European Union:  independent judiciary and effective remedies must be at the core of the EU Regulation on “Terrorist Content Online”, warns ICJ

European Union:  independent judiciary and effective remedies must be at the core of the EU Regulation on “Terrorist Content Online”, warns ICJ

The ICJ called today on the Council of the EU, the European Parliament and the European Commission to give a central role to the judiciary and ensure effective judicial remedies to prevent and redress human rights violations, in the draft Regulation on “Terrorist Content Online”.

The call comes as the final phase of the negotiations between the EU institutions on the draft Regulation begin this Thursday 10 December..

The ICJ is concerned that without procedures that incorporate core rule of law principles in the Regulation, there is a risk of improper and overreaching suppression of content that will undermine freedom of expression and other rights online.

Among the ICJ ‘s concerns with the proposal as it currently stands, is that it does not provide for mandatory judicial authorization and judicial review of orders by national authorities to remove content online deemed to be “terrorist”.

According to draft Article 4 of the proposal, national “competent authorities” would have the power to issue a decision requiring a hosting service provider to remove “terrorist” content or disable access to it within one hour from receipt of the removal order.

The ICJ considers that the power to issue removal orders to censor content online within an hour, without prior judicial authorisation, risks leading to excessive, arbitrary  or discriminatory interference with the freedoms of expression, religion, assembly and association online as well as with rights to privacy and data protection of persons residing or present in EU Member States.

Under international and EU human rights law applicable to EU Member States, any restriction on these rights must be prescribed by law so that their application is clear and foreseeable, must be necessary and proportionate in the circumstances of the individual case, must be non-discriminatory and must allow access to an effective remedy. Furthermore, any person must have access to a court of law to access justice against breach of their rights.

The proposal, if approved without modifications, would allow – as yet undetermined – national authorities to order the removal of content online from host service providers, even if these are residing outside of their State or of the EU, without any authorisation from a court of law.

Furthermore, the definition of “terrorist” content relies heavily on a recent EU Directive on Combatting terrorism (2017/541) that allows for excessively wide criminalisation of forms of expression, such as the offence of “glorification of terrorism”.

The proposal is also likely to trigger a jurisdictional quagmire among EU Member States that will in the medium term be counter-productive to the objective of countering terrorism.

The power of a non-judicial authority of a Member State to issue orders binding upon public and private entities of another Member State, without prior judicial approval on the constitutionality and lawfulness of the order and of the rights in each jurisdiction, will seriously undermine mutual trust among jurisdictions, a core principle for the functioning of the EU Area of Freedom, Security and Justice. This is particularly important in light of the serious threats to the Rule of Law occurring in certain EU Member States that are already impairing the functioning of other EU criminal cooperation instruments, such as the European Arrest Warrant.

The ICJ therefore calls on all the actors heading the negotiations on the EU Regulation on “Terrorist Content Online” to adjust the current draft in order to provide for a central role of judicial authorities of EU Member States in the scheme of the Regulation by requiring designated “competent authorities” under Article 4 of the Regulation to be judicial authorities; to provide for judicial review,  and to include adequate safeguards in the Regulation to ensure the protection of the human rights of any person subject to their jurisdiction.

Background

In 2018 the European Commission published a proposal of the EU Regulation on “Terrorist Content” Online. The aim of the Regulation is to establish uniform rules to prevent the misuse of hosting services for the dissemination of terrorist content online.

The Regulation has been since discussed by the Council of the EU and the European Parliament, who are currently in the final stages of negotiation in the EU legislative procedure in closed sessions among representatives of the European Parliament, the Council of the EU and the European Commission (the so-called trialogue procedure).

Contact:

Karolina Babicka, Legal Adviser, Europe and Central Asia Programme, e: karolina.babicka(a)icj.org

Massimo Frigo, Senior Legal Adviser, Europe and Central Asia Programme, e: massimo.frigo(a)icj.org, t: +41 79 749 99 49

 

 

 

 

 

Sri Lanka: Mahara prison killings must be properly investigated and urgent measures taken to protect detainees from COVID-19

Sri Lanka: Mahara prison killings must be properly investigated and urgent measures taken to protect detainees from COVID-19

The ICJ today called upon the Sri Lankan authorities to conduct a prompt, thorough and impartial investigation into the events involving the use of lethal force by prison guards at Mahara prison on 29 and 30 November, which left at least nine inmates killed and over hundred others injured.

The action by the guards was taken in response to unrest resulting from protests by inmates over unsafe and overcrowded conditions in the context of the COVID-19 pandemic.

The ICJ also called for urgent measure to address the unsafe conditions in Sri Lankan prisons to protect the right to health and life, including where necessary by releasing detainees.

“The tragic events of Mahara prison are a consequence of the failure of the Sri Lankan authorities to effectively address the situation of prison conditions, which has turned into a full blown human rights and public health crisis in the wake of the COVID-19 pandemic”, said Ian Seiderman, ICJ Legal and Policy Director

The unrest was the culmination of a series of protests staged by the prisoners demanding an increase in coronavirus testing and new isolation facilities for infected prisoners. According to Senaka Perera, President of the Committee for Protecting the Rights of the Prisoners, around 200 inmates of the Mahara prison have been infected with COVID-19.

While the Minister of Rehabilitation and Prison Reforms and the Inspector General of Police have instructed the Criminal Investigation Department to probe the unrest caused at the Mahara Prison, the Minister of Justice has formed a separate five-member committee, chaired by former High Court Judge Kusala Saorini Weerawardena, to conduct its own investigation.

The ICJ recalls that under international law, the use of lethal force by State authorities is only permissible where strictly necessary to protect life. This standard should govern any investigation, and those responsible for unlawful conduct resulting in death or injuries to prisoners must be held to account.

“In addition to ensuring accountability and redress for any violations at the Mahara Prison, the authorities must act swiftly to meet the legitimate grievances of detainees throughout the country”, added Ian Seiderman.

“An effective response is not optional, but is necessary to fulfill the State’s legal obligation to provide for equal access to healthcare and health services to prisoners, who are among the most vulnerable to the ravages of COVID-19 in highly unsafe, enclosed and overcrowded environments.” Seiderman added.

The incident follows a wave of similar protests in several other prisons in the country. On 18 November, five inmates who were under quarantine at the Old Bogambara Prison attempted to break out and an inmate was shot dead when the prisoner officers opened fire at the fleeing inmates.

The ICJ called for the release of detainees who are particularly at risk of losing their life or suffering severe health effects from COVID-19. This would also apply to other convicts who could be released without compromising public safety, such as those sentenced for minor, non-violent offences.

Background

Speaking in Parliament on Monday, Minister of Rehabilitation and Prison Reforms Dr. Sudharshini Fernandopulle stated that the Government has taken steps to reduce overcrowding by directing COVID-19 positive prisoners out of the prisons to the Welikanda Hospital and moving all women inmates to the Kandakadu Rehabilitation Centre. She also stated that a mechanism has been put in place to obtain bail for those arrested for minor drug offences. Moreover, a presidential pardon has been granted to over 600 convicts of minor offences who were in remand due to their inability to pay the required fine.

Several UN bodies, including the WHO and OHCHR, came together in recommending that States consider limiting the deprivation of liberty including pretrial detention, to a measure of last resort and enhance efforts to resort to non-custodial measures. 

Contact

Osama Motiwala, Communications Officer – osama.motiwala(a)icj.org

Switzerland: ICJ regrets rejection of Responsible Business Initiative but strong popular support is a historic achievement that should count for the future

Switzerland: ICJ regrets rejection of Responsible Business Initiative but strong popular support is a historic achievement that should count for the future

The ICJ and its Swiss section (ICJ-CH) regret the results of the vote yesterday in Switzerland rejecting the popular initiative for responsible businesses. While the majority of the popular vote approved the initiative, there was no majority of voters in a majority of Cantons.

Under the Swiss constitution, to be approved, such initiative amending the constitution needs the majority of both the popular vote in Switzerland and in a majority of Cantons part of the Swiss Confederation.

“The  strong support gathered by this initiative, expressed in the majority of the popular vote, is encouraging, and a strong message that the  Federal Parliament and the Federal Council must take into account in the process of the implementation of the legislative counter-proposal and in further legislation,” said Marco Sassòli, ICJ commissioner.

A counter-proposal prepared by the Federal Council is now approved by default. This counter-proposal foresees due diligence obligations for some sectors and reporting obligations, but no specific legal liability.

The proposed initiative would have required multinationals based in  Switzerland to respect human rights also abroad, and to carry out human  rights due diligence to identify and prevent potential human rights abuses.

It would also have clarified the multinational’s legal responsibility for violations of internationally recognized human rights and environmental norms by enterprises that it controls and operate  abroad.

Turkey: Violence against women in the context of Istanbul Convention

Turkey: Violence against women in the context of Istanbul Convention

The International Commission of Jurists and the Human Rights Joint Platform (IHOP) invite you to a Zoom workshop where Turkish and international experts will discuss the plight of violence against women in Turkey in light of the Council of Europe’s Istanbul Convention.

To participate, please register by writing an email to ihop@ihop.org.tr (the Human Rights Joint Platform).

Join our great panel of speakers:

– Dame Silvia Cartwright, ICJ Commissioner, former Governor-General and High Court judge of New Zealand, former CEDAW member
– Prof. Dr. Feride Acar, former Member of CEDAW, former Chair of GREVIO
– Zuzanna Warso, Lawyer, Helsinki Foundation for Human Rights of Poland
– Hülya Gülbahar, Women rights activist, Lawyer
– Nebahat Akkoç, Chair of KAMER Foundation
– Yasemin ÖZ, Lawyer, Kaos GL
– Feray Salman, General Coordinator of the Human Rights Joint Platform (IHOP)
– Massimo Frigo, ICJ Senior Legal Adviser

IHOPICJ-ZoomConference-WomenAccess2Justice-Agenda-2020-ENG (download the agenda in English)

IHOPICJ-ZoomConference-WomenAccess2Justice-Agenda-2020-TUR (download the agenda in Turkish)

The event is part of the REACT project: implemented jointly by ICJ and IHOP, this project seeks to support the role of civil society actors in turkey in ensuring effective access to justice for the protection of human rights. This project is funded by the European Union. The views expressed in the event do not necessarily reflect the opinion of the EU.

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