Ambassador Johnson on Rule of Law: Legislative transparency, Independence of the judiciary, Right to a fair trial
(As prepared for delivery at the OSCE Human Dimension Implementation Meeting, Session 4)
The rule of law underpins all of our human dimension commitments. Today, we will focus on certain elements of rule of law—legislative transparency, independence of the judiciary and the right to a fair trial. But, I think it is useful to pause for a moment to consider what we mean when we talk about rule of law. In a speech a few years ago while acknowledging the risks of “formulating something too insufficient for the great purpose behind the phrase,” U.S. Supreme Court Justice Anthony Kennedy, set out a working definition of the rule of law. According to Justice Kennedy, there are three main components:
First: “The law is superior to, and thus binds, the government and all its officials.”
Second: “The law must respect and preserve the dignity, equality, and human rights of all persons. To those ends, the law must establish and safeguard the constitutional structures necessary to build a free society in which all citizens have a meaningful voice in shaping and enacting the rules that govern them.”
And, third: “The law must devise and maintain systems to advise all persons of their right, and it must empower them to fulfill just expectations and seek redress of grievances without fear or penalty and retaliation.”
Where these conditions exist people thrive and economies flourish. Where they do not societies and individuals pay a high price. Where even one of these components is missing, rule of law does not genuinely exist. Consider the words of the former Chief Justice of South Africa, Arthur Chaskalson: “The apartheid government, its officers and agency were accountable in accordance with the laws; the laws were clear, publicized and stable, and were upheld by law enforcement officials and judges, what was missing was the substantive component of the rule of law. The process by which laws were made was not fair…and the laws themselves were not fair.”
As I read this description, I cannot but think of the situation in the United States prior to the passage of civil rights legislation in the 1960s. Based on our own experience and history, we are cognizant that the struggle to ensure a genuine state of rule of law is never ending, and requires constant vigilance. It requires, among other things, an engaged citizenry, strong civil society and free media. That is why the presence here in Warsaw of so many non-governmental organizations is of such importance. For it is often the courageous work of NGOs that makes us aware of the consequences of a failure to uphold any element of rule of law and that helps us guide us toward remedies and progress.
In Russia, the tragic deaths in custody of Sergei Magnitsky and Vera Trifonova are solemn reminders of the human cost of a deficient, poorly functioning and corrupt criminal justice system—a system in which officials have remained above the law, not accountable before it. Ms. Trifonova was arrested and allegedly denied medical attention for diabetes in an attempt to force her to confess to charges of fraud. She subsequently died in prison. Mr. Magnitsky, an attorney arrested on tax evasion charges and who died of medical neglect in pretrial detention, is widely believed to have been imprisoned as retribution for his claim that government officials stole over $200 million in a tax fraud scheme involving the company he represented. The same officials he accused of corruption were responsible for his arrest. Withering publicity and international outrage have only now begun to pierce the atmosphere of impunity that surrounds corrupt officials and stifles the rule of law in this tragic case. The intentional denial of medical care is also a form of intimidation, with the apparent goal of securing coerced confessions.
The second trial, verdict, and sentence against former Yukos executives Mikhail Khodorkovsky and Platon Lebedev also evoke serious concerns about the right to a fair trial and the independence of the judiciary in the Russian Federation. We are troubled by the allegations of serious due process violations, and concerned about the rule of law being overshadowed by political considerations.
The United States is very concerned about the poor conduct of trials as well as continuing police abuse in the wake of the June 2010 violence in southern Kyrgyzstan. Trials and arrests in connection with the violence have not been conducted fairly. As many as 91 percent of those prosecuted for crimes related to the June events have been ethnic Uzbeks, despite the fact that ethnic Uzbeks were the overwhelming majority of the victims. Few ethnic Kyrgyz have been investigated or prosecuted. Many prosecutions have been based on confessions allegedly extracted under torture. Defendants’ allegations of torture are rarely investigated or are simply dismissed, and trials have proceeded in spite of these claims. Moreover, defendants and their lawyers have been physically attacked during the trials, often in the courtroom itself and in front of judges and police, with little effort by authorities to intervene. The murder conviction of Azimjon Askarov is the most widely known of these cases, but it is far from isolated. Dozens of cases have been documented in which ethnic Uzbeks convicted of crimes related to the June violence did not receive trials that would be considered fair and impartial by international standards. Askarov’s Supreme Court appeal has been on hold since February 2011 with no explanation or timeframe for resolution by the court.
The August 2011 death of Osmonjon Khalmurzaev following his detention and beating by police in Bazar Korgon near Jalalabad is another disturbing example of these abuses. The police practice of arbitrary arrests and detention for the purpose of extorting bribes has continued since June 2010 and needs to end. Khalmurzaev was arrested at his home on August 7 by police claiming he was connected to the June 2010 violence. No warrant was shown for his arrest. Later that day he called his wife saying he was being severely beaten by three police officers who demanded money for his release. Upon receipt of some money, the police released Khalmurzaev, who fell into a coma the following day. He died on August 9, apparently of internal bleeding; autopsy results are pending. The government has opened an investigation into the death and removed four police officers from their posts. While this case has come to light because of Khalmurzaev’s death, many other cases do not become public as victims are afraid that reporting the abuse could lead to more police outrages. We further call on the government to ensure that all cases and trials are conducted fairly according to international standards, with safety ensured for all participants.
In Kazakhstan, arrests may be used for political purposes, and trials may be unfairly conducted. For example Natalya Sokolova, the lawyer for the striking oil workers, was sentenced in August to six years in jail for “igniting social unrest,” an excessive sentence that would appear to be punishment for her assistance to the labor union. We continue to be concerned that Kazakhstani human rights activist Evgeny Zhovtis remains in prison following flawed investigative and judicial proceedings. For example, defense evidence was not allowed to be presented, and defense witnesses were not allowed to testify.
In Belarus, the government routinely denies citizens due process and the country’s judiciary has no independence from the Lukashenka regime. The convictions of more than 40 presidential candidates, democratic opposition leaders and pro-democracy protestors in connection with the December 19, 2010, presidential elections failed to meet even the most minimal standards required of a fair and independent judiciary. We consider all those convicted and jailed to be political prisoners, and we have and will continue to call for their immediate and unconditional release. We are also concerned about the government’s disbarment of at least six lawyers who represented some of the defendants, including Tamara Sidarenka, who represented two former presidential candidates at their trials earlier this year.
While progress has been made in developing democracy and reform in Ukraine, we are concerned about several recent developments. The misuse of criminal investigations and legal proceedings to put pressure on opposition politicians via targeted prosecutions, including the arrest and arbitrary detention of former Prime Minister Yuliya Tymoshenko, former Interior Minister Yuri Lutsenko and former acting Defense Minister Valeriy Ivashchenko, as well as lesser known civil society activists, has demonstrated the further deterioration of the independence of the judiciary and the rule of law in Ukraine.
In Azerbaijan, we are concerned about the appearance of political motivation in the detentions of 16 opposition leaders and two youth activists. Opposition youth activist Jabbar Savalanli, who was convicted on May 4 and sentenced to two and a half years in prison on alleged drug possession charges, was detained shortly after making online comments calling for pro-democracy protests. Procedural irregularities, combined with the timing and circumstances surrounding Mr. Savalanli’s arrest, raise concerns that Mr. Savalanli was targeted on the basis of his political activities. Bakhtiyar Hajiyev, a youth activist and candidate in the November 2010 parliamentary elections, was sentenced to 2 years in jail on May 18, 2011, allegedly for evading military service. The timing of Mr. Hajiyev’s arrest, which immediately followed his efforts to organize pro-democracy protests earlier this year in Azerbaijan, raises questions about authorities’ use of the judicial system to punish dissent. On August 11, Azerbaijani authorities demolished the building owned by human rights activist Leyla Yunos, which housed the Institute for Peace and Democracy and two other NGOs, as well as Ms. Yunos’ residence. The authorities conducted this demolition despite a court injunction prohibiting such action, thus raising concerns about the government’s respect for rule of law. Such lack of respect for the judiciary, the timing of the demolition—within 48 hours of the publication of an article in the New York Times citing Ms. Yunos on the broad problem of private property demolitions—and subsequent reports of intimidation of some of Ms. Yunos’s colleagues, also raise concerns that this case is politically motivated.
We are concerned that the arrests and trials of individuals charged with belonging to certain groups banned in Uzbekistan are not conducted in accordance with international obligations. In particular, prosecutions are often based merely on printed material. There are frequently reports that the courts allow admissions of guilt allegedly made under duress or as the result of torture, and that defendants do not have access to qualified defense attorneys.
While it is unfortunately denied a seat at this table, the United States holds Kosovo accountable to OSCE norms. Kosovo lacks a fully independent judiciary in practice and the courts do not consistently afford due process at trial. Corruption is pervasive among public officials, negatively impacting legislative transparency. Corruption and outside influence seriously impede judicial independence. Outside influences include political pressures from parties and other branches of the government, family, and friendship ties, as well as outright bribes. Further, the existence of Serbian Government funded-parallel structures in northern Kosovo continue to block the restoration of a fully functioning, multi-ethnic judiciary, resulting in prolonged detentions, indefinitely delayed trials and a lack of due process.
In Albania, political pressure, intimidation, widespread corruption, and limited resources have also sometimes prevented the judiciary from functioning independently and efficiently. The politicization of appointments to the High and Constitutional Courts threaten to undermine the independence and integrity of these courts, and police officers are known to mistreat detainees.
Here, I would like to note that problems in the judicial sector are widespread across the former East Bloc and Soviet Union. It has been a more stubborn challenge than most had imagined to solidify the deep and fundamental changes needed to bring judiciaries in the region fully in line with democratic practices. Polls indicate that in many OSCE countries, including some of those that have navigated democratic transitions most successfully, citizens have lost faith in corrupt, inefficient and unaccountable judiciaries. Corruption and cronyism among judiciaries affect not only the citizenry of a given country, but also the security and prosperity of all who are linked through commerce and shared borders. It is a disincentive to investment and a drain on development. Examples abound of governments, individual judges and NGOs that are working to ensure that the judiciary in their country is both independent and accountable. We should support these efforts, and consider ways in which we can build further on ODIHR’s excellent work in this field, for instance in promoting the consideration by participating States of the “Kyiv Recommendations on Judicial Independence.”
The focus of the Parliamentary Assembly of the Council of Europe (PACE) on witness protection in the Western Balkans also warrants our attention here. Witness testimony is indispensible everywhere for justice to prevail and, where conflict has divided society, for reconciliation to take place. The PACE report of Mr. Jean-Charles Gardetto notes progress in this area but identifies a continuing need for significant improvement due to threats, intimidation and even murder of witnesses that deter others, without adequate protection, from coming forward. This creates an environment of impunity throughout the Balkans. The United States would like to stress to all parties the importance of witness protection in the EULEX investigation into organized crime and organ trafficking that allegedly took place in Kosovo and Albania in 1999.
Welcome to you all. It is good to see several old friends and as well as to meet new colleagues in our common efforts to advance human rights and the rule of law. I appreciate the opportunity to meet with you and I extend my thanks to USAID and ABA/ROLI for organizing the study tour.
Before I became Assistant Secretary of State for Democracy, Human Rights and Labor, I led an NGO, now known as Human Rights First. In that capacity, I worked to ensure that my own government did not flag in its efforts to uphold international human rights principles, and we worked effectively with other governments and with NGOs at home and overseas to that end. So I know very well how valuable the work of advocacy NGOs can be – just as I know how much more can be achieved in partnership with responsible and responsive governments.
When I addressed the Civil Society Working Group at its meeting in Russia last year, I noted that one critical barometer of a country’s respect for human rights is how it addresses the challenges within its prison system . As you may know, last year the United States submitted a Report to the U.N. High Commissioner for Human Rights in conjunction with the Universal Periodic Review process. The report was a product of collaboration between the U.S. Government and representatives of civil society from across the United States. I was one of a number of senior representatives from more than a dozen federal departments and agencies who traveled the country to attend a series of consultations hosted by a wide range of civil society organizations, in which individuals presented their concerns and recommendations. Among the subjects discussed and reflected in our report were “fairness and equality in law enforcement”, “safeguards for dignity in law enforcement and criminal justice”, “dignity and incarceration” and “dignity and juvenile defenders.” In submitting the report, we quoted Secretary Clinton, who said “democracies demonstrate their greatness not by insisting they are perfect, but by using their institutions and their principles to make themselves…more perfect.” By that we mean a robust and engaged civil society including non-governmental watchdog and advocacy groups, a free press, an independent legislature and judiciary, democratic elections processes that allow a full airing of views and concerns and institutions that are accountable to the people.
All of these elements of our working democracy are involved, in one form or another, in identifying, debating and addressing issues related to prison conditions, the human rights of persons in custody and reform of the prison system in our country. For example, in America, one of the challenges that you have likely heard about this week lies in the disparities in the rates of imprisonment for different portions of our population. A book about the state of political freedom in the United States published a couple years ago by the internationally known NGO Freedom House entitled Today’s American: How Free? – a book co-authored by Thomas Melia, who is now my Deputy – addressed the high incarceration rate and persistent racial disparities among those incarcerated. I quote:
The recent increase in incarceration rates is jarring. In 1980, the rate of incarceration overall in America was 1.39 per thousand residents; by 2006, that figure had risen to 7.5. Also disturbing is the fact that a black man today has a one in three chance of being behind bars at some point during his lifetime. (If he has not completed high school, he has a 60 percent chance of going to prison.) In contrast, a white man has only a 1 in 17 chance of going to prison.
Our courts, the press and NGOs also engage with local, state and federal government on the serious issue of overcrowding. You may have heard that earlier this week the United States Supreme Court ruled that overcrowding in California’s state prison system constitutes a violation of the human rights of the prisoners incarcerated there, and ordered the prison system to reduce the number of prisoners held by 55,000 within three years. This court decision which made the front pages of our major newspapers and headlined newscasts on our leading television networks underscores the fact that an independent judiciary can, and regularly does, act boldly to protect the human rights of vulnerable populations.
As we stated in our Universal Periodic Review report, progress is our goal. Our commitment to the inalienable rights of each person guides our efforts to ensure that our law enforcement system reflects and respects those rights, including the rights of incarcerated persons. The strength and success of our own democracy and society – indeed the strength and success of any country’s system and society — will be based in some degree on how we address issues of fairness and justice; examining the issues of how people come to be imprisoned in the first place – and whether there is injustice in that process – as well as how we treat men and women once they are incarcerated. As the great Russian writer Fyodor Dostoevsky wrote in The Brothers Karamazov, “The degree of civilization in a society can be judged by entering its prisons.” So it is important that we look for ways to cooperate in these areas.
The way we treat persons in confinement, the conditions of confinement themselves and how we can improve them cannot be divorced from larger questions of governance and society – the structure and integrity of our systems of justice, the strength or weakness of the rule of law in our countries, and the health or ills of our societies. These are by their nature highly complex questions that governments alone cannot solve. NGO insights and ideas are vital.
President Medvedev has set forth his vision of a democratic, modern and successful Russia governed by the rule of law. President Obama, Vice President Biden and Secretary Clinton have expressed their strong support for that same vision. As President Obama noted in his July 2009 visit to Russia, “America wants a strong, peaceful, and prosperous Russia.” The ability of Russian citizens to exercise their basic civil and political rights and access justice and due process will be key to realizing the Russia we all want to see.
We applaud President Medvedev for advancing reforms and promoting an atmosphere that has allowed for progress to be made in some areas. Measures such as limitations on the use of pretrial detention for those accused of economic crimes have led to a 25% drop in pretrial detainees and are helping to prevent the use of pretrial detention as an extortion technique. These are real changes, ones that I am sure impact your daily work.
Despite these aspects of progress, we believe that continued limits and restrictions on the fundamental freedoms of the Russian people – rights guaranteed in international and Russian domestic law – are a larger problem for Russian citizens, businesses, and the government itself. We frequently raise these areas of concern with our Russian counterparts, both in public and in private. And we admire the work that many of you and your compatriots are doing to defend human rights, secure justice for all, ensure accountable government, fight corruption including in the justice sector, and foster the flow of information and ideas that leads to the exposure of abuses and the redress of grievances.
Of course, a free flow of ideas and a free media are indispensable elements of a democratic society and government accountable to its people. We saw a step in the right direction regarding freedom of conscience last month, when a member of the Jehovah’s Witnesses was acquitted of “extremism” charges, and the Ministry of Justice acted to remove Scientology literature from its list of banned “extremist” materials. These are signs that Russia is beginning to recognize that the overly-broad application of anti-extremism statutes serves only to infringe upon the rights of peaceful religious groups to practice their faith.
Progress has been more limited in the area of freedom of the press. We share the deep concerns expressed within Russia and across the international community over the murders of journalists known for their courageous work defending human rights and fighting corruption. There are still too many unsolved cases, and we continue to call for a full investigation into the unsolved murders of the journalist Anna Politkovskaya, among others. We have also expressed our concern that the only judicial action to date in the murder of Natalia Estemirova, has been the prosecution of Oleg Orlov for saying out loud what many people suspected to be the case. We welcome last month’s convictions in the murder case of the human rights defenders Stanislav Markelov and Anastasia Baburova.
In addition to effective prosecutions by the government, we hope the Russian media and independent Russian organizations and institutions will continue scrutinize the Russian justice system, to support improvements and address challenges. For example, a representative from the Presidential Council on Human Rights recently indicated that the Council would find that the charges against Sergei Magnitsky had been fabricated, so it has now been established that he was unjustly imprisoned Unfortunately, as you know, the investigation into the case of his death after deliberate medical neglect in a Moscow prison had not yielded any results. Similarly, this week’s court decision to deny the appeals of Mikhail Khodorkovsky and Platon Lebedev also reminds us of large issues regarding impartiality, due process and selective prosecution.
Outside scrutiny of government actions, and the follow-on dialogue with government, are key to progress in many areas beyond criminal justice. It was positive that President Medvedev agreed to take up the issue of continuing human rights abuses in North Caucasus during his May 2010 discussions with the Russian Council on Human Rights. We remain gravely concerned however, about the extrajudicial killings, torture, and disappearances committed with impunity by the forces of Chechen President Kadyrov and others. We have urged Russia authorities to act upon the many decisions of the European Court of Human Rights addressing human rights abuses in the North Caucaus as a step towards restoring rule of law in the region. And we call upon the Russian authorities at the highest levels to ensure the safety and rights of human rights victims, such as Islam Umarpashaev and Ali Ismailov who are seeking justice for rights violations in Russian courts and/or at the ECHR.
Finally, freedom of assembly – to gather together and share ideas and urge change – is another essential element to a stronger Russia that taps into the talent and creativity of the Russia people. We’ve seen that the “Strategy 31″ demonstrations have had some success in convincing authorities in Moscow to tolerate greater freedom of assembly. However, much work remains to be done to support freedom of assembly, especially in this pre-electoral season. Most recently, we were concerned about reports of intimidation and attacks by private security guards, police, and other parties on activists associated with the Khimki Forest campaign. Police have repeatedly detained and interrogated the activists, while the tax inspectorate and child protective services have threatened their livelihoods and families. And in another concerning move, this month, for the sixth year in a row, Moscow authorities refused permission for an NGO to hold an LGBT parade/rally.
All of these developments that I’ve reviewed today certainly show the challenging state of human rights in Russia. As partners, we should work together to address these problems, while taking note of and supporting progress. We know you share this goal, just as surely as you share the urgency expressed by President Medvedev when he said in March that “freedom cannot be postponed.” As you work to help your country move forward on a path of reform, modernization and accountability in the rule of law sphere and more broadly, I want you to know that you have the support of the Obama Administration, Secretary Clinton herself and the American people. I welcome your comments and questions, and I look forward to hearing your insights and learning more about your extensive experience working to reform one of the world’s most challenging penal systems. Thank you for your attention.
Today’s conviction in the second trial of Mikhail Khodorkovsky and Platon Lebedev on charges of embezzlement and money laundering raises serious questions about selective prosecution — and about the rule of law being overshadowed by political considerations. This and similar cases have a negative impact on Russia’s reputation for fulfilling its international human rights obligations and improving its investment climate. We welcome President Medvedev’s modernization plans, but their fulfillment requires the development of a climate where due process and judicial independence are respected. We will monitor the appeals process.
We are deeply concerned that a Russian judge today has indicated that for a second time Mikhail Khodorkovsky and Platon Lebedev will be convicted. We are troubled by the allegations of serious due process violations, and what appears to be an abusive use of the legal system for improper ends. The apparent selective application of the law to these individuals undermines Russia’s reputation as a country committed to deepening the rule of law. The Russian government cannot nurture a modern economy without also developing an independent judiciary that serves as an instrument for furthering economic growth, ensuring equal treatment under the law, and advancing justice in a predictable and fair way.
The Obama administration stands in solidarity with the many people in the Russian government, in the legal system, and in civil society who are committed to strengthening the rule of law and deepening the commitment to universal values enshrined in the Russian constitution. Russia’s failure to keep this commitment to universal values, including the rule of law, impedes its own modernization and ability to deepen its ties with the United States.
President Obama has spoken frequently with President Medvedev about this case and others as part of their ongoing conversation about President Medvedev’s important campaign to strengthen the rule of law and modernize Russia’s political and economic system. We will continue to monitor closely the next stages in this case, including the fairness of the sentences and the review by higher courts during the appeals process.