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Helsinki Commission Releases U.S. Statement on Independence of the Judiciary at OSCE Human Dimension Implementation Meeting

Warsaw, Poland – The following statement on Independence of the Judiciary and the Right to a Fair Trial was delivered by the United States at the Human Dimension Implementation Meeting of the Organization for Security and Cooperation currently being held in Warsaw, Poland:

Independence of the Judiciary and the Right to a Fair Trial

Statement of Mr. Patrick Wujcik

U.S. Delegation to the OSCE Implementation Meeting

Mr. Moderator, the 1990 Copenhagen Document reflected the OSCE commitment to a sound legal framework: “. . . .[T]he rule of law does not mean formal legality which assures regularity and consistency in the achievement and enforcement of democratic order, but justice . . . guaranteed by institutions providing a framework for its fullest expression.”

While constitutional guarantees and well-defined legal codes are vital, the democratic character of the judiciary is determined not by principles alone, but first and foremost in police stations, law schools and courtrooms – by how judges are trained and how they reach their decisions, by whether detainees’ rights are respected, and whether lawyers’ recruitment and practice can occur independently without political interference.

In various OSCE participating States, judicial systems not independent of the executive feed corruption and discrimination and stunt democratic growth. A number of specific concerns are worth noting.

In practice, the judiciary in Belarus is reminiscent of Soviet times – there are many credible reports that authorities dictate to courts the outcome of trials. Former government officials have supplied credible evidence that senior Belarusian officials colluded in the disappearances and presumed murders of prominent opposition figures Victor Gonchar, Anatoly Krasovsky and Yuri Zakharenka, and journalist Dmitry Zavadsky. To date, there has been no satisfactory resolution of the 1999 disappearances of the first three cases. While two men were sentenced to life imprisonment after being charged with Zavadsky’s abduction and murder, observers believe the court failed to prove the guilt of the accused as there were violations of basic rules of judicial procedure and contradictory and confusing testimonies. The United States calls upon the Belarusian authorities to mount an independent, impartial, full and transparent investigation into the disappearances and probable deaths of these men.

In Kazakhstan, two former high ranking officials, Galymzhan Zhakiyanov and Mukhtar Ablyazov, received six and seven year sentences on charges of corruption. It appears that neither was a target for investigation until he became active in a new opposition movement. It appears their indictments were politically motivated, and the court proceedings, in which defense attorneys were at a disadvantage in various ways, did not inspire confidence in the verdict.

In Uzbekistan, individuals accused of belonging to banned organizations or distributing forbidden literature continue to be sentenced to long terms in trials that do not meet OSCE standards. These cases indicate that the courts in Uzbekistan lack the independence necessary to guarantee fair trials. In practice, judges whose rulings are disfavored by the government may find themselves removed from office. The ODIHR Seminar on Judicial Systems and Human Rights made numerous recommendations on how to respond to such problems, for instance, by establishing life terms for judges, or in situations where the executive branch appoints judges, by ensuring that the executive can not terminate a judicial appointment. We encourage Uzbekistan to review these recommendations and work with ODIHR to find appropriate solutions.

Of course, the impact of an unfair trial does not simply end when the trial does. In Kyrgyzstan, for example, Felix Kulov remains wrongly imprisoned, two years after he was sentenced in a closed proceeding by a military court. We urge the Government of Kyrgyzstan to release him without condition or delay. We also urge Kyrgyzstan to come into line with its Copenhagen commitment to only hold in camera proceedings in circumstances prescribed by law and consistent with obligations under international law and international commitments.

While executive control of the judiciary is a chronic problem in many former communist countries, one of the most disturbing developments in recent years has been the deterioration of the judicial system in Georgia. Since January 2002, when the first attempt was made, it has proved impossible to conduct a trial for Basil Mkalavishvili, a defrocked priest, and his henchman Petre Ivanidze, who have led or been involved in an ongoing series of assaults on Jehovah’s Witnesses and other minority religious believers. This delegation criticizes Georgian Government’s failure to create the necessary environment for a fair and impartial trial and notes with deepening concern the incidences of intimidation of Georgia judges in cases involving religious freedom. These incidences, if unchecked, could lead to the phenomenon of mob intimidation of the court system in Georgia.

Ensuring an independent judiciary and the right to a fair trial, is an ongoing endeavor, a challenge for all societies. Lack of judicial independence has a unique corrosive effect on the public’s trust in a country’s legal system, and more broadly, the entire government. The deeply troubling cases and conditions cited herein only further cement the public’s distrust of the legal system and the government’s ability to ensure the right to a fair trial. These cases and conditions also diminish the standing of the responsible governments in the eyes of the international community. If the governments referenced herein are committed to the rule of law—and not rule by man—the remedial actions outlined above will be taken immediately.

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