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IHR LEGAL Newsletter

IHR LEGAL Newsletter

July – September 2022

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In this issue:

Highlights of our latest newsletter

  • On July 7, 2022, the ECtHR ruled that Italian authorities did not respond with the requisite promptness and diligence in dealing with domestic violence in the case of “M.S. v. Italy“. The applicant, M.S., an Italian national, was assaulted, harassed, and threatened for years by her then-husband, D.P., for which reason she filed several complaints against him. However, the State authorities began to take measures late, for which reason the ECtHR held the State responsible for the period in which it did not take effective measures.

 

  • On August 25, 2022, the ACHPR expressed its deep concern about the human rights situation in the Republic of Guinea. The Republic of Guinea is facing serious challenges, which result in violations of human rights, particularly freedom of expression, association, and peaceful assembly, as well as the right to life and physical integrity. Protests have been harshly repressed and there has been excessive use of force by security forces, resulting in a multitude of arrests, injuries, and several deaths.

 

  • On September 8, 2022, Volker Türk was appointed as High Commissioner for Human Rights. With the end of the term of Ms. Michelle Bachelet, who served as High Commissioner from 1 September 2018 through 31 August 2022, the term of her successor, Mr. Volker Türk, begins, who has a long career in the promotion of universal human rights.

 

  • On September 8, 2022, the IACHR requested the IACtHR provisional measures for 45 persons deprived of liberty in eight Nicaraguan detention centers. The individuals are identified as demonstrators of the protests initiated in 2018 and opponents of the current government, in addition to being members of various sectors of civil society. The aforementioned persons have been held incommunicado, and placed in conditions of deplorable detention, these being some of the reasons that motivated the request for provisional measures.

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News concerning the universal system and regional systems for the promotion and protection of human rights

I. UNIVERSAL HUMAN RIGHTS SYSTEM

1. Office of the United Nations High Commissioner for Human Rights (OHCHR)

The OHCHR is the principal human rights entity of the United Nations. Its functions include promoting and protecting all human rights, helping to empower people, and developing a human rights perspective in all United Nations programs. The current United Nations High Commissioner for Human Rights is Mr. Volker Türk.

News from the OHCHR:

— On September 8, 2022, the United Nations Secretary-General António Guterres appointed Volker Türk as High Commissioner for Human Rights, following approval by the General Assembly. With the end of the term of  Ms. Michelle Bachelet, who served as High Commissioner from 1 September 2018 through 31 August 2022, the term of her successor, Mr. Volker Türk, begins. Before becoming High Commissioner, Mr. Türk was occupying the position of Assistant Secretary-General for Strategic Coordination in the United Nations Chief’s Executive Officer. As said by the United Nations Secretary-General: “Mr. Türk has devoted his long and distinguished career to advancing universal human rights, notably the international protection of some of the world’s most vulnerable people – refugees and stateless persons”. The press release can be found here.

On August 22, 2022, former High Commissioner Michelle Bachelet commented on the repeal of the Singapore law that banned sex between men. The High Commissioner welcomed the announcement made by the Prime Minister of Singapore to repeal Section 377A of the Penal Code which criminalizes consensual sexual conduct between men. According to the High Commissioner, repealing Section 377A will help pave the way for constructive dialogue and greater understanding and acceptance of and safety for LGBTIQ+ individuals in Singapore. About the Government’s announced plans to amend the Constitution to guarantee the legal definition of marriage to be limited to an act between a man and a woman, several UN human rights mechanisms have called on all States to give legal recognition to same-sex unions and have also called for the same benefits and protections for all. “It is essential that the law protects the relationships of all consenting partners, whatever their sexual orientation, gender identity, or sex characteristics”, said the High Commissioner.

The High Commissioner urged the Government to speed up the repeal proceedings and take steps to protect the rights of LGBTIQ+ people, including enacting anti-discrimination legislation that addresses discrimination on grounds of sexual orientation, gender identity, and sex characteristics. The press release can be found here.

On July 25, 2022, former High Commissioner Michelle Bachelet condemned executions in Myanmar and called for releasing all political prisoners. On July 25, Myanmar state media informed that the military had executed four individuals, among them former National League for Democracy (NLD) lawmaker Phyo Zeya Thaw, democracy activist Kyaw Min Yu, known as Ko Jimmy. Hla Myo Aung and Aung Thura Zaw were the other two men executed. In Myanmar, these cases are being tried by military courts behind closed doors. Since the February 1, 2021, military coup, 117 people, including two children, were sentenced to death including 41 who were sentenced in absentia. Currently, more than 11,500 people remain in detention for opposing the military takeover.

 The High Commissioner expressed her strongest disapproval for the execution of the four democracy activists by Myanmar’s military despite repeated appeals by the United Nations and the wider international community to not execute death sentences and reiterated her call to the international community to make the military accountable to its obligations under international law. The press release can be found here.

2. Human Rights Committee (HRC)

The Human Rights Committee is the United Nation’s body of independent experts that monitors the implementation of the International Covenant on Civil and Political Rights by its States Parties.

News from the HRC:

On July 12, 2022, the HRC completed its consideration of the fourth periodic report of Hong Kong and commended the legislation that improves same-sex couples’ access to public housing and visas while also raising several questions. The HRC welcomed the ruling of the High Court of the Hong Kong Special Administrative Region of China that decided that same-sex couples should be allowed to apply for public housing and that in 2018, the Court also issued a landmark decision granting spousal visas to same-sex couples.

 However, the HRC voiced its concern over statistics that showed that the national security police had arrested 201 individuals for allegedly endangering national security, including a total of 125 individuals and five companies who had been charged. At the time, the HRC raised its concerns on more than half of the people arrested under this law were held without trial for longer than a year. The press release can be found here and the fourth periodic report here.

3. Committee against Torture (CAT)

The CAT is the United Nations’s body of independent experts that monitors the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

News from the CAT:

On July 29, 2022, the CAT ended its Seventy-Fourth Session after adopting concluding observations on Botswana, Nicaragua, the State of Palestine, and the United Arab Emirates. On Botswana, the CAT regretted that the State party was still unable to incorporate the Convention against Torture and other human rights treaties to which it was a State party into law. Concerning Nicaragua, the CAT lamented the authorities’ refusal to provide written replies to the list of questions and the fact that the State party’s delegation was absent during the scheduled dialogue. With respect to the State of Palestine, the CAT raised concerns that torture was deemed a misdemeanor, and called upon the State party to ensure that acts of torture were punishable by proportionate penalties. Finally, on the United Arab Emirates, the CAT expressed concern on allegations of torture and ill-treatment by the State party’s armed forces in Yemen. The CAT called on the State party to investigate and prosecute these offenses and ensure that victims had a viable pathway to redress, rehabilitation, justice, and compensation. The press release can be found here and the summaries of the public meetings of the CAT can be found here.

4. Committee on the Rights of Persons with Disabilities (CRPD)

The CRPD is the United Nation’s body of independent experts that monitors the implementation of the Convention on the Rights of Persons with Disabilities.

News from the CRPD:

On August 23, 2022, the CRPD commended Japan for providing compensation to victims of eugenic sterilization and posed questions on institutionalization and inclusive education. On the occasion, the CRPD concluded its consideration of the initial report of Japan on its implementation of the Convention on the Rights of Persons with Disabilities. Firstly, with regard to eugenic sterilization,  the delegation indicated that in 1996 the eugenic protection law had been modified and that the provisions relating to eugenic surgeries had been abolished. Consequently, the law’s purpose now was to protect maternal health. The CRPD testified that the preamble of the Former Eugenics Protection Law One-time Payment Law expressed remorse and apologies, and 3.2 million yen were provided in compensation to each victim of forced sterilization.

On education, the CRPD raised concern about regress observed as regards the education of children with disabilities. According to the CRPD, some new national legislation promoted special segregated education of children with disabilities, subjecting them to a medical assessment, resulting in the denial of inclusive education. In her concluding remarks, Miyeon Kim, committee expert, and country co-rapporteur, said she expressed hope that Japan would become a world leader in upholding the rights of persons with disabilities. The press release can be found here and the concluding observations here.

II. AFRICAN HUMAN RIGHTS SYSTEM

1. African Commission on Human and Peoples’ Rights (ACHPR)

The ACHPR is a quasi-jurisdictional body, within the framework of the African Union, whose main function is to protect and promote human and people´s rights in African countries. Among its functions are to process complaints from individuals or States about human rights violations committed by States in the region, and to receive periodic reports from States on the human rights situation in their country.

News from the ACHPR:

— On August 30, 2022, the ACHPR made a statement on the International Day of Victims of Enforced Disappearances. The ACHPR attested that enforced disappearances have been used in Africa, particularly during conflicts, civil unrest, counter-terrorism activities, and states of emergency, as a pernicious means of repression. These practices, harmful from all points of view, constitute for the victims, their families, and their relatives, clear violations of several fundamental rights and freedoms, including civil, political, economic, social, and cultural rights. The ACHPR strongly condemned acts of enforced disappearance in all their forms and expressed its sympathy and solidarity with the victims, their families, and loved ones. The ACHPR noted that only a few States Parties to the African Charter have ratified the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). In this regard, the ACHPR adopted́ at its 71st Ordinary Session, held virtually from April 21 to May 13, 2022, the Guidelines on the Protection of All Persons from Enforced Disappearance in Africa, which will serve as the first continental human rights legal instrument establishing benchmark standards to facilitate the effective implementation of the rights guaranteed in this regard by the African Charter and other existing legal instruments, including, inter alia, the rights to life, dignity and security of the victims of these crimes. The press release (in French) can be found here.

On August 25, 2022, the ACHPR expressed its deep concern due to the human rights situation in the Republic of Guinea. The ACHPR, through its Rapporteurs, remarked with sadness that for several months, Guinea has been experiencing several ongoing challenges, especially those related to guaranteeing human rights in its territory. Also, the ACHPR observed bitterly that such challenges continuously result in human rights violations, particularly violations of freedom of expression, association, and peaceful assembly, as well as the right to life and physical integrity. Reports have pointed out that not only are political opposition and civil society protests increasingly repressed, but they are also the scenario of excessive use of force by security forces, leading to a multitude of arrests, injuries, and several deaths.  More recent news reportedly indicated that the government decided to dissolve the National Front for the Defense of the Constitution, a citizen’s movement, which was established in April 2019.

 As a result,  the ACHPR urged the Guinean authorities to (i) take the necessary measures to guarantee freedom of expression, association and peaceful assembly, the right to life, and the physical integrity of all persons on its territory; (ii) adopt the strategies necessary to restore peace and security; (iii) investigate so that the perpetrators of these acts can be subjected to the sanctions in force; and (iv) engage in a process of peace, social cohesion and the fight against violence. The press release can be found here.

On August 22, 2022, the ACHPR strongly condemned the terrorist attack perpetrated in Tessit, Mali. According to the Government, the attack was probably perpetrated by the Islamic State in the Greater Sahara (IEGS) and caused the death of 42 Malian soldiers and several civilians. The ACHPR expressed being deeply concerned by the increasing frequency of terrorist attacks that continue to plunge the Malian people into mourning, in particular the one perpetrated against the villages of Diallassagou, Dianweli, Deguessagou, and surrounding areas in the Bankass Circle in June 2022. On the occasion, the ACHPR invited the Malian authorities to take appropriate measures to secure the territory, especially the military camp in the locality of Tessit which is often targeted by jihadist attacks. The press release (in French) can be found here.

2. African Court on Human and Peoples’ Rights (ACtHPR)

The ACtHPR, which is also an institution of the African Union, resolves contentious cases of human rights violations, orders provisional measures, and presents its expert opinion on human rights issues.

News from the ACtHPR:

On July 20, 2022, the ACtHPR elected a new judge and re-elected an existing judge. During the 41st Ordinary Session of the Executive Council of the African Union held in Lusaka, Zambia, Professor Dennis Dominic Adjei, a national of Ghana, was elected judge of the ACtHPR for a term of six years. On the same occasion, Justice Ntyam Ondo Mengue from Cameroon was re-appointed as a judge for a second and final term of six years. Noteworthy, the ACtHPR is composed of eleven judges, nationals of the Member States of the African Union elected in their individual capacities.

Pursuant to Rule 3 of the Rules of Court and Article 16 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Professor Adjei was sworn in during the opening of the four-week 66th Ordinary Session of the Court that occurred on August 29, 2022, in Arusha, Tanzania, the seat of the Court. The President of the Court, Hon Lady Justice Imani Daud Aboud, congratulated the two Judges and wished them every success as they carry on the noble task of pursuing justice and protection of human rights in Africa. The press release can be found here.

III. EUROPEAN HUMAN RIGHTS SYSTEM

1. European Court of Human Rights (ECtHR)

The ECtHR is a judicial body of the Council of Europe whose main function is to monitor the compliance of States parties with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The ECtHR is responsible for analyzing complaints from individuals, groups of individuals, or States for human rights violations committed by States that have accepted the ECtHR’s jurisdiction.

News from the ECtHR:

On July 7, 2022, the ECtHR ruled that Italian authorities did not act with the requisite promptness and diligence in dealing with acts of domestic violence in the case of “S. v. Italy. The applicant, M.S., an Italian national, filed a first criminal complaint in 2004, claiming that she had been assaulted by her then-husband, D.P. Later on, in 2007, D.P. went to M.S.’s office to discuss their separation, when he attempted to assault M.S. On the occasion, the applicant was assisted by her brother-in-law, L.S., who was wounded in the leg with a knife by D.P. That same evening M.S. filed a complaint at the carabinieri station. It was seven years after the events, on June 27, 2014, that the Potenza District Court found D.P. guilty and sentenced him to one year’s imprisonment for the injuries to L.S. and to one year’s imprisonment for the mistreatment of M.S. On May 23, 2015, D.P. filed an appeal. However, in a judgment of June 10, 2016, the Court of Appeal ruled that the prosecution of the offenses with which D.P. was charged was time-barred. Additionally, during all these years, D.P. stalked and threatened M.S. and also carried out violent acts against her children and, because of this, she lodged several complaints.

 The ECtHR found that there was a violation of Article 3 (prohibition of inhuman or degrading treatment) of the ECHR only in relation to the period from January 19, 2007, to October 21, 2008. During that period, M.S. lodged many criminal complaints due to violent acts carried out by D.P., but only after October 21, 2008, the State authorities started to take measures against these acts. The press release can be found here and the decision here.

IV. INTER-AMERICAN HUMAN RIGHTS SYSTEM

1. Inter-American Commission on Human Rights (IACHR)

The IACHR is the autonomous body of the Organization of American States (OAS) responsible for the promotion and protection of human rights in the Americas. One of its duties is to receive and review complaints from individuals about human rights violations and to monitor human rights situations.

News from the IACHR:

On September 8, 2022, the IACHR requested the Inter-American Court on Human Rights provisional measures for 45 persons deprived of liberty in eight Nicaraguan detention centers. The IACHR stated that the individuals are identified as demonstrators of the protests initiated in 2018 and opponents of the current government, in addition to being members of various sectors of civil society; and have expressed their disagreement with the policies of the current government. The 45 people are beneficiaries of precautionary measures and are being held in eight penitentiary centers. Despite repeated actions by the IACHR to obtain information from the State of Nicaragua, no response has been received indicating that protection measures have been adopted to address the situation of risk, nor have concerted actions been taken, or measures to investigate the events of risk. The situation is especially worrisome, given that the aforementioned persons have been held incommunicado, and placed in conditions of risky detention, which would be aggravated by the lack of medical attention. Furthermore, the persons do not have the minimum guarantees, typical of any judicial process, in a context in which the escalation of the crisis in Nicaragua continues. Provisional measures are issued by the IACtHR in cases of extreme gravity and urgency to avoid irreparable harm to persons; they are mandatory for the States and the decisions contained therein require States to adopt specific actions to safeguard rights and/or protect the lives of persons or groups that are under threat. The press release (in Spanish) can be found here and the precautionary measures here.

On August 16, 2022, the Office of the Special Rapporteur for Freedom of Expression (SRFOE) of the IACHR condemned the murder of journalist Ernesto Méndez in Mexico and noted that 2022 marked the highest number of crimes against the press in the country over the last 24 years. As reported, Ernesto Méndez was the victim of an armed attack by a group of non-identified individuals on August 2, while in the company of family and friends in a bar in the city. In accordance with the Guanajuato State Prosecutor’s Office, there were at least four people killed in the attack and at least one was critically injured. Ernesto Méndez used to be the owner and general manager of the local newspaper Tu Voz. Throughout his 18-year career in journalism, he was also a collaborator to Periódico Correo and Zona Franca. According to reports received by the Rapporteur’s Office, Ernesto Méndez had previously been the target of threats. With his death, 2022 became the deadliest year for the press in Mexico, with thirteen journalists murdered for reasons that could be linked to their informative work.

The Special Rapporteur’s Office urged the Mexican State to investigate the facts, punish the perpetrators and ensure adequate reparations to the victims. “The failure to punish the material and intellectual authors of crimes against freedom of expression sends a message of permissiveness and tolerance of violence against the press and contributes to self-censorship”, stated the SRFOE. The press release can be found here.

On August 9, 2022, the International Day of the World’s Indigenous Peoples, the IACHR called on States to build new relationships with indigenous peoples based on respect for their self-determination. The American and United Nations Declarations on the Rights of Indigenous Peoples explicitly acknowledge the right of indigenous peoples to freely determine their political status and to freely seek their own economic, social, and cultural development. This entails, among other matters, the ability to decide on their own forms of governance and self-government; to adopt their own priorities for the development of their land and ancestral territories; and to preserve their cultures, identities, and existence into the future. For this reason, it is an essential right for the exercise and enjoyment of other rights—be they collective or individual—for these peoples.

The IACHR expressed that State relationships with indigenous and tribal peoples that are based on respect for and recognition of these peoples’ own expressions of autonomy and self-determination enable a reversal of historical legacies of discrimination, racism, and colonialism. Such new relationships can also permit the parties to transcend old ties grounded on paradigms of assimilation or domination that have affected the lives of indigenous and tribal peoples in the Americas for centuries. The press release can be found here.

On July 25, 2022, in the framework of the International Day of Afro-Latino, Afro-Caribbean, and Diaspora Women, the IACHR highlighted the labor precariousness and discrimination faced by thousands of Afro-descendant women in the hemisphere who perform paid domestic work. According to the official data, there are around 14.8 million paid domestic workers in the region, 91% of whom are women, the majority of whom are of African descent and indigenous. The IACHR pointed out that due to historical hegemonic and colonial processes in the Americas, Afro-descendant women have been overrepresented in care and domestic work, and due to the specific risks they face, they may be more exposed to situations of vulnerability and discrimination in this context.

In the IACHR’s observations, challenges to compliance with the Inter-American normative framework that protects women, and domestic workers were noted, including the right to decent and equitable working conditions, and to a life free of discrimination and violence, as well as the prevention, punishment, and investigation of cases of human trafficking and modern slavery. Furthermore, the IACHR recognized the significant contribution of Afro-descendant domestic workers to national and international economies and urged the States of the region to assure the guarantee of and access to their labor and social security rights by implementing practical and effective public policies and measures, including an intersectional perspective that allows for the visibility of differential factors. The press release can be found here.

On July 20, 2022, the IACHR condemned the increasingly acute situation of structural insecurity in Haiti. The IACHR stated its concern over the clashes between armed groups in the Cité Soleil area of Port-au-Prince, which left 99 people dead and 135 wounded and resulted in the displacement of more than 2,500 people during the period July 7–14, according to a report issued by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA). The actions of armed groups have paralyzed this area of more than 300,000 inhabitants, denying access to public services, emergency assistance, and essential activities in the neighborhood, and even affecting the operations of the Varreux port facility, the entry point into Haiti for humanitarian assistance and other goods. Through the first half of the year, 934 people were murdered, 680 were kidnapped, and 684 were injured in actions perpetrated by criminal gangs, according to the Office of the United Nations High Commissioner for Human Rights (OHCHR).

The IACHR urged the State and the international community to pursue solutions grounded in the comprehensive protection of human rights and the strengthening of democratic institutions and those tasked with upholding law and order, as interdependent priorities. In this context, the IACHR urged the international community to implement coordinated actions to prevent the illegal introduction of arms and ammunition into the country, as well as their supply to armed groups. The press release can be found here.

2. Inter-American Court of Human Rights (IACtHR)

The IACtHR is a regional human rights court responsible for applying and interpreting the Inter-American Convention on Human Rights and other human rights instruments in the region. Its main function is to decide cases on human rights violations committed by States that have accepted its jurisdiction.

News from the IACtHR:

The IACtHR held its 65th Special Session between July 25 and 27, 2022, and it deliberated the judgment of a contentious case and several interpretations of judgments. The IACtHR deliberated judgment in the “Case of the Members and Militants of the Patriotic Union v. Colombia“. The case deals with the alleged successive and serious human rights violations committed to the detriment of more than 6,000 victims, members, and militants of the Patriotic Union (UP) political party in Colombia, which began in 1984 and lasted for more than 20 years. The facts involve forced disappearances, threats, harassment, forced displacement, and attempted murders against members and activists of the UP, presumably perpetrated by state agents, and non-state actors with their alleged tolerance and acquiescence.  The sentence is about to be published.

Also, the IACtHR deliberated the following judgments of interpretation: (i) “Case of Cuya Lavi et al v. Peru“; (ii) “Case of the Maya Kaqchikel Indigenous Peoples de Sumpango et al v. Guatemala“; (iii) “Case of the Massacre of the Village of Los Josefinos v. Guatemala“; (iv) “Case of Former Employees of the Judiciary v. Guatemala“; (v) “Case of the Teachers of Chañaral and other municipalities v. Chile“; and (vi) “Case of Manuela et al v. El Salvador“. The press release can be found here.

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