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Report of the Special Rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy, submitted in accordance with Commission on Human Rights resolution 2002/43

E/CN.4/2003/65/Add.1

 

    
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          Introduction
          1. This report contains brief summaries of the urgent appeals and
          communications transmitted to governmental authorities between 1 December 2001
          and 31 December 2002, as well as replies to the allegations received between 1
          January 2002 and 31 December 2002. In addition, the Special Rapporteur takes note
          in this chapter of the activities of other mechanisms which are related to his mandate.
          Where appropriate, the Special Rapporteur has briefly described developments in
          particular countries or territories even when no communications have been exchanged
          and, where possible, updated the facts up to the time of submission of this report
          Where he has deemed it necessary, the Special Rapporteur has included his own
          observations. He wishes to emphasize that the appeals and communications reflected
          in this chapter are based exclusively upon information that has been transmitted to
          him directly. Where information was insufficient, the Special Rapporteur was not in a
          position to act. He also recognizes that problems concerning the independence and
          impartiality of the judiciary are not confined to the countries and territories
          mentioned. In this regard, he wishes to emphasize that readers of the present report
          should not interpret the omission of a particular country or territory as indicating that
          the Special Rapporteur considers that there are no problems with the independence of
          judges and lawyers in that country or territory.
          2. In preparing this report, the Special Rapporteur has taken note of the reports
          submitted to the Commission by the country special rapporteurs/representatives and
          independent experts.
          Afghanistan
          3. The Special Rapporteur has been monitoring the restructuring ofthe system of
          justice in the light of the provisions of the Agreement on Provisional Arrangements in
          Afghanistan pending the Re - Establishment of Permanent Government Institutions
          (“the Bonn Agreement”), signed on 5 December 2001 in Bonn. Section 11(2) of the
          Agreement provides that:
          “The judicial power of Afghanistan shall be independent and shall be vested in
          a Supreme Court of Afghanistan, and such other courts as may be established
          by the interim administration. The interim administration shall establish, with
          the assistance of the United Nations, a Judicial Commission to rebuild the
          domestic justice system in accordance with Islamic principles, international
          standards, the rule of law and Afghan legal traditions.”
          4. Pursuant to this Agreement a Judicial Commission was set up in May 2002.
          The Special Rapporteur planned to undertake a mission to Kabul in September 2002
          to meet the members of the Commission and other actors in the administration of
          justice, to assist in the discharge of the mandate of the Commission. However, in
          August 2002, the Special Rapporteur was informed that the Commission had
          suspended its work and the Chairman had resigned. Hence the Special Rapporteur was
          advised to wait until a new Commission was formed. In November 2002, by
          presidential decree, a new Commission was established.
        
          
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          5. At the invitation of the International Development Law Organisation (IDLO),
          the Special Rapporteur attended, from 16 to 17 December 2002, a round table
          discussion in Rome on “The Role of Law in a Modem Afghanistan” The objectives
          of the round table were to assist the Judicial Commission with the challenges it faces
          in establishing a pluralistic democracy, an independent judiciary, and a new
          constitutioml order. Experts, including Muslim and non-Muslim scholars world were
          invited to present their research and opinions. Members of the Judicial Commission,
          the Chief Justice, the Minister of Justice and the Attorney General of Afghanistan
          were present, among others. The Special Rapporteur addressed the round table and
          presented a paper on the “Role of the Judiciary within the Administration of Justice in
          a Democracy”.
          6. Severalrecommendations were adopted at the conclusion of the discussioi
          including:
          • The rebuilding of the legal and judicial system in Afghanistan is a task
          to be performed by the Afghan people in the first place;
          • The reconstruction of Afghanistan's legal and judicial system should
          proceed on the basis of Islamic principles and values, Afghan legal traditions and
          customs and Afghanistan's international legal obligations;
          • Core human rights as well as those recognized by Islamic
          jurisprudence should be enshrined in the constitutional and legal framework;
          • The legal and judicial system should contain easily accessible and
          effective mechanisms for the enforcement of human rights;
          • The judiciary should be recognized as a separate, independent,
          adequately funded (with particular emphasis on the salaries judges), fully protected
          and equal branch of the State, together with the executive and the legislature, in order
          to ensure access to justice and fairness for all people in Afghanistan
          • An independent judiciary should also be transparent and accountable;
          • Adequate attention should be paid to the development of education and
          training for judges, lawyers, prosecutors and court personnel;
          • All rights and principles that are fundamental for due process and fair
          trial should be fully incorporated into the legal and judicial system;
          • The State should ensure access to justice, including legal aid and right
          to defeire counsel;
          The round table also strongly recommended that the international community should
          provide on an urgent basis financial and other assistance, coordinated through the
          Judicial Commissio i for a modern and effective legal and judicial sector to ensure
          the rule of law, peace and progressive security throughout the country and the
          reconstruction of Afghanistan.
        
          
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          7. These recommendations were presented to a conference on “Rebuilding the
          Justice System in Afghanistan” organized by the Government of Italy on 19 and 20
          December 2002, also held in Rome. This conference was attended by a large number
          of donor Governments that are supporting the development of Afghanistan The
          President of Afghanistan, Hamid Karzai, the Foreign Ministers of Italy and
          Afghanistan and the United Nations Advisor of the Special Representative of the
          Secretary-General in Afghanistan officiated. The Special Rapporteur also attended the
          two-day conference. At its conclusion the conference adopted a Final Statement in
          which the participating States, inter alia, declared their commitments to assist, in a
          generous, efficient and coordinated way, the Afghan Government and the Judicial
          Reform Commission in restoring the justice system and the rule of law in
          Afghanistan.
          8. Conferences and resolutions aside, the realities of the situation on the ground
          in Afghanistan are a matter of concern. Rebuilding a legal system devastated after 23
          years of war is no easy task. The Special Rapporteur has heard very recently,
          subsequent to the meetings in Rome, that the restructuring of the judicial system is
          being hampered by a lack of international action and domestic political infighting.
          Courts are desperately short of trained staff and funds, and judges, particularly outside
          of Kabul, are being intimidated by warlords. Various international organizations have
          evaluated the situation in Afghanistan and identified the problems and made
          recommendations. All these efforts, though well intentioned, are potentially
          overlapping resulting in wastage of human and financial resources. Nevertheless, it is
          still uncertain whether there is a body coordinating all these efforts with the requisite
          political will to implement the required reforms. At the present pace the reforms
          envisaged in the Bonn Agreement may not be achieved in the established time frame.
          9. The Special Rapporteur ur s the Commission to address this situation
          urgently.
          Algeria
          Communications to the Government
          10. On 12 September 2002, the Special Rapporteur sent a joint urgent appeal with
          the Special Rapporteur on extrajudicial, summary or arbitrary executions and the
          Special Representative of the Secretary-General on human rights defenders
          concerning a human rights lawyer, Mahinoud Khelili. According to the information
          received, Mr. Khelili's son, Ahmed, had received an anonymous death threat on 2
          September 2002 on the same day as Mr. Khelili appeared in court in Oran to defend a
          person who had accused top officials in the army of trafficking in cocaine. Mahmoud
          Khelili's other son, Karim, had also in the past been detained and arrested by the
          authorities in an attempt to intimidate Mr. Khelili.
          Observations
          11. The Special Rapporteur regrets that to date the Government has not responded.
        
          
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          Argentina
          Communications to the Govermnent
          12. On 19 February 2002, the Special Rapporteur sent a communication regarding
          proceedings initiated against nine members of the Supreme Court, following its
          judgement of 1 February 2002 declaring unconstitutional a government decree which
          imposed restrictions on the withdrawal of bank deposits. According to the information
          received, the Impeachment Committee of the lower house of Parliament (the Chamber
          of Deputies) admitted several impeachment requests, some of which had been
          presented several years previously. Reportedly, the accusations were still pending
          before the Chamber, which had to act before the process could move to the Senate. It
          was reported that the President of the Supreme Court, Julio Nazareno, and the Vice-
          President, Eduardo Moliné, stated that they had been pressured to give up their
          positions. It was also alleged that the impeachment process was simply a formality
          and that members of the Senate believed that it was necessary to remove most of the
          judges.
          13. On 4 July 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
          Representative of the Secretary-General on human rights defenders concerning a
          lawyer, Claudio Pandolfi According to the information received, Mr. Pandolfi, who
          works for the human rights organisation Coordinadora contra la Represión Policial e
          Institucional, had received threatening phone calls on 29 and 30 June 2002. It was
          alleged that this was in connection with his investigations of incidents that had taken
          place in Avellaneda, Buenos Aires, on 26 June 2002.
          14. On 7 November 2002, the Special Rapporteur sent ajoint urgent appeal with
          the Special Rapporteur on extrajudicial, summary or arbitrary executions and the
          Special Representative of the Secretary-General on human rights defenders
          concerning a lawyei Laura Figua. According to the information received, on 28
          October 2002, Ms. Figua's house was broken into but the police failed to do anything,
          even though they were only 30 metres away Ms. Figua had also been threatened
          repeatedly in the past. Also on same day, the house of prosecutor Emffio Ferrer was
          also broken into, allegedly because he was working on a case of disappeared persons
          in area of Pozo de Vargas in the province of Tucumán
          Communications from the Govermnent
          15. The Government sent three communications, dated 21 February 2002, 13 and
          21 March2002, in reply to the Special Rapporteur's communication of 19 February
          2002. The Government forwarded the reply ofthe President of the Parliamentary
          Impeachment Commission of the Chamber of Deputies of the Natioi which drew
          attention to article 53 of the National Constitution. This article provides that only the
          Chamber of Deputies is entitled to bring impeachment proceedings in the Senate
          against members of the Supreme Court in cases of misconduct, crimes committed in
          the exercise of their functions and ordinary crimes. It acts only as the prosecutor once
          it has been mandated to do so by a two-thirds majority of the members present and
          voting and after an indictment has been handed down by the Parliamentary
          Impeachment Commission. The rules governing the proceedings in the Chamber of
        
          
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          Deputies guarantee due legal process and the rights of the defence. The Chamber of
          Deputies must neither depart from the facts of the case nor base its accusations on
          circumstances or motives which are irrelevant to it. The Senate then acts as the judge
          and tries the case, and has an absolute obligation to be impartial and to afford the
          persons indicted the right to a fill defence. Both the substantive rules establishing the
          grounds for dismissal, as well as the rules of procedure, were drafted and in force
          prior to the offences being tried, thereby guaranteeing the principles of the
          presumption of innocence and the right to a fair hearing.
          16. On 8 April 2002, the Government sent information concerning lawyer Maltide
          Bruera (E/CN.4/2002/72, annex, para.3). The Government stated the Special
          Operations Unit of the Santa Fe Provincial Police Department had conducted
          extensive investigations as a result of the lodging of a complaint before the District
          Criminal Court of First Instance in the 8 th District of Rosario by Mrs. Bruera. On 4
          April 2001, the case was transferred to the 3 rd Federal Court of the City of Rosario,
          pursuant to a decision of the Supreme Court. The investigations had not resulted in the
          identification of the person responsible for the threats against Mrs. Bruera. On 7
          March 2002, the Chamber of Deputies issued a declaration of solidarity with Matilde
          Bruera and Rodolfo Scholer and condemned the threats made against them. [ 01
          17. On 1 August 2002, the Government replied to the Special Rapporteur's joint
          urgent appeal of 4 July 2002. The Government stated that on the day the incidents
          took place officials from the Provincial Office for the Promotion and Protection of
          Human Rights and the Secretariat for Human Rights of the Province of Buenos Aries
          visited Police Station No. 1 in Avellaneda and requested a list of those individuals
          detained and their situatioi as well as information concerning the authority who had
          ordered the detention Those officials then took steps to identify and release the 160
          detainees. As a result of investigations so far nine police officers have been
          suspended, four of whom have been detained, however, two have escaped and are the
          subjects of an arrest warrant. Three of those who have been arrested have been
          charged with double homicide and the other has been charged with complicity in a
          multiple offence and the failure to fulfil the duties of a public official.
          Observations
          18. The Special Rapporteur thanks the Government for its response.
          Azerbaijan
          Communications fmm the Government
          19. On 21 February 2002, the Government replied to the Special Rapporteur's
          communication of 26 October 2001 (E/CN.4/2002/72, annex. para. 12) concerning
          lawyer Asian Ismailov. The Government stated that the adoption of the Legal
          Profession and Legal Practice Act was a logical outcome of judicial and legal reform
          in Azerbaijan. Also, the Bar Association is a fully independent and self-regulating
          body, and procedures for the admission of members are still being worked out. The
          handling of Mr. Ismailov's case, lies exclusively within the jurisdiction of the Bar
          Association and his licence to work for the Visa law firm has been extended to 2004.
          It is also noted that Mr. Ismailov actively participated in an international seminar in
        
          
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          Baku in 2001, which discussed the Legal Profession and Legal Practice Act and
          questions of legal ethics.
          Observations
          20. The Special Rapporteur thanks the Government for its response.
          Bangladesh
          Communications to the Government
          21. On 25 July 2002, the Special Rapporteur sent an urgent appeal concerning an
          attack on a lawyer, Rabindra Ghosh According to the information received, on 1
          July 2002, Mr. Ghosh had been attacked while filming a meeting of the Bar
          Association of the Supreme Court. It was alleged that one of the attackers accused
          him of having links to the Indian Government and told him that “if you do not leave
          the country, we will show you the consequences.” It was further reported that Mr.
          Ghosh had received repeated threats in recent months.
          Communications from the Government
          22. On 31 October 2002, the Government replied to the Special Rapporteur ‘s
          urgent appeal of 25 July 2002, and advised that a police inquiry had been established
          by the Dhaka Metropolitan Police. The inquiry revealed that there had been an
          altercation between some rowdy young lawyers and Rabindra Ghosh. The
          Government further stated that Mr. Ghosh did not wish to lodge a formal complaint
          regarding the incident as he had advised the police that he had submitted a complaint
          to the Supreme Court Bar Association and was awaiting its decision before pursuing
          the matter further.
          Observations
          23. The Special Rapporteur thanks the Government for its response.
          Belarus
          Communications to the Govermnent
          24. On 27 November 2002, the Special Rapporteur sent an urgent appeal
          concerning Vera Stremkovskaya, a human rights lawyer who was allegedly
          prohibited by the Minsk Municipal Bar Association from leaving Belarus to
          participate in international conferences abroad, including a meeting of the
          independent lawyers' associations in Brussels on 10 and 11 October 2002 and a
          meeting of the Democratic Forum in Seoul, on 11 to 14 November 2002.
          Observations
          25. The Special Rapporteur regrets that the Government has not responded to this
          communication or to the recommendations made in the Special Rapporteur's mission
          report (E/CN.4/200 1/65/Add. 1).
        
          
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          Brazil
          Communications to the Government
          26. On 30 July 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
          Representative of the Secretary-General on human rights defenders concerning threats
          to the Brazilian Lawyers' Association (Orem dos Advogados Brasileiros) in the State
          of EspIrito Santo. According to the information received, on 23 July 2002, an
          anonymous caller had threatened the head of the Association, Dr. Agisandro da
          Costa Pereira. On 25 July 2002, a bomb exploded in the offices of the Association
          while it was holding a ceremony for new members. Subsequent to the explosion
          another anonymous phone call was received, the caller allegedly stating that “We're
          going to blow you all up in one go.”
          27. On 10 October 2002, the Special Rapporteur sent a joint urgent appeal with
          the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
          Cristiano Arantes e Silva, of Comarca de Xinguara, State ofPara, who had received
          death threats related to his activities as a judge. This reportedly included anonymous
          letters and phone calls addressed to him and his wife. On 24 September 2002, four
          shots were allegedly fired at his house.
          Observations
          28. The Special Rapporteur regrets that to date the Government has not responded.
          Central African Republic
          Communications to the Govermnent
          29. On 15 February 2002, the Special Rapporteur sent an urgent appeal
          concerning the trial of those suspected of having taken part in the attempted coup
          d'etat of 28 May 2001. According to the information received, whenthe trial started
          on 4 February 2002, before the criminal court of Bangui, many ofthe accused had not
          been granted access to an attorney. It was also alleged one of the accused, Jean-
          Jacques Demafouth former Minister of Defeite, had not been able to meet with his
          lawyers since his arrest on 25 August 2001 and that his lawyers were not given an
          opportunity to study the case file before 12 February 2002. It was reported that capital
          punishment could be imposed if the accused are found guilty.
          30. On 26 April 2002, the Special Rapporteur sent a second urgent appeal
          concerning the trial of those suspected of having taken part in the attempted coup
          d'etat. According to the information received, one of the defeite lawyers, Mr.
          Zarambaud, was removed from the case by the Criminal Court of Bangui without
          giving a reason. Following the court's decision, the Bar Association of the Central
          African Republic decided on 7 March 2002 to withdraw from the case in protest.
          Since the law provides that during a criminal trial the accused must have legal
          counsel, the court case has been suspended.
        
          
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          Observations
          31. The Special Rapporteur regrets that to date the Government has not responded.
          Chad
          Communications to the Govermnent
          32. On 25 September 2002, the Special Rapporteur sent a joint urgent appeal with
          the Special Rapporteur on torture and the Special Representative of the Secretary-
          General on human rights defenders concerning a lawyer, Jacqueline Moudeina.
          According to the information received, Ms. Moudeina had been injured in the leg
          during a demonstratior when a grenade was launched by anti-riot police. Ms.
          Moudeina was one of 100 demonstrators who had tried to deliver a letter to the French
          Ambassador to express their discontent over the French Government's support to the
          Déby regime during the last elections.
          Observations
          33. The Special Rapporteur regrets that to date the Government has not responded.
          C hina
          Communications to the Government
          34. On 16 September 2002, the Special Rapporteur sent a joint urgent appeal with
          the Special Rapporteur on torture, the Chairman-Rapporteur of the Working Group on
          Arbitrary Detention and the Special Representative of the Secretary-General on
          human rights defenders concerning the alleged detention ofDr. Wan Yanhai, the
          founder and coordinator of the AIZHI (AIDS) Action Project, on 24 August 2002 by
          State security authorities. The Special Rapporteur expressed concern that that Dr.
          Wan Yanha whose detention was allegedly in a secret place, had limited or no
          possibility to contact his family and friends or to benefit from legal representation of
          his choice during this time.
          Communications from the Govermnent
          35. On 28 November 2002, the Government replied to the Special Rapporteur's
          joint urgent appeal of 16 September 2002. The Government stated that Dr. Wan
          Yathai was legally detained and questioned on suspicion of the offence of unlawfully
          transmitting secrets abroad. Further, Dr. Wan Yanhei had requested in writing that his
          family members were not to be notified should he be detained and that he had
          voluntarily renounced his right to counsel. The Government stated that Dr. Wan
          Yanhai acknowledged his unlawful activities and voluntarily admitted his guilt. In
          return for this acknowledgment and for his cooperation, the Beijing City State
          Security Bureau granted Dr. Wan Yanhai a discharge on the condition that he make a
          statement of repentance.
          Observations
        
          
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          36. The Special Rapporteur thanks the Government for its response.
          Colombia
          Communications to the Govenunent
          37. On 4 July 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
          Representative of the Secretary-General on human rights defenders concerning threats
          to the Corporación Colectivo de Abogados “Jose Alvear Restrepo”. According to the
          information received, a poster had been put up in universities accusing the
          organization of being the legal arm of a paramilitary group, the National Liberation
          Army (Ejército de Liberación Nacional). The poster had also called for solidarity with
          members of the national army who were involved in cases alleging the commission of
          human rights abuses brought by the organization.
          38. On 25 October 2002, the Special Rapporteur sent a joint urgent appeal with
          the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
          Operation Orion in Medellin. According to the information received, this operation,
          led by the police and the army, had resulted in the detention of 200 persons. Some of
          the lawyers of the detained persons alleged that during the arrest and investigation
          stage, the legal rights of their clients were neither guaranteed nor respected.
          Communications from the Govenunent
          39. On 23 July 2002, the Government replied to the Special Rapporteur's
          communication of 4 July 2002. The Government stated that upon being notified of the
          poster concerning the activities of the organization, Jose Alvear Resptrepo, the Office
          of the Vice-President of the Republic issued a public statement rejecting threats,
          attacks and other forms of intimidation against a non- governmental organization
          involved in the promotion and protection of human rights. The Ministry of the Interior
          issued a similar public communication. The Government also stated that the Inter-
          American Commission on Human Rights had ordered protective measures for the
          organization and as a result its installations would be strengthened and the case will
          be reviewed by the Risk Evaluation and Regulation Committee of the Ministry of the
          Interior. The Government also stated that a preliminary investigation into th
          Administrative Department for National Security had been closed because of a lack of
          evidence of its responsibility for the threats against the organization.
          40. On 5 December 2002, the Government replied to the Special Rapporteur's
          joint urgent appeal of 25 October 2002. The Government stated that the Office of the
          Vice-President of the Republic had identified a number of criminal armed groups
          (including FARC, CAP, ELN ard AUC) that had settled down in La Comuna 13 due
          to its strategic location in MedellIn. Due to the presence of these groups, crime rates
          had dramatically increased in La Comuna. Under these circumstances it was decided
          to launch Operation Orion on 16 October 2002 in order to restore public order. The
          Government advised tInt the following was the result of the operation: basic security
          was restored in the most severely affected areas; 20 persons who had been abducted
          were released; arms and munitions were found; a number of bombs and explosives
          had been deactivated; and 319 persons had been arrested (244 of whom were still in
        
          
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          detention upon the order of the prosecutor). The Office of the General Prosecutor and
          the Ombudsman monitored the investigation and the Government advised that it has
          asked the General Prosecutor to guarantee the legal rights of the detainees.
          Observations
          41. The Special Rapporteur thanks the Government for its response. He continues
          to be concerned over the high level of violence and threats to the security ofjudges
          and lawyers.
          Czech Republic
          Communications from the Government
          42. Following the Special Rapporteur's previous communications
          (E/CN.4/2002/72, annex, paras. 40-42) the Government, in a communication dated 6
          March 2002, informed the Special Rapporteur of the new Law on Courts and Judges,
          to take effect on 1 April 2002. The new law requires that each judge must possess
          certain qualifications which are to be reassessed regularly and that judges who lack
          these qualifications may be removed from office. Judges are appointed by the
          President for an unlimited term. Eachjudge is assessed three years after appointment,
          and then every five years. The assessment is carried out by the president of the court.
          The Judicial Council gives its views on the evaluation report by the president. If
          performance does not appear to meet the required standards, a special panel will be
          appointed to review the judge's final decisions made during the period in question If
          the panel considers the judge's performance unsatisfactory, the Professional
          Qualifications Council will reassess the j dge's qualifications. The Council comprises
          members of the Supreme Court and the High Courts, public attorneys, legal counsels,
          jurists, notaries, etc. The decisions of the Professional Qualifications Council can be
          reviewed by the Supreme Court. A judge nny then be removed from office only after
          the Supreme Court decides that he or she lacks the necessary qualifications. The
          Government submits that to ensure a fully impartial review, the process involves the
          judicial and executive branches as well as independent experts.
          43. As regards the impartiality of judges, the Government states that the new
          legislation retains all safeguards previously contained in the 1991 law on the courts.
          Section 86 of the law regulates the liability of judges for disciplinary breaches. The
          most severe disciplinary sanction is removal from office. The legislation regulating
          disciplinary proceedings (Act No. 7/2002) will also enter into force on 1 April 2002.
          The disciplinary courts are the High Courts in Prague and Olomouc, and appeals can
          be lodged with the Supreme Court. Disciplinary proceedings can be initiated by the
          Minister of Justice (against any judge) or the president of a court (against any member
          of the court). Under the Law on the Courts and Judges, continuing education is
          obligatory for all judges, except for Supreme Court judges.
          Observations
          44. The Special Rapporteur thanks the Government for its response. He continues
          to be concerned about the extensive powers that the Minister of Justice has over
        
          
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          appointments, the exercise ofjudicial functions, the evaluation of the performance of
          judges and discipline of judges.
          Democratic Republic of the Congo
          Commuuicatiow to the Government
          45. On 21 March 2002, the Special Rapporteur sent an urgent appeal, together
          with the Special Rapporteur on the situation of human rights in the Democratic
          Republic of the Congo, the Special Rapporteur on torture and the Special Rapporteur
          on extrajudicial, summary or arbitrary executions, concerning the military courttrial
          of 115 persons accused of having participated in the assassination of President Kabila
          on 16 January 2001. It was alleged that most of the accused had been kept in secret
          detention for over a year before having been formally charged and that they had not
          been allowed contact with their lawyers. It was alleged that, even at the beginning of
          the trial, some of the accused had still not been in contact with their lawyers and that
          most of the lawyers for the accused had not been given access to the case files. It was
          reported that if convicted, the accused would face the death sentence.
          46. On 27 May 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Representative of the Secretary-General on human rights defenders, the
          Special Rapporteur on torture and the Special Rapporteur on the situation of human
          rights in the Democratic Republic of the Congo concerning a lawyer, Wffly Wenga
          ilombe. According to the information received, on 20 February 2002, Mr. Ilombe,
          who is a member of the Centre africain pour la paix, la democratic et les droits de
          l'homme (ACPD), was arrested based upon a summons signed by Magistrate Likulia,
          prosecutor of the Cour d'ordre militaire (COM). On 22 February 2002, Mr. Ilombe
          was interrogated by four magistrates of the court concerning his relationship with
          Major Kamwanya Bora Uzima, one of the presumed assassins of former President
          Kabila. Subsequent to this, Mr. Ilombe was placed in detention for threatening the
          security of the State. It is alleged that these actions preceded the publication of a
          report by the ACPD denouncing the lack of the independence of the judiciary in the
          country.
          47. On 18 July 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on freedom of opinion and expression, the Special Rapporteur on
          torture, the Chairman- Rapporteur of the Working Group on Arbitrary Detention and
          the Special Rapporteur on the situation of human rights in the Democratic Republic of
          the Congo concerning the President of the Bar Association of Kasal. Oriental, Mpinga
          Tshibasu According to the information received Mr. Tshibasu was arrested by the
          National Information Agency (agence nationale de renseignement) after he held a
          press conference concerning abuses of power by the State. After his arrest he was
          transferred to Kinshasa. Neither his place of detention nor the reasons for the arrest
          are known.
          48. On 29 October 2002, the Special Rapporteur sent a joint urgent appeal with
          the Special Representative of the Secretary-General on human rights defenders and
          the Special Rapporteur on the situation of human rights in the Democratic Republic of
          the Congo concerning lawyer and Chairnun of the Board of Directors of the
          Congolese Human Rights Observatory (OCDH), Sebastien Nkokesha Kayembe.
        
          
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          According to the information received, Mr. Kayembe was abducted on 15 October
          2002 by armed men in uniform and was severely tortured and accused of being “the
          devil's lawyer” and of “representing people who killed Mzee” (former President
          Kabila). Mr. Kayembe was part of a team of lawyers who represented the accused
          assassins. It was alleged that Mr. Kayembe had unsuccessfully tried to persuade the
          court to prosecute members of Minister Mwenze Kongolo's Cabinet of Security and
          Public Order. In addition, the Special Rapporteurs were informed that Mr. Kayembe
          was so badly injured that he can no longer practise his profession.
          Observations
          49. The Government continues to ignore all communications from the Special
          Rapporteur.
          Ecuador
          Communications to the Govermnent
          50. On 15 April 2002, the Special Rapporteur sent a communication concerning
          the failure of the Ecuadorian authorities to implement a decision of 14 December
          2001 handed down by Constitutional Judge Juan Omar Mina Quintero, fourth Civil
          Judge of Eloy Alfaro and San Lorenzo. In his judgement, Jalge Quintero confirmed
          an earlierjudgement setting aside the criminal proceedings brought against Abdala
          Bucaram Ortiz, and declared the detention orders against him null and void.
          Communications received from the Govermnent
          51. On 22 May 2002, the Government replied to the Special Rapporteur's
          communication dated 15 April 2002. The Government stated that the decision of 14
          December 2001 by the judge of the Fourth Civil Court, Eloy Alfaro and San Lorenzo,
          in the province of Esmeraldas, had been declared by the President of the Supreme
          Court on 26 December 2002 as being null and void and having no effect whatsoever.
          The Government stated that this decision was based upon article 95(2) of the
          Constitution, which states that judicial decisions adopted during a trial shall not be
          open to applications for aniparo, as well as article 2 of the plenary decision of the
          Supreme Court, which was published in the Official Gazette (Registro 0 / Ic /al) No.
          378 on 27 July 2001, by which acts prohibited by the Constitution are null and void.
          52. On 15 August 2002, the Government sent further information concerning the
          case of Mr. Bucaram. Firstly, the Fourth Civil Court lacked jurisdiction over the
          application for aniparo since the application should have been submitted in the place
          where the decision being challenged had been enforced. Secondly, the summons was
          not properly served on the respondent, Dr. Enrique Garcia Roman, and as a result the
          respondent was unable to follow prescribed legal procedures. Thirdly, the fact that no
          summons was served in accordance with the Ecuadorian Code of Civil Procedure
          meant that the decision of 14 December 2001 was null and void and tint the detention
          order served on Mr. Bucaram consequently remains in force.
          Observations
        
          
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          53. The Special Rapporteur thanks the Government for its responses. He has not
          received any further communication from the complainant.
          Egypt
          Communications to the Government
          54. On 20 February, the Special Rapporteur sent an urgent appeal concerning the
          detention on 20 January 2002 of eight men in Damanhour, Al-Beheira, allegedly for
          debauchery. According to the information received on 23 January 2003, a lawyer who
          had been instructed by friends of the eight men was refused access to the detainees by
          the police and was only informed that three men had been released, without
          specifying their identity. It was reported that on 26 January 2002, the accused
          appeared before a judge who extended their detention for 45 days. It is alleged that the
          lawyer for the accused was barred access to the hearing, and he has not yet been able
          to gain access to his clients.
          55. On 26 February 2002, the Special Rapporteur, jointly with the Special
          Representative of the Secretary-General on human rights defenders, sent a letter
          welcoming the judgement by the Court of Cassation, which ordered the retrial of
          Saadeddin Ibrahiin and his co-accused, on whose behalf the Special Rapporteurs
          had intervened on 22 May 2001 (E/CN.4/2002/72, annex, para. 58).
          56. On 26 September 2002, the Special Rapporteur sent a communication
          concerning the conviction of 51 alleged members of an Islamist group by Egypt's
          Supreme Military Court on 9 September 2002. According to the information received,
          it was alleged that the accused are civilians but were tried before a military court and
          denied the right to be tried before an independent and impartial tribunal Further, they
          are denied the right to appeal to a higher court as verdicts by military courts can only
          be reviewed by the Military Appeals Bureai which is not a court.
          Communications from the Government
          57. On 6 March 2002, the Government replied to the Special Rapporteur's letter of
          26 February 2002. The Government stated that Mr. Ibrahim and his co-defendants had
          been released pending retrial. The Government also asserted that all safeguards for a
          fair trial will be guaranteed in accordance with Egypt's long-standing traditions. The
          Special Rapporteur has learnt that Mr. Ibrahim and his co-defendants were tried for
          the third time on 3 February 2003 and Court has reserved jud ment to be delivered
          on 18 March 2003.
          58. On 10 October 2002, the Government replied to the Special Rapporteur's
          letter of 20 February 2002. The Government stated that on 11 March 2002, the court
          in Damanhour, Al-Beheira, sentenced the accused to three years in prison on charges
          of debauchery and imposed a fine of 300 Egyptian pounds. The defendants filed an
          appeal which was heard bythe Court of Appeal on 12 April 2002. The Court of
          Appeal annulled the lower court ruling on the grounds that that the court could not be
          confident about the investigation or the confessions made to the police. The
          Government stated that all accused persons received legal representation and their
          defence lawyers requested a stay of proceedings, which was granted by the court.
        
          
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          Observations
          59. The Special Rapporteur regrets that he has not received a response to his
          earlier communication of 19 November 2001 (E/CN.4/2002/72, annex, para.59).
          However he has since received information that the four men were sentenced on 3
          February 2002 to three years' imprisonment. The Special Rapporteur awaits a
          response to his communication of 26 September 2002.
          Equatorial Guinea
          Communications to the Government
          60. On 27 May 2002, the Special Rapporteur sent a communication to the
          Government coiterning the dissolution of the Bar Association (Colegio de
          Abogados). According to the information received, on 10 May 2002, the Minster for
          Justice and Religion had issued a resolution dissolving the Bar Association due to the
          absence of a presidential decree recognizing its creation. It was alleged that the
          resolution stated that this action was taken pursuant to the activities of several
          members of the organization that were not in accordance with the objectives of the
          organization and had the effect oftransforming it into a platform for their political and
          personal views. The information also stated that the resolution of the Minister created
          a General Council of Lawyers, to be chaired by the Minister, which would be
          responsible for the preparation of a new statute to regulate the activities of lawyers
          and the holding of new elections for the governing council. Current members of the
          association could not be candidates in the election.
          Other developments
          61. The Special Rapporteur also received information concerning the arrest and
          trial of 144 people for threatening state security. They included members or former
          members of the armed forces and relations of leaders of the Fuerza Democratic
          Republicana (FDR). These individuals appeared to have been arrested solely because
          of their alleged links with the FDR.
          62. As a result of these developments, on 12 June 2002 the Special Rapporteur
          sought a mission. There was no response from the Government.
          63. The Special Rapporteur has been informed that the trial was held between 22
          May 2002 and 9 June 2002, and that 67 individuals were convicted and sentenced to
          between 6 years 8 months to 20 years in prison Amnesty International in its report on
          its trial observationconcluded, inter alia, that “at all stages of the proceedings there
          were numerous irregularities both in terms of how the case was investigated and how
          the judges and the prosecution behaved...”
          Observations
          64. The situation in this country continues to be of concern
        
          
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          Guatemala
          Communications to the Government
          65. On 16 January 2002, the Special Rapporteur sent a communication concerning
          the killing of a justice of the peace, Geovany Avila Vásquei in the municipality of
          Gualán, Zacapa, on the night of 11 January2002. According to the information
          received, the Mr. Avila Vásqi z had been killed by 17 bullets while driving his
          vehicle. The Special Rapporteur also expressed his concern about death threats
          received by a prosecutor, Miguel Angel Bermejo, who was in charge of investigating
          acts of corruption within the Ministry of Internal Affairs. Reportedly, the police had
          discovered the existence of a plan to murder the prosecutor.
          66. On 29 August 2002, the Special Rapporteur sent a joint urgent appeal together
          with the Special Rapporteur on extrajudicial, summary and arbitrary executions and
          the Special Representative of the Secretary-General on human rights defenders
          concerning death threats against a lawyer, Luis Roberto Romero Rivera. According
          to the information received, Mr. Romero Rivera received a threatening phone call on
          23 August 2002, in connection with his legal representation of the Myrna Mack
          Foundation. In addition, shots were allegedly fired at Mr. Romero Rivera's house,
          although no one was injured. It was also stated that the Inter-American Court for
          Human Rights had recommended security for Mr. Romero and other members of the
          Myrna Mack Foundation during the course of the trial against General Edgar Augusto
          Godoy Gaytán, Colonel Juan Guillermo Liva Carrera and Colonel Juan Valencia
          Osorio, who had been accused of being behind the murder of Myna Mack. It was
          alleged that this security had not been provided.
          67. On 12 December 2002, the Special Rapporteur sent a communication
          concerning General Prosecutor Carlos David de Leon Argueta. According to the
          information received, Mr. Argueta had received death threats by letter and telephone
          since assuming this position in May 2002. On 5 December 2002, some men shot at
          Mr. Argueta's car but he was not injured. It was alleged that these threats were a
          result of his decision to assign prosecutors to investigate cases ofcorruption and
          organized crime involving high-ranking army officials.
          Communications from the Government
          68. On 1 February 2002, the Government provided comments from the Supreme
          Court of Justice on the Special Rapporteur's mission to Guatemala in May 2001
          (E/CN.4/2002/72/Add.2). The Special Rapporteur was informed that, in general, the
          report was received in a fairly positive light because the Special Rapporteur expressed
          his satisfaction with various judicial developme nts. The Supreme Court of Justice
          took issue with three specific points. Firstly. with respect to the EfraIn Mogollón case,
          the Supreme Court stated that the Special Rapporteur's recommendation would be
          contrary to the Guatemalan legal system. Secondly, to state that MINUGUA supports
          the prevention of lynching programmes is inaccurate since MINUAGA is more of an
          observer and not a proactive actor such as INGUAT, the Peace Secretariat, the
          Ministry of Education and the Public Prosecutor's Department. Finally, the Supreme
          Court clarified the fact that the ruling that stripped 23 deputies of their congressional
        
          
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          immunity was the result of a ruling on 5 March 2001 by the Supreme Court of Justice
          and not the Constitutional Court.
          69. On 9 December 2002, the Government replied to the Special Rapporteur's
          joint urgent appeal of 29 August 2002 concerning lawyer Luis Roberto Romero
          Rivera. The Government confirmed that, as ordered by Inter- American Court for
          Human Rights, the Government had provided 24-hour security to Mr. Romera Rivera.
          70. On 17 December 2002 the Government forwarded a communication from the
          President of the Judiciary and of the Supreme Court of Justice in relation to lawyer
          Erica Lorena Aifán Dávila. On 16 October 2002, the Supreme Court of Justice
          appointed Ms. Dávila as a first instance judge in the municipality of Lxchiguan in the
          Department of San Marcos and she commenced her functions on 14 November 2002.
          Other developments
          71. In paragraph 92(a)(ii) of his mission report (E/CN.4/2002/72/Add.2) on
          Guatemala, the Special Rapporteur recommended that the trial of the persons accused
          of Myrna Mack's murder in 1990 be expedited. The Special Rapporteur is pleased to
          note that on 3 October 2002, the third sentencing court convicted Colonel Juan
          Valencia Osorio on charges that he had ordered her murder and sentenced him to 30
          years' imprisonment. The two co-accused were acquitted ofall charges.
          Observations
          72. The Special Rapporteur expresses concern over the increased incidence of
          physical attacks on judges and calls upon the Government to increase security for
          judges and prosecutors.
          Honduras
          Communications to the Government
          73. On 4 December 2001, the Special Rapporteur sent a joint urgent appeal,
          together with the Special Representative of the Secretary-General on human rights
          defenders and the Special Rapporteur on extrajudicial, summary or arbitrary
          executions, concerning lawyer Cristián Callejas. According to the information
          received, Mr. Callejas had received death threats in connection with cases he had
          presented to the courts against State agents accused of human rights violations.
          Allegedly, unknown persons had fired shots into the air outside Mr. Callejas' house
          and he had also received threatening phone calls.
          Indonesia
          74. The Special Rapporteur refers to his mission report (FJCN.4/2003/65/Add.2).
        
          
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          Iran (Islamic Republic of)
          Communications to the Government
          75. On 31 January 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Rapporteur on freedom of opinion and expression concerning lawyer
          Mohammad-Ali Dadkah According to the information received, on 28 January
          2002, Mr. Dadkah appeared before the Tehran High Court on charges of defamation
          in relation to a plea entered on behalf of several defendants made in November 2001.
          It was reported that at the November hearing, Mr. Dadkah had been expelled by the
          President of the Revolutionary Tribunal before finishing his statements and had thus
          not been able to provide an adequate defeite for his clients. The President of the
          Tribunal then reportedly filed a criminal complaint against Mr. Dadkah for
          defamation and making statements.
          76. On 30 April 2002, the Special Rapporteur sent a further communication
          concerning Nasser Zarafchai on whose behalf he intervened on two previous
          occasions. According to the information received, in March 2002, Mr. Zarafchan had
          been sentenced to five years' imprisonment and 70 lashes by the Judicial Organization
          of the Armed Forces, pursuant to charges of disseminating confidential information. It
          was reported that these charges stem from Mr. Zarafchan's legal representation of the
          families of several Iranian writers and activists who were assassinated in 1998 and,
          more specifically, from his publication of information about the assassinations. It has
          also been alleged, however, that Mr. Zarafchan criticized both the shortcomings ofthe
          official investigation and the absence of vital information in the court files, even
          though he never discussed publicly the contents of these files.
          77. On 29 May 2002, the Special Rapporteur sent anotherjoint urgent appeal with
          the Special Rapporteur on freedom of opinion and expression concerning lawyer,
          Mohammed- Ali Dadkah. The Special Rapporteurs had received further information
          that Mr. Dadkah had been sentenced to five months in prison and suspended from the
          practice of law for a period of 10 years. It was alleged that this sentence was related to
          his representation of individuals who had been arrested in March and April 2001.
          78. On 15 July 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Rapporteur on torture concerning a lawyer, Mr. Soltani According to the
          information received, on 9 July 2002, Mr. Soltani had been sentenced by the First
          Instance Tribunal of Iranto four months imprisonment and suspended from legal
          practice for a period of five years. It was alleged that this sentence related to
          statements made by Mr. Soltani in court in March 2002, alleging that his client had
          been tortured. It was further alleged that Mr. Soltani's lawyer, Seyfzadeh
          Mohanunad had also been sentenced to four months' imprisonment and suspended
          from legal practice for three years.
          79. On 20 August 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Rapporteur on torture and the Special Representative of the Secretary-General
          on human rights defenders concerning lawyer Nasser Zarafchan According to the
          information received, Mr. Zarafchan had been detained prior to the hearing of his
          appeal against a decision of the Military Court of Tebran of 16 July 2002. That
          decision had confirmed a sentence of five years' imprisonment and 70 lashes for the
        
          
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          offences of possession of firearms and alcohol, and the dissemination of confidential
          information. It was alleged that th latter charge actually resulted from his activities as
          a lawyer in the case involving the murder of several writers and activists in 1998. The
          information further stated Mr. Zarafchan was suffering from liver cancer and that in
          detention he was being subjected to medical tests to determine whether he is fit to
          undergo the flogging sentence.
          80. On 4 October 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on torture and the Special Repporteur on extrajudicial, summary
          or arbitrary executions concerning Said Masouri, who had been sentenced to deatI a
          sentence upheld by the Supreme Court. According to the information received, Mr.
          Masouri was an activist and supporter of the People's Mojahedin Organization of Irai
          an armed political group opposed to the current Government. Mr. Masouir had been
          charged with acting against State security, membership of a proscribed organizatioi
          and contravening other security provisions. Allegedly, Mr. Masouri was ill-treated
          and was threatened with summary execution if he refused to make a televised
          confession; further, he had reportedly not been allowed to choose his own lawyer and
          was allocated one by the court.
          Observations
          81. The Special Rapporteur notes that in a press release dated 25 July 2002, the
          Government extended full cooperation to the Office of the High Commissioner for
          Human Rights and extended an open invitation to the thematic rapporteurs of the
          Commission. While this is welcome, the Special Rapporteur urges the Government as
          a first step to respond to the Special Rapporteur's communications. None of the
          communications enumerated herein or in last year's report (E/CN.4/2002/72, annex,
          paras. 98-99) have been responded to.
          Israel
          Communications to the Government
          82. On 2 May 2002, the Special Rapporteur sent a joint urgent appeal withthe
          Special Rapporteur on torture, the Special Rapporteur on the freedom of opinion and
          expression and the Chairman-Rapporteur of the Working Group on Arbitrary
          Detention concerning Manvan Barghouthi. It was alleged that on 15 April 2002, Mr.
          Barghouthi hid been detained by Israeli forces in Ramallah and since his arrest he had
          been prevented from sleeping and denied food, water and medical treatment. Mr.
          Barghouthi had also been denied access to his lawyer, with the exception of a single
          meeting on 16 April 2002. Since that time he had been kept in complete isolation.
          83. On 7 May 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on torture concerning three Israeli detainees who were reportedly
          arrested around 30 April 2002, on suspicion of planning attacks against Arabs and
          other security offences. It was alleged that they were being held in incommunicado
          detention at an unknown location and that an order prohibiting meeting with counsel
          had been issued by the General Security Service (GSS). This order was issued initially
          for four days but had been extended for an additional six days.
        
          
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          84. On 12 June 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Rapporteur on torture concerning Ramzi Kobar, a field researcher with the
          Palestinian Society for the Protection of Human Rights and the Environment (LAW),
          and the General Director of LAW, Khader Shkirat According to the information
          received, Mr. Shkirat had been scheduled to meet with his client, Marwan Barghouthi,
          on 9 June 2002 at 3:30 p.m. at the Petra Tikva Detention Centre. Upon arrival, he was
          told that he would have to wait because his client was being interrogated, and
          subsequently he was refused permission to see his client because he was reportedly
          late for the scheduled appointment. The information also stated that at this stage Mr.
          Shkirat witnessed his car being searched by members of the GSS and when he
          returned to his vehicle he was informed that Ramzi Kobar had been arrested for the
          purpose of interrogation.
          85. On 19 November 2002, the Special Rapporteur sent a joint urgent appeal with
          the Chairman-Rapporteur of the Working Group on Arbitrary detention concerning
          Dr. Khaled N. Dia1 a United States citizen of Arab origin and Head of International
          Relief at the Qatar Red Crescent Society. According to the information received, Dr.
          Diab had been arrested at Ben Gurion Airport, Israel and Immigration authorities told
          him that he would be detained for at least eight days. It was alleged that during this
          period Dr. Diab was neither allowed to make phone calls nor was he permitted to
          contact a lawyer; further, the reason for his detention stemmed from the fact that the
          Immigration authorities had observed several entries in his passport to countries in
          situations of armed conflict, including Afghanistan and the Occupied Territories. Dr.
          Diab claimed that he had to travel to thise various places for work purposes.
          Observations
          86. The Special Rapporteur regrets that the Government has not responded to any
          of the communications.
          Italy
          Communications to the Govermnent
          87. On 23 January 2002, the Special Rapporteur sent an urgent appeal concerning
          a nationwide protest staged by hundreds of magistrates at the beginning of the judicial
          year, to show their concern about government attempts to undermine the
          independence of the judiciary. Judge Francesco Saverio Borelli, Milan's most senior
          judge, was reported to haw said that the Government's planned reforms of the
          judiciary were aimed at bringing prosecutors under the control of the executive. He
          also complained about the removal of police escorts from prosecutors and judges, and
          about political interference in current trials. Allegations were also made that the
          Government was trying to delay trial proceedings against Prime Minister Silvio
          Berlusconi on charges of bribery. It was reported that the Government is considering
          legal action against Judge Borelli. In view of the situation, the Special Rapporteur
          requested an urgent mission.
          88. On 29 April 2002, the Special Rapporteur sent a communication after learning
          that the National Association of Magistrates (NAM) had called for a nationwide strike
          on 6 June 2002 in protest against planned reforms by the Government affecting the
        
          
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          administration of justice which would alle dly have implications for the
          independence ofjudges and prosecutors. Reportedly, since the announcement on 20
          April 2002 a dialogue had begun between the Ministry of Justice and NAM.
          89. On 2 August 2002, the Special Rapporteur sent an urgent appeal concerning a
          bill proposing changes to the Italian Code of Criminal Procedure. According to the
          information received, the proposed law would permit the transfer of a case to another
          court on the basis of a “legitimate suspicion” that a local situation could affect the
          fairness of the trial. It was alleged that this law could be used in some cases involving
          prominent politicians currently before the courts in Milan. It was also alleged that
          these changes could contribute to the extended delays in the Italian court system.
          Communications from the Government
          90. On 1 November 2003, the Government replied to the Special Rapporteur's
          letter of 2 August 2002 regarding draft bill No. 1578/S, on transfer of a case from a
          court to another on grounds of “legitimate suspicion”.
          Observations
          91. The Special Rapporteur refers to his mission report (E/CN.4/2003/65/Add.4),
          which contains his observations on this legislation.
          Kenya
          92. The Special Rapporteur is concerned about several developments in
          September/October 2002. Pursuant to the Constitution of Kenya Review Act, a
          Constitution of Kenya Review Commission (CKRC) was formed with a
          comprehensive mandate to review the Constitution and inter alia , draft a bill for a new
          Constitution. For this purpose, the Commission sought the assistance of eminent
          Commonwealth judicial experts.
          93. Shortly after the CKRC published a short report on its recommendations, and
          before publication of the draft bill, two Kenyan judges, from the Court of Appeal and
          the High Court, filed a suit against the Commission seeking 17 orders by way of
          judicial review. The orders sought included directions to stop the publication and
          dissemination of the draft bill and to prevent any public discussion or debate of the
          report or the bill.
          94. In August 2002, two lawyers filed a similar suit and obtained an injunction
          from a High Court judge against the CKRC pending determination of the suit. The
          CKRC ignored the injunction and proceeded to publish the report. Contempt
          proceedings were filed against the members of the Commission. Similar injunctions
          were ordered in the suit filed by the two judges, which were also ignored by the
          CKRC. A serious constitutional crisis developed with certain judges coming forward
          to use the judicial process to thwart constitutional reforms.
          95. The Special Rapporteur continues to monitor developments. In 1999, the
          Special Rapporteur sought a mission, however, the Government responded that it was
          not necessary.
        
          
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          Lebanon
          Communications to the Government
          96. On 27 December 2002, the Special Rapporteur sent an urgent appeal
          concerning Judge Fadi Nashar. According to the information received, Judge Nashar
          was shot from behind and seriously wounded inside the Palaid de Justice in Beirut on
          23 December 2002. A suspect was arrested.
          Observations
          97. The Special Rapporteur has not received a response.
          Liberia
          Communications to the Government
          98. On 30 April 2002, the Special Rapporteur sent a joint a urgent appeal, with the
          Special Rapporteur on extrajudicial, summary, or arbitrary executions, the Chairman-
          Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on
          torture, the Special Rapporteur on freedom of opinion and expression and Special
          Representative of the Secretary-General on human rights defenders concerning
          Lawyer, Tiawan Gongloe. According to the information received, Mr. Gongloe had
          been taken by police to police headquarters where he was questioned, stripped naked
          and severely beaten throughout the night. It was also alleged that the police had
          threatened him by calling him a dissident whom they would deal with and kill. This
          encounter allegedly occurred in connection with a speech Mr. Gongloe had given in
          Guinea on “Political activities for the attainment of peace and development in the
          Mano River Union.”
          Observations
          99. The Special Rapporteur regrets that he has not received a response.
          Libyan Arab Jamahiriya
          Communications to the Govermnent
          100. On 6 March 2002, the Special Rapporteur sent a further letter concerning the
          trial of 98 persons accused of membership in the Muslim Brotheririod (see also
          E/CN.4/2002/72, annex, para. 104). According to information received, the trial was
          held behind closed doors and relatives were not allowed to attend the proceedings,
          although on a number of occasions they were allowed to meet with the defendants
          after the court hearing. Further, at the hearing on 18 March 2001, the judge told the
          detainees to write to their families and ask them to appoint lawyers to defend them.
          The detainees were then given a list of lawyers to choose from. The appointed lawyers
          then reportedly wrote to the court for permission to meet with their clients before the
          second hearing and to obtain a copy of the case files. Both requests were reportedly
          refused, and at the second hearing, on 29 April 2001, the lawyers were not allowed to
          enter the court. The court then reportedly appointed lawyers from the office of the
        
          
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          people's counsel, who are in the employment of the court. According to the
          information received, the first time these lawyers met with their clients was on 17
          June 2001, at the fourth court hearing. It was also reported that at the eighth court
          hearing, on 16 February 2002, the court convicted all of the accused and handed down
          death sentences for two of them, while sentencing the other accused to various terms
          of imprisonment, including life imprisonment.
          Observations
          101. The Special Rapporteur regrets that he has not received a response.
          Malawi
          102. The Special Rapporteur notes that in paragraph 112 of his last report
          (E/CN.4/2002/72, annex, para. 112), he stated that the disciplinary charges against
          judges Dunstain Mwangulu and George Chimasula Phivi, had been referred to the
          Judicial Service Commission and a hearing was scheduled for 16 January 2002.
          103. The Special Rapporteur has since been informed that the charges against the
          two judges were dropped.
          Malaysia
          104. The Special Rapporteur would like to update developments since his last
          report (E/CN.4/2002/72, annex, paras. 115-125).
          105. Former Deputy Prime Minister Anwar Ibrahim continues to serve his
          sentence of 15 years imprisonment. His appeal in the first trial was finally heard by
          the Federal Court (the highest appellate court in the country) on 4 February 2002,
          which delivered its jud ment on 10 July 2002 affirming the conviction and sentence.
          This judgment was seen in several quarters, including by the Special Rapporteur, as a
          travesty ofjustice. Mr. Ibrahim has thus exhausted all his legal avenues concerning
          his conviction and sentence at the first trial.
          106. On 9 August 2002 Mr. Ibrahim filed a motion in the Federal Coirt for review
          of the same jud ment citing several grounds as warranting such a review. No date
          has yet been set by the Court for hearing of this application.
          107. The appeal against his conviction and sentence of nine years' imprisonment
          for sodomy charges at the second trial is still pending before the Court of Appeal (the
          first appellate court). The High Court (The Court of First Instance) convicted and
          sentenced him on 8 August 2000. A notice of appeal was filed within a month. The
          petition of appeal, however, was filed only on2 S July 2001 because of a delay on the
          part of the trial judge in making available the notes of evidence he had recorded.
          Since then more than 1 ‘/2 years have lapsed, yet the Court of Appeal has still not set a
          date for the hearing of the appeal. The injustice in this whole saga was aggravated by
          the denial of bail to Mr. Ibrahim pending his appeals. Moreover, the sentence of six
          years imprisonment at the first trial was ordered by the court, and confirmed by the
          Federal Court, to run from the date of convictioi thereby failing to take into account
        
          
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          the prolonged period he was kept in custody pending trial. It was during that period,
          soon after arrest, that he was brutally beaten by the then Inspector General of Police.
          108. With regard to his medical condition the Government continues to refuse
          permission to undergo spinal surgery in Germany (E/CN.4/2002/72, annex, para.
          118). Instead, the Government has indicated that he could undergo the surgery
          domestically. The Special Rapporteur was informed that Mr. Ibrahim is taking
          painkillers to relieve his back pain. In this regard, the Committee on the Human
          Rights of Parliamentarians of the Inter-Parliamentary Union at its 100 th session held in
          Geneva from on 20 to 23 January2003, adopted a decision in which it reaffirmed that
          recommendations of a national human rights commission carry special weight and
          should not be dismissed by the competent authorities; called therefore once again on
          the authorities, in particular the Malaysian Parliament as a guardian of human rights,
          to give full support to the clear recommendations of the National Human Rights
          Commission so as to obtain permission for Mr. Anwar Ibrahim to follow his personal
          choice of medical treatment abroad.”
          109. In another development on September 2002, the Federal Court, in what is
          considered a “landmark” jud ment, adopted the ‘bbjective test” in the judicial
          review of detentions without trial on police orders under the Internal Security Act.
          The Court held that in adjudicating on the legality of detention it could now go
          beyond the mere documentation papers to consider whether there were any elements
          of mala fide.
          110. Following this decisioi a High Court in Malaysia ordered the release of a
          suspected militant detained administratively for alleged involvement with Kumpulan
          Militant Malaysia, alleged to have indirect connections to the al-Qua'idah network.
          The judge ordered the release of the suspect as there was no evidence of the suspect's
          involvement with the terrorist group.
          111. The suspect, upon release, was promptly rearrested and served a two - year
          detention on the basis of an order signed by the Home Minister.
          112. These decisions led to the Minister in the Prime Minister's Department,
          Dato'Dr. Rais Yatim, reportedly saying that the Internal Secwity Act needed
          tightening “to curb judicial scrutiny of the reasons for detention.”He added, “to me
          this is a dangerous trend. We have to be quick to redress this inadequacy, we cannot
          allow a laissez-faire attitude in security matters.”
          Mauritania
          Conununications to the Govenunent
          113. On 29 July 2002, the Special Rapporteur sent a communication concerning
          alleged interference in the elections for the President of the National Bar Association
          (l'ordre national des avocats de Mauritanie). According to the information received,
          the election was characterized by several irregularities contrary to Law 95-024 on the
          National Bar Association, including the public display of votes and the invalidation of
          postal votes. Subseqi nt to the vote, it was alleged that the police surrounded the
          offices of the Bar Association to force a second vote. In the second vote, on 4 July
        
          
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          2002, the supporters of the winner of the first election refused to participate and a
          member of the governing political party was subsequently elected as the new
          President of the Association
          Communications from the Government
          114. On 18 November 2002, the Government replied to the Special Rapporteur's
          communication of 29 July 2002. The Government stated that the newly appointed
          President of the Bar Associatioi Mr. Ould BettaI is the person who organized the
          elections and then complained about them. After the first round of elections neither of
          the two candidates obtained the necessary majority, and thus a second round was
          mutually agreed upon. The votes received by mail were not counted during the first
          round as the secrecy of the vote had been compromised since lawyers had put their
          names on the ballots. Consequently, those votes were declared null and void. The
          Government stated that overall, the elections took place much as they had in past, and
          there was nothing political behind the elections. None of the lawyers or the President
          filed a formal complaint before the Supreme Court, which is the only court competent
          to rule on electoral matters. The appeal period has now passed.
          Observations
          115. The Special Rapporteur thanks the Government for its response.
          Mexico
          Communications to the Government
          116. On 25 March 2002, the Special Rapporteur sent a communication concerning
          lawyer Barbara Zamora, who worked together with the late Digna Ochoa and who is
          now the lawyer Ms. Digna Ochoa's family According to the information received, she
          had received a message by electronic mail saying: “collisions, accidents, lawyers,
          urgencies...” words similar to one of the first anonymous letters that lawyers Digna
          Ochoa and Pilar Noriega received in 1996. It was also alleged that not all the
          preventive measures that Ms. Zamora had requested from the Inter-American Court of
          Human Rights have been implemented.
          117. On 10 April 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Representative of the Secretary-General on human rights defenders and the
          Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
          lawyer Leone! Guadalupe Rivero. It was reported that Mr. Rivero's bodyguards,
          who had been appointed by the Government after the death of Ms. Ochoa, were
          attacked on 6 April 2002 in front of Mr. Rivero's house and their weapons taken from
          them.
          118. On 23 July 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
          Representative of the Secretary-General on human rights defenders concerning lawyer
          Arturo Requensens Galnares. According to the infornution received, Mr. Galnares,
          a member of the organization ACAT —Action of Christians for the Abolition of
          Torture, had faced harassment and received threats in connection with his work
        
          
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          defending victims of torture, forced disappearances and extrajudicial killings. On 16
          July 2002, Mr. Galnares noted a car containing five persons parked in front of his
          house. On 17 July 2002, he received a telephone call in which he heard the sound of a
          gunshot.
          Communications from the Government
          119. On 12 and 21 February 2002, the Government sent information concerning
          José Francisco Gallardo Rodriguez. The Government informed the Special
          Rapporteur that Mr. Gallardo Rodriguez was released on 7 February 2002, when the
          two sentences he was serving were commuted to the time he had spent in prison. Mr.
          Gallardo Rodriguez' release was made possible by a presidential decree signed
          on 7 February 2002, commuting the sentences on the basis of article 89, subparagraph
          1, of the Constitution of the United Mexican States and articles 123, 178 and 871 of
          the Code of Military Justice. Under the latter two articles, it is the sole prerogative of
          the head of the executive to grant this privilege. The decision also allows Mr.
          Gallardo Rodriguez, if he sees fit, to take appropriate action through the domestic
          courts. In addition, from the moment he was released, Mr. Gallardo Rodriguez has
          been afforded personal protection of a preventive nature, with a guard reporting to
          officers of the Federal Crime Prevention Police.
          120. On 29 April 2002, the Government replied to the Special Rapporteur's joint
          urgent appeal of 10 April 2002. The Government stated that according to information
          received from relevant sources, the assault of the bodyguards of Leonel Guadalupe
          Rivero Rodriguez was apparently carried out by mistake, a consequence of federal
          agents' failure to comply with security regulations. The attack therefore was not
          intentionaL The Government reassured the Special Rapporteur that the injuries to the
          agents were minor and that two other agents of the Federal Investigation Agency were
          dispatched to permanently relieve the individuals involved in the incident.
          121. On 30 April 2002, the Government replied to the Special Rapporteur's
          communication of 25 March 2002. The Government stated that as a result of an offer
          by the Government Procurator of the Federal District and a decision of the Inter-
          American Court of Human Rights, Ms. Zamora was offered protection to ensure her
          physical safety. After consultation with Ms. Zamora, a guard was placed outside her
          offices on 27 November 2002 and after negotiations, the Government and Ms.
          Zamora had agreed upon the action and assistance necessary for the installation of
          closed-circuit equipment in her offices. With respect to the threats against Ms.
          Zamora, the Government stated that a preliminary investigation was opened on 19
          March 2002. Further, at a meeting between the Government Procurator of the Federal
          District and Ms. Zamora, she indicated her rejection of measures being implemented
          to protect her physical integrity. On 19 November 2002 the Government provided an
          update on this case and advised that Ms. Zamora now has increased security, as
          surveillance cameras had been installed in her office.
          122. On 1 October 2002 and 5 November 2002, the Government replied to the
          Special Rapporteur's communication of 23 July 2002. The Government stated that the
          Federal District Government Procurator's Office had immediately initiated a
          preliminary investigation into the threats and harassment of Arturo Requensens
          Galnares and that the investigation was ongoing. The Inter-American Commission for
        
          
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          Human Rights had requested protection for Mr. Galnares and his mother, Guadalupe
          Galnares Meeza, and this was granted by the Minister for Foreign Affairs and is being
          provided by judicial officers from the Federal District Government Procurator's
          Office. In addition, protection was also being provided to Mr. Galnares at the ACAT.
          123. On 30 October 2002 the Government responded to the Special Rapporteur's
          recommendations contained in his mission report (E/CN. 4/2002/72/Add. 1). The
          Government stated that the Special Rapporteur's recommendations were incorporated
          into the international mechanisms and recommendations developed by the External
          Relations Secretariat which were being considered by the Inter-Secretarial
          Con imission. Further, it was reviewing the recommendations because it wanted to
          develop an overall policy to strengthen human rights, as publicly announced by
          President Fox on 20 August 2002. The Interdepartmental Commission on
          Government Policy on Human Rights replaced the old Commission and has a broader
          mandate which includes members of civil society. The recommendations of the
          Special Rapporteur will be an important reference for the second phase of the
          technical cooperation programme being undertaken with OHCHR.
          124. On 22 November 2002, the Government sent information to the Special
          Rapporteur regarding information it had received as a result on an unannounced visit
          conducted on 12 October 2002 by the National Institute of Migration, the Office of
          the General Prosecutor, the Preventative Police and observers from the National
          Commission on Human Rights to a detention centre in Iztapalapa. The Government
          advised that irregularities had been found resulting in an investigation by the Office of
          the General Prosecutor into potential administrative and criminal offences.
          125. On 18 December 2002 the Government provided confidential information on
          the case of Digna Ochoa. The Government asked that the information remain
          confidential as the case is still pending. In August 2002, a special prosecutor was
          assigned to this case.
          126. The Special Rapporteur also received a lengthy report on his mission report
          compiled by the Supreme Court of Mexico.
          Observations
          127. The Special Rapporteur has not heard anything further about the extent to
          which the Government has implemented the recommendations made in his mission
          report (E/CN.4/2002/72/Add. 1).
          128. As for the response of the Supreme Court of Mexico to his report, the Special
          Rapporteur did not respond as he felt tiut the report was prompted by, and more of a
          response to, the media reports on the Special Rapporteur's report.
          Nepal
          Communications to the Government
          129. On 22 January 2002, the Special Rapporteur sent a joint urgent appeal together
          with the Special Rapporteur on Torture and the Chairman-Rapporteur of the Working
        
          
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          Group on Arbitrary Detention concerning SlUt Baldik a 33-year-old bookseller, and
          her husband, Padam Prasad Baldik a 36-year-old lawyer. Ms. Baidik was reportedly
          arrested at her book stall in Tulsipur town, Dang district, in mid-western Nepal on 16
          January 2002 and taken to the police office in Tulsipur. When her husband attempted
          to see her in custody, he was allegedly arrested as well. The Chairman of the Appeal
          Court Bar Association went to the police station to make inquiries on their behalf and
          was reportedly advised that they had both been handed over to army officers from an
          army camp in the district, called Bahini Adda, where they were said to be held in
          incommunicado detention. They had reportedly not been charged with a criminal
          offence. It is believed that they might have been arrested because of their previous
          student activities with the Nepal National Free Students Union or their alleged
          membership or support of the Communist Party of Nepal (CPN) (Maoist). The
          Terrorist and Disruptive Activities (Prevention and Control) Ordinance is said to grant
          wide powers of arrest, and to allow the holding of persons arrested under the
          Ordinance for up to 90 days, extendable for another 90 days with the permission of
          the Home Ministry. Fears were expressed that the above-named persons might be at
          risk of torture or other forms of ill-treatment in view of the incommunicado nature of
          their detention in an unknown location.
          130. On 29 July 2002, the Special Rapporteur sent an urgent appeal concerning the
          arrest of lawyer Tikajung ShaM. The Special Rapporteur had received information
          that Mr. Shahi had been arrested on 29 May 2002 at his office, the Legal Remedy
          Centre, in Nepalgunj, Banke district. It was further reported that at the time of his
          arrest, security personnel stated that he was being taken for interrogation. It is alleged
          that the authorities had not confirmed his whereabouts and that his location still
          remained unknown.
          131. On 8 August 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on torture concerning the arrest of lawyer Han Prasad Phuyal.
          The Special Rapporteurs had received information that Mr. Phuya had been arrested
          on 22 May 2002 at his home in Himalipath, Biratnager, held for two days at the
          district police office and then transferred to Morang prison. It was alleged that Mr.
          Phuyal had been arrested for his work as a lawyer representing members of the armed
          CPN.
          132. On 29 August 2002, the Special Rapporteur sent a joint urgent appeal with the
          Chairman- Rapporteur of the Working Group on Arbitrary Detention concerning the
          arrest of lawyer, Raman Kumar Shrestha, who worked at a Legal Relief Centre
          which reportedly defends victims of social or political injustice. The Special
          Rapporteur had received information that he had been arrested on 23 August 2002 on
          the way to his office in Kanuni Uddhar Kendra, Bagbazar, Katbmandu, by members
          of the army. His house was searched and his wife was told that her husband had been
          arrested to help them with an inquiry, but did not give her any further explanation for
          his arrest. Fears have been expressed that Mr. Shrestha may have been arrested
          because of his professional legal activities or because the authorities suspect him of
          being a supporter or sympathizer of the CPN. It was added that lawyers appearing on
          behalf of Maoist suspects have repeatedly been targeted by the authorities.
          Observations
        
          
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          133. The Special Rapporteur regrets there has been no response from the
          Governmert.
          New Zealand
          Communications from the Government
          134. On 2 April 2002, the Government provided further information concerning the
          case of Moti Singh and confirmed the establishment of the Lay Observer procedure
          for complaints about judicial conduct not upheld by the judiciary's own internal
          review. The Government informed the Special Rapporteur that the Cabinet had
          concluded after careful consideration that there was no legal basis for the payment of
          compensation to Mr. Singh, and that there was no basis for a possible removal of
          Judge Bouchier. Cabinet decided, howevei to request a retired judge from the Court
          of Appeal to look into procedure followed in the investigation of Mr. Singh's
          complaint. In his report, the judge concluded that the procedure follo wd had
          generally been adequate and appropriate, but suggested three aspects for further
          consideration: the need for some measure of consultation with the complainant, the
          need for additional consultation with Judge Bouchier, and the need for advice to the
          Attorney-General of the nature of the complaint and its internal resolution. The judge
          also gave as his opinion that the Chief District Court Judge should have given a more
          fulsome apology.
          135. On 28 June 2002, the Government sent further information concerning Moti
          Singh. The Government stated that the Chief District Court Judge had written to Mr.
          Singh to inform him that he had received the report of the investigating judge and
          discussed it with Judge Bouchier. The Government also attached a copy of the letter
          sent to Mr. Singh informing him of the Government's decision in his case.
          Observations
          136. The Special Rapporteur thanks the Government for the serious considerations
          it gave to his concerns over the then disciplinary procedure. He appreciates the
          Government's efforts in further reviewing the process adopted in the complaint by
          Moti Singh and the appointment of Justice Henry to that effect. The Special
          Rapporteur also appreciates the transparency in this process, particularly the
          disclosure of the report of Justice Henry to Mr. Singh.
          Nicaragua
          Communications to the Govermnent
          137. On 13 May 2002, the Special Rapporteur sent a communication to the
          Government concerning lawyer Maria Luisa Acosta. According to the information
          received, Ms. Acosta's husband was found murdered in their home on 8 April 2002,
          with his hands tied behind his back and a gunshot wound to the chest. As nothing was
          stolen from the house, the information alleged that this indicated theft was not the
          motive behind the attack. It was alleged that Ms. Acosta had been the actual target of
          the attack, as she had received death threats in connection with her work at the Centro
          de Asistencia Legal a los Pueblos Indigenas.
        
          
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          138. On 7 October 2002, the Special Rapporteur sent ajoint urgent appeal withthe
          Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
          Chief Judge Juana Méndez Perez of the District Criminal Court. According to the
          information received, Chief Judge Perez received a threatening phone call on 30
          September 2002 directing her to free detainee Bayron JCrez Solis or she and her
          children would be killed. In addition, a vehicle carrying 6 men followed her and tried
          to intimidate her.
          Communications from the Govermnent
          139. On 28 November 2002 the Government replied to the Special Rapporteur's
          communication of 7 October concerning Chief Judge Perez. The Government advised
          that Judge Perez and members of her family have received 24-hour police protection
          and there is an ongoing investigation by the National Criminal Investigations
          Department.
          Observations
          140. The Special Rapporteur thanks the Government for its response.
          Nigeria
          Communications to the Government
          141. On 21 January 2002, the Special Rapporteur sent a communication regarding
          the assassination of Chief James Ajibola Ige, Minister of Justice and Attorney-
          General of Nigeria. According to information received, he was killed in his home in
          Ibadai Osun State, on 23 December 2001. The main suspect surrendered to the police
          on 14 January 2002 and reportedly stated that the Osun state deputy governor had
          ordered the killing. It was also reported that Mr. Awonusi, secretary to Chief Justice
          Muhammadu Uwais, had been killed in Abuja on 8 January2002.
          142. On 25 June 2002, the Special Rapporteur sent a communication concerning
          the murder of judge Theresa Inyang-Ngah The Special Rapporteur had received
          information that on 11 June 2002, Ms. Inyang-Nyah, Chief Magistrate of the Calabar
          judiciary division, Cross River State, was found murdered in her home. It was
          reported that a police spokesman stated that a political motive for her death could not
          be ruled out and that she might have been killed in revenge for denying bail to a group
          of suspects being held in connection with the murder of a local government
          councillor. The Special Rapporteur was also informed that as a result, the local branch
          of the Magistrates Association of Nigeria had gone on an indefinite strike.
          143. On 4 July 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on extrajudic ial, summary or arbitrary executions concerning
          threats made to Justice Nkem Izuako, High Court, Anambra State. The Special
          Rapporteurs had received information alleging that following the decision in a case
          involving the Idemili local government, the judge was visited on several occasions in
          her home by an official claiming to be from the state Ministry of Justice, who put
          pressure on her to accept a bribe and revoke her decision. It is alleged that following
        
          
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          her refusal she was told she would be assassinated. Subsequently, whilst travelling to
          Abuja, she was followed by several individuals and needed to be provided with a
          police escort. It was further alleged that in December 2001, she was transferred to a
          judicial division in a rural part of Anambra State in punishment for her refusal to yield
          to pressure.
          144. On 30 August 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
          Ahinadu Ibrahim, Fatima Usman and Mallam Ado Baranda who have been
          reportedly sentenced to death by stoning. It has been brought to the Special
          Rapporteur's attention that Mr. Ibrahim, Ms. Usman and Mr. Baranda reportedly did
          not have legal representation during their trials or when the sentences were handed
          down. Mr. Ibrahim and Ms. Usmai from New Gawu in Niger State, were reportedly
          both convicted of adultery and initially received a sentence of five years
          imprisonment with a fine of N 15,000 (around £75). Nevertheless, the state judiciary
          called for a retrial because it considered this sentence to be inappropriate. Mr.
          Baranda is reported to have been sentenced to death by stoning in Jigawa State for the
          rape of a nine-year-old girl. The sentence was pronounced despite outrage expressed
          by civil society both in and outside Nigeria over the death sentences now regularly
          handed out by Nigeria's Sharia's courts.
          145. On 26 September 2002, the Special Rapporteur sent a communication
          concerning the murder of two lawyers, Barnabas Igwe and his wife, Abigail Igwe, in
          Onitsha on 1 September 2002. According to the information received, Mr. and Mrs.
          Igwe were killed after returning home from a National Bar Association (NBA)
          conference where Mr. Igwe, Chairman of the Onitsha branch of the NBA, publicly
          criticized the Anambra state government's failure to pay the salaries of government
          workers. In the days preceding the murders, Mr. Igwe had received direct threats from
          senior officials in Anambra State. The Special Rapporteur was also informed that
          close colleagues of Mr. and Mrs. Igwe received death threats, including a specific
          threat on the day after the killings when one colleague was told that “he would be
          next”.
          Communications from the Govermnent
          146. On 7 November 2002 the Government replied to the Special Rapporteur's
          communication of 26 September 2002 concerning Barnabas and Abigail Igwe. The
          Government advised that the case had been conveyed to the appropriate authorities for
          investigation and a further update will be transmitted without delay.
          Observations
          147. Despite reminders sent the Government has not responded to the other
          communications.
        
          
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          Pakistan
          Communications to the Government
          148. On 28 February 2002, the Special Rapporteur sent an urgent appeal regarding
          the Anti-Terrorism (Amendment) Ordinance 2002 promulgated by President
          Musharraf on 31 January 2002, which amended the Anti- Terrorism Act 1997. The
          Amendment Ordinance provides for the establishment of anti-terrorism courts
          composed of two civilian serving judicial officers and one military officer nominated
          by the Federal Government. According to the information received, these courts
          would have jurisdiction not only to try terrorism-related offences, but also other
          serious crimes like murder and kidnapping. The Amendment Ordinance provides that
          these courts will function for a period up to 30 November 2002, but there is a
          provision for the extension of the period by the Federal Government by simply
          notifying the Official Gazette. According to information received, there was a
          previous decision of the Supreme Court of Pakistan to the effect that the establishment
          of military courts for the trial of civilians is unconstitutional.
          149. On 27 May 2002, the Special Rapporteur sent a communication concerning
          the retrial of Benazir Bhutto. The Special Rapporteur had received information that
          the retrial of Ms. Bhutto had begun on 17 May 2002, at the Rawalpindi
          Accountability Court, and Mrs. Bhutto was convicted on 21 May 2001 and sentenced
          to three years' imprisonment in absentia. It was also reported that although Ms.
          Bhutto was not present during the trial she was represented by her lawyer, Sardar
          Latif Khosa. It was alleged that despite this, the case was initially adjourned and
          subsequently witness statements were taken in chambers by Judge Mansoor Mi Khan
          without her counsel being present.
          150. On 25 June 2002, the Special Rapporteur sent an urgent appeal concerning
          threats to lawyer Khaffl Tahir. The Special Rapporteur had received information that
          on 28 May 2002, Mr. Khalil, who works with the National Commission for Justice
          and Peace, was called at his home and threatened with death unless he stopped
          defending one of his clients, Ranjha Masih, who had been charged with blasphemy
          under section 295-C of the Pakistan Penal Code. The information also stated that on 8
          June 2002, several individuals came to Mr. Khalil's house inquiring about his
          whereabouts. The police subsequently arrested one individual who was loitering
          around Mr. Khalil's house.
          Communications from the Government
          151. On 8 October 2002, the Government provided a response to the Special
          Rapporteur's communication of 25 June 2002 concerning the case of Khalil Tahir.
          The Government advised that it has directed the Ministry of the Interior, the Home
          Department of the Government of Punjab and the Inspector General of Police of
          Punjab to ensure the personal safety of Mr. Tahir.
          152. On 30 December 2002, the Government provided a response to the Special
          Rapporteur's communication of 25 June 2002 concerning the case of Benazir Bhutto,
          advising that Ms. Bhutto was tried in absentia on 17 May 2002 and convicted and
          sentenced on 21 May 2002 to three years' imprisonment.
        
          
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          Observations
          153. The Special Rapporteur continues to receive information regarding concerns
          over the state of democracy and the rule of law in Pakistan. The continued persecution
          of Mrs. Benazir Bhutto is a matter of concern. The Government appears to have
          completely ignored the Special Rapporteur's request for a mission.
          Palestinian Authority
          Communications sent
          154. On 17 May 2002, the Special Rapporteur sent a communication welcoming
          the statement by the Palestinian Authority that it would abide by the principle of the
          separation of powers and would rebuild the political system on the basis of
          democracy, the rule of law and an independent judiciary. Further, the Special
          Rapporteur welcomed the signing of a law recognizing the independence of the
          judiciary.
          Communications received
          155. On 29 May 2002, the Authority replied to the Special Rapporteur's
          communication of 17 May 2002. The Authority thanked the Special Rapporteur for
          the communication and stated that the changes come within the framework of the
          building a Palestinian society on sound and democratic foundations, based on the rule
          of law and order and the abidance by the principles of the separation of powers.
          Peru
          Communications to the Govermnent
          156. On 27 May 2002, the Special Rapporteur sent a communication concerning
          the trial of 12 military officers who participated in Operation ChavIn Huántar at the
          Japanese embassy on 22 April 1997.The Special Rapporteur received information that
          these individuals had been indicted for unlawfully killing seven members of the
          Revolutionary Movement Tupac Amarua (MRTA), and that a preventive detention
          order had been issued by Anti-Corruption Judge Cecilia Pollack. The Special
          Rapporteur was also informed that on 14 May 2002 the Minister for Defence declared
          his support for 11 of the 12 individuals and denounced their preventive detention.
          Further, on 16 May 2002, a cross party statement was adopted by the Peruvian
          Congress expressing concern at the detention of these individuals and expressing
          support for the armed forces that participated in the aforementioned operation. Also,
          several draft amnesty laws had been placed before Congress to exempt these
          individuals from further prosecution.
          Communications from the Govermnent
          157. On 16 December 2002, the Government replied to the Special Rapporteur's
          communication of 27 May 2002 concerning Operation ChavIn Huántar. The
          Government advised that on 11 June all the persons concerned had been charged with
        
          
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          second-degree murder and were all released from detention except one. The
          investigation is ongoing. The Government stated that all the persons involved in the
          investigation will be provided with all the legal judicial guarantees and the
          independence of the judiciary will be respected. With respect to the actions taken by
          the Minister of Defence, Dr. Aurelio Leret de Mola, the Government explained it was
          his way of expressing his support for his staff who were involved in the case, since
          they had risked their lives to save 72 other persons taken as hostages by the MRTA.
          Other Developments
          158. The Special Rapporteur notes the recent ruling in early January 2003 by the
          Constitutional Court of Peru that some of the country's anti-terrorist laws were
          unconstitutional. The Court concluded that it was unconstitutional for military
          tribunals to try civilians. The Court also ruled that life sentences handed down to
          rebels convicted of terrorism were excessive, and therefore unconstitutional. The
          ruling affects about 900 people who may file appeals in light of the ruling.
          Observations
          159. The Special Rapporteur thanks the Government for its response. He urges the
          Government to respect the decision of the Constitutional Court.
          Saudi Arabia
          Conununications to the Govenunent
          160. On 3 May 2002, the Special Rapporteur sent a communication to the
          Government concerning the situation of seven individuals who had been arrested for a
          series of bombings that had taken place in Saudi Arabia in 2000 and 2001. The
          Special Rapporteur had received information that the individuals had been convicted
          of these crimes after a closed hearing and sentenced to imprisonment. It was alleged
          that the convictions were based upon confessions which according to one of their
          defence lawyers, Abmed al-Tuwaijeri, had been retracted. It was further alleged that
          the families of the accused had not been able to communicate with the accused during
          their detention and were not aware of the legal processes taking place.
          Conummications from the Govenunent
          161. On 1 July 2002, the Government replied to the Special Rapporteur ‘s
          communication of 3 May 2002. The Government stated that the proceedings against
          the individuals are continuing and that they are fully represented by lawyers. The
          judgement to be passed in the case will be made public. In this context, the
          Government made clear that the executive authority has no influence over the judicial
          system in Saudi Arabia.
          Observations
          162. The Special Rapporteur raised this issue with the competeit authorities in
          Riyadh during his mission and has made his observations in his report
          (E/CN. 4/2003/65/Add.3).
        
          
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          South Africa
          Communications to the Govermnent
          163. On 3 September 2002, the Special Rapporteur sent an urgent appeal
          concerning the shooting of Magistrate Tienie Langenhoven of the Parow Regional
          Court, Cape Town, on 27 August 2002. According to the information received,
          Magistrate Langenhoven was seriously injured in front of his home when a passing
          car fired three shots that hit him in various parts of the body, including the head and
          the chest. It was further reported that magistrates have previously requested the
          Government to take steps to improve the security conditions under which they work,
          including the provision of security guards to patrol their homes and to escort them to
          their place of work.
          164. On 12 December 2002, the Special Rapporteur sent an urgent appeal
          concerning the attempt on the life ofJustice Nathan Erasmus of the Cape High
          Court on 9 December 2002. Reportedly, Justice Erasmus had received a number of
          written threats, the first back in June 2002 and most recently on 26 November, when
          he was the judge on several high-profile urban terror cases. According to the
          information received, there has been little progress in the investigation into the threats
          against Justice Erasmus.
          Communications from the Govermnent
          165. On 19 April 2002 the Government replied to the Special Rapporteur's
          communications dated 8 August 2001 and 4 September 2001. The Government stated
          that it had taken several measures to strengthen the independence of magistrates and
          separate their judicial and administrative functions, including the appointment of
          office managers in certain main areas, and in 90 per cent of offices there was now a
          practical separation of functions. However, in very small offices this had not been
          implemented due to funding limitations. Further, magistrates have been integrally
          involved in the process and as a result have not embarked upon any countrywide
          action. However, magistrates have commenced proceedings in the High Court, which
          are currently being considered by the Constitutional Court, concerning their situation.
          166. The Government also emphasized that notwithstanding budgetary restrictions,
          money has been invested to upgrade facilities ant magistrates and judges had received
          substantial salary increases. The Government stated that it is in favour of a single
          judiciary. With respect to the communication dated 4 September 2001, the
          Government stated that the letter to regional court presidents was sent as a follow-up
          to a meeting with lay assessors and was a mere request that should not be construed as
          an attempt to interfere with the independence of the judiciary. Further, the letter
          requested information on problems with the use of lay assessors and emphasized that
          the use of these persons was aimed at fostering greater interaction between courts and
          communities.
          Other developments
          167. Earlier in January 2003 the Special Rapporteur received information that the
          Chief Magistrate of KwaZulu Natal was nearly shot dead in the early morning as he
        
          
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          was leaving home for his court. Earlier, a Ganteng policeman was shot dead inside the
          Alberton magistrate's court.
          Observations
          168. The Special Rapporteur expresses grave concern over the increased violence
          against judicial officers. Despite assurances from the Ministry of Justice that security
          of judicial officers will be given priority, this does not appear to be the case. Without
          such security for judicial officers the rule of law will be put at risk.
          Spain
          Communications to the Government
          169. On 1 February 2002, the Special Rapporteur sent a communication concerning
          the proceedings against three judges, Carlos Cezón, Juan José Lopez Ortega and
          Carlos Ollero of Section IV of the Penal Chamber of the National High Court. The
          judges had ordered the provisional release of a prisoner charged with drug trafficking,
          on the basis of a psychiatric report indicating that the prisoner was mentally ill and
          that a suicide risk existed. Subsequently, the accused absconded. According to reports,
          the Supreme Court agreed to process the complaint presented by the Attorney General
          against the three magistrates for the crime of wilful neglect of duty. The General
          Council of the Judiciary (GCOJ) has opened an inquiry against th three judges for
          carelessness.
          Communications from the Govermnent
          170. On 28 February 2002 the Government sent a detailed response to the Special
          Rapporteur's communication of 1 February 2002. The Government stated, as a
          preliminary matter, that disciplinary or criminal investigations ofjudges are a rare
          occurrence and in this instance the Asociación de Abogados Demócratas por Eurpoa
          is also pressing private criminal charges against the judges concerned. With respect to
          the specific case mentioned in the Special Rapporteur's communication, the
          Government stated that on 10 January 2002, the GCOJ opened a formal inquiry into
          the events concerning the provisional release of the prisoner, and requested reports on
          each of the judges involved and the forensic physician. On 17 January the GCOJ
          initiated disciplinary proceedings against the judges for allegedly committing a very
          serious violation of article 4 17(9) of the Organization of Justice Act, through
          negligence in the exercise of judicial power. On 6 February 2002, the three judges
          were suspended from duty, in accordance with article 384(3) of the aforementioned
          Act, until the criminal proceedings against them were completed. The disciplinary
          proceedings were also suspended until that time.
          171. With respect to the criminal proceedings, the Government stated on 10
          January 2002 that the Public Prosecutor's Office had filed a complaint with the
          second Division of the Supreme Court for a violation of article 446(3) of the Penal
          Code, which provides that a judge or a magistrate who knowingly hands down an
          unjust sentence or decision shall be punished with a fine of 12 to 24 months of salary
          and a disqualification from public employment for a period of 10 to 20 years if he/she
          hands down any other unjust sentence or decision. This complaint was declared
        
          
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          admissible by the Criminal Division of the Supreme Court on 17 January 2002.
          Preliminary hearings have now commenced and the judges concerned have been
          charged and are entitled to legal assistance by a lawyer of their choice.
          172. On 6 August 2002, the Government sent further information concerning the
          proceedings against the three judges. The Government stated that on 23 July 2002, the
          Supreme Court ordered the dismissal of the complaint against the three judges, who
          are now exempt from any criminal responsibility for their actions. Further, on 29 July
          2002, the GCOJ, found that that the behaviour of the judges indicated a “lax, careless
          and ultimately negligent attitude” constituting a serious disciplinary offence. The
          GCOJ ordered a seven- month suspension for Justice Carlos Cezón Gonzalez, and six
          month suspensions for Justices Lopez Ortega and Ollero.
          Observations
          173. The Special Rapporteur views with concern that while the Supreme Court
          acquitted the judges for knowingly handing down an unjust decisioi the GCOJ found
          that the same judges were lax, careless and negligent in their judgement. Even if the
          judgement were manifestly wrong or unjust surely the proper procedure would have
          been an appeal to the appellate court.
          Sri Lanka
          Communications to the Govermnent
          174. On 13 September 2002, the Special Rapporteur sent a joint urgent appeal with
          the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special
          Rapporteur on torture and the Chairman- Rapporteur of the Working Group on
          Arbitrary Detention regarding Nandini Herat, who was allegedly subjected to sexual
          torture by 5 police officers, including the officer in charge, while in police custody in
          Wariyapola, near Kurunegala. It has been reported that the trial of the five police
          officers for torture began in September before the magistrate's court of Wariyapola.
          Although the magistrate allegedly issued a warning that the witnesses should not be
          intimidated, the police officer in charge reportedly went to the remand prison where
          Ms. Herat was being held, allegedly in order to ask her to withdraw the case. He was
          reportedly prevented from doing so by prison officials. Other threats were reportedly
          uttered against Nishanta Kumara, a correspondent of the daily newspaper Ravaya , by
          Mr. Sunil, a supporter of the ruling United National Party who allegedly threatened
          Mr. Kumara with a knife and asked if he was “the human rights dog who's trying to
          send my brother- in- law to prison.” Fears have also been expressed that the two
          lawyers who had been asked to act on Ms. Herat's behalf have withdrawn their
          services as a result of intimidation.
          Communications from the Govermnent
          175. On 10 October 2002 the Government sent a response to the Special
          Rapporteurs' communication of 13 September 2002 concerning Nandini Herat. The
          Government advised that the Criminal Investigations Department (CID) of the Sri
          Lanka Police had taken over the investigation on the alleged torture of Ms. Herat. The
          Government further advised that the Judicial Medical Officer had been directed to
        
          
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          undertake another medical examination of Ms. Herat. The CID was requested to
          submit the investigation and medical reports by 31 October 2002 in order to consider
          filing indictments under the Convention against Tortwe and other Cruel, Inhuman or
          Degrading Treatment or Punishment Act. The Government also advised that the CID
          had been directed to conduct criminal investigations into the alleged threat against
          Priyantha Gamage, Ms. Heart's lawyer and Nishanta Kumara, human rights activist.
          176. On 17 December 2002, the Government sent a response to the Special
          Rapporteur's communication of 6 August 2001 (see E/CN.4/2001/65, paras. 206-207,
          209-210 and E/CN.4/2002/72, annex, para. 166) concerning lawyer, Kumar
          Ponnambalam, who was shot dead on 5 January 2000. The Government advised that
          the Crime Detection Bureau of the Police Department was directed to investigate the
          assassination. On 28 February 2001 the CID took over the inquiry. Based on further
          investigations, the Attorney-General directed the CID to charge three suspects, one a
          former reserve police constable, and the court proceedings will commence on 3
          January 2003.
          Observations
          177. The Special Rapporteur is waiting to hear about the outcome of the
          prosecution of the three accused for the murder of Kumar Ponnambalam.
          178. The Special Rapporteur continues to be concerned over the allegations of
          misconduct on the part of the Chief, Justice Sarath Silva, the latest being the
          proceedings filed against him and the Judicial Service Commission in the Supreme
          Court by two district judges which is set for hearing on 27 February 2003.
          Sudan
          Communications to the Government
          179. On 20 February 2002, the Special Rapporteur sent a communication
          concerning the emergency tribunals that were established in 2001 under the state of
          emergency to deal summarily with certain specified crimes. These tribunals are
          reportedly composed of two military judges and one civil judge, the right to legal
          representation of the accused is seriously restricted and an appeal is only permitted to
          the district chiefjustice. In particular, it was reported that on 12 December 2001, an
          emergency tribunal in Nyala, Southern Dafur, convicted Abdu Ismail Tong and
          Yousif Yaow Mombai for the theft of a sum of money and sentenced them to
          amputation of the right hand. According to the information received, they were denied
          the right to legal representation throughout the trial.
          180. On 26 June 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special
          Rapporteur on torture and the Special Rapporteur on the situation of human rights in
          the Sudan concerning the sentencing to death by hanging of 14 prisoners by Nyala
          Special Court No. 1 on 8 May 2002. The Special Rapporteurs had received
          information that the Nyala Special Court had been established in accordance with
          article 6(2) of the Law of Emergency and Protection of Public Safety of 1997 and
          State of Emergency No. 1 of 1998. The information stated that this court is composed
        
          
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          of one civil and two military judges, that lawyers are forbidden to appear before the
          court and individuals can only appeal the decision of the court when sentenced to
          death or amputation. The appeal must be made within seven days to the district chief
          justice whose decision is final.
          181. On 23 July 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special
          Rapporteur on torture and the Special Representative of the Secretary General on
          human rights defenders concerning the trial of 88 people by a special court in Nyala.
          According to the information received, on 17 July 2002, these individuals, mostly
          from the Rizeigat community, had been sentenced to death by hanging or crucifixion
          for crimes committed in clashes between the Rizeigat and Maalyia ethnic groups in
          Al-Tabet, Southern Dafur. It was alleged that these individuals had been subjected to
          torture and tried without proper legal representation after their lawyers withdrew in
          protest of the court's decision to refuse to authorize medical examinations.
          182. On 3 December 2002, the Special Rapporteur sent ajoint urgent appeal with
          the Special Rapporteur on torture, the Special Rapporteur on violence against women
          and the Special Rapporteur on the situation of human rights in the Sudan concerning
          17 women accused of adultery from the village of Munwashi, 8 km north of Nyala. It
          was reported that the reason given for the charges of adultery was that all the women
          were unmarried, but had given birth to babies. Summary trials were reportedly held
          and on 12 November 2002 Urn Alnas Moharned Ahrned, Hanan Abduiralunan
          Moharned, Hagir Moharned Ahrned, Nirnat Abakr Abdelgadir, Rasha Bahr
          Aldin Adan Fatima Abdulla Adan Gada Mosa Harnid, Sharnael Ornar Fadi,
          Hawa Yousif Abdelgadir, Fathia Ahrned Abdu1raIunai Laila Adarn Siraj
          Kaltoum Isarn Adan Rawda Abdelgabar Moharned were reportedly found guilty
          of adultery and sentenced to receive 100 lashes. Gadah Abdelgabar was allegedly
          found guilty of adultery on 14 November 2002 and sentenced to receive 100 lashes.
          The punishments were allegedly carried out on the same day as the sentencing. It is
          reported that the women had no opportunity to seek legal advice or to make appeals.
          No men have reportedly been charged in connection with the incidents. Zahra
          Hassan All, Asrna Moharned Aluned and Zakia Altayeb have reportedly not yet
          been brought to court. Fears have been expressed that, if taken to court and found
          guilty, these three women would face the same punishment as the other 14 women.
          Cornrnuuications frorn the Govenunent
          183. On 25 July 2002 the Government responded generally to the Special
          Rapporteur's communications and referred to the increase of terrorism in western
          Sudan. The Government advised that 63 villages were burned and thousands of people
          were killed. The Government advised that it had established special courts in Elfashir
          and Nyala in accordance with the Constitution of 1998, under the state of emergency
          which was declared in the region to address the situation. The Government further
          advised that all accused were represented by a number of lawyers throughout the trial.
          The accused were found guilty of organizing highly dangerous crimes and spreading
          terror and killing more than 1'OOO Sudanese, including women and children. The
          Government advised that five of the 36 accused in Elfashir were sentenced to death
          and another 15 accused received similar sentences in Nyala.
        
          
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          Observations
          184. Even if crimes are terrorist related, the Government is urged to observe
          General Assembly resolution 57/2 19 of 18 November 2002.
          Swaziland
          185. On 28 November 2002 the Prime Minister made a press statement that his
          government “does not intend to recognize two judgements of the Court of Appeal (the
          highest court). One of the two judgements was with regard to a ruling that King
          Mswati II had no constitutional mandate over Parliament to issue decrees affecting the
          law. The other ruling was with regard to an order for citing the Police Commissioner
          for contempt for disobeying a High Court order.
          186. This drove the government on a collision course with the judiciary. The entire
          bench of the Court of Appeal resigned. On 2 December 2002 judges of the High Court
          stopped work, as a mark of protest, and the Bar Association adopted a position to
          demonstrate in support of the judges. There were other related developments. The rule
          of law was in a state of collapse.
          187. In the light of the gravity of the situation, the Special Rapporteur issued a
          press release on 4 December 2002 expressing concern and stating that the refusal of
          the Government to obey court orders was a blatant breach of what is implied in
          principle 4 of the Basic Principles on the Independence of the Judiciary and article 26
          of the African Charter on Human and Peoples' Rights
          188. In a further development, the Prime Minister ignored a High Court order
          demanding that he provides an assurance that the government would adhere to court
          decisions. Instead, in a press statement isued on 3 January 2003 he was reported to
          have said, “Two recent appeal court judgements will be addressed through
          consultation between the government and its advisers, in addition to the Head of State
          (King Mswati). Legal experts will be included in the consultation.”
          189. These developments must be viewed with grave concern. The Special
          Rapporteur urges the Commission to address them appropriately.
          Syrian Arab Republic
          Commimications to the Govermnent
          190. On 11 April 2002, the Special Rapporteur together with the Special
          Rapporteur on torture and the Chairman- Rapporteur of the Working Group on
          Arbitrary Detention sent a joint urgent appeal regarding Riad Seif, an independent
          member of the Syrian People's Assembly who was sentenced to five years'
          imprisonment on 4 April by the Criminal Court in the capital Damascus. He was
          reportedly found guilty of a number of offences, including attempting to change the
          Constitution by illegal means and inciting ethnic strife. It was reported that Riad Seif
          was arrested without a warrant, before his parliamentary immunity had been removed.
          Further, his trial reportedly fell short of international standards for fair trials, as he
          was allegedly denied an adequate public hearing as well as confidential access to his
        
          
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          lawyers, who were not allowed to call in defeire witnesses. It was also reported that
          several other prisoners, including Habib ‘Isa, Fawaz Tello, Habib Saleh and Kamal
          al-Labwaui who weere also held at ‘Adra Prison, on the outskirts of Damascus,
          began a hunger strike on 19 March. They were reportedly protesting against their
          continued detention without trial, the denial of access to their lawyers and the denial
          of appropriate medical care.
          191. On 10 May 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Rapporteur on torture concerning Riad Turk. According to the information
          received, the health of Mr. Turk's, he suffers from diabetes and hypertension, had
          deteriorated significantly during his detention. He had reportedly been denied access
          to adequate medical treatment and also access to a lawyer. Further, on 28 April 2002
          his trial commenced before the Supreme State Military Court in Damascus. It was
          alleged that Mr. Turk had not been informed that his trial was to commence and
          documents related to the trial had not been made available to him.
          192. On 29 July 2002, the Special Rapporteur sent a communication concerning
          lawyer, Haytham Al-Maleli The Special Rapporteur had received information that
          on 4 July 2002, Mr. A1-Maleh had been suspended from practising as a lawyer for a
          period of three years by the Disciplinary Council of the Damascus City Branch of the
          Syrian Lawyers Syndicate. It was alleged that this stemmed from a public statement
          that Mr. A1-Maleh had made in defence of two of his clients. It was also reported that
          the Disciplinary Council proceeded against Mr. A1-Maleh in his absence, despite the
          fact that he had notified the Council that he was unable to appear on the date of the
          hearing.
          Communications from the Govermnent
          193. On 25 September 2002 the Government replied to the Special Rapporteur's
          communication dated 29 July 2002 concerning lawyer Mr. A1-Maleh. The
          Government advised that that on 5 February 2002 Mr. A1-Maleh was invited to appear
          before the Disciplinary Council with respect to an article he wrote in a bar association
          journal but he did not appear on that date and did not provide justification for his
          absence. The disciplinary Council fixed a new date of 5 March 2002. On that date Mr.
          Al-Maleh appeared and asked to present a case in his defence. The Council met again
          on 16 April and Mr. A1-Maleh presented his case. The case was adjourned to 21 June
          2002 and on that date Mr A1-Maleh was absent, therefore the council imposed a three-
          year suspension from practising law.
          194. On 28 October 2002 the Government replied to the Special Rapporteurs' joint
          urgent appeal dated 11 April 2002 addressing the case of Riad Seif. The Government
          confirmed that Mr. Seif was sentenced to five years in jail on 4 April 2002 for
          violating the Constitution and six months for organizing a secret society. Both
          sentences are subject to appeal.
          195. On 28 October 2002 the Government also responded to the Special
          Rapporteurs' joint urgent appeal dated 10 May 2002 concerning the case of Riad
          Turk. The Government advised that Mr. Turk was charged with committing crimes
          against State security, the constitution and public order. The Government stated that
        
          
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          Mr. Turk's trial before the High State Security Court commenced on 1 September
          2001 and is still pending as he continues to enjoy his human and legal rights.
          Observations
          196. The Special Rapporteur thanks the Government for its responses. The Special
          Rapporteur has received information that Mr. Al-Maleh now faces a military trial in
          January 2003.
          Timor-Leste
          197. Following the Special Rapporteur's observations on Timor Leste in his last
          report (E/CN.4/2002/72, annex, para. 55), he continued to monitor developments in
          the country.
          198. On 21 June 2002, judges in Timor-Leste sent the Special Rapporteur a
          communication seeking his assistance on two matters which were of some concern to
          them. The first concerned a draft Statute of Judicial Magistrates which the
          Government had submitted to Parliament on which the judges alleged that they were
          not consulted. They were concerned that some of the provisions in the draft would
          impinge on their independence. Their second concern related to the appointments of
          some of them. The affected magistrates felt that after 20 May 2002, when Timor Leste
          became an independent sovereign State under a new Constitution, their appointments
          expired and they no longer had the jurisdiction to adjudicate on cases. As a result
          many refused to attend to their judicial duties, thereby virtually paralysing the courts.
          199. In view of the seriousness of the situation, on 4 July 2002, the Special
          Rapporteur wrote to the Foreign Minister, Jose Ramos Horta, expressing his concern
          and sought an urgent visit to which the Minister promptly responded in a
          communication dated 8 July 2002, inviting the Special Rapporteur.
          200. The Special Rapporteur visited Dili from 11 to 13 July 2002. While there he
          visited the National Parliament and listened to part of the debate on the bill on the
          Statute on Judicial Magistrates; he met a group of the concerned judges; judges of the
          Special Panel for Serious Crimes; representatives of the USAID Rule of Law
          Programme; the acting Minister of Justice and Vice-Minister for Foreign Affairs; the
          representatives of the Human Rights Unit and the Special Representative of the
          Secretary- General for Timor- Leste, Kamalesh Sharma.
          201. The concern ofthe judges regarding their appointments was resolved on 9 July
          2002, when Parliament passed Bill M 1/02 on the Interpretation of Applicable Law
          validating the ir judicial appointments on a transitional basis. From the discussions
          with the concerned judges, the Special Rapporteur learnt that they had taken a very
          strict interpretation of the Constitution and thereby overreacted to the situation.
          Following the Special Rapporteur's visit the judges returned to the courts on 15 May
          2002, bringing an end to the six-week shutdown of many courts in Timor- Leste.
          202. The Special Rapporteur studied the bill on the Statute of Judicial Magistrates
          and found that the judges had some justification for their concerns. Some of the
          provisions would, if passed as law, impinge on their independence. As a matter of
        
          
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          urgency, the Special Rapporteur, on 15 July 2002, addressed a communication to the
          Minister for Foreign Affairs expressing his initial areas of concerns over the bill.
          203. At the request of the Government, on 6 August 2002, the Special Rapporteur
          subsequently submitted a more detailed memorandum expressing his concerns with
          respect to some of the provisions. The Special Rapporteur has not heard further from
          the Government nor the Human Rights Unit of UNMISET in Timor-Leste.
          204. The Special Rapporteur reiterates his concerns expressed in his last report
          (E/CN.4/2002/72, annex, paras. 45-55). The country requires considerable resources,
          both human and financial to structure a sound administration of justice. The present
          judges, many of whom are still on probatioi require continuous training and more
          exposure both to law and practice. This includes international human rights law. The
          courts do not have adequate libraries or up-to-date materials on domestic laws.
          Tunisia
          Communications to the Government
          205. On 4 January 2002, the Special Rapporteur sent a communication concerning
          the dismissal of Judge Yahyaoui. The Special Rapporteur had received information
          that on 29 December 2001, Judge Yahyaoui had been dismissed by the Disciplinary
          Council of Magistrates because of his presidency of an association for the
          independence of the judiciary, created in September 2001. It was alleged that the
          hearing before the council had not been fair as the lawyers who were representing the
          judge were refused a postponement in order to adequately prepare the judge's case.
          206. On 4 February 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on torture and the Special Rapporteur on freedom of expression
          and opinion concerning the appeal hearing in the case of Hanuna Hanunami,
          Abdeijabar Maddouri, Samir Taamallah and Amar Hamroussia, who had been
          convicted for membership of the Communist Workers' Party of Tunisia. According to
          the information received, the police interrupted the hearing and acted aggressively
          towards the accused, following which the lawyers representing the accused withdrew
          from the case out of protest It was reported that the convictions were confirmed by
          the court. Several persons attending the hearing, including three foreign journalists,
          were said to have been arrested by the police. The Council of the Bar Association had
          reportedly called a general assembly and were planning a general strike for 7 February
          2002.
          207. On 6 March 2002, the Special Rapporteur sent a further communication
          concerning the dismissal of Mr. Yahyaoui. According to the information received, the
          Disciplinary Council had failed to issue its decision on the complaints against Mr.
          Yahyaoui in writing, which would affect his right of recourse before the
          Administrative Tribunal. It was alleged that the Administrative Tribunal rejected Mr.
          Yahyaoui's request to order the Council to formulate its decision in writing. Further,
          Mr. Yahyaoui's counsel, Abderrazaq Kilani, has allegedly been put under pressure
          in order to make him withdraw from the case.
        
          
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          208. On 8 April 2002, the Special Rapporteur sent an urgent appeal with the
          Special Representative of the Secretary-General on human rights defenders
          concerning the failure of the Government to allow Judge Yahyaoui to leave the
          country in order to attend the United Nations Commission on Human Rights.
          209. On 15 April 2002, the Special Rapporteur sent a letter requesting an urgent
          mission to Tunisia.
          Communications from the Government
          210. On 12 February 2002, the Giivernment replied to the Special Rapporteur's
          intervention of 4 January 2002. The Government stated that on 9 December 2001, the
          Judicial Disciplinary Council decided to dismiss Judge Yahyaoui for bringing
          dishonour on the judiciary and failing to comply with his professional obligations and
          duty of discretion. The Government stated that this was because he had publicly
          defamed the courts and failed to observe the neutrality expected of judges under the
          regulations on the judiciary. The Government recalled that on 6 July 2001, Judge
          Yahyaoui had published an “open letter” which contained defamatory statements
          about serving law officers and the courts, which stated, inter alia , that “the title of
          legal officer is associated with injustice, terror and tyranny... The Judicial Service
          Commission spends its time sowing discord”. He then published an article on the
          Internet, in which he stated that “the Tunisian legal officers who were behind the
          promulgation of the 1967 regulations on the judiciary do not deserve divine mercy”
          Pursuant to article 54 of the regulations on the judiciary, the Minister of Justice
          summoned Mr. Yahyaoui before the Disciplinary Council on 17 July 2001. A
          reporting member of the Council was designated to take a statement from Mr.
          Yahyaoui prior to the meeting of the Council.
          211. The Government stated that Mr. Yahyaoui was summoned to appear before
          the Disciplinary Council within the legally prescribed time frame, i.e. eight days
          before the Council met on 2 August 2001. As prescribed by law, Mr. Yahyaoui
          appointed two lawyers, Abderrazak Kilani and Fayçal Triki, to represent him. They
          inspected the case file on 26 and 28 July, respectively. Owing to the seriousness of the
          charges against him, Mr. Yahyaoui was suspended from his duties pursuant to a
          decision of the Ministry of Justice dated 14 July 2001, in accordance with articles 24,
          50 and 54 of the regulations on the judiciary. On 28 July 2001, Mr. Yahyaoui
          requested postponement of the Council meeting. The President of the Council acceded
          to this request. Given that suspension is effective only until such time as the matter
          comes before the Council, it was lifted by the Ministry of Justice on 31 July 2001. Mr.
          Yahyaoui was thus reappointed to his post on full pay.
          212. According to the Government, on 3 September 2001, Mr. Yahiaoui's lawyer,
          Maître Kilani, filed a request that a decision should be taken on his client's case. A
          similar request was filed on 19 October 2001 by Maître Triki. Mr. Yahyaoui publicly
          stated this request on 23 December 2001 at a meeting of the Association of Tunisian
          Legal Officers.
          213. The next meeting of the Council was then scheduled for 29 December 2001.
          No new evidence had been appended to the case file as submitted to the Council on
          2 August 2001. However, the President ofthe Disciplinary Council, who is also the
        
          
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          President of the Court of Cassation, gave the defendant another eight days to inspect
          the case file prior to the meeting of the Council. On 24 December 2001, accompanied
          by Maître Kilani and, on 26 December 2001, by Maître Triki, Mr. Yahiaoui re-
          inspected the case file in person. During the eight-day period set aside for the
          inspection of the case file, no lawyers apart from those instructed to represent the
          defendant came forward. At the meeting of the Council on 29 December 2001,
          however, 84 lawyers suddenly submitted their instructions to represent Mr. Yahyaoui
          and requested that the case be postponed. Although the right of defence was hono ured
          insofar as Mr. Yahyaoui had appointed lawyers who inspected the case file prior to
          the Council meeting, out of a concern to ensure more safeguards, the Council
          permitted all the lawyers who had presented themselves to attend the hearing.
          However, considering that the Council was meeting after a postponement requested
          by Mr. Yahyaoui himself; that no new material had been appended to the case file
          originally submitted to the Council; that Mr. Yahyaoui and his lawyers had inspected
          the same material on four occasions (26 July 2001, 28 July 2001, 24 December 2001
          and 26 December 2001); and that another eight-day extension had been granted to the
          defendant and his counsel to enable them to inspect the case file, the Council took the
          view that the new request for a postponement was a delaying tactic and consequently
          rejected the request following a debate in closed session.
          214. As to the merits, Mr. Yahyaoui reiterated his written replies when the
          President gave him the floor at the hearing. The Council, which is composed entirely
          of legal officers of whom two are elected by their fellow appeal-court judges (i.e. the
          same rank as the defendant), decided to dismiss Mr. Yahyaoui in view of the serious
          nature of the libels and their confirmation by the defendant himself
          215. The Government recalls that the Disciplinary Council is a decision-making
          body and applies a quasi-judicial procedure in its meetings and acts (times fixed for
          appearance, same reporting judge, right of defence, etc.). The Administrative Court,
          which has supreme administrative jurisdiction in Tunisia, nevertheless allows
          applications to set aside decisions of the Disciplinary Council on the grounds that the
          latter has exceeded its authority and that remedy is open to the defendant.
          216. The Government concludes that the disciplinary proceedings against
          Mr. Yahyaoui have no connection with the right of a legal officer to form
          associations, or with the right to freedom of expression. Like all other citizens, legal
          officers enjoy all the rights and safeguards prescribed by law. Moreover, Tunisian
          legal officers have always been free to form associations. Thus, a professional
          association of legal officers was formed on 29 October 1971 and it continues to
          function normally. The matter of the establishment of a “Centre for the Independence
          of Legal Officers” was never raised during the proceedings and no evidence to
          substantiate the establishment of this “centre” was appended to the case file.
          Other developments
          217. The Special Rapporteur received information that on 11 December 2002 Judge
          Yahyaoui suffered violent blows to his head. The Special Rapporteur expresses his
          deep concern about the violence against Judge Yahyaoui and other reported threats
          against Tunisian lawyers in recent months.
        
          
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          Observations
          218. The Special Rapporteur has expressed grave concern about the continued
          threat to the independence of judges and lawyers in Tunisia. His repeated requests for
          a mission to Tunisia since 1997 have been ignored by the Government.
          Turkey
          Communications to the Government
          219. On 23 May 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Rapporteur on freedom of opinion and expression and the Special Rapporteur
          on extrajudicial, summary or arbitrary executions concerning the arrest of Salih Yilar
          According to the information received, Mr. Yilar had been arrested on 14 May2002
          and taken to the Anti-Terror Branch of the Diyarbakir Police Headquarters, where he
          was allegedly tortured in order to force him to act as an informer. Mr. Yilar was
          released from custody after being taken to Diyarbakir State Hospital and after other
          police stations refused to accept him as a prisoner seeing that he had been tortured.
          Mr. Yilahthen met his lawyers to give a statement and was immediately afterwards
          arrested by the police and informed that the next time both his brother and his lawyers
          would be arrested and placed in custody unless he signed a prepared statement.
          220. On 7 August 2002, the Special Rapporteur sent a communication concerning
          the trial of 27 lawyers before the Ankara Penal Court No. 1. The Special Rapporteur
          had received information that the lawyers were being tried for “professional
          misconduct” under Article 240 of the Turkish Penal Code, which allows for the
          punishment of public servants if they abuse their duties or responsibilities. These
          charges allegedly related to actioiE by the lawyers, involving the shouting of slogans
          and the inciting of individuals to resist the police, in the Ankara Penal Court No. S on
          5 December 2000, where they were representing their clients.
          Communications from the Govermnent
          221. On 15 October 2002, the Government replied to the Special Rapporteur's
          intervention of 7 August 2002 and advised that the case against 27 lawyers was still
          pending and that none of the accused were in custody.
          222. On 29 November 2002 the Government provided further information on this
          case and advised that all 27 lawyers were acquitted on 31 October 2002, due to lack of
          evidence.
          223. On 6 November 2002, the Government replied to the Special Rapporteurs'
          joint urgent appeal of 23 May 2002 concerning Salih Yilar. The Government advised
          that a decision of non-prosecution was rendered due to lack of evidence. The
          Government stated that Mr. Yilar was not subjected to torture. However, as a result of
          the alleged complaint, an investigation was initiated but no evidence or witnesses
          were found to substantiate this allegation.
          Observations
        
          
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          224. The Special Rapporteur thanks the Government for its responses. With regard
          to the trial of the 27 lawyers for professional misconduct, the Special Rapporteur has
          seen the report of the International Commission of Jurists who sent an observer to the
          trial. The trial certainly appeared to be politically motivated, having a chilling effect
          on the legal profession. The Special Rapporteur urges the Government to observe the
          United Nations Basic Principles on the Role of Lawyers, and in particular not to
          identify lawyers with their clients' causes.
          United Kingdom of Great Britain and Northern Ireland
          Communications to the Govermnent
          225. On 25 June 2002, the Special Rapporteur sent an urgent appeal concerning
          threats made to a lawyer, Padraigin Drinan The Special Rapporteur had received
          information that several loyalist paramilitary organizations were planning on killing
          her in revenge for the death of another individual. It was alleged that this information
          was known to the police but had not been passed onto Ms. Drinan, nor had steps been
          taken to improve her safety, despite her status as a person protected under the Key
          Persons Protection Scheme (KPPS).
          226. On 26 July 2002, the Special Rapporteur sent an urgent appeal concerning
          alleged threats to Geraldine Finucane. The Special Rapporteur had received
          information that a loyalist paramilitary organization was planning to attack her at her
          home, allegedly because of her campaign for an official inquiry into the alleged
          collusion in the murder of her husband, Patrick Finucane. It was further reported that
          Mrs. Finucane's lawyer had contacted the Police Service of Northern Ireland (PSNI),
          which informed him that they were not aware of any threat. On 23 July 2002, Mrs
          Finucane was contacted by the British-Irish Intergovernmental Conference Joint
          Secretariat, which informed her that the PSNI had performed a threat assessment and
          found a high level ofrisk and that the KPPS was investigating ways to counter the
          threat. It was alleged that neither the PSNI nor the KPPS contacted Mrs Finucane to
          inform her of the steps she should take to guarantee her safety.
          227. On 2 October 2002, the Special Rapporteur sent ajoint communication with
          the Special Rapporteur on the human rights of migrants concerning allegations that
          certain procedural safeguards to guarantee human rights in the criminal justice system
          were being circumvented under the Anti-terrorism Crime and Security Act (ATCSA).
          According to the information received, under clauses 21 and 23 of ATCSA 2001, any
          non United- Kingdom national may be detained without charge or trial for an
          unspecified period of time when the Secretary of State certifies that he/she has
          grounds to believe that this person is a suspected terrorist or constitutes a risk to the
          national security. Since secret evidence can be entirely withheld from those against
          whom it has been adduced, fears have been expressed that Special Immigration
          Appeals Commission (SIAC) proceedings violate the right to a fair hearing. The
          Special Rapporteurs also noted that the ATCSA does not contain provisions
          guaranteeing the right to immediate access to a solicitor if a person is detained under
          this Act. Further, there are no explicit provisions under the ATCSA according to
          which those arrested under it have the right to bring proceedings before a court for a
          prompt determination of the lawfulness of their detention.
        
          
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          228. The Special Rapporteurs received information that those detained under the
          ATCSA in Woodhill prison, Buckinghamshire, and Belmarsh prison, Londoi have
          had restricted time and facilities to communicate with lawyers and that when legal and
          social visits were granted, visitors were subjected to strip searches.
          229. Finally, the Special Rapporteurs noted that on 30 July 2002, the SIAC found
          that the targeting of nonUnited-Kingdom nationals was discriminatory and
          disproportionate and determined that the above-described detention measures were
          not compatible with the European Convention for the Protection of Human Rights and
          Fundamental Freedoms. The Special Rapporteurs have been informed that the
          Government has appealed the jud ment.
          Communications from the Government
          230. In response to the Special Rapporteur's earlier communication dated 13
          December 2001 regarding the murder of William Stobie (E/CN.4/2002/72, annex,
          para. 192), the Secretary of State for Northern Ireland, assured the Special Rapporteur
          that the Government desired to get at the truth behind the killings of Patrick Finucane
          and William Stobie and that the best way to achieve this was to complete the Stevens
          investigation into the Finucane murder and the police investigation into the Stobie
          murder. The Government confirmed its commitment to appoint a judge of
          international standing to conduct a review of a number of cases, including that of
          Patrick Finucane.
          231. On 30 July 2002, the Special Rapporteur received a reply to his urgent appeal
          dated 25 June 2002. The Government stated that the police had contacted Ms Drinan
          on 19 June 2002 to inform her of a threat from loyalist paramilitaries to target her at
          the Royal Courts of Justice on the following day. As a result the District Commander
          for the South Belfast District Command Unit deployed extra patrols in the vicinity of
          the courthouse and increased court security. Further, as a result of the information
          contained in the Special Rapporteur's letter, an up-to-date threat assessment was
          carried out which determined that Ms. Drinan was still under a significant level of
          threat. The police are carrying out inquires to determine the source of the threat.
          232. On 15 August 2002, the Special Rapporteur received a reply to his urgent
          appeal of 26 July 2002. The Government stated that they were first informed of the
          threat to Mrs. Finucane's life when her lawyer, Mr. Madden, contacted PSNI on 18
          July 2002. The Government stated that PSNI had no intelligence about such a threat
          prior to being informed by Mr. Madden and that it is not true that knowledge of the
          threat had been withheld by Special Branch officers. As a result of the receipt of this
          information, PSNI carried out a risk assessment. Although it could not confirm the
          threat from its own intelligence sources, PSNI concluded that there was significant
          threat based upon the information given to them by Mrs. Finucane's lawyer.
          233. The Government also stated that Mrs. Finucane had declined to attend a
          meeting in Dublin with the Deputy Commissioner of the Garda Siochana, Noel
          Conroy, and Assistant Chief Constable Alan McQuillan, which would have afforded
          an opportunity to discuss with her measures for her protection. Further, Mrs. Finucane
          has been included in KPPS, but, despite a number of approaches, Mrs. Finucane and
          her representatives had proved reluctant to make contact with the Northern Ireland
        
          
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          Office to facilitate the performance of the necessary work. On 6 August 2002,
          officials met with Mrs. Finucane's son and brother-in-law to discuss the installation of
          security measures. As a result, a comprehensive range of measures had been
          recommended although the family had expressed concern about the effectiveness of
          one of the main recommendations.
          234. On 6 November 2002, the Government replied to the Special Rapporteurs'
          joint communication of 2 October 2002 concerning the ATCSA legislation. The
          Government advised that on 25 October 2002, the Court of Appeal unanimously
          found that Part IV of the Act was not discriminatory. The Government also explained
          that this Act strikes a balance between the interests of the individual suspected
          terrorist and the general community.
          235. In particular, the Government provided the Special Rapporteur with the
          following information: “ [ T]he detainees have the right to an independent and
          impartial tribunal. Any certificate issued is subject to an appeal to the SIAC ...] which
          has the power to cancel it if it considers that the certificate should not have been
          issued. In addition, any persons detained have the right to challenge the derogation to
          SIAC and the higher courts, which they have tried, unsuccessfully, to do. Further, it is
          open to a detainee to end his detention at any time by agreeing to leave the United
          Kingdom.”
          236. The Government stated that there are further long-term safeguards. Sections
          21 to 23 of the Act are temporary provisions which automatically expire after 15
          months, subject to renewal for periods not exceeding one year at a time if both Houses
          of Parliament are in agreement (sect 29(1)). This ensures periodic review by the
          legislature, in addition to continuing review by the executive. Further, the detention
          provisions will end with the final expiry of sections 21-23 of Part IV of the Act on 10
          November 2006 (sect. 29(7)). If, in the Government's assessment, the public
          emergency no longer exists or the extended power is no longer strictly required by the
          exigencies of the situation, the Secretary of State will, by Order under section 29(2),
          discontinue the provision.
          237. In response to the conditions of detention in both Belmarsh and Woodhill
          prisons, the Government clarified that prisoners are not being held under a restrictive
          regime. The Government advised that detainees do not suffer impediments to contact
          with the outside world. However, due to the security category of detainees, proposed
          visitors undergo appropriate checks and visits may only be permitted under closed
          conditions. Visitors are searched upon entry to the prison but this procedure does not
          imply that the visitor has to strip. In addition, detainees have access to a complaints
          system. So far, all complaints made by detainees have reportedly been investigated
          and a response has been given.
          Observations
          238. The Special Rapporteur was advised that Cohn Port, the Deputy Chief
          Constable who was brought in to lead the investigation into Rosemary Nelson's
          murder, was no longer involved in the investigation There is no information on the
          present state of this investigation.
        
          
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          239. The Special Rapporteur notes that Mr. Justice Peter Cory was appointed by the
          British and Irish Governments to determine whether there should be public inquiries
          into the murders of Mr. Finucane, Lord Justice Maurice and Lady Cecily Gibson, Mr.
          Billy Wright, Rosemary Nelson, Robert Hamill and two senior RUC officers, Chief
          Superintendent Harry Breen and Superintendent Bob Buchanan. The Special
          Rapporteur reiterates his concern that the longer a public inquiry is delayed the greater
          the likelihood that more evidence will be lost. He reminds the Government of the
          adage “justice delayed is justice denied.”
          United Republic of Tanzania
          Communications from the Government
          240. On 4 April 2002, the Government replied to the Special Rapporteurs' joint
          urgent appeal of 30 November 2001 (E/CN. 4/2002/72, annex, para. 206) concerning
          the President, Rugemeleza Nshala and two other members, Tundu Lissu and
          Augustine Mrema, of the Lawyers' Environmental Action Team (LEAT).The
          Government stated that on 24 November 2001, the police made a routine and lawful
          search of the LEAT premises to look for evidence to support charges of sedition. The
          search and seizure of documents were conducted in the presence of independent
          witnesses and representatives of the suspects. The suspects were interrogated and
          released on bail. The Government stated that these charges were laid because these
          members of LEAT continued to publicly allege that a massacre had taken place in
          Bulyanhulu despite the fact that a police investigation concluded that no one had been
          buried alive in a mine in Bulyanhulu. The Government further added that at no time
          has the Government exerted any pressure to undermine LEAT's activities. The
          Government does not intend to deregister LEAT unless guided by strong reasons to do
          so. The Government advised that the police investigation against these three members
          of LEAT is complete and the case is being studied by the Director of Public
          Prosecutions.
          Observations
          241. The Special Rapporteur thanks the Government for its response.
          United States of America
          Communications to the Govermnent
          242. On 14 February 2002, the Special Rapporteur sent ajoint urgent appeal with
          the Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
          the case of Alexander Edmund Williams who was scheduled to be executed in
          Georgia on 20 February 2002. Both Special Rapporteurs had already sent an urgent
          appeal concerning Mr. William's case in 2000, on the basis that he had not been
          represented by a competent lawyer. According to the information received, Mr.
          Williams suffers from a mental illness and was convicted of the abduction, rape and
          murder of Aleta Carol Bunch in 1986, when he was 17 years old. In 2000, the
          Supreme Court of Georgia hid stayed Mr. Williams' execution, but since October
          2001 executions in Georgia have resumed, following the Court's decision on the
          constitutionality of the method of execution.
        
          
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          243. On 6 March 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special
          Rapporteur on torture concerning the case of Tracy Lee Housel, a British national,
          who was scheduled to be executed in the State of Georgia on 12 March 2002. He was
          reportedly sentenced to death in February 1986 for a murder committed in April 1985.
          It was reported that during the trial Mr. Housel's lawyer failed to present evidence
          that his client was suffering from serious mental health problems and psychological
          impairment. It is further alleged that statements taken from Mr. Housel while he was
          being held in coercive conditions in pre-trial detention were used against him during
          his trial. Allegedly, he was held in solitary confinement and not allowed to take a
          shower for the first three months after his arrest. It is also reported that on several
          occasions, he was given electric shocks from a stun- gun, including when he was
          standing in a pool of water.
          244. On 13 May 2002, the Special Rapporteur sent a joint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions concerning
          Henry Dunn. According to the information received, Mr. Dunn had been convicted
          of murder by the 241Yt District Court, Smith County, Texas, in 1995 and sentenced to
          death At the appellate level, the Texas Court of Criminal Appeals appointed a lawyer,
          Kerry Lee, to represent him. It was alleged that the lawyer had no experience in death
          penalty cases and during the appellate process submitted a motion to the court, which
          was subsequently denied, requesting that the appeal be delayed so he could attend a
          seminar on how to write an appeal brief It is also alleged that the lawyer failed to
          appear in court to present oral arguments. Mr. Dunn based his appeal on the grounds
          that, inter alia, some of the issues were inadequately written up in the trial brief The
          court rejected his arguments.
          245. On 15 May 2002, the Special Rapporteur sent ajoint urgent appeal with the
          Special Rapporteur on extrajudicial, summary or arbitrary executions concerning the
          trial of Johnny Martinei who had been convicted of murder in 1994. According to
          the information received the lawyer appointed by the Texas Court of Criminal
          Appeals (TCCA) for his habeas corpus appeal had never performed this kind of
          appeal before and on several occasion requested permission to withdraw from the
          case. Further, the lawyer prepared the brief in the case without consulting his client
          and the brief was only 5 1/2 pages long. The TCCA dismissed the appeal, although
          one jud raised the issue of adequate legal representation in his dissent. Subsequent
          to the decision of the TCCA, the lawyer submitted a motion for reconsideration,
          raising the issue of the inadequacy of his legal representation.
          246. On 18 September 2002, the Special Rapporteur sent a detailed joint
          communication with the Special Rapporteur on torture and the Special Rapporteur on
          the human rights of migrants regarding the detention of many individuals, particularly
          non United States nationals, since 11 September 2001. According to the information
          received, despite being held in custody by the Immigration and Naturalization Service
          (INS), many detainees were reportedly being investigated by the Federal Bureau of
          Investigation (FBI) for the commission of criminal offences. However, it was alleged
          that INS detainees have fewer guarantees in their proceedings than people detained in
          the context of criminal procedures.
        
          
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          247. The Special Rapporteurs noted with concern the level of secrecy surrounding
          these detentions and that many cases have been held before closed immigration
          courts. It was reported that in August 2002, a United States District Judge ordered the
          Government to disclose the names of people detained in relation to the 11 September
          2001 attacks. According to the information received, the court order allegedly did not
          apply to individuals detained as material witnesses and did not request the disclosure
          of the dates and locations of arrests and detentions.
          248. The Special Rapporteurs had also received information stating that many
          detainees had not been informed in a language that they understand about their rights,
          particularly their right to have the assistance of a lawyer or to have a lawyer appointed
          when they lack sufficient means to pay for it, and in some circumstances had been
          denied that assistance. In circumstances where individuals had legal representation, it
          was reported that families and lawyers had great difficulty in locating the whereabouts
          of the INS detainees as they were not informed when the detainee had been
          transferred. It was also alleged that lawyers had difficulties in obtaining the
          information necessary for the performance of their professional duties, for example,
          information about the date of detention, the basis of detention, whether and when the
          detainee has been charged with an offence, whether or not the detainee had been
          subject to interrogation for the commission of criminal offences and information
          about the continuing status of their case.
          249. In connection with the above allegations, the Special Rapporteurs requested
          specific information on the following individual cases: Hasnain Javed, Rabid
          Haddad, Dr Mazen A1-Naj jar, Tiffany Hughes, All A1-Maqtari, Qaiser Rafiq,
          Osama Awadallah, Shakir Baloch and Ayub All Khan.
          Observations
          250. Unlike previous years, the Government has not responded to any of the
          communications enumerated herein.
          Uruguay
          Communications to the Govermnent
          251. On 23 October 2002, the Special Rapporteur sent a joint urgent appeal with
          the Special Rapporteur on freedom of opinion and expression and the Special
          Rapporteur on extrajudicial, summary or arbitrary executions concerning journalist
          Daniel Cancela. According to information received, Mr. Caneela produced a
          documentary series about corruption in the management of the prison system. As a
          result of Mr. Cancela's investigative journalism, Judge Pablo Egurenand other
          witnesses were allegedly threatened because Judge Eguren was responsible for
          inquiring into the allegations of corruption.
          Communications from the Govermnent
          252. On 20 December, the Government replied to the Special Rapporteur's joint
          urgent appeal of 23 October 2002. The Government expressed its concern about the
          statements made by the Special Minister of the Interior who confirmed that there were
        
          
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          allegations of corruption among police officers of the National Directorate of Prisons,
          Penitentiary Centres and Centres for Rehabilitation. An inquiry conducted by the
          National Directorate of Information and Intelligence Services revealed evidence
          involving three high-ranking police officers. The Government confirmed that the case
          was sent to the relevant judicial body for criminal proceedings and advised that
          everything was done with transparency. The Government further advised that
          allegations of threats were taken very seriously and the Minister of the Interior
          proposed police protection to Mr. Cancela and Judge Eguren, but both refused these
          measures and did not file a complaint regarding the threats. Without a formal
          complaint from the alleged victims, criminal proceedings cannot be launched.
          Observations
          253. The Special Rapporteur thanks the Government for its response.
          Uzbekistan
          Communications to the Government
          254. On 22 November 2002, the Special Rapporteur sent a joint urgent appeal with
          the Special Rapporteur on torture concerning the trial of Iskandar Khudoberganov,
          Bekzod Kasymbekov , Nosirkhon Khakimov and three others, whose trial had
          been reportedly suspended in September 2002 and resumed on 19 November 2002.
          According to the information received, the men were accused of religious extremism
          and charged with serious anti-State crimes, including “attempting to overthrow the
          constitutional order” and “setting up an illegal group”. Mr. Khudoberganov is
          reportedly at grave risk of being sentenced to death. At least three defendants were
          reportedly tortured to force them to “confess” or incriminate other defendants. The
          judge allegedly said to Mr. Khudoberganoy, “Come on, don't deny it. Confess and
          you'll feel better”. Mr. Khudoberganov's lawyers have reportedly been denied access
          to him since the trial was suspended on 26 September 2002.
          Observations
          255. The Special Rapporteur awaits the Government's response.
          Venezuela
          256. The Special Rapporteur received information from the International Bar
          Association (IBA) regarding the increasing lawlessness and the critical situation in the
          administration ofjustice. The IBA sent a high-level delegation to the country from 12
          to 18 January 2003 and a report is expected shortly.
          Zimbabwe
          257. In his last report (E/CN.4/2002/72, annex, paras.215-222) the Special
          Rapporteur referred to four communications sent to the Government, among them two
          urgent appeals. The Special Rapporteur also expressed his extreme concern over the
          deterioration of judicial independence and the rule of law in the country. None of the
          communications was responded to by the Government. During the year, and in view
        
          
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          of the deterioration of the situation, the Special Rapporteur issued four press
          statements.
          258. The Special Rapporteur also expressed regret that the Government had
          reneged on its previous agreement for him to conduct a mission
          259. The situation continued to deteriorate in 2002. The Special Rapporteur issued
          four press statements, on 7 Marc1 6 June, 2 September and 24 September, drawing
          attention to and expressing his concern about specific developments. They were:
          a) President Robert Mugable defied a Supreme Court order delivered on
          27 February 2002 striking down electoral legislation enacted by
          Parliament. Justice Ebrahim who presided over the sifting of the
          Court, resigned. He was the last of the seven Supreme Court judges to
          step down since the early retirement, under pressure, of Chief Justice
          Gubbay;
          b) The arrest and detention of the President of the Law Society of
          Zimbabwe and its Executive- Secretary in Harare on 3 June 2002 for
          alleged possession of “subversive” documents relating to the mass
          action allegedly planned by the Movement for Democratic Change
          (MDC);
          c) The violent attack on Magistrate Walter Chikwanha in Chipinge,
          Manicaland. He was assaulted and dragged out of court by a group of
          “war veterans”, supporters of President Mugabe, because he refused to
          order custody of several individuals including five members of the
          opposition party. In the incident the group tried to attack the lawyer
          who acted for the accused and vandalized his car;
          d) The arrest and detention and charges preferred against retired High
          Court Judge Blackie for alleged corruption and obstruction of justice.
          The manner in which Judge Blackie was arrested and taken into
          custody for such alleged offences was most disturbing. There was
          reasonable cause to believe that this was an act of vengeance by the
          Government forthe earlier conviction for contempt of court and
          sentencing to imprisonment and a fine ofthe Minister of Justice on 17
          July 2002 by Judge Blackie. The conviction and sentence were
          subsequently set aside by a Supreme Court Judge;
          e) The ruling of the High Court, since affirmed by the Supreme Court,
          refusing the official opposition access to the voters' roll in its
          electronic form to challenge the legality of the presidential elections in
          a pending court action;
          f) That President Mugabe had threatened the shadow Minister of Justice,
          saying that the only place in Zimbabwe for the Minister wis in prison.
          Conununication from the Goveriunent
          260. In a four-page letter dated 27 September 2002 addressed to the High
          Commissioner, with copy to the Special Rapporteur, the Government expressed its
          concern and displeasure over the press statements. The Government, stated, inter alia,
          that the Special Rapporteur was biased in his assessment of the Zimbabwe courts; that
          he “pandered with abundance to the whims of those in the United Nations who
        
          
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          continue to imagine Zimbabwe as an appendage to their countries”. The letter
          contained other derogatory remarks directed against the Special Rapporteur which he
          does not wish to enumerate here.
          261. The Government in the same communication defended the charges against
          retired Judge Blackie. It stated that the charges arose from the judge's quashing of an
          appeal against the jail term imposed on a white woman without the concurrence of the
          other judge who had also sat on the appeal. In terms of the rules of court, Judge
          Blackie had to seek the concurrence of the other judges before preparing and passing
          judgement. Justice Makarau, the other judge who had heard the appeal with Justice
          Blackie, did not even see the judgment prepared by her colleague until after it was
          handed down.
          Response of the Special Rapporteur
          262. The Special Rapporteur, in a written communication dated 4 October 2002,
          responded to the Government's communication but not to the personal attacks against
          him. With regard to the charges against Judge Blackie, he said:
          “With regard to the facts which your Government alleges as the grounds for
          the charges preferred against retired Judge Blackie, they obviously, if true, are
          grounds for discipline for judicial misconduct. It may be argued that as Mr.
          Blackie has retired as a judge he could not be subjected to judicial discipline.
          However, charging him for the criminal offence of obstructing the course of
          justice in addition to corruption smacks of selective prosecution.
          “In August 2002 a group of so called “war veterans” charged into the court of
          Magistrate, Walter Chikwanha, in Chipinge, and assaulted him and thereafter
          chased the lawyer and vandalized his car. This incident was the subject of a
          press release I issued on 2 September 2002. To date, I have not heard of the so
          called “war veterans” or anyone else responsible for the assault on the
          Magistrate being charged for any offence. Was not the assault on a sifting
          Magistrate a grave act of obstruction of justice? Selecting retired Judge
          Blackie for prosecution for such an offence, on the alleged facts, which if true,
          would amount to only judicial misconduct, d c arly and must necessarily be
          perceived as an act of vendetta on the part of your Government.”
          Observations
          263. The trial of Judge Blackie is scheduled to commence on3O June 2003. The
          Special Rapporteur reiterates his concern over the deterioration of the rule of law in
          Zimbabwe and urges the Commission to respond appropriately.