toshimaru ogura on Thu, 1 Aug 2002 10:37:02 +0200 (CEST) |
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[Nettime-bold] Fw:Encroachment of Principles of International Human Rights ByGlobalizing Law Enforcement |
Dear all, We in Japan have just issued new statement against globalizating law enforcement issue. Your suggestions and comments are welcome. I think we should watch FATF of OECD carefully that have a lot of dangerous tendencies against privacy and civil liberty. http://www.fatf-gafi.org/index.htm toshi NaST ((((((((((^0^))))))))) toshimaru ogura ogr@nsknet.or.jp toshi@jca.apc.org ((((((((((^0^))))))))) ======================================================= Japanese Lawyers’Statement On Encroachment of Principles of International Human Rights By Globalizing Law Enforcement ====================================================== Contents 1 Introduction 2 Accelerating Globalization of Law Enforcement by Way of International Treaties 3 Paralyzed Check-Ups of National Parliaments or International Civil Societies on Human Rights 4 Violation of Principle of Auto-determination and International Principles of Human Rights 5 International Convention against Organized Crimes, adopted by UN in 2000 1) Harmonization of Specific Techniques in Criminal Investigation with Human Tights Safe-guards 2) Control over Crime Genetic Organizations and Right to Self-Determination and Free Speech 3) Counter Measures against Money Laundering and Protection of Right to Counsel 6 Review Processes of FATF 40 Recommendations 1) Heavier Duties to Identify Customers or Inform in Financial Transaction 2) Gatekeeper Control Civil Society Concerned about Globalizing Law Enforcement Prof. Osamu Niikura, Aoyama Gakuin University Prof. Toshimaru Ogura, University of Toyama Yuichi Kaido, Esq. Yukio Yamashita, Esq. Contact: Prof. Osamu Niikura oniikura@als.aoyama.ac.jp --------------- 1 Introduction We are Japanese lawyers who have been working for Japan’s ratification of the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, and for introduction of International Law of Human Rights into our soil. As lawyers in action, we are fully aware of the fact that counter-measures against trans-border organized crimes and terrorism are put on the agenda for urgent needs by the international community. But on the other hand, some of these measures may affect or even encroach on the basic principles of penal law enshrined by modern societies or internationally admitted principles of human rights. This is particularly anxious about the newly conceived policies against such crimes or terrorism by the International Convention against Organized Crimes or a review of the 40 recommendations of Financial Action Task Force (FATF) in OECD. We believe firmly that international protection of human rights should be an important object to be achieved by the international community as a whole, and that any newly conceived crime policy must be in perfect compatibility with such principles. 2 Accelerating Globalization of Law Enforcement by Way of International Treaties Japanese people have been attacked by a wave of criminalizing legislations for reinforcing law enforcement practices in Japan, which are all backed up by international treaties or other international agreements. These trends have grown stronger after 9.11. In August 1999, three bills on measures against organized crimes including a law on authorized interception of communication contain omnibus control against organized crimes along with counter measures against money laundering. In 2002, the Japanese Diet adopted two other bills: one requires customers identification in financial transaction, and the other extends controls over financing terrorists. These two bills were also inspired by the UN Treaty on Control over Financing Terrorists and the corresponding recommendations of FATF. Furthermore, the International Convention against Transnational Organized Crimes and EU Treaty on Cyber Crimes are going to be put on the agenda for ratification and domestic legislation. As review of FATF 40 recommendations are going on in view of stronger counter measures against organized crimes, the Government of Japan will seemingly propose a bill, which aims at controlling “gatekeepers.” Then financial companies will be imposed of much severer obligations to report, restriction will be imposed upon lawyers’ obligation of silence (that is client’s right, in return, to ask secretly an advice from his/her attorney), and lawyers will be obliged to report their client’s activities to financial supervisory authorities. 3 Paralyzed Check-Ups of National Parliaments or International Civil Societies on Human Rights These trends cited above is nothing but a global wave of criminalizing legislations, grand designs of which are set up at the meetings of G7 or G8, OECD, EU, Council of Europe, UN, and so on by States bureaucrats, who are members of law enforcing authorities, or police officers or public prosecutors, in the industrialized countries. These trends are accelerated since the incidence of 9.11 or financial scandals such as evidenced by the collapse of WorldCom. These trends have their source in a basic desire, which tends to grasp in hand of national law enforcing authorities each and every flow of manpower and money, because we are living in a global economy. For the global economy, that has its primary core in the USA, and the second core in Europe, flows of manpower and money are at the center of grave concerns. It should be noted that in a current course of enacting international legislations on criminal matters, no one but limited numbers of law enforcement officers or diplomats are participating in drafting or discussing the norms. No representative from international NGO’s for human rights advocacy, or no representative of people who are to be controlled by these international agreements. Domestically, bills are adopted without democratic discussion under the pressure or authorities of international organs such as cited above, leaving seemingly no room for modification by national parliaments, even they are prone to maximize competences of law enforcement. It goes without saying that domestic NGO’s or even national parliaments have no effective means to rectify such a treaty, after it is drafted. Precisely speaking, there remains only a choice whether it be not ratified or taken for granted within a relatively narrow limits allowed by the treaty it-self. 4 Violation of Principle of Auto-determination and International Principles of Human Rights But these treaties and recommendations are partly diametrically contradictory against internationally established principles of fundamental values and democracy, such as right to self-determination, right to privacy, presumed innocence in criminal justice, freedoms of speech, association and assembly, right to counsel and to self-defense, right to be promptly brought before a judge, right to fair trial, and so on. The drafting process of an International Convention on Comprehensive Suppression of Terrorism has been in pending, because of insolvable disputes over a definition of terrorism, and a distinction between use of force for national independence and terrorism. Nevertheless, the International Convention on Control over Financing Terrorists, which lacks a clear definition of terrorism, has been ratified by many States including Japan, to enter into force. If some one provides money to support movements for self-determination or independence, such as those conducted by Palestinian people, he/she is likely to be charged for a crime of financing terrorists. In the United Kingdom, administrative interception of tele-communication are carried out widely only under authority of Home Secretary; foreigners who are suspected as terrorists can be detained without trial under series of anti-terrorist legislations, which derogate the application of European Convention on Human Rights. These are happening. That shows clearly hazardous trends to suppress human rights on the pretext of a need for anti-terrorist measures. 5 International Convention against Organized Crimes, adopted by UN in 2000 1) Harmonization of Specific Techniques in Criminal Investigation with Human Rights Safe-guards Article 20 of the Convention stipulates specific techniques, which might well contribute considerably to strengthen counter measures against trans-border organized crimes, if they were duly applied. If abused, however, they might well bring about serious infringements on the right to privacy, which is guaranteed by Article 17 of the International Covenant on Civil and Political Rights. The modern history has plenty of cases, which have proven abuses of interception of tele-communication for political purposes. It is true that criminal investigation would be carried out more effectively, if the investigation officers could make use of massively collected individual information. But it should not be forgotten that a massive collection of individual information could be by itself serious threats to the individual right to privacy. While there are discrepancies among constitutional safe-guards to protect the privacy from one nation to another, it would be nonetheless necessary to set up consistent legislative safe-guards against any abuses, if these new investigative techniques were to be taken into domestic laws. We would like thus to underline the needs to avoid any indiscriminative or arbitral use of the new techniques, and to pay the most conscious attention to build up effective safe-guards, taking into account of the protection of the right to privacy under Article 17 of the International Covenant on Civil and Political Rights. 2) Control over Crime Genetic Organizations and Right to Self-Determination and Free Speech It is also true that for the sake of counter measures against trans-border organized crimes, fruitful consequences would be drawn from a new form of control over organizations, which is laid down by Article 5 of the treaty. But that would crash with freedom of speech or assembly, which has been or still is constitutionally guaranteed in each Nation. These measures should be thus taken with due consideration of and in a form compatible with freedoms of speech and assembly, which are pertinent in Articles 19, 21 and 22 of the International Covenant on Civil and Political Rights. This is especially true with such States as are in turmoil because of violent confrontations between colonialist or oppressive political authorities in power and political, ethnic or religious minorities or antagonists. In those States, the targets of a hardliner policy are often these minorities or antagonists. Such controls based upon collective responsibility can easily negate human rights protection or right to self-determination on the side of the minorities. It should be mindful that the African National Congress (ANC) in South Africa and FLETILIN in East Timor were once called as terrorists by the governments then in power. We would like thus to underline that controls on crime genetic groups should be contained within a limit set by the principles of domestic law, as well as within a line of Articles 19, 21 and 22 of the International Covenant on Civil and Political Rights in full respect of freedoms of speech and assembly. 3) Counter Measures against Money Laundering and Protection of Right to Counsel Article 6 of the Convention makes a crime of money laundering. There is no exception with fees or retainers paid to attorneys by their customers. The lawyers’ fee or retainer is normally paid by the accused that is naturally suspected and charged for a crime whatsoever or even for an organized crime. If legislative controls went out of the minimum necessity in terms with the right to counsel, no attorney could safely assume his/her professional duty toward the accused that has allegedly committed one of predicate crimes of money laundering. Some may say that a defense attorney appointed by the court will do, even if the accused were denied of his/her right to counsel at his/her choice. It is nevertheless undeniable that a defense counsel who has a close tie with the accused can afford better job than an appointed attorney. And this is the case in any criminal justice system the world over. Attorney’s fees or retainers should thus be excluded from the target of the control in legislation on money laundering, so as to guarantee the accused of his/her right to counsel at his/her choice. 6 Review Processes of FATF 40 Recommendations 1) Heavier Duties to Identify Customers or Inform in Financial Transaction Duties to identify customers and to inform suspicious transaction to public officers are already established by the International Convention against Organized Crimes (Article 7). The duties are at the heart of the counter measures against money laundering. The same line will be followed by the FATF in a project of review of the 40 recommendations, yet in a way much heavier than ever. We don’t deny necessary measures, but disagree with a way of thinking that is prone to justify any means by a supposed purpose. Any means should have certain limits outlined by the necessity and proportionality in accordance with the purpose to be achieved. Unreasonable measures without limits would cause economic inefficiency, and bring about economic losses. They may furthermore yield bankruptcy by a mere fact that inspection can be carried out by the financial supervisory authorities, even if there weren’t enough evidence to prove money laundering. That is serious. Foreign workers would find much more difficulties to send their money to their family at home. We are living in a borderless world in an economic sense. More realistic measures should be taken. At least, some proposals shown in a FATF paper (Consultation Paper) are extremely troublesome, such as “STR should be made for all crimes” (paragraph 147, Option 1), “it is clearly desirable that attempts to launder money be reported” (paragraph 141). 2) Gatekeeper Control A gatekeeper control is a control over lawyers or other legal professionals, who are to be charged to check illegal transactions in finance. As FATF made public its draft review of 40 recommendations in May 30, 2002, a gatekeeper control was proposed in the draft (paragraph 272-280), which is open to public comment until August 31, 2002. A duty to inform suspicious transaction in terms with money laundering is already imposed upon lawyers, yet in a limited jurisdiction, such as in the UK and Keyman Island. In UK, a neglect to inform suspicious transaction to the governmental financial supervisory authorities as well as a disclosure to the customer on what was reported are to be punished by imprisonment for less than 5 years. Then serious incidences already happen. It is reported that in an effort to evade troubles, solicitors in UK tend to inform any facts in details in terms with their customers. That is to say that those lawyers in UK must behave as if they were police officers to their customers. These reporting systems will yield troubles in lawyering. Some may report to supervisory authorities even in unsatisfied conditions, others may refrain themselves from telling their customers what was reported to the supervisory authorities. Even a customer may well refrain from telling his/her attorney what is really important to ask for advices, and then naturally a basic relationship of mutual trust between attorneys and customers will go destructed. If a suspicious transaction of money laundering were to be reported to the supervisory authorities, lawyers could ruin their customer in doubt by reporting eventually wrong facts. It is a matter of compliance with their professional ethics to represent justifiable interests of their customer, even when they are under a pressure of globalizing law enforcement. Were there a reporting system, attorneys would be looked like informants or agents of law enforcement offices, which should change their images as a guardian of a fellow citizen or customer. Then it is no exaggeration to say that independent profession of lawyers will go collapsed. In Canada, a law which provides a reporting system is now suspended in application by a lawsuit filed by a bar association. While European Union imposes upon lawyers a duty to report by its directive, it is said that the directive leaves unaffected a professional secret in terms with law suit. Nevertheless, the rim of the duty is far from clear-cut. The USA and Japan have not yet such duty in their legislations. It is our firm belief that attorneys have their professional duties to protect civil liberties against unduly State interferences. The principle of professional secret is thus pertinent to the very nature of the profession. We are accordingly against any gatekeeper controls, which impose duty upon lawyers to report to financial supervisory authorities, even with a duly defined exception of their individual involvement in financing. July, 2002 Civil Society Concerned about Globalizing Law Enforcement Prof. Osamu Niikura, Aoyama Gakuin University oniikura@als.aoyama.ac.jp Prof. Toshimaru Ogura, University of Toyama Yuichi Kaido, Esq. Yukio Yamashita, Esq. _______________________________________________ Nettime-bold mailing list Nettime-bold@nettime.org http://amsterdam.nettime.org/cgi-bin/mailman/listinfo/nettime-bold