HONORARY CHAIRMAN ADVISORY BOARD (CHAIR) PRESIDENT Yuri Orlov Karl von Schwarzenberg Ludmilla Alexeyeva
EXECUTIVE DIRECTOR EXECUTIVE COMMITTEE VICE PRESIDENT Aaron Rhodes Sonja Biserko Ulrich Fischer Holly Cartner DEPUTY EXECUTIVE DIRECTOR Bjørn Engesland TREASURER Bre Dufour Krassimir Kanev Stein-Ivar Aarsæther Andrzej Rzeplinski Wickenburgg. 14/7, A-1080 Vienna, Austria; Tel +43-1-408 88 22; Fax 408 88 22-50 e-mail: [email protected] – internet: http://www.ihf-hr.org Bank account: Bank Austria Creditanstalt, 0221-00283/00, BLZ 12 000
OSCE Human Dimension Implementation Meeting Warsaw, 6-17 October 2003 ______Interventions and Recommendations by the International Helsinki Federation for Human Rights (IHF)
The IHF has consultative status with the United Nations and the Council of Europe.
MEMBER AND COOPERATING* COMMITTEES IN: Albania – Austria – Azerbaijan*- Belarus – Bosnia-Herzegovina – Bulgaria – Canada – Croatia – Czech Republic – Denmark – Finland – France – Georgia* Germany – Greece – Hungary – Italy – Kazakhstan – Kosovo – Kyrgyzstan – Latvia – Lithuania – Macedonia – Moldova – Montenegro – The Netherlands Norway – Poland – Romania – Russia – Serbia – Slovakia – Slovenia – Sweden – Switzerland – Ukraine* – United Kingdom – United States – Uzbekistan*
COOPERATING ORGANIZATIONS: THE EUROPEAN ROMA RIGHTS CENTER – HUMAN RIGHTS WITHOUT FRONTIERS The International Helsinki Federation for Human Rights (IHF) is a non-governmental organization that seeks to promote compliance with the human rights provisions of the Helsinki Final Act and its follow-up documents. In addition to supporting and providing liaison among 41 Helsinki committees and cooperating organizations, the IHF has direct links with human rights activists in countries where no Helsinki committees exist. It has consultative status with the United Nations and the Council of Europe.
The IHF represents member and cooperating committees in Albania, Austria, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Finland, France, Georgia, Germany, Greece, Hungary, Italy, Kazakhstan, Kosovo, Kyrgyzstan, Latvia, Lithuania, Macedonia, Moldova, Montenegro, Netherlands, Norway, Poland, Romania, Russia, Serbia, Slovakia, Slovenia, Sweden, Switzerland, Ukraine, United Kingdom, United States and Uzbekistan. Other cooperating organizations include the European Roma Rights Centre (Budapest) and Human Rights without Frontiers (Belgium).
President: Ludmilla Alexeyeva Vice President: Ulrich Fischer Executive Director: Aaron Rhodes Deputy Executive Director/Legal Counsel: Brigitte Dufour
In addition to the IHF member committees and partner organizations, the following persons contributed to the preparation of this publication:
Brigitte Dufour, Joachim Frank, Janna Khloudneva, Ilana Much, Lamija Muzurovic, Ann-Sofie Nyman, Aaron Rhodes, Peter Svedberg, Paula Tscherne-Lempiäinen and Nicole Watson
Chief Editor: Paula Tscherne-Lempiäinen
International Helsinki Federation for Human Rights Wickenburggasse 14/7, A-1080 Vienna, Austria Tel: (+43-1) 408 88 22 Fax: (+43-1) 408 88 22-50 Email: [email protected] Internet: www.ihf-hr.org Bank account: Bank Austria Creditanstalt, 0221-00283/00 BLZ 12 000
2003 by the International Helsinki Federation for Human Rights and IHF Research Foundation. All rights reserved.
2 TABLE OF CONTENTS
This set of interventions and recommendations has been arranged to mainly follow the schedule of the 2003 OSCE Human Dimension Implementation Meeting. The IHF wishes to emphasize that these interventions do not cover all areas of its concern. For further reference, please see www.ihf- hr.org. page Monday, 6 October: Democratic institutions: Democratic elections 5 Kosovo 9 Tuesday, 7 October: Fundamental freedoms I: Freedom of expression, free media and Information 10 Human rights defenders 17 Freedom of association and peaceful assembly 21
Fundamental freedoms II: Freedom of thought, conscience, religion or belief 25
Wednesday, 8 October: Tolerance and non-discrimination I: Roma and Sinti 29
Tolerance and non-discrimination II: Equal opportunities for women and men 35
Thursday, 9 October: Rule of law I: Independence of the judiciary and fair trial 38 Anti-terrorism measures 42 Turkmenistan 47
Rule of law II: Capital punishment 49 Prevention of torture, ill-treatment and police misconduct 51
Friday, 10 October: Humanitarian issues: Trafficking in human beings 56 Migration, refugees and displaced persons: EU 59 Displaced persons 63 International humanitarian law 67
Tuesday, 14 October: Specifically selected topic: Discrimination, racism, xenophobia, and anti-Semitism 69 Racism and discrimination in Europe 74 Hate Speech in Greece 77 Proposal for ad-hoc inter-agency meeting on racism 80
Wednesday, 15 October: Specifically selected topic: National minorities 81
3 4 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
DEMOCRATIC INSTITUTIONS:
Democratic elections (Monday, 6 October 2003)
Despite international reports to the contrary, the 23 March 2003 constitutional referendum in Chechnya was neither free nor fair, and the official results lacked credibility. According to official Russian information, 89.48 percent of the Chechen electorate went to the polls and almost unanimously voted for the constitution affirming that Chechnya will remain a part of the Russian Federation. In reality, most Chechens interviewed by NGO observers were against the referendum and it appeared clear to all independent observers that the voter turnout was far below those cited by Russian officials. The entire process of drafting a new constitution and of organizing the referendum was among the most illegal and manipulative electoral exercises in the entire post-Soviet period, demonstrating a total lack of transparency in the process and no civil control. Most importantly, the referendum failed to address the main problems in and around Chechnya.
Neither security procedures nor open adequate public debate were sufficient to allow for a free and fair referendum. The Chechen people were subjected to a barrage of official propaganda in the lead-up to the referendum implying that a failure to approve the new Constitution would result in continuing violence and war. Local authorities threatened citizens with penalties if they did not go to the polls and internally displaced Chechens in Ingushetia were threatened with the loss of benefits, including humanitarian aid, if they failed to register to vote. The Russian Ministry of Justice forbade NGOs in Chechnya and Ingushetia from campaigning in relation to the referendum. The organization of the referendum, including the transport of ballots to and from voting stations, was carried out by the Russian military. In some localities, soldiers reportedly surrounded the villages and forced villagers to go to polling stations and vote.1
Serious violations of the democratic process have taken place during the registration of candidates and the pre-election campaign leading up to the presidential elections on 15 October 2003 in Azerbaijan. Ayaz Mutallibov, former president of Azerbaijan, and Rasul Quliyev, former speaker of parliament, both in exile, were denied registration. While the Parliamentary Assembly of the Council of Europe demanded on 26 June to secure their participation in the electoral process, law enforcement agencies threatened to arrest them should they decide to return to Azerbaijan. Other presidential candidates were also harassed: for example, on two occasions in July, police stopped the cars of the bodyguards of Isa Qambar and Ali Kerimov, both registered presidential candidates representing the opposition. The bodyguards were arrested for allegedly having resisted police officers. It is believed that the allegations were fabricated.2
In Armenia, presidential elections were held in February/March 2003, and the parliamentary elections as well as a referendum on constitutional changes were held in May. The referendum was unlawful insofar as Armenian law does not provide for a referendum to be held simultaneously with elections.
1 IHF, “The Constitutional Referendum in Chechnya Was Neither Free Nor Fair, Official Results Are Not Credible,” 28 March 2003, at http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=3372; IHF, “Constitutional Referendum in Chechnya Should be Postponed,” 11 March 2003. 2 Human Rights Center of Azerbaijan, July 2003. 5 Both elections fell seriously short of international standards despite some improvements since previous elections. With regard to both elections, equal conditions were not provided for all candidates, particularly with regard to access to the mass media. Other registered irregularities related to voting, counting and tabulation processes. Ballot box stuffing was widespread. Authorized representatives of the opposition in election commissions and at polling stations were arrested and placed in administrative detention during the presidential elections without meeting due process standards. Opposition candidates faced intimidation during both elections. Prior to the presidential election, state media showed clear bias in favor of the incumbent president. In addition, opposition candidates of the parliamentary elections faced problems with registration -- some could not register at all. The subsequent attempts to restore the right to be elected in court did not yield any positive results.
The constituencies of the parliamentary elections were drawn to profit the candidates favored by the authorities and in contravention to the law that provides for proportional sizes of voting areas. In addition, there were reports that authorities bribed voters to cast their ballots for their political candidates. Many candidates violated the regulations set for the financing of the campaigns (particularly exceeding the maximum limit for funds). Further, during the parliamentary election, the secrecy in the vote was not guaranteed for the military, and there were cases of intimidation of election observers and authorized opposition representatives at polling stations. The wide-scale irregularities at two polling stations led the Constitutional Court to cancel their results.
Despite a highly critical assessment of both the presidential and parliamentary elections, those persons responsible for the irregularities have not been disciplined. However, following the parliamentary elections, the Constitutional Court stated that the present procedure for the organization and conduct of elections does not enjoy the confidence of the public and needs to be improved.
The 2 February 2003 referendum3 in Kyrgyzstan was marred by a series of irregularities that cast doubt on the validity of the results announced by the government. The irregularities, which were documented by local human rights NGOs, included major discrepancies between the turn-out of voters reported by independent observers and official results; undue pressure applied by authorities towards citizens (e.g. university students) to vote for the government proposals; and the manipulation and inflation of the numbers of absentee ballots. In addition, eligible voters were prevented from voting as other people had already cast a ballot in their name. Furthermore, local authorities reportedly prevented numerous independent observers from monitoring the referendum and civil society activists were illegally arrested and intimidated before and during the referendum. Despite the fact that human rights organizations, including the IHF, called for inquiry by an independent body to examine these reports, no such inquiry is known to have taken place. The failure to investigate the reported violations of fair polling procedures questions the legality of the referendum and undoubtedly erodes the already weak confidence in the government’s commitment to democracy and the rule of law.4
The March local elections in Belarus also violated international standards on free and fair elections. Belarusian electoral legislation is partly incompatible with international norms and does not establish effective mechanisms to prevent abuse. Members of electoral commissions of all levels were selected on the basis of their loyalty to the authorities. Opposition candidates were hindered from collecting signatures for their candidates and many were not registered on questionable grounds and without a possibility to file a complaint. Opposition election campaigns were obstructed, and restrictions on media freedoms and pressure on independent outlets made free flow of information impossible. At the same time, local administrative bodies spread propaganda leaflets for their own candidates. 5
3 The electorate was asked to vote in favor or against the package of constitutional amendments, which included transforming the current bicameral parliament to a unicameral body. According to the opposition, the changes would increase the powers of the president. 4 Letter from the IHF to the President of Kyrgyz Republic Mr. Akaev, 7 February 2003. 5 Belarusian Helsinki Committee, Elections of Members of Local Councils of XXIV Convocation - Results of the National Monitoring 6 On election day, approximately 20% of persons voted outside polling booths in plain view of members of electoral commissions and local authorities, heads of enterprises and other people, who had no official function in the polling process were present at polling stations, which created an atmosphere of pressure on the voters. The so-called electoral headquarters established by local administrations interfered with the work of electoral commissions, and ballots were not secured from being copied (and in some cases ballot papers were produced manually for voters). The exact number of official ballots was not published. Most complaints about irregularities that were reported after the elections were ignored. While nearly all candidates violated the rules governing the financing of election campaigns, only opposition candidates faced sanctions.6
Observers were not allowed to monitor the formation of electoral commissions, the sealing of ballot boxes or counting of votes, or to observe absentee voting. Only registered NGO members were accepted as observers.7
The way in which local elections were conducted in Moldova in May and June 2003 put into question the commitment of the authorities to carry out democratic, free and fair elections. The last minute amendments to the election law made its application difficult. In the wake of the elections, several authorities who supported the opposition were dismissed. According to the Moldovan Helsinki Committee, the election process lacked transparency. Opposition candidates were hindered from carrying out their election rallies and their access to public media outlets was blocked. The state-media coverage was biased in favor of the ruling party, and the director of the state news agency was dismissed after she complained of political pressure by the ruling party. Independent or opposition media outlets, journalists and reporters were subjected to various forms of intimidation. Some opposition candidates were arrested, others were threatened. Related concerns included incomplete or erroneous voter lists, violations of the secrecy of the vote, and undue police presence at polling stations. High-ranking authorities (including the president of the state) openly “advised” who people should vote for, and some candidates exploited administrative resources available to them in their campaign. For example, the ministry of transportation and telecommunications used the postal services in his campaigning. The communist-led government also appeared to use the distribution of humanitarian aid as a way of gaining more sympathy for its own candidates. The use of religiously or ethnically defamatory remarks and propaganda was yet another serious cause for concern.8
The OSCE participating states have recognized that “periodic, genuine elections are the foundation of representative government; that the right to participate in elections that are free and fair is a fundamental human right, guaranteed by international law; and that to be democratic an election process must be universal, equal, fair, secret, free, transparent, and accountable.”9
Regrettably, these standards are frequently violated in the OSCE and in some countries the failure to abide by these standards is becoming the rule rather than the exception.
The IHF calls on OSCE participating states to reaffirm their commitment to free and fair elections and to demonstrate this commitment in practice. Moreover, the IHF appeals to the OSCE, as an international organization, to take a firm stand against attempts to conduct elections or referenda -- such as the recent constitutional referendum in Chechnya -- in the absence of preconditions for a fair electoral process that reflects the genuine will of the citizens.
6 Ibid. 7 Ibid. 8 Helsinki Committee for Human Rights of the Republic of Moldova, Report Concerning the Proceeding of Local Elections in the Republic of Moldova, May - June 2003, June 2003. For more information, see http://www.humanrights.md/ or http://chdom.ngo.moldnet.md/ 9 OSCE/ODIHR Report on Existing Commitments for Democratic Elections in OSCE Participating States , Warsaw, 30 June 2003, page 6. 7 IHF intervention to the 2003 OSCE Human Dimension Implementation Meeting
DEMOCRATIC INSTITUTIONS:
Kosovo (Monday, 6 October 2003)
Despite significant improvements with regard to the rule of law in Kosovo in the previous year, additional and more resolute engagement is needed by UNMIK, KFOR and the new Provisional Institutions Self-government of Kosovo (PISG) authorities in providing for law, order and security. This is particularly true in light of the unresolved, grave incidents of politically and ethnically motivated crimes, which have led to increased political and inter-ethnic tensions in Kosovo in 2003. The fact that law enforcement officials have failed to clarify these cases has added to the atmosphere of insecurity and frustration, particularly as some of the incidents coincided with major political events and are likely to have been aimed at adversely influencing developments in Kosovo.
The series of violent incidents culminated on 13 August with an indiscriminate firing of machine guns at a crowd of Serbian youngsters bathing in a river in the Serbian enclave of Gorazhdevac, near Peja. Two persons were killed and at least four persons were wounded. The fact that the incident occurred on the same day as the new the Special Representative of Security General (SRSG), Harri Holkeri, arrived in Kosovo for the first time suggested that the goal of the perpetrators was to increase political tension, including postponing the earlier announced launch of dialogue between Prishtina and Belgrade. Other violent incidents that took place prior to high-profile political events included the blowing up of a Serbian Orthodox Church the night before the visit of UN Secretary General Kofi Annan to Kosovo in the summer and the killing of the Serbian family Stolich in Obilich just days before the EU Summit Meeting in Thessaloniki in June. While both the Albanian and the Serbian sides accused each other of the incidents, the result was heightened inter-ethnic tension and increased hostility, causing the further destabilization of the political situation in Kosovo, and in fact the entire region.
The Gorazhdevac incident resulted in a series of what appear to be Serb-perpetrated retaliatory moves, including unclarified explosions in Albanian-owned property in the Serbian-controlled Northern Mitrovica, the beating of five Albanians in the Serbian enclave of Grachanica near Prishtina, and the stoning of Albanians cars passing through some Serbian-controlled parts of the Gjilan region.
The Gorazhdevac killing was preceded by a number of other violent incidents, starting with two high profile assassinations of Albanians by unknown assailants in January and April and followed by the killing of a Serbian family of three in Obilich in June. Three Albanians (including two children) were gunned down on 2 August in Peja; the first international police officer was killed by a sniper in the Serbian-controlled northern part of Kosovo near Leposavich on 3 August; and a Serb man was shot in Lipjan near Prishtina on 11 August -- he later died of his wounds. Following the conviction of a group of former high ranking UCK officers in Podujeva on 17 July, there were a number of explosions in front of court buildings and police stations in Prishtina, Podujeva, Ferizaj, and other places, believed to have been committed as a reaction to the conviction of the group by former UCK supporters.
The prime role and responsibility for efficiently establishing the rule of law and security in Kosovo should continue to rest with UNMIK and KFOR. At the same time, Kosovar political parties and NGOs should assume and be vested with more political and civic responsibility for the creation of a more peaceful, non-confrontational and reconciliatory environment in Kosovo. This political and
8 public attitude was reflected in the 2 July call of all senior Kosovo Albanian institutional and political leaders to all refugees and IDPs from Kosovo, aimed especially at the Serbs and other minorities, to return to Kosovo and build their future there together. The security and rule of law issue is particularly important in order to ensure that the dialogue between Prishtina and Belgrade will begin still this year. This dialogue is of utmost importance to the stabilization in Kosovo and the region as a whole.
A further issue of great importance for Kosovo is the practical and measurable implementation with a concrete time dynamics of the process of fulfilment of the so-called “eight benchmark” criteria. These eight principle objectives set by former SRSG Steiner are reflected in the policy slogan “standards before status.” These standards are defined as a prerequisite for addressing the issue of the political status of Kosovo, which is considered critical to reaching stability and prosperity in Kosovo. The standards include: efficient functioning of democratic institutions, rule of law, freedom of movement, return of refugees, sustainable economic development, property rights, dialogue between Prishtina and Belgrade, as well as the transformation of the Kosovo Protection Corps. In order to prevent the policy of “standards before status” from being perceived by Kosovar citizens as a hindrance, obstruction and intentional prolongation to addressing and resolving justly the political status of Kosovo, these standards and their fulfilment should be defined not only in principle terms but also in quantified measurable terms of the level of their implementation. This approach would certainly increase the positive perception of the need for comprehensive implementation of the standards among Kosovars before the status issue is addressed. Accordingly, the Steiner policy of achieving benchmark criteria should rather be renamed “standards towards status.”
9 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
FUNDAMENTAL FREEDOMS I:
Freedom of expression, free media and information (Tuesday, 7 October 2003)
While reports of violations of the right to freedom of expression are being received from all over the OSCE region, the situation in the Central Asian OSCE states is particularly alarming. Central Asian governments are increasingly repressing political opposition and stepping up their measures to silence independent media outlets. In Kazakhstan, pressure against the political opposition and media has increased at the same pace with growing criticism of alleged corruption of the regime. An overwhelming majority of all private media outlets are owned either by members of the presidential family or by financial groups close to it. Sergei Duvanov, an outspoken critic of the government, has been imprisoned since January 2003 on rape charges that are believed to have been fabricated. His trial was marred with irregularities and failed to substantiate the charges.10 As of early September, Duvanov’s situation in prison was alarming, raising fears for his health and personal safety.11
In addition, the new draft law “Concerning Mass Media” includes several flaws which pave the way to violations of international standards: among other things, it provides for unacceptable limitations of press freedom and its provisions on secrecy laws, journalists’ confidentiality, censorship, and privacy shield to politicians are not in line with international standards.12 As of the end of August, the draft law had been submitted to the government for consideration. In Kyrgyzstan, opposition leader Feliks Kulov remains imprisoned after the Supreme Court on 15 August 2003 upheld his ten-year prison conviction on charges of abuse of office and financial misconduct, which are believed to be politically motivated. Kyrgyzstan’s officials excluded Kulov from the ballot in the October 2000 presidential elections and the recent Supreme Court ruling appears to be aimed at also excluding him from the 2005 presidential elections.13
The future of Kyrgyzstan’s independent media is also seriously endangered due to numerous litigation suits for libel initiated by the president and members of his family for revealing corruption or other misconduct. The prominent independent newspaper Moya Stolitsa was closed in June after having succumbed to an unrelenting series of lawsuits obviously heavily influenced by political and governmental pressure. The fines left the paper bankrupt. Its editors and journalists have been beaten and threatened.14
In Tajikistan, journalists experience great difficulties in obtaining information from public institutions. The government continues to enjoy a monopoly of the printing industry, which makes the publication of independent papers virtually impossible, and the state printing house routinely censors
10 IHF, Human Rights in the OSCE Region, Europe, Central Asia and North America, Report 2003 (Events of 2002, at http://www.ihf-hr.org/documents/doc_summary.php?sec_id=3&d_id=1322. 11 Kazakhstani International Bureau for Human Rights and Rule of Law, 9 September 2003. 12 International Press Institute (IPI), “IPI Calls for Significant Changes in Draft Kazakhstan Media Law,” 14 July 2003. 13 Human Rights Watch (HRW), “Kyrgyzstan: Continued Persecution of Political Prisoner,” 20 August 2003. 14 Letter by the IHF to Kyrgyz President Askar Akaev, 12 June 2003. 10 articles critical of the government. In addition, the government continues to arbitrarily deny broadcast licenses to independent radio and television stations. The operating independent outlets are not allowed to broadcast any programs that they have not produced themselves. In addition, government officials continue to intimidate and harass critical journalists with impunity.15
In Turkmenistan, the state enjoys absolute monopoly on printing facilities. Furthermore, the president appoints all editors of newspapers and magazines and provides them with directions on acceptable editorial policies. As a result, the print media are essentially a tool for government propaganda. The three state-run television channels mainly broadcast programs devoted to folk music, the president’s activities and patriotic and ideological propaganda.16
In Uzbekistan, the government controls the major media outlets and has monopoly on printing and distribution of newspapers.17 Despite the fact that official censorship was abolished in 2002, newspapers remain under serious pressure and editors have been summoned to the office of the presidential administration for “advice” on what they should print. Self-censorship has continued out of fear of repercussions and papers have been closed. Too critical journalists and media outlets have been intimidated and harassed, some have been fired after writing critically e.g. about social issues. 18 In the first months of 2003, a number of arrests of independent journalists suggest a new wave of repression. They include Ghairat Mekhliboev, Tokhtamurad Toshev, Ergash Bobojonov, and Oleg Sarapulov. The charges have included accusations such as inciting religious intolerance, attempting to undermine the state system, divulging sate secrets, defamation, and participating in mass unrest. 19
Prior, during and after the annual meeting of the European Bank for Reconstruction and Development (EBRD), which was held in Tashkent in May, authorities questioned, intimidated and harassed human rights defenders and opposition activists who tried to speak out to protest abuse.20
Various sources have recently reported on strengthening state control over the Internet. Reportedly, Security Services (NSS) officials have given lectures on the “danger of the Internet” to various bodies and enterprises, banks and media officials. The latter were urgently recommended not to visit websites containing “non-objective information on Uzbekistan.” The NSS also highly recommended to limit Internet access for employees and to initiate the registration of Internet users, the reason for Internet access, web-site addresses accessed and time spent on-line. Despite the fact that there is no exact list of prohibited websites, for instance those trying to search the Hizb-ut-Tahrir can be arrested and penalized.21
In Russia, the security service FSB continues to pursue “spy” cases against scientists and journalists: the victims have been charged with espionage or treason despite evidence that they have published solely non-classified information. The legal proceedings against them have typically dragged on because of “further investigation” ordered by the prosecution, and the proceedings have been characterized by irregularities and fair trial violations. While Grigory Pasko was released for “good behavior” -- but still regarded as guilty -- in early 2003, several others still remain in prison. They include Igor Sutyagin, an expert on military affairs at the Institute of US and Canada Studies at the
15 IHF, Human Rights in the OSCE Region, Europe, Central Asia and North America, Report 2003 (Events of 2002). 16 Ibid. 17 Ibid. 18 HRW, Letter to EBRD President Jean Lemierre, 20 June 2003. 19 IHF, Human Rights in Uzbekistan, A Record that Jeopardizes Security, March 2003, at http://www.ihf- hr.org/viewbinary/viewdocument.php?doc_id=341 20 HRW, “Uzbekistan: EBRD Should Insist on Reform, Aftermath of Annual Meeting Marked by Setbacks to Human Rights,” 17 July 2003; “Fact Sheet: EBRD Annual Meeting—Tashkent and After,” June 2003; “Uzbekistan’s Repressive Tactics Continue During EBRD Meeting, Uzbek Media Falsely Quotes Human Rights Watch Speaker,” 7 May 2002; “Uzbekistan: Progress on Paper Only, Analysis of the U.S. State Department's Certification of Uzbekistan,” 3 June 2003. 21 Memorial Human Rights Center, Uzbekistan: Review of Events in the Field of Human Rights for June 2003, 30 August 2003. 11 Russian Academy of Science, who has been in held in illegally long pre-trial detention for almost four years for writing on the military for Alternative Future (London). His court hearings started on 15 September but were postponed two days later until 25 September to give Sutyagin time to read his indictment properly: his defense team had had no access to the document.22 Valentin Moiseyev, a career diplomat who was sentenced to four and a half years in prison for espionage for South Korea, was released in December 2002 but is still fighting to clear his name. There have been at least 13 similar “spy” cases in post-Soviet Russia.23
While Russian media concentration on the national level gives rise to serious concerns about the lack of diverse opinions, in many regions print and electronic media are almost fully dependent on local politicians and businessmen.24 In June 2003, the Russian legislative passed the bill "On Amendments and Addenda Brought into Certain Legislative Acts" which further seeks to strengthen state regulation over independent media outlets and allows for unacceptable control over media content, particularly during their coverage of election campaigns. As a result, voters could potentially be denied a plurality of information and opinions about candidates.25 In addition, authorities have used new legislation to ban the dissemination of “extremism” by the media in an unacceptable manner, which was particularly evident following criticism of the authorities’ measures to solve the Moscow theatre siege in October 2002. Moreover, throughout the country, state and non-state actors have subjected critical media outlets and journalists to pressure and harassment.26
In addition, in a most disturbing recent precedent, on 15 August a court in Cheliabinsk in the Urals region sentenced German Galkin, a publisher of the weekly paper Rabochaya Gazeta, to one year in prison with hard labor in a closed trial for libelling two deputy governors of the region after he had accused them for embezzlement. The case was the first case in which a journalist was sentenced to imprisonment for his reporting in Russia since 1991.27
Since the September 2001 presidential elections in Belarus authorities have intensified administrative, legal and economic pressure against independent media outlets. At least three journalists have faced trial on criminal defamation charges for having allegedly slandered the president. Mikalai Markevich of the newspaper Pahonia as well as Viktar Ivashkevich of the trade union newspaper Rabochy are currently serving their terms of internal exile while Pavel Mazheika (also of Pahonia) has already served his sentence.28
On 28 May 2003, two leading independent newspapers, Belorusskaya Delovaya Gazeta (BDG) and BDG Confidential, were suspended for three months for publishing the results of an opinion poll according to which the majority of the respondents opposed the use of a governmental plane for private purposes by President Lukashenka, and for reporting on an open court hearing without a judge’s approval. Also since the paper has resumed publishing, the printing houses have refuses to print BDG until special permission from the Information Ministry. Three other newspapers have also been targeted: Navinki was already closed down for its political satire, and Narodnaya Volya and Vecherni Stolin are under the threat of closure after they have been given warnings.29
On 27 June, an ad hoc committee of the Foreign Ministry cancelled the press accreditation of Pavel Selin, a correspondent of the Russian TV company NTV because his reports had allegedly given a
22 “Case No. 52,” at http://www.case52.org/ 23 For the case of Moiseyev, St. Petersburg Times, 15 July 2003. 24 IHF, Human Rights in the OSCE Region, Europe, Central Asia and North America, Report 2003 (Events of 2002). 25 IPI, Letter to President Putin, 10 July 2003. 26 For details, see IHF, Anti-terrorism Measures, Security and Human Rights, Developments in Europe, Central Asia and North America in the Aftermath of September 11, April 2003, at http://www.ihf- hr.org/documents/doc_summary.php?sec_id=3&d_id=390 27 Reporters without Borders, “Russia: Journalist sentenced to year at hard labour for libel,” 22 August 2003. 28 Information from the Belarusian Helsinki Committee, 1 September 2002. 29 IHF and the Belarusian Helsinki Committee, “ Suspension of Leading Independent Belarusian Newspapers Ought To Be Overturned,” 2 June 2003. 12 negative picture of the social and political situation in the country and undermined respect to authorities. The Council of Ministers decided to suspend the NTV representation's activities in Belarus pending official apologies.30
In addition, it appears that there is a serious threat that non-governmental Internet sites could also be closed down after Information Minister Mikhail Podgayny equated webmasters of independent news sites with pornographers. Users of Internet cafes are required to present their passports31 and the cafes’ administrations are obliged to monitor the users’ web-surfing.
Diminishing respect for freedom of the media has been shown by the ruling Communist Party in Moldova. The Audiovisual Council that regulates national broadcasting depends largely on the government and the political majority in the parliament. Access to public television and radio is banned for political parties other than the communists, and public TV (TVM) fails to offer diversity in its reporting. In addition, legal provisions against defamation protect the government from criticism. For example, the newly adopted article 170 of the Criminal Code makes individual journalists or reporters privately responsible for published defamatory statements and, if found guilty, they may have to pay large sums in compensation or serve a prison sentence up to five years. This legal threat has a chilling effect on reporting on widespread corruption and other misconduct. Other defamation, libel and similar laws help silence criticism even more. In a distinct example, the prosecutor’s office ordered a search of the editorial offices of “Flux Press Group” on 13 May 2003 and -- in violation of the confidentiality of journalistic sources -- copied documents from the electronic archives to provide evidence in a libel suit against Flux. Its journalists were questioned and were not allowed to contact a lawyer.32 In addition, a well-known, independent radio program “Hyde Park”, broadcasted by the radio station Antena C and owned by the mayoralty of Chisinau, was closed under pressure from the Audiovisual Council. “Hyde Park” aimed to effectively exercise freedom of expression and was formerly called “school of democracy.”33
In Romania, some positive steps have been taken to amend legislation on insult and slander. The new version of the Criminal Code presented by the government on 30 May 2003 and discussed in the Judicial Committee of the Chamber of Deputies at the time of writing neither includes article 205 on insult, nor article 238 on offense of authorities, which awarded greater protection to public officials than ordinary people. While article 206 on libel (now article 220) regrettably still remains in the Criminal Code (a civil suit would suffice) it positively no longer provides for the possibility to transform the penalty of fine into imprisonment. Nevertheless, journalists sentenced under that article still continue to have a criminal record. Efforts by APADOR-CH (Romanian Helsinki Committee) for the introduction of a “public interest” argument to the code failed. Under the new article 221, journalists sued for libel can invoke the justification of “good faith” if sued for what they have written. Article 273 has been retained, providing for a punishment for spreading false news, but now only doing that “knowingly.” However, it would be necessary to delete the whole article inasmuch in contains a reference to acts “of a nature to jeopardize” Romania’s “international relations,” the first notion being too vague and the second unacceptable. Article 285 on “office secret” should also be abolished.34
Recent amendments to the already poor Criminal Code provisions on media freedom in Croatia and the planned changes to the press law present a setback in the country’ legal reforms. It is feared that the changes will hamper access to official information, limit the ability to criticize public figures and make it easier to prosecute journalists, thereby encouraging self-censorship. The parliament on 9 July 2003 repealed article 203 of the Criminal Code, which protected journalists from prosecution for libel
30 Belarusian Helsinki Committee, 4 September 2003. 31 RFE/RL Media Matters, Vol. 3, No. 31, 18 August 2003. 32 IHF and the Helsinki Committee for Human Rights of the Republic of Moldova, “Violations of the Freedom of Media and the Independence of the Judiciary in Moldova,” 10 June 2003, at http://www.ihf- hr.org/viewbinary/viewhtml.php?doc_id=3841. 33 Helsinki Committee for Human Rights of the Republic of Moldova, “Political quarrels after the local elections in the Republic of Moldova,” 26 June 2003. 34 APADOR-CH/Romanian Helsinki Committee to the IHF, 9 September 2003. 13 if they acted in “good faith” and without intent to defame. It also approved an amendment to article 309 on the basis of which any insult or criticism hampering the work of a judge or prosecutor is now punishable by three years in prison. Any journalist expressing an opinion on an ongoing trial can be sentenced to one year in prison. Furthermore, should the press law amendments pending as of this writing pass, the authorities will be able to refuse to provide information to the press without giving any explanation; the time limit for bringing a libel suit will be extended from six months to five years; a newspaper's editor-in-chief will be held responsible for libel damages rather than the publisher; and it will be forbidden to publish "official secrets" and "business secrets."35
Following September 11, free expression has faced multiple threats in the United States. In particular, restrictions on media access to prisoners is a key concern for freedom of expression. Access to persons detained on immigration charges has been particularly difficult following a September 2001 order by the chief immigration judge to close all immigration proceedings. It has been extremely difficult to determine how many foreign nationals have been detained on immigration charges, let alone to discover their names or report on proceedings against them.36 On 17 June 2003, the Court of Appeals for the District of Columbia Circuit ruled that the Department of Justice will not have to release the names of and other information about the hundreds it has arrested on immigration charges and material witness warrants in the aftermath of the September 11th attacks. The ruling overturned a lower court decision ordering the government to release the names of detainees and thus opened the door to widespread secret detentions on immigration charges.37 When denying access to information related to the detainees, the government has cited both national security reasons and respect for the detainees’ privacy rights, both of which ring hollow when considered in the light of the absence of due process rights accorded to many of the suspects.
During Attorney General John Ashcroft's ongoing nationwide campaign to promote the 2001 Patriot Act, new questions have arisen with respect to the provisions that potentially endanger journalists’ confidentiality of sources and might compromise their reporting. Section 215 of the act amended the Foreign Intelligence Surveillance Act (FISA) by lowering the level of proof required for the government to obtain secret authorization to search the records of a business. Under section 215, the FBI can seek an order requiring the production of "any tangible thing" -- which the law says includes books, records, papers, documents and other items -- from anyone for investigations involving foreign intelligence or international terrorism. The person or business receiving the order is forbidden from telling anyone that the FBI sought or obtained the "tangible things." Since the FISA order is obtained from the super-secret FISA Court, the order essentially cannot be appealed. A justice department official acknowledged last year in a letter to Congress that such an order could be applied to a newsroom, but the department has refused to answer questions about whether or how often it has been applied. Nor has it been acknowledged whether the Privacy Protection Act, which protects against newsroom searches or documentary seizures, takes precedence in such situations. The Patriot Act also makes it easier for the government to obtain secret authorization to install phone number tracing devices and computer taps. Reporters may run a risk of having their telephone or e-mail conversations with sources intercepted by government agents if those sources are deemed suspicious.38 While Turkey’s new “harmonization legislation” has brought about important formal improvements also in the field in freedom of expression and the media, a lot remains to be done in order to ensure free speech and reporting in practice. There is still a myriad of laws that restrict freedom of expression and courts continue to punish criticism of government policies and the publication of information on human rights and other delicate issues. There remains strong resistance of the state bureaucracy, civil
35 Reporters sans frontières (RSF), “Criminal code amendments and planned press law changes deal a blow to press freedom,” 17 July 2003. See also “ARTICLE 19 publishes analysis of criminal code defamation provisions,” 6 August 2003. 36 IHF, Anti-terrorism Measures, Security and Human Rights, Developments in Europe, Central Asia and North America in the Aftermath of September 11, April 2003. 37 HRW, “U.S.: Court Allows Secret Arrests,” 17 June 2003, at http://www.hrw.org/press/2003/06/us061703.htm 38 The Reporters Committee for Freedom of the Press, “Reporters Committee issues list of questions for Ashcroft during PATRIOT Act campaign” and “Questions for Attorney General John Ashcroft on the USA PATRIOT Act and its effect on the news media,” 20 August 2003, at http://www.rcfp.org 14 and military, which recently has started to come out more openly. As several human rights organizations report, malpractice and oppression by the local administrative agencies such as governor offices and police, have rather increased than decreased lately. For example, the figures from the first quarterly report in 2003 of the Human Rights Association indicate that in that period 50 people were prosecuted for expressing their thoughts. 39
The 19 June 2003 “sixth reform package” abolished the notorious article 8 of the Anti-Terror Law, which has been frequently used to curb freedom of expression. Turkish President Ahmet Necdet Sezer vetoed this abolishment, arguing that removing the article would create a legal void, encourage terrorism and endanger the indivisible unity of the state.40 The adjustment package was re-approved by the parliament without any modifications on 16 July 2003. While the abolishment of article 8 is seen as an important step in order to enhance freedom of expression, there is still article 312 of the Penal Code that can be used for the same purpose. Justice Minister Cemil Çiçek told a journalist, that by abolishing article 8 “we do not mean that the related offenses should be left without punishment. These crimes may already be recompensed through the article 312 of the Turkish Penal Code.”41 The June reform package also expanded freedom of broadcasting “in languages and dialects used by the Turkish citizens in their daily lives” to private TV channels, but it can only be hoped that this reform will not have the same fate as the one on the same issue, approved in August last year as part of the third Adjustment Law. The following decree had then not only acknowledged that right solely for the Turkish Public Television (TRT), but also determined the aim of such programs as “enhancing and developing the use of Turkish as a spoken language.” TRT announced at the end of February that they could not start the Kurdish broadcasting as there was no announcer that spoke the Kirmanc and/or Zaza dialects.42 The High Council for Radio and Television (RTÜK) is still suspending the operation of several radio or television stations, newspapers and journals. In addition, books, journals, newspapers and posters have been confiscated and banned. The IHF appeals to all OSCE governments to refrain from any steps that may lead to unacceptable restrictions of freedom of expression, the operation of media outlets, and access to information. Utmost respect should also be paid to journalists’ confidentiality of sources, a prerequisite of open and responsible reporting.
In the face of new defamation and slander laws that have been adopted or are under consideration, we wish to stress that the international principles require that authorities, politicians and civil servants are expected to endure a higher level of criticism than ordinary people. In addition, we request that imprisonment and other criminal sanctions be abolished from defamation laws.
In particular, we appeal for the immediate release of journalists, researchers and politicians who have been incarcerated for the exercise of freedoms granted to them by international instruments ratified by their governments. In any controversial case they should, at a minimum, be granted independent and impartial reviews.
39 Helsinki Citizens’ Assembly – Turkey, Turkey: Quarterly Country Report (January – March 2003),at http://www.hyd.org.tr/en/duyuru.asp?duyuru_id=2 . The penal suits against the 50 people on freedom of expression cases in the first quarter of 2003 were on the basis of the following articles: article 159 of the Turkish Penal Code (23 people), article 312 of the Turkish Penal Code (3 people), article 169 of the Turkish Penal Code (19 people), Anti-Terror Law (5 people). 40 Office of the Prime Minister, Directorate General for Press and Information , “Summary of the political and economic news in the Turkish press this morning,” 2 July 2003, at http://www.byegm.gov.tr/YAYINLARIMIZ/CHR/ING2003/07/03x07x02.HTM 41 Human Rights Foundation of Turkey (HRFT), Human Rights Report of Turkey May-June 2003. at http://www.tihv.org.tr/report/2003_05_06/may_june2003.html 42 HRFT, Human Rights Report of Turkey January-April 2003, at http://www.tihv.org.tr/report/2003_01_03/janmar2003.html; HRFT, Human Rights Report of Turkey May-June 2003, at http://www.tihv.org.tr/report/2003_05_06/may_june2003.html 15 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
FUNDAMENTAL FREEDOMS I:
Human rights defenders (Tuesday, 7 October 2003)
The situation of human rights defenders leaves much to be desired in many countries in the OSCE region. State-sanctioned beatings, as well as arbitrary arrests and convictions are just some of the human rights abuses that these people face almost as an occupational hazard.
The regime in Turkmenistan is consistent in its policy to prevent independent civil society from developing, and it is not possible for human rights activists to organize and carry out any efficient work. Using the alleged assassination attempt on President Niyazov in November 2002 as a pretext, a campaign against opponents of the regime, human rights defenders and their relatives and friends was launched in late 2002. A large number of people were detained, tortured and convicted to lengthy prison sentences in Soviet-style show trials.43 One case in this campaign involves the environmental activist Farid Tukhbatullin, who was convicted of illegally crossing the border to Uzbekistan and of concealing a serious criminal act, referring to his alleged knowledge of the alleged assassination attempt. The latter charge regarded his participation in a meeting organized by the IHF and Memorial in November 2002, where human rights activists discussed the current human rights situation in Turkmenistan. A court in Ashgabat sentenced him to three years imprisonment after a four-hour trial at which no witnesses testified.44 Following immense international pressure, Tukhbatullin was released on 2 April after signing a confession repenting to his guilt, which was published in Turkmen newspapers the same day. Throughout his trial, he persistently claimed his innocence. 45 In September, Tukhbatullin arrived in Austria and applied for political asylum.
In a more recent case, Sazak Begmedov, the 77-year-old father of Tajigul Begmedova, a co-founder of the newly established Turkmenistan Helsinki Foundation based in Bulgaria, had to be hospitalized with a concussion after being ill-treated by officers deporting him to a deserted area on the Uzbek border. He was abducted on 31 August in Ashgabat. When asked for the reasons of the forced exile, he was told that it had been ordered by the president himself and was related to “some Turkmen Helsinki Committee.” No medical doctor wanted to issue a medical certificate acknowledging the damages sustained during the transportation, in apparent fear of retaliation from authorities.46
43 IHF, “For Human Rights and Civil Society in Turkmenistan,” press release, 10 June 2002, at http://www.ihf- hr.org/viewbinary/viewhtml.php?doc_id=3608; and IHF, Human Rights in the OSCE Region: Europe, Central Asia and North America – Report 2003 (Events of 2002), June 2003, at http://www.ihf- hr.org/documents/doc_summary.php?sec_id=3&d_id=1322. See also intervention on torture and police misconduct. 44 IHF, Amnesty International (AI), Human Rights Watch (HRW), International League for Human Rights, Memorial Human Rights Centre, “President Niazov Should Keep His Promise and Release Imprisoned Ecologist,” 5 March 2003, at http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=3359 45 AI, “Further Information on UA 04/03 (EUR 61/001/2003, 7 January 2003) and follow-up (EUR 61/008/2003) - Prisoner of Conscience/Unfair Trial/Fear of Torture),” 7 April 2003, at http://web.amnesty.org/library/index/ENGEUR610102003 46 IHF, “IHF Concerned About the Abduction, Forced Internal Exile and Resulting Critical Health Condition of Sazak Begmedov in Turkmenistan,”open letter, 8 September 2003, at http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=5160 16 In Uzbekistan, human rights activist Ruslan Sharipov stood trial on 13 August 2003. He was found guilty of, among other things, homosexuality and sexual relations with a minor and sentenced to five and a half years imprisonment. The trial did not meet due process standards, and he allegedly confessed to the charges under duress. Sharipov told his defense team that he was forced to make the incriminatory statement for the sake of his own safety, that of his mother, and that of his legal defense team. On 25 September, an appeal court upheld the charges of homosexuality and sex with a minor but dropped the charge of involving minors in “antisocial behavior.” It also reduced Sharipov’s prison sentence to four years. Sharipov arrived at the courthouse with a swollen eye, and injury above his eye, and with his glasses broken, raising fears that he was tortured in custody. In a letter smuggled out of prison earlier in September Sharipov said that police officers had tortured him and had threatened to physically harass his lawyers if he did not dismiss them. 47
In a related case, Surat Ikramov, of the Independent Group for Human Rights Defenders who works in the legal defense of Ruslan Sharipov, was abducted and assaulted on 28 August after meeting with a judge regarding the appeal on Sharipov’s conviction. A plastic bag was pulled over his head, his hands and legs were tied and he was pulled into a car that took him to the outskirts of Tashkent where he was beaten unconsciousness. Subsequent medical examinations confirmed a concussion and two broken ribs. Ikramov had been receiving anonymous telephone threats every few days prior to the attack.48
On 17 September, three members of the Human Rights Society of Uzbekistan (IHF member) -- Muimidinjon Kurbanov, Egamnazar Shaimanov and Alikul Sarimsakov -- were briefly detained after they had visited the Tashkent office of Freedom House. The police reportedly told that they were attested because an article critical of Interior Minister Zokirjon Almatov has been found in the possession of one of the three men.49
According to human rights activists in Kyrgyzstan, the head of the Coalition for Democracy and Civil Society Edil Baisalov, was forcibly hospitalized for three days. As a result, he was prevented from giving his scheduled speech at a roundtable discussion on 28 February 2003 on alleged irregularities with regard to the constitutional referendum.50 Harassment against the Kyrgyz Committee for Human Rights (IHF member) continued (see intervention on freedom of association).
In Armenia, the office of the Helsinki Citizens' Assembly in Vanadzor (HCAV) was set on fire on 14 March 2003. On 15 March HCAV coordinator Artur Sakunts was arrested, tried and convicted, all in the same day, to ten days “administrative detention“ on charges of disturbing the peace. Armenian authorities use “administrative detention” to punish and intimidate demonstrators and political activists as well as in routine police work to circumvent due legal procedures for criminal suspects.51 Later in the year, on the night of 4 May, parts of the organization’s premises were destroyed again, just after the basic reconstruction had taken place. The vandal(s) broke parts of the window construction, corner stones and the main part of the front roof with the light system.52
In Russia, human rights defenders and other NGO activists often face criminal charges and are convicted of criminal offences, declared insane, subjected to forced psychiatric examination and confinement in psychiatric hospitals, threatened with physical violence, arrested and beaten by police,
47 AI, “Further Information on UA 180/03 (EUR 62/005/2003, 20 June 2003) Fear for safety/Fear of torture and ill-treatment new concern: Unfair trial,” 10 August 2003, at http://web.amnesty.org/library/Index/ENGEUR620102003?open&of=ENG-UZB; HRW, Uzbekistan: Human Rights Defender Loses Appeal,” 26 September 2003. 48 HRW, “Uzbekistan: Uzbek Rights Activist Kidnapped and Beaten – Repressive Grip Tightens Prior to Independence Day,“ Human Rights News, 30 August 2003; at http://www.hrw.org/press/2003/08/uzbek083003.htm 49 RFE/RL Newsline, No. 178, 18 September 2003. 50 EurasiaNet, “Activist’s Hospital Stay Sparks Controversy over Kyrgyz Government Tactics,” 14 March 2003, at http://www.eurasianet.org/departments/rights/articles/eav031403.shtml 51 HRW, “Human Rights Defender Imprisoned, Office Set On Fire – Post-election arrests and intimidation continue,” Human Rights News, 18 March 2003; at http://www.hrw.org/press/2003/03/armenia031803.htm 52 Information from the Helsinki Citizens' Assembly - Vanadzor to the IHF, 12 May 2003. 17 and subjected to other harassment after they have criticized authorities. It is particularly dangerous for them to disclose instances of corruption. Cases of the physical ill-treatment of human rights defenders, including murders, are not properly investigated by the authorities, and perpetrators are rarely found. NGOs in the Krasnodar territory come under most severe pressure and harassment by authorities and law enforcement officials. They have faced numerous prosecutions commonly based on fabricated data, with proceedings continuing for years on end.53
Human rights defenders and humanitarian workers remain at risk in Chechnya and the surrounding republics, as demonstrated by the kidnappings of Imran Ezheev of the Russo-Chechen Friendship Association in March 2003, and of Ali Astamirov, a reporter of the Agence France-Presse in Ingushetia on 4 July. Ezheev was released a few days later, but Astamirov remained unaccounted for as of the end of July. In another case, a monitor for the local human rights organization Koalitsa was abducted from his home early in the morning of 10 April 2003. He was handcuffed, had a bag pulled over his head and was driven away in a minivan. Half an hour later, an explosion was heard from a forest nearby, where earlier cases of killings have been recorded. No remains were found however, and the fate of the human rights defender is still unknown.54
In Republika Srpska in Bosnia and Herzegovina, the Helsinki Committee for Human Rights has been a target of constant attacks and other forms of harassment. It has received telephone threats, as has committee chair Branko Todorović, whose wife and children have also been threatened.55
Mladen Milićanin, president of the Citizens’ Association Milići was beaten so brutally by unknown perpetrators on 26 March 2003 that he had to undergo urgent surgery in Belgrade and remained handicapped. Milićanin had received telephone and letter threats for several days prior to the assault because of his human rights activities, and it is believed that the beating was an act of retaliation for exposing abuses by local public officials in Milići. The perpetrators of the attack were never found, but available information suggests police involvement or collusion. The prosecutor’s office initiated investigations only after pressure from the local Helsinki Committee, but has worked inefficiently. Milićanin continues to receive threats as of this writing.56 Bojan Bajic and other members of “Luna” NGO in Ruda, eastern Bosnia, have also been targets of different kinds of threats, mainly by extremists.57 In Turkey, human rights activists face continuous harassment. Lawyer and human rights defender Eren Keskin, who is also head of the Istanbul branch of the Human rights Association of Turkey, has been facing numerous charges related to her human rights activities for years. She is also a founder of a legal aid project for women survivors of sexual assault in custody. Keskin has received death threats, been held in detention, been abused by police officers and there have been attempts on her life. As of the summer of 2003, there were 86 charges pending against her. In November 2002, she was deprived of her license for legal practice for a year.58
The court gave a verdict in the case against Dr. Alp Ayan, a psychiatrist of the Izmir branch of the Human Rights Foundation of Turkey, and Mehmet Barindik, official of the LIMTER-IS trade union, on 19 June 2003. Both were sentenced to one year’s imprisonment.59 The two men were charged in
53 Moscow Helsinki Group, Memorial Human Rights Center, Center for Assistance for International Protection, Nizhnii Novgorog Committee against Torture, Information center SOVA, Center for the Development of Democracy and Human Rights, the Glasnost Defense Foundation, the Independent Council of legal Expertise, Interregional Group “Human Rights Network,” the Movement of Human Rights and the Center of Social Labour Rights, The Alternative NGO Report on Observance of ICCRP by the Russian Federation, May 2003. 54 IHF, Still in a State of Terror – Chechnya After the Referendum, 10 September 2003. 55 Helsinki Committee for Human Rights in Republika Srpska to the IHF, 18 September 2003. 56 Ibid. 57 Ibid. 58 AI, “Turkish Lawyer Faces Harassment by Trial,” The Wire, June 2003, at http://web.amnesty.org/web/wire.nsf/June2003/Turkey 59 Human Rights Foundation of Turkey, “Pressures on Human Rights Defenders,” Human Rights in Turkey: May June 2003 Report, June 2003, at http://www.tihv.org.tr/report/2003_05_06/mayjuneorgani.html 18 connection with a press statement of 13 January 2001 condemning a police raid in prisons that lead to the death of 32 people.
The IHF wishes to emphasize that the manner in which governments treat human rights activists and respond to assaults against them, is a clear indicator of the genuineness of their commitment to the protection and promotion of human rights.
The IHF accordingly urges the OSCE participating states to fulfill their commitments under the Vienna Concluding Document’s Principles 13.5 and 21, in which they pledge to respect the right of their citizens to contribute actively to the promotion and protection of human rights; to ensure that these exercises will not be subject to any restrictions except those provided by law and consistent to their obligations under international law; to allow human rights defenders to carry out their tasks unhindered; to bring to justice all who in any way try to obstruct their activities; and to support their work with all possible means.
19 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
FUNDAMENTAL FREEDOMS I:
Freedom of association and the right to peaceful assembly (Tuesday, 7 October 2003)
Threats to and violations of freedom of association and the right of peaceful assembly continue in numerous member states of the OSCE.
In Turkmenistan, freedom of association is virtually non-existent. There is no right to freely form political parties or organize civil society groups. The new Draft Law “On Civic Organizations“shows no improvements: it fails to comply with international standards on freedom of association and even contradicts other Turkmen legislation. Furthermore, some articles are very vaguely formulated and unclear, making the law subject to manipulation. Among other problems, the law makes frequent references to “citizens,” implying that non-citizens have fewer or no rights with regard to founding NGOs or participating in their activities. It allows government interference in and control over NGO activities, particularly with regard to finances, and requires that Ministry of Justice representatives can attend NGO meetings. The draft law prohibits “NGO interference in the activities of government organs,” a broad formulation that potentially provides for serious restrictions on free expression and association. According to the draft law, the government can close down an organization after issuing two warnings for minor bureaucratic reasons. 60
Since the launch of the pre-election campaign in June for the October presidential elections in Azerbaijan, the right to peaceful assembly has been repeatedly violated. The majority of opposition demonstrations in Baku city have been forbidden by the city mayor. Moreover, more than 230 demonstrators of unsanctioned assemblies have been arrested and at least 182 of them have reportedly been beaten or otherwise ill-treated. Most of them are members or supporters of the oppositional Azerbaijan Democratic Party. Arbitrary refusals by authorities to register opposition candidates for the upcoming presidential elections have caused widespread protests.61
The Kyrgyz authorities have again made an effort to oust the chairman of the Kyrgyz Committee for Human Rights, which is a leading independent human rights organization in that country and has been a member of the IHF since January 1999. In August 2003, a group met in Bishkek and claimed to replace KCHR founder and chairman Ramazan Dyrldaev. No KCHR member, not even one of the eleven board members of the KCHR, was present at the meeting, which therefore infringed upon the KCHR’s statutory requirements for any organizational changes within the committee. On 9 September, Deputy Justice Minister Nurlan Alymbaev reportedly told to Radio “Azatyk” that the new group would be registered within a few days under the KCHR’s name. The measures that are being taken are virtually tantamount to setting up a bogus KCHR that is loyal to the Kyrgyz government, a move that is a clear violation of the internationally guaranteed right to freedom of association and of Kyrgyz law. This move is the latest in a series of attempts in the past ten years to silence the original KCHR. This campaign, which appears to be supported by Kyrgyz authorities, has included serious harassment of KCHR members, raids to its office, confiscation of property, and forcing its head Ramazan Dyryldaev into exile to Vienna from July 2000 to April 2002.62
60 Open Society Institute, “Open Letter to President Niyazov,” 14 August 2003, and “Comments on the Draft Law ‘On Civic Organizations’ of Turkmenistan, sent out by the Open Society Institute, August 2003. 61 Human Rights Center of Azerbaijan to the IHF, August 2003. 62 IHF, “Government Attempt to De-legitimize the Kyrgyz Committee for Human Rights,” 3 September 2003, at 20 The right to peaceful assembly is guaranteed by the Constitution of the Russian Federation.63 Any public event, such as rallies and pickets, can be banned or dispersed only if they run counter to the Constitution or threaten the public order, security or heath of the people. However, in violation of the above-mentioned provisions, over the last few years it has been difficult to organize public events if the issues they intend to promote have been ill-favored by the authorities. In addition, participants of such events have been arrested by the police and charged with committing administrative offenses (e.g. “spreading slanderous leaflets against individual judges”) whenever the originally stated topic of the scheduled peaceful event was changed. Also, regional and local authorities have released an increasing number of regulations designed to place unlawful constraints on the freedom of peaceful assembly.
The implementation of the right to free association has considerably deteriorated in Russia during the last three years. On the federal level, activities of NGOs have been hampered by the adoption in 2000- 2002 of new repressive legislation affecting in particular their taxation, participation in court proceeding, and on countering extremist activities.
The Federal Law “On Charitable Activities” provides a very limited list of activities considered charitable. As many civil society and human rights organizations are not included in that list, they are not eligible for tax-exempt donations, and certain types of NGOs are not allowed to receive donations at all. The new Tax Code threatens the very existence of NGOs by establishing for them a taxation regime similar to that of commercial companies. By law, regional authorities also have the right to control the use of foreign funding of projects.
Legislation adopted in 2002 vests the state with excessive powers to suspend activities of any NGO that is engaged in very broadly defined activities that are believed to undermine the security of state. Moreover, in a significant step backwards, the new Criminal Procedure Code and Civil Procedure Code effectively deprive NGOs of the possibility to represent individuals in judicial proceedings.
Authorities on the local and regional level subject human rights and other types of NGOs to harassment and pressure. Local departments of the Ministry of Justice have arbitrarily refused to renew registration of a large number of NGOs for illegitimate reasons or on the basis of formal pretexts. There are sufficient reasons to believe that regional and local authorities have use the re- registration procedure as an opportunity to eliminate the organizations that had fallen out of their favor. Many denials of registration have been accompanied by illegitimate demands to remove the words “human rights protection” from the names and statutes on the grounds that this is required by the state. Arbitrary demands have been made to NGOs to change their charters and other incorporation documents
Other forms of pressure on NGOs include paralyzing their work by repeated financial and other checks of their activities, evictions from office premises, etc. The situation is particularly alarming in two regions in the south: Krasnodar and Chechnya.
In Belarus, the liquidations of NGOs, threats against human rights defenders and new governmental regulations amount to a new orchestrated campaign against civil society. In 2003, a number of NGOs have been closed down for alleged violations of regulations relating to foreign aid and rules on registration. For example, the Youth Christian-Social Union was closed for using a private apartment as their office and for mistakes made by the Ministry of Justice during its re-registration in 1999. The regional NGO Civil Initiatives was shut down for violating the presidential decree on spending foreign http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=5149; update from KCH, 12 September 2003. 63 Information on Russia is based on Moscow Helsinki Group, Memorial Human Rights Center, Center for Assistance for International Protection, Nizhnii Novgorog Committee against Torture, Information Center SOVA, Center for the Development of Democracy and Human Rights, the Glasnost Defense Foundation, the Independent Council of legal Expertise, Interregional Group “Human Rights Network,” the Movement of Human Rights and the Center of Social Labour Rights, The Alternative NGO Report on Observance of ICCRP by the Russian Federation, May 2003. 21 aid, and for establishing a public resource center as well as a youth club and for disseminating “propaganda” materials. The regional public center Varuta was closed down for using an “unofficial” name in its papers (“organization” instead of “association”). The center of youth initiatives Kontur had to terminate its activities because it had used an office with an address differing from the registered one and for spending foreign aid without government permit. Furthermore, on 8 September 2003, the Minsk City Court ordered the closure of the NGO Legal Assistance to Population because it had rendered paid judicial services to citizens and, in addition, had an incorrect official stamp. In early September the Department of Justice filed lawsuits also on the liquidation of Women’s Response and the Belarusian Foundation Cassiopeia. These lawsuits are based on official warnings of the Department of Ministry of Justice -- two such warnings within one year are enough for the closure of a NGO.64
The Belarusian Helsinki Committee (BHC, IHF member) recently received an official warning from the Ministry of Justice for using the name of the organization which “does not correspond with that stated in the BHC statutes.” The warning was a result of inverted commas in the name on the letterhead, seal and stamp of the BHC.
In recent years, the Belarusian authorities have expanded their arsenal of regulations and decrees pertaining to civil society. The Presidential Decree No. 13, which was issued on 15 April 2003, bars public organizations from representing ordinary citizens in court, and is another attempt to isolate public organizations from the public.65 Due to innovations in the law, political parties and NGOs can be closed down for one gross violation during a public event.66
In Poland, a draft bill on “Public Utility Organizations” was submitted to parliament in December 2001 and adopted in March 2003. The law provides for the establishment of a Board for Public Utility Organizations, the members of which will be fully dependent on the state budget. The minister of labor will be given the power to decide which NGOs will be accepted on the list of “public utility organizations.” Furthermore, the law provides for a limitation on the possibility to use profitable, untaxed deposits of grant funds, and abolishes the possibility by big independent foundations to finance small organizations. Those organizations that do not want to apply for the status of “public utility associations” will pay 19 percent taxes of donations to it. NGOs have expressed their concern that they will lose private -- especially foreign -- funds because the funders are not willing to contribute to the public budget of Poland. As a result, the law may result in the closure of NGOs due to lack of funding.67
In the 1990 Copenhagen document the C/OSCE states pledged to ensure that individuals are permitted to exercise the right to association, including the right to form, join and participate effectively in non- governmental organizations (10.3). In the same document, the participating states reaffirm that everyone will have the right of peaceful assembly and demonstration. Any restrictions which may be placed on the exercise of these rights will be prescribed by law and must be consistent with international standards (9.2). Further, the 1999 Istanbul Charter for European Security states that NGOs can perform a vital role in the promotion of human rights, democracy and the rule of law and form an integral component of a strong civil society. In that document the participating states pledged themselves to enhance the ability of NGOs to make their full contribution to the further development of civil society and respect for human rights and fundamental freedoms (par.27).
The IHF urges the OSCE member states to refrain from any measures that would place obstacles to the establishment and development of strong civil societies in their countries. Instead, the
64 See IHF and the Belarusian Helsinki Commitee, “Another Belarusian Human Rights Organization, Legal Assistance to Population, has been ‘Liquidated’”, press release, 12 September 2003, at http://www.ihf- hr.org/welcome.php 65 See also IHF and Belarusian and Norwegian Helsinki Committees, “Stop the Persecution of Civil Society in Belarus, 19 May 2003, at http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=1978 66 Belarusian Helsinki Committee to the IHF, September 2003. 67 Information from the Helsinki Committee for Human Rights in Poland to the IHF, September 2003. 22 establishment and activities of NGOs should be encouraged and supported for the central role they play in contributing to the promotion and protection of the OSCE commitments.
23 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
FUNDAMENTAL FREEDOMS, SESSION II:
Freedom of thought, conscience, religion or belief68 (Tuesday, 7 October 2003)
In numerous OSCE states, the situation regarding religious freedom and tolerance seriously conflicts with the commitments made by the governments of these countries. The IHF would like to draw your attention to a number of countries where the current situation gives rise to particular concern.
The Belarusian law, which entered into force in November 2002, establishes a privileged position to Russian Orthodoxy and considers Catholicism, Lutheranism, Judaism and Islam “traditional” religions. As regards other faiths, only such religions that existed in the country already before 1982 and have at least ten member congregations will be officially recognized. Unregistered religious groups are not allowed to collectively practice their faith, and registered groups need permission to conduct ceremonies and will not even be able to hold meetings in private homes. All religious literature is subject to censorship prior to import or distribution, and foreigners may not lead religious communities. The generally vague language of the law paves the way to arbitrary implementation. The Belarusian Helsinki Committee fears that implementation of the new law will drastically worsen the situation of minority religious communities in the country. In particular, it refers to the compulsory re- registration of all religious groups within two years, and the possibility that many groups might be denied registration.69
Since September 2003, “ideological courses” have been introduced in high schools and universities as a compulsory subject to all students. Officially designed to “save the young generation,” the courses were initiated by the presidential administration and are methodologically supported by the Ministry of Education. It is expected that the planned courses will start as short ideological lectures at the beginning of each class until it will be developed into a high school subject and an academic discipline. The indoctrination reportedly will contain the president’s speeches and utterances. Those professors and teachers who do not agree with the content of the course are expected to be fired. Moreover, it has been reported that a new position of a deputy director on ideological work responsible for the “ideological health” of people is going to be introduced in each Belarusan enterprise, kolkhoz and youth organization.70
The new Bulgarian law on religion, which was approved by the parliament in December 2002, recognizes one fraction within the divided Bulgarian Orthodox Church as the only legitimate representative of this church and grants it the status of a legal entity.71 All other religious communities must register with the court in order to be able to practice their beliefs in public. While a court decides on registration, the executive may directly influence the decision-making process. In another problematic provision, the law grants a special government office on religious affairs broad powers to investigate and monitor the activities of religious communities suspected of “violating citizens’ rights and freedoms.” The list of activities that religious organizations are not allowed to engage in is
68 For more information on this topic, see IHF, Problems of Religious Freedom and Tolerance in Selected OSCE States, July 2003, at http://www.ihf-hr.org/documents/doc_summary.php?sec_id=3&d_id=3158. 69 Annual Report 2002 of the Belarusian Helsinki Committee, prepared by Dzmitry Markusheuski. 70 Belarusian Helsinki Committee to the IHF, September 2003. 71 Bulgarian Helsinki Committee, Human Rights in Bulgaria in 2002, at http://www.bghelsinki.org/frames- reports.htm; and Krassimir Kanev, “The New Bulgarian Religious Law – Restrictive and Discriminatory,” unpublished as of this writing. 24 unnecessarily broadly formulated in parts. Such prohibited activities include using religious convictions to achieve political goals and recruiting minors without the consent of their parents. Moreover, there is a danger that religious communities may be punished twice for the same activity, as the law allows for both judicial and administrative sanctions. The Bulgarian Helsinki Committee has expressed serious concerns regarding the new law, while concluding that its discriminatory and restrictive provisions reflect a prejudiced attitude toward minority religions as well as toward religion per se.
In Georgia, Orthodox extremists continue to attack minority religious groups with impunity. During the last few years, extremist mobs have persistently raided private homes of members of minority religious communities, destroyed their property, and intimidated and physically abused them. Among those particularly targeted are Jehovah’s Witnesses, Pentecostals, Baptists and Evangelic Christians.72 The authorities have failed to take adequate measures to respond to the wave of violence. In some cases police and local administration officials have been involved in attacks while investigations into complaints filed by victims have been slow, ineffective or non-existent.73 As of this writing, not a single perpetrator has been punished. In response to international pressure, the authorities eventually brought criminal charges against Vasili Mkalavishvili, a defrocked Greek Orthodox priest who has led the most notorious attacks, and one of his aides in 2001. However, the trial has repeatedly been postponed, in many cases because of a lack of security in the courtroom against attacks by the defendant’s supporters.74 Moreover, Mkalavishili is only tried for a few attacks, none of which are among the most serious that have occurred.75 Despite the pending trials, Mhakalavishili has continued to stage attacks.76 In early June 2003 a court order was issued to arrest him pending the outcome of the trial. However, he reportedly went into hiding in order to avoid arrest.77
The regime of President Niyazov systematically stifles diversity of thought in Turkmenistan. The regime only recognizes two religious denominations, Sunni Islam and Orthodox Christianity, and persecutes those who confess other faiths. The authorities regularly crack down on meetings held by unregistered communities, and intimidate, arrest, fine and abuse their members. Those hosting such religious meetings have been evicted from their flats, and dozens of participants have been forced into internal exile or -- if they are foreigners -- expelled from the country. Among those primarily targeted are Jehovah’s Witnesses, Baptists, Pentecostals, Adventists, Hare Krishna’s and Baha’is.78 Ten crackdowns on minority religious groups were reported between early May and June 2003 alone. In all these cases, police raided private homes where meetings were held, and arrested those present.79 In one case, the target was a community of deaf and dumb Baptists, who were subsequently fined about €50 each, amounting to about their monthly income.80
While no law on alternative civilian service exists in the country, the government continues to imprison young male members of minority religious communities for refusing to serve in the army on conscientious grounds. During the last few years, several religious activists have also been imprisoned
72 Human Rights Watch (HRW), Memorandum to the U.S. Government on Religious Violence in the Republic of Georgia, 29 August 2001, at http://www.hrw.org/backgrounder/eca/georgia/; submission by the Office of General Counsel of the Jehovah’s Witnesses to the US State Department for the Country Reports on Human Rights Practices 2002. 73 HRW, Briefing Letter to the Human Rights Committee, 15 March 2002, at http://hrw.org/press/2002/03/briefing-0315-ltr.htm; Office of the General Counsel of the Jehovah’s Witnesses, “Violent Religious Intolerance Remain Unchecked in Georgia,” 30 January 2003. 74 Office of General Counsel of the Jehovah’s Witnesses, “Violent Religious Intolerance Remain Unchecked in Georgia,” January 30, 2003; Office of General Counsel of the Jehovah’s Witnesses, “Extremists attack victims and attorneys in Georgia court,” April 29, 2003; Forum 18, “Georgia: Scepticism Greets New Pledges to End Religious Violence,” 25 March 2003. 75 Keston Institute, “Violent Priest’s Trial a ‘Charade,’” 4 November 2002. 76 Forum 18, “Scepticism Greets New Pledges to End Religious Violence,” 25 March 2003. 77 Forum 18, “’We’ll back’, mob warns Pentecostals,” 16 June 2003. 78 Keston Institute, “Turkmenistan Crushes Religious Minorities,” 25 January 2001. 79 Forum 18, “We’ll put you away for twelve years, Baptist told,” 18 June 2003. 80 Forum 18, “Heavy fines on Turkmenabad Baptists,” 25 June 2003. 25 on fabricated criminal charges. As of June 2003, four Jehovah’s Witnesses were imprisoned for their religious convictions, two of whom were conscientious objectors.81
Following September 11, the Uzbek government has sought to mute international criticism of its relentless campaign against independent Muslims as part of “war on terrorism.” Under this pretext, the government has continued to arbitrarily arrest, torture and sentence independent Muslims to lengthy prison sentences, or even to death, in trials grossly violating international fair trial standards. Muslim prisoners are subject to notoriously harsh treatment and many Muslims have allegedly died in custody as a result of the harsh treatment. In April 2003, the Supreme Court decided against hearing the case of Iskander Khudoberganov, an independent Muslim who was sentenced to death on charges of “religious extremism” and “anti-state activities” in November 2002. The trial was believed to be extremely unfair and Khudoberganov was reportedly subjected to torture during the investigation. His appeal was recently turned down by the Presidium of the Supreme Court but the president of Uzbekistan can still grant him clemency. However, his family and lawyer have not been informed about when the president will make his decision. Should the president reject the appeal, Khudoberganov will be in imminent danger of being executed.82 Amnesty International believes that three other men on the similar charges were executed in May while their cases were pending before the UN Human Rights Committee.83
Moreover, the Uzbek authorities continue to harass non-Muslim minority religious communities and there have been reports of physical abuse of members of non-Muslim religious minorities. For example, in May 2003, four Jehovah’s Witnesses were arrested and beaten by police for preaching their faith on the street in the western city of Kagan.84 While some local and international nongovernmental analysts estimate that at least 7,000 people remain imprisoned in Uzbekistan because of their opinions or religious convictions, the Human Rights Society of Uzbekistan (IHF member) claims that the number is considerably higher.
Freedom of thought, conscience, religion and belief is one of the core Helsinki commitments. Already in the 1975 Helsinki Final Act, the OSCE states agreed to “respect the freedom of the individual to profess and practice, in alone or in community with others, religion or belief acting in accordance with the dictates of his own conscience.”85 This commitment has subsequently been reaffirmed in several OSCE documents.86 In the 1989 Vienna Concluding Document, the OSCE states particularly pledged to “take effective measures to prevent and eliminate discrimination against individuals or communities on the grounds of religion or belief” and to ”foster a climate of mutual tolerance and respect between believers of different communities as well as between believers and non-believers.”87
The IHF calls on the Bulgarian, Belarusian, Georgian, Turkmen and Uzbek governments as well as the governments of all other OSCE states to ensure that their citizens enjoy freedom to practice and profess their convictions, alone as well as in community with others. We especially appeal to the Belarusian government to refrain from any practices that are reminiscent of the forced indoctrination of the youth.
81 Information from the Office of General Counsel of the Jehovah’s Witnesses to the IHF, June 2003. 82 IHF open letter to the President Islam Karimov of 26 June, 2003, at http://www.ihf- hr.org/documents/doc_summary.php?sec_id=3&d_id=2552 and 22 August 2003 at http://www.ihf- hr.org/viewbinary/viewhtml.php?doc_id=5148; Information from Amnesty International to the IHF, 18 September 2003. 83 Amnesty International, EUR 62/006/2003, 20 June 2003. 84 Forum 18, “Police beat Jehovah’s Witness,” 2 June 2003. 85 “Declaration on Principles Guiding Relations Between Participating States” of Final Act of the Conference on Security and Cooperation in Europe, 1975, principle VII, par.3. 86 See Concluding Document of Madrid – The Second Follow-up Meeting, 6 September 1983; Concluding Document of Vienna – The Third Follow-up Meeting, 1989; Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 1990; Concluding Document of Budapest, 1994; and Istanbul Document, 1999. 87 “Questions Relating to Security in Europe” of Vienna 1989, par. 16.1 and 16.2. 26 Moreover, the IHF calls on the OSCE states to refrain from undue restrictions on the activities of minority religious communities, to take effective measures to promote understanding and tolerance toward such groups and to duly investigate and prosecute any case where a minority believer is subjected to discrimination or violence because of his or her convictions.
27 Joint Intervention by the International Helsinki Federation (IHF) and the European Roma Rights Center (ERRC) to the 2003 OSCE Human Dimension Implementation Meeting
TOLERANCE AND NON-DISCRIMINATION I: Roma and Sinti (Wednesday, 8 October 2003): Abuse of the fundamental rights of Roma in the states of the OSCE region remains a cause for deep concern. Reports of, inter alia, violent abuse-- frequently animated by racial prejudice or animosity--; racial segregation and other abuses in the fields of education, housing and health care; racial discrimination in nearly all sectoral fields; and in a number of instances the collective expulsion of Roma from OSCE countries proliferate, in most cases in the absence of adequate measures by states to remedy them. Throughout the OSCE region, authorities have failed to take adequate measures to improve the situation of Roma. These issues are not new to the OSCE and the need for thorough-going and pro-active measures by governments to address the situation of Roma has repeatedly been emphasized in this forum. For example, the OSCE Charter for European Security, adopted at the 1999 Istanbul Summit, provides that OSCE states “recognise the particular difficulties faced by Roma and Sinti and the need to undertake effective measures in order to achieve full equality of opportunity, consistent with OSCE commitments, for persons belonging to Roma and Sinti.” OSCE states committed to “reinforce [their] efforts to ensure that Roma and Sinti are able to play a full and equal part in our societies […]” There is an increasing conviction among governments and civil society in the OSCE member states that one of the conditions for remedying the present exclusion of Roma is Roma participation: the inclusion of Roma in the policy process and, indeed, in government. Roma participation has been repeatedly addressed as a key issue by participants, including intergovernmental representatives, at OSCE fora. As long ago as 1990, at the Copenhagen Meeting of the Conference on the Human Dimension of the former CSCE, the participating states committed to “respect the rights of persons belonging to national minorities to effective participation in public affairs […]” A World Bank/Open Society Institute conference "Roma in Expanding Europe: Challenges for the Future," held in Budapest, Hungary, 30 June – 1 July 2003, heralded the inauguration of a "Decade of Roma Inclusion."88
In light of the foregoing, the European Roma Rights Center (ERRC) and the International Helsinki Federation for Human Rights (IHF) herewith present, first of all, a discussion of efforts by governments to ensure Roma participation. Next, the ERRC and IHF present a brief overview of some areas of particularly acute concern in recent months.
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Roma are dramatically under-represented in both state and local administrations. Few Roma occupy seats in the parliaments of their countries or the local councils of their towns. Most governments of the OSCE region have failed to act adequately -- and in many cases failed to act at all -- to overcome the systemic exclusion of Roma from government. Roma for the most part have little or no say in the
88 The conference “Roma in an Expanding Europe: Challenges for the future,” 30 June – 1 July 2003, Budapest, co-organised by the World Bank and Open Society Institute was one of the most important meetings regarding Roma to date. Details of the conference are available on the Internet at http://lnweb18.worldbank.org/eca/ecshd.nsf/romadocbyunid/5acb3fb63019d944c1256d6a00438015?opendocum ent&start=1&count=5 28 elaboration, implementation and evaluation of policies addressing their situation and are thus denied their fundamental rights as equal citizens of the democratic polity. Following early post-1989 euphoria, Roma were increasingly excluded from government. For example, the first post-1989 Czechoslovak parliaments (including the Federal Parliament and the two republican lower houses) included 11 Roma. Following the break-up of the Czechoslovak state in 1993, that number had dwindled to zero Roma in parliament in the Czech Republic and in Slovakia. In most of the countries of Central and Eastern Europe, Roma are either not represented at all in parliament, or there are one or two parliamentarians in assemblies of generally well over one hundred persons and frequently several hundred. For a population that comprises often over 5 percent of the local population -- and generally its most marginalized segment -- these numbers are grossly inadequate.
Post-1989 parliaments in Hungary saw Romani participation there decline from three to one to zero by 1998. This trend has recently been reversed; four Roma were elected to parliamentary seats after several major parties placed Roma at electable positions on lists for the 2002 parliamentary elections. This is an important first step, worthy of emulation elsewhere. Hungary has also recently undertaken positive measures with respect to the inclusion of Roma in the national-level administration. Following elections in 2002, Mr. Laszlo Teleki was appointed as Political Secretary for Romani Issues in the office of the Prime Minister, Ms. Viktoria Mohacsi Bernathne took up the post of Ministry of Education's Commissioner for Equal Opportunities for Children of Romani Origin and in Disadvantaged Positions, and Ms. Eva Orsos Hegyesine became Deputy State Secretary in the Ministry of Health, Social and Family Affairs. All of them are Romani, and the positions to which they have been appointed carry considerable responsibility. While important, these are clearly only first steps; Romani participation in local administration in Hungary to date remains close to non- existent, with a grand experiment in "minority self-governments" -- advisory bodies to the local council established under a 1993 law -- acting more as a distraction than a mode of inclusion in policy making. In light of the particular importance of local government in issues of key importance to Roma -- issues such as the allocation of social housing, schooling issues, waste removal and the provision of basic goods and services such as electricity and running water -- the exclusion of Roma from local decision-making in Hungary and throughout the OSCE region is particularly alarming.
In many countries with sizable Romani populations, even rudimentary provisions for Romani inclusion in policy making are missing. In Serbia and Montenegro, only two Roma are in advisory positions within the Ministry of Education and the Ministry of Human Rights and Minority Rights respectively. In Croatia, we are not aware of any Romani person in the administration. In Macedonia there is one Romani parliamentarian, and a single Romani person in the national-level administration. In Bosnia, there is reportedly not one single Romani person holding any position in the administration at either local or national level. In the Czech Republic, there are reportedly only three Romani persons in the national-level administration (in the Ministries of Labour and Social Affairs, Ministry of Education, Youth and Sports and Ministry of Justice respectively) and these at relatively junior positions. In Romania, the offices of government at the county level have been assigned Romani advisors under a government strategy adopted in 2001, but the advisors lack substantial decision- making power and funding. In 2000, one Romani man was appointed as under-secretary of state, but his office is understaffed and is reportedly provided with insufficient funding.
The Slovak government maintains an Office of the Commissioner for Romani affairs, currently Ms. Klara Orgovanova. The office falls under the supervision of the Deputy Prime Minister for European Integration, Human Rights and Minorities, but was only placed there a number of weeks after the current government was formed in 2002, because the current Deputy Prime Minister made public a refusal to supervise Romani issues, and was only later persuaded to take on the portfolio. As the office is the only point within the administration explicitly addressing issues related to Roma, Ms. Orgovanova is called upon on any and all policy issues, but is more often charged simply with defending the government's record. Recently, after the period of a World Bank grant supporting her office expired, she was compelled to fire most of her staff.
29 Romani exclusion from public affairs is even more pronounced in Western Europe: the total number of public officials in European Union member states who state that they are Romani can literally be counted on the fingers of one hand.
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Without Romani inclusion in public life, policy measures addressing the very serious situation of Roma throughout the OSCE region are surely doomed to fail. However, even if full effective Romani inclusion were to be secured in practice, states would not be absolved of their human rights obligations under international law.
Extreme human rights violations of the rights of Roma have taken place in many countries of the OSCE region recently. Roma have been subjected to racially motivated violence by non-state actors in a number of countries including Bulgaria, Czech Republic, Poland, Romania, Russia, Serbia and Montenegro and Ukraine to name only a few. Moreover, police and other law enforcement officials have been implicated in the violation of the fundamental human rights of Roma in a number of the countries of the OSCE region in the recent past. Abuses include physical abuse in the open or in detention, violent police raids conducted with only a patina of legality or fully absent legal safeguards, harassment, racial profiling and the destruction or arbitrary confiscation of property. For instance, on 5 December 2002, the police raided the Orbic Romani neighborhood in the town of Buhusi, Romania, fatally shooting two Romani men and injuring four other Roma, including an elderly woman and child. In addition, police and other public officials have recently conducted abusive raids in Romani settlements in Greece, Italy, Russia and Slovakia.
In Russia, Roma have been subjected to torture in police custody, resulting in the death of a number of victims. When such abuses take place, law enforcement officials are rarely, if ever, prosecuted or even disciplined for their actions. Russian authorities have similarly failed to take sufficient measures to protect Roma against violent attacks by so-called “skinheads” and other vigilantes that have been reported with disturbing frequency in recent years. For instance, Romani women in Peri, Leningrad Region have reportedly often been targeted for violent attacks and harassment by "skinheads." According to victim and witness testimony provided to the ERRC, racist skinheads wait at the railway station and attack Romani women with spray canisters filled with tear-gas. “Skinheads“ frequently accompany their assaults with abusive language and threats such as “death to Gypsies.” When such attacks take place, perpetrators are rarely, if ever, punished.
In recent months, reports concerning the coercive sterilization of Romani women have come to the fore of concerns of the international community. At an OSCE Supplementary Human Dimension Meeting on Roma and Sinti in Vienna in April of this year, in a joint statement, the ERRC, the IHF and the Slovak Helsinki Committee noted: "Field research by the European Roma Rights Center conducted in 2002 and 2003 indicates that there is serious cause for concern with respect to allegations that sterilizations have in the recent past been performed on Romani women in Slovakia absent full and informed consent, as well as in relation to a number of other issues related to Romani women's health in Slovakia. Preliminary research undertaken with respect to Romani women's health issues in the Czech Republic and Hungary indicate that a number of the concerns raised in recent weeks with respect to Slovakia appear to be prevalent also in those countries. In a number of cases, we have established a failure to secure full and informed consent where sterilization or other invasive gynaecological procedure has been at issue. In some cases, women were simply told, after the operation, that they had been sterilized." An ERRC report on the issue is forthcoming.
With respect to the ongoing investigation of the issue of coercive sterilization of Romani women in Slovakia, efforts to secure justice for Romani victims of coercive sterilizations have so far failed. When pressed by august international review bodies, the Slovak government has to date responded with only vague and equivocal statements on the issue of the coercive sterilization of Romani women in Slovakia. For example, reviewing Slovakia's compliance with the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee recently noted that "Despite the oral and written answers provided by the delegation, the Committee remains concerned at reports of
30 forced or coerced sterilization of Roma women. In particular, the Committee regrets that in its written answers submitted after the oral consideration of the report, the State party does not clearly deny or admit breaches of the principle of full and informed consent but asserts that an investigation related to maternity wards and gynecology departments of 12 hospitals did not result in findings of infringements of 'medical indication' of sterilisation. The reference made, in the same submission, to 'the fact that not all administrative acts were fulfilled in every case' appears to amount to an implicit admission of breaches of the requirement of informed consent." The Committee went on to reiterate, as many have in this forum, that "The State party should adopt all necessary measures to investigate all alleged cases of coerced or forced sterilisation, publicise the findings, provide effective remedies to victims and prevent any instances of sterilisation without full and informed consent."
In many countries of the OSCE region, Romani children are schooled in racially segregated school facilities or arrangements, including schools or classes for the mentally disabled, schools or classes separated explicitly on grounds of race or ethnicity, special arrangements whereby Romani children are excused from regular school attendance and/or schools which are segregated as a result of their location in a ghetto or similarly excluded Romani settlement. Such schooling arrangements are invariably substandard, and deprive both Roma and non-Roma of the benefits of schooling in a multi- cultural environment. Racial segregation in schooling effectively ensures the continuing exclusion of Roma from enjoying a range of fundamental human rights above and beyond the right to education. Countries with racially segregated educational arrangements for Roma include Bulgaria, Croatia, Czech Republic, Denmark, Greece, Hungary, Romania, Serbia and Montenegro, Slovakia and Slovenia, among others:
• In Croatia, official government statistics show that in Medjimurje county, almost 60 percent of all Romani pupils attend separate Roma-only classes. Moreover, at least in one of the schools concerned, more than 88 percent of all Romani students are schooled in racially segregated classes. The teaching syllabus for the pupils attending separate Roma-only classes is significantly reduced in scope and volume compared to the standard curriculum. Legal complaints were filed on behalf of 15 Romani pupils attending schools in Macinec, Podturen and Orehovica (all villages located in the County of Medjimurje). They were ruled against and appealed to the Croatian Constitutional Court. As a result of the current status of domestic legal proceedings and the absence of any redress to date, a pre-application letter was filed by the ERRC to the European Court of Human Rights on 13 May 2003.89
• In Denmark, a complaint was filed in December 2002 against the placement of thirty Romani pupils into three segregated Romani classes in the Municipality of Helsingør, eastern Denmark. According to the complaint, Romani students were placed in the segregated classes without any pedagogical-psychological assessment. The complaint alleges that the definition of the Romani classes as neither normal classes nor special classes for children with special needs, but as classes for Romani children, based solely on their ethnicity, precludes children in these classes from the benefits offered to these various categories of classes. The result of this practice is the denial of equal educational opportunities for Romani children in Denmark. In July 2003, the Local State Council which is handling the complaint submitted the information to the Ministry of Education asking for clarifications. No response had reportedly been received as of August 2003.
• According to recent pronouncements by the Minister of Education, there are currently more than 700 racially segregated classes in Hungary. Recent efforts by Ministry officials to enroll a number of Romani children in a private school in the town of Jaszladany, established with the collusion of the local government apparently for the specific purpose of excluding Romani children, were opposed by local officials with such intensity that one person was reportedly physically assaulted in the course of the effort.
89 For further details of the case, see ERRC press release “ERRC Legal Action in Croatian School Segregation Case”, 13 May 2003, at http://www.errc.org/publications/letters/2003/croatia_may_13_2003.shtml 31 • In Slovakia, Romani children are segregated inter alia in “special remedial schools” for the mentally disabled and all-Roma ghetto schools. According to 2001 official data, 38 percent of all Romani students attended special remedial schools or classes for the mentally disabled during the 2001/2002 school year. The respective percentage of children from the Slovak majority was 2.5 percent, and for children of the Hungarian minority it was 2.8 percent.90 According to recent ERRC research, during the 2002/2003 school year, in many Slovak schools for the mentally disabled, more than half of the students were Romani, and in some schools for the mentally disabled, every single pupil was Romani.91
Large numbers of Roma in countries throughout the OSCE region including Croatia, Czech Republic, Greece, Hungary, Italy, Romania, Poland and Slovakia today live in a state of spatial segregation from non-Roma in extremely substandard conditions, in violation inter alia of the explicit ban on racial segregation provided by international law. In Greece, a 1983 Ministerial Ordinance explicitly requires that authorities block Roma from settling "near archaeological sites, beaches, landscapes of natural beauty, visible by main highway points or areas which could affect the public health (springs supplying drinking water, etc.)." Since 1995, the Slovak city of Kosice has been implementing a policy -- today close to fully successful -- of segregating local Roma in an extremely substandard housing estate called Lunik IX, on the outskirts of the city. Italy segregates Roma by government policy.92 In recent years, reports of the number of forced evictions of Roma has risen dramatically, particularly in Central and Eastern Europe. Where evictions take place from informal settlements, the destruction of property belonging to Roma is frequently reported. The Czech government has recently reported to the United Nations Committee on the Elimination of Racial Discrimination that:
“Although the Czech Republic has been systematically striving to prevent all forms of racial segregation, some municipalities have adopted, within their separate competencies, certain measures whose consequences show some symptoms of segregation. In their attempt to resolve the housing situation of persons who are facing social problems and do not pay the rent and services provided in connection with apartment lease, the municipalities provide to such persons alternative housing, frequently of poorer quality, called “bare flats” or hostels. A number of those facilities are in poor technical condition, lacking sufficient infrastructure and separated from other populated areas. Such facilities house segregated groups of the population suffering from accumulated social problems, who are thus excluded from the society. An alarming fact is the high proportion of Roma inhabitants of those facilities, which, in a number of cases, exceeds 80 percent.”93
Finally, in recent years, a number of countries including Belgium, Finland, France, Italy, Norway, Poland, Portugal, Sweden, Switzerland and the United Kingdom have collectively expelled Roma. Ms. Jelena Markovic, deputy minister on human and minority rights, Serbia and Montenegro, told an OSCE Human Dimension Meeting on Roma and Sinti in April 2003: "Germany will send back more than 50,000 of our citizens. More than 80 percent of the persons to be sent back from Germany are Roma. We have signed readmission agreements with 13 European Union countries."
Officials charged with the redress of human rights abuse of Roma are urged to take note of recent developments in the provision of justice to Romani victims:
90 Based on data included in Štatistický úrad Slovenskej republiky at http://www.statistics.sk/webdata/slov/scitanie/tab/tab3a.htm, as well as in Ústav informácií a prognóz školtstva, Separát štatistickej ročenky školstva SR 2001, Bratislava 2001. 91 See "Written Comments of the ERRC Concerning the Slovak Republic for Consideration by the UN Human Rights Committee at its 78th session, July-August 2003", at http://errc.org/publications/legal/HRC- Slovakia_July_2003.rtf 92 See the ERRC Country Report Campland. Racial Segregation of Roma in Italy, at http://www.errc.org/publications/reports/italy.rtf 93 CERD/C/419/Add.1, 23 May 2003, para. 38. 32 • In a recent landmark decision regarding a case in which Romani homes were destroyed by a mob in the presence of and with the acquiescence of state officials, the United Nations Committee Against Torture held that “[…] destruction of houses constitute, in the circumstances, acts of cruel, inhuman or degrading treatment or punishment.” Furthermore, the Committee made clear that states have a duty not only to refrain from such acts themselves, but also to prevent human rights violations between private individuals as well as to provide redress to victims of abuse perpetrated by non-state actors.94 The ruling resulted in a settlement in which the Montenegrin government awarded damages in the sum of 985,000 Euro to the pogrom victims.
• Other governments have also been made to pay -- literally -- for violating the fundamental human rights of Roma. In February 2002, the European Court of Human Rights fined Belgium close to 20,000 Euro for collectively expelling a group of Slovak Roma in Autumn 1999.95 Later the same year, the Italian government settled out-of-court for close to 150,000 Euro with a group of Bosnian Roma after the court ruled their complaint that they had been expelled collectively in 2000.96 The court has also on three occasions in recent years found Bulgaria in violation of provisions of the European Convention on Human Rights. Most recently, the Czech Republic agreed to pay approximately 27,000 Euro to Romani victims in connection with a case of forced eviction and other degrading treatment which took place in 1993. It is increasingly clear that international tribunals take a very dim view of the actions of public officials to date to counter Roma rights abuse.
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OSCE states must take immediate and effective measures to ensure that Roma enjoy full participation in the decision-making process, and in the design, implementation and evaluation of policy measures addressing issues of relevance to Roma, in particular by ensuring adequate levels of Romani inclusion in all levels of public administration. In addition, if states are to uphold -- and to be seen to be upholding -- their international law and OSCE commitments, officials must ensure that Roma are protected from abuses of their fundamental rights, and provided with adequate remedy in the event that such rights are violated.
94 Hajrizi Dzemajl et al. v. the Federal Republic of Yugoslavia, CAT/C/29/D/161/2000, at http://193.194.138.190/tbs/doc.nsf/MasterFrameView/b5238fc275369719c1256c95002fca4f?Opendocument. 95 Čonka v. Belgium, Judgment, 5 February 2002. 96 Sulejmanovic and others, and Sejdovic and Sulejmanovic v. Italy, Judgment, 8 November 2002. 33 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
TOLERANCE AND NON-DISCRIMINATION II:
Equal opportunities for women and men (Wednesday, 8 October 2003)
Discrimination against women in the labour market is a common trend throughout the OSCE region. Women face obstacles, by virtue of their sex, in accessing jobs, in being promoted, and in combining professional and family responsibilities. This assertion has been made on countless occasions and is factually well-documented. While the process of EU accession has prompted candidate countries to adopt new legislation in the field of equal opportunities in line with the acquis communautaire, and many of these developments are to be welcomed, it is important to hold states accountable to the context in which these changes are taking place. Specifically, it is important to ensure the aim of improving women’s status --in both the public and private spheres -- in the long term, and not simply use the implementation of equal opportunities policy as a vehicle for the short-term goal of joining the EU.
The following examples illustrate just a few of the barriers women face in the labour market and with regard to equal opportunities, and the failure of states to address in any meaningful way the widespread discrimination that women continue to face on account of their sex.
The Equal Opportunities Commission in the United Kingdom looked at 54 employment tribunal decisions in sexual harassment cases that were heard between 1998 and 2001. Thirty-four cases were successful; in three of those cases the person making the complaint was male. Nearly half of the people who were harassed did not file a formal complaint until after they had left their job, for a range of reasons including: embarrassment, fear of not being believed, not wanting to complain during a probationary period, and believing they should put up with it for the sake of their job. In three cases the person making the complaint was offered a transfer with reduced status. In one case the complainant was wrongly told the harasser had been disciplined, when in fact he had been promoted, and in another case the complainant was falsely accused of misconduct and dismissed. In over 90 percent of cases the person bringing the complaint had lost their job or resigned as a direct result of the harassment.97
The Equal Opportunities Commission also researched the extent of gender equality in pay structures and practices of larger organizations. The research found that while the majority of larger employers considered that they had arrangements in place to ensure that women and men receive equal pay, they were often limited in scope. More than one in five employers did not allow their employees to share information about their pay with colleagues. Thirty-six percent of large organizations (with 500 or more employees) had either conducted an equal pay review at the time of the research or planned to do so before the end of 2003. The majority (54 percent) had no current plans to do so. Where pay gaps were found, they were often quite substantial. The lowest organizational pay gap cited by survey respondents was five percent, and the highest was forty percent.98
Occupations remain strongly segregated by gender, even in larger organizations. For example, in nearly nine out of ten organizations, men comprised more than 60 percent of skilled manual workers.
97 Equal Opportunities Commission, UK. Analysis of Tribunal Cases, 2003. 98 Equal Opportunities Commission, UK. Monitoring Progress Towards Pay Equality, March 2003. 34 The UK has very unequal leave entitlements for women and men, and there is an insufficient connection between leave entitlements and childcare services. While the introduction of paid paternity leave from April 2003 is a highly welcome development, fathers are still left with very little leave entitlement compared with mothers. The UK also lags behind the rest of Europe in the extent to which it provides affordable, quality childcare. In contrast, Sweden has very generous paid leave entitlements, which are integrated with comprehensive child services. The family policy, which is based on the principles of universality and individual rights and is comprised of child and family benefits, parental insurance and high-quality daycare, has developed with the explicit objectives of the rights for children, equal opportunities for women in the workplace, and opportunities for each parent to take on family caring. In Sweden, approximately 70 percent of fathers take parental leave.99
A recent report by Human Rights Watch entitled “Ukraine: Women Facing Job Discrimination” showed that gender discrimination in Ukraine is cutting women out of the work force, and points to the inertia of the Ukrainian government in stopping the problem. In particular, the report describes how Ukrainian employers discriminate against women job seekers in the way they announce vacancies and interview applicants. Both government agencies and private businesses regularly request male applicants more frequently than female applicants in their job advertisements. Age and appearance requirements also exclude many women from jobs for which they are professionally qualified. Vacancy announcements with requirements such as “young woman from 18-30, attractive appearance” are common. According to LaShawn Jefferson, Executive Director of the Women’s Rights Division at HRW, “the job market in Ukraine reflects some highly archaic stereotypes about women’s capabilities. The government of Ukraine cannot claim to be a protector of women’s rights while letting them be consigned to the lowest-paying, lowest-prestige jobs.” Government officials, however, routinely deny that discrimination against women in the labour force is a problem in Ukraine.100 OSCE member states must go beyond lip service in the field of gender equality and take serious and substantial steps in addressing discriminatory legal frameworks, weak systems of implementation and the deep-rooted and socially accepted gender roles to which women are assigned.
In particular, the IHF recommends that OSCE member states: • Promote the integration of equal opportunities for women and men in all policies and activities in relation to education, vocational training and the labour market; • Promote women’s better integration into the labour market and their improved status in society; • Support clear anti-discrimination legislation that holds both institutions and individuals accountable for violations; • Support NGO research to identify discriminatory practices with a view to putting an end to unfair dismissal, unjustified special workings conditions, etc; • Support efforts to provide for equal opportunities to vocational training and re-training for women, especially after maternity leave or other absence from work; • Work to implement the principle of equality for women and men as regards, in particular, access to employment, remuneration, working conditions, social protection, education, vocational training and career development; • Encourage women to make use of these opportunities and support women in the advancement of their careers; • Encourage and assist in the reconciliation of parental and professional responsibilities; • To promote gender balance in decision-making processes and positions.
In addition, OSCE member states should work to ensure the following measures are implemented: • The principle of equal treatment ought to be the founding principle of all labour policies;
99 “Men and Women: Who Looks After the Children?” Report on three joint seminars organised by the Fawcett Society, the Equal Opportunities Commission and Fathers Direct in November 2002. 100 Human Rights Watch, “Ukraine: Women Facing Job Discrimination,” press release, 27 August 2003. The full report can be found at http://www/hrw/org/reports/2003/ukraine0803
35 • The principle of equal pay for equal work or work of equal value should be incorporated into labour legislation; • A definition of indirect discrimination should be included in the labour law and other relevant legislation; • Marital status should be included as a ground on which it is forbidden to discriminate against women; • Discrimination on grounds of sex should be prohibited in the conditions, including selection criteria, for access to all jobs or posts; • All laws and regulations contrary to the principle of equal treatment should be abolished; • Employees should be informed in writing by their employers of their labour rights; • Risks to women who are pregnant or breastfeeding should be assessed and workers should be informed of these risks and all measures to be taken concerning health and safety at work; • Women should not be hindered by unjustified special conditions (i.e. prohibition of night work and business trips in certain cases) and should be free to exercise their own choice and judgment with regard to their ability to work; • The judiciary should be trained to handle cases of discrimination based on sex; • An institution should be appointed to monitor discrimination against women and the promotion of equal opportunities; • Provisions on sexual harassment in the workplace should be included in the labour law; • Part-time work for both men and women should be encouraged as a means of assisting in the division of labour within the home, and both parents should be encouraged to take ‘parental leave’.
36 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
RULE OF LAW I:
Independence of the judiciary and the right to fair trial (Thursday, 9 October 2003)
An independent judiciary and the right to fair trial are prerequisites of the rule of law in every society. While these rights have continued to be violated particularly in the judicial systems of the former socialist states pending changes in legislation and practice, their breaches have been increasingly frequent with reference to the “war on terrorism” conducted by established democracies of the OSCE.
In Turkmenistan,101 the authorities have used the alleged November 2002 assassination attempt on the president as a pretext to arrest political opponents en masse. Though the new wave of repression has been extraordinary, it nevertheless reflects the harsh practices that human rights groups have documented in Turkmenistan throughout recent years. According to official reports, by February 2003, 67 people had been arrested on charges of involvement in the assassination attempt, although many believed the real figures to be higher. Fifty-nine people were convicted in closed trials, eight were given sentences of life imprisonment -- three were sentenced in absentia -- and 51 were given sentences ranging from five to twenty-five years of imprisonment.
The trials in Turkmenistan are known to fall seriously short of the minimum fair trial standards. Suspects of the November incident did not have attorneys of their own choosing, and some of the government-appointed attorneys reportedly expressed, publicly, disgust at the prospect of defending their clients. Many of the detainees were reportedly tortured and ill-treated in order to force a confession or to incriminate others. Many of those detained are family members of those associated with Turkmenistan's opposition-in-exile. Family members were denied access to their arrested relatives, and had no information about their well-being or whereabouts. Other relatives were threatened with arrest and evicted from their homes, and subjected to relentless harassment and surveillance.
In the past the Turkmen authorities have tortured dissidents and sentenced them to long prison terms. Among them is Mukhametkuli Aimuradov, convicted in 1995 of a number of charges, including "attempted terrorism", and sentenced to 12 years' imprisonment after a reportedly unfair trial. In December 1998, an additional 18 years imprisonment was added to his sentence in connection with an alleged prison escape attempt.
In Azerbaijan, the presumption of innocence has not been respected in many cases involving political prisoners. Under pressure from the Council of Europe, a re-trial was opened in 2002 in the case of three political prisoners -- Iskander Hamidov (sentenced to 12 years in prison), Alakram Hummatov (life imprisonment) and Rahim Qaziyev (his death sentence was later commuted to life imprisonment) -- to ensure that they receive a fair trial. However, the re-trials dragged on, with Qaziev’s trial continuing as of this writing, i.e. almost a year after opening. Local human rights defenders and the Council of Europe have expressed their disappointment at the outcome of the two completed re-trials because the procedures were not in compliance with European standards: for example, they took place
101 Based on Amnesty International (AI), Human Rights Watch (HRW), IHF, International League for Human Rights, Memorial Human Rights Centre, “Turkmenistan: Turkmen Leader should mark Birthday by Introducing Rule of Law,” 18 February 2003, at http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=3355 37 in a closed prison with limited access to the public; restrictions were imposed on video- and audio- taping of the hearings; and not all the necessary witnesses were heard (including the president of Azerbaijan). Moreover, the defendants were held in a closed prison (instead of a pre-trial detention facility) and were not released after their legal detention period passed because “they were previously convicted of a crime.” As a result, Qaziyev and Hummatov have been detained since 1993 (with a short break) and have spent two years on death row. Hamidov has been imprisoned since 1995. There remain hundreds of alleged political prisoners in Azerbaijan despite the fact that the Parliamentary Assembly of the Council of Europe on 26 June demanded their release by 1 September 2003.102
The judiciary in Moldova continues to face excessive political interference in its operation. Since the Communist Party came to power again in 2001, several measures have been taken by the authorities that have undermined the adequate administration of justice and have had a negative impact on the courts’ independence. The status of judges is insecure because of a re-appointment procedure, and recent cases of the dismissal of judges appear to have been politically motivated. Since the revision of the Law on the Judiciary and the Law on the Status of Judges in 2001, the president of the state has appointed court presidents and vice-presidents upon proposals from the Supreme Council of Magistrates. However, by law, the president now can reject the proposals of the Supreme Council of Magistrates without justifying his decision. The legal amendments changed the council into a consultative body with virtually no importance at all. The amendments run against the constitutionally guaranteed protection of the status of the judges and the immovability principle provided by article 2 of the Law on the Status of the Judge. The abolition of the life term of service for judges and the large number of other removals have placed additional pressure on judges. In addition, despite the urgent need for additional funding, the state budget lines for the judicial system have been reduced by 10 percent from the year 2001. The serious financial situation renders the judiciary even more vulnerable and endangers the separation of powers.103
While in Romania political interference in the work of the judiciary is still a cause for concern, new legal measures have already brought about improvements and some important changes are currently being discussed. The minister of justice still appoints and promotes judges as well as prosecutors, but a draft bill provides that this right should be vested only with the Magistrates’ Council. However, the bill providing for this and other changes that would strengthen the independence of the judiciary had not been submitted to the parliament as of this writing. Criticism by the European Court of Human Rights in the case of Pantea v. Romania (June 2003) and its award of considerable compensation to the plaintiff led to a change of the Penal Procedure Code, allowing the prosecutor to issue only a three- day arrest warrant (down from five to thirty days). However, the maximum three days still include the unacceptable form of 24-hour detention formulated as “leading to the police station,” plus 24 additional hours of legal detention in police custody.104
Some significant improvements with respect to pre-trial detention have also come into force or will do so in January 2004, including the newly introduced right to remain silent. Further, a Government Emergency Ordinance No. 58 (of 25 June 2003), which came into effect on 28 August, abrogated the right of the prosecutor’s office to file extraordinary appeals against final judgements in civil cases -- a right that has been criticized by the European Commission and the European Court, but which has continued. The right remains intact for criminal cases. As of this writing, some 400 extraordinary appeals are still pending.
In Lithuania, excessively long judicial proceedings violate defendants’ right to fair trial within a reasonable time. The well-known case of Antanas Bartusevicius, whose trial for “attempted fraud” was initiated in 1998, continues at the time of writing -- more than five years after it opened. As of August 2003, the case was being reconsidered by the Vilnius County Court after the Lithuanian Supreme
102 Human Rights Center of Azerbaijan, July 2003. 103 IHF and the Helsinki Committee for Human Rights of the Republic of Moldova, “Violations of the Freedom of Media and the Independence of the Judiciary in Moldova,” 10 June 2003, at http://www.ihf- hr.org/viewbinary/viewhtml.php?doc_id=3841. 104 APADOR-CH/Romanian Helsinki Committee to the IHF, 11 September 2003. 38 Court on 23 April 2002 returned the case to that court on the ground that it had failed to investigate the case fully and impartially. Moreover, the case was mainly based on evidence gathered by the “provocateur model”, i.e. the security services allegedly provided money to incite Bartusevicius to take a bribe. This reportedly happened without approval by a prosecutor, in violation of a precondition for such undercover activities stipulated by Lithuanian law. Moreover, European case law sets strict limits for the use of police incitement to commit an offense, which appear not to have been met in this case.105
In Uzbekistan, trials are carried out in gross violation of international due process and fair trial standards. Persons on trial are for the most part presumed guilty, and judges routinely admit confessions extracted under torture as evidence, which often serve as the sole basis for convictions. In particular, judges tend to be prejudiced against members of the political and religious opposition, as well as human rights defenders. Lawyers hesitate to risk defending victims of human rights violations, as doing so may cause them to be expelled from lawyers associations. Court rulings in favor of defendants are often not implemented.106
In Turkey, the fifth “harmonization package” of January 2003 provided for the right to retrial to persons whose original Turkish convictions or sentences were condemned unfair by the European Court of Human Rights.107 The reform provided for the retrial of former pro-Kurdish Democracy Party (DEP) deputies Hatip Dicle, Orhan Dogan, Selim Sadak and Leyla Zana, who were all convicted on 8 December 1994 by the Ankara State Security Court to 15 years in prison for “membership in an armed gang” (under article 168 of the Penal Code). On 17 July 2001, the European Court of Human Rights ruled that the four former parliamentarians had not received a fair trial at the Ankara State Security Court. The re-trial started in February 2003, and by the end of August, seven hearings had taken place. The International Commission of Jurists welcomed some improvements in the implementation of due process standards as the re-trial proceeded, but criticized serious problems related to equality of arms between the prosecution and the defense and the independence and impartiality of the tribunal. For example, in most hearings, the defense has not been allowed to call witnesses or examine and cross- examine the witnesses of the prosecution; its submissions (e.g. for the release of the defendants) have not been taken down verbatim, while those of the prosecution have been; the defense has not been allowed to question its own witnesses and the statements of its witnesses have not been taken down verbatim, unlike those of the prosecution; and no communication between the defendants and their attorney has been allowed during court session and breaks. Moreover, the defendants remain imprisoned, suggesting that the principle of the presumption of innocence has been violated and that the court still regards its previous sentence as valid.108 In August, the court adjourned until 15 September.109 The slow pace of proceedings and the pertaining irregularities raise serious about doubts of the commitment of Turkey to abide by the ruling of the European Court of Human Rights.
In Greece, the Mixed Jury Criminal Court of Patras set a dangerous precedent in July by acquitting a police officer of the alleged rape of a 19-year-old Ukrainian woman in February 1998. The court concluded that the young woman, who was a victim of trafficking, had consented to sexual intercourse with the policeman, although neither she nor any other witnesses were present at the trial to testify as the court had failed to summon them. In its verdict the court failed to effectively consider the written statements of the complainant from the preceding judicial investigations. Regrettably, the police
105 See the case of Teixera de Castro v. Portugal (Application No 00025829/94, 1 June 1998) at http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=0&Action=Html&X=902102235&Notice=0&Noticemode= &RelatedMode=0 . Information on Lithuania comes from the Civil Defence Fund, March and August 2003. 106 IHF, Human Rights in Uzbekistan – a Record that Jeopardizes Security, 2 March 2003, at http://www.ihf- hr.org/viewbinary/viewdocument.php?doc_id=334 107 Turkish Daily News Online, “Reform package paves way for retrial of former DEP members,” 21January 2003, at www.turkishdailynews.com/old_editions/01_21_03/dom.htm#d7, Turkish Daily News Online, “Parliament paves way for retrial of former DEP deputies,” 24 January 2003, at www.turkishdailynews.com/old_editions/01_24_03/dom.htm#d8 108 The International Commission of Jurists, Retrial of Leyla Zana and Three Other Kurdish Politicians Before No. Ankara State Security Court, 18 July 2003, at http://www.icj.org/IMG/pdf/REPORT_18_July_Hearing.pdf 109 Turkish Daily News, 16 August 2003. 39 officer was only given a suspended sentence for breach of duty, and the four co-defendants in the case were simply ordered to pay small pecuniary fines (up to 4,800 EUR) for their involvement in the trafficking offences. A partial motion of cassation is pending before the Supreme Court. This case only came to trial five years after the initial claim was made.110
The campaign against terrorism has put at stake the willingness of OSCE states to fulfil their international commitments, particularly the very principles of the rule of law. For example, in the United States, violations of the rights of more than 600 people at Guantánamo Bay, Cuba, and at other locations around the world, is a serious cause for concern. Some detainees have been held for more than a year in de facto incommunicado detention without the right to legal counsel of their own choice or a trial or contact with the outside world. The plans to try selected detainees before military commissions applicable only to non-US nationals would create a second-class justice system with lower due process standards but with the power to hand down death sentences.111 Moreover, while refusing to apply the principles of the Third Geneva Convention regulating prisoners-of-war (POW) status to those captured in the combat area (particularly with respect to Taliban detainees), the US government has started to circumvent due process standards by designating as “enemy combatants” individuals captured outside an armed conflict or without any direct links to such conflicts. For example, in June, the Justice Department announced that US military would hold without charge Ali Saleh Kahlah al-Marri, a Quatari national living in the US despite the fact that charges against him have been dropped. In military detention he will not have access to a lawyer of his own choice.112
The Copenhagen Meeting of the Conference on the Human Dimension of the CSCE in 1990 laid down a series of due process standards also guaranteed by the ICCPR. These standards include, among other things, the right to equal protection of the law (5.9.), prompt access to a court of law (5.15), a fair and public hearing by a competent, independent and impartial tribunal established by law (5.16), as well as the presumption of innocence until proved guilty (5.19). These rights have been confirmed by several other OSCE documents.
The IHF urges all OSCE participating states to take immediate measures to bring laws in their countries up to the standards they have internationally committed themselves to, and to ensure that these laws are implemented in practice.
Further, the IHF wishes to underscore that under no circumstances should OSCE member states adopt measures that curtail non-derogable rights. All extraordinary measures adopted in the context of the fight against terrorism should be prescribed by law and essential to a democratic society. Such measures should be proportionate, interpreted strictly in favour of the rights at issue and be subject to periodic review to ensure that their continued application is strictly necessary. States should, under all circumstances, be guided by the human rights principles contained in international law (see also IHF recommendations on counter-terrorist measures).
110 IHF and Greek Helsinki Monitor, “Greek Court Allows Rape to Go Unpunished, Sets Dangerous Precedent,” 14 July 2003, at http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=4608 111 AI, United States of America – The Threat of a Bad Example: Undermining International Standards as “War on Terror” Detentions Continues, 19 August 2003. 112 HRW, “U.S.: U.S. Again Uses Enemy Combatant Label to Deny Basic Rights,” 30 May 2003, at http://www.hrw.org/press/2003/06/us062303.htm
40 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
RULE OF LAW I:
Anti-terrorism measures (Thursday, 9 October 2003)
As stated in an IHF report published in April this year, entitled Anti-terrorism Measures, Security and Human Rights, Developments in Europe, Central Asia and North America in the Aftermath of September 11,113 the attacks on the United States on 11 September 2001 shocked the world and led to a perceptible sense of fear and vulnerability in many countries of the OSCE region. Two years after the attacks, the repercussions are still being felt throughout the world and are likely to have lasting implications. This is particularly true with regard to human rights protection. One of the most serious casualties of the post-September 11 environment is the erosion of civil and political rights in the OSCE region.
In response to the tragedy, the member states of the OSCE, both individually and collectively, immediately turned their attention to a re-evaluation of their security. In the months that have passed since the tragedy, states have, inter alia, increased the powers of law enforcement and intelligence institutions, including to interrogate and detain persons, to intercept private communications and to conduct searches of private homes and personal property without the normal procedural safeguards; have tightened border controls that impede access to their territory and adopted new, restrictive asylum and immigration measures that may limit access for bona fide asylum seekers; and have authorized various registration and profiling schemes that appear to target certain groups solely because of their race, ethnicity or religion. Some of these measures are necessary and appropriate. However, many of the measures that have been adopted appear to be disproportionate to the threats posed or the goal of enhancing national security.
A number of these measures violate fundamental human rights that the OSCE member states are committed to uphold, including some which are absolute rights even in times of emergency. The IHF has therefore developed below a series of recommendations to the OSCE as an institution, and to OSCE member states, concerning the protection of human rights in the context of the fight against terrorism: The IHF urges the OSCE Ministerial Council to endorse the guidelines on counter-terrorism measures and human rights adopted by the Committee of Ministers of the Council of Europe and to actively advocate these guidelines among the OSCE member states. The IHF also calls on the Ministerial Council to monitor counter-terrorism efforts adopted by member states throughout the OSCE region with a view to ensuring that they respect the rule of law and human rights.
In particular, the IHF is concerned that ODIHR’s role as a “clearing-house for information on a state of emergency” within the context of the Moscow document obligations is not adequate given the present situation in the OSCE region. The IHF therefore calls on the OSCE to strengthen the role that ODIHR plays in terms of monitoring and reporting publicly on the measures that member states take in the context of the fight against terrorism and the extent to which they do or do not comply with OSCE obligations. ODIHR should be provided with adequate resources to fulfil this task.
113 At http://www.ihf-hr.org/documents/doc_summary.php?sec_id=3&d_id=390 41 ODIHR reports on states’ compliance should be taken up by the Permanent Council at regular intervals, with concrete recommendations being made regarding the steps states should take to improve their compliance.
ODIHR should compile information on states’ best practices – where member states were able to address their security concerns without encroachment on human rights and civil liberties and make these available to all member states.
In addition, the IHF calls on the OSCE to ensure that its member states address the substantive recommendations outlined below:
• Under no circumstances should member states adopt measures that curtail non-derogable rights.
• All extraordinary measures adopted in the context of the fight against terrorism should be prescribed by law and strictly necessary in a democratic society. Such measures should be proportionate, should be interpreted strictly in favour of the rights at issue and be subject to periodic review to ensure that their continued application is strictly necessary. In all circumstances, states should be guided by the human rights principles contained in international law.
The Principle of Legality
• All criminal laws, including those adopted to deal with “terrorist acts” and “terrorist groups” should be as precise, unequivocal and unambiguous as possible regarding the conduct that is proscribed. Steps must be taken to ensure that such laws do not lend themselves to arbitrary or discriminatory enforcement infringing protected rights such as freedom of association, peaceful assembly, expression or manifestations of conscience or belief.
• Laws should exclude “guilt by association” for those who may share the views of or associate with people accused of being involved in terrorist activities.
• A judicial body should approve all sanctions foreseen for terrorist activities and those subjected to sanctions should have effective means to challenge them in a court of law.
• There should be a regular follow-up and parliamentary review of the implementation of terrorism definitions irrespective of whether a sunset clause, limiting the period of implementation, has been laid down in the relevant legislation or not. If there is any indication that a definition may have been applied arbitrarily it should be revised.
Non-discrimination and Protection against Racism
• States should ensure that any measure they adopt to counter terrorism fully respects the principle of equality before the law and does not amount to discrimination on grounds such as religion, nationality or ethnicity. States should instantly amend, rescind or nullify any laws and practices that have the effect of creating or perpetuating discrimination on such grounds.
• States should take effective measures to protect persons or groups who may be subject to discrimination, hostility or violence as a result of their religious, national or ethnic affiliation, including by ensuring that such abuses are effectively investigated, prosecuted and punished.
• States should take effective measures to promote tolerance among their citizenry and in their action consistently distinguish between those few individuals who commit terrorism in the name of a certain religious or other identity and the vast majority of peaceful representatives of such groups.
42
Detention/Due Process Protections
• States should ensure that all prisoners have the right to challenge the legal basis of their detention before an independent tribunal (habeas corpus).
• States should ensure that every prisoner has prompt access to counsel.
• States should ensure that every prisoner is charged and brought to trial within a reasonable time period or released.
• States should desist from using immigration detention, material witness warrants, and enemy/unlawful combatant designations in order to bypass the protections accorded to criminal suspects in domestic and international law.
• There should be a presumption in favour of public hearings and trials. Decisions to hold hearings and trials in secret should be made on a case-by-case basis by the judge in charge of the proceedings, and should be subject to review.
• The US government should determine without delay the status of the Guantanamo detainees before a competent tribunal, with a presumption that those who have yet to be adjudicated have POW status.
Torture and Ill-Treatment
• States should reaffirm that torture is prohibited under all circumstances and that all states have an obligation not only to refrain from torture or cruel, inhuman and degrading treatment, but also to prevent such abuse from occurring. Member states of the OSCE should take steps to remind all branches of law enforcement in their respective countries that any resort to torture or cruel, inhuman and degrading treatment or punishment, even in the fight against terrorism, is strictly prohibited and will be prosecuted to the full extent of the law.
Asylum
• All asylum measures should be based on the premise that everyone has the right to seek and enjoy in other countries asylum from persecution. The principle of non-refoulement must be strictly enforced.
• States should refrain from measures that unduly impede access to asylum procedures. In particular, states should make certain that measures adopted to combat illegal immigration do not undermine refugee protection.
• All asylum seekers should – without any discrimination on grounds such as religion, ethnicity or status – be granted an individual and thorough examination of their asylum claims. This examination should take place within a fair procedure that safeguards basic procedural rights such as the right to legal counsel, the right to be heard and the right to appeal.
Extradition, Expulsion and Deportation
• Any decision to extradite, expel or deport a foreign citizen must only be made after the case has been exhaustively reviewed in light of international human rights standards. The decision should be subject to appeal before the individual is forced to leave the country and should not be immediately enforceable.
43 • States are prohibited from expelling, deporting or extraditing any individual to a state where he or she has a reasonable fear of torture or cruel, inhuman or degrading treatment, including by removal to a third state. States should also refrain from measures and practices that weaken this prohibition.
• The IHF calls for a strict prohibition against any person being extradited or otherwise sent to a country where he or she risks torture or cruel, inhuman or degrading treatment or punishment unless the sending government agrees to strictly monitor the fate of the person being expelled or extradited EVEN IF the receiving government gives formal assurances that the person will not suffer mistreatment once returned to its territory. If torture or cruel, inhuman or degrading treatment or punishment is a persistent problem in a country such bilateral arrangements do not offer an individual sufficient protection against mistreatment.
Freezing Measures
• Criteria used for inclusion on UN Sanctions Committee, EU and other lists of individuals and organizations designated for asset freezing should be publicly available.
• Any decision to freeze the assets of persons or organizations in national jurisdictions should be subject to judicial review. Where possible counsel for such persons and organizations should be given access to the information on which the decision to freeze the assets is based.
• In order to protect the reputations of listed persons and groups, their names should be kept confidential until such time as they have had an opportunity to challenge the listing decision. The Canadian system could provide a model.
• Lists of persons and organizations subject to asset freezing should be subject to periodic review, and there should be a presumption against the re-inclusion of a name on the list in the absence of compelling intelligence or evidence.
• The UN Sanctions Committee on Afghanistan should introduce guidelines for applications for release of funds by listed entities on humanitarian or emergency grounds, if they have not already done so at the time of this publication.
• The right to apply for the release of funds on humanitarian grounds that exists in some national jurisdictions should be replicated in all member states which freeze funds.
Freedom of Expression and Information
• Media organizations must have full access to sources of information, including government officials, prisoners and conflict zones.
• There must be a presumption in favour of public and media access to court proceedings. Any exclusion must be decided on a case-by-case basis by the judge concerned and be strictly necessary.
• The work of journalists and news organisations must be explicitly exempted from surveillance and traffic data retention.
• The confidentiality of journalists’ sources must be respected at all times.
• States must refrain from applying pressure, directly or indirectly, on media organisations to curb their reporting of events or refrain from criticism of government efforts against terrorism.
44 Privacy
• Surveillance and searches of private property should require court authorisation on a case-by- case basis.
• There should be a presumption against the retention of traffic data beyond any period required for billing purposes. Internet Service Providers should only be compelled to retain traffic data in relation to specific investigations and not on a wholesale basis.
• Personal data collected as a result of anti-terrorist operations through surveillance, data collection and traffic data retention should not be used for general law enforcement or any other purpose.
• Computerized data collection and screening initiatives should be carefully assessed against international privacy standards and domestic data protection laws to ensure full compliance both before introduction and during use.
Central Asia/Chechnya
• Member states should use their cooperation with the Central Asian republics on counter- terrorism issues as an opportunity to effectively hold these governments accountable for abuses of basic political and civil rights that they commit under the pretext of enhancing national stability and security.
• Member states and international organisations should effectively link economic and other assistance to the Central Asian republics to human rights concerns. This can be done by setting minimum requirements of progress that the governments must achieve in different fields of concern in order to continue to receive assistance. The requirements should include benchmarks aimed at ensuring that independent media can function, political opposition can be active, a true civil society can exist, citizens can peacefully exercise their religious beliefs, and the rule of law can prevail.
• Likewise member states should use their cooperation with Russia within the framework of the international counter-terrorism coalition as an opportunity to press for an end to the large-scale human rights violations occurring in Chechnya. In particular, the member states should strongly urge the Russian government to show commitment to its international human rights obligations by allowing international monitoring of the situation in Chechnya (including by renewing the mandate of the Assistance Group of the OSCE) and by adopting measures to improve the process of accountability for abuses committed by its troops.
Impunity
Compliance with international human rights and refugee norms need not result in impunity. Countries that are concerned about the possible impunity of terrorist suspects should:
• Prosecute such persons under their own legislation or send them to another country where they can be prosecuted in accordance with due process standards, but will not face torture, ill- treatment or the death penalty.
• As regards crimes of a “most serious nature” that have been committed after 1 July 2002, a state may also refer them to the International Criminal Court if it is incapable of investigating or prosecuting them itself. Therefore, all states should sign and ratify the Statute of the International Criminal Court and pass any necessary implementing legislation to make such referrals possible.
45 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
RULE OF LAW I:
Turkmenistan (Thursday, 9 October 2003)
Issues related to the rule of law and fair trial within the OSCE region cannot be addressed without raising the alarming human rights situation in Turkmenistan. Although OSCE states are informed of the severe violations that have taken place in the country in recent years, especially following the comprehensive report of the OSCE Rapporteur on Turkmenistan, none of the concerns have been adequately addressed by the Turkmen government. The IHF is concerned about the very low profile given to this report, which has identified outrageous practices in the aftermath of the alleged assassination attempt against the Turkmen president. We would like to take the opportunity to remind participants at this OSCE meeting of the flagrant violations that have been, and continue to be committed in Turkmenistan, and of worrisome developments that have recently taken place.
A few facts bear repeating. In the wake of the alleged assassination attempt against President Niyazov, a wave of arrests was carried out. According to official information, 67 people had been arrested as of February 2003. The true number, however, was believed to be much higher. There were also numerous reports indicating that detainees were subjected to ill-treatment and torture.114
At least 59 people were subsequently put on trial in legal proceedings that seriously violated international due process standards. The trials were held behind closed doors and were typically completed within only a few days. The suspects were, from the onset of the proceedings, presumed guilty and were not allowed to have lawyers of their own choosing. Some of the government- appointed lawyers reportedly expressed disgust at the thought of defending their clients. Eight persons were sentenced to lifetime imprisonment, and the rest received prison terms ranging from 5 to 25 years.
In a number of cases the suspects were shown "confessing" their guilt in grand television spectacles, after which they were verbally denounced by a live audience.
On 29 December, the Supreme Court convicted men they considered responsible for plotting the assassination attempt and sentenced them to the maximum 25 years in prison. The next day, however, the country’s highest legislative body increased the sentence to lifetime imprisonment.115 Boris Shikhmuradov, convicted for being one of the masterminds of the alleged attempt was arrested in Ashgabad on 25 December. Three days later he was shown "confessing" his involvement in the assassination attempt on television. During his speech, which clearly was dictated, he, inter alia, denounced the opposition movement as a group of "bandits" and described President Niyazov as "a gift to the Turkmen people." Many observers noted that he spoke in a slow and shaky voice, as if he had been under the influence of drugs, and appeared to have been beaten.116
114 IHF, “Totalitarian Repression in Turkmenistan,” 13 January 2002; Amnesty International, Human Rights Watch, IHF, International League for Human Rights, Memorial Human Rights Centre, “Turkmen leader should mark birthday by introducing rule of law,” 18 February 2003. 115 Ibid. 116 Human Rights Watch, “Turkmenistan: Conviction of Opposition leader Condemned,” December 31, 2002; RFE/RL Turkmen Report, 20 January 2003. 46
Against this background of blatant violations of the right to fair trial, and with the People’s Council (Khalk maslakhaty) meddling with judicial powers and decisions, the new constitutional amendments adopted in August appear to exceed even the worst expectations. These constitutional changes, which are inherently at odds with basic international standards on the separation of powers, went largely unnoticed. In the absence of any public debate, the People’s Council adopted changes to the Constitution, making itself a new power structure that can be described as a supreme permanent authority, to which legislative, executive, and judicial powers are subordinated.
The amendments stripped the 50-member Turkmen Parliament of the little formal authority it enjoyed previously.117 Until now, the 2,507-member Council had met once a year; from now on it will be in permanent session as a “permanently functioning supreme body of popular government having the powers of supreme state authority and government.” The Council is comprised of the president, members of parliament, the chairman of the Supreme Court, the prosecutor general, government members, representatives of various levels of regional and local administration, heads of parties and public organizations, as well as members of the Elder’s Congress.118 The People’s Council is headed by President Niyazov.
These amendments are the latest in a series of legal changes that have gradually eroded the democratic principles of the first Turkmen Constitution adopted in 1992 after the country gained independence. The changes have served, and will increasingly serve, as a vehicle through which the human rights record of Turkmenistan will degenerate from bad to worse.
In the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, the participating states declared that among those elements of justice which are essential to the full expression of the inherent dignity and of the equal and inalienable rights of all human beings are (par. 5) (…) a form of government that is representative in character, in which the executive is accountable to the elected legislature or the electorate (5.2). In violation of these principles, and considering that the people of Turkmenistan have not been able to participate in free and fair elections, the recent changes in the highest governance of the country appear to be in clear violation of international principles related to the separation of powers and democracy. Moreover, national legislation regulating elections, democratic institutions and the rule of law should be in harmony with international standards.
For the above-mentioned reasons, the Helsinki Initiative of Turkmenistan and the IHF propose that the OSCE appoint legal experts to review the Constitution of Turkmenistan and other recently adopted legislation with a view to establish whether they are in conformity with internationally accepted legal standards. The results of such a review and proposals for improvements should be submitted as soon as possible to the authorities in Turkmenistan.
The failure of international organizations to react to the adoption of the amended Turkmen Constitution could be interpreted by the authorities as a sign of silent approval. Consequently, it is feared that further repressive measures could be formally justified on the basis of the amended Constitution.
We call upon the OSCE to continue to give due attention to the people of Turkmenistan, and to take all available measure with the aim of putting an end to the unprecedented repression of political opponents and entire families, including the elderly, women and children, that has taken place since 25 November 2002.
117 RFE/RL, Bruce Pannier, “People’s Council Assumes Duties of Parliament,” 20 August 2003 118 Interfax, 20 August 2003 47 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
RULE OF LAW II:
Capital punishment (Thursday, 9 October 2003)
The practice of capital punishment in OSCE member states is fundamentally at odds with the commitments undertaken at the Second Conference on the Human Dimension of the CSCE, recognizing the aim of abolishing the death penalty as expressed in the Second Optional Protocol on the International Covenant on Civil and Political Rights (ICCPR). Nevertheless, several OSCE countries have retained the death penalty in their legislation, despite grave concerns related to the execution of innocent people, failure to respect fair trial standards, pervasive racial bias and the lack of solid evidence that the death penalty in fact deters crime.
Provisions on application of the death penalty for ordinary crimes can still be found in the penal codes of Belarus, Kazakhstan, Kyrgyzstan, Tajikistan, the United States of America, and Uzbekistan. Countries that retain the death penalty for exceptional crimes, such as crimes under military law or during times of war, include Albania, Bosnia-Herzegovina, Greece, Latvia, and Turkey. Armenia and the Russian Federation have retained the death penalty in their legislation, but have established a practice of not carrying out executions and have not executed anyone in the last ten years.119
In Uzbekistan, executions are regarded as state secrets, in contradiction of the country’s commitment under article 17.8 of the 1990 Copenhagen Document, which obliges participating states of the OSCE to "make available to the public information regarding the use of the death penalty." As a result of this practice, prisoners’ families are sometimes only informed of the execution months after it took place. In addition, they are not informed of the place of the execution or told where their relatives are buried.120 Reports of the execution of mentally ill persons raise particular concern. In June 2003, for example, Muzaffar Mirzaev was executed although he allegedly suffered from mental illness and despite an intervention by the United Nations Human Rights Committee two months earlier, urging the authorities to put his execution on hold.121 The Chairman in Office of the OSCE has made a plea in all relevant countries for a moratorium on the death penalty and ratification of the UN Treaty Against Torture.122
The use of capital punishment is also considered a state secret in Tajikistan, which makes the collection of reliable statistics extremely difficult. According to available information, in the last twelve months some 240 persons have been sentenced to the death penalty and 100 executions have been carried out.123 The use of the death penalty as a form of punishment is even more distressing given the fact that international fair trial standards are not respected in the country.
119 Amnesty International (AI), Abolitionist and Retentionist Countries, at http://web.amnesty.org/pages/deathpenalty-countries-eng 120 AI, “Uzbekistan: Death Penalty/Fear of Imminent Execution,” 9 May 2003, at http://web.amnesty.org/library/Index/ENGEUR620042003?open&of=ENG-UZB 121 AI, “Uzbekistan: Further Information on Death Penalty/Fear of Imminent Execution,” 7 July 2003, at http://web.amnesty.org/library/Index/ENGEUR620092003?open&of=ENG-UZB 122 See “OSCE Chairman in Office says continued dialogue needed in Central Asia,” press release, 17 July 2003. 123 EurasiaNet, “Tajikistan: Rights Group Says Executions Increasing,” 3 September 2003, at http://www.eurasianet.org/departments/rights/articles/eav030803.shtml 48 The USA has the highest rate of executions per capita in the OSCE region.124 In addition, the USA is at the top of the world list of executions of juvenile offenders. In the nine years between 1994 and 2002, Amnesty International recorded 19 executions of child offenders in five countries – a tiny fraction of the worldwide total of 22,588 executions recorded in 70 countries during the same period. A further execution was carried out in April 2003, bringing to 20 the number of recorded executions of child offenders since 1994. Thirteen of the 20 executions were in the USA.125 Of particular concern in the USA is the systemic racial bias in the application of the death penalty at both the state and federal level.126 African Americans constitute only 12 percent of the national population, yet they account for more than 40 percent of the country's current death row inmates, and one in three of those persons executed since 1977. In addition, killing a white person is far more likely to lead to a death sentence than killing a person of another ethnicity: while 51 percent of all murder victims are white, 80 percent of perpetrators on death row have been sentenced for killing a white person.127 Between 1995 and 2000, 75 percent of the federal cases in which juries recommended the death penalty involved black or Latino defendants.128
In addition to racial bias and the execution of minors, the question of executing persons with mental retardation has been at the forefront of the debate on the death penalty in the USA. In 1999 and 2000, the U.N. Commission on Human Rights adopted resolutions urging nations with the death penalty not to impose it “on a person suffering from any form of mental disorder,” a term that includes both the mentally ill and people with mental retardation. In 2001, Human Rights Watch wrote that the USA may be the only constitutional democracy whose law expressly permits the execution on persons whose cognitive development has been limited by mental retardation, and that carries out such executions.129 After years of outcry from the international community, in June 2002 the United States Supreme Court finally ruled that executing persons with mental retardation was unconstitutional. The ruling came too late for the 40 people with mental retardation who were executed since 1977, however, and for many more people with borderline mental retardation who were also executed during this time.130
The IHF strongly opposes the continued application of the death penalty as a form of cruel, inhuman, degrading and irrevocable punishment and urges all countries, in line with international human rights standards, to take measures towards its total abolition.
The IHF is particularly concerned that the risk that a miscarriage of justice can lead to the execution of innocent persons, combined with strongly-evidenced racial prejudice, the inefficiency of the death penalty as a deterrent to crime, and serious misgivings in many cases about the fair trial standards that lead to a sentence of capital punishment, all put into question the judiciousness of applying the death penalty . The execution of minors and persons with mental retardation is especially inhumane and in violation of international human rights commitments.
124 RFE/RL Newsline, 6 August 2003, at http://www.rferl.org/newsline/2003/08/5-NOT/not-060803.asp 125 AI, “The exclusion of child offenders from the death penalty under general international law,” July 2003, at http://www.amnestyusa.org/abolish/reports/exclusion_child_offenders.html#_Toc38098226 126 For more information, see American Civil Liberties Union, Race and the Death Penalty, 26 February 2003. 127 AI, United States of America: Death by Discrimination – the Continuing Role of Race in Capital Cases, 24 April 2003, at http://web.amnesty.org/library/index/engamr510462003 128 For more information, see http://www.deathpenaltyinfo.org 129 Human Rights Watch, Beyond Reason: The Death Penalty and Offenders with Mental Retardation, March 2001. 130 AI, “Death Penalty Facts: Mental Retardation,” at http://www.amnestyusa.org/abolish/mental_retardation.html 49 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
RULE OF LAW II:
Torture, ill-treatment and police misconduct (Thursday, 9 October 2003)
Torture, ill-treatment and police misconduct continue to be the most widespread human rights violations throughout the OSCE region. While most reports of abuse have been received from the Central Asian member states, Turkey and the Caucasus region, information of police misconduct, often with racial and discriminatory undertones, is common in nearly all OSCE member states. Impunity for the perpetrators of the abuses is a serious problem, and facilitates all forms of human rights abuse.131
Torture and ill-treatment constitute a gross violation of human rights, leaving permanent mental and physical marks on the victims, and the situation in the Central Asian OSCE states is especially worrisome. In particular, persons accused of membership in outlawed organizations such as Hizb-ut- Tahrir have frequently been subjected to arbitrary arrests and abuse while in custody.
In Uzbekistan, torture is widely used in detention facilities to extract confessions, and courts frequently hand down harsh sentences, including capital punishment, based solely on such confessions. Human Rights Watch (HRW) has documented ten torture-related deaths in custody in the past 18 months.132 In his March 2003 report on his trip to Uzbekistan, UN Special Rapporteur against Torture, Theo van Boven, reported on numerous cases of torture with the aim of extracting self- incriminating confessions. The mission also found that complaints against such ill-treatment are only rarely investigated, and that courts investigating such complaints disregard evidence, such as medical reports or registry records, judging in favour of the officers allegedly responsible for the abuses. The UN special rapporteur was unable to adequately carry out a visit to the Jaslyk colony, a prison camp that is notorious for ill-treatment, torture and extremely poor conditions.133
At least four out of twelve persons standing trial at the time of writing for alleged association with Hizb-ut-Tahrir have reportedly been tortured and ill-treated. On 28 July 2003, one of the defendants testified to having been beaten in detention at the Shaikantur District Department of Internal Affairs and said that he signed self-incriminating testimony as a result. The judge has reportedly ignored the allegations of torture put forth during trial.134 In another case, Chingiz Suleimanov, who was arrested on 8 May 2003 for participating in a fight in January, told the judge that an officer had beaten him and banged his head against a wall in the police station. The judge’s reported response to the allegations was that “the police do not beat.” On 25 June Suleimanov was sentenced to five years in prison. After
131 See IHF, Human Rights in the OSCE Region: Europe, Central Asia and North America – Report 2003 (Events of 2002), June 2003, at http://www.ihf-hr.org/documents/doc_summary.php?sec_id=3&d_id=1322 132 Human Rights Watch (HRW), “Uzbekistan: Torture Death in Prison,” press release, 3 June 2003, at http://www.hrw.org/press/2003/06/uzbek060303.htm 133 Report of the UN Special Rapporteur against Torture, Theo van Boven, at http://www.undp.uz/sections/files/51/03107661.doc 134 World Organisation Against Torture (OMCT), “Uzbekistan: Torture of Persons Accused of Membership With the Hizb-ut-Tahrir,” 8 August 2003, at http://www.omct.org/displaydocument.asp?DocType=Appeal&Language=EN&Index=3481 50 the verdict, he was taken to the Akhangaran District police station, where he was beaten again, as punishment for telling the court that he had been tortured.135
Real or alleged affiliation with Hizb-ut-Tahrir apparently has similar consequences in other Central Asian states as well. For example, 13 members of the organisation were arrested in April in Kyrgyzstan as they were distributing leaflets, and held in incommunicado detention. Their family members were not informed about their whereabouts. It is feared that they, too, were subjected to torture or ill-treatment.136
In Turkmenistan, the security services widely practice torture to extract confessions and to incriminate others. The authorities have used the alleged attempt on the life of President Niyazov on 25 November 2002 as a pretext for massive repressions against dissidents, their relatives and friends. One of these many cases involves Amanmukhammed Yklymov, who was first reported to have lost sight in his left eye and hearing in his left ear, his left arm was reportedly broken and he was hardly able to move. There were allegations that a plastic bag was put over his head to restrict his breathing, and that he was suspended by his arms. He was also forced to wear a gas mask, to which the air supply was cut off. The court reportedly ignored Yklymov’s allegations that he was tortured in custody. He reportedly died in custody March as a result of torture.137
In Kazakhstan, the Collegium of the Supreme Court on 18 December 2002 upheld the death sentence of 27 year-old Mikhail Vershinin, 26 year-old Evgeniy Turochkin and 35- year-old Sergey Kopay, all convicted of murder and sentenced to death in September 2001. There are grave concerns that the three men were tortured in order to force them to confess to the crimes of which they were convicted.138 On a more positive note, the Terektin District Court of West Kazakhstan Oblast convicted two police officers to two years suspended sentence for torturing suspects. A year ago, the officers beat four men with sticks and put a plastic bag over the head of one of the suspects in order to obtain a confession. This judgment was an outcome of the first court case in Kazakhstan related to an accusation of torture included in the Kazakh Criminal Code in January 2003.139 While welcoming the conviction, the IHF notes that the sentence hardly reflects the severity of the crime, and the environment of impunity requires that further measures be taken.
Allegations of torture and ill-treatment have also been received from Georgia. In the first three months of 2003, some 137 prisoners with bodily injuries were taken from the Ministry of Interior’s temporary detention isolator to the penitentiary department. A 30-year-old man, who was taken to the fifth jail of Tbilisi, stated that he had been tortured in the Didube-Chugureti police department. A doctor found marks behind his ears, which were considered to be wounds obtained from torture by electricity. In another case, the head of Expert Center of the Justice Ministry, Maia Nikoleishvili, applied on 5 March for expert investigations with regard to allegations by a citizen that he had been beaten by the police. The victim claimed that the police had threatened to kill him if he even tried to involve a lawyer or an expert.140
135 OMCT, “Uzbekistan: torture and unfair trial of a minor, Chingiz Suleimanov,” 8 August 2003, at http://www.omct.org/displaydocument.asp?DocType=Appeal&Language=EN&Index=3480 136 OMCT, “ Kyrgyzstan: Arrest, incommunicado detention and risk of torture faced by 13 members of the Hizb- ut-Tahrir,” 10 April 2003, at http://www.omct.org/displaydocument.asp?DocType=Appeal&Index=3079&Language=EN 137 Amnesty International (AI), Turkmenistan: A clampdown on dissent, 12 September 2003. 138 IHF, “Open Letter to the President of the Republic of Kazakhstan Mr. Nazarbayev,” 25 February 2003, at http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=3357 139 Kazakhstan International Bureau for Human Rights and Rule of Law, “Police Officers Condemned For Tortures First Time Ever,” Monitoring of Kazakhstan International Bureau for Human Rights, Newsletter, 10 August 2003. 140 Human Rights Information and Documentation Center, “Prisoner was Tortured by the Police”; “Tortured Citizen is Afraid of Naming his Identity”; and “137 Prisoners Were Taken to Prison with Bodily Injuries in 2003,“ Monthly Bulletin; No. 3-4, March-April 2003, at http://ishrg.tripod.com/newsletters/3-4-49-50.doc 51 In Azerbaijan, the abusive police raid in Nardaran in June 2002, where one person was shot dead and several injured, was followed by prolonged demonstrations against the police’s actions. In the early hours of 5 February 2003, five buses with as many as 200 masked police in camouflage uniforms arrived in Nardaran and launched an assault on some 60 local protesters conducting a protest action in a tent on the main square of Nardaran. The demonstration began as a response to the earlier police violence against villagers, and the consequent detention of several of them. The protesters were severely beaten, and eight people were arrested. The police reportedly used an unidentified gas, and then threw smoke cartridges. The police then fired into the air and began beating the protesters with truncheons and the butts of automatic guns. Seventeen people were injured, six of them severely.141
In Turkey, torture and ill-treatment in prisons and detention facilities remains commonplace. There are numerous reports of beatings, sexual abuse, electric shocks, hosing with cold water and death threats. During the first three months of 2003, 183 cases of torture during detention were reported, and another 33 cases in prisons.142 Women are frequently subjected to rape and other sexual abuse. One victim reported being detained at Istanbul police headquarters for four days of interrogation in March 2002 without access to legal counsel, during which time she was stripped naked, blindfolded and sprayed with cold water through a water hose forced into her vagina. Another woman reported being detained and interrogated; she was accused of being linked to an illegal organization. During her detention, she was allegedly stripped naked, hosed with cold water and a policeman forced a truncheon into her anus, allegations that were later supported by medical records.143
The situation in the so-called F-type prison facilities remained unresolved. The solitary confinement in this type of prisons can, in and of itself, be seen as a form of cruel, inhuman or degrading treatment. In addition, the solitary confinement poses an increased threat of increased ill-treatment or torture in the facilities. The amendment of the “Anti-Terror Law” provides for only very limited opportunities for social activities, and fails to adequately protect prisoners from isolation, with the psychological strains it brings with it.144 Since the introduction of the F-type prison system, hunger strikes against it lead to 104 deaths by the end of 2002.145
Developments in the harmonization process in order to accede to the European Union still fall short of EU requirements, according to EU Enlargement Commissioner Guenter Verheugen in March 2003.146 Since then, on 19 June, an important formal step in combating torture was taken, when the government abolished a criminal procedure code provision that denied detainees held for offences under the jurisdiction of State Security Courts the right to legal counsel for the first forty-eight hours of their detention.147 While this progress is important, the decision needs to be implemented in practice.
In Greece, unlawful shootings by police, beatings and ill-treatment, in some cases amounting to torture, do not just constitute a few isolated incidents, but are a relatively widespread practice. While the majority of victims of such violations are Roma, immigrants -- often Albanians -- and asylum- seekers, members of the majority Greek population are not spared. A significant number of victims, including children, have sustained severe injuries resulting from physical ill-treatment that required medical treatment or even hospitalization. Detainees have alleged ill-treatment during arrest and in
141 IHF and the Human Rights Center of Azerbaijan, “Excessive Force Again Used Against Protesters in Azerbaijan,” 2 July 2003, at http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=3354 142 Human Rights Association of Turkey, “The Evaluation Report of the Months January-March 2003,” press release, 23 April 2003, at http://www.ihd.org.tr/press/press20030423.html 143 HRW, Human Righst Watch World Report 2003 – Events of 2002, at http://www.hrw.org/wr2k3/europe13.html 144 International Federation for Human Rights, Turkey: Torture, Still a Routine Practice, May 2003, at http://www.fidh.org/europ/rapport/2003/tr361a.pdf 145 Human Rights Association of Turkey, “19 December Fight for Human Rights in Prisons and Solidarity Day,” press release, 19 December 2002, at http://www.ihd.org.tr/press/press20021219.html 146 RFE/RL, “EU: Union Doubles Aid To Turkey, Warns Against Iraq Incursions,” Weekday Magazine, 26 March 2003, at http://www.rferl.org/nca/features/2003/03/26032003153957.asp 147 HRW, “Turkey Abolishes Controversial Law Denying Detainees' Access to Lawyer,” Human Rights Watch Monthly Email Update, May/June 2003, at http://www.hrw.org/update/2003/05.html#6 52 police custody. Slaps, punches and kicks are the most frequent complaints. However, in some cases detainees claim that they have been beaten with truncheons or pistol or rifle butts -- allegations often supported by convincing medical evidence. Other allegations refer to verbal, sometimes racist, abuse and in some cases, sexual threats. In 2002, two detainees alleged that police subjected them to electric shocks. Official statistics relating to complaints of torture and ill-treatment confirm almost total impunity for police officers in cases of abuse.148
The United States has incarcerated more than 650 people at Guantánamo Bay, Cuba, and more persons at other locations around the world. Detainees are held in legal limbo, arguably in contradiction with international covenants.149 The interrogation methods used in the facilities have raised concerns: there have been reports of sleep deprivation, prolonged standing or kneeling, being kept in painful or awkward positions, blindfolding, and some signs of beating.150 In April the US military acknowledged that at least three children, ages 13 to 15, were among the detainees in Guantanánamo, in violation of international children’s rights standards regarding detainees. The children were held in virtual isolation, did not have access to lawyers, had limited access to their families, and were subjected to interrogations.151
In addition, thousands of allegations of police abuse in the United States have been reported annually. Reports include unjustified shootings, beatings, chokings and rough treatment. Regrettably however, most abuses go unpunished.152 The high-profile case of a 16-year-old African-American who was beaten on the hood of a police car in July 2002 -- an attack which was caught on videotape -- has yet to lead to a conviction, as the jury in the trial of the case was unable to reach a verdict.153
Wherever Roma live, they are potential victims of police misconduct. Abusive police raids on Romani settlements have been frequent in several OSCE countries, for example in Greece, Italy, Romania, Russia and Slovakia. In addition, Roma in Greece are frequently subjected to ill-treatment and abuse, in some cases amounting to torture. In recent years, there have been at least three deaths of Roma due to excessive use of firearms by law enforcement officials. Most such incidents have gone unpunished, or, at best, only cursory investigations have been conducted, failing to take adequate disciplinary action against the police (see also IHF/ERRC intervention on Roma and Sinti).154
On 3 October 2002 in Romania, three gendarmes reportedly sprayed a Romani man standing at a market talking to a vendor, and his six-month-pregnant wife and baby girl, with teargas in their faces. They then beat the man with truncheons all over his body for about an hour both on the street and at a police station. Afterwards, he was fined for not having his identification card with him and released.155
The IHF would like to point to the formal commitments of the OSCE states to prevent torture and ill- treatment and recognize other international measures to this end. This includes the requirement to
148 IHF, AI, “Misconduct in the Shadow of Impunity,” press release, 24 September 2002, at http://www.ihf- hr.org/viewbinary/viewhtml.php?doc_id=3535. The full IHF/AI report Greece: In the shadow of impunity. Ill- treatment and the misuse of firearms is posted at http://www.ihf- hr.org/documents/doc_summary.php?sec_id=3&d_id=417 149 See intervention on the Rule of Law, Independence of the Judiciary and the Right to a Fair Trial. 150 AI, United States of America – The Threat of a Bad Example: Undermining International Standards as “War on Terror” Detentions Continues, 19 August 2003, at http://web.amnesty.org/aidoc/aidoc_pdf.nsf/Index/AMR511142003ENGLISH/$File/AMR5111403.pdf 151 HRW, “U.S.: Guantánamo Kids at Risk,” press release, 24 April 2003. 152 IHF, Human Rights in the OSCE Region: Europe, Central Asia and North America – Report 2003 (Events of 2002. 153 Los Angeles Times, “ Police Abuse Case Will Be Retried,” in latimes.com, 31 July 2003, at http://www.latimes.com/news/local/la-me-inglewood31jul31000428,1,7327375.story 154 Greek Helsinki Monitor and the European Roma Rights Center (ERRC), Cleaning Operations – Excluding Roma in Greece, April 2003. 155 ERRC, “Violent Police Raid Leaves Two Roma Dead and Four Injured in Romania,” Roma Rights, 1-2/2003, at http://errc.org/rr_nr1-2_2003/snap34.shtml. 53 ensure that allegations of torture are investigated properly. Impunity of abusive officials is a fundamental problem that needs to be addressed immediately.
The aftermath of the terrorist attacks on 9 September 2001 has lead to a general decrease in the respect of human rights standards in the OSCE countries. While denouncing all forms of terrorist activities, the IHF underscores that fundamental freedoms and rights of all people may not be undermined under the pretext of the fight against terrorism.
The IHF would furthermore like to underline the importance of practical measures taken by governments as the foremost weapon against torture. These include: adequate training of law enforcement and prison officials; immediate and thorough investigations into allegations of torture; punitive measures against all perpetrators of torture; abolition of incommunicado detention; making confessions extracted under torture inadmissible in courts of law; and public statements by authorities strongly denouncing the use of torture and ill-treatment. The IHF urges all governmental bodies to take such measures swiftly in order to put an end to the ill-treatment of persons everywhere.
54 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
HUMANITARIAN ISSUES AND OTHER COMMITMENTS:
Trafficking in human beings (Friday, 10 October 2003)
Trafficking in human beings is a gross violation of human rights and the failure to take action against it is a violation of commitments by OSCE member states. Governmental, non-governmental and international organisations alike are well-versed in the root causes and the multi-faceted approach that is required to combat the grim reality that hundreds of thousands of women and children face each year. It is well-known that social and economic inequality provide fertile ground on which trafficking flourishes. It is well-known that poverty, gender inequality, unemployment, discrimination in the labour market, corruption and disrespect for human rights collectively ensure that the cycle is not broken. It is well-known that legislative change and political will operate as considerable obstacles to fighting this crime. Despite this awareness however, and repeated calls within the OSCE framework for concerted action, the fight against trafficking continues to be overshadowed by political indifference, the implication of states and law enforcement in the trafficking cycle and a failure to grasp the ramifications of systemic gender inequality and socially accepted violence against women.
There are no reliable estimates about the traffickers’ profits, although a study made by Bosnian NGO LARA states that the average monthly income from prostitution for the owner of a nightclub that employs five women is a minimum of US$10,000. Reportedly, the price of one woman on the market in Timisoara, Romania, is approximately US$50-200, and the price in the country of destination is ten times higher.156
The majority of women and girls that are trafficked from Moldova come from rural areas; over 10% are under the age of eighteen, and some are as young as 12 years old. In Chisinau, there are more than 250 brothels and sex is also sold at train and bus stations. Seventy percent of students think that work in the sex industry abroad is a good way to earn money.157
According to a report by the International Organization for Migration (IOM) entitled “Deceived Migrants from Tajikistan: A Study of Trafficking in Women and Children,” although misleading miscellaneous job proposals, fake marriages agencies and other methods usually involving advertisement in public papers or places do exist, nearly all of the respondents in the survey who became victims were led into the trap by friends or acquaintances or even relatives who acted as recruiters. One 23-year-old woman from Tajikstan stated: “My acquaintance promised me a good job in a shop. Instead of it I was forced to service 15-20 men per night in a brothel in Dubai and pay 1/3 of my earnings to her. I don’t trust anybody anymore.158”
156 UNICEF, UNOHCHR, OSCE-ODIHR, Trafficking in Human Beings in South-Eastern Europe: Current Situation and Responses to Trafficking in Human Beings in Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the Federal Republic of Yugoslavia, the Former Yugoslav Republic of Macedonia, Moldova and Romania, 2002, page 9. 157 Ibid, pp 26-27. 158 International Organization for Migration, Deceived Migrants from Tajikistan: A Study of Trafficking in Women and Children, July 2001. 55 The living and working conditions in the Kosovo sex industry are abhorrent, exploitative and akin to slavery. Only 13.5 % of women received regular payments for the services they provide. Fifty-five percent have been beaten by traffickers, and 55 % have been sexually abused. The majority of girls were forced to have unprotected sex, 40 % of women used condoms only occasionally. Thirty-six percent were denied medical care, and only 10 % had regular medical care. According to the police, the majority of customers are local men, although members of the international community constitute a sizeable 40 % of the clientele, mostly KFOR soldiers.159
Human Rights Watch, in the November 2002 report “Hopes Betrayed: Trafficking of Women and Girls to Post-Conflict Bosnia and Herzegovina for Forced Prostitution” found evidence, including internal IPTF reports, interviews with monitors, and verbatim transcripts of testimony by five trafficking victims, that IPTF monitors in Bosnia and Herzegovina purchased the services of trafficking women in brothels. Some monitors also arranged for trafficked women to be delivered to their residences. There was also evidence that at least three IPTF monitors purchased women and their passports from traffickers and brothel owners.160 Such behaviour is indefensible and seriously undermines the legitimacy of anti-trafficking initiatives, as well as the credibility of the international community in implementing them.
The IHF would also like to express concern that the tier ratings of the U.S. State Department’s Annual Trafficking in persons Report may have a negative impact on the referral of trafficking victims by police and border authorities. The report details international and U.S. efforts to end trafficking in persons, to protect and help victims, and prosecute those who treat people like commodities or keep them in slave-like conditions. It has been criticised inter alia for its failure to meaningfully evaluate anti-trafficking efforts, its inconsistent use of statistics, its failure to weigh and condemn harmful immigration policies and its credit to countries without trafficking legislation.161 While is some countries in South-Eastern Europe there does seem to be an encouraging trend as the number of identified and assisted victims of trafficking decrease annually, and undoubtedly the efforts of police and border authorities to more aggressively combat trafficking are an important factor in this change, it is difficult to believe that incentives for corruption of policing officials that tempt them to condone or participate in trafficking (including poor wages, intimidation/pressure by peers and supervisors, and lack of political will in their government and societies) have dramatically diminished in just a few years. The IHF is therefore concerned that as long as the tier ratings of the report are, for many, a solid indication of where a country ranks in the fight against trafficking, they may operate as a disincentive to police and border authorities, who may refer fewer victims of trafficking in order to give the impression that actual numbers are decreasing, and therefore rank higher in the U.S. State Department Report.
Concerns continue to be raised about the role of state authorities in the trafficking cycle, as well as the lack of an adequate and appropriate response to victims’ needs. NGOs have reported that police in Bulgaria, Moldova and Ukraine have allegedly extorted bribes from trafficked women, their families or others in order to continue to investigate against reported traffickers. Police may also collude with traffickers, for example in forcing women back to brothels from which they escaped, receiving sexual favours and bribes in return for such ‘cooperation.’ Courts in many post-communist countries often do not detain alleged traffickers pending trial, while these same courts generally detain others accused of a wide range of less serious crimes. Judges also routinely violate the confidentiality surrounding victims and witnesses in trafficking cases, exposing them and their families to threats from criminals and other pressures.
The IHF is concerned that many countries, while condemning the trafficking of women and girls as a violation of human rights and pledging to take steps to combat it, in fact fail to take the problem
159 Ibid, p 98. 160 Human Rights Watch (HRW), “Hopes Betrayed: Trafficking of Women and Girls to Post-Conflict Bosnia and Herzegovina for Forced Prostitution.” November 2002. 161 See HRW, “Letter to Colin Powell on the Trafficking in Persons Report 2003,” June 2003, available at http://www.hrw.org/press/2003/06/us062703ltr.htm 56 seriously. Once again the IHF emphasises that unequivocal political will, effective means of implementation, comprehensive measures for assisting victims and a greater overall commitment to ending corruption and impunity are critical if we are make progress in our joint efforts. In order to uphold the credibility and efficiency of the fight against trafficking, the IHF urges the OSCE member states to respect the OSCE Action Plan to Combat Trafficking in Human Beings, and in particular to:
• To ratify and implement the UN Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention Against Transnational Organized Crime. In particular, OSCE member states should recognise that the Protocol is not limited to trafficking for the purposes of sexual exploitation; it also refers to forced labour or services, slavery or practices similar to slavery, servitude and the removal of organs.
• To support awareness raising activities and to ensure they are conducted within the broader framework of gender equality.
• To take steps to address the root causes of trafficking, in particular the inferior status of women in society and lack of labour opportunities.
• To ensure there are adequate mechanisms for witness protection, in particular relating to the protection of privacy and identity of trafficked persons, as well as measure such as appropriate housing, counselling and information in a language the victim can understand, medical, psychological and material assistance, and employment, education and training opportunities in accordance with Article 6 of the UN Protocol.
• To strengthen regional and international cooperation in the fight against trafficking.
• To increase efforts in the fight against trafficking in countries of destination.
57 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
HUMANITARIAN ISSUES AND OTHER COMMITMENTS:
Migration, refugees and displaced persons: EU (Friday, 10 October 2003)
The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol remain at the heart of international refugee law. At the 1999 Human Dimension meeting in Istanbul, the OSCE states reaffirmed their commitment “to respect the right to seek asylum and to ensure the international protection of refugees” as set out in these instruments. However, although officially committed to honoring the Refugee Convention and its protocol, numerous OSCE states pursue policies that in effect undermine the letter and spirit of the Convention. In the aftermath of September 11, such restrictive policies have increasingly been justified by security concerns.
At the EU level, the process of establishing common asylum policies as set out in the 1999 Amsterdam Treaty162 continues to be burdened by security concerns and migration control efforts. In several cases, common legislation considered by the EU Council has been significantly watered down at a late stage of the negotiations, thus raising concern that the harmonization process will be allowed to occur on the basis of the lowest common denominator rather than on the basis of a scrupulous observance of international standards and best national practice. For example, the directive on minimum standards for the reception of asylum seekers that was agreed in December 2002 leaves wide discretion to the member states regarding the implementation of several key provisions, including in terms of the right of asylum seekers to have access to health care and employment.163 Likewise the latest version of the proposal for a directive on asylum procedures that is available as of this writing allows for a low level of harmonization through extensive use of member states’ discretion, e.g. regarding procedural guarantees and the detention of asylum seekers. The European Council on Refugees and Exiles (ECRE) has expressed serious concern about this trend, and has cautioned that it may result in policies that go beyond what is permitted under international refugee and human rights law. 164
Some EU member states have also taken controversial initiatives for common policies aimed at enhancing border control and reducing the number of asylum seekers in the EU. For example, earlier this year, the United Kingdom proposed that so-called transit processing centers and regional protection areas be created outside EU borders in order to ensure “better management” of migration flows. These proposals were widely criticized by human rights activists and legal experts. As a result of opposition by some EU member states, the UK withdrew the first of the two proposals on the eve of
162 According to article 63 of the EU Treaty, as amended by the Amsterdam Treaty, the EU Council shall within a period of five years from the entry into force of the treaty (i.e. by May 2004) adopt legislation on criteria and mechanisms for determining which member state is responsible for considering an asylum application; minimum standards on the reception of asylum seekers; minimum standards with respect to qualification for refugee status, subsidiary forms of protection and temporary protection, and minimum standards for asylum procedures. 163 European Council on Refugees and Exiles (ECRE), “ECRE information note on the Council Directive 2003/9/EC of 27 January 2003 Laying down Minimum Standards for the Reception of Asylum Seekers, June 2003, at http://www.ecre.org/eu_developments/reception/infonote.shtml. The directive is available at http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/l_031/l_03120030206en00180025.pdf 164 ECRE, “Summary comments on the amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status,” May 2003, at http://www.ecre.org/statements/apcsummapr03.shtml 58 the June 2003 EU Summit in Thessaloniki. However, as regards the latter proposal, the EU leaders agreed to allow individual countries, in cooperation with the UNHCR, to carry out pilot projects.165 According to plans, EU member states will establish protection areas in refugee-producing regions to accommodate asylum seekers as an alternative to accommodating them within the EU. While details of the scheme are unclear as of this writing, civil liberties organizations have expressed grave concern that the proposal represents an attempt to circumvent international refugee protection obligations by shifting responsibility for asylum seekers to poor countries that are not able to ensure adequate protection.166
Moreover, on the national level, many EU member states continue to pursue restrictive asylum policies that impede the EU harmonization process and go against the declared EU aim of establishing a common European asylum system based on the full and inclusive application of the Geneva Convention.167 For example, in April 2003, Human Rights Watch published a report criticizing key elements of the Netherlands asylum policies for violating international refugee and human rights standards. During the last few years, the Netherlands has successfully implemented new policies to increase efficiency of the process for examining asylum claims and to enhance migration control in the country. However, these policies have been implemented at the cost of the protection needs of refugees. Accelerated procedures are now routinely used to process asylum claims, including in cases involving complex legal or factual issues. As a result, the right of asylum seekers to a fair procedure is seriously undermined. Moreover, migrant children are regularly treated in a manner that conflicts with the obligation of the Netherlands always to act in the best interest of the child. For example, asylum seeking children are often interviewed without a lawyer or guardian present and are asked questions that are improper in light of their age and maturity. It is also a matter of concern that asylum seekers whose claims have been rejected in the first instance, even if in accelerated procedures, or who have applied for asylum for the second or third time are refused all forms of public support during the time their claims are reviewed.168
The accelerated procedure for refugee determination introduced in Finland in July 2000 provides that an asylum seeker whose application is considered “manifestly unfounded” or who is deemed to come from a “safe” country of origin or of asylum can be deported within eight days after he/she has received a negative decision from the Directorate of Immigration. Out of 2000 negative decisions made in year 2002, well over half were reached with reference to the accelerated procedure. Thus, it appears that what began as an exceptional measure has now become the norm. This impression is reinforced by the fact that the present government is trying to integrate the “accelerated procedure” into the new Aliens’ Act, which is currently being considered in the Finnish Parliament. Several human rights organizations have voiced concern as to whether the accelerated procedure is in
165 Article 26 of the Presidency Conclusions from the Thessaloniki Summit, June 19-20, 2003 reads: “[T]he European Council notes that a number of Member States plan to explore ways of providing better protection for the refugees in their region of origin, in conjunction with the UNHCR. This work shall be carried out in full partnership with the countries concerned on the basis of recommendations from the UNHCR.” The conclusions are available at http://ue.eu.int/newsroom/makeFrame.asp?MAX=&BID=76&DID=76279&LANG=1&File=/pressData/en/ec/76 279.pdf&Picture=0 166 See Amnesty International, “Unlawful and unworkable – Amnesty International’s views on proposals for extra-territorial processing of asylum claims,” April 2003, at http://web.amnesty.org/aidoc/aidoc_pdf.nsf/Index/IOR610042003ENGLISH/$File/IOR6100403.pdf; British Refugee Council, “Unsafe heavens, unworkable solutions,” May 2003, at http://www.refugeecouncil.org.uk/downloads/policy_briefings/unsafehav_lv_may03.pdf; British Refugee Council, “Joint NGO letter to Prime Minister warns the UK on World Refugee Day to maintain its commitments to protecting refugees,” June 2003, at http://www.refugeecouncil.org.uk/news/june2003/relea125.htm 167 Compare Presidency Conclusions from the EU Summit in Tampere in 1999, at http://www.europarl.eu.int/summits/tam_en.htm 168 Human Rights Watch (HRW), Fleeting Refuge: The Triumph of Efficiency over Protection in Dutch Asylum Policy, April 2003, at http://www.hrw.org/reports/2003/netherlands0403/ See also IHF, Human Rights in the OSCE Region, Europe, Central Asia and North America, Report 2003 (Events of 2002), at at http://www.ihf- hr.org/documents/doc_summary.php?sec_id=3&d_id=1322.
59 compliance with international human rights commitments such as the Geneva Convention Relating to Status of Refugees or the European Convention on Human Rights. In 2003, only 14 out of 2,503 application filed to the Directorate of Immigration were granted asylum: some 500 persons were allowed to stay for other reasons.169
Human rights groups have also expressed grave concern regarding widespread and grave violations of the rights of migrants in Greece. The authorities often fail to inform migrants of their rights, refuse to provide them with asylum application forms and give them misleading information, and sometimes undocumented migrants or asylum seekers have been tried without benefit of legal counsel and adequate interpreters and sentenced to imprisonment or deportation after trials lasting only a few minutes. Adding to these problems, there is a serious lack of reception centers for asylum seekers in the country, which has resulted in a situation where many asylum seekers are homeless throughout the asylum process.170
Moreover, since November 2001, the Greek government has actively enforced a protocol agreed with Turkey on the reciprocal return of illegal immigrants. According to this protocol, Greece and Turkey will each return undocumented third-country nationals who arrive on their territory via the other country. The Greek government initially stated that the protocol would not be applied to persons seeking asylum. However, there are credible reports that Greece has implemented the protocol so as to forcibly return undocumented migrants arriving by sea from Turkey without giving them an opportunity to file an asylum application or, in some cases, even refusing to accept asylum applications that individuals have attempted to file. According to the Greek Helsinki Monitor, hundreds of persons fleeing persecution may have been forcibly turned back to Turkey, and from Turkey probably deported to their countries of origin, since November 2001.171
Following September 11, the Spanish government stepped up its fight against illegal immigration. Given the problems that have been documented within the Spanish asylum and immigration system, this development gives rise to serious concern. Human rights groups have repeatedly criticized the Spanish authorities for implementing the country’s immigration laws in an inconsistent and unfair manner, which has resulted in frequent and serious violations of immigrants’ procedural rights.172
The situation is particularly acute in the Canary Islands where undocumented migrants who arrive by boat from the North African coast are regularly detained and deported without being informed of their rights, granted adequate translation or legal assistance or having their cases individually considered. For the same reasons, individuals who arrive in the islands without documentation face great barriers to accessing the asylum system. In addition, even if they are able to apply for asylum, individuals without adequate identification sometimes have their asylum claims rejected before they have been given a proper review, in violation of the right to a full and fair asylum process and possibly the principle of non-refoulement.173 In particular, asylum seekers who come from countries with which Spain has a readmission agreement,174 including Morocco and Nigeria, are often arbitrarily denied asylum.175
169 Finnish Helsinki Committee to the IHF, 18 August 2003. 170 Greek Helsinki Monitor, Violations of asylum seekers’ rights 2001-2003, March 2003, at http://www.greekhelsinki.gr/bhr/english/organizations/ghm/ghm_08_03_03.doc; and appeal by 45 NGOs in connection with the General Assembly of the Euro-Mediterranean Human Rights Network in June 2002, at http://www.hrw.org/campaigns/migrants/docs/greece-detainees.pdf 171 It should be noted that Turkey, although a party to the Refugee Convention and its protocol, only recognizes refugees from Europe. 172 See, for example, HRW, Discretion without bounds – the arbitrary application of Spanish immigration law, July 2002, p. 2, at http://www.hrw.org/reports/2002/spain2/ 173 HRW, Spain – the other face of the Canary Islands: Rights violations against migrants and asylum seekers, February 2002, at http://hrw.org/press/2002/02/canary0222.htm 174 The readmission agreements facilitate the deportation of illegal immigrants who arrive on the territory of one of the parties from the other party. 175 HRW, Spain – the other face of the Canary Islands, Rights violations against migrants and asylum seekers. 60 The Austrian government has been working on a radical overhaul of the country’s asylum system since the autumn of 2001. Should the draft asylum law be adopted in the fall of 2003 as planned, asylum seekers would face additional hurdles. It would be impossible to file an asylum claim at the Austrian border, if one comes overland, because of the draft law’s new interpretation of “safe third countries”; asylum applicants would (in most cases) not be allowed to submit any additional arguments for the appeal of a negative decision; and they could be deported following a negative decision even if their appeal would be pending. Asylum seekers from a list of "safe countries of origin" would be automatically rejected. Moreover, while it is necessary to speed up the asylum determination procedure, the new plans to accelerate the proceedings could seriously undermine an in- depth and personal investigation of all cases.176
There are currently no provisions to guarantee public assistance to asylum seekers during the asylum process, and as a result, about two thirds of all asylum seekers are not granted such assistance.177 Moreover, on the basis of a September 2002 Interior Ministry directive, asylum seekers from EU accession countries and the European Economic Area have been deprived of the right to public assistance altogether, while asylum seekers from a number of other countries, including Russia, Azerbaijan, Turkey, Yugoslavia and Nigeria, lost the right to public assistance if their asylum applications were rejected in the first instance.178 In September 2003, the Supreme Court ruled that every asylum seeker must be guaranteed public assistance during the whole asylum procedure, a decision which is expected to force authorities to change their practice.
The UN High Commissioner for Refugees (UNCHR) on 25 August 2003 criticized sharply the treatment of asylum seekers in Austria and noted that nowhere else in the EU but in Austria and Greece are asylum seekers left virtually with no public care at all.179
The IHF calls on EU member states as well as all other OSCE states to ensure full and active implementation of the Refugee Convention and its protocol so as not to allow the standards established by them to remain merely declaratory in character. In particular, the IHF reminds the OSCE states of the fact that security concerns do not under any circumstances justify policies that undermine the fundamental right of asylum seekers, without distinction on any grounds, to have access to fair and individualized asylum procedures as well as to enjoy effective protection against refoulement.
176 The draft law and comments by various NGOs and other organization on it can be found at http://www.parlinkom.gv.at/pd/pm/XXII/ME/his/000/ME00055_.html 177 For more information see the chapter on Austria in IHF, Human Rights in the OSCE Region: Europe, Central Asia and North America. Report 2003 (events of 2002), at http://www.ihf- hr.org/documents/doc_summary.php?sec_id=3&d_id=1322 178 Serbs from Kosovo, Chechens and Kurds from Turkey were exempted from the new rule 179 Der Standard, “Österreich für Flüchtlinge Schlusslicht in der EU,“ 25 August 2003 61 IHF intervention and recommendations to the 2003 OSCE Human Dimension Implementation Meeting
HUMANITARIAN ISSUES AND OTHER COMMITMENTS:
Displaced persons (Friday, 10 October 2003)
There are an estimated 3.2 million internally displaced people in Europe180 -- individuals who have been forced to leave their homes due to governmental, rebel or military actions. Many of them live in inhuman conditions with little prospects of return to their homes and a prosperous future. Rigorous government actions are necessary to remedy their plight.
The fate of numerous people who were forcibly displaced from mountainous districts of the Sukhandaria (along the Tajik-Uzbek border) in Uzbekistan on 5 August 2000 continues to be a source of serious concern. Officially, they were relocated without prior notice by the military in order to prevent the operation of the Islamic Movement of Uzbekistan (IMU), and were not allowed to take their belongings with them. In addition to the threat from IMU, authorities also cited the necessity to offer these people better education and medical treatment. In practice, however, the displacements served as a form of collective punishment for entire villages on suspicion of some inhabitants’ sympathies and assistance to IMU. Independent observers evaluated the number of the displaced people to be between 2,500 and 4,000. Most of them are of Tajik ethnicity. Authorities claimed that a total of 1,333 persons were displaced by this operation.181
On the occasion of a later resettlement, at least 73 educated men were sentenced in June 2001 in Tashkent to prison sentences ranging from three to eighteen years for terrorism and anti-constitutional activities, for “establishing links” with IMU and related acts. The trials grossly violated due process standards.182 Following an amnesty in December 2002, thirty-seven of these men were released under an amnesty law.183
As of 2003, approximately 3,500 persons remain displaced, still living in destitute villages, which the government hastily put up for their relocation. According to the few reports available, they receive insufficient support from the authorities and live in extreme poverty, without access to sources of income. In several locations -- especially in the Sherabad district -- shortage of drinking water and food have been reported. The government of Uzbekistan has prevented the return of the people to their original homes despite the fact that the threat of armed incursions from Islamic groups into the country has largely subsided.184
The IHF urges the government of Uzbekistan to stop any action to expel people from their home; compensate those IDPs who have already been displaced for the loss of their property and their
180 Norwegian Refugee Council, Global IDP Database, at http://www.db.idpproject.org/global_overview.htm, 181 IHF, Mission to Central Asia (Kazakhstan, Kyrgyzstan and Uzbekistan), 7-16 June 2001, at http://www.ihf-hr.org/viewbinary/viewdocument.php?doc_id=1344 182 Ibid. 183 Information from the Norwegian Refugee Council to the IHF, September 2003. 184 Norwegian Refugee Council, Global IDP Database, citing information from U.S. DOS, 31 March 2003; Human Rights Society of Uzbekistan, 19 May 2003, at http://www.db.idpproject.org/Sites/idpSurvey.nsf/wViewSingleEnv/UzbekistanProfile+Summary 62 suffering; and to take all possible measures to ensure that those who wish to do so can return to their homes. As of July 2003, there were about 84,000 refugees from Chechnya registered by the United Nations on the territory of Ingushetia, Russia, and receiving humanitarian aid from the UN.185 In contrast to claims by Russian authorities that IDPs from Chechnya wish to return to their homes voluntarily, a report published by Doctors Without Borders (MSF) on 6 May 2003 portrayed a very different picture. According to the MSF survey which concerned 3,209 families, 98 percent of the Chechen population living in tents in Ingushetia do not want to return to Chechnya, most (93 percent) of them citing fear for their life. The second most frequent reason, expressed by 74 percent, was the lack of available housing in Chechnya.186
Chechen families refuse to go back to Chechnya even though their living conditions in the tent camps in Ingushetia continue to be totally unacceptable, with 54% of families living in tents that either leak, have no protection against cold. Most importantly, 90 percent do not know of an alternative shelter where they could stay in Ingushetia if the camps close. The survey also shows that, contrary to authorities’ claims that humanitarian aid is the only reason to keep IDPs in Ingushetia, 88 percent of the interviewed families did not mention aid at all as a reason for not going back to Chechnya. Moreover, the results of the survey show the necessity of construction and provision of alternative shelters for at least 2,827 families (14,443 people).187
In June 2003, indications of possible camp closures again raised the issue of the urgent need for alternative accommodation for Chechen IDPs. The authorities stopped registering new arrivals to Ingushetia in April 2001. More recently, authorities have de-registered several hundred displaced Chechens, particularly those staying in temporary settlements. Lack of registration may lead to suspension of state subsidies and therefore puts pressure on the IDPs to return.188
According to the UNHCR, the pace of return of refugees to Chechnya was between 1,200 and 1,400 in January and February 2003, slowed down in the lead up to the March referendum, and resumed again after it. At the same time, 953 new IDPs arrived in Ingushetia from Chechnya between 1 January and 27 May 2003. Nearly 9,500 displaced Chechens reportedly returned from Ingushetia in 2002.189
While abuses against IDPs have been reported throughout the existence of the refugee camps in Ingushetia, they escalated dramatically in June 2003 during the so-called “mop-up” carried out by masked Russian forces, who subjected Chechen IDPs to forced disappearance, torture and ill-treatment and looted their property. According to reports, these raids were carried out by pro-Moscow Chechen police under the control of Chechnya Administrator Akhmad Kadyrov. The raids demonstrated a widening of the near four-year-long Chechnya conflict, and violated international protection standards for IDPs. At least four persons disappeared during the sweeps.190
The UN Guiding Principles on Internal Displacement state that “national authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction” (principle 3). Moreover, the Principles specifically require that IDPs “be protected in particular against [. . .] enforced disappearances, including abduction or unacknowledged detention, threatening or resulting in death.” (principle 10d)
185 BBC Monitoring International Reports via NewsEdge Corporation, Cited by Interfax, 8 July 2003. 186 Doctors Without Borders, “Left without a choice - Chechens forced to return to Chechnya,” press release, 6 May 2003, at http://www.msf.org/content/page.cfm?articleid=C0AA3BF3-653E-4DC7-9323C8C4E26CCDFA. For the full report, see http://www.msf.org/source/countries/europe/russia/2003/forcedchechensreport/report.doc 187 Ibid. 188 UNHCR News Stories, 2 June 2003, at http://www.unhcr.org 189 Ibid. 190 IHF, “Disappearances Spread to Ingushetia: Torture, Ill-Treatment and Looting During Mop-up Operations in IDP Camps - Continued Impunity Demonstrates Need for ad hoc Tribunal,” press release, 18 June 2003, at http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=3912 63 The IHF accordingly calls upon the Russian military and security forces to immediately put an end to abusive practices against refugees and IDPs from Chechnya. Military and civilian prosecutors should investigate all alleged cases of abuses and bring to justice all those who have committed them. In the absence of any clear sign that these recent acts will be investigated promptly and all perpetrators be charged and sentenced for their crimes, the IHF considers that these and other gross violations of human rights in Chechnya and neighboring republics lend additional credence to the call for establishing an international ad hoc tribunal to bring these perpetrators to justice, as per a recent resolution of the Parliamentary Assembly of the Council of Europe (PACE) proposes.
Moreover, the IHF calls on Russian authorities to refrain from all measures that are directly or indirectly aimed at forcing IDPs from Chechnya to return to their homes until conditions for their safe return are provided. This is currently not the case.
The return of refugees and IDPs to Bosnia and Herzegovina191 remains problematic. During the war of 1992-1995, 53 percent of the Bosnian population (about 2.250,000 million people) left their homes. Since the signing of the 1995 Dayton Peace Agreement, 963,655 refugees and IDPs have returned to their pre-war homes, 419,711 of them being minority returns.
In most parts of Bosnia and Herzegovina, property and apartments have been returned to their original owners in about 80-90 percent of cases of lost property, but this has happened only due to pressure by the international community on the local authorities -- not because of commitment on the side of Bosnian political parties to do so.
To date, more subtle forms of ethnic cleansing still continue. Many of those who have recovered their property end up selling it or exchanging it because they either prefer to remain abroad or in their own ethnic communities elsewhere in Bosnia and Herzegovina. As a result, a large number of refugees have either become foreign citizens or IDPs.
Most returnees have no social or health insurance and they have become targets of local authorities when trying to claim their rights. Local authorities have done virtually nothing to secure and support the return of minority members. It is almost impossible for the returnees representing an ethnicity other than the majority population to find a job. For instance, only one hundred of several thousand Serb returnees have found a job in the city of Drvar, and it took eight years for nine Bosnian teachers be able to start working in Bijeljina. There are still tensions between Bosniaks belonging to different party fractions in the Unsko-sanski canton.
Minority returnees are discriminated against in almost all sectors of life, including the supply of basic infrastructure such as water supply, electricity and telecommunications, and courts still resort to judging on ethnic grounds.
The failure of the three main nationalist parties -- the Bosniak Party of Democratic Action (SDA), the Croat Democratic Union (HDZ), and the Serb Democratic Party (SDS) -- to take efficient measures to facilitate the return of refugees and IDPs implies that they tacitly support or at least tolerate this situation. Efforts by international organizations have also decreased. The goal of the international peace mission appears to be to wrap up the returnee question as soon as possible, an attitude that may be highly dangerous. The Commission for Property Claims (CRPC), sponsored by the international community, will wind down its operation this year, sending a message that for the international community the issue is no longer of importance. Unless there are major changes, the returnees will continue to be targeted while ethnically cleansed territories will be a dominant characteristic of Bosnia and Herzegovina.
Without a massive return of people, democratization will be impossible in Bosnia and Herzegovina.
191 As reported by the Helsinki Committee for Human Rights in Bosnia and Herzegovina, September 2003. 64 In Croatia,192 ethnic discrimination continues to impede the return of hundreds of thousands of Croatian Serbs displaced by the war still eight years after it ended. There are no precise statistics on how many of the more than 300,000 displaced Serbs have returned. The Croatian government has registered more than 100,000 returns, but many returnees depart again for Serbia and Montenegro or Bosnia and Herzegovina after a short stay in Croatia. In 1991, Serbs made up 12.1 percent of Croatia’s population, but the 2001 census showed that their number had fallen to 4.5 percent.
Most of those who have returned were elderly farmers whose houses were not destroyed or occupied, and who receive old-age pensions from the government. Return to urban areas is rare, because the refugees cannot repossess their pre-war apartments or obtain substitute housing. Young and middle- aged Croatian Serbs are dissuaded from returning by the lack of employment opportunities and, for men, for fear of arbitrary arrests on war crime charges.
The IHF appeals to the governments in Bosnia and Herzegovina and Croatia to ensure that problems related to the repossession of property, tenancy rights, compensation of destroyed property and reconstruction be handled without discrimination. They should also take serious measures against all forms of discrimination in the labor market, housing, and social benefits, such as the payment of pensions.
192 Information on Croatia is based on Human Rights Watch, “Croatia Fails Serb Refugees: Ethnic Discrimination Slows Refugee Return,” press release, 3 September 2003, at http://www.hrw.org/press/2003/09/croatia090203.htm For the full report Broken Promises: Impediments to Refugee Return to Croatia, see http://www.hrw.org/reports/2003/croatia0903/ 65 IHF intervention to the 2003 OSCE Human Dimension Implementation Meeting
HUMANITARIAN ISSUES AND OTHER COMMITMENTS:
International humanitarian law (Friday, 10 October 2003):
Over the past four years, more than 80,000 military men have been involved in the conflict in Chechnya, which has already resulted in a considerable number of casualties. On the side of the federal forces, at least 3,000 soldiers have been killed and more than 10,000 wounded.193
The Chechnyan conflict is an armed conflict to which international humanitarian law must be applied, and which both sides -- the federal forces as well as the Chechen separatist fighters -- must abide by. The UN Commission on Human Rights in its Resolution 4/2001/L24 of 20 April 2001 reminded the Russian Federation that it is party to the Geneva Conventions and to the Second Additional Protocol thereto, and that developments in Chechnya must be viewed in the context of these and other treaties concerning international humanitarian law. Likewise, the Parliamentary Assembly of the Council of Europe on 25 January 2001 denounced the atrocities committed by the Chechen combatants and placed the developments into the context of humanitarian law, recognizing the Chechen combatants as a party to the conflict.
Notwithstanding, the Russian Federation has from the very beginning called the conflict a “counter- terrorist operation,” consistently avoiding the term “armed conflict.” However, this interpretation of the current situation is in conflict with the fact that the Russian government has never denounced the August 1996 peace settlement of Khasavyurt and the following Peace Treaty of May 1997, bearing the signatures of the then Russian president Boris Yelzin and the then elected President of Chechnya, Aslan Maskhadov. Nor has the Constitutional Court rendered these treaties inoperative.
The Russian Federation has consistently and deliberately tried to take the situation out of the domain of international humanitarian law, treating the developments as exceptional “internal affairs of the state.” Although the law “On the State of Emergency,“ adopted in 1991 and amended in 2001, as well as the law “On Defense,” could have served as a basis for the declaration of a state of emergency, this proclamation has never been made. While this declaration would have warranted some restrictions on civil rights and freedoms of the citizens of the affected area, it would at least have defined clearly the legal status of the de facto conflict and pointed out which government bodies are involved and responsible for carrying out specific measures. In addition, the declaration of a state of emergency would have provided limits against the potential abuse of power: the presidential decree declaring the state of emergency would have had to contain a list of emergency measures and their limits as well as an exhaustive list of temporary restrictions on civil rights and freedoms. Moreover, it would have established parliamentary control over emergency measures.
193 Information on Chechnya is based on the Alternative NGO Report on Observance of ICCPR by the Russian Federation, Submitted to the Attention of the UN Human Rights Committee in Connection with the Upcoming Consideration of the Fifth Periodical Report of the Russian Federation, Moscow, prepared by the Moscow Helsinki Group, Memorial Human Rights Center, Center for Assistance for International Protection, Nizhnii Novgorog Committee against Torture, Information Center SOVA, Center for the Development of Democracy and Human Rights, the Glasnost Defense Foundation, the Independent Council of legal Expertise, Interregional Group “Human Rights Network,” the Movement of Human Rights and the Center of Social Labour Rights. 66 Instead of declaring a state of emergency, the Russian government created an artificial legal vacuum by introducing a regime of a “counter-terrorist operation” based on the 1998 law “On Fighting Terrorism.” This law has been interpreted overly broadly and arbitrarily and it has been frequently violated. When this law was discussed, human rights groups expressed their fear that extending powers of enforcement agencies, whose discipline leaves much to be desired, would inevitably lead to uncontrolled activities and, consequently, result in mass violations of human rights. The Council of Europe severely criticized the law for falling short of European standards due to its potential for limitations of human rights. Initially the purpose of the law was to regulate local and short-term use of force where immediate reaction is needed and there is no time to have the parliament sanction necessary measures. In practice, however, the law has already been applied for four years on the entire territory of Chechnya.
The arbitrary and overly broad interpretation of the law “On Fighting Terrorism” has also led to wide- scale abuses which actually run counter to the law, including massive army operations, indiscriminate bombings and shellings, widespread and unsanctioned searches of houses, massive indiscriminate detentions and holding detainees in illegal detention facilities, torture and other brutal treatment and extra-judicial executions.
During the period of active military operations in the course of the “second Chechen war,” from autumn 1999 through the spring of 2000, the majority of casualties suffered by the civilian population (6,500 to 10,500 people) were victims of massive and indiscriminate bombardments and shellings. The center of Grozny was shelled with tactic missiles equipped with cluster pellet bombs on 21 September 1999. The civilian population was prevented from leaving the combat zones, and no “humanitarian corridors” were provided for allowing people to get out Grozny. Several attacks against the civilian population resulted in multiple civilian deaths: in the settlement of Alkhan-Yurt (December 1999), in the Staropromyslovsky district of Grozny (January 2000) and in the settlement of Noviye Aldy (February 2000). Investigations into these war crimes were never completed and those responsible were never punished. As a result, one cannot assert whether these deliberate attacks against civilians were “excesses of the executor” or authorized by superior commanders.
Wide publicity of abuses and international pressure led to the adoption of administrative documents such as Orders No.145 and 80 by the Commander of the United Task Force in the Northern Caucasus, and Order No. 46 by the Prosecutor General of the Russian Federation, which were aimed at improving the human rights situation. The orders remained a dead letter though and the human rights situation did not improve. While the number of mop-up operations went down per se, the number of “disappeared” persons increased. Many of them fell victim to the “death squads,” special task forces of secret services that conduct illegal detentions with “forced interrogation” (brutal torture) and extra- judicial executions. According to official data of the Ministry of Internal Affairs, 1,132 civilians were killed in the year 2002 alone. As the Violence Chronicles of the Human Rights Center Memorial shows, the majority of them were most likely killed by representatives of federal enforcement structures. The Russian prosecutor’s offices estimate the number of “disappearances” at 1,663, whereas the Chechen Republic Governmental Commission on Missing Persons estimated them at 2,800. As of January, out of 1,178 criminal cases related to kidnappings only one had resulted in the initiation of criminal proceedings against a Russian officer.
In July of this year, following a cumbersome judicial procedure, Russian colonel Yuri Budanov was sentenced to ten years in prison for abduction, murder and abuse of office for strangling an 18-year-old woman while stationed in Chechnya three years earlier. The fact that he was the fist and only senior officer to be sentenced for abuses in Chechnya is the best illustration of the atmosphere of impunity reigning in the armed conflict zone in the Chechen Republic.
67 IHF intervention to the 2003 OSCE Human Dimension Implementation Meeting
SPECIFICALLY SELECTED TOPIC:
Prevention of discrimination, racism, xenophobia, and anti-Semitism (Tuesday, 14 October 2003)
In the 1990 Copenhagen Document of the OSCE, the participating states “clearly and unequivocally condemn […] racial and ethnic hatred, anti-Semitism, xenophobia and discrimination against anyone as well as persecution on religious and ideological grounds” (40). Further, they declared “their firm intention to intensify the efforts to combat these phenomena in all their forms.” Four years later in Budapest, the participating states “acknowledged [...] that there was a serious deterioration in some areas and a need for action against the continuing violations of human rights and manifestations of aggressive nationalism […] as well as racism, chauvinism, xenophobia and anti-Semitism.”194
The fact that racially motivated and xenophobic attacks and hate speech remain a serious problem in numerous OSCE member states -- and, indeed, appear to be on the increase in many of them -- suggests that the efforts taken so far have been insufficient.
The Constitution of the Russian Federation195 bans “propaganda or campaigning that incites social, racial, national or religious hatred and strife” and “propaganda of social, racial, national, religious or language superiority” (article 29.2). It also forbids the organization and activity of associations that are aimed at “the incitement of social, racial, national and religious strife […]” (article 13.5).
Despite these constitutional guarantees, racist propaganda and racially motivated violence are both serious problems in Russia. Numerous publications and periodicals openly promote ethnic and religious hostility and many racist organizations operate freely. The largest of them, the Russian National Unity (RNE), broke up at the end of 2000, but its numerous fragments became increasingly active again in 2002, and new organizations of this kind are emerging.
While the number of violent acts committed by Cossacks have gone down recently, violent acts perpetrated by skinhead gangs are on the increase. During some months in 2002, skinhead attacks were recorded on a daily basis. Most of their victims were individuals whose appearance differs from Russians -- i.e. Caucasians, Central Asians, Roma, and Africans. There have also been relatively frequent attempts to destroy or desecrate synagogues and other Jewish property or cemeteries.
Along with the adoption of the Federal Law “On Countering Extremist Activity” in the summer of 2002, the ban on activities inciting social, racial, national and religious strife provided by other legislation was substantially expanded. Such legislation now covers a variety of “extremist activities,” which are not adequately formulated and do not define the gravity of different forms of offences covered by those laws. As a result, both extremely dangerous acts and minor manifestations of intolerance may result in judicial proceedings and a harsh penalty, a fact that easily results in poor application of the laws.196
194 Concluding Document of Budapest, 6 December 1994, chapter VIII, par. 1. 195 Unless otherwise noted, information on Russia is based on the Alternative NGO Report on Observance of ICCPR by the Russian Federation, Submitted to the Attention of the UN Human Rights Committee in Connection with the Upcoming Consideration of the Fifth Periodical Report of the Russian Federation, Moscow, prepared by the Moscow Helsinki Group, Memorial Human Rights Center, Center for Assistance for International Protection, Nizhnii Novgorog Committee against Torture, Information Center SOVA, Center for the Development of Democracy and Human Rights, the Glasnost Defense Foundation, the Independent Council of legal Expertise, Interregional Group “Human Rights Network,” and the Movement of Human Rights and the Center of Social Labour Rights. 196 Moscow Helsinki Group, Human Rights in Russian Regions -2002, 2003. 68 The adoption of the law “On Countering Extremist Activity” did not lead to enhanced measures against extremism -- on the contrary.197 The only notable step in this field was the de-registration of the new big racist party, the National Imperial Party of Russia, which was created and registered in September 2002. However, the party’s registration was annulled under formal pretexts only, and due to powerful public pressure as late as May 2003.
Judicial proceedings can also be initiated under article 282 of the Criminal Code (and punished with a fine or up to five years of imprisonment) for inciting dangerous racist propaganda. Article 63(e) establishes racist motives as an aggravating circumstance. In 2002, the enforcement of article 282 was intensified: 71 cases were opened, 31 charges were brought, and 16 persons were convicted198 (compared with 17, 8 and 10 in 2000, respectively199). However, punishments remained lenient, with most cases resulting only in a suspended sentence. This could be attributed to the failure of the law to distinguish between grave and minor offences. In addition, due to racist sentiments prevalent among police officers, racially motivated crimes were frequently not investigated at all. Moreover, Russian NGOs are not aware of a single ruling in which article 63(e) would have been invoked by courts in their sentencing policies. In almost all cases of racially motivated violence, law enforcement bodies have denied that evidence of racist motives existed. This was the case even in November and December 2002, when judgments were passed on the most cruel crimes committed by skinheads that resulted in killings -- riots at the Moscow Tsaritsyno market and the murder of Romani persons in Volgograd.200 In the rare cases in which the police were active in investigating racially motivated crimes, the perpetrators were, as a rule, never found.
The Jewish community in Armenia201 (approximately 1,000 people) faces harassment and open enmity. On the night of 24 April 2003, youth wing members of the Armenian Revolutionary Federation, “Dashnaktsutyun” (ARFD), a national-socialist party, conducted a torchlight procession dedicated to the 88th anniversary of the genocide of the Armenians in the Osman empire in 1915. Before the procession began, they publicly burned the Turkish flag with a six-point David star drawn on it. On the following day, the Russian-language newspaper Novoye Vremya (with a circulation of about 5,000 copies) published a photo of the procession. The young national-socialists undertook similar actions in 2002. Razmik Davoyan, member of ARFD and adviser to the president on issues of national minorities and non-governmental organizations, played down the manifestations of anti- Semitism during the procession and expressed his understanding in light of “the statements about the genocide of the Armenians made by ambassador of Israel in Armenia.”
According to the chairwoman of the Jewish Community of Armenia, Rima Varjapetyan-Feller, an unknown person drew a swastika on the door of the community office, which is situated in the center of Yerevan. A swastika was also drawn on the memorial stone commemorating victims of the Holocaust. In 1999, just three weeks past the official opening of the monument, the stone was stolen. Criminal investigations were initiated but the perpetrators were not found. In 2002, the stone was toppled and twelve trees surrounding it (as a symbol of 12 Israeli descents) were chopped down. It is believed that this was done merely in order to build a restaurant in its place. Again, the anti-Semitic motivation of the incident was played down, including by persons such as Foreign Minister Vardan Voskanyan. The perpetrators were identified, but not punished.
In February, a book by Romen Episkoposyan entitled National Systems was presented at the Writers’ Union of Armenia. A passage in the book read: “Presently, there are two nations in the world that bear evil in the most intense and aggressive way. These are the Jews --- a nation of demolition with a mission to demolish and to decay, and the Turks -- a killer nation with a mission to destroy and to suppress.” (page 127).
197 For a more detailed review of the enforcement of new legislation in August 2002 to February 2003 can be found in A. Verkhovsky, “Half a Year of Countering,” Russian Bulletin on Human Rights, No. 17, 2003. 198 Lenta.Ru, “Skinheads Have Adopted Accurate Hits Tactics,” 4 February, 2003. 199 On the Observance by the Russian Federation of CERD, Alternative Report of Russian NGOs, 2002. 200 Moscow Helsinki Group, Human Rights in Russian Regions, 2003. 201 Information on Armenia has been provided by the Armenian Helsinki Association, September 2003. 69 Extreme nationalistic attitudes and rhetoric persist in Serbia,202 with Kosovo as a main focus. As a result, dialogue between Belgrade and Prishtina has been obstructed. Specifically, the Serbian Orthodox Church has been one of the strongest supporters of Serbian nationalism, and has continuously interfered in state politics. In September 2003, the church published a Memorandum about Kosovo and Metohija, which stated that keeping Kosovo as part of Serbia was a matter of “national, spiritual, cultural, Christian and human identity.” The memorandum underscores the fact that the Kosovo question has been a source of suffering for the Serbs for centuries, and insisted that the new Serbian Constitution should contain a provision providing that no one has the right to deny that Kosovo and Metohija are part of Serbia. Nebojsa Covic, appointed by the Serbian government as the chief negotiator with Albanians, said that the memorandum reflects, for the “first time since World War II, harmony between the (Serbian) Church and state.”
Serbian politicians abuse the Kosovo question in their infightings and manipulations, and the way Belgrade politicians speak about Kosovo’s status also threatens relations between Serbia and Montenegro. The recent violence in Kosovo, to which Serbs fell victims,203 has been used for strong anti-Albanian campaigning, aimed at showing that Kosovo Albanians are not capable of establishing and governing an independent, democratic and multi-ethnic state. The vice president of the Serbian government has openly labelled Kosovo Albanian authorities former terrorists who hate Serbs, and the speeches of some politicians still contain the rhetoric of Slobodan Milosevic.
The fact that the perpetrators of recent crimes against Serbs in Kosovo have not been caught feeds hate speech in the media and contributes to the creation of an anti-Albanian atmosphere. The use of offensive and defamatory expressions about Kosovo Albanians has triggered no reaction from the side of the public. Under such circumstances it is difficult to expect that the gap between Albanians and Serbs can be bridged in the near future.
In Greece, during the early morning hours of Saturday, 3 August 2003, “unknown vandals” desecrated the synagogue of Ioannina with “neo-Nazi” symbols and slogans written in blue spray-paint. The slogans included phrases such as: “We will return and the earth will tremble;” “Long live the victory;” and “Blood and honor.” A swastika was inscribed on the doorway. In April 2002, during a wave of anti-Semitism that was legitimized as anti-Israeli protest, at least four Jewish graves were destroyed in Ioannina.204
In Canada,205 amendments to the Criminal Code are needed to fight hate speech and hate crimes. According to the Canadian Helsinki Watch Group, the Code must make clear that Holocaust denial is a crime. The lack of such a provision led the Supreme Court of Canada to strike down the provision under which Ernst Zundel (a war criminal of WWII and a leading distributor of Holocaust denial materials) was convicted.
While the 1995 sentencing guidelines provide, inter alia, that racial hatred as a motivation to a crime is to be considered an aggravating factor for sentencing purposes, sentencing for hate crimes has been too lenient to provide an effective deterrent to the crime.
In addition, the Canadian Helsinki Watch Group urges that hate crime units should be established at all the major police forces in Canada and racist organizations should be prohibited. It also notes that civil federal hate speech jurisdictions should be consolidated because hate speech propagated by telephone and the Internet, TV, radio and by post, etc. currently remain under different jurisdictions. The Canadian Human Rights Commission should have jurisdiction over all cases of hate speech,
202 Based on information sent by the Helsinki Committee for Human Rights in Serbia to the IHF, September 2003. 203 See the intervention on Kosovo. 204 Greek Helsinki Monitor, “Anti-Semitism in Greece, Desecration of the Synagogue of Ioannina,” 3 August 2003. 205 Information on Canada has been provided by the Canadian Helsinki Watch Group, December 2002 and September 2003. 70 regardless of the form of media involved, and all provincial human rights codes should prohibit the publication of hate material. So far this is the case only in Saskatchewan.
In Latvia,206 Russian and Latvian extremist groups continue to organize and spread hate propaganda, but they have also faced prosecution. For example, in November 2002, a court upheld on appeal the eight-month sentence for Guntars Landmanis, for inciting national hatred by publishing a violently anti-Semitic newsletter Patriots, and ordered him to pay damages in the amount of 600 LVL (€1,000). This was the first, and so far the only, conviction in Latvia under article 78(1) of the Criminal Code for incitement to national hatred.
The end of 2002 saw the intensification of activities relating to the National Bolshevik organization Pobeda (Victory). The security police raided several Pobeda sites, reportedly finding explosives, weapons, ammunition and leaflets containing open threats to politicians and arrested several people, most of whom were quickly released. Three persons were indicted for incitement to the violent overthrow of the state, as well as the unsanctioned storage of explosives. According to very recent information, it is expected that Pobeda will be closed down, basing at a request of the Ministry of Interior. The same charges were brought in December against Vladimir Linderman, the leader of the group who was staying in Russia at that time and has later applied for political asylum there.
In addition, some disturbing signs of xenophobia emerged under the auspices of parties campaigning for seats in the 2002 parliamentary elections.
In a recent case, charges were dropped due to lack of conclusive evidence against four police officers who allegedly beat a Romani man to death. Yet, available evidence reportedly showed that the man had died of wounds inflicted to him after police had arrived at his house. However, the police officers were dismissed from their jobs for forcing their way into the house without a waerrant.
Holocaust-denying article was posted in the Internet version of the radical, small-scale paper DDD. It was quickly removed after an investigation was initiated.
At the time being, there is no training for the judiciary or law enforcement officials in inter-racial relations, nor have the problems related to hate crimes been systematically dealt with. A working group has been set up to draw up a national action plan against discrimination.
According to the police in Croatia,207 22 attacks on foreign citizens, which resulted in serious physical injuries, were reported in the first six months of this year. For example, Karim Hassan, the 11-year old son of an Egyptian diplomat, was beaten up in Zagreb by two young skinheads on 6 August 2003. The police soon arrested the perpetrators and the group they belong to. However, as almost all of the perpetrators were minors, only one of them was charged. On the same day, a family of Pakistani origin with Austrian citizenship was beaten. A week before that, four students -- from Egypt, Oman, Japan and Kyrgyzstan -- were beaten up at a student campus by a group of 17-year-old skinheads. After the attack on Karim Hassan, the Croatian government publicly apologized for the attacks on foreign citizens and the police have formed a Department for Extreme Violence and Terrorism in order to fight it.
In Sweden, right-wing parties were successful in the 2002 elections. Sweden Democrats (SD, Sverigedemokraterna) won in a total 50 mandates in the local elections and are now represented in 30 local municipalities. SD became the biggest party in Sweden that is not represented in the parliament.208
206 Information on Latvia is based on the Latvian Centre for Human Rights and Ethnic Studies report, Human Rights in Latvia in 2002 and an updates of August and September 2003. 207 Information on Croatia has been provided by the Croatian Helsinki Committee, September 2003. 208 Swedish Helsinki Committee to the IHF, September 2003. 71 Widespread xenophobic attitudes among politicians in mainstream parties were also uncovered in the investigative journalism television program “Uppdrag Granskning” prior to the 2002 parliamentary elections. A reporter impersonating a regular voter confronted 54 representatives of political parties involved in election activities with xenophobic views before a hidden camera. In a discouraging display of intolerance, over 20 persons, all leading local politicians representing almost all political parties, expressed flagrantly racist remarks. Only two out of the 54 argued against the intolerant views. When interviewed openly, they all expressed grave concerns over xenophobia in the country -- in line with their official party policy.209
The Swedish neo-fascist scene is not large (2,000-4,000 people) but it is notorious for its aggressiveness. The bloodiest year in the last decade was 1995, when at least seven murders, most of which involved immigrants, were traced to neo-Nazi circles. In 1999, two policemen and a union leader were murdered by extremists, and attackers planted a bomb under the car of a reporter investigating neo-fascism in Sweden. Fortunately, the journalist survived. Since then, police have kept closer tabs on extremist violence, and attacks have slowed down somewhat. However, a recent attack on a mosque in the Swedish city of Malmö and homophobic violence during this year's Stockholm Gay Pride parade showed that the scene is still active.210
The recent killing of Foreign Minister Anna Lindh re-focused attention on extreme rightist groups. According to media reports, local politicians had received death-threats from right-wing groups before the killing, and the police were considering stepping up security measures to protect them.
In addition, Sweden is regarded as the main producer of “white power” music.
On a positive note, on 16 September, the parliament of Bulgaria211 adopted the Law of Protection against Discrimination, which is in accordance with the requirements of the Directive 2000/43 of the European Commission. The law will come into force on 1 January next year.
The law prohibits any discrimination on the grounds of age, gender, ethnic belonging and/or origin, education, family or property status, and forbids discrimination in the spheres of labor, education, access to social services, etc. The employers have a duty to provide their staff with equal pay for work of equal value. The law introduces a duty for employers to encourage persons who belong to groups that are not properly represented in a company to apply for a job. In addition, according to the new bill, if complaints of discrimination are filed, employers are obliged to immediately check the situation and to take all necessary actions to solve the problem.
The law introduces a requirement of equal gender representation and obliges employers to take steps to reach at least 40 percent representation of the gender that is underrepresented.
The law also establishes a special body -- the Commission on Prevention of Discrimination -- to supervise the implementation of the provisions of the law. The commission will be able to independently investigate complaints of discrimination, as well as impose fines or bring a lawsuit against those who violate the provisions of the law.
The passing of the new law is not only a milestone in fighting discrimination, but also serves as a model example for teamwork between human rights NGOs and some government officials.
209 Svenska Dagbladet, “Extrema åsikter i valstugorna,”10 September 2002, at http://www.svd.se/dynamiskt/inrikes/did_2655195.asp; and Sveriges Television, “Kyliga vindar I stugvärmen,” Uppdrag Granskning; at http://www.svt.se/granskning/reportage.asp?S=2113&A=2113 210 AFP, “Sweden's neo-nazis violent enough to kill, experts say after Lindh,” 19 September 2003. 211 Information on Bulgaria is based on Human Rights Project, “Bulgaria Made Important Step for Elimination of the Discrimination,” 19 September 2003. 72 The following joint Statement of the European Roma Rights Center (ERRC) and the International Helsinki Federation for Human Rights (IHF) was submitted to the OSCE Conference on Discrimination, Racism and Xenophobia, Vienna, 4-5 September 2003
Governments in Europe Are Failing to Uphold Their Commitments to Fight Racism and Discrimination
As of September 2003, the deadline for the transposition of the EU Race Equality Directive (Council of the European Union directive 2000/43/EC) by EU Member States passed two months ago. However, not a single Member State has yet succeeded in transposing all provisions of the Directive into their national law. Regarding the lack of political will on the part of most Member States to change their national legislation in accordance with the Directive, Commissioner Anna Diamantopoulou stated:
“I am dismayed that most Member States have failed to integrate the Racial Equality Directive into national law. Let us not forget that this Directive was agreed unanimously by the Council three years ago.”
The ERRC and the IHF are deeply concerned that in many countries such as Austria, Greece, Portugal and Spain, where protection against racial discrimination has been traditionally weak and ineffective, national authorities failed to proceed with amending legislation as required by the terms of the Race Equality Directive. We welcome positive developments towards integration of the Race Equality Directive’s provisions in national law in some countries such as Belgium, Italy and the United Kingdom, and note that some of these countries have developed, even prior to the adoption of the Race Equality Directive, anti-discrimination law and policy reflecting some or most of the Directive’s requirements. In Central and Eastern Europe, only a few countries have so far indicated a serious intention to meet the Directive’s requirements. Bulgaria and Hungary, for example, have produced draft laws, which are pending before their parliaments.
In 2002, the Bulgarian government, in extensive consultation with civil society, prepared and submitted to Parliament a comprehensive anti-discrimination bill, transposing all EC anti- discrimination and gender equality acquis and going, in more than one aspect, beyond EU law. The bill further complied with ECRI’s General Policy Recommendation No 7 on National Legislation to Combat Racism and Racial Discrimination. However, in May 2003, a group of ruling majority MPs deposited a framework anti-discrimination bill, which was not prepared in consultation with civil society and turned out to be much weaker in the protection and safeguards afforded to victims. As of late August, the two draft bills had been consolidated into one but it had not yet been voted on by the parliament. Despite being a compromise, the draft law, if adopted in its present form, will constitute an important step forward and is one of the relatively advanced anti-discrimination laws in Europe.
In Slovakia, legislative efforts are seriously impeded by a lack of political will amongst members of the Slovak cabinet. The Slovak anti-discrimination bill has already been rejected by parliament once, and the new bill is still not scheduled for review. A number of other countries have given no indication whatsoever that they intend to comply with the Race Equality Directive. The single government amongst the European Union candidate countries to have managed thus far to adopt any anti- discrimination law is Romania. The law, however, crucially differs from the Race Equality Directive, failing to meet, inter alia, the Directive’s requirements for the reversal of the burden of proof and the ban on indirect discrimination.
73 Effective remedy for racially motivated crime and racially based discrimination remains an unfulfilled promise in many European countries. In addition to the inadequate civil and administrative procedures for fighting racial discrimination, the criminal prosecution of racially motivated violence also poses serious problems in the way of combating hate crimes. To name just one recent example from the country in which this meeting is being held, Austrian courts to date failed to entirely provide legal remedy to a Romani woman named V.J., who in April 1996 was arbitrarily detained by Vienna riot police, physically abused and insulted on racial grounds.
In criminal law, while all European states have ratified international human rights treaties committing states parties to prohibit acts of and incitement to racially motivated violence, many countries provide only a general prohibition of such acts. Although there is indisputable evidence of crimes committed with racial animus, few countries have made racial motivation an aggravating circumstance and introduced enhanced sentencing for racially motivated crime. The ERRC and the IHF are particularly concerned that the criminal legislation in countries such as Belgium, Bulgaria, Croatia, Denmark, Germany, Greece, the Netherlands, Romania and Turkey, where incidence of racially motivated crime is high, does not stipulate enhanced sentencing.
In some countries where sentencing enhancement for racially motivated crimes has been introduced, the respective provisions are rarely applied.
The Swedish Penal Code provides that courts can hand down stricter punishments if they consider that a crime was committed with the intent to violate a person or group of persons on the basis of race, skin colour, national or ethnical origin, religious creed, sexual orientation or other similar circumstances. However, the courts are not obliged to expressly state in their judgments if they applied this particular rule. As a result, it is virtually impossible to ascertain whether the provision has been applied. Swedish anti-discrimination legislation also remains inadequate in that its provisions fail to cover all areas of discrimination, and Sweden has failed thus far to ratify the 12th Protocol to the European Convention on Human Rights which once ratified by ten Member States of the Council of Europe will provide a ban on discrimination in the exercise of any right secured by law, significantly expanding existing protections available under the European Convention. While hate speech is criminalised, in cases concerning traditional mass media (newspapers, radio programs and some use of the Internet) the prosecution is to be handled by the chancellor of justice. In practice, very few cases have led to prosecution, and there were only two convictions for hate speech in established media in 2002-2003. In Finland, anti-discrimination legislation is formally comprehensive and covers all ethnic and religious grounds, penalising a wide variety of ethnic agitation and discrimination. In practice, however, a number of studies have indicated that the Finnish criminal justice system has not been able to deal properly with the problem of racially motivated crimes. The most common target for these types of crimes have been Roma or immigrants of African and Russian origin. Statistics indicate that a very small minority of racist crimes actually ever reach the courts. In addition, the dismissal rate for such cases is much higher than in other criminal cases.
Ongoing ERRC monitoring in Slovakia indicates that in Romani communities where skinhead violence is a known problem, authorities have failed to prevent deadly racially motivated violence against Roma perpetrated by members and sympathizers of nationalist-extremist movements or other vigilante groups. Moreover, Slovak authorities frequently fail to adequately punish both state and non- state actors who engage in racially motivated killings of Roma or to award adequate damages to the families of the victims.212
Similarly, in the Czech Republic, Criminal Code provisions on sentencing enhancements for racially motivated crimes are not applied rigorously, especially where the victims are Romani. Speaking recently on the occasion of his appointment to head of the Czech Constitutional Court, Mr Pavel
212 See information available on the ERRC Internet website at: http://www.errc.org/publications/indices/slovakia.shtml 74 Rychetsky told the Czech daily Pravo that the Czech criminal justice system “does not function adequately when racially motivated violent crime is at issue”.
In countries throughout the OSCE region, criteria according to which crimes are investigated to determine if racial animus has played a role are often not clearly elaborated and/or not made public. Fragmentary statements by police officers in some countries such as Czech Republic, Hungary and Slovakia give rise to the concern that authorities apply overly strict guidelines when assessing a crime to determine whether it was racially motivated. For example, in some cases, officials have decided that a case is not racially motivated unless witnesses have heard the alleged perpetrator making explicitly racist remarks, even where other evidence points clearly to racist motive. In other cases, such as in the killing in Hungary of a Romani youth named Kristian Mohacsi in 1999, officials appear to have taken a "deny first and investigate later" approach to the issue of racial animus.
The ERRC and the IHF would like to reiterate the commitments of the OSCE Members States voiced at the Istanbul Summit in 1999 regarding the fight against racism and discrimination. The Istanbul Summit Declaration stated:
We also support the adoption and full implementation of comprehensive anti- discrimination legislation to promote full equality of opportunities for all. […] We deplore violence and other manifestations of racism and discrimination against minorities, including the Roma and Sinti. We commit ourselves to ensure that laws and policies fully respect the rights of Roma and Sinti and, where necessary, to promote anti-discrimination legislation to this effect.213
Considering these commitments, as well as the commitments made by the OSCE Member States under international and European law, the ERRC and the IHF call on the governments to:
• Take actions to transpose the Race Equality Directive and the other EU anti- discrimination directives without delay; • Involve relevant beneficiaries – racial and other minorities in the drafting of the anti- discrimination legislation; • Review criminal legislation and introduce the racial motive as an aggravating circumstance punished by stiffer sentences; • Elaborate and make public the criteria according to which crimes are investigated to determine if they have been perpetrated on grounds of racial animus; and • Ensure that law enforcement officials, prosecutors, judges and lawyers be provided with training necessary to enable the successful application of legal provisions aimed at combating racist crimes and other racially based discrimination.
213 Istanbul Summit Declaration, at: http://www.osce.org/docs/english/1990-1999/summits/istadecl99e.htm 75 The following joint Statement of the International Helsinki Federation for Human Rights (IHF) and Greek Helsinki Monitor (GHM) was submitted to the OSCE Conference on Discrimination, Racism and Xenophobia, Vienna, 4-5 September 2003
Greek Judicial System Lacks Will to Deal with Incitement to Hatred and Discrimination
The International Helsinki Federation for Human Rights (IHF) and its member organization Greek Helsinki Monitor (GHM) wish to draw your attention to the failure of the Greek judicial system to effectively litigate clear cases of hate speech, punishable under Greek law and international conventions to which Greece is a party. A letter expressing our deep concern has also been sent to Mr. Filippos Petsalnikos, Greek Minister of Justice.
In the past twelve months, seven cases against the publication of anti-Semitic, xenophobic or racist texts in the press have been filed by Greek Helsinki Monitor on the basis of the above-mentioned legislation. Regrettably, however, one of these cases has lapsed due to inactivity on the part of the prosecutors; one has ended up in acquittal despite overwhelming evidence that Greek law had been violated; and four are in the process of being quashed, again, despite overwhelming evidence of breaches of law: in two of them, a trial date of 26 September 2003 had first been set and then cancelled.214
• Two of the filed cases concern an openly anti-Semitic letter published in Eleftherotypia on 15 April 2002 and in Ta Nea on 16 April 2002. We are shocked to learn that the indictment chamber recently quashed the first case after a date for the trial had already been set, and that the charges against Ta Nea are under consideration to be dropped. The defamatory letter read, among other things: “…It’s a proven fact that Jews are untrustworthy and fickle. They infiltrate societies, first playing the poor souls to generate pity and, when the time comes, they’ll grab you by the throat.”
• In another case, a court in Patras dismissed a case against the Patras neighbourhood associations, which in November 2001 had published a blatantly racist letter against Roma in local newspapers in June 2003. The letter read: "Roma steal from the [non-Roma] resident's fields, they snatch what they can find from the yards of the homes. They loot our cemetery, they swear, they beat people, they ring our bells. They should be immediately evicted from the area; any postponement or delay in resolving the problem we face will lead to militant action from the residents."
• In a further case a Greek prosecutor moved so slowly that no trial could be held against the publisher of a xenophobic letter because the statute of limitation had expired and the case lapsed. The case concerned a letter that was published on 26 January 2002 in the financial supplement Economicos Tachydromos of the daily To Vima. The letter read, for example:
214 Details of all these cases are included in the memorandum prepared by GHM and distributed by the IHF at this conference. 76 “Migrants, the scum who are being channelled into Greece. They have come just on a whim, to kill, rob and rape Greece.”
• In the case of two complaints filed against Ta Nea the paper continued, despite warnings, to publish want ads for homes for rent and sometimes for jobs that ended with the phrase “no foreigners”, “foreigners excluded.” One of the cases was quashed before a date for the trial was set, in the other the date for trial was set but the case went back to the prosecutor who recommended that the charges be dropped.
After a year of litigation, only one case -- a case against “Albanophobia” -- is still proceeding in the judicial system. The case was filed because of a letter published on 12 October 2002 in the financial weekly Ependytis (in its supplement Symbol) and read, among other things: "The 'terrible' situation exists in Greece because of the 'Albanian plague.' We should exhibit exemplary cruelty to those who break the law, in order for Albanians to respect us and the type of society we have managed to create."
The outcome of the above-mentioned cases appears to be a clear indication of the lack of will among some prosecutors and judges to hold trials or convict persons for statements that are openly racist, xenophobic or anti-Semitic -- and which are penalized by Greek law215 and international standards.
In light of the above information, the IHF and the GHM urge the responsible authorities to take all possible measures within their legal competence to ensure that:
• All prosecutors and judges are provided with the necessary training and instructions to rigorously implement Greece's anti-racist legislation which is part of Greece’s human rights obligations;
• The four cases against Eleftherotypia and Ta Nea be reviewed by the Supreme Court and then referred to trial before most lapse in October 2003;
• The case against neighbourhood associations be reviewed by the Supreme Court and then referred to an Appeals Trial;
• An investigation be launched into the slow judicial procedure in the To Vima case that led it to lapse before any ruling or trial and sanctions be imposed against those held responsible;
• The pace of judicial proceedings concerning the press, which have an eighteen-month statute of limitation period, will be accelerated in order to ascertain that no litigations will lapse solely on the ground that the statute of limitation has expired as a result of inactivity by prosecutors or other judicial personnel;
• The new EU Race Equality Directive be transposed into national law, worded in a way that would effectively exclude that such cases may not be tried, and taking into consideration the related recommendations of the Greek National Commission for Human Rights;
• Greece makes the declaration under Article 14 of the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD) it had pledged to the Committee on the Elimination of Racial Discrimination (CERD) in March 2001, so that individual or group complaints could be lodged to CERD (Greece and the UK are the only EU members who have not made such declaration to date);
• Make sure that the EU Race Equality Directive will guide Greek jurisprudence, along with jurisprudence of the Committee on the Elimination of Racial Discrimination (CERD) and
215 In particular under Law N° 927/1979 as amended by Law N° 1419/1984 and Law No 2910/2001. 77 recommendations of the European Commission against Racism and Intolerance (ECRI) recommendations; and that Greek courts, when presented with arguments based on international conventions ratified by Greece, include them in their deliberations and explanations of their rulings, rather than ignoring them as in the cases mentioned herein.
78
The following joint statement by Amnesty International, Human Rights Watch and the International Helsinki Federation for Human Rights was submitted to the OSCE meeting on Racism, Xenophobia and Discrimination, Vienna, 4 to 5 September 2003
In Copenhagen in 1990, participating states of the OSCE made a number of commitments to condemn racial and ethnic hatred, including anti-Semitism, and to undertake effective follow up measures to demonstrate these commitments in practice. We welcome the focus of this present meeting, and trust that it will provide the basis for a long-term, sustained effort on the part of participating states -- and the OSCE as an institution -- to combat racial discrimination and violence across the OSCE region.
Racism is an attack on the very notion of universal human rights. It systematically denies certain people their full human rights because of their colour, race, ethnicity, descent or national origin. The right to be free from racial discrimination is a fundamental principle of human rights law -- and a fundamental principle of the human rights the OSCE upholds. Under international human rights law, states are obliged to combat discrimination in all its forms. They have a responsibility to ensure that laws and institutions of the state address the root causes and consequences of discrimination, and secure adequate remedies for those who suffer violations of their fundamental right to equal treatment.
Whether inflicted by agents of the state or by private individuals or groups in the community at large, racism is intimately linked to the subordinate or marginalized position which those targeted for discrimination hold in society. The failure to hold to account those who commit, encourage or acquiesce in racist abuse frequently exacerbates the problem and helps create a climate of impunity for those who commit such acts.
Recognizing that a number of international bodies tasked to monitor manifestations of racism and xenophobia already exist, we recommend that efforts undertaken on the part of the OSCE to combat racial discrimination and violence place a strong emphasis on implementation. One concrete suggestion in this regard would be for the OSCE to convene an ad-hoc inter-agency meeting, bringing together relevant actors at the international and national levels to review states' implementation of recommendations made by expert bodies, including the Council of Europe European Commission against Racism and Intolerance, the European Monitoring Centre on Racism and Xenophobia, the United Nations Committee on the Elimination of Racial Discrimination and other Treaty Bodies, as well as the OSCE's own institutions such as the office of the High Commissioner on National Minorities, and the Contact Point for Roma and Sinti Issues.
We believe such an initiative would usefully build on and complement what already exists and lend new impetus to efforts underway. It would also demonstrate that the OSCE can play an active and concrete role in accord with its status in combating the manifestations of racism in all its forms across the OSCE region -- manifestations that remain a stain on commitments to equality and freedom from discrimination.
79 IHF intervention to the 2003 OSCE Human Dimension Implementation Meeting
SPECIFICALLY SELECTED TOPIC:
National minorities (Wednesday, 15 October 2003)
The level of government commitment to the realization of basic human rights is often best mirrored in their treatment of minorities. In Copenhagen in 1990, the participating States guaranteed that “persons belonging to national minorities have the right to exercise fully and effectively their human rights and fundamental freedoms without any discrimination and in full equality before the law. The participating States will adopt, where necessary, special measures for the purpose of ensuring to persons belonging to national minorities full equality with the other citizens in the exercise and enjoyment of human rights and fundamental freedoms.”216 In practice, however, member states still have a long way to go in fully implementing this pledge.
In the Krasnodar region of the Russian Federation,217 the authorities pursue a policy aimed at ousting the Meskhetian Turks. They have refused to grant Meskhetian Turks residence permits since 1989, and since 1991 authorities have denied them registration and Russian citizenship in a manner apparently aimed at systematically restricting the rights of this group. The federal authorities, for their part, do nothing to redress the unlawful situation although Meskhetian Turks are, by law, entitled to citizenship because they arrived on Russian territory before the entry into force of the 1991 Federal Law “On Citizenship of the Russian Federation.”
The repressive measures of authorities in Krasnodar are a direct result of the new Federal Laws “On Citizenship of the Russian Federation” and “On the Legal Position of Foreign Nationals in the Russian Federation,” which entered into force in 2002. Thousands of citizens of the former USSR (the number differs according to various authorities from between half a million to over three million) who were denied Russian or any other citizenship mainly due to bureaucratic difficulties, reside permanently on the territory of Russia.
Under the former (1991) citizenship law, such people were entitled to a simplified procedure to receive Russian Federation citizenship and the Soviet passport remained a legal form of personal identification. The new Russian citizenship law does not provide for a simplified procedure for former USSR citizens to receive citizenship, except for some groups. Moreover, under the newly adopted Federal Law “On the Legal Position of Foreign Nationals in the Russian Federation,” citizens of the former USSR face insurmountable difficulties when trying to receive a residence permit, and may be deported. As of 2004, at which time Soviet passports will become invalid, these persons will find themselves in a complete legal vacuum.
216 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 29 June 1990, par. 31.Copenhagen 217 Information on Russia is based on the Alternative NGO Report on Observance of ICCPR by the Russian Federation, Submitted to the Attention of the UN Human Rights Committee in Connection with the Upcoming Consideration of the Fifth Periodical Report of the Russian Federation, Moscow, prepared by the Moscow Helsinki Group, Memorial Human Rights Center, Center for Assistance for International Protection, Nizhnii Novgorog Committee against Torture, Information Center SOVA, Center for the Development of Democracy and Human Rights, the Glasnost Defense Foundation, the Independent Council of Legal Expertise, Interregional Group “Human Rights Network,” the Movement of Human Rights and the Center of Social Labour Rights. 80 On 22 April 2003, President Niyazov of Turkmenistan issued a decree that gave Russians with dual citizenship in Turkmenistan two months time (by 22 June 2003) to choose which citizenship they wanted to keep. The decree was transformed into a constitutional clause in August.218
According to Moscow’s estimates, the new legislation directly affects 100,000-150,000 Russians living in Turkmenistan, while Turkmen authorities put the figure at mere 47.219
Turkmen authorities have increasingly viewed citizens with dual nationality as a threat, since an alleged attempt on Niyazov's life last November allegedly involved several dual citizens.220
Russian media reported in June that members of Turkmenistan's ethnic Russian minority were leaving in panic as the deadline loomed. Under Turkmen law, non-citizens do not enjoy property rights, and the right to education is not guaranteed. Leaving the country became more difficult after the reintroduction of Soviet-style exit visas, which were part of a crackdown after an alleged November assassination.221 Women under 35 are banned from receiving exit visas and members of a given family will not be allowed to all leave the country at the same time.222 In addition, foreigners must pay a huge fee to the state if they wish to marry a Turkmen.223
The IHF is concerned that the recommendations made by Emmanuel Decaux, the OSCE Rapporteur on Turkmenistan, have not only remained a dead letter, but that in fact in certain fields -- such as inter alia national minorities and freedom of movement -- steps were undertaken to further limit these rights and freedoms.
In his report, Professor Decaux report recommended that “Turkmenistan should immediately put an end to the forced displacement of populations, especially persons belonging to national minorities. It should also guarantee freedom of movement inside the country and freedom to leave the country for all Turkmen nationals, as well as for foreigners, and in particular facilitate trans-border contacts.”
This new constitutional clause is but one example of the steps undertaken in the aftermath of the alleged assassination attempt of 25 November to crush Turkmen citizens who are of foreign origin and who have privileged contacts with the outside world.
The IHF calls upon the High Commissioner on National Minorities to give due attention to this matter.
Greece224 continues to recognize only one minority, the Turks of Western Thrace, and then only as a religious -- not a national -- minority. In line with its policy, the existence of the Macedonian minority in Greece is denied, and both ethnic Macedonians living in Greece and foreign citizens of Macedonian ethnicity wanting to visit Greece continue to be harassed. Regarding the latter group, Greek authorities have also denied entry into Greece to many Macedonians who are former citizens of Greece or their descendants.
On 8 June 2003, the Greek Deputy Foreign Minister, Andreas Loverdos, made a historical statement in an interview with "Sunday Eleftherotipia," stating that Greek authorities were ready to seek a technical solution to the problem of denying entry in the summer of 2003. Despite this statement, and following
218 IRIN.org, “Turkmenistan: Abolition of dual citizenship widely condemned,” 21 August 2003, at http://www.irinnews.org/report.asp?ReportID=36126&SelectRegion=Central_Asia&SelectCountry=TURKMEN ISTAN 219 BBC, “Russians 'flee' Turkmenistan,” Friday, 20 June, 2003, at http://news.bbc.co.uk/2/hi/asia- pacific/3007598.stm 220 AFP, “Turkmenistan dismisses fears for Russian minority amid ongoing war of words,” 8 July 2003. 221 IRIN.org, op.cit. 222 BBC, op.cit. 223 Dogry Yol, “Dilemma for Turkmenistan’s Russians,” 26 April 2003, at http://www.dogryyol.com/eng/article/306.html 224 Unless otherwise noted, information on Greece has been provided by Greek Helsinki Monitor, September 2003. 81 a backlash, additional conditions for entry were introduced. As a result, many ethnic Macedonians were denied entry into Greece throughout the summer. Greek authorities denied entry to persons whose birthplace was mentioned with their Macedonian names.
On 20 July, Australian citizen Janko Kalinchev, born in the village of Meliti (Ovcharani in Macedonian), and Canadian citizen Georgi Kizovski, born in Gavros (Gabresh), attempted to enter Greece from the Republic of Macedonia in order to visit their birthplaces. They were denied entry by Greek border officials, who refused to give an explanation.225
In addition, associations that include the words “Macedonian” or “Turkish” in their names continue to be rejected by the courts. Despite a ruling by the European Court of Human Rights in 1998 condemning Greece for the non-registration of the Home of Macedonian Civilization, a local court in Florina again rejected its registration in June 2003. On 19 September, the Supreme Court heard for the second time an appeal against the dissolution of the Turkish Union of Xanthi.
In Turkey, legal reforms introduced since 2002 in order to bring national legislation in line with the EU Copenhagen criteria have formally included improvements also for minorities. However, while many restrictions on the use of minority languages in different sectors of life have been relaxed, little has been implemented in practice and new regulations have been adopted which, again, restrict free use of, for example, the Kurdish language.
The August 2002 reform package lifted some restrictions on broadcasting and education in minority languages, but regulations enacted by parliament to implement these reforms reduced the width implicitly attributed to the changes.226 Moreover, the Law on the Establishment and Broadcasting of Radio Stations and Television Channels was amended in 2002 to allow broadcasting in the “different languages and dialects used traditionally by Turkish citizens” if the programs do not “contradict the fundamental principles of the Turkish Republic enshrined in the Constitution and the indivisible integrity of the state with its territory and nation” or “encourage the use of violence or incite feelings of racial hatred.” However, these limitations can still be interpreted in a highly restrictive manner,227 and the December regulations drafted by the highest broadcasting authority RTÜK limits the broadcasting to state channels and only for a few hours a week, requires mandatory complete translation of all programs into Turkish, and restricts the nature of programs.228 Hence, in practice, Kurdish language broadcasting was still on hold as of the summer of 2003.
On the basis of the August 2002 reforms, instruction of languages “used by Turkish citizens in their daily lives” was formally allowed in private educational institutions if such courses, again, do not threaten “national integrity.” However, regulations adopted in December to implement this reform exemplified a marked retreat from the original amendment,229 restricting the minority language instruction to weekends or holidays for students between twelve and eighteen years of age who have completed primary education. Moreover, minority language instruction can only be given in private schools and not as part of the public educational system. It cannot constitute the language of instruction -- even in private schools.230
While there are no longer legal obstacles to publishing newspapers and magazines in Kurdish, pro- Kurdish newspapers continue to face serious harassment. Newspapers cannot be sold freely, Kurdish journalists are obstructed in their work, and legal suits have been filed against newspapers. For
225 Macedonian Human Rights Movement of Canada (MHRMC), “MHRMC Condemns Greece's Continued Blacklisting of Ethnic Macedonians,” press release, 26 July 2003, at http://www.greekhelsinki.gr/bhr/english/index.html 226 Human Rights Watch (HRW), A Human Rights Agenda for the Next Phase of Turkey’s E.U. Accession Process. 227 IHF, OSCE Human Dimension Implementation Meeting, Warsaw, 9-19 September 2002, Statements by the International Helsinki Federation for Human Rights (IHF), at www.ihf-hr.org 228 Turkish Daily News Online, 18 December 2002. 229 HRW, A Human Rights Agenda for the Next Phase of Turkey’s E.U. Accession Process. 230 IHF, op.cit. 82 example, as of July 2003, the daily Yediden Ozgur Gundem was on the verge of closing down because of massive punitive pressure obviously aimed at destroying its financial basis. Between September 2002 and July 2003, 215 criminal proceedings were initiated against daily, including 184 cases by the State Security Court and 31 cases by the local court in Beyogly, Istanbul. The paper has been charged with crimes such as “supporting an armed organization,” “incitement to hatred,” and “separatism.” A number of additional lawsuits are pending without official notification. In addition, the radio station Radyo Dunya received on 10 July 2003 a one-month broadcasting ban for airing Kurdish songs during a program on the history of the Kurdish language and literature more than half a year earlier -- when this was already legally allowed. The biggest Kurdish TV station, Medya TV, could no longer be viewed as of mid-2003.231
In addition to the above, there has been poor progress in the return of the estimated 380,000 to one million people who had been internally displaced from the south-eastern regions. According to Human Rights Watch, the Turkish government, security forces and paramilitaries were obstructing the return although active hostilities ceased in 1999. As a result, it appears that no more than 10% had ventured home by late 2002. In some cases local authorities forbid people to return, in others return is officially permitted but returning villagers are greeted with harassment, detention and attacks by the gendarmerie and village guards. Some have to flee a second time.232
In Estonia, the official aim of the government’s minority policy has been to facilitate the integration of national minorities into Estonian society. While the government has appeared increasingly willing to opt for pragmatic solutions, its integration polices have had a rather narrow focus and have continued to be complicated by the high rate of non-citizens among members of the country’s national minorities.
Some 13 percent (over 170,000) of inhabitants in Estonia are stateless, most of whom are Russian speakers, and over 45,000 are children. Official statistics show that since 1996, the number of naturalizations has steadily decreased from 22, 773 in 1996 to 3,090 in 2001.233 The small number of naturalization suggests that the integration efforts have at least partially failed.
Statelessness seriously limits individuals’ opportunities to integrate. Moreover, while integration has been primarily promoted through knowledge of the Estonian language, the use of minority languages remains unduly limited in several respects. In particular, language requirements applying to private sector employees may result in discrimination against non-Estonian speakers. In 2002 the UN Committee on the Elimination of Racial Discrimination (CERD) criticized the language requirements. The committee also asked the Estonian government to provide information detailing the relationship between language skills, ethnic background and employment in the country.234
231 Yekiziya Rajnamenvanen Kurdistan (Union of Journalists from Kurdistan), Account of the situation of the Kurdish media in the first half of 2003. 232 HRW, Turkey Fails Displaced Villagers, International donors shun government's defective return plans, 30 October 2002, at www.hrw.org/press/2002/10/turkey1030.htm. For full report, see Displaced and Disregarded: Turkey's Failing Village Return Program, at http://hrw.org/reports/2002/turkey/ 233 Legal Information Centre for Human Rights, Report on the Human Rights Situation in Estonia as of June 1, 2003. 234 Concluding Observations of the CERD: Estonia, 1 November 2002. 83