MONTLY WRAP MARCH 2023
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
In the new report by the United Nations High Commissioner for Refugees, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Alice Jill Edwards, examines the following issues: The obligations of states regarding the state to criminalize.
Investigation and persecution of acts of torture and other ill-treatment. Identification of the main challenges hindering impartial, rapid, transparent and effective investigations.
HUMAN RIGHTS COUNCIL
According to the Commission of Inquiry on Ukraine set up one year ago at the request of the Human Rights Council, Russian troops committed a “wide range” of violations across the country, many of which are war crimes. These included attacks with explosive weaponsin populated areas, wilful killings of civilians, unlawful confinement, torture, rape and other sexual violence, as well as unlawful transfers and deportations of children.
Draft agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.
HUMAN RIGHTS COUNCIL
Some countries and private companies are using “counter-terrorism and security rhetoric” to justify a major increase in the deployment and use of cutting-edge surveillance technology, with no regulation, and at an “enormous cost” to human rights.
On 5 March 2023, the Global Convention on Higher Education is officially in force, following the 20th ratification on 5 December 2022. It is the world’s first worldwide treaty on higher education and it’s set to revolutionize the way we approach mobility and access in higher education. The entry into force of the Global Convention is a transformative event for higher education globally, taking us one step closer to achieving SDG 4.3 on quality tertiary education. It’s a powerful tool for creating a more equitable, accessible, and sustainable future for all.
On 6 March 2023, the 67th session of the Commission on the Status of Women (CSW67) was held at the UN Headquarters in New York, during which UNESCO provided policy advice to decision-makers on AI legislation and discussed concrete ways to strengthen gender equity in rights of access to information and freedom of expression in digital spaces. For the occasion, UNESCO has launched the Women 4 Ethical AI Platform that will contribute to the realization of the UNESCO Recommendation on the Ethics of Artificial Intelligence.
On 8 March 2023, Ms. Audrey Azoulay, Director-General of UNESCO, on the occasion of International Women’s Day, celebrates girls and women around the world and recalls that women’s rights must never be taken for granted. The focus of this year’s Day is ‘innovation and technology for gender equality’, a subject at the core of UNESCO’s crosscutting actions in education, the sciences, culture and communication.
On 22 March 2023, on the occasion of World Water Day, UNESCO and UN-Water in the latest edition of the United Nations World Water Development Report warn that between two and three billion people worldwide currently suffer from water scarcity, and this scarcity is expected to worsen in the coming decades. In this regard, UNESCO, UN-Water and United Nations declare that the only way to avoid a global water crisis is to have more international cooperation on how water is used and managed.
INTERNATIONAL CRIMINAL COURT
On 7 March 2023, the prosecutor completed his fourth official visit to Ukraine. This mission has come at a crucial time, allowing for key breakthroughs in their investigative work, deepening their engagement with domestic authorities and meeting with those affected by alleged international crimes in Ukraine. The Prosecutor leaves Ukraine saying he feels the momentum towards justice is accelerating. During his visit, the Prosecutor had the pleasure of meeting the President of Ukraine on two occasions. The common message was clear: the pursuit of justice is collective and requires effective collaboration and communication, while respecting the independent exercise of the respective mandates of my office and those of the Ukrainian authorities.
On 8 March 2023, the International Criminal Court (“ICC” or the “Court”) marks International Women’s Day in support of global action to advance gender equality and women’s rights. The ICC promotes women’s rights and considers gender perspectives through its work.
During International Women’s Day, the President said that the ICC is proud to be at the forefront of the movement towards gender equality in the field of international justice. With nine female and nine male judges currently on the bench, the ICC project the world’s equal participation of men and women in the field of law is of paramount importance. However, much remains to be done to achieve effective equality of opportunity in our workforce.
On 9 March 2023, the Prosecutor of the International Criminal Court, Mr Karim A.A. Khan KC is pleased to announce a call for public submissions for suggested changes to build upon, and renew, the 2016 OTP Policy on Children. In launching this policy renewal process the Office will seek to develop new and innovative approaches to its work so as to make children more visible in all of its work, and further improve effectiveness in the investigation and prosecution of crimes against or affecting children. The Prosecutor Khan highlight the importance of the renewal of this policy and the central role of stakeholder consultation in this process.
On 13 March 2023, the Trust Fund for Victims (TFV) at the International Criminal Court (ICC) launches a call for contributions to help deliver reparations to victims of conflict-related sexual violence. The TFV urgently needs funding to support victims of conflict-related sexual violence through its country programmes in the Central African Republic, Côte d’Ivoire, Democratic Republic of the Congo, Mali and Uganda. An amount of EUR 2 million per year would increase the Trust Fund for Victims’ impact considerably. The funding will be used to provide medical treatment, psychosocial rehabilitation including awareness-raising for the communities and families related to stigma and discrimination, accelerated or vocational education and socio-economic support.
On 17 March 2023, Pre-Trial Chamber II of the International Criminal Court issued warrants of arrest for two individuals in the context of the situation in Ukraine: Mr Vladimir Vladimirovich Putin and Ms Maria Alekseyevna Lvova-Belova. Mr Vladimir Vladimirovich Putin is the President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022; Ms Maria Alekseyevna Lvova-Belova is the Commissioner for Children’s Rights in the Office of the President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute).
Pre-Trial Chamber II considered, based on the Prosecution’s applications of 22 February 2023, that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.
Form 13 to 16 March 2023, the International Criminal Court held a training on witness protection and support for victims of conflict-related sexual violence in Ukraine. Discussions, presentations and practical exercises focusing on various issues related to protection and support, such as multidisciplinary approaches to support and protect survivors. The training gathered in Kyiv Prosecutors of the Conflict-related Sexual Violence Unit, the Juvenile Justice Department and other specialised staff from the Office of the Prosecutor General of Ukraine. High level speakers included the Court’s Registrar, Peter Lewis, Ukraine’s Prosecutor General, Andrii Kostyn, the Director of the Prosecutor`s Training Center of Ukraine, Olesia Otradnova, the Head of theDivision of procedural management of pre-trial investigation and maintenance of public accusations in criminal proceedings on crimes related sexual violence, Iryna Didenko,and Vitor Maia Domingues Sousa of the Europol Special Tactics Division.
On 23 March 2023, the Prosecutor General of Ukraine, Kostin Andriy, and the Registrar of the International Criminal Court (“ICC” or “the Court”), Peter Lewis, signed a cooperation agreement on the establishment of an ICC country office in Ukraine. ICC field presence/country offices are essential to develop and maintain cooperative relationships with key stakeholders in situation countries and to support the Court’s mandate and resulting activities in these countries.
EUROPEAN PUBLIC PROSECUTOR OFFICE
On 1 March 2023, the Annual Report for the activities of the European Public Prosecutor’s Office (EPPO) in 2022 was published and shows a clear focus on EU fraud affecting public revenue, in particular cross-border VAT fraud. By the end of 2022, the EPPO had 1117 active investigations with overall estimated damages of €14.1 billion, nearly half of which (47%) resulted from VAT fraud. In 2022, the EPPO received and processed 3318 crime reports and opened 865 investigations. Moreover, judges granted the freezing of €359.1 million in EPPO investigations (compared to €147.3 million in 2021), which represents more than seven times the organization’s 2022 budget.
On 1 March 2023, at the request of the European Public Prosecutor’s Office (EPPO) in Palermo (Italy), the Italian Financial Police (Guardia di Finanza) have executed a seizure order against a farmer suspected of fraud involving agricultural funds, with estimated damages of €600.000. Between 2012 and 2022, the suspect under investigation allegedly falsified statements and declared ownership and possession of land in the province of Messina that he did not own, in order to obtain agricultural funds from the European Union – namely through the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD).
In an extensive operation carried out on 21 March 2023, against a criminal group based in Naples (Italy), believed to have orchestrated a massive VAT fraud through the sales of electronic equipment, 12 people were arrested by the Italian Financial Police (Guardia di Finanza), including four public officials, for corruption offences. During the operation, led by the European Public Prosecutor’s Office (EPPO) in Naples and Milan, 25 searches were carried out in Naples, Caserta, Milan, Rome, Alessandria, Prato and Pistoia by 100 officers of the Italian Financial Police (Guardia di Finanza – Nucleo di polizia economico-finanziaria Napoli). The Italian pre-trial judge, at the request of the EPPO’s European Delegated Prosecutors, issued an order for detention on remand of the 12 suspects, and a freezing order for a value of approximately €8 million.
On 23 March 2023, in an investigation into a complex VAT fraud on imported fuels, led by the European Public Prosecutor’s Office in Bologna (Italy), the Parma Italian Financial Police (Guardia di Finanza) executed a freezing order of assets of up to €149 million. The freezing order was issued by the Parma preliminary investigation judge, at the request of the EPPO, against five individuals and two companies involved in fuel trading. The judicial decree to seize cash, bank accounts and real estate was executed in Parma, Potenza and Salerno. During the searches, the Financial Police discovered millions of euros in cash hidden under the floor in the premises of one of the companies investigated, using ‘cash dogs’ – canine units specialised in searching for currency.
In an investigation led by the European Public Prosecutor’s Office (EPPO) in Bologna, a pre-trial house arrest warrant and a freezing order of over €1 million were issued by the Italian judge for the investigation working at the Tribunal of Macerata, at the request of the EPPO. Both measures affect an Italian company and its legal representative and were executed (on 23 March 2023) by the Italian Financial Police (Guardia di Finanza) based in Camerino (Marche region, Italy). According to the investigation, between 2021 and 2022 the suspected individual, in his capacity as legal representative of the company, submitted several falsified applications for subsidized loans and non-repayable funds. In order to fraudulently obtain the above-mentioned funding, the suspect put in place a series of illicit scams by submitting false information about the company’s yearly turnover, false inflated balance sheets, false receipts of submission of the balance sheets, false notarial deeds, false tax returns and false receipts of the digital submission of tax returns. The analysis of the financial flows on the bank accounts of the company, to which the public funds were credited, indicated that the suspect, upon receiving the above-mentioned money, unduly laundering it to the bank accounts of several foreign companies. In total, he received nine different financial contributions from both the Italian budget and the EU budget (partially under the Next Generation EU program), totaling more than €1 million.
On 31 March, in an investigation carried out by the European Public Prosecutor’s Office (EPPO) in Palermo, Sicily (Italy), over €239 000 in movable assets and real estate has been seized from a company suspected of agricultural funding fraud. These seizures were made by the Carabinieri Command for the Protection of Agri-food of Messina (Reparto Carabinieri per la Tutela Agroalimentare di Messina). According to the investigation, the company, an agricultural business, falsified statements and declared ownership and possession of lands in the province of Palermo, to obtain EU agricultural funds. This company was not the actual owner of the lands, of which over 120 hectares are state property of the Sicilian region, and is alleged to have committed aggravated fraud in order to receive over €239 000 in EU agricultural funds between 2017 and 2021. Additionally, the company under investigation had previously received an anti-mafia prohibition from the Prefect of Messina, which excluded it from obtaining public contributions, according to the Italian Anti-mafia Code.
COUNCIL OF EUROPE
The European Commission against Racism and Intolerance has released a new report, praising positive steps in Cyprus. The State has now easier procedures for asylum seekers and a new Code of Principles and Ethics for Parliament members prohibits hate speech and racist behaviours in the performance of duties. Since 2019 there have been evolutions on the LGBTQ+ community rights too.
Secretary General Buric is following the situation in the member State Georgia as the tensions has risen due to the approval of the draft law “on transparency of foreign influence” by the Parliament on 7 March. The Secretary General urges that any such legislation be in line with Council Of Europe standards on human rights, democracy and rule of law.
The Group of States Against Corruption (GRECO) has released a new report on Bosnia and Herzegovina, calling for strengthening authorities’ efforts. Especially are needed actions to overcome the blockages that hold back reforms in order to prevent corruption amongst top executive functions.
The European Commission Against Racism and Intolerance (ECRI) notes that Slovakia and Czech Republic need to do more on the implementing the ECRI recommendations from 2020. The authorities of the States need to do more about discriminations against LGBTI community and segregation of Roma communities, specially about children and school system.
The Committee of Ministers has released the case-by-case decision on the implementation of judgments and decisions from the European Court of Human Rights. The Committee has adopted 36 decisions concerning 16 States and 13 Final Resolutions.
The Council of Europe has launched the Academy on the Integration of Migrants and Refugees in Polish cities, a series of training courses to help Polish cities with the challenges of integration. These courses are done in partnership with the Union of Polish Metropolises and three other international organisations.
The Committee of Ministers has issued a recommendation to provide legal and policy advice on rights, services and support for victims of crime. The objective is to seek and remove any barriers in the access to justice, introducing the principle that victims should have the right to be heard concerning any decision having a considerable impact on their interests. The recommendation calls for victims of crime to be supported in accessing their rights and services, and to be recognised and treated with respect, professionalism and non-discrimination.
The European Committee of Social Rights (ECSR) has published conclusions on the year 2022 in respect of 33 States. Amongst the 611 conclusions adopted, 245 are conclusions of non-conformity. Issues about the right to just conditions of work, fair remuneration and effective right to participate in the decision-making process have been underlined in various States.
The Group of Experts on Action Against Trafficking in Human Beings (GRETA) has released a new report on Greece, acknowledging the positive steps taken by the authorities to combat human trafficking. The adoption of a national action plan for preventing and combating human trafficking, and the setting up of the National Referral Mechanism for the identification of victims of trafficking, are among the important steps taken by the Greek authorities: the framework has been revised on the base of previous GRETA report.
The Group of Experts on Action Against Trafficking in Human Beings (GRETA) has released a new report on North Macedonia. The Group welcomes progresses in developing the anti-human trafficking framework but calls for better implementation in terms of victims’ access to justice too.
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has published its report on the periodic visit to Italy: during the visit, the delegation examined treatment and conditions of detention of people held in 4 prison establishments and psychiatric wards in 4 civil hospitals. The CPT found overcrowding as a major problem, with prisons operating at 114% of their official capacity and received many accounts of inter-prisoner violence and intimidation.
The Group of States Against Corruption (GRECO) has published a report on Ukraine assessing progress made in implementing the recommendations made to the Country on preventing corruption amongst members of parliament, judges and prosecutors. The Ukraine has made improvements in 15 out of 31 recommendations, showing strong commitment.
EUROPEAN COURT OF HUMAN RIGHTS
In the case Ayyubzade v. Azerbaijan the Court has found a violation of Article 5 § 1 of the Convention. The case concerns the arrest and pre-trial detention of the applicant, an opposition activist, who complains that the arrests and detention were not based on a reasonable suspicious that he had committed a criminal offence.
In the case Dzerkorashvili and Others v. Georgia the Court has found a violation of the Article 5 § 1. The applicants has been arrested on the suspicion of having put graffiti on a Georgian Orthodox Church building. the applicants complain, in particular, of physical ill-treatment, stress and verbal abuse at the hands of the police; that their being detained had been unlawful and arbitrary; that the authorities had failed to communicate a clear security strategy, leading to their being unable to hold the public event at issue; and of a lack of an effective remedy for their complaints.
The Grand Chamber has found a violation of Article 6 § 1 (right to a fair trial) in the case Fabbri and Others v. San Marino, concerning alleged delays in separate criminal investigation resulting in the alleged offences becoming time barred. The applicants complain that the time-barring as a result of the authorities’ inaction led to their being unable to have their civil claims in the same matters adjudicated.
The Court found a violation of Article 9 (freedom of religion) and a violation of Article 14 (prohibition of discrimination) in the case Ossewaarde v. Russia. The Court established that it had jurisdiction to deal with the case, as the facts giving rise to the alleged violations of the Convention had taken place before 16 September 2022. Mr Ossewaarde complained about being fined for preaching Baptism under the new legislation, arguing that he had not been a member of any religious association but had been exercising his right to spread his personal religious convictions. He also complained under Article 14 in conjunction with Article 9 about discrimination on account of nationality because, as a US national, he was given a higher fine than a Russian national.
The court has found a violation of Article 3 (prohibition of inhuman or degrading treatment), Article 5 § 1 (right to liberty and security) and Article 6 § 1 and 3 (right to a fair trial) by the Russian Federation. The case concerned events prior to the armed conflict in 2008 between Georgia and Russia and Mr Mamasakhlisi’s and Mr Nanava’s arrests in 2001 and 2003 respectively, and their alleged ill-treatment, conviction and continued detention by the de facto Abkhaz authorities. The Court found that, while Georgia had exercised no control over Abkhaz territory at the time, it had jurisdiction by virtue of the events having taken place on its territory recognised under public international law.
ITALIAN CONSTITUTIONAL COURT
The Constitutional Court, with Ordinance no. 38/2023, upheld the competence of the Region in assessing the effectiveness and efficiency of the interventions implemented on the regional territory, through the analysis and monitoring of the migratory phenomenon. It also acknowledged that it is the task of the Region to promote the training and updating of public administration operators and associations and bodies that carry out specific services in the field of reception and inclusion.
On 4 March 2023, the amended agreement of the existing Joint Investigation Team at Eurojust is being signed at a conference on accountability in order to facilitate the set-up of the International Centre for the Prosecution of Crimes of Aggression (ICPA) within its structure.
The International Criminal Court (ICC) is competent not only to prosecute the most serious international crimes such as genocide, crimes against humanity and war crimes, but also is competent to prosecute the crime of aggression, but only in relation to those countries that have accepted its jurisdiction in relation to this crime. Given that Russia does not accept the jurisdiction of the ICC, and therefore the ICC cannot exercise this competency in the context of Russia’s war against Ukraine. To close this gap, the ICPA is a first step in this process to preserve evidence and prepare the prosecution for future trials, whether national or international.