No to the introduction of “malicious undermining of State authority” in the Belgian Penal Code

Crédit photo : Justine Dofal
Photo credit: Justine Dofal

On 22 February, the Belgian federal parliament approved the adoption of a new criminal code. A necessary reform, but one in which certain provisions worry the actors of civil society, particularly the one provision concerning the introduction of an offence of malicious attack on the authority of the State. What lies behind this article is the possibility for the State and the magistrates to criminalise the use of a tool that is fundamental to the proper functioning of our democracies: civil disobedience.

This text is part of a growing trend, in Europe and elsewhere, towards the criminalisation of social movements and attacks on the right to demonstrate and freedom of expression.

This article of the penal code on ‘malicious undermining of the authority of the State’ could be used to attack social movements, and its broad definition leaves a lot of room for arbitrariness and the discretion of magistrates.

Such a situation would undermine the principles of legal certainty, legality, equality before the law and freedom of expression, which are essential in any democratic society.

Civil disobedience: a fundamental democratic tool

Civil disobedience is the act of publicly, consciously and non-violently breaking the law in order to denounce and call for the reform of a law or public policy that infringes people’s fundamental rights.

It does not call into question the rule of law, but targets specific legislation or policies. Its aim is to put certain issues back at the heart of public debate, thereby nourishing the democratic life of a state.

Not only is it compatible with democracy, it is essential to its proper functioning, particularly when legal and political avenues have been exhausted.

Combined with other legal means of action, it makes it possible to win battles for rights and justice.

East Africa – Protecting civic space: A public interest litigation approach

This article was published in ASF’s 2022 annual report.

In 2022, ASF’s East Africa office launched a project covering three countries in the region: Burundi, Tanzania and Uganda. The objective of the project is to contribute to the advancement of the rule of law through the understanding and usage of regional human rights treaty bodies, mechanisms and instruments by local civil societies organisations.

In practice, the project focuses on promoting the use of public interest litigation as a tool for influence, to bring about positive reforms in the areas of civic space and civil liberties. In its countries of intervention, ASF has identified existing and developing cases led by civil society organisations. Through the project, financial and technical support is provided to these cases, along with strategic reflection on how their reach can be amplified through advocacy and external engagements. A key aspect of the project, given its regional nature, will also be to support cases mobilizing regional mechanisms such as the East African Court of Justice, or the African Court on Human and People’s Rights (ACHPR).

With support from the Pan African Lawyers’ Union, ASF is working on legal submissions to the ACHPR on the right of association, which cover a dozen African states. Our observations and legal analyses led us to believe that practices and laws governing NGOs in many African states were in violation of the freedom of association. These submissions are aimed at upholding fundamental civil liberties and imposing a positive obligation on the states to reform the laws in force and to end the practices infringing on the right of association.  

ASF is also providing financial and technical support to a constitutional petition brought by civil society organizations, including Chapter Four, before Uganda’s Constitutional Court, to challenge the constitutionality of the Computer Misuse Act voted into law in October 2022. Though this controversial piece of legislation has been hailed by the government as a necessary protection of privacy in the digital age, it is perceived by many local CSOs as an infringement on the freedoms of expression and press.

ExPEERience Talk #11 – Decriminalising poverty, status and activism: a global emergency, an international campaign

  • When? 5 October – 12 pm (GMT+1, Tunis) ; 1pm (GMT+2, Brussels)
  • Language: French
  • Free online event – Mandatory registration

This 11th ExPEERience Talk will be devoted to the Campaign for the Decriminalisation of Poverty, Status and Activism. Several of its members will present its history and how it operates. They will discuss the challenges encountered and the opportunities presented by the networking of a multiplicity of actors to tackle a global and systemic issue of such magnitude.

In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed. Many countries are also witnessing a narrowing of civic space and the use of criminal law to repress activism and stifle dissent. These phenomena are deeply rooted in the legislation, institutions and practices of States around the world.

During this ExPEERience Talk, speakers from several of the campaign’s member organisations will illustrate the very real consequences of these repressive laws and practices for civil society and the general public. They will also talk about the various actions undertaken as part of the campaign: joint research, litigation and lobbying actions before national and international institutions.

To date, the campaign is supported by some fifty civil society organisations from many countries. Its ambition is to create the conditions for a global change in criminal and social laws, policies and practices by adopting a transnational and multisectoral strategy.

Speakers

  • Khayem Chemli – Head of advocacy at ASF – Euromed region (moderator)
  • Soheila Comninos – Senior program manager at Open Society Foundations
  • Arnaud Dandoy – Research & Learning Manager at ASF – Euromed region
  • Asmaa Fakhoury – Country director Morocco
  • Maria José Aldanas – Policy Officer at FEANTSA

The campaign to decriminalise poverty, activism and status

This article was published in ASF’s 2022 annual report

The next ExPEERience Talk (webinar) organised by ASF and its Justice ExPEERience network will address the theme of the Campaign for the Decriminalisation of Poverty, Status and Activism. It will take place on Thursday 5 October 2023 at 12pm (Tunis) – 1pm (Brussels). You can register now, participation is free.

The Campaign for the Decriminalisation of Poverty, Status and Activism, launched in Africa, South Asia, North America and the Caribbean, is led by a coalition of civil society organisations calling for the revision and repeal of laws that target people because of their status (social, political or economic) or their activism.

In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed.

At the same time, in several of these countries, the criminal law is being used to repress activism and stifle dissent. Sedition laws dating back to colonial times and more recent public order laws, for example, are ubiquitous tools deployed by states to stifle protest and limit freedom of expression. States use the security apparatus, justice and detention against individuals and groups who do not represent a danger to the safety of citizens, but rather to maintain the status quo and the privileges of a minority.

This abuse of power has a profound cost in terms of human rights, manifesting itself in discrimination, the use of lethal force, torture, arbitrary and excessive imprisonment, disproportionate sentences and inhumane conditions of detention. This situation is compounded by intersecting forms of oppression based on the gender, age, disability, race, ethnic origin, nationality and/or social class of people who are already marginalised. The populations most affected by this criminalisation of status, poverty and activism are also those most affected by phenomena such as prison overcrowding, pre-trial detention, loss of family income, loss of employment, etc.

In 2021, the campaign, which brings together lawyers, jurists, members of the judiciary, activists and experts from more than 50 organisations, won some important victories, including landmark cases against various laws before national courts in Africa. These include the adoption of principles on the decriminalisation of minor offences by the African Commission on Human and Peoples’ Rights, and the establishment by the Pan-African Parliament in 2019 of guidelines for a normative/model law on policing.

The Campaign therefore represents a real opportunity for a global change in criminal and social laws, policies and practices. For the first time, civil society is focusing on the common dysfunctions of the criminal justice system and establishing, among other things, the links between colonial criminal legislation and the criminalisation of poverty, in a global context of shrinking civic space.

The campaign has been organised through several committees: a global committee, of which ASF is a member, and thematic and geographical sub-groups to ensure greater representativeness of stakeholders and greater impact.

Avocats Sans Frontières is a member of the coordinating committees of the Francophonie and North Africa sub-groups respectively. This structuring is intended to further strengthen the campaign’s research objectives, priorities and targets in terms of advocacy and awareness-raising.

On the occasion of the 18th Summit of the Francophonie, held in Djerba on 19 and 20 November 2022, ASF and its partners in the Tunisian coalition for the decriminalisation of minor offences and poverty, organised a parallel event in Djerba during which demands were made to the Organisation Internationale de la Francophonie (OIF), contained in a public document entitled the “Djerba Declaration”. The signatories believe that the OIF could and should play a central role in promoting the values of human rights, and promote the decriminalisation of minor offences which, in addition to their discriminatory nature, exacerbate the phenomena of prison overcrowding, which are themselves responsible for the worsening of inhumane and degrading conditions of detention.

The French-speaking sub-group, of which ASF is a member, started a series of internal consultation meetings in March 2023. These should lead to the drafting of a common vision and common objectives for its members, aligned with the campaign’s overall strategy charter that will bring together the common vision and objectives of its members. It will serve as the basis for an advocacy strategy vis-à-vis influential players such as the European Union and its member states, the African Union and its member states, the various European institutions responsible for cooperation policies, and the institutions and mechanisms of the United Nations.

ASF’s Euro-mediterranean regional hub

This article is part of ASF’s 2022 annual report.

In 2018, ASF launched a regional hub in the Euro-Mediterranean region, based in Tunis, with the aim of pooling resources and strengthening and harmonising its action in the region. The innovative aspect of the regional office is to fully assume the historical, economic, political and cultural links that exist between the two shores of the Mediterranean, and to take them into account in order to put in place action at regional level that is coherent and efficient.

The Euromed Hub is made up of five members and the country directors for Morocco and Tunisia. It collects and analyses data from the field in order to guide decision-making processes at national and European level. The hub provides strategic guidance to the region’s offices and identifies opportunities for developing and consolidating partnership networks at both national and regional level. The hub also provides technical support to the country offices in terms of financial management and human resources.

Three eminently transnational and global issues, which in their own way shape relations between the two shores of the Mediterranean, have been identified as thematic priorities for the region:https://asf.be/development-of-regional-approaches-the-regional-hubs/

a)            Migration: all the countries to the south of the Mediterranean are countries of origin (Tunisia, Morocco) and transit (Algeria, Libya) for migrants. On the European side, migration is taking up an inordinate amount of space in the public debate, and the policies implemented by the European Union and its member states flout the fundamental rights of migrants.

b)            Freedom and security: the fight against terrorism and violent extremism can give rise to public policies that restrict freedoms and civic space and hinder democratic transitions and people’s fundamental freedoms. This is true for the south and the north of the Mediterranean Sea, where a proliferation of exceptions to the principle of the rule of law for health and security reasons is threatening the “consolidated democracies” of the European continent.

c)          Combating the impunity of economic actors: economic interests maintain a system of dependence from the south to the north of the Mediterranean. The conduct of European economic players in Africa has a major impact on increasing social inequalities and on the environment, and can sometimes be a determining factor in conflict (at local, national and international level).

ASF’s annual report is available!

The Avocats Sans Frontières team is delighted to present its latest annual report.

We have come a long way since ASF was founded in 1992 by a group of Belgian lawyers. Over these 30 years, hundreds of people have contributed to making the organisation what it is today: a militant organisation active in a dozen countries, working to promote access to justice and the rule of law based on human rights, in close collaboration with local actors.

These thirty years of action, the local roots we have developed and the links we have forged with human rights defenders from the four corners of the world give us a great deal of strength and confidence as we look to the future and continue to deploy impactful action in the service of populations in vulnerable situations (women, children, the LGBTQI+ community, ethnic minorities, people in detention, people in migration, etc.).

But the challenges are many. All over the world, civil society organisations and human rights defenders are faced with worrying developments and trends: the rise of authoritarianism, the shrinking of civic space, growing public distrust of institutions, heightened social tensions, etc.

Defenders of human rights and access to justice have to work in contexts that are increasingly hostile to them. The very notions of human rights and the rule of law are being called into question. Activists, lawyers and journalists working to defend the fundamental rights of populations in vulnerable situations are increasingly systematically targeted by repressive policies.

Every page of this report bears witness to the vigour of the flame that drives those who are committed to upholding human rights at the very heart of our societies, at the risk and peril of their own freedom. This report is a tribute to each and every one of them.

600 days after Article 80 : From the state of exception to the establishment of autocracy

The Alliance for Security and Liberties (ASL), of which ASF is a member, has published its fifth report on the rule of law and the state of freedoms in Tunisia. Begun in the aftermath of President Saïed’s coup de force on 25 July 2021, ASL’s quantitative and qualitative monitoring and analysis of the events, decisions and reactions that followed the controversial vote on the new Tunisian Constitution on 25 July 2022 is presented in this fifth edition.

More than a year and a half ago, on 25 July 2021, President Saïed activated Article 80 of the Constitution and established a state of emergency. This date marked the beginning of his dismantling of the institutions resulting from the post-2011 transition: parliament frozen and then dissolved, constitutional bodies dissolved, full powers by decree, ratification of a Constitution unilaterally drafted by Saïed and voted under deleterious conditions…

The picture painted by this bulletin leaves little doubt as to President Said’s autocratic intentions and his desire to close the chapter of democratic transition in Tunisia once and for all. He unilaterally imposes a political project with vague outlines but which is certainly vertical, authoritarian and populist.

Several trends and developments emerge from the monitoring and analysis work of the Security and Freedom Alliance.

At the institutional level, the period was marked by the vote and ratification of the new Constitution, which established the hypertrophy of the executive to the detriment of the legislative and judicial powers, which were considerably weakened. The polls leading up to the vote on the Constitution and the election of the first chamber of Parliament were characterised by their incompatibility with electoral norms and historically low turnout. The judiciary continues to be attacked and dismantled against the backdrop of a major socio-economic crisis.

At the same time, rights and freedoms continue to be eroded, in a context of instrumentalisation of the judiciary and the security apparatus, and repression of opponents, the press and trade unions. Arbitrary administrative measures to restrict freedoms and the adoption of liberticidal decree-laws have become common practice. The last few months have also been marked by a campaign of racist violence – supported by the state’s hateful rhetoric – against sub-Saharan populations, at a time when more and more migrants (Tunisian or not) are trying to reach Europe by sea, risking their lives.

Finally, the vice is tightening ever more on an opposition that is struggling to form a united front against the regime. The political scene remains unstable and shifting. Several opposition initiatives (civil and political) coexist but do not manage to constitute an opposition force capable of challenging the President’s authoritarian designs, while some of his allies are distancing themselves.

On the international scene, Tunisia is isolating itself. Condemnations have been mounting and even intensifying since the waves of arrests of public figures in recent months and the deployment of xenophobic rhetoric against sub-Saharan migrants. It is in this context that the President is undertaking diplomatic efforts, particularly with Arab states, to obtain international support.

L’Alliance pour la Sécurité et les Libertés

The Alliance for Security and Liberties (ASL) is an alliance of Tunisian and international civil society organisations based in Tunisia which, in the continuity of the Revolution of Freedom and Dignity, reflects, mobilises and acts so that Tunisia consolidates the construction of a democratic state whose public policies are at the service of the citizens guaranteeing peace, respect for their human rights and equality between all.

Reports

Four periodic bulletins have already been published 50, 100, 200 and 365 days after 25 July 2021.
Find all the reports of the Security and Liberties Alliance.

365 days after article 80

200 days after article 80

100 days after article 80

50 days after article 80

Egypt: concerns about the detention of human rights lawyer Malek Adly

The International Association of Young Lawyers (AIJA) and Avocats Sans Frontières (ASF) are deeply concerned about the detention of human rights lawyer Malek Adly in Cairo, since his arrest last week. Both organisations call for the respect of the freedom of the legal profession in Egypt. Mr. Adly is a prominent human rights lawyer and director of Lawyers Network at the Egyptian Centre for Economic and Social Rights (ECESR). He also co-founded the Front for Defending Egypt’s Protesters, a group comprising of 34 human rights organisations and several lawyers, which documents illegal practices carried out by state police forces against peaceful protesters. An arrest warrant was issued against Mr Adly on 23 April 2016 in connection with a call to protest against President Abdel-Fattah el-Sisi’s decision to hand over two Red Sea islands administered by Egypt to Saudi Arabia and human rights abuses committed by the Egyptian security forces. Mr. Adly’s arrest follows a wave of arrests in Egypt reported to reach over 1,200 following protests against the President’s decision in connection with the islands. Mr Adly’s defence team alleges that he was severely beaten by security personnel upon his arrest on 5 May 2016 and has filed claims to several authorities regarding violations against Mr Adly in respect of his arrest and investigation. The human rights lawyer will be held in custody for 15 days, pending investigation into a list of allegations, including attempting to overthrow the ruling regime, affiliation to a banned organisation and broadcasting false news, all of which he denied during questioning. AIJA and ASF call upon the Egyptian authorities to unconditionally respect the Egyptian Constitution and its international obligations, and to respect fundamental rights such as the freedom of expression and the right to freely exercise the profession of lawyer. As an international NGO specialised on access to justice, ASF implements a regional program to promote and expand the scope of freedom of expression in the MENA region. The current crackdown on lawyers as Mr. Malek Adly, Mr. Ahmed Abdallah, the Head of the Board of the Egyptian Commission for Rights and Freedoms (ECRF) arrested on April 25th, and many other human rights defenders constitutes a serious threat to freedom of expression in Egypt. Together with ASF, Mr. Adly contributed to AIJA’s 2015 annual conference in London by sharing the challenges of working as human rights lawyer in the context of national uprising and transition to democracy in Egypt. His keynote speech on the role of the lawyer in defending freedom of expression had been an eye-opener for many European young lawyers.
Picture © ECESR
Continue reading “Egypt: concerns about the detention of human rights lawyer Malek Adly”

Voices from Kinshasa (2/3): “My goal: to live in a country without injustice”

Kinshasa, 7 March 2016 – Defending the rights of victims of injustice and exercising one’s fundamental freedoms remains a challenge in DR Congo. Faced with an often failing legal system and, at times, intimidation, men and women still pursue an ideal: to live in a fairer world. Second of three interviews: journalist Nathalie Kapela, specialised in covering justice matters.

Born in Kinshasa, Nathalie Kapela has a background in communication and has been active in the field of information since 2000. She is very quickly interested in sensitive issues such as overexploitation of forests and the lack of respect for legislation in this area. However the Congolese media lacks resources: 80% of television and radio channels are commercial and therefore dependent on advertisers, or are supported by politicians. “Under these kind of conditions it quickly becomes problematic to tackle committed issues“, explains Nathalie Kapela.

The young woman’s interest in legal issues was confirmed during the production of a TV report in a township on the outskirts of the Congolese capital city. “I was shocked when I discovered how precarious the living conditions were. The discrepancy between what I was telling people on air and the reality on the ground was enormous“, the journalist and anchorwoman tells. She decided to leave the television company who employed her and devote herself instead to human rights and good governance issues.

In 2008, she set up her own video production company. Her first report focused on corruption in the judiciary. “I wanted to show that anyone who breaks the law, whether rich or poor, should be punished“, she recollects.

The reports produced for her programme Actualité judiciaire (The Judiciary Today) are being broadcast on television, thanks, in particular, to international financing. She then took the administrative steps in order to protect the concept of her programme but very soon noticed how obstacles were put in her way, up to ministerial level. “I therefore decided to denounce this situation on air. After that, it’s as though I’ve been hit by a thunderbolt: my programme was suspended!” In the face of this suspension, the journalist filed a complaint with the Conseil Supérieur de l’audiovisuel et de la communication (High Council for Audio-visuals and Communications). But this was unsuccessful, in spite of public support from a number of European countries. “Subsequently, I was summoned for false accusation. I even received threats by text messages on my mobile phone“, testifies Nathalie Kapela.

Today, her request to withdraw the suspension of her programme is pending before the Supreme Court. “Since 2014, ASF has supported me with two lawyers who are pursuing the matter at Court level“, explains the journalist, who, in the intervening time, has been producing new reports for other TV channels.

Whilst waiting for a court decision, Nathalie Kapela continues with her fight, in spite of the pressure and the intimidation to which she and her team are subjected. “What do I fear the most? Not seeing my goal being achieved: living in a country without injustice. Because here, the poverty is striking and corruption is an everyday practice. But with our programmes, the legal culture is making progress. People are keeping themselves informed, they are being responsive. It’s this conviction,that things will change in favour of observing human rights, that keeps me going.

Picture: Freedom of press in DR Congo remains a challenge. Kinshasa, 2015 © ASF / G. Van Moortel

Continue reading “Voices from Kinshasa (2/3): “My goal: to live in a country without injustice””

Mansouri trial: adultery case or judicial harassment?

Rabat/Brussels, 15 January 2016 – Hicham Mansouri, the Moroccan human rights activist, will be released on 17 January, having previously been sentenced to a 10-month prison term and a fine of 20,000 dirhams for the offence of complicity in adultery. Avocats Sans Frontières (ASF) is concerned about the judicial harassment of those who support freedom of speech. With the release of its observation report on the trial, the NGO wishes to emphasise again the absolute importance of respecting the right to a defence and the requirements for a fair trial.

On 17 March 2015 around ten police officers in plain clothes broke into Mr. Mansouri’s home in Rabat. No arrest warrant had been served on him at the time of his arrest. Mr. Mansouri had been assaulted and forced to undress there and then, before being placed in preventive custody to await trial. Moreover, Mr. Mansouri had not been able to contact his family or his lawyer during the first twenty-four hours of his detention.

On 30 March 2015 the Rabat Court of First Instance sentenced Mr. Hicham Mansouri to ten months in prison and a fine of 20,000 dirhams (almost 2,000 euros) for complicity in adultery under Morocco’s Penal Code.

ASF had arranged for the judicial observation of this trial through a lawyer who was a member of ASF’s International Legal Network. This intervention took place in the context of ASF’s Kalima project, which aims to promote freedom of speech and the protection of journalists and bloggers in Morocco, Tunisia and Egypt.

With Mr. Mansouri’s release from prison, ASF is publishing the observation report of his trial. This report raises some crucial questions about what was supposedly just a simple adultery affair: why was the defendant held in preventive detention? Why did the judicial authorities deal with this case so quickly? Why did the security services put in place such major security measures during the hearings?

“These various measures may be related to the political dimension of this case. Hicham Mansouri is a human rights activist who is known for his commitment to the promotion of civil liberties and in particular the freedom of the press. His trial can be seen as part of a practice that unfortunately is quite common, involving efforts to impede the work of people who stand up for freedom of speech, through judicial actions under ordinary law”, suggests Chantal van Cutsem, ASF Strategic Coordinator for the countries of North Africa and the Middle East.

Two weeks after his release Mr. Mansouri will have to appear again before the Rabat Court of First Instance alongside six other human rights activists and journalists. These defendants face accusations relating to endangering the security of the State because of their activities in the defence of human rights. On 19 November 2015 they had been summoned to appear before the Rabat Court of First Instance, which had then decided to postpone the trial until 27 January 2016. In this regard it is worth noting that the court did not consider it appropriate to order the police to present Mr. Hicham Mansouri for this hearing, while he was serving his prison sentence.

“At a time when the trial of these activists is about to begin, the judicial harassment of those who defend freedom of speech and human rights is worrying”, notes Chantal van Cutsem.

ASF reiterates the importance of the right to defence and of compliance with both the requirements for a fair trial and international standards. Continue reading “Mansouri trial: adultery case or judicial harassment?”