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ASF joins the “Poverty is not a crime” campaign

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ASF joins the Open Society Foundation, APCOF, PALU, and ACJR in a campaign to promote the decriminalisation and declassification of minor offences. “Vagrancy”, “disorderly behaviour” or “idleness” remain valid grounds for arresting and imprisoning individuals, contributing to the endemic overcrowding of prisons throughout the world. Particularly affecting people in vulnerable situations, these laws and their application are both arbitrary and discriminatory. 

In many countries on the African continent, such offences date back to colonial times. But while these laws have been repealed in the former colonial powers, they remain in force in many African states. 

By providing a criminal response to socio-economic issues, vulnerable populations are further marginalised. Maintaining these minor offences in the penal code therefore fuels a vicious circle. In many countries, the criminalisation of minor offences is one of the main sources of prison overcrowding. Decriminalising these offences and ending the detention of people who are not a danger to public order is the only way out in the long term.

Within the framework of the Poverty is Not a Crime campaign, several organisations have united to decriminalise these minor offences. Advocacy actions are being organised at national and regional level, mobilising ASF’s teams and partners.

Following an interpellation launched at the initiative of the Pan-African Lawyers Union (PALU), the African Court of Human and Peoples’ Rights ruled unanimously on December 4th 2020 in favour of the decriminalisation of minor offences. It declared these laws and regulations incompatible with the African Charter, the Children’s Charter and the Maputo Protocol. It is in accordance with this opinion that it ordered the States concerned to review, repeal and, if necessary, amend these laws and regulations.

The criminalisation of minor offences is incompatible with the constitutional principle of equality before the law and non-discrimination. It has a considerable impact on the poor, vulnerable people and women and infringes on many of their freedoms, including freedom of movement and freedom of expression.

Following the positive decision of the African Court, ASF joins civil society organisations to call for the repeal of such offences and all forms of unjustified repression. 

Join the campaign

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The health crisis in Belgium: A breeding ground for indirect discrimination?

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Read the full study (French)

Avocats Sans Frontières publishes a study on the indirectly discriminatory impact of Belgian emergency policies on certain categories of the population, particularly vulnerable ones. The analysis, carried out as part of the project ‘Covid-19 Monitoring and Rule of Law’, relies on observation activities, as well as a set of interviews conducted by ASF in June and July 2020.

To limit the spread of Covid-19, the Belgian government took, at the start of the health crisis, a set of measures contained on March 23rd 2020’s ministerial ruling, aiming to reduce contact between people and imposing a general lockdown. [1]

These measures, seeming neutral at first, because applicable to the entire population, however indirectly had discriminatory consequences, in their enforcement on certain groups of vulnerable people. [2]

Several interviews conducted with social workers, mediation and surveillance bodies active in Belgium during the lockdown, as well as a documentary analysis; revealed that immigrants, prison inmates, homeless people, women victims of violence, the elderly and the handicapped, those economically vulnerable, and those living in deprived neighborhoods, indeed suffered more than others from the emergency sanitary measures.

This is due, partly, to a uniform response to the crisis, which only exacerbated pre-existing socio-economical inequalities. It is also imputable to differences in the enforcement of the measures, more severe on certain social groups.

In the first instance, the interruption or limitation of access to social assistance, to visas and asylum, caused by the generalized closure or digitization of essential services, has had the effect of further weakening the already vulnerable segments of the population to whom these services are addressed. This freezing of services has also triggered a ‘domino effect’, best illustrated by the emergence of a new population of homeless people who were unable to assert their economic and social rights during the lockdown period. Beyond the interruption of essential services, the general lockdown decided by the government has further degraded the condition of certain groups of people, hence not affecting the entire population in the same way. Those who could not stay “at home,” those held in prisons or detention centers, those in shelters, the homeless, and women victims of domestic violence due to lack of decent and safe housing paid a greater price. For them, compliance with lockdown measures has sometimes violated their human rights, such as the right to dignity or the prohibition of inhuman and degrading treatment. In other cases, lockdown was physically impossible.

In the second instance, indirect discrimination was also induced during the police checks of compliance with lockdown measures. Such abuses were observed on several occasions and appeared to result both from the vagueness of the government’s measures and from a significant scope for interpretation left to the police. Cross-analysis of the incidents collected during the interviews, supplemented by documentary monitoring, revealed a practice of profiling in the application and monitoring of measures, or at least a tendency to target certain groups of people more heavily based on their membership in specific social strata and ethnic groups, or specific neighborhoods and areas.

As the European Court of Human Rights instructs, such discrimination, if it can be proven, entails the responsibility of the Belgian State. Indeed, the latter did not take into account the existing inequalities within society when managing the crisis and did not qualify the measures to protect these categories of vulnerable people, by amplifying economic and social differences.

Author : Flavia Clementi

[1] Text available at https://bit.ly/3mzaGFw .

[2] Measures that are neutral in their formulation may nevertheless have discriminatory effects on certain groups of people when implemented. These discriminations are classified as ‘indirect discrimination’ by European and Council of Europe law.

Arbitrary detention in DR Congo: The Detention ExPEERience network introduces a liability action against the State in 4 jurisdictions

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On September 15, 2020, 6 complaints were filed at the High Courts in Kinshasa, Mbuji-Mayi (Kasai Oriental), Lubumbashi (Haut Katanga), and Kindu (Maniema). Written in the name of citizens and civil society organisations, they ask the competent judges to recognize instances of arbitrary detention as well as the disastrous state of prisons in the country, particularly due to prison overcrowding. This action also seeks recognition of the State’s liability for the damages suffered by the plaintiffs.

For the past 8 years, ASF has been carrying out actions to defend the rights of people detained arbitrarily or in conditions contrary to the principle of the rule of law. And In 66% of cases, significant results were noted, either by obtaining the release of the person, or by referral to the court of judgment.

In the logic of this intervention, and in the pursuit of a dialogue with the country’s authorities, ASF and its partners aim to question the State’s liability regarding the extreme overcrowding in prisons, the resulting disastrous conditions of detention, but also the abusive use of long-term preventive detention. For example, X, a 24-year-old man, was arrested in 2010 in the context of a land dispute for which he allegedly refused to testify. Prosecuted for malicious destruction of property, he was imprisoned for ten years without trial before being recently released following the actions of the Detention ExPEERience network.

For more than a decade, ASF and many Congolese and international actors have been reporting on the alarming situation in the prisons of the DRC. The buildings are in a dilapidated state and have often not been renovated for half a century. Shortages in food and deficiencies in providing basic hygiene needs for prisoners are responsible for a lot of fatalities each year.

Overcrowding is the norm in most prisons. In the Makala prison in Kinshasa, 9,000 prisoners are incarcerated, whereas, in principle, the prison cannot welcome more than 1.500 people. This extreme overpopulation finds its source in the abusive and almost systematic use of pre-trial detention. A practice often diverted from its initial objective – the exceptional detention of a person within the strict framework defined by the law for the purpose of a trial -, pretrial detention is used for the benefit of private interests, political and economic. There have been frequent reports of cases in which prisoners are left in prisons because they cannot “pay their way out “.

All these observations have pushed ASF to develop, since January 2020, Detention ExPEERience, a network of lawyers and experts who defend the rights of prisoners and try to positively influence the penal systems in the DRC, but also in other countries. In particular, the Network deals with strategic litigation. By defending emblematic cases, ASF hopes to have a lasting impact on the strengthening of the rule of law in the judicial and penitentiary fields.

Such actions, even if unheard of in the DRC, have already been undertaken in other countries. The European Court of Human Rights has recently condemned the France for the poor conditions of detention in its prisons and linked it to overcrowding.

Through the litigation actions introduced, ASF and its partners, convinced that the promotion of the rule of law and democratic principles cannot go without a full compliance with human rights for all persons without distinction, including detained persons, hope that the judiciary, which is in principle independent and impartial, can make decisions to place the competent authorities before their responsibilities and to provide a lasting solution to prison congestion and severe human rights violations in detention.

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Policy Brief : Reflexions on victim’s participation before the International Crimes Division in Uganda

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Victim participation is a central element in achieving justice and reconciliation in Uganda. The practice is allowed by the International Crimes Division (ICD) but efforts still have to be made by courts and the legislator to actualize its full use in court proceedings. This policy brief offers an analysis as well as a few recommendations regarding the situation of victim participation in Uganda.  The concept of victim participation is a relatively new aspect in Uganda’s common law system, where victims traditionally have no role in criminal court proceedings. The Rules of Procedure and Evidence (RoPE) of the International Crimes Division (ICD) are an exception in that regard, as they allow victims of international crimes to participate in the court proceedings. However, the Rules are silent on how such participation should be operationalized. Relying on close monitoring of Thomas Kwoyelo’s case at the ICD, interactions with the victim communities and study of the relevant legislation, this policy brief provides an analysis of how victims have been participating in the court proceedings since the adoption of the RoPE and highlights the challenges that have been encountered so far in the process. Among those challenges, we note the absence of clear guidelines for participation of the victims in proceedings and the lack of resources dedicated by the Court to ensure such participation. The Court has so far taken a reactive approach which has made it difficult for the victims’ lawyers to make participation meaningful. The physical distance between the victims and the Court and lengthy proceedings further contribute to the loss of interest and fatigue that have been growing among victims. Besides the necessity for the ICD to develop guidelines on victim participation to address those issues, there is an urgent need for the Justice Law and Order Sector (JLOS) to come up with a proper victims participations strategy and to ensure financial support to the ICD and the victim lawyers. The policy brief also puts forwards a few observations and recommendations regarding reparations. Reparations are a central issue for the victims and a main motivation for their participation in the proceedings. The possibility for the court to order reparations upon a guilty verdict is foreseen under the RoPE. However, important questions remain unanswered and call, once more, for guidance from the ICD. For example, it is unknown whether or not victims who are not participating in the proceedings will be entitled to reparations, and what the actual modalities of court-ordered reparations, if ever awarded, would be. Additionally, the scope of reparations under the RoPE lays emphasis on financial compensations, mismatching victims’ own preference for other forms of reparations. Beyond court-ordered reparations, there is a need for the legislator to work on a country-wide reparations framework that provides victims with clear perspectives to address their grievances. Victims’ participation is an important element in court processes especially among the victims that were affected by post conflict in Northern Uganda.  This greatly contributes to justice, healing and reconciliation among others. It also makes the victims feel part of the processes in achieving justice for the harm that they suffered. It is therefore important that the different stakeholders ensure that this concept is actualized to avoid instances of the victims losing interest in the court processes. Download the policy brief here Continue reading “Policy Brief : Reflexions on victim’s participation before the International Crimes Division in Uganda”