Human rights news from the IBA - Aug/Sept 2016

Lawyers on the front line: Zuzana Caputova, ‘grassroots environmental hero’

Polly Botsford

Zuzana Caputova, a public interest lawyer who won a decisive victory in the European Court of Justice (ECJ) over a highly controversial waste pit in Slovakia, was recently awarded the European category of the prestigious Goldman Environmental Prize, which honours ‘grassroots environmental heroes’.

Caputova, an advocate who works with a local NGO, Via Iuris, in Slovakia, and who was recently received in the White House for her work, is one of six winners for the 2016 Prize, known as the ‘environmental Nobel’. The prize focuses on individuals who have led positive change in the natural environment through community or citizen participation.

Caputova’s win is in recognition of her successful efforts to close down a landfill site in Pezinok, a small town near Bratislava in Slovakia.

Those efforts, carried out over many years, ranged from public protests and petitions as well as the legal battle which went to the ECJ.

Caputova explains to Global Insight the importance of the Prize in raising awareness in Slovakia, a country that has the fifth worst track record in the EU on corruption according to Transparency International (TI).  It provides the potential for citizens to fight against what she calls ‘entrenched interests’.

‘The Prize received a huge amount of media coverage across Slovakia and it really delivered a very important message that we, the common people, the public, can stand up to economic power – which is linked to political power. There are not that many positive messages that are so optimistic here,’ she says.

The prize focused on the case of Jozef Krizan & Ors v Slovenska inspeckcia zivoteneho prostredia (generally known as ‘the Pezinok landfill case’). A landfill was built in Pezinok, an area of vineyards. The waste site had public health consequences as well as potentially damaging the local wine-making industry.

When another landfill was proposed in 1999, there was huge opposition to what was seen as blatant corruption: local protesters argued that the family of the owner of the company, Ekologicka Skladka, which was behind it, was linked to one of the main political parties, SMER, and its local representatives in the town, and had directly influenced the regional offices to get the landfill approved. Throughout the 2000s, Pezinok’s citizens, with Via Iuris, opposed the second landfill.

Wherever there is this public interest there are important disclosure requirements so it is pretty surprising that this case was actually needed

Lina Pimentel
Partner, Mattos Filho, Veiga Filho, Marrey JR & Quiroga, Sao Paulo; IBA Environment, Health and Safety Law Committee Officer

The result was an ECJ case, which was not directly about the proposed landfill itself but turned on whether or not the public could access certain information relevant to the community (including the actual location of the proposed site).

The project owners argued the information was confidential. The court found in Pezinok’s favour, declaring that a party could not hide behind ‘the protection of the confidentiality of commercial or industrial information’ as a reason not to disclose information.

Caputova explains the importance of the decision for public participation in other cases in the future: ‘Parties will have access to relevant information from the beginning of the process’.

Lina Pimentel, a partner at Mattos Filho, Veiga Filho, Marrey JR & Quiroga in Sao Paulo, and an officer of the IBA Environment, Health and Safety Law Committee, points out that, in most jurisdictions, transparency on data is broadly accepted. ‘The vast majority of companies these days are fully aware of their obligations regarding data,’ she says. ‘Wherever there is this public interest there are important disclosure requirements so it is pretty surprising that this case was actually needed.’

Pimentel is, nevertheless, impressed by the level of public participation in the Pezinok case. ‘It is really important to have this level of public engagement on matters that affect natural resources. These are public assets and the communities need to be involved,’ she comments.

The case decision and the subsequent Prize have been a triumph for Pezinok.

‘We have just learnt in the last couple of weeks that the permissions that had been granted to the owners of the landfill site have been completely cancelled,’ says Caputova, speaking in July. ‘Since our victory in the ECJ in 2013, the grass has begun to grow again on that site.’

Caputova argues that the Prize comes at a crucial time in Slovakia’s history as the country is bogged down in problems of corruption, rule of law failings and a lack of public engagement. ‘We face serious problems of corruption and individuals buying justice,’ she says.

During the opposition to the site in the 2000s, the community faced ‘breaches of law, manipulation and lies, and conflicts of interest’ as well as ultimately ‘dismissal from participation in decision-making, as well as absurd court decisions’.

Ludwig Kramer is a senior lawyer with environmental public interest organisation Client Earth, and a former judge in Germany.

‘It makes no sense not to reveal the location of a landfill,’ he says. ‘This was an administration’s attempt to stop public participation: knowledge is power in these matters.’

Via Iuris is also now focusing its efforts on public participation and rule of law issues. ‘We are supporting citizens to be involved in public affairs and also trying to get rid of systemic failures of public power by campaigning and with in-depth analysis of new laws,’ says Caputova.

There has been some positive change in Slovakia, argues Gabriel Sipos, Director of TI in Slovakia, particularly in improved transparency.

‘Slovakia is the only country in the world to introduce a freedom of information law, which means that all public spending contracts must be put online before they are completed,’ he says. There is also now greater scrutiny of judicial decisions which have recently become available online.

Lawyers at risk meet UN Special Rapporteur in Belgrade

On 11–12 June 2016 the IBAHRI and Human Rights House Network (HRHN) brought together human rights lawyers from across Eastern Europe and Central Asia (EECA) for a special consultation with Monica Pinto (pictured), the UN Special Rapporteur on the Independence of Judges and Lawyers. The 50 delegates from 16 different countries in Central Asia, the Balkans, Europe, North and South Caucasus, discussed dangers, threats and barriers faced by the region’s lawyers when carrying out their professional duties.

Similar problems seem to be present across the rest of the region. Lawyers exchanged stories of arbitrary detentions, disbarment, lack of access to clients, restrictive legislation, threats and even attacks.

Speaking at the event in Belgrade, the UN Special Rapporteur pointed out that this is something she had seen around the world: ‘There is a common pattern that the less democratic the government is, the less rule of law you have in the country and the more problems lawyers will have to face. It is true that putting obstacles in front of lawyers who are dealing with very sensitive cases, [or] extremely political cases, is a common pattern all over the world.’

But Pinto also recognised that the EECA region appears to have a particularly serious problem: ‘However, there are some trends or rather specific problems to this region. I think this is one of the regions in the world that has the highest fear of disbarment of lawyers.’

The lawyers in attendance drafted recommendations to the Special Rapporteur and to the UN. They focussed on the practical weaknesses of the international guarantees for the independence of lawyers, the challenges that local legislation presents for practitioners, and the role that bar associations should play in protecting legal professionals. These recommendations, as well as the experiences of the lawyers in attendance, will feed into the work of the UN Special Rapporteur and support her reporting to the Human Rights Council and the General Assembly.

Azerbaijani lawyer Intigam Aliyev, who was recently released from prison, where he was serving a seven-and-a- half year prison sentence, spoke at the event. He noted the difference such a consultation could make:

‘Not long ago there was a feeling that international organisations did not quite understand the reality in our region and individual countries. For this reason, Monica’s participation and her presentation once again gave us hope that what we discussed during the dialogue will be heard and will be communicated at the highest political forums of the UN.’

The IBAHRI continues its support for the legal profession in the EECA region, where it has undertaken work to tackle intimidation, interference in the work of legal practitioners and continues to advocate for the independence of lawyers.

IBA President speaks at Vatican conference on human trafficking and corruption

IBA President David W Rivkin spoke at a Vatican conference on human trafficking and organised crime at which Pope Francis shared his views on the subjects. Conducted by the Pontifical Academy of Social Sciences on 3–4 June 2016, judges and prosecutors from more than 30 countries shared their experience in identifying and protecting victims of sexual and labour trafficking and the influence of corruption on both. Rivkin presented the work of the IBA’s Presidential Task Force on Human Trafficking, including the training programmes to be conducted in England and Singapore later this year and its report on the impact of corruption on human trafficking, which will be released shortly. The IBA President also described the recent report of the IBA Judicial Integrity Initiative on judicial corruption, the adoption of the Practical Guide on Business and Human Rights for Business Lawyers and the IBA’s work on climate change justice.

Transcripts of the IBA President’s speech and Pope Francis’s remarks can be read at tinyurl.com/RivkinVatican.


Burundi violence signals ‘crisis of constitutionalism’ in Africa

Ruth Green

An ongoing human rights crisis in Burundi that has already claimed the lives of over 500 people and displaced more than 250,000 civilians risks descending into further violence as the international community looks on.

The East African nation was plunged into crisis in April 2015 when President Pierre Nkurunziza announced his intention to run for a third term, a move which was considered by many as unconstitutional since Burundi’s 2005 Constitutional Referendum restricts presidents to two consecutive five-year terms in office.

‘The problem in Burundi is one of the many manifestations of a deep crisis of constitutionalism on the African continent,’ says Sternford Moyo, former President of the Law Society of Zimbabwe and former Chair of the IBA’s Human Rights Institute.

‘Whatever constitutionality may require as prescribed by domestic African constitutions, few will require persuasion to appreciate that contemporary constitutionalism, namely, adherence not only to specific provisions of domestic constitutions, but to broader democratic and rule of law values which inform and guide on a long-term basis – the framework under which democratic governments under the rule of law ought to operate – requires that there be regular change in those in power,’ says Moyo. ‘It is because of this that most modern constitutions, including the domestic constitution of Burundi, impose term limitations on those vested with executive authority.’

Since April 2015, extra-judicial killings, arbitrary arrests and detention, enforced disappearances and sexual violence have become increasingly common across Burundi. On 26 April 2016, the anniversary of Nkurunziza’s announcement, a group of Burundian, African and international NGOs penned an open letter to the UN Security Council asking it to authorise a robust UN police presence to stop the situation from escalating.

Moyo says both Burundi’s judiciary and the African Union have a responsibility to intervene to prevent further human rights violations in the country.

‘It is most unfortunate that the President of Burundi did not respect the term limitations in the domestic constitution and that the judiciary in Burundi failed to act as a safeguard against violation of the constitution,’ says Moyo. ‘Even more regrettable is the failure by the African Union to take firm and corrective action against the President of Burundi and his government. The African Union needs to embrace urgently the emerging concept of responsibility to protect and act decisively to protect victims of rogue state action by individual African governments, if it is to remain relevant as a continental body.’

At the very least the international community needs to push for an enhanced policing presence with a large number of human rights monitors

Simon Adams
Executive Director, Global Centre for the Responsibility to Protect

While experts agree it looks unlikely that the situation in Burundi will descend into genocide, as it did in neighbouring Rwanda in 1994, there is strong cause for concern.

‘An ugly and intolerable situation has now become day-to-day,’ says Simon Adams, Executive Director of the Global Centre for the Responsibility to Protect. ‘The chances of Burundi metastasising in some way are very, very real. At the very least the international community needs to push for an enhanced policing presence with a large number of human rights monitors so we can try and establish some semblance of the rule of law and some kind of eyes and ears of the international community on the ground in Burundi.’

Vincent Rouget, associate analyst at Control Risks, says the prospects of a negotiated resolution to the crisis remain poor: ‘The last round of talks took place in May in Tanzania without the main opposition coalition (CNARED), precluding any chance of meaningful progress,’ he says. ‘The government has offered only token concessions in response to international pressure and remains intransigent about negotiating with opposition factions which it denounces as “criminals”. The appointment of former Tanzanian President Benjamin Mkapa as facilitator in March has brought fresh momentum to international mediation efforts, but there are still considerable obstacles to communication between both parties, let alone charting a way out of the crisis.’

Historically Burundi has been overshadowed by the violence that escalated across the border in Rwanda. According to Adams, this may be one reason why it has taken so long for the world to wake up to the crisis ravaging the country. ‘People kind of ignore the fact that neighbouring Burundi, whose history is tied so closely with Rwanda, also went through a cataclysmic period after April 1994, with its president killed in the same event that killed the president of Rwanda, which sparked the genocide,’ he says. ‘And it clung on just barely to avoid going down the path that Rwanda went down. And then, of course, there was a disastrous civil war which killed some 350,000 people, but I don’t think there are many people outside Africa that are even aware of that.’

Adams says the ethnic undertones to the crisis in Burundi, which, like Rwanda, has an ethnic Hutu majority and Tutsi minority, are also particularly concerning: ‘Increasingly we’re seeing “dog whistling” around ethnic issues – there’s an increasing use of ethnicised language to draw out the differences between people and in a country like Burundi, with its history, that is extremely dangerous.’

This was highlighted on 15 January 2016 when the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein said ‘all the alarm signals, including the increasing ethnic dimension of the crisis, are flashing red.’

The Burundian government’s moves to systematically shut down independent media, civil society organisations and other dissenting voices are also eroding the rule of law. ‘Respect for the rule of law has become secondary to a government now chiefly preoccupied with its own survival and ready to crack down at the sign of dissent,’ says Rouget. ‘The space for independent political expression has drastically shrunk in the last year, both as a result of security force intimidation and explicit bans. The longer the crisis persists, the more likely its repercussions will be felt far beyond the current government, entrenching corruption into judicial processes and eating away at the institutional bedrock for the rule of law.’


Open letter marks first anniversary of Chinese crackdown on lawyers

To mark 12 months since China began its crackdown on human rights lawyers and professionals, the IBAHRI has published a letter written by Co-Chairs Baroness Helena Kennedy QC and Ambassador (ret) Hans Corell. Addressed to the President of the People’s Republic of China, the open letter expresses ‘alarm that lawyers in China remain at grave risk’ and calls for the immediate and unconditional release of all lawyers detained during the July 2015 crackdown. The letter states: ‘In the final months of China’s membership of the Human Rights Council, Your Excellency has an opportunity to prioritise its commitment to international human rights norms and establish an environment in which the legal profession can operate freely and securely, in line with international standards. We appeal to you to take this opportunity.’

Chinese and English versions of the open letter can be downloaded to read from the IBAHRI website at www.ibanet.org/IBAHRI


IBAHRI condemns assault of lawyer in Chinese courtroom

The IBAHRI has condemned the reported assault on lawyer and human rights activist Wu Liangshu by courtroom officers following his attempt to file a case in Qingxui District Court in Nanning, China.

Wu has stated that, on 3 June 2016, court officials accused him of illegally recording a court session on his mobile phone. In the presence of two judges, while being searched for the phone he was partially stripped, beaten and stamped on by court guards. According to Wu, his phone was broken, seized and its content examined by the court’s officers, who found no evidence of a recording.

IBAHRI Co-Chair Baroness Helena Kennedy QC commented: ‘In the context of the crackdown on lawyers in China, begun almost a year ago on 9 July 2015, the reported attack on Wu Liangshu demonstrates the increasingly hazardous environment in which lawyers are carrying out their work in the country. The harassment of or interference with a lawyer in the course of carrying out his or her professional duties is in direct contradiction to the United Nations Basic Principles on the Role of Lawyers – specifically, clause 16, which states, ‘Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference…’. The IBAHRI calls on China’s authorities to respect and abide by such international norms.’

A government investigation into the incident found that Wu was ‘not subject to intentional harm or physical assault’, but ordered the court to apologise and compensate him. Wu has rejected the apology, demanded the court replace his phone, provide compensation and release the footage from the surveillance cameras to corroborate his version of events.

The IBAHRI notes that according to a report recently released by Amnesty International, Wu was questioned about his professional activities by the authorities on 14 July 2015. Amid an almost year-long period of widespread arrests, detentions and the harassment of more than 300 human rights lawyers and activists, the questioning demonstrates that Wu was known for championing human rights.

Resolution on Climate Change Justice and Human Rights adopted by IBAHRI Council

On Thursday 26 May in Barcelona the IBAHRI Council adopted the IBAHRI Resolution of Climate Change Justice and Human Rights. The resolution expresses concern about the impact on climate change on human rights and reiterates the recommendations made in the IBA publication Achieving Justice and Human Rights in an Era of Climate Disruption. The resolution also calls on bodies charged with interpreting human rights treaties to clarify how human rights obligations relate to a healthy environment and consider the specific impacts on human rights caused by climate change.

The resolution can be downloaded from the IBA website.

Global climate change is a defining challenge of our time. Dramatic alterations to the planet’s climate system are already affecting the world’s inhabitants and its natural environment.

This wide-ranging report from the IBA Presidential Task Force on Climate Change Justice and Human Rights identifies problems and gaps in existing legal, human rights, trade and other institutional arrangements. It contains a series of new ideas and recommendations to governments and world institutions, such as the World Trade Organization, human rights bodies, international development financing agencies. It also includes specific law and corporate governance reforms to aid in the prevention and mitigation of climate change and to protect vulnerable communities’ human rights.

Download a copy at tinyurl.com/IBAClimateChange.