charter, to be held in Cairo in 2003; and




�        advice on the availability of the collective complaints mechanism under the European Social Charter and preparation of one such complaint, against Bulgaria.

2)      Publication activities including:

�        design and development, with partners in Sri Lanka and India, of a casebook on economic, social and cultural rights in South Asia which is intended as a reference work on the practical aspects of enforcing ESCR through national courts;

�        preparation of a booklet by distinguished judges on the judicial role in the Implementation of Economic, Social and Cultural Right which will be published and also be made available on our website;

�        focus on aspects of implementing ESCRs in issues of the Bulletin.

EQUAL TREATMENT WITHOUT DISCRIMINATION

Equality underlies the very concept of human rights and legal guarantees for its enforcement are found throughout the world in many national constitutions as well as international instruments. Yet guarantees of equality often remain illusory in practice, with poverty and social disadvantages inevitably inuring to racial or ethnic, religious, caste or sexual minorities as well as women. Indeed, women often suffer such hardships most severely, as they must live with the burden of multiple or compound forms of discrimination. The combined effects of racism and gender discrimination, for example, are manifested not simply in an increased level of discrimination, but also result in a categorically different form of negative effects. 

Interights' equality programme attempts to take advantage of the increasing number of legal tools to promote equality and to initiate strategies designed to build on successful legal efforts in combating one form of discrimination to strengthen strategies addressing other forms.  In this way, it hopes to meet the needs of lawyers, NGOs and individuals in relation to equality. The Programme draws on the expertise of INTERIGHTS� regional programmes and also contributes to the equality work in each region, thereby gaining invaluable insights into comparative approaches to addressing discrimination.

European Project to Implement Anti-Discrimination Legislation

Throughout the year, Interights continued its work on a Project with the European Roma Rights Center (ERRC) in Budapest and the Migration Policy Group (MPG) in Brussels to implement anti-discrimination legislation throughout the 15 European Union (EU) member states and 11 EU candidate countries. The Project aims to take advantage of two new legal developments at the European level. First, Directive 2000/43/EC, known as the �Race Equality Directive�, 'implementing the principle of equal treatment between persons irrespective of racial or ethnic origin', which requires all EU member states (and in the longer term the accession countries) to enact anti- discrimination legislation to meet the Directives detailed standards. The second is Protocol 12 to the European Convention on Human Rights, which will broaden the scope of the Convention�s Article 14 on non-discrimination, after it has been ratified by ten countries. 

During the course of the year, the Project conducted two transnational workshops. The first took place in November 2001, in Romania, with activists, lawyers, selected government officials and others from Finland, Italy, The Netherlands, Romania and Slovakia in attendance, and the second was held five months later in Prague and involved participants from Bulgaria, the Czech Republic, Luxembourg, Spain and the United Kingdom. The workshops brought together a total of approximately 100 key actors from the various countries, provided them with information about the legal obligations flowing from the Directive and the Protocol and gave them the opportunity to discuss specific aspects of these obligations in depth (see box). Participants explored approaches and methods to define direct and indirect discrimination, establish an effective specialised body to deal with anti-discrimination, the defence of rights and sanctions and positive action. In many cases, participants were themselves in the midst of drafting laws on these issues and were eager to learn from others who had overcome similar challenges.

Interights also assisted our partner organisation, MPG, in reviewing and finalising twenty-six country reports, written by local lawyers in each of the relevant countries, which analyse the domestic legal framework for anti-discrimination laws both on the books and in practice. INTERIGHTS is now working with our partners to ensure that these reports are distributed widely and used effectively to ensure improvements in anti-discrimination law and practice.

INTERIGHTS provided legal advice and materials on a number of initiatives, including initial drafts and frameworks for anti-discrimination law in the Czech Republic and Slovakia.  In addition, in March 2002, Interights organised a litigation strategy meeting in Budapest of eight experienced litigators (four from Western Europe and four from Central and Eastern Europe) to discuss goals and methods for litigating key anti-discrimination issues in a strategic, pro-active manner. At the meeting, several ideal case scenarios were prepared, i.e., criteria for ideal cases in which to litigate on issues such as indirect discrimination, shifting the burden of proof, use of statistics, and remedies.  These criteria will be used now to try to locate and find test cases, and will be disseminated to local partners interested in engaging in similar strategic litigation. In addition, the meeting provided an opportunity to build a network of core anti-discrimination litigation experts/activists, with whom INTERIGHTS will work on specific cases. Finally, in preparation for this meeting, extensive background papers were drafted, setting forth significant anti-discrimination case law from the European Court of Justice as well as the European Court of Human Rights. INTERIGHTS now intends to build on these papers to create handbooks of relevant international case law for local lawyers, adding jurisprudence from the UN Human Rights Committee and the Committee on the Elimination of Racial Discrimination.

Work Internationally

INTERIGHTS has also provided international and comparative law advice in several cases in South Asia. In particular, assistance was provided to lawyers in India filing a constitutional challenge to Section 377 of the Indian Penal Code, which criminalises �unnatural sex acts� and has recently been used against AIDS/HIV outreach workers. It also worked with the South Asia Programme on cases challenging the discriminatory nature of the marital rape exception in Nepal and provided advice in relation to a writ petition alleging state inaction in investigating and prosecuting attacks on minorities in Bangladesh.

Finally, in anticipation of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, the Equality Programme published a Bulletin focused on legal tools to combat Racism and Related Intolerance. 

Key Issues Discussed in Working Groups at the Second Anti-Discrimination Transnational Workshop, Prague

�         Should there be one piece of legislation for all grounds of discrimination, or should each ground be dealt with individually? Similarly, should there be one specialised body dealing with all grounds or several?

�         Should legislative provisions be detailed or more open to interpretation? Should there be a difference in approach between common and civil law jurisdictions?

�         Drafters of new laws should ensure that protection is guaranteed also to persons who are discriminated against because they are presumed to be a certain race or part of a certain community, or because they are associated with (or presumed to be associated with) a person of a certain race.

�         Good legislation must be accompanied by judicial training in order to ensure the correct and effective application of laws. As on the whole judges tend not to be highly interested in equality issues, it is important to ensure they know about any laws drafted with social goals. Thus far in some countries, NGOs have been far more effective in training the judiciary: governments must be willing to teach judges about the issues. If EU institutions were to provide training for judges, it might be less threatening and perceived more favourably.

�         Governmental and non-governmental actors must step up their cooperation.

�         Lawyers and academics should support local NGOs promoting the correct transposition of the Race Equality Directive. Governmental authorities should better inform NGOs about the measures they are taking, thereby increasing the transparency of their work.

�         Public education and campaigning is required to tackle public perceptions firstly of victims� suffering (use of testing, gathering and presenting statistics to educate public), and secondly of assistance provided to them to overcome disadvantages (positive discrimination versus positive action).

�         The independence of a specialised body is crucial, but how is this best achieved?

�         Conciliation/ mediation should be used alongside civil and criminal law remedies. The type of procedures used should be selected according to the seriousness of alleged discrimination, and non-binding measures should always be backed-up by the threat of civil or criminal sanctions.

�         Statistical evidence is extremely useful for context education, but gathering data extremely difficult in some jurisdictions. One solution to this is the anonymous collection of data. Better use could be made of any data collected by the European Union Monitoring Centre on Racism and Xenophobia (EUMC), whose mandate it is �to provide the Community and its Member States with objective, reliable and comparable data at European level on the phenomena of racism, xenophobia and anti-Semitism in order to help them when they take measures or formulate courses of action within their respective spheres of competence�. It was argued that the EUMC should also collect data relating to candidate countries

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FREEDOM OF EXPRESSION

Freedom of expression is a fundamental human right, recognised in all international human rights agreements and in the law of most nations. Without full protection of this right, the free and open exchange of ideas and opinions � so essential to participatory and accountable government as well as individual development and the advancement of knowledge � cannot occur. In this sense, free expression is itself critical to the realisation of all human rights.  

Despite its importance to individuals and society as a whole and the ubiquity of legal guarantees, the right to free expression is violated everyday in established democracies as well as despotic regimes and struggling or emerging democracies. Indeed, strikingly similar overbroad and burdensome restrictions on free speech may be found throughout INTERIGHTS' regional programmes, despite their varied histories and cultures. 

In an effort to address pro-actively the common free expression issues arising across regions, Interights has run a Freedom of Expression Litigation and Education Project since 1996. The Project undertakes to address cross-cutting free speech issues, such as the use of restrictive defamation laws to curtail discussion and comment on matters of public interest, through strategic litigation in international, regional and national courts, training and support of local lawyers dealing with these issues and paper and electronic publications disseminating useful legal tools to support those fighting and defending these cases. By targeting cases and areas where repression of speech may be addressed through legal means, and with guidance from a seven member International Advisory Panel, the Project seeks to secure stringent international legal standards for free expression with global impact.

Development of international standards

The Project has continued to monitor and involve itself in cases before international tribunals, including the European Court of Human Rights, the UN Human Rights Committee and the African Commission on Human and People's Rights. For example, it assisted the Africa Programme in an application filed with the Commission concerning the arrest of a political activist and the dissolution of his political party in Mauritania. An application was also prepared for submission before the UN Human Rights Committee based on the unlawful arrest, detention and conviction of a journalist and activist who criticised President dos Santos. Such claims are particularly important because the UN Human Rights Committee has yet to address explicitly the important issue of whether speech that concerns a matter of public interest is granted a wider level of protection than other speech under Article 19 of the International Covenant for Civil and Political Rights.

Legal advice and assistance 

In addition to its work in international tribunals, the Project provided legal support to lawyers in a variety of domestic free expression cases over the course of the year.  In India, assistance was provided on several cases of contempt, where lawyers or journalists were charged with criminal offences based on their criticism of local courts. In the Middle East, INTERIGHTS provided assistance in two cases. First, it assisted with efforts regarding the appeal of the conviction of Saad Eddin Ibrahim and his colleagues at the Ibn Khaldoun Centre for Development Studies, who had been charged with inter alia, spreading false information about Egypt and committing fraud with respect to grants it had received from the European Commission. Second, it provided legal advice to Adalah, the Centre of Arab Minority Rights in Israel, in a case concerning the leader of an Arab opposition party whose immunity was lifted and who was indicted with two offences of supporting a terrorist organisation based on speeches he made outside the confines of the Knesset. In Ghana, international and comparative law materials were provided for a freedom of information case. In Central and Eastern Europe, INTERIGHTS provided assistance on cases and training programmes involving hate speech as well as the issue of whether a journalist may be forced to testify as a witness to a crime. Additionally, short memoranda were provided outlining relevant international law on the right to freedom of association for a case in Latvia and on the right of reply and correction for a lawyer in Hungary, who was working to counter recent judgments in his local courts that were contrary to the public figure doctrine.

Interights' Amicus Curiae Submission Cited in Support of European Court's Finding of Article 10 Violation 

Criticism is Protected Speech in the Context of Representing Client in Court

 Relying in part on Interights' third-party submission of relevant law from ten jurisdictions, the European Court of Human Rights issued a judgment finding a violation of Article 10, the right to free expression, in Nikula v Finland (Application No. 31611/96, Judgment of 21 March 2002).

 In a case of apparent first impression for the Court, it found in favour of a lawyer who was convicted of criminal defamation for statements she made during the course of representing her client in criminal proceedings in court. The judgment sets forth the importance of protecting even the most zealous advocate's speech in her efforts to represent her client fully in court. Indeed, statements which are extremely critical of a prosecutor -- i.e., that he is deliberately abusing his discretion and implying that he has engaged in unlawful behaviour -- are protected under Article 10, even when the only restriction has been the imposition of a relatively small fine. As the Court states at paragraphs 54-55:

 [T]he threat of an ex post facto review of counsel's criticism of another party to criminal proceedings -- which the public prosecutor doubtless must be considered to be -- is difficult to reconcile with defence counsel's duty to defend their clients' interests zealously.  It follows that it should be primarily for counsel themselves, subject to supervision by the bench, to assess the relevance and usefulness of a defence argument without being influenced by the potential "chilling effect" of even a relatively light criminal sanction or an obligation to pay compensation for harm suffered or costs incurred.

It is therefore only in exceptional cases that restriction -- even by way of a lenient criminal sanction -- of defence counsel's freedom of expression can be accepted as necessary in a democratic society.

The Court explicitly relied on Interights� submission in coming to this conclusion, first laying out the relevant comparative law arguments in Section III: Comparative Law and Practice, at paragraphs 22-28, and then subsequently by relying on these materials in two places to reach their legal conclusions -- in paragraph 46, by noting that there is no lack of common ground among member states on this issue of law and that therefore there is no basis for allowing a wide margin of appreciation to the state and in paragraph 50, noting the common distinction made between courts and prosecutors when assessing the breadth of freedom to criticise.

For the full text of the judgment or Interights� amicus curiae submission, visit http://www.interights.org.

 

LIBERTY AND SECURITY OF THE PERSON 

INTERIGHTS� work in the field of liberty and security is conducted principally through litigation advice and support, and training in international standards. In addition, through selective publications and public presentations, and providing occasional commentary on developing international and regional standards, INTERIGHTS sought to promote respect for the rule of law and the centrality of human rights and humanitarian law.

The following is an illustration of key areas of casework during the relevant period.

�        The duty to investigate and prosecute violations of the security of the person, and in particular the requirements of conducting an �effective investigation� into rape and/or sexual violence, emerged during the relevant period as an issue of relevance across the regions in which INTERIGHTS works. Separate cases were therefore presented before the European Court of Human Rights (ECHR) (C v Bulgaria) and the Supreme Court of Sri Lanka (Kamal Addaracchchi case). INTERIGHTS worked with partner organisations to ensure that relevant international and comparative standards were presented to the Courts.

 �        In respect of the unlawful application of the death penalty, INTERIGHTS continued its legal work by presenting cases, and assisting partner organisations to do so, before international fora -- the UN Human Rights Committee and the African Commission on Human and Peoples' Rights � and domestic bodies, such as the Human Rights Violations Investigation Commission in Nigeria. In one such case (Mr. Glenn Ashby v Trinidad and Tobago), the Human Rights Committee found during this period that Trinidad and Tobago were in breach of both Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and its First Optional Protocol in carrying out an execution of Glenn Ashby, whose case had been the subject of a communication by INTERIGHTS. The case concerned a number of issues relating to the imposition of the death penalty and treatment in prison.

�        The urgency of challenging practices of arbitrary detention continued to be felt throughout this period, particularly post September 11 (see below). INTERIGHTS sought to challenge such practices not only in the penal context where unlawful detentions remain rife, but also in relation to the practice of detaining patients arbitrarily on mental health grounds (R v Russia, before the European Court of Human Rights).

 �        The ill treatment of persons detained -- prisoners and mental health patients specifically -- were also issues challenged, as were violations of fair trial rights.  In one such case presented by INTERIGHTS, the UN Human Rights Committee found the applicant to have been subject to inhuman punishment (through use of the birch) and that unreasonable delay and the denial of the right to appeal amounted to violations of his fair trial rights. The Committee recommended compensation and that he be afforded the right to appeal (Booklal v Trinidad and Tobago).

 �        The question of appropriate remedies for human rights violations was addressed in various ways. One involved an intervention to which INTERIGHTS contributed before the South African Constitutional Court challenging the constitutionality of aspects of the South African truth and reconciliation process. Another, in which INTERIGHTS assisted domestic lawyers with an intervention before the Appellate Chamber of the Rwanda Tribunal, concerned the appropriate remedy for delayed and irregular rendition of a suspected genocidaire for trial.

 �        As the work of INTERIGHTS clearly testifies, the issues around states of emergency and terrorism did not arise with September 11 and are far from new, even if they are more acutely felt since that time. During this period, INTERIGHTS contributed international and comparative law advice to challenge unlawful measures taken in the name of �anti-terrorism� and public order, particularly in South Asia. It continued its work on the national and international level, by supporting legal challenges in Nepal (Nepal Police Act and its conformity to international and comparative human rights standards before the Supreme Court of Nepal), Sri Lanka (Singharasa case before the Human Rights Committee) and Bangladesh (challenge to the Public Safety Act 2000 before the Bangladesh Constitutional Court). In addition, it began to advise on cases emerging from post September 11 arrests and detentions, in respect of persons detained arbitrarily by the United States in Guantanamo Bay, Cuba. 

Post �September 11� work

 INTERIGHTS responded quickly to those challenges, for the rule of law and the human righst movement by preparing a report entitled Responding to September 11: The Framework of International Law, the first part of which was published within weeks of the attacks.  The paper set out the law relevant to the September 11 attacks and possible responses to those attacks, while highlighting areas where the law is unsettled. It did not address the facts, nor advocate any position beyond the application of international law, but rather it sought to provide a critical resource, otherwise absent, for those grappling with the many legal questions raised by the situation.

The report was circulated widely throughout the world. It has been described as shaping the debate in partner organisations and has been relied upon widely in university curricula in several countries. The report has been translated into Spanish and French and summaries have been published in Arabic and Russian.

INTERIGHTS followed up on this work by contributing to the debate, within the human rights movement and publicly, as to appropriate responses. The Legal Director spoke at numerous conferences and meetings - including in Cairo (with lawyers and activists from the Middle East), London and Geneva on the evolving human rights situation, including for example respect for humanitarian law in the Afghanistan conflict and arbitrary detentions in Guantanamo Bay.

National, regional and international legislative and other measures emerged during this period, setting forth standards and guidelines concerning anti-terrorist laws and practice. INTERIGHTS commented on certain of these standards and their consistency with international human rights law.

As noted above, INTERIGHTS also advised on international and comparative law in particular cases where anti-terrorism and public order legislation and practices were being challenged in domestic courts.

The situation in the latter part of the period 2001-2002 underlined the need to address the complementarity of humanitarian and human rights laws in our work. The proliferation of armed conflicts around the world requires increased attention to the applicability of international humanitarian law standards, and INTERIGHTS sought increasingly, through its legal advice and case work as well as publications, to provide expertise and assistance in this field.