Nov 20, 2020 | News
The ICJ expressed today its deep concern at the arrest of some 26 lawyers and the investigation of around 100, including lawyers active in the defence of human rights, in South East Turkey.
The arrests and investigations are on charges of “establishing organizations in favour of an illegal organisation”, an offence often used to arrest human rights defenders in Turkey.
Around 26 lawyers were arrested this morning, 20 November, at around 5 a.m. and taken to the Anti-Terror Branch of the Police in Diyarbakır in South East Turkey as part of an investigation against the Democratic Society Congress. The ICJ understands that around 100 lawyers are concerned by this investigation that also concerns the Lawyers Association for Freedom (ÖHD).
“We are concerned that these lawyers have been arrested under vague charges that are often used in Turkey to target human rights defenders ,” said Roisin Pillay, Director of the ICJ Europe and Central Asia Programme,
“Unless law enforcement officers and prosecutors promptly substantiate such charges with adequate evidence, as well as demonstrating valid grounds for their detention, the lawyers must be released immediately.”
The ICJ will follow the case closely to ascertain whether international law and standards are respected in any action against the lawyers concerned.
“Lawyers are often subject to bogus charges in Turkey to curb their work, including in defence of human rights, and the exercise of their freedom of expression,” added Roisin Pillay.
The ICJ stressed that lawyers should never be subject to arrest for the legitimate exercise or defence of human rights or for the exercise of their professional functions. In the event that any of the lawyers arrested on 20 November are subject to charges for cognizable crimes consistent with Turkish and international law, they must be brought promptly before a court to further consider whether specific grounds exist to justify their continued detention. If charged, they must be ensured the right of fair trial by an independent and impartial court.
Background
It is understood from documents shared by unofficial sources that lawyers’ houses in Diyarbakır have been raided as a part of an ongoing investigation conducted against the Democratic Society Congress (“DSC”). DSC was established in 2007 and continued its work at the premises of Diyarbakır municipality in between 2011-2014. Its members included deputies, mayors, and councillors. The Speaker of the Parliament of the time, officially invited the DSC to the meetings of the Constitutional Reconciliation Commission in 2012. However, following the state of emergency declared in July 2016 a criminal investigation against the DSC was initiated. In 2018, the building of the DSC was raided under this investigation and information about the Congress was gathered during that operation. It is understood that the arrests were made based on information obtained in that search. In the search warrant issued by the public prosecutor today, security forces were asked to look for “organisational documents” such as books, journals, articles, newspapers etc. as evidence. From this warrant, it is clear that the operation conducted against lawyers are not related to acts of violence.
The detained lawyers and human rights defenders are: Lawyers Association for Freedom co-chair Av. Bünyamin Şeker, İHD Adıyaman branch head av. Bülent Temel, ÖHD and İHD member lawyers Abdulkadir Güleç, Eshat Aktaç, Serdar Talay, İmran Gökdere, Diyar Çetedir, Serdar Özer, Feride Laçin, Gamze Yalçın, Gevriye Atlı, Resul Tamur, Cemile Turhallı Balsak, Ahmet Kalpak, Devrim Barış Baran, Neşet Girasun, Sedat Aydın, Mahsum Batı, Şivan Cemil Özen and Haknas Sadak, former TTB Central Council Member and still Honorary Board member Dr. Şehmus Gökalp, HRFT Diyarbakır Representation Office employee, Social Service Expert Serkan Delidere, MED Prisoner and Convict Families Association of Legal and Solidarity Associations Federation (TUHAD-FED) executive Diyar Dilek Özer and federation member Leyla Ayaz, DİVES member Süleyman Okur, Bağlar Municipality Council member Panayır Çelik,
Contact:
Roisin Pillay, e: roisin.pillay(a)icj.org
Massimo Frigo, e: massimo.frigo(a)icj.org
Nov 17, 2020 | News
The ICJ today denounced the renewed threat of criminal proceedings by prosecutorial authorities against Judge Igor Tuleya on charges arising from the judge’s independent exercise of his judicial functions, as his case is appealed before a panel of the Supreme Court Disciplinary Chamber.
Judge Tuleya faces prosecution for having allowed the presence of media in a sensitive case concerning the investigations on the 2017 budget vote in the Polish House of Representatives (Sejm) that took place without the presence of the opposition.
He has been charged with ‘failing to comply with his official duties and overstepping his powers’ for having allegedly disclosed a secret of the investigation to ‘unauthorized parties’.
The accusations stem from the initiative of the judge to allow media and the public in the courtroom while issuing his ruling. Usually rulings on investigations are issued behind closed doors in Poland, but the criminal procedure code allows judges to make the hearing public “in the interest of justice”.
“Judge Tuleya’s immunity should be maintained. Actually he should not face any criminal proceedings to begin with as its decisions were in accordance with the law and the principles of transparency and public trials,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme.
“His case is a further demonstration of the relentless attacks against the independence of judges ongoing in Poland.”
The Disciplinary Chamber, in a single-judge formation, upheld Judge Tuleya’s immunity on 9 July but the prosecution appealed the ruling that will be now decided by the same Chamber before a three-judge panel, Tomasz Przelawski, Slawomis Niedzielak and Jaroslaw Sobutka.
These proceedings are the first case of implementation the draconian Act amending the Law on the Common Courts, the Law on the Supreme Court and Some Other Laws, signed into law on 4 February and widely known as the ‘Muzzle Act’, which has given competence to waive judicial immunity to the Disciplinary Chamber of the Supreme Court.
“Immunity claims against a judge should be decided only by an independent body,” Massimo Frigo added.
“As EU Court of Justice held, the Disciplinary Chamber of the Supreme Court is not independent and is open to undue influence or interference by political authorities. It should therefore not rule on this case.”
Background
On 19 November, the Court of Justice of the European Union (CJEU) delivered a ruling in the case A.K. and others (C-585/18, C-624/18, C-625/18), on a preliminary question by the Supreme Court of Poland. The preliminary question asked whether the recently established Disciplinary and Extraordinary Chambers of the Supreme Court could be considered to be independent.
The CJEU ruled that a court cannot be considered independent “where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.”
Based on this ruling, the Labour, Criminal and Civil Chambers of the Supreme Court declared that the Disciplinary and Extraordinary Chambers of the Supreme Court were not properly constituted and independent.
According to the UN Basic Principles on the Independence of the Judiciary, judges are entitled to a fair hearing in all disciplinary proceedings (principle 17). In order for such a hearing to be fair, the decision-maker must be independent and impartial.
International and European standards on the independence of the judiciary provide that judges should have immunity from criminal prosecution for decisions taken in connection with their judicial functions in the absence of proof of malice, and any procedure for removing immunity must itself be independent (see for instance, UN Special Rapporteur on the Independence of Judges and Lawyers, paras 65-67 and 98; Council of Europe Committee of Ministers, para 68; Consultative Council of European Judges, para 20; ICJ Practitioners Guide no 13, pp. 27-30).
On 26 February 2020, the Polish Prosecutor’s Office requested a waiver of Judge Tuleya’s immunity in order to press criminal charges which might lead to imprisonment. The waiver was rejected on 9 June 2020 by the Disciplinary Chamber of the Supreme Court appointed by the government, in a single-judge formation. The Prosecutor’s Office appealed the ruling. The case will be now considered by the same Disciplinary Chamber in a three-judge formation. A first hearing was scheduled for 5 October 2020 but was postponed. It will take place on 18 November.
In an open letter of 5 February 2020, 44 ICJ Commissioners and Honorary Members denounced the recent legislative changes adopted by the Polish government threatening the role and the rights of judges and denouncing the risks faced by legal practitioners when fighting for the rule of law. Two weeks later, the risks highlighted by the letter have become reality for an increasing number of Polish judges, including Judge Tuleya.
Contact:
Massimo Frigo, Senior Legal Adviser, Europe and Central Asia Programme, e: massimo.frigo(a)icj.org, t: +41 797499949
Nov 16, 2020 | Advocacy, News
Today, the ICJ calls on the Ukrainian authorities to abandon a draft law which would dismiss the judges of the Constitutional Court of Ukraine, as a means of retaliation for a decision adopted by the Court and in order to circumvent the decision.
The authorities should also refrain from any other actions, including harassment of judges, which undermine the independence of the Constitutional Court.
“This draft law constitutes a direct attack on the ability of the judiciary to exercise its functions independently. It is incompatible with basic principles of the rule of law and the separation of powers, and with international standards on the independence of the judiciary,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
“By the nature of their role, the judiciary, and especially constitutional courts may be required to decide on controversial matters. It is however essential that particularly in such cases, courts are able to operate without fear of retaliation or repression for the decisions they take,” she added.
The draft law on Restoring Public Confidence in the Constitutional Court, submitted by President Zelensky to the Ukrainian Parliament (Verkhovna Rada), aims to pronounce a decision of the Constitutional Court on anti-corruption legislation “void” and without legal consequences.
This runs contrary to the Ukrainian Constitution according to which “[d]ecisions and opinions adopted by the Constitutional Court of Ukraine shall be binding, final and may not be challenged” (Article 151-2).
The draft law would terminate the mandate of the judges of the Constitutional Court, in contravention of the Constitution of Ukraine as well as basic principles of independence of the judiciary, governing appointments, dismissal and security of tenure of judges.
The draft law provides that the powers of the Constitutional Court of Ukraine in force at the time of the decision on the anti-corruption law would be terminated from the date of entry into force of the law.
According to the explanatory note to the Draft Law, one reason the adoption of the law would be justified is because there had not been a “proper substantiation” of its judgment on the anti-corruption law. The note alleges that Court’s decision was adopted in the private interests of judges of the Constitutional Court of Ukraine, that its proper substantiation was not provided and that it contradicts the principle of the rule of law and denies the European and Euro-Atlantic choice of the Ukrainian people. The ICJ considers these allegations are inappropriate as they directly interfere with the judicial function of the Constitutional Court of Ukraine, contrary to the national legislation and international law on the independence of the judiciary.
On 2 November 2020, Oleksandr Tupitsky, the President of the Constitutional Court was summoned for interrogation by the State Investigation Bureau in connection with allegations against him of committing crimes as part of an organized group. The ICJ fears that this may be a form of pressure in relation to the Constitution Court’s decision.
Following these incidents, the Constitutional Court has stopped working as four of the judges refuse to take part in its sessions. The Court therefore lacks the necessary quorum to operate.
The ICJ calls on Ukraine to withdraw the draft law, and to refrain from any further reprisals against judges for their decisions.
Download
Ukraine-draft law constitutional court-News-ENG-2020 (full statement with background information)
Nov 12, 2020 | Agendas, Events, News
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 legacy of the 2016-2018 state of emergency in Turkey for access to justice today.
To participate, please register by writing an email to ihop@ihop.org.tr (the Human Rights Joint Platform)
Join our great panel of speakers:
– Professor Sarah Cleveland, ICJ Commissioner
– Dr. Dilet Kurban, Hertie School
– Lawyer Ziynet Özçelik, Ankara Bar Association
– Dinçer Demirkent, Human Rights School
– Roisin Pillay, Director of ICJ Europe and Central Asia Programme
– Kerem Altiparmak, ICJ Turkey Legal Adviser
The workshop will address how state of emergency measures, such as dismissals and closures of legal entities, still impact on the human right of people in Turkey today.
The experts will discuss whether the remedies set up by Turkish authorities are up to standard with Turkey’s international human rights law obligations.
IHOPICJ-ZoomWorkshop-StateofEmergency-Agenda-2020-ENG (download the agenda in English)
IHOPICJ-ZoomWorkshop-StateofEmergency-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.
Oct 27, 2020 | Agendas, Events, News
The International Commission of Jurists and the Human Rights Joint Platform (IHOP) invite you to a conversation on the past and current situation of the fight against impunity in Turkey with eminent international and Turkish expert.
Registation is on a first come first served basis by writing to: ihop@ihop.org.tr
Join our speakers:
– Juan Mendez, former UN Special Rapporteur on Torture
– Wilder Taylor, Former Secretary-General of ICJ and chair of Uruguary NPM
– Luciano A. Hazan, Member of the UN Working Group on Enforced and Involuntary Disappearance
– Melis Gebeş, Lawyer, Truth Justice and Memory Center:
– Feray Salman, General Coordinator of Human Rights Joint Platform
IHOPICJ-ZoomConference-ImpunityTurkey-Agenda-2020-ENG (download the agenda in English)
IHOPICJ-ZoomConference-ImpunityTurkey-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.
Oct 26, 2020 | News
A new bogus indictment against human rights defender and businessman, Osman Kavala, and US academic, Henri Barkey, for allegedly spying and attempting to overthrow Turkey’s constitutional order is politically motivated and bereft of legal credibility, Human Rights Watch and the ICJ said today.
The indictment, alleging the two were involved in the July 15, 2016, attempted military coup, demonstrates Turkey’s blatant refusal to abide by a European Court of Human Rights judgment, finalized in May 2020, which ordered Kavala’s release, and not only prolongs ongoing violations of his rights but gives rise to new ones.
An Istanbul court on October 8 accepted the indictment and has scheduled a first trial hearing against Kavala, who was been in Istanbul’s Silivri Prison since November 2017, and Barkey, who lives in the US, for December 18.
“The new case against Osman Kavala and Henri Barkey demonstrates the Turkish authorities’ flagrant misuse of the courts for political ends and their fundamental disregard for the basic principles of criminal justice,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch.
“Defying the European Court of Human Rights order to release Kavala has confirmed the Court’s conclusion that Turkey is using detention and prosecution to silence a human rights defender.”
The 64-page prosecutor’s indictment, dated September 28, accuses Kavala and Barkey of “securing for purposes of political or military espionage information that should be kept confidential for reasons relating to the security or domestic or foreign policy interests of the state” (under Turkish Penal Code article 328), punishable with up to 20 years in prison, and “attempting through force and violence to overthrow the constitutional order of the Republic of Turkey or introduce a different order or prevent this order” (article 309), punishable with life in prison without parole.
The indictment recycles unsubstantiated accusations, which previously circulated in the pro-government Turkish media, that Kavala and Barkey were involved in espionage and in the 2016 attempted military coup. The indictment provides no credible evidence linking them with any criminal activities. (Further details about the content of the indictment are provided below.)
In a December 2019 judgment, which became final on May 11, the European Court of Human Rights ruled that the evidence on which Kavala was detained for the Gezi protests and the 2016 coup attempt was insufficient and agreed that Kavala’s detention and the charges against him “pursued an ulterior purpose, namely to silence him as a human rights defender.”
On September 3, the Council of Europe Committee of Ministers, acting in its supervisory capacity for the implementation of European Court judgments, issued a decision ordering the Turkish government to ensure Kavala’s release, pointing to “a strong presumption that his current detention is a continuation of the violations found by the Court.”
On September 29, pro-government media reported that the Istanbul prosecutor’s office had prepared the new indictment against Kavala and Barkey. On the same day, Turkey’s Constitutional Court postponed its review of Kavala’s application regarding the legality of his continuing detention, which had been scheduled for that day.
On October 1, the Council of Europe Committee of Ministers issued a second decision calling on Turkey to ensure Kavala’s immediate release, expressing “deep concern that the applicant has still not been released” and announcing that an interim resolution would be issued at the Committee of Ministers’ December 1-3 session if Kavala had not yet been released.
“Turkey is bound by the ruling from European Court to free Kavala immediately, and the ruling covers his detention under the latest case against him,” said Roisin Pillay, director of the ICJ Europe and Central Asia Programme.
“The new indictment presents no new grounds to justify his detention, and it is imperative that Turkey ends the persecution campaign against him by releasing him and dropping all charges.”
For more Human Rights Watch reporting on Turkey, please visit:
http://www.hrw.org/europecentral-asia/turkey
For more ICJ work on Turkey, please visit:
https://www.icj.org/search/?fwp_search=Turkey&submit=Search
Contact
Massimo Frigo, Senior Legal Adviser, ICJ Europe and Central Asia Programme, t: +41-22-979-3800; e: massimo.frigo(a)icj.org
Turkey-Kavala case-News-press release-2020-ENG (story with additional information, in PDF)
