Judges are also increasingly involved in leaving human rights defenders without efficient or any legal representation at all. For instance, there are countries in which only a small number of practicing lawyers who represent clients with modest financial means exists[6]. If no lawyer is available, a judge will assign people who cannot afford to pay for legal costs to a duty solicitor who is paid by the state. It is reported that these state lawyers do not always act in the best interest of her or his clients, in particular when the rights of human rights defenders are at stake, and fail to make important motions at court[7]. In other cases, human rights defenders were represented by a lawyer but were given only little time to prepare their defence, judges denied access to relevant files and submissions of the prosecution, or turned off the microphone used by the defence lawyer in court[8]. Justices also treated complaints of defence lawyers, who represented human rights defenders and criticised the (unjust) course of the proceedings, as contempt of court which led to their disbarment. Besides, it has become common practice in some jurisdictions that judges dismiss motions on vague and unsubstantiated grounds[9] and align their viewpoints with those of the prosecution service. This may include that judges grant the arrest of human rights defenders as requested by the prosecution, without reviewing its lawfulness, impose travel bans to prevent human rights defenders from leaving the country, issue judgements that copy the prosecution’s written submissions, approve trial transcripts that do not reflect the actual course of the proceedings and arbitrarily sentence human rights defenders to imprisonment and death[10]. In other cases, judges unlawfully prevented the public, the media and civil society organisations, from attending and monitoring court hearings through, for example, changing the courtroom at last minute and using small courtrooms[11].

 

Violating the right to a fair trial may also amount to torture when judges use evidence obtained by unlawful forms of coercion[12]. According to the UN Convention against Torture and its General Recommendations, any statement made as a result of torture or other forms of ill-treatment should be regarded as inadmissible and leave judges no discretion whether to admit such a statement[13]. If judges become aware of evidence made as a result of torture, a separate hearing should be held to determine the admissibility of the evidence[14]. In this context, the international community also raised concern about the increasing use of metal or glass cages in the dock in cases against human rights defenders, which, according to the European Court of Human Rights, amounts to an inhuman and degrading treatment[15].

 

[1] See for example Svinarenko and Slyadnev v Russia App no 32541/08 and 43441/08 (ECHR, 17 July 2014) and Rasul Jafarov v Azerbaijan App no 69981/14 (ECHR, 17 March 2016).

[2] A list of countries, in which violations were committed against human rights defenders, is available, for example, at UN Special Rapporteur on the Situation of Human Rights Defenders, ‘Country visits’, accessed 24 November 2016.

[3] See for example, Svinarenko and Slyadnev v Russia App no 32541/08 and 43441/08 (ECHR, 17 July 2014).

[4] UN Office of the UN High Commissioner for Human Rights, ‘UN human rights chief deplores continuing civil society crackdown in Azerbaijan’ (8 September 2016), accessed 24 November 2016.

[5] Rasul Jafarov v Azerbaijan App no 69981/14 (ECHR, 17 March 2016).

[6] Eastern Partnership - Enhancing Judicial Reform in the Eastern Partnership Countries, Project report: The Profession of Laywer (May 2012), accessed 24 November 2016.

[7]Ibid

[8] See for example Netherlands Helsinki Committee (NHC) and Helsinki Foundation for Human Rights (HFHR), accessed 24 November 2016; OSCE, Office in Baku, ‘Trial Monitoring Report: Azerbaijan’ (2011) 38, accessed 24 November 2016.

[9] PACE, Committee on the Honouring of Obligation and Commitments by Member StatesThe functioning of democratic institutions in Azerbaijan (24 June of the Council of Europe, 2015) , accessed on 24 November 2016.

[10] Ibid

[11] Bangalore Principles, para 6.4.

UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, General [12] UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 15; Recommendations , accessed on 24 November 2016.

[13] Ibid

[14] UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, General Recommendations, para 26.

[15] See for example Svinarenko and Slyadnev v Russia App nos. 32541/08 and 43441/08 (ECHR, 17 July 2014).

Practices