DEVELOPING OSCE/ODIHR RECOMMENDATIONS ON THE PROTECTION OF HUMAN RIGHTS DEFENDERS: CONTRIBUTION OF THE OBSERVATORY

Since 1997, the Observatory for the Protection of Human Rights Defenders, a joint programme of the International Federation for Human Rights (FIDH) and the World Organisation Against Torture (OMCT), has been following closely the situation of human rights defenders in OSCE countries.

The project of the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE/ODIHR) to develop Recommendations on the Protection of Human Rights Defenders in the OSCE region is a positive and welcome development, which could pave the way for a genuine protection mechanism in charge of implementing these recommendations.

The Observatory hereby submits an analysis of the main challenges and obstacles addressed in its daily work in terms of human rights defenders protection in the OSCE area, and formulates a number of suggested recommendations to improve the protection of human rights defenders.

I - MAIN CHALLENGES IN TERMS OF HUMAN RIGHTS DEFENDERS PROTECTION IN THE OSCE AREA, AND SUGGESTED RECOMMENDATIONS

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Antoine Madelin of the International Federation for Human Rights (FIDH) addresses participants of a meeting on the effective protection of human rights defenders, Warsaw, 11 June 2013. (OSCE/Shiv Sharma)<br class='autobr' />

SAFETY AND IMPUNITY OF ATTACKS

ISSUES

1) Assaults, threats, ill treatment by State and non-State actors, and impunity

In many countries of the OSCE region (Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Greece, Kyrgyzstan, Russian Federation, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan), a number of human rights defenders are subject to attacks, threats and/or ill-treatment. Some of these acts come from unidentified actors (e.g. in the form of threats or attacks), while others are conducted by - or in the presence of - State officials or law enforcement authorities in an attempt to stifle human rights activities (e.g. in the form of ill-treatment in detention). In most cases, these threats and attacks are not investigated, and/or the perpetrators have never been identified.

2) Extrajudicial killings, death in custody and enforced disappearances, and lack of proper investigation

Some of the attacks perpetrated by unidentified actors in the region have resulted in the death of human rights defenders. In most cases, such violations have remained unpunished, as the perpetrators were not identified. Such cases include the assassination of Russian human rights defenders Natalia Estemirova, Anna Politkovskaya, Zarema Sadulayeva and Alik (Umar) Dzhabrailov, as well as of journalist Hrant Dink, in Turkey.

Ill-treatment in detention also led in some cases to custodial death. For instance, in Azerbaijan in 2009, human rights defender Novruzali Mammadov died in custody, and no proper investigation has been carried out since then.

3) Absence or inefficiency of State mechanisms for preventive and urgent protection of human rights defenders

In cases where human rights defenders are at risk, the State has often failed to ensure proper protection. In some countries, the authorities even fuel smear and defamation campaigns against human rights defenders (see infra), which highly reinforce the climate of impunity and increase risks of physical attacks against human rights defenders, by both State and non-state actors (Georgia, Russian Federation, Turkey, Uzbekistan). Similarly, diplomatic missions of other Participating States could have been more active in terms of protection offered to human rights defenders in the country at stake.

SUGGESTED RECOMMENDATIONS

1) Participating States should recognise and reaffirm publicly the important role of human rights defenders in protecting and promoting human rights and fundamental freedoms.

2) Participating States should protect human rights defenders against any kind of threats or harassment, by both State authorities and non-State actors, including by awarding precautionary measures in their favour.

3) Participating States should create an enabling environment for human rights defenders, where they would be able to carry out their human rights activities free from any hindrances.

4) Participating States should carry out thorough, prompt, impartial and transparent investigations to bring all those responsible for violations against defenders to justice, and apply them sanctions provided by law.

5) Diplomatic missions of Participating States located on the territory of other Participating States should take action to ensure full protection of human rights defenders in the host country and guarantee visa-facilitation for human rights defenders at risk, to allow them to promptly leave the country in case of emergency.

JUDICIAL HARASSMENT AND ARBITRARY DETENTION

ISSUES

1) Abusive use of the judicial system to criminalise the activities of human rights defenders

Over the past years, human rights defenders have been subjected to judicial harassment in some Participating States, in an attempt to silence or sanction their human rights activities (Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan, Turkey, Turkmenistan, Uzbekistan). The judicial system has been used as a tool for the repression of human rights defenders, through spurious charges and unfair trials.

2) Arbitrary detention as a mean to silence human rights defenders

In countries where the judiciary is instrumentalised by the executive to repress human rights defenders, the latter have been repeatedly and arbitrarily sentenced to prison terms.

In particular, Uzbekistan remains the country with the highest number of human rights defenders serving long prison sentences, most often in strict regime colonies. Furthermore, due to the poor conditions of prison facilities and acts of ill-treatments against them, in most cases their health drastically deteriorated. Human rights defenders are also arbitrarily detained in Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Turkey and Turkmenistan.

SUGGESTED RECOMMENDATIONS

1) Participating States should put an end to any act of judicial or administrative harassment against human rights defenders as well as repeal laws restricting or criminalising the activities of human rights defenders.

2) Participating States should change their legislation and practices to bring them in line with international standards pertaining to the independence of the judiciary and the right to due process and a fair trial.

3) Participating States should fully comply in that regard with the jurisprudence of the United Nations Working Group on Arbitrary Detention and ensure that human rights defenders are in no way subject to arbitrary sentences and arbitrary detentions.

4) To that end, participating States should refrain from judicially harassing human rights defenders through the use and abuse of the judiciary.

SURVEILLANCE AND DEFAMATION CAMPAIGNS AGAINST HUMAN RIGHTS DEFENDERS

ISSUES

1) Ongoing surveillance and defamation campaigns against human rights defenders

Human rights defenders in the region also subjected to ongoing surveillance and defamation campaigns. In Azerbaijan, the Russian Federation, Belarus, Georgia, Kyrgyzstan and Uzbekistan, human rights defenders have been subjected to defamation campaigns orchestrated by the authorities. Some were stigmatised as “enemies of the people” (Kyrgyzstan), “traitors” and “Russian spies” (Georgia), “enemies” and “Armenians” (Azerbaijan), as “working for Western donors” and “lobbying sanctions against the authorities” (Belarus), as “minorities protectors” and “anti-Russian” (Russian Federation), and as “traitors” and “terrorists” (Uzbekistan). Such defamation campaigns aimed at discouraging human rights defenders to carry out their activities and to encourage violence against them by the population.

Human rights defenders are also put under strict surveillance in almost all countries of the region. Their ability to communicate freely is particularly undermined in Azerbaijan, Belarus, Turkmenistan and Uzbekistan, as their phone lines are tapped and their e-mails controlled.

2) Obstacles to freedom of movement of human rights defenders

A number of obstacles to human rights defenders’ freedom of movement have been observed in some countries of the region. In Uzbekistan, security services regularly follow or put Tashkent-based human rights defenders under house arrest, or impede those working in the regions from coming to the capital. In Turkmenistan and Uzbekistan, defenders are often denied the right to leave the country. In these countries, the authorities are particular vigilant of people having contacts with foreigners. In Belarus, a dozen human rights defenders were forbidden to leave the country for more than five months under false and fabricated charges of evasion from the military service or tax infractions - which were later abandoned.

SUGGESTED RECOMMENDATIONS

1) Participating States should fully assume their responsibility to respect, support and promote the work of human rights defenders, in particular by refraining from engagement in all forms of defamation, unfounded criticism and smear campaigns, in accordance with Article 12 of the Universal Declaration of Human Rights.

2) Participating States should therefore fully recognise and reaffirm publicly the important role of human rights defenders in protecting and promoting human rights and fundamental freedoms as well as the legitimacy of their work.

3) Participating States should put an end to any act of harassment against human rights defenders in their countries, including to any obstacle to their freedom of movement, and ensure in all circumstances that they are able to carry out their legitimate activities without any hindrance and fear of reprisal.

4) Participating States should carry out thorough, prompt, impartial and transparent investigations to bring all those responsible for violations against defenders to justice, and apply them sanctions provided by law.

OBSTACLES TO FREEDOM OF ASSOCIATION

ISSUES

Many authorities in the region continue to resort to a variety of restrictive laws to impede the work of human rights defenders with the aim to control civil society organisations and by lending to the arbitrary use of powers. This includes laws on non-governmental organisations (NGOs) and tax laws. National security laws and policies also continue to impose a restrictive framework for human rights defenders’ activities, including counter-terrorism or extremism laws.

These practices breach Articles 5 and 13 of the United Nations Declaration on Human Rights Defenders, which guarantees freedom of association and access to funding for human rights purposes.

1) Arbitrary de-registrations, refusal to register, and criminal sanctions for “unregistered” or “illegal” activities

By de-registering or refusing to register NGOs, some participating States have managed to restrict the activities of NGOs. In Belarus, Turkmenistan and Uzbekistan, almost no independent human rights NGO has managed to get registered, and in Belarus the Criminal Code provides imprisonment for activities carried out in the framework of unregistered organisations. In Tajikistan, the Association of Young Lawyers “Amparo” was closed down in October 2012 by order of a court, on grounds that the organisation had breached several of its legal and administrative obligations, including the provisions of the new Law “On Public Associations”, adopted in 2007.

As a best practice, one can refer here to Ukraine, where the Parliament passed in March 2012 a new law on public associations, simplifying registration procedures and expanding the scope of approved activities for NGOs.

2) Obstacles to the right to access funding, including foreign funding

The instrumentalisation of the issue of foreign funding to criminalise NGO activities has become widespread throughout the OSCE region. This is particularly the case in the Russian Federation, where a law amending the NGO legislation entered into force in late 20121, as well as in Belarus, where Viasna President and FIDH Vice-President Ales Bialiatski is serving 4,5 years’ imprisonment sentence. In addition, in Kyrgyzstan and Azerbaijan, bills have been tabled to further restrict the capacity of NGOs to carry out human rights activities through the use of foreign funding. However, in accordance with the right to freedom of association, all NGOs should be free to solicit, obtain and use resources as they see fit, except confirmation of any malpractice or criminal activity.

SUGGESTED RECOMMENDATIONS

1) Participating States should respect the fundamental right to freedom of association, as guaranteed in particular under Article 22 of the International Covenant on Civil and Political Rights, without limitation or discrimination based on the identity of members or the nature of the rights defended.

2) Participating States should place no restrictions on the exercise of the right to freedom of association other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety (incl. transparency), public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Any restriction imposed shall comply with the principle of proportionality. In other words:
- such measure shall be taken only to avoid a real - and not only hypothetical - threat to national security and to the democratic order
- such measure shall be taken only if less draconian measures would be insufficient to avoid a real danger
- any such measure shall be meticulously balanced and assessed in the light of the consequences it may have on the members of an association.

3) Laws governing the creation, registration and functioning of civil society organizations should be written and should set up clear, consistent and simple criteria to register or to incorporate a civil society organization as a legal person.

4) Participating States should review legislation regulating the establishment, registration and operation of NGOs in order to create a straightforward and coherent legal and administrative framework favourable to the development of NGOs and their work

5) Participating States should not interfere with the internal management and activities of NGOs. The supervision and monitoring of NGOs should not be invasive and intrusive. The confidentiality of NGOs’ activities should be duly respected.

6) Participating States should guarantee the right of NGOs to an effective remedy in the event of denial of registration, suspension or dissolution, and to benefit from suspensive measures in all cases of suppression or limitations placed on their right to freedom of association and funding.

7) Participating States should ensure and facilitate by law access to funds, including from foreign sources, for the purpose of defending human rights - without the requirement to obtain prior governmental authorisation, and under equitable conditions.

8) Participating States should refrain from restricting the use of funds as long as they comply with the purposes expressly established in the UN Declaration on Human Rights Defenders through peaceful means.

OBSTACLES TO FREEDOM OF PEACEFUL ASSEMBLY

ISSUES

1) Ban of peaceful assemblies

In the region, it remains difficult to organise and hold peaceful meetings dedicated to human rights issues. In Belarus, Kazakhstan, the Russian Federation and Uzbekistan, it is practically impossible to obtain permission from the authorities to hold a peaceful meeting. In June 2012, in the Russian Federation, a draconian set of amendments was introduced in the Administrative Code, fining anyone participating in unsanctioned protests up to 300,000 Rubles (about 7,540 Euros) - a sum close to the average annual income in Russia. Organisers of illegal protests will further be fined up to 1 million Rubles (24,600 Euros), and those having violated the rules on public demonstration at past events will be banned from organising future events.

2) Repression of peaceful assemblies

Human rights defenders taking part in peaceful assemblies also face acts of violence perpetrated by law-enforcement authorities, arrested, and sometimes imprisoned or fined (Azerbaijan, Belarus, Georgia, the Russian Federation, Uzbekistan).

SUGGESTED RECOMMENDATIONS

1) Participating States should immediately cease invoking repressive legislations to suppress legitimate peaceful assembly.

2) Participating States should promote and protect every individual’s right to participate in peaceful activities against violations of human rights and fundamental freedoms.

3) Participating States should establish in law, in a clear and explicit manner, a presumption in favour of holding peaceful assemblies, and to facilitate and protect peaceful assemblies.

4) Participating States should ensure that peaceful assemblies are governed at most by a regime of notification regarding the holding of peaceful assemblies, in lieu of a regime of authorization. The notification procedure, where introduced, should be as simple and expeditious as possible.
5) Participating States should provide organizers, whenever an assembly is restricted in compliance with international human rights norms and standards, with reasonable alternatives to hold their peaceful assemblies, which should be facilitated within “sight and sound” of the target audience.
6) Participating States should ensure access to public space, including public streets, roads and squares, for the holding of peaceful assemblies, with the consequence of rerouting pedestrian and vehicular traffic when necessary.

HUMAN RIGHTS DEFENDERS FACING PARTICULAR RISK

ISSUES

1) Human rights defenders facing particular harassment because of the specific nature of the rights they defend or of the context in which they operate

In the OSCE area, some human rights struggles put their defenders at acute risk of attacks or harassment. These include LGBT rights defenders (Armenia, Bosnia-Herzegovina, Georgia, Lithuania, Russian Federation, Serbia, Turkey, Ukraine), migrant rights defenders (Belgium, Cyprus, France, Greece, Poland, Russian Federation), human rights defenders operating in conflict zones (Kyrgyzstan, Russian Federation) or in electoral contexts (Armenia, Belarus, Georgia, Russian Federation), those fighting impunity (Russian Federation, Turkey, Uzbekistan), trade unionists (Turkey) as well as land and environmental rights defenders (Russian Federation).

SUGGESTED RECOMMENDATIONS

1) Participating States should ensure adequate protection to human rights defenders facing particular harassment because of the specific nature of the rights they defend or of the context in which they operate.

2) Participating States should create an enabling environment for human rights defenders, where they would be able to carry out their human rights activities free from any hindrances.

3) Diplomatic missions of Participating States located on the territory of other participating States should take action to ensure full protection of human rights defenders in the host country.

***

More generally, Participating States should fully cooperate with human rights defenders protection mechanisms and programmes (i.e. the United Nations Special Rapporteurs on the situation of human rights defenders and on the right to freedom of peaceful assembly and association, OSCE institutions and field operations, the Human Rights Defenders’ Programme of the Council of Europe Commissioner on Human Rights, European Union (EU) actors in charge of the implementation of the EU Guidelines on Human Rights Defenders, etc.) on cases of violations brought to their attention.

***

II - IMPLEMENTING THE RECOMMENDATIONS: TIME FOR AN OSCE/ODIHR PROTECTION MECHANISM IN FAVOUR OF HUMAN RIGHTS DEFENDERS?

In light of the above-mentioned challenges and obstacles faced by human rights defenders in the OSCE area, the Observatory urges the OSCE to ensure that all its institutions and field operations integrate a human rights defenders dimension in their work.

On July 10, 2007, the OSCE Parliamentary Assembly in Kiev adopted a resolution entitled “Strengthening OSCE Engagement with Human Rights Defenders and National Human Rights Institutions”. Paragraph 8 of the Resolution provides that the OSCE Participating States recognise “the need for particular attention, support and protection for human rights defenders by the OSCE, its Institutions and field operations, as well as by participating States”2.

To complement the missions carried out by the ODIHR Focal Point for Human Rights Defenders and National Human Rights Institutions, established in 2007to focus on capacity building and training sessions for human rights defenders, an OSCE/ODIHR mechanism of alert and rapid response could be set up to address urgent situations and to monitor the commitments of OSCE participating States with regards to human rights defenders, given their dire situation in a number of OSCE countries.

Such mechanism could be embodied by an OSCE Special Representative on the Situation of Human Rights Defenders, who could have the following mandate:

to seek, receive, examine and respond to information on the situation of human rights defenders in the OSCE area in an independent and impartial way;

to intervene - through closed communications or public statements - with the competent authorities of Participating States, in order to assist them in looking for solutions, in accordance with their obligations, to the problems which human rights defenders may face, especially in serious situations where there is a need for urgent action;

to raise awareness and promote the effective implementation in the region of the UN Declaration on Human Rights Defenders, the Helsinki Final Act, the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension, of the Conference for Security and Co-operation in Europe (CSCE), by establishing cooperation and engaging in a dialogue with Participating States, OSCE institutions and field operations, National Human Rights Institutions, relevant intergovernmental bodies, international and regional mechanisms of protection of human rights defenders, human rights defenders and other stakeholders;

to develop and recommend effective strategies to protect human rights defenders and to follow up on these recommendations;

to integrate a gender perspective throughout her/his work;

to present annual reports to the OSCE Permanent Council and Parliamentary Assembly on particular topics or situations of special importance regarding the promotion and protection of the rights of human rights defenders;

to carry out country visits;

to liaise with non-governmental and governmental human rights organisations, and other persons who can provide information on the subject;

to liaise with other intergovernmental organisations and institutions, in particular the United Nations Special Rapporteur on the situation of human rights defenders, the Commissioner for Human Rights of the Council of Europe and the European Union, and cooperate whenever possible;

to take part in meetings with the various stakeholders on the promotion and protection of human rights defenders.

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