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human rights
in practice
HUMAN RIGHTS IN PRACTICE provides legal representation and support in human rights cases before international, regional or national courts, and advises on international law more broadly. It offers experience of working in the African, European and Inter-American systems, as well as expertise in international law and practice. The following is a selection of HRP's case work.

EXTRAORDINARY RENDITION
The practice of 'extraordinary rendition' represents the low point of the 'war on terror', in which systematic torture, enforced disappearance and secret detention were carried out by the CIA in coordination with many other states and individuals worldwide. Victims’ quests for recognition, redress and effective investigations on the national level have faltered, often blocked by broad reaching secrecy laws, making recourse to international courts and bodies all the more essential. HRP offers representation and support to those seeking justice for rendition victims.

Abu Zubaydah

In 2002, Abu Zubaydah was detained by the CIA in Pakistan and disappeared into secret detention at a series of CIA 'black sites', including on European soil, before being transferred to Guantanamo Bay, where he remains in detention to this day. Official documents publicly acknowledge that as one of the first 'High Value Detainees' he was the 'guinea pig' for the CIA's 'enhanced interrogation techniques' (such as waterboarding, to which documents show he was subject 83 times in just one month). Although the allegations originally leveled against him publicly have been dropped, Abu Zubaydah continues to be held at Guantanamo Bay, without having had the lawfulness of his detention reviewed by a court, without charge and without any prospect of release. The US Senate Report revealed that assurances were given, prior to his torture, to detain him incommunicado 'for the remainder of his life'. Accordingly the US administration asserts the right to hold him indefinitely without charge or reason, other than a broad assertion of 'law of war' authority. Abu Zubaydah is subject to a court order that bans any communication with the outside world.

With no prospect of accountability in the US, Abu Zubaydah challenged his rendition and torture at various European black sites before domestic courts and the European Court of Human Rights. Helen Duffy is one of Abu Zubaydah's counsel before the European Court, in partnership with US attorneys.

Abu Zubaydah v Lithuania
In October 2011, the applicant presented his first case to the ECtHR, against Lithuania for hosting a black site on its territory and refusing to conduct an effective investigation or to pursue accountability. The Lithuanian Government's observations in response were revealing of its policy of denial and its complete failure to date to address its involvement. In early 2015, the Government announced that in response to the Senate Intelligence Committee report it was reopening the investigation, but has continued to fail to take meaningful investigative steps. .

The Government has asked the court to keep information provided to it confidential. The Court has agreed in principle, but it has been urged to assess the need for any document to be withheld from the public on genuine grounds of national security on a document by document basis.

A hearing before the ECHR is scheduled for 29 June 2016. The summary of facts are available on the Court's website, here. Our final submissions in the case are available here.

Abu Zubaydah v Poland
On 26 March 2013 a case was also brought against Poland. For the ECtHR petition, click here. The case was communicated to the Polish Government for its observations on 9 July 2013. A hearing took place on 3 Dec 2013, alongside al Nashiri v Poland.

On 24 July 2014 a landmark ECtHR judgment found Poland responsible for violations of his rights to freedom from torture, liberty, fair trial and private life. The judgment describes and summarises at some length the 'abundant and coherent' evidence available from official US documents, independent reports and other sources, supplemented by the evidence given to the Court itself, on secret detention and Polish complicity. The Court found that the evidence conclusively established that Poland is responsible for the torture and illegal detention of Abu Zubaydah and for allowing his transfer on to on-going rights violations in Guantanamo. The Court also strongly rebuked Poland for its abject and continuing failure to conduct a meaningful investigation and its persistent, but ultimately unsuccessful, attempt to cover-up the truth. This violated the right of victims, and of the general public to know the truth. It is clear from the judgment that Poland must now comply with its obligations to carry out a genuine investigation that leads to true accountability. The judgment is relevant to the many other states that were involved in varying ways in the web of criminality that has been so robustly condemned by the European Court today. The judgment, which became final on 16 February 2015, is available here.

Implementation of the judgment is currently before the Committee of Ministers. On 11 and 12 March, in its first review of the Abu Zubaydah v Poland and al Nashiri v Poland cases since the judgments became final, the Committee of Ministers expressed its 'deep concern' about the 'flagrant denial of justice' facing both men at Guantanamo Bay. Abu Zubaydah remains in arbitrary detention without trial and al Nashiri is subject to trial by military commission. The Committee called on Poland to seek assurances from the US and to report back. The text appears below:

The Deputies

  1. expressed deep concern, in light of the indications from the European Court, that the trial of Mr Al Nashiri before a Military Commission in which he faces capital charges was set to begin on 2 September 2014 and that the risk he will face the death penalty therefore continues; called upon the Polish authorities to seek urgently assurances from the United States authorities that Mr Al Nashiri will not be subjected to the death penalty;
  2. also expressed deep concern that both applicants risk a flagrant denial of justice since Mr Al Nashiri faces trial by Military Commission which could use evidence obtained under torture and since Mr Husayn has been detained without charge since 2002 and if charged, may face trial in similar proceedings; called upon the Polish authorities to urgently seek assurances that the applicants are not exposed to such flagrant denials of justice;
  3. invited the Polish authorities to keep the Committee fully and regularly informed of all developments, both in relation to their contacts with the United States authorities and the current situation of the applicants, and decided to resume consideration of these cases at their 1230th meeting (June 2015) (DH).

On 28 May 2015, submissions were filed with the Committee of Ministers of the Council of Europe on the implementation of Abu Zubaydah v Poland. It now falls to the Commmittee to oversee its implementation by Poland. At its first session in March 2015, the Committee urged Poland to seek assurances to avoid the 'flagrant denial of justice' currently facing Abu Zubaydah in Guantanamo Bay. Poland filed a cursory update on the (as yet inadequate) steps it has taken to implement the judgment, though its fuller action plan was submitted in August 2015. See HRP’s submissions here.

On 24 September 2015, the Committee sought to increase pressure on the United States in light of its compete refusal to respond to or cooperate with Poland (or with other European States). The Committee took the perhaps unprecedented step of expressing serious concern directly in relation to the US and transmitted its decision to US authorities. The Polish plan of action and its implementation will be re-examined at the Committee’s 1243rd meeting (December 2015).

US Senate Intelligence Report and Abu Zubaydah

Following the partial release of a redacted summary of the Senate report in December 2014, the following article appeared in the Guardian on the relevance of the summary report's findings to our client's case. The report chronicles his abuse and exposes the gross manipulation of information about him by US authorities, underscoring the gross injustice of his continued arbitrary detention.

Link: www.theguardian.com/profile/helen-duffy

Al Asad v Djibouti, African Commission on Human and Peoples' Rights
Mohammed al-Asad is a Yemeni national who was detained in Djibouti in late 2003/early 2004 as part of the CIA's rendition programme. He was transferred from Djibouti to secret 'black site' detention for 16 months, before being transferred to Yemen, where he currently resides. His case before the African Commission on Human and Peoples' Rights is the first international case exposing the role of African states in the US rendition, secret detention, and torture programme. Work on this case was done on behalf of INTERIGHTS, in partnership with the Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law. The Government of Djibouti contests admissibility, and a hearing took place at the African Commission on 22 October - 5 November 2013 in Banjul.

Links:
www.interights.org/al-asad/index.html
www.chrgj.org/clinics/global-justice-clinic/national-security-counter-terrorism-and-human-rights/cia-rendition-secret-detention-and-torture


JUDICIAL INDEPENDENCE

Baltasar Garzón v Spain

On 2 February 2016, Human Rights in Practice filed an individual petition before the United Nations Human Rights Committee (UNHRC) in the case of Baltasar Garzón v Spain. Judge Garzón was a renowned Spanish judge, whose long and distinguished career in the Spanish Audiencia Nacional was truncated when he was investigated and prosecuted for ‘prevaricación’ (or criminal malfeasance) in respect of his decision to allow investigative steps to be taken in several crucially important but politically contentious cases.

The complaint alleges that prosecuting a judge for reasoned interpretations of the law represents a violation of multiple rights under the International Covenant on Civil and Political Rights (ICCPR), and an attack on the fundamental principles of judicial independence.

Background

The complaint concerns a series of arbitrary investigations and criminal prosecutions against Judge Garzón. In the first of the cases, his alleged crime was the decision to open a criminal investigation into crimes against humanity during the Spanish civil war and the ensuing Franco regime. His decision to authorise preliminary investigative steps responded to a request from victims and family members who asserted their rights to truth and justice in respect of thousands of alleged deaths, disappearances and other criminal acts during the Franco dictatorship. These crimes had never been, and indeed still have never been, investigated in Spain.

In October 2008 Judge Garzón determined that the Spanish Courts had jurisdiction in the case, on the basis that Spanish amnesty laws, and statutes of limitation, did not apply to cases of this nature. As a joint expert opinion annexed to the case makes clear, Judge Garzón’s judgments were in line with international law, including the jurisprudence of the UNHRC, on the obligation to investigate crimes under international law. His approach followed that of numerous other judges, in Spain and internationally, who have found that national law can be interpreted by reference to international law, and that laws guaranteeing impunity cannot apply to crimes against humanity and other serious crimes under international law. His decisions were subject to appeal and review, and they were ultimately overturned.

Despite this, Judge Garzón was subject to a lengthy criminal investigation, public trial and suspension from judicial office. This trial, which provoked international outrage and rebuke, was delayed before trial, allowing for a second case to be brought forward, again alleging criminal conduct in respect of the discharge of his judicial functions. This second case – which was allowed to leapfrog the Franco case - concerned the decision to take certain preliminary investigative steps in one of the largest corruption investigations in Spain to date (the so-called Gürtel case), affecting the governing ‘Partido Popular’ and other powerful factions of Spanish society. On 9 February 2012, a conviction, and suspension from office for 11 years, was handed down in relation to this case. Only once the conviction was entered, some 18 days later, an acquittal was handed down in the Franco case.

Along the way, information surfaced publicly of a further supposed ‘investigation’ underway in January 2010, based on spurious claims concerning the Judge’s participation in a case concerning the Bank Santander while he had organized courses at NYU partly funded by Santander. There were never any indication of accusations or evidence, and the investigation was dropped almost immediately after the conviction was rendered in the Gürtel case.

Within a very short time after having reached the contentious decisions in the crimes against humanity and corruption cases, Judge Garzón was therefore subject to several criminal investigations before the Spanish Supreme Court, based on a distorted and unprecedented use of the law of ‘prevaricación’. The Ministerio Público (Public Prosecutor’s office) opposed the cases against Garzón’s as inappropriate use of criminal law, based on ‘who he was’ rather than what he had done, but to no avail. The circumstances of the cases against Garzón, presented as one to the UNHRC, make clear the inappropriate and arbitrary use of criminal law to neutralise a judge, with a chilling effect on many others.

Judge Garzón, represented by Helen Duffy/Human Rights in Practice, submitted a petition to the United Nations Human Rights Committee on 2 February 2016. The Committee is requested to find violations of numerous rights protected under the ICCPR (specifically Articles 2(3), 14, 15, 17, 19 and 26) and to urge the state to take measures to guarantee judicial independence and access to justice by victims of serious crimes, including those committed during the Franco era. The complaint is supported by the following three expert opinions submitted by persons of high international standing:

The first expert opinion focuses on international legal standards regarding judicial independence, presented by:

  • Prof Carlos Ayala from Venezuela, inter alia former Chairman of the Inter-American Commission on Human Rights and former Rapporteur for the Rights of Indigenous People in the Americas.
  • Judge Azhar Cachalia from South Africa, Judge of the Supreme Court of Appeal of South Africa and former judge of a provisional division of the South African High Court.
  • Leandro Despouy from Argentina, inter alia former UN Special Rapporteur on the Independence of Judges and Lawyers and former President of the UN Human Rights Commission.
  • Frank William La Rue from Guatemala, inter alia former Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression.
  • Prof Manfred Nowak, from Austria, inter alia former Special Rapporteur on Torture and served as one of the international judges in the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo.
  • Wilder Taylor, an Uruguayan lawyer, current Secretary-General of the International Commission of Jurists.

The second expert opinion focuses on international legal standards on the duty to investigate, and the impermissibility of amnesty and prescription in relation to crimes against humanity, submitted by:

  • Dr Mohammed Ayat, from Morocco, Special Advisor to the ICC Prosecutor on Cooperation with the MENA Region and inter alia former member of the UN Human Rights Committee.
  • Prof Tim McCormack, from Australia, inter alia Special Adviser on International Humanitarian Law to the ICC Prosecutor and Director of World Vision Australia.
  • Prof Juan Mendez, from Argentina, UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and inter alia former Co-Chair of the Human Rights Institute of the International Bar Association and former President of the International Center for Transitional Justice (ICTJ).
  • Prof Pedro Nikken, from Venezuela, inter alia former President of the International Commission of Jurists and former President of the Inter-American Court of Human Rights.
  • Prof Naomi Roht-Arriaza, American distinguished professor of Law at Hastings College of Law and author of multiple publications on transitional justice.
  • Judge Eugenio Raúl Zaffaroni, from Argentina, inter alia former Judge of the Supreme Court of Argentina and current judge of the Inter-American Court of Human Rights.

The third expert opinion focuses on the law of ‘prevaricación’ and it was submitted by:

  • Prof. Dr. Araceli Manjón-Cabeza Olmeda, professor of criminal law at the Universidad Complutense de Madrid since 1989.


THE RULE OF LAW AND COUNTER-TERRORISM

HRP has particular expertise on issues related to international law and terrorism. In addition to several extraordinary rendition cases are others that address terrorism and counter-terrorism related issues.

INTERIGHTS and EIPR (on behalf of Sabah and Others) v Egypt , African Commission on Human and Peoples' Rights
Following terrorist attacks on the tourist resorts of Taba and Sharm el Sheikh in Egypt in October 2004, three men were tortured into ‘confessing,’ and sentenced to death by the notorious Egyptian 'state security courts', and subject to a mandatory death penalty. The Applicants had no access to lawyers prior to trial, nor access to a court or doctors during detention and interrogation, and the evidence against them consisted of alleged ‘confessions’ extracted under torture. Their case was brought to the African Commission on behalf of INTERIGHTS together with the Egyptian Initiative for Personal Rights.

In an important decision made public in February 2012, the African Commission on Human and Peoples' Rights found that the state security courts – which remain in force in Egypt – violate the basic right to trial before an independent and impartial tribunal. It set down strong legal standards on the positive obligations of African states to protect detainees from torture, including access to lawyers, medical personnel and to court upon detention. The process of ensuring the implementation of this decision, and the release – or at a minimum retrial by a civilian court – of the applicants in the case who remain in custody in Egypt is currently underway. For the decision of the Commission, click here. See also www.interights.org/taba/index.html.

Maskhadovy v Russia, European Court of Human Rights
Aslan Maskhadovy, the elected president of the breakaway Chechen Republic of Ichkeria, was killed in 2005, allegedly by Russia's internal security services, the FSB. In accordance with Russian law, as he was labelled a 'terrorist', his family was not informed of his death – which they learned of from images of the wounded corpse displayed on state television – and the authorities refused to release his body for burial. His family challenged the 'burial law' which punishes the family of persons accused of terrorism by denying them the right to bury their dead in accordance with their religious traditions. The Court found that the Maskhadovy family's rights had been violated. Regrettably, the Court failed – without explanation – to award them any compensation. A request for a referral to the Grand Chamber in September 2013, which challenges the Court’s approach, was rejected. See www.interights.org/maskhadov/index.html.

IMPUNITY

Challenging impunity is one of the key objectives that cuts across much of the human rights work of HRP mentioned elsewhere, from the rendition cases to the Garzón v Spain case.

Rios Montt trial and Amnesty challenge before the Guatemalan Constitutional Court
In September 2012, HRP filed an amicus intervention with the Guatemalan constitutional court concerning the legitimate scope of amnesty laws under international law. Former Guatemalan President Gen. Rios Montt and other high level accused invoked amnesty laws to protect them from responsibility for crimes against humanity committed during the massacre of Dos Erres in the early 1980s. The brief, which can be accessed [here], considers the characterisation of the crimes at issue in this case as crimes under international law, including at the time of their commission in 1982.

HRP was legal counsel to the amici, which comprised an eminent group of former judges, prosecutors and experts in international law and practice: Elizabeth Odio Benito (former ICC and ICTY judge), Thomas Buergenthal (former President of the Inter-American Court of Human Rights), David M. Crane (former Prosecutor at the Special Court for Sierra Leone), Pedro Nikken (former President of the Inter-American Court of Human Rights), Patricia M Wald (former ICTY and US Appeals Court judge), and Raul Zaffaroni (judge of the Argentine Supreme Court). The brief is available in Spanish, here.

In another case brought against Rios Montt in respect of crimes against humanity and genocide, a Guatemalan criminal court convicted Rios Montt and his Director of Military Intelligence, José Mauricio Rodríguez Sánchez, of genocide. The conviction was overturned however and the prospect of a retrial is on hold. Meanwhile, other charges continue to be pursued. To follow progress, see here. For Helen Duffy's personal comment on the importance of the trial, see here.

EQUALITY