Sep 7, 2020 | News
Turkish authorities should immediately release human rights defender Osman Kavala, in compliance with the Council of Europe Committee of Ministers’ decision of 3 September 2020, the International Commission of Jurists (ICJ), Human Rights Watch and the Turkey Human Rights Litigation Support Project said today.
The decision followed a Committee of Ministers hearing to assess the execution of the judgment of the European Court of Human Rights in the case of Osman Kavala. The Committee, acting in its supervisory capacity for Court Judgments, ordered the Turkish authorities, “to ensure the applicant’s immediate release,” pointing to, “a strong presumption that his current detention is a continuation of the violations found by the Court.”
“After the finding by the European Court of Human Rights that Kavala’s detention is unlawful, the Committee of Ministers has affirmed that Turkey is continuing to violate his rights by keeping him in detention” said Roisin Pillay, director of the Europe and Central Asia Programme at the International Commission of Jurists. “European Court rulings are binding, and Osman Kavala should be released immediately.”
Despite the unlawful detention and an acquittal by the Turkish criminal court presiding over his trial, Osman Kavala has been kept behind bars under a newly issued charge of “espionage” since March 2020. His lawyers are currently challenging the lawfulness of the detention before Turkey’s Constitutional Court. However, the Committee of Ministers indicated in its decision that Turkey should not wait for a ruling of the Constitutional Court but should release Kavala immediately.
In June, the ICJ, Human Rights Watch and the Turkey Human Rights Litigation Support Project made a detailed submission to the Committee of Ministers of the Council of Europe, which oversees enforcement of European Court of Human Rights judgments. The submission argued that the sequence of events and repeated local court decisions to ensure Kavala’s detention subsequent to the European Court’s ruling in December 2019 demonstrated that Turkey was prolonging the violations found by the European Court.
The European Court judgment in Kavala v. Turkey (Application no. 28749/18) found violations of the following provisions of the European Convention on Human Rights: Article 5(1) (right to liberty and security), Article 5(4) (right to a speedy decision on the lawfulness of detention), and the rarely used Article 18 (limitation on use of restrictions on rights) taken together with Article 5(1). The Court required Turkey to release Kavala and said that any continuation of his detention would prolong the violations and breach the obligation to abide by the judgment in accordance with Article 46(1) of the Convention.
The judgment on Osman Kavala’s case is particularly significant because it is the first final ruling of the European Court of Human Rights against Turkey in which the Court determined that, in interfering with an individual’s rights, Turkey acted in bad faith and out of political motivations, violating Article 18 of the European Convention on Human Rights. The Court said that by detaining Kavala since November 2017 and prosecuting him, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as human rights defender.”
Kavala has been held in detention since November 2017, initially on bogus allegations that he used the 2013 Istanbul Gezi Park protests as a pretext for an attempt to overthrow the government, and that he was involved in the July 15, 2016 attempted military coup. On February 18, 2020, Kavala and his eight co-defendants were acquitted on charges of “attempting to overthrow the government by force and violence” in the Gezi Park trial.
But Kavala was not released, and a court ordered his detention again immediately on one of the grounds for his initial detention on 1 November 2017, namely the charge of “attempting to overthrow the Constitution by force and violence” because of the ongoing July 15, 2016 coup attempt-related investigation against him. Turkey’s President Recep Tayyip Erdoğan had publicly criticized his acquittal just before he was detained again. Weeks later a court ordered his detention a second time on another charge (“espionage”) but under the same investigation file on the coup attempt and relying on the same evidence.
“The decision by the Council of Europe Committee of Ministers confirms our submission that political considerations are behind the court orders prolonging Osman Kavala’s detention , and that there has been a concerted official effort to prevent Kavala’s release,” said Emma Sinclair-Webb, Turkey director at Human Rights Watch.
“Instead of complying with the European Court’s judgment, Turkey has continued to violate Kavala’s human rights.”
The targeted harassment in Turkey of rights defenders is part of a wider practice of arbitrary detentions and abusive prosecutions of journalists, elected politicians, lawyers, and other perceived government critics. This practice has been well-documented in many reports by the Council of Europe, the European Union, and human rights organizations.
“The campaign of persecution against Osman Kavala and the failure to release him and drop all charges have perpetuated a chilling environment for all human rights defenders in Turkey,” said Ayşe Bingöl Demir, co-director of the Turkey Human Rights Litigation Support Project.
“Ending this blatantly unlawful detention, which has been ongoing for over 1000 days, will not only play a role in preventing further violations to Osman Kavala’s rights, it will also give a strong signal to the human rights defenders community that the oversight mechanisms in place to ensure Turkey’s compliance with its international human rights obligations can still be effective.”
Contact:
Róisín Pillay, Director of ICJ’s Europe and Central Asia Programme, t: +32-2-734-84-46 ; e: roisin.pillay(a)icj.orgMassimo Frigo, Senior Legal Adviser, ICJ’s Europe and Central Asia Programme, t: +41-79-749-99-49 ; e: massimo.frigo(a)icj.org ; Twitter: @maxfrigo
Türkiye: Osman Kavala Serbest Bırakılmalı
Yetkililer, Avrupa Konseyi’nin İnsan Hakları Savunucusunu Serbest Bırakma Kararına Uymalıdır
(Cenevre, 7 Eylül 2020) Uluslararası Hukukçular Komisyonu (ICJ), İnsan Hakları İzleme Örgütü ve Türkiye İnsan Hakları Davalarına Destek Projesi, yaptıkları açıklamada Türkiye makamlarının insan hakları savunucusu Osman Kavala’yı Avrupa Konseyi Bakanlar Komitesinin 3 Eylül 2020 tarihli kararına uygun olarak derhal serbest bırakması gerektiğini ifade etti.
Bu karar, Osman Kavala davasında Avrupa İnsan Hakları Mahkemesi’nin kararının uygulanmasını değerlendiren Bakanlar Komitesi oturumunu müteakiben alındı. Mahkeme kararlarının uygulanmasını denetleme yetkisi olan Komite, Türk makamlarına “başvuranın derhal serbest bırakılmasını sağlama” talimatı vererek “mevcut tutukluluğunun mahkeme tarafından tespit edilen ihlallerin devamı olduğuna dair güçlü bir karine bulunduğuna” işaret etti.
Uluslararası Hukukçular Komisyonu Avrupa ve Orta Asya Programı Direktörü Roisin Pillay,” Avrupa İnsan Hakları Mahkemesi’nin, Kavala’nın tutukluluğunun hukuka aykırı olduğunu tespit etmesinden sonra, Bakanlar Komitesi, Türkiye’nin Kavala’nın tutukluluğunu sürdürerek onun haklarını ihlal etmeye devam ettiğini doğruladı” dedi. Pillay, “Avrupa Mahkemesi kararları bağlayıcıdır ve Osman Kavala derhal serbest bırakılmalıdır” dedi.
Hukuka aykırı tutukluluğuna ve davasının görüldüğü Ceza Mahkemesinin verdiği beraat kararına rağmen, Osman Kavala yeni ileri sürülen bir “casusluk” suçlaması nedeniyle Mart 2020’den bu yana parmaklıklar ardında tutulmaya devam ediliyor. Kavala’nın avukatları, Türkiye’nin Anayasa Mahkemesi önünde tutukluluğun hukuksuz olduğuna ilişkin itirazlarda bulunuyorlar. Ancak Bakanlar Komitesi, kararında Türkiye’nin Anayasa Mahkemesinin vereceği bir kararı beklemeksizin Kavala’yı derhal serbest bırakması gerektiğini işaret ediyor.
Haziran ayında, ICJ, İnsan Hakları İzleme Örgütü ve Türkiye İnsan Hakları Davalarına Destek Projesi, Avrupa İnsan Hakları Mahkemesi kararlarının uygulanmasını denetleyen Avrupa Konseyi Bakanlar Komitesi’ne ayrıntılı bir bildirim sundu. Bildirim, Avrupa Mahkemesi’nin Aralık 2019’daki kararının ardından Kavala’nın alıkonmasını sağlamak için gelişen olaylar serisinin ve tekrarlanan yerel mahkeme kararlarının, Türkiye’nin Avrupa Mahkemesi tarafından tespit edilen ihlalleri devam ettirdiğini gösterdiğini savundu.
Avrupa Mahkemesi, Kavala/Türkiye kararında (Başvuru no. 28749/18), madde 5/1 (özgürlük ve güvenlik hakkı), madde 5/4 (alıkonmanın yasaya uygunluğuna ilişkin ivedi karar alma hakkı) ve nadiren kullanılan madde 18 (haklara getirilecek kısıtlamaların sınırlanması) ile birlikte madde 5/1’in ihlal edildiğine karar vermiştir. Mahkeme, Türkiye’nin Kavala’yı tahliye etmesini zorunlu kılmış, tutukluluğunun devam etmesinin ihlalleri devam ettireceğini ve Sözleşmenin 46(1) maddesi uyarınca AİHM kararlarına uyma yükümlülüğünü ihlal edeceğini belirtmiştir.
Osman Kavala kararı, Türkiye’nin kötü niyetle ve siyasi amaçlarla bir bireyin haklarına müdahale ettiğini ve Avrupa İnsan Hakları Sözleşmesi’nin 18. maddesini ihlal ettiğini tespit eden Türkiye aleyhindeki ilk nihai karar olduğundan özel bir önem taşımakta. AİHM, Osman Kavala’yı Kasım 2017’den bu yana alıkoyup yargılayan Türk makamlarının “başvuranın bir insan hakları savunucusu olarak susturulmasını sağlamak için örtülü bir amaç taşıdığını” tespit etmişti.
Kavala, Kasım 2017’den bu yana, 2013 İstanbul Gezi Parkı protestolarını, hükümeti devirme girişimi için kullandığı ve 15 Temmuz 2016 askeri darbe girişimine müdahil olduğu yönündeki asılsız iddialarla tutuklu. 18 Şubat 2020’de Kavala ve diğer sekiz sanık, Gezi Parkı davasında “cebir ve şiddet kullanarak hükümeti ortadan kaldırmaya teşebbüs” suçlamasından beraat etmiştir.
Ancak Kavala cezaevinden tahliye edilmemiş ve bir hakim kararıyla 2016 darbesiyle ilgili devam eden bir soruşturmayla ilişkili olarak “anayasal düzeni cebir ve şiddet kullanarak ortadan kaldırmaya teşebbüs” suçlamasıyla tekrar tutuklanmıştır. Tekrar tutuklanmasından kısa bir süre önce Cumhurbaşkanı Recep Tayyip Erdoğan halka açık şekilde Kavala’nın beraatini eleştirmiştir. Kavala haftalar sonra, yine bu delillere ve soruşturma dosyasına dayanan bir başka suçlama ile (casusluk) bir kez daha tutuklanmıştır.
İnsan Hakları İzleme Örgütü Türkiye Direktörü Emma Sinclair-Webb,” Avrupa Konseyi Bakanlar Komitesi’nin kararı bildirimimizi doğrulamakta, Osman Kavala’nın tutukluluk halini uzatan mahkeme kararlarının arkasında siyasi değerlendirmelerin olduğunu ve Kavala’nın serbest bırakılmasını önlemek için ortak bir resmi çabanın bulunduğunu ortaya koymaktadır” dedi.
Sinclair-Webb, “Avrupa Mahkemesi’nin kararına uymak yerine, Türkiye, Kavala’nın insan haklarını ihlal etmeye devam etmiştir” dedi.
Türkiye’de insan hakları savunucularına yönelik baskı, daha genel olarak gazetecilere, seçilmiş siyasetçilere, hukukçulara, hükümeti eleştirdiği düşünülenlere yönelik keyfi alıkoymalar ve yargısal tacizin bir parçasıdır. Bu uygulama Avrupa Konseyi, Avrupa Birliği ve insan hakları örgütlerine ait birçok raporla belgelendirilmiştir.
Türkiye İnsan Hakları Davalarına Destek Projesi Eş Direktörü Ayşe Bingöl Demir “Kavala’ya karşı yürütülen yıldırma kampanyası, onun tahliye edilmemesi ve hakkındaki suçlamaların düşürülmemesi, Türkiye’deki tüm insan hakları savunucuları için baskı ortamının sürmesine sebep olmuştur” dedi.
“1000 gün boyunca devam eden açıkça hukuka aykırı olan tutukluluğun sona ermesi, yalnız Osman Kavala’nın haklarının daha fazla ihlal edilmesini önlemek konusunda değil, aynı zamanda insan hakları savunucuları topluluğuna Türkiye’nin uluslararası insan hakları yükümlülüklerine uyumunu denetleyen mevcut gözetim mekanizmalarının hala etkili olabileceği yönünde güçlü bir sinyal verecektir.”
İnsan Hakları İzleme Örgütü’nün Türkiye ile ilgili diğer raporları için tıklayınız:
https://www.hrw.org/europe/central-asia/turkey
Daha fazla bilgi için :
İstanbul’da, Emma Sinclair-Webb (İngilizce, Türkçe): +90-538-972-4486 (Whatsapp); ya da sinclae@hrw.org. Twitter: @esinclairwebb
Cenevre’de, Massimo Frigo (İngilizce, Fransızca, İspanyolca ve İtalyanca): +41-79-749-99-49; ya da massimo.frigo@icj.org. Twitter: @maxfrigo
Brüksel’de, Róisín Pillay (İngilizce, Fransızca): +32-2-734-84-46 (cep telefonu); ya da roisin.pillay@icj.org
New York’ta, Aisling Reidy (İngilizce) +1-917-378-3178 (cep telefonu); ya da reidya@hrw.org
Sep 7, 2020 | News
Ongoing attacks by United States officials on the International Criminal Court (ICC) and its staff amount to a full-frontal assault on international justice and the rule of law, said the ICJ, today.
On 2 September 2020, the US Secretary of State, Michael Pompeo, describing the ICC as a “thoroughly broken and corrupted institution,” indicated that the US would place on sanctions on ICC Prosecutor Fatou Bensouda, and the ICC’s Head of Jurisdiction, Complementary, and Cooperation Division, Phakiso Mochochoko, “for having materially assisted Prosecutor Bensouda” pursuant to the President’s 11 June 2020 Executive Order.
“The US must end these despicable and destabilizing attempts to interfere with the independence of the ICC and the functioning of its mandate to pursue justice for victims of the most serious crimes under international law,” said Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative.
“It is imperative that the 123 countries that are States Parties to the Rome Statute continue to work in solidarity to defend the Court and show the world that even individuals from a global superpower are subject to the rule of law.”
“Retaliating against individual ICC staff for merely working to fulfill the mandate of the Court sets a dangerous precedent and must be condemned specifically in the strongest possible terms,” added Abbott.
Background
On 21 September 2018, the ICJ, together with ten other organisations, sent a joint letter to UN Special Procedures regarding threats made by the then US National Security Adviser, John Bolton, against the ICC and its staff.
On 22 March 2019, the UN Special Rapporteur on the situation of human rights defenders, Michel Forst, and the Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán, issued a press release expressing concern at Bolton’s remarks, reaffirming the important mandate of the ICC and saying they were in contact with the US authorities on the issue.
On 11 June 2020, the ICC issued a statement expressing “profound regret at the announcement of further threats and coercive actions, including financial measures, against the Court and its officials, made earlier today by the Government of the United States.” The Court said the US action “represents an attack against the interests of victims of atrocity crimes, for many of whom the Court represents the last hope for justice.”
On 18 June 2020, the ICJ urged the United Nations Human Rights Council’s Special Procedures to act in response to steps taken by the United States against staff of the International Criminal Court (ICC) and their families.
On 25 June 2020, UN Human Rights Special Procedures experts issued a statement condemning US attacks on the ICC and its staff saying they “have been in contact with the US authorities on the issues.”
On 2 September 2020, the ICC issued a statement condemning the economic sanctions imposed on the Prosecutor and Phakiso Mochochoko, saying that the attacks “are unprecedented and constitute serious attacks against the Court, the Rome Statute system of international criminal justice, and the rule of law more generally.”
Contact
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
Sep 1, 2020 | News, Publications, Reports, Thematic reports
In a new report published today, the ICJ called on all States to ensure that their responses to the public health emergency brought on by the COVID-19 comply with the international human rights law and the right to health.
The report emphasized the particularly acute and discriminatory impact of the pandemic on already marginalized people and the need for access to health facilities, goods and services necessary to combat COVID-19 without discrimination.
The report Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses documents the adverse human rights effects wrought by the COVID-19 pandemic.
The title comes from the words of Mama Yuli, an Indonesian transwoman, who has said that the pandemic left many elderly transwomen feeling like “they live like people who die slowly”.
The report emphasizes the need for a human rights and rule of law-based approach to the pandemic, with States working cooperatively to address a health crisis that by its nature knows no national boundaries.
“The COVID-19 pandemic is public health crisis that presents immeasurable threats to human rights and the rule of law globally, said Ian Seiderman, the ICJ’s Legal and Policy Director.
“But what is crucial is that States responses themselves not only respond immediately and effectively to COVID-19 as a public health emergency, but also as a human rights crisis”, he added.
Building on the ICJ’s earlier responses to COVID-19, the report details the disproportionate impact of COVID-19 on non-citizens, older persons, women and girls, LGBT persons, persons deprived of their liberty, persons with disabilities, sex workers and healthcare workers.
The report also emphasizes the need for the provision of health information by State authorities in the context of COVID-19 and scrutinizes measures taken by States which have often curbed the rights to freedom of expression, information and privacy.
For example, though “contracting tracing” measures may be effective they must also be human rights compliant and information gathered through such measures should not be used inappropriately or as an instrument of repression of individuals and human defenders.
Acknowledging the interconnectedness of all human rights, the report emphasizes the need for States to ensure provision and protection of access to the “social determinants of health” such as housing, food and water, themselves also internationally protected rights.
The report provides recommendations to States that may assist in ensuring right to health and human rights compliant responses to COVID-19.
The ICJ called on States to respect the various guidance offered by UN human rights treaty bodies and independent experts on how best to comply with their human rights obligations while responding to the pandemic.
The human rights system provides important guidance to States that was not available, for example, during the 1918 influenza pandemic, which ultimately resulted in an estimated 50 million deaths.
“States must heed these calls for a human rights and rule of law-based response to COVID-19, as failure to do so will certainly result in death and human suffering that can still be avoided,” said Seiderman.
The report also raises the importance of compliance by businesses, including particularly private actors in the healthcare sector, with their responsibility to respect human rights, including the right to health.
This will be critical, for example, in ensuring the success of combined efforts of States and private companies in the development and ultimate distribution of a COVID-19 vaccine.
Contact
Timothy Fish Hodgson, ICJ Legal Adviser on Economic, Social and Cultural Rights, t: +27828719905 e: timothy.hodgson@icj.org
Download
Universal-Global Health COVID-19 Exec Sum-Publications-Reports-Thematic Reports-2020-ENG (Executive Summary, in PDF)
Universal-Global Health COVID-19-Publications-Reports-Thematic Reports-2020-ENG (Full report, in PDF)
Myanmar-ICJ-Right-to-Health-Report-2021-BUR.pdf (Full report in Burmese)
Read also
Human Rights in the time of COVID-19: Front and Centre – ICJ news, articles, op-eds, legal blogs, videos
COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 1)
COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 2)
Watch
Sep 1, 2020 | Advocacy, News
Today the ICJ called on the Organization of American States (OAS) to respect the autonomy and independence of the Inter-American Commission on Human Rights (IACHR) as the body in charge of promoting the observance of human rights in the Americas, including in respect of its core administration functions.
The OAS Secretary-General has declined to endorse the unanimous decision taken in January by the seven-person IACHR to renew the mandate of its Executive Secretary, Paulo Abrão, whose term expired on 15 August.
The Secretary General indicated that his action was motivated by concern at internal complaints that are still to be resolved.
The refusal to renew this mandate, however, must not be made on the basis of pending complaints, which must nonetheless be resolved in a reasonably short period of time, based on the principles of due process for all parties concerned
The ICJ recognizes the importance of processing the staffs’ complaints in a timely manner which respects the due process rights of the parties concerned through an independent and transparent process.
The ICJ recalls that it is essential to ensure the independence and autonomy of the Inter-American Commission, which necessarily includes the functions related to the appointment process of the Executive Secretary.
“The IACHR has played a critical role in the Americas to advance human rights and to protect victims of human rights violations,” said ICJ Secretary General Sam Zarifi.
He also mentioned that “the situation requires an urgent resolution that guarantees respect for the principles of independence and autonomy of the IACHR.”
Sep 1, 2020 | News
The ICJ today expressed its concern regarding the 31 August 2020 and 14 August 2020 decisions of the Indian Supreme Court to convict prominent human rights lawyer Prashant Bhushan for criminal contempt of court, on the basis of two twitter posts in which the lawyer criticized the performance of the Indian judiciary.
While the Court only imposed a symbolic fine of one rupee, rather than imprisonment, the ICJ considers that the conviction appears to be inconsistent with international standards on freedom of expression and the role of lawyers.
The ICJ stressed that the ruling risks having a chilling effect on the exercise of protected freedom of expression in India and urged a review of the laws and standards on criminal contempt as applied by the Indian courts.
The two tweets published by Prashant Bhushan referred to the Chief Justice of India riding an expensive motorbike belonging to a BJP leader “when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice” and asserted that the Supreme Court and the last four Chief Justices of India had contributed to how, in his view, “democracy has been destroyed in India even without a formal Emergency”
The Court in its 31 August judgment held that the tweets were a serious attempt to “denigrate the reputation of the institution of administration of justice” which, it said, is “capable of shaking the very edifice of the judicial administration and also shaking the faith of common man in the administration of justice.”
The Court considered that its ruling was consistent with freedom of speech and expression under Article 19 of the Indian Constitution, saying that it will have to balance its exercise of power to punish for contempt for itself (Article 129) with freedom of speech and expression.
The ICJ is concerned, however, that the conviction appears inconsistent with international law on freedom of expression as guaranteed by the International Covenant on Civil and Political Rights (Article 19, ICCPR) to which India is a party.
While some restrictions of freedom of expression are permitted by international standards, a particularly wide scope must be preserved for debate and discussion about such matters as the role of the judiciary, access to justice, and democracy, by members of the public, including through public commentary on the courts.
Any restrictions must be strictly necessary and proportionate to meet a legitimate purpose, such as protecting public order or the rights and reputations of others.
“There is a general concern that the protection of freedom of expression is rapidly eroding in India,” said Ian Seiderman, ICJ Legal and Policy Director.
“We have seen this recently around the COVID 19 crisis in relation to the imprisonment of human rights defenders, on draconian charges of sedition, rioting and unlawful assembly for protesting against the Citizenship (Amendment) Act.”
“While the Indian Supreme Court has over the years generally been an institution that has served to advance human rights in India and globally, we fear it now may be perceived as silencing criticism and freedom of expression by invoking outdated criminal contempt laws,” Seiderman added.
The ICJ joins the 1800 Indian lawyers in calling for the Supreme Court “to review the standards of criminal contempt”, emphasizing that the law is overbroad and should be aligned with international law and standards on the limited scope for restrictions on freedom of expression and criminal contempt.
“Prashant Bhushan is a lawyer and lawyers being part of the legal system have a ring-side view and understanding of the state of the court. Convicting a leading lawyer for contempt for expressing his views in this manner may have a chilling effect on lawyers, in particular considering his involvement in many public interest litigation cases,” said Mandira Sharma, ICJ South Asia Senior Legal Adviser.
Contact
Ian Seiderman – ICJ Legal and Policy Director; e: ian.seiderman(a)icj.org , t: +41 22 979 38 00
Matt Pollard – ICJ Senior Legal Adviser, Director, ICJ Centre for the Independence of Judges and Lawyers; e: matt.pollard(a)icj.org, t: +41 79 246 54 75
Download
India-Criminal-Contempt-of-Court-Press-Release-2020-ENG (PDF, with additional background information)
Aug 31, 2020 | Advocacy, News
Today, the ICJ called on Belarus to comply with its international human rights law obligations in its response to the protests taking place in the aftermath of the presidential elections and in the treatment of those detained.
This includes immediately releasing persons arbitrarily detained, providing prompt access to lawyers for those still detained, accounting for the fate and whereabouts of missing protestors and promptly and effectively investigating torture and other ill-treatment.
The widespread arbitrary arrests of peaceful protesters, and credible allegations of torture and ill-treatment and enforced disappearances of detainees, are particularly alarming in light of obstacles faced by detainees in accessing lawyers, the ICJ said.
The ICJ recalls that under international human rights law, all persons have the right to peaceful assembly, and any restriction of this right must be provided in law be strictly necessary and proportionate to a specified legitimate purpose. The mass arrest of protesters does not appear to meet these requirements.
Belarus has obligations, including under treaties to which it is party, to respect the right to liberty and refrain from arbitrary arrests or other unwarranted interferences with the freedom of assembly, or freedom of expression, of protesters, protected under international law.
Law enforcement authorities must respect the right to life and the prohibition on torture or other ill-treatment at all times. Allegations of arbitrary killing, enforced disappearances and torture and other ill-treatment must be promptly, thoroughly and independently investigated, and those responsible brought to justice.
Effective remedies must be provided to victims of such serious human rights violations.
The ICJ is concerned about reports of the widespread denial of access to a lawyer and further obstacles that lawyers face while carrying out their professional duties in the current context in Belarus.
Reportedly, lawyers are not provided with access to the case file or further information necessary for the provision of effective legal assistance to their clients. This is of particular concern in light of multiple reports of torture or other ill-treatment of those detained following the election.
The ICJ stresses that the right of access to qualified legal representation is crucial for the protection of the human rights of those arrested in connection with the current political upheaval in Belarus.
The right of access to a lawyer is recognized as an essential element of the right to a fair trial and the right to liberty, protected under the International Covenant on Civil and Political Rights, to which Belarus is a party.
The UN Basic Principles on the Role of Lawyers provide that governments should ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference and should be able to consult with their clients freely and have access to appropriate information, files and documents in their possession or control in sufficient time to provide effective legal assistance to their clients.
It is essential that lawyers and other human rights defenders can carry out protection of human rights of their clients especially in times of emergency.
The ICJ also calls on the Belarus Republic Bar Association to bolster its efforts in protecting its members who provide legal representation in cases related to the ongoing protests.
Background:
The Republic of Belarus ratified the International Covenant on Civil and Political Rights in 1973
Following the presidential elections of 9 August 2020 in Belarus, widespread protests across Belarus took place following the discredited result, which were recognized as neither free nor by the European Union and other observers. Following the initial dispersal of these protests by the authorities, more than 6000 people were arrested and detained, many arbitrarily. There is credible evidence that many of those arrested or detained have been subjected to torture or other ill-treatment and that decisions regarding their arrest and detention have been made by courts temporarily established in detention centres.
While estimates of numbers differ, the whereabouts of at least tens of those who took part in the protest have not been established to date. One of the missing persons, Nikita Krivtsov, was recently found dead in a forest near Minsk.
The reports that defence lawyers were denied access to those arrested include high-profile cases, such as the case of the former presidential candidate Victor Babaryka whose lawyer was not allowed to see his client in the detention centre for more than a week.
According to the Belarusian Republican Bar Association, lawyers face problems with meeting their clients held in the detention centres and access to the case files and further information necessary to carry out their professional duties.
