الملاحظات الأولية للمقررة الخاصة المعنية باستقلال القضاة والمحامين بشأن زيارتها الرسمية إلى دولة قطر (19 – 26 كانون الثاني/يناير 2014)

United Nations Special Rapporteur on the independence of judges and lawyers

Ms. Gabriela KNAUL

Preliminary observations on the official visit to the State of Qatar (19-26 January 2014)

Doha, 26 January 2014

The purpose of the visit was to examine, in the spirit of co-operation and dialogue, both the achievements and shortcomings of the country in ensuring the independence of the judiciary and the free exercise of the legal profession. I also concentrated on key-issues regarding the administration of justice, such as guarantees of due process and fair trial, equal access to justice and legal aid, the position of women in the justice system, accountability processes for judicial actors, and issues related to the independence of non-Qatari judges.

I will now share a few preliminary observations and recommendations. I will further develop my assessment in a written report, which I will present to the United Nations Human Rights Council in 2015.

Let me begin by warmly thanking the government of Qatar for the invitation to conduct this official visit and for its engagement with my mandate, while fully respecting my independence. Qatar’s recent engagement with human rights mechanisms has been exemplary. In the region, Qatar was the first State to issue a standing invitation to the Special Rapporteurs of the Human Rights Council; it was also the first to create a National Human Rights Committee. I would also like to thank the United Nations Human Rights Training and Documentation Center for South West Asia and the Arab Region for its support in organizing this visit.

During the visit, I had the opportunity to hold meetings with a number of senior government officials at the Ministries of Foreign Affairs, Justice, Interior, and Labour. I also met with the Chief Justice of the Court of Cassation and other members of the judiciary, the Prosecutor General, the speaker of the Advisory Council, and lawyers. Finally, I met with representatives of the Qatar Financial Centre Authority and the Qatar International Court and Dispute Resolution Centre, the diplomatic community and civil society. I would like to seize this opportunity to thank all the persons and institutions I met with for their warm hospitality and the wealth of information they shared with me.

I wish to commend the recognition of the principle of separation of powers and the independence of the judiciary in the 2004 Constitution. The recognition of these principles who are essential to the rule of law was indispensable to provide for a healthy foundation upon which to build a new judicial system in line with the international principles of independence and impartiality and guarantees of due process and fair trial. The unification of the courts under one system is also a welcome development which largely contributed to consolidating the administration of justice in Qatar.

The establishment of the Supreme Judicial Council in the Law on the Judiciary of 2003 and the Constitution as a self-governing body of the judiciary was also a commendable step towards ensuring the independence of the justice system from the other branches of power.

The creation of a Constitutional Court should also be underlined as a positive development. Nevertheless, it remains unclear why this Court is not yet operational more than 5 years after the legislation that created it was passed and more than 4 years after its head was appointed. I strongly encourage that the Court be formed, start functioning as early as possible and be provided with all the resources and guarantees necessary for its full independence and proper administration.

I further wish to welcome the constitution of the public prosecution as an institution independent from other Ministries or the judiciary. Nevertheless, it is important to note that the Prosecutor General has the rank of Minister which may create confusion regarding his independence from the executive.

The current judicial system in Qatar was recently established and, as such, continues to face challenges, especially in relation to the independence of judges, prosecutors and lawyers. These challenges, which directly affect the delivery of justice and the enforcement of people’s human rights, should be assessed and addressed in a timely fashion in order to bring the administration of justice in Qatar in line with international human rights standards.

The constitutional provisions relating to the separation of powers do not seem to be fully implemented. While any direct interference is extremely difficult to document, reports of interference of the executive in the work of the judiciary, particularly in cases involving high level persons, are still a matter of concern. Furthermore, the independence of judges, in particular their security of tenure, might be jeopardized by the provisions that allow for dismissal of judges on vague grounds relating to “public interest”. While such provisions mighty not have been invoked recently, they remain problematic.

Another shortcoming affecting the independence and impartiality of the judiciary is the absence of a code of conduct and ethics for judges. It is important to bear in mind that the requirement of independence and impartiality does not aim at benefitting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial. Integrity and accountability are, therefore, essential elements of judicial independence and are intrinsically linked to the implementation of the rule of law. While the Law of the Judiciary provides some elements on the infractions triggering disciplinary measures, detailed guidance needs to be provided to judges on the types of infractions that will trigger disciplinary measures.

The independence of non-Qatari judges is another issue that requires reflection. Their tenure is not guaranteed in the same way as national judges as non-Qatari judges come to Qatar under temporary contracts; this seems incompatible with the principles on the independence of the judiciary. I understand that the hiring of a large number of non-Qatari judges was triggered by the lack of a sufficient number of qualified and interested nationals. It is within the sovereign right of Qatar to reserve the judicial profession to its own nationals; yet, since Qatar decided to use their services, there seem to be a need to review the conditions of tenure of non-Qatari judges.

Justice, as a fundamental right, entails that everyone is equal before the law. It seems that women, however, are still faced with institutionalized gender discrimination within the administration of justice. Qatar currently has 198 judges, among them only 2 are women. There are also 14 assistant judges, only one of them being a woman. There are major obstacles to women's access to justice, but the judiciary can undoubtedly play an important role in advancing women's human rights. I encourage the government to take measures to facilitate women’s appointment as judges and to mainstream a gender-based approach in the justice system, as this will empower women to access justice and claim their rights.

As regards the public prosecution, I noted with some concern information according to which the prosecution services is influenced by high level persons or powerful business companies. A clear distinction must be drawn between public and State interests, in order to avoid confusion. Acting on behalf of the public interest should not be perceived as protecting the interests of the government or any other State institution. Furthermore, guidelines of procedures and a code of conduct for prosecutors are needed.

Coming to the legal profession, I would like to highlight my concerns regarding the absence of an independent self-regulating bar association that oversees the process of admitting candidates to the legal profession, provides for a uniform code of ethics and conduct, and enforces disciplinary measures, including disbarment. In Qatar such functions are entrusted to the Ministry of Justice and the existing Association of Lawyers has no official competence. According to information received, the Lawyers Admission Committee in the Ministry of Justice includes three lawyers, and one lawyer sits on the Disciplinary Board, the balance in the composition of the Committee is not in favour of the legal profession. Like judges and prosecutors, lawyers also play an essential role in ensuring the independence of the judiciary and upholding the rule of law.

Gradual but significant steps should be taken towards the establishment of an independent bar association, which would provide an umbrella of protection for its members against undue interference in their legal work and monitor and report on their members’ conduct and apply disciplinary measures in a fair and consistent manner. The establishment of such an organized legal profession is a key element to the independence of lawyers. Measures should also be taken to introduce clear criteria and transparent procedures for the admission to the bar, including the establishment of a uniform written bar examination.

Serious concerns were expressed to me about violations of due process and fair trial guarantees and their consequences on peoples’ lives and respect for their human rights. Whether such violations constitute a pattern or an exception in the Qatari justice system needs to be further assessed. Regardless of the conclusion of such assessment, complaints of violations of due process and fair trial need to be immediately and seriously investigated by the relevant authorities and urgent measures taken to redress the situations.

The apparent lack of transparency during both the investigation phase and court proceedings remains a matter of concern. Lawyers also seem to be confronted with serious difficulties in accessing information, in particular during the investigation phase in the criminal justice system. Lawyers’ full access to appropriate information, files and documents in the possession or control of the authorities has to be guaranteed in law and in practice. Such access should be already accorded at the investigative stage in order to allow for the preparation of an adequate defence. Appropriate information includes all materials that are exculpatory or that the prosecution plans to offer in court against the accused.

Many of my interlocutors reported that it is very difficult to know what happens in the courts, whether you are a defendant or a victim. I was disturbed to hear that in a high level case involving the death of 19 persons, including 13 children, the independent expert report carried out to establish the facts was never communicated in its entirety to the parties. In another case, several persons were informed of a travel ban against them but were never notified officially and therefore could not appeal the ban before a judicial authority for months. The same persons did not have access to any information during the investigation phase and were only informed of the charges pending against them at the third court hearing. Until they attended the court hearings, it was impossible for them to prepare their defence in contradiction with the principle of equality of arms.

The lack of technology used during court hearings contributes to the lack of transparency of court hearings. Court minutes are hand written, and it was reported to me that in a hearing the clerk was unable to re-read what he had just written. Such practices disservice justice and opens the door to further manipulation. I was informed that the minutes of a high level case where the hearings were not held in public did not reflect that the sessions were closed. In another case, the defendants did not receive all the transcripts of the hearings. As a result, this element has not been taken into account in the appeal process to the detriment of the defendant and of the fair exercise of justice.

Modern technology tools should be urgently adopted and all hearings should be recorded to ensure the proper, adequate and transparent administration of justice. Video-streaming should also be available to enable victims who are abroad to effectively follow the proceedings.

I am also particularly concerned about reports that translations and interpretation in court cases involving non-Arabic speakers, while prescribed by the law, are not always provided in practice or that the quality is poor. I heard of a case where the defendant, a foreign national and non-Arabic speaker, was made to sign a document in Arabic that included a confession of guilt without being provided with a translation of the document. I also heard of cases where the defendant was not provided with interpretation during court hearings. Such obvious violations of due process are unacceptable, any document or testimony given in the absence of translation or interpretation should have no legal validity.

Foreigners living in Qatar already by far outnumber Qatari nationals and such imbalance is foreseen to increase rapidly in the near future. However, it is worthwhile to note here that the State has the obligation under international human rights law to guarantee the right to a fair trial to all individuals within its jurisdiction regardless of nationality. I am concerned by reports that police, prosecutors and even judges have showed a discriminatory attitude towards non-Qataris.

I am particularly concerned about vulnerable sectors of the population, such as migrant workers in the construction industry or domestic workers, for whom obstacles to access justice in cases where their rights have been violated seem to be almost insurmountable. I have heard of court fees that have to be paid to have your case heard and expert fees that need to be paid by migrant workers in order to obtain the expert report which will allow them to go further with their complaints. Courts need to be made aware of the plight of migrant workers and the burden that these fees represent for them. Such fees have to be urgently lifted and all judges should enforce the clause that allows them to waive expert fees.

Another concern is related to delays in judicial proceedings and the postponement of hearings without clear and fair grounds. According to information received, in a famous case already mentioned above which is currently before a court of appeal, the hearings keep being postponed because the defendants, condemned to jail in first instance, do not show up to court when summoned. Such endless postponements are unacceptable.

I was even told that one excuse used for the absence of one defendant was that he was travelling, even though a travel ban has been issued by the judge of the appeal court. Such disregard for a judicial decision is a great source of concern. The result of the lack of due process followed in this case is to deny victims closure and justice. Delays in court procedures can also have particular dire consequences on migrant workers, including forcing them to leave in inhuman conditions. Such consequences are not always taken into account when the postponements of hearings are ordered.

According to information received, persons arrested under the Law on the Protection of Society, the Law on Combating Terrorism or the Law on State Security Agency can be detained for lengthy periods of time without charge and fundamental safeguards, including access to a lawyer and the possibility to challenge the legality of the detention before a judge. In a country that respects the rule of law, anyone arrested without a warrant and/or detained beyond the eight days provided for in the law without having been presented to a judge should be released. The fact that, for instance under the Law on the Protection of Society, one’s detention can be extended up to six months by the Ministry of Interior without being presented to a judge constitutes a serious interference of the executive power in the prerogatives of the judiciary.

Finally, I wish to underline the importance of quality education and training for all the actors of the judicial system. The Centre of Legal Studies of the Ministry of Justice provides training for judges, prosecutors, and lawyers before they are appointed to the profession, but continuing or on-the-job training is still lacking. The authorities are well aware that efforts need to be made to continue building the capacity of judges, prosecutors and lawyers. The capacities of the Centre of Legal Studies should be further reinforced. The National Human Rights Committee has also been providing specific trainings to future judges and prosecutors and I believe that this practice should be further encouraged.

Qatar has come a long way in a short time when it comes to developing its justice system. The recent dramatic population growth has put the country’s institutions under pressure and they will need to adapt and promote reforms in order to be able to deal with the challenges that will continue to arise with the influx of foreign population and the tremendous economic development the country is going through. Ten years after the adoption of the new Constitution, Qatar should not miss the opportunity to launch the reforms necessary to reinforce its institutions, in particular those related to the justice system.

During my visit the authorities have assured that Qatar is determined to improve the system where needed, so I call upon them to adopt necessary measures as quickly as possible to show their engagement towards the consolidation of the independence and impartiality of the justice system. I also call upon them to seriously address violations of due process and fair trial in particular cases without undue delay. Qatar shows great potential in this sense as, unlike many other countries around the world, Qatar has the financial means to support reforms and implement a wide range of measures.

I encourage Qatar to continue engaging with human rights mechanisms and to spare no efforts in implementing their recommendations. To conclude, I would like to add the following recommendations to those already contained in my statement:

• Ratify the International Covenant on Civil and Political Rights;
• Enforce laws and judicial decisions and take measures to build transparent institutions;
• Take measures to ensure the respect of the independence of the judiciary. Interference from the executive and other branches of power must cease. Judges must be enabled to decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason;
• Ensure that non-Qatari judges are provided with all the guarantees given to national judges, as long as they are in line with the rules of secondment of their home country;
• Ensure that lawyers and prosecutors express the same level of respect to non-Qatari judges as shown to national judges;
• Adopt a code of conduct and ethics for judges and prosecutors, as well as one for the legal profession;
• Establish and officially recognise an independent bar association;
• Ensure the proper functioning of the Constitutional Court, by providing all the resources and guarantees necessary for its full independence and proper administration;
• Promote the participation of women in the justice system and develop gender-tailored procedures, policies and practices to promote equal access to justice;
• Ensure that court fees and fees requested for technical experts are systematically waived for migrant workers and other vulnerable sectors of the population;
• Promote the uniformity of procedures and the publication and availability of judicial decisions and cases;
• Adopt modern technology tools and record all hearings in order to ensure the proper, adequate and transparent administration of justice;
• Provide quality interpretation and translation for non-Arabic speakers at all stages of legal proceedings, including during the investigation phase;
• Redouble efforts to develop procedures, policies and practices to promote equal access to justice, in particular to vulnerable groups, such as migrant and domestic workers; and
• Develop legal and professional training, including continuing and specialized training, which should be available to all judges, magistrates, prosecutors and lawyers, regardless of the level at which they operate.