Jul 8, 2020 | News
Draft law reduces leading bar associations’ authority, leads to creation of rival groups, the ICJ and Human Rights Watch said today. The Turkish government’s plan to allow for multiple bar associations appears calculated to divide the legal profession along political lines and diminish the biggest bar associations’ role as human rights watchdogs, they added.
The current bar associations have not been consulted, and 78 bars out of 80 signed a statement opposing the plan.
The ICJ and Human Rights Watch have published a question and answer document explaining the draft law, scheduled for a vote in parliament in the coming days. The document outlines the government-led effort to reduce the influence of leading bar associations, reflecting the executive’s growing dissatisfaction with the bar associations’ public reporting on Turkey’s crisis for human rights and the rule of law.
“Turkey’s prominent bar associations play a key role in defending fair trial rights and scrutinizing human rights at a time when flagrant violation of rights is the norm in Turkey,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch.
“The government move to create multiple bars and dramatically cut leading bars’ representation at the national level is a clear divide-and-rule tactic to diminish the bar associations’ authority and watchdog role,” he added.
The proposed amendments provide that in provinces with over 5,000 lawyers, a group of at least 2,000 lawyers can establish alternative bar associations.
In big cities such as Istanbul, Ankara, and Izmir, several bar associations could be established. The amendments would also greatly reduce the representation of the largest bar associations at the national level within the Union of Turkish Bars, the Ankara-based umbrella body with significant financial resources it controls and distributes to provincial bars.
The fact that the vast majority of elected legal profession representatives oppose the move and that the likely impact will be to greatly diminish the authority of leading provincial bars that have been critical of certain government initiatives demonstrates that the aim of the proposed change is to shield the government from justified criticism, the ICJ and Human Rights Watch said.
Drastically cutting the number of delegates from large bar associations representing thousands of lawyers to the national Union of Turkish Bar Associations would reduce the influence of the large bar associations in electing the national group’s president and participating meaningfully in other decision-making functions.
A provincial bar association with fewer than 100 lawyers, such as Ardahan in northeastern Turkey, for example, would be represented by 4 delegates, compared with 3 at present.
But a bar association such as Izmir in western Turkey, with over 9,500 lawyers, which sends 35 delegates, would be entitled to only 5. Istanbul, Ankara, and Izmir Bar, which represent 55 percent of the lawyers in Turkey, would be entitled to only 7 percent of all delegates within the national union.
The atmosphere of conflict in which the draft law has been introduced, its timing, and the lack of consultation with the bar associations themselves provides credible grounds for great concern and skepticism over the government’s motives, the groups said.
Over the past year, Turkey’s presidency and government have made public statements strongly criticizing leading bar associations in response to the bars’ legitimate expression of concerns about Turkey’s rule of law crisis and executive interference in the justice system.
The government has reacted strongly against the bars’ scrutiny of its failure to uphold human rights obligations through bar association publication of reports on torture, enforced disappearances, and other rights abuses ignored by the authorities.
For these reasons, the government’s proposed amendments are clearly designed to achieve a political purpose unrelated to an effort to advance or strengthen standards in the legal profession, the ICJ and Human Rights Watch said.
The government’s move is politically divisive and will contribute to undermining the appearance of independence and impartiality in the justice system.
“The government should immediately withdraw the current proposed amendment and embark on a process of full consultation with bar associations,” said Róisín Pillay, Director of ICJ’s Europe and Central Asia Programme.
“The government’s plan as it stands will only deepen mistrust in Turkey’s justice system as lacking independence by dividing the legal profession along political lines. This could have disastrous long-term consequences for upholding the role and function of lawyers and for fair trial rights.”
Contact:
Róisín Pillay, Director of ICJ’s Europe and Central Asia Programme, t: +32-2-734-84-46 ; e: roisin.pillay(a)icj.org
Massimo 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
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Turkey-Q and A on the bar associations-Advocacy-2020-TUR (Q & A in Turkish, PDF)
Jul 3, 2020 | News
The ICJ deplores today’s conviction of former Amnesty International Turkey President Taner Kılıç, and former Chair of Human Rights Agenda Association Günal Kurşun, former Director of Amnesty International Turkey İdil Eser and human rights defender Özlem Dalkıran by the Istanbul 35th Heavy Penal Court, on clearly unfounded terrorism charges.
“These convictions, which were clearly revealed to be baseless during the trial, are an alarming setback to efforts to restore the rule of law in Turkey,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme.
“This prosecution and conviction constitute harassment of human rights defenders, in violation of a number of Turkey’s international legal obligations. The Turkish authorities should be protecting human rights and supporting the important work of human rights defenders, but instead we have witnessed a continuing pattern of arrests on human rights defenders in the country,” he added.
Taner Kılıç has been sentenced to six years and three months of imprisonment for “membership of a terrorist organization. Günal Kuşun, İdil Eser and Özlem Dalkıran were sentenced to one year and 13 months of imprisonment for “assisting a terrorist organisation”. This decision was taken by majority, with one dissenting opinion that called for their acquittal.
The Court acquitted the other defendants in the case: Nalan Erkem, İlknur Üstün, Ali Gharavi, Peter Steudtner, Veli Acu, Nejat Taştan et Şeyhmus Özbekli.
On 6 June 2017, Taner Kiliç, then President of Amnesty International Turkey was arrested on spurious terrorism charges. The other human rights defenders were arrested while attending a training in Istanbul on digital security and information management; also reported arrested were two trainers (reportedly a German and a Swedish national) and the owner of the training venue.
In Turkey, anti-terrorism offences are oftentimes abused and are applied in over-extensive terms to charge and prosecute human rights defenders and political dissenters, as it occurred in this case. The ICJ has highlighted this problem in several reports, including in its submission to the UN Human Rights Council on the universal periodic review of Turkey.
Jun 26, 2020 | Cases, News
The ICJ today welcomed the judgment by the Court in the case of Bagirov v. Azerbaijan. It found that the suspension from legal practice and subsequent disbarment of Khalid Bagirov violated his rights to freedom of expression and to respect for private life under Articles 10 and 8 of the European Convention on Human Rights (ECHR).
Khalid Bagirov’s suspension from the practice of law was based on his public criticism of ill-treatment by the police, following the wide media coverage of the death of an individual in police custody. Later he represented the victim as a lawyer in the proceedings.
His subsequent disbarment arose from his remarks about a judge made in the courtroom when representing his client in another high-profile case.
The ICJ intervened in this case as a third party, providing an evaluation of the State’s obligation to protect the right to freedom of expression of lawyers in light of international standards on independence of the lawyers and the consequences of disciplinary proceedings for lawyers’ rights under Articles 8 and 10 ECHR.
The ICJ calls on the Azerbaijani authorities to fully and promptly implement the judgment, including by taking steps to restore Khalid Bagirov as a member of the Azerbaijan Bar Association.
“Khalid Bagirov must now be reinstated as a lawyer and be allowed to resume his legal practice in Azerbaijan,” said Massimo Frigo, ICJ Senior Legal Adviser.
“But in addition, this judgment shows that measures need to be taken to address the systemic problem of unjustified disbarments of lawyers who seek to defend human rights in Azerbaijan. Reforms are needed to ensure that the disciplinary process is independent and fair and that penalties are proportionate.”
In its judgment of 25 June 2020, the Court held under Article 10 of the Convention that the reasons given by the domestic courts in support of Khalid Bagirov’s disbarment were not relevant and sufficient, and that the sanction imposed on him was disproportionate to the legitimate aim pursued, having highlighted that “the disbarment cannot but be regarded as a harsh sanction, capable of having a chilling effect on the performance by lawyers of their duties as defence counsel”.
In relation to Article 8 ECHR, the Court further noted that “…in a series of cases it has noted a pattern of arbitrary arrest, detention or other measures taken in respect of government critics, civil society activists and human rights defenders … Against this background, the Court underlines that, notwithstanding the duties, in particular, with respect to their conduct, with which all lawyers must comply, the alleged need in a democratic society for a sanction of disbarment of a lawyer in circumstances such as this would need to be supported by particularly weighty reasons” which had not been established in this case.
In respect of the suspension of the lawyer, the Government contended that the interference with Mr Bagirov’s rights to private life and freedom of expression had been prescribed by law and pursued the legitimate aims of preventing the disclosure of information received in confidence or maintaining the authority and impartiality of the judiciary.
The Court found that, he was not the victim’s lawyer when he made the impugned statements about the police, furthermore, the Court mentioned that it did not find any provision of domestic law preventing a lawyer from calling for peaceful protests against police brutality for the purpose of preventing violence.
The Court further found that while Mr Bagirov’s remarks, about a judge’s lack of capacity, were capable of being offensive, the sanction imposed on him did not struck a fair balance between the need to protect the authority of the judiciary and the need to protect his rights to private life and freedom of expression.
In this connection, the Court stated that inter alia, Mr Bagirov had confined himself to making a statement in a courtroom as a lawyer, in the context of his objections to the shortcomings of the proceedings.
Background
In addition to its intervention in Bhagirov v Azerbaijan, the ICJ has also intervened as a third party in other cases of lawyers from Azerbaijan (Hajibeyli and Aliyev v. Azerbaijan, nos. 6477/08 and 10414/08, § 54, 19 April 2018).
In 2019, the ICJ published recommendations to the Azerbaijan Bar Association on the role and independence of Lawyers,
In 2016, the ICJ published a mission report Defenceless Defenders: Systemic Problems in the Legal Profession of Azerbaijan
Jun 22, 2020 | News
Today, the ICJ, the Regional Office of the UN High Commissioner for Human Rights (OHCHR) for Central Asia and the Nationwide Movement “Yuksalish” are holding an Expert Discussion on the impact of COVID-19 on access to justice for economic, social and cultural rights (ESC rights) in Uzbekistan and comparative experiences from Europe and Central Asia.
The Fifth Expert Discussion, Access to justice in times of COVID-19, will address issues including access to a lawyer and access to court.
The event will present an opportunity to national and international experts, including lawyers, judges, members of UN human rights bodies, civil society, and other experts to debate questions of fundamental importance for ensuring access to justice and the protection of human rights in Uzbekistan.
“The COVID-19 pandemic has put new challenges before justice institutions around the world, including in Uzbekistan. These measures affected access to lawyers and courts judiciary therefore impeding full access to justice. This event will present an opportunity to discuss the solutions of States from around the globe about their responses to the pandemic. We believe that sharing experience among judges, lawyers and international experts from around the world will enrich the National debate and give an impulse for further development and the independence of the judiciary in Uzbekistan” said Akmal Burkhanov, Chairperson of the Nationwide movement “Yuksalish”.
“The pandemic became the so-called “maturity test” for the justice system and many of the urgent issues should be resolved in the light of the anti-COVID-19 measures taken. Therefore, I would also see the pandemic as an opportunity. The opportunity for transforming, changing for the better the functioning of traditional courts, provided that a high quality of justice and respect for individual rights are at the forefront of all changes,” pointed Eduards Stiprais, EU Ambassador to Uzbekistan.
Ryszard Komenda, Regional Representative of the UN Office for Human Rights for Central Asia quoted the UN High Commissioner for Human Rights, Michelle Bachelet, who stated that “in order to cope effectively with the pandemic states may need to introduce certain restrictions on the exercise of certain human rights, however, such restrictions need to be necessary, proportionate, and non-discriminatory”. Mr. Komenda noted that “the impact of the regulations on lockdown affected the day-to-day work of courts and lawyers. From the perspective of international human rights standards, it is crucial that the right of individuals to an operative and independent judicial system, in particular the right to an effective remedy, habeas corpus guarantees and access to a lawyer of one’s choosing are strictly adhered to”.
“Our fifth Expert Discussion on economic and social rights, is devoted to addressing the major problems people have in getting access to justice and defending their rights during the global COVID-19 pandemic,” said Sam Zarifi, the ICJ Secretary General.
“The ICJ has documented how around the world the pandemic has severely affected peoples’ right to health, to food, to water, to education and to sanitation, and we have also seen the additional difficulties facing people with lower income and access to the levers of power.”
“We aim to discuss how international law and national best practices can help the judiciary and legal system alleviate some of the human rights issues arising from Covid-19 in Uzbekistan, and maybe even build a more responsive and accountable system after the pandemic.”
Background:
The Expert Discussions on ESC rights aim to raise awareness about the implementation of international law and standards on ESC rights by the national justice system, to facilitate access to justice in relation to ESC rights and promote effective use of international law on ESC rights at the national level. Each Expert Discussion is attended by international and national experts.
The first discussion was held in September 2018 on international standards in labour rights. The second meeting, held in December 2018, concerned judicial application of the principle of non-discrimination; the third meeting, held in March 2019, was dedicated to the rights of people with disabilities, and the forth meeting, held in October 2020, discussed the right to adequate housing in Uzbekistan.
Uzbekistan ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1995.
The Expert Discussions are organized by the ICJ within the framework of the “Advancing Civil Society in Promoting economic, social and cultural rights (ESCR) Standards in Uzbekistan (ACCESS)” Project funded by the EU through the European Instrument for Democracy and Human Rights (EIDHR).
Contact:
Dilfuza Kurolova, ICJ Legal consultant, t: +998 90 9050099 ; e: dilfuza.kurolova(a)icj.org
Agenda:
English version
Russian version
Uzbek version
Jun 4, 2020 | News
The ICJ today raised concern at the threat of criminal proceedings against Judge Igor Tuleya on charges arising from the judge’s independent exercise of his judicial functions. The ICJ called on the Disciplinary Chamber of the Supreme Court not to lift his immunity at its 9th June hearing.
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 should not face any criminal proceedings to begin with for his actions in delivering his ruling in public, which is in accordance with national law”, said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme. “His immunity must be maintained and the ‘Muzzle Act’ that allowed for these abusive prosecutions should be immediately scrapped.”
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 gave competence to waive judicial immunity to the Disciplinary Chamber of the Supreme Court.
“As highlighted by the recent ruling of the EU Court of Justice, 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 issues pertaining to the disciplinary or criminal responsibility of judges, including a waiver of their immunity,” Massimo Frigo added.
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 will be examined on the 9 June 2020 by the Disciplinary Chamber of the Supreme Court appointed by the government.
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 22 979 38 00
Jun 2, 2020 | News
The ICJ has called on the Russian authorities to institute a prompt, independent and thorough investigation into the recent use of physical force against lawyers Natalia Magova, Diana Sipinova and Liudmila Kochesokova and detention of Diana Sipinova by officers of the Ministry of Interior in the Kabardino-Balkaria Republic.
Those responsible should be held accountable, the ICJ stressed.
According to the lawyers and as corroborated by video recordings available online, they arrived in the Department of the Ministry of Interior in the Kabardino-Balkaria Republic to represent their client Ratmir Jilokov, another lawyer who was detained on 20 May 2020, also following alleged violence against him by the police.
Despite the lawyers’ requests to have access to their client, they were not allowed to meet him. Instead, they were removed from the building of the Department of the Ministry of Interior with the use of physical force by several officers, which resulted in an altercation.
Moreover, Diana Sipinova was detained in the building of the Department for several hours. Both she and Ratmir Jilokov were later released.
“The use of physical force against the lawyers to prevent their meeting their client was clearly contrary to international human rights law and standards, including those on the role of lawyers,” said Temur Shakirov, Senior Legal Adviser of the ICJ Europe and Central Asia Programme.
The ICJ also raised concerns at the criminal proceedings against lawyer Diana Sipinova, following the incident of 21 May 2020, and Ratmir Jilokov, who was detained on 20 May 2020 apparently in connection with having tried to defend a client’s premises from what he considered to be an unlawful search by the authorities.
Both are accused of having used violence against police officers.
Reportedly, the criminal proceedings against Diana Sipinova and Ratmir Jilokov were instituted following their complaints of being subjected to physical attack by the officers of the Ministry of Interior of the Kabardino-Balkaria Republic.
The ICJ highlights that as provided by the UN Principles on the Role of Lawyers, States must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference and that they do not suffer, or be threatened with prosecution for any action taken in accordance with recognized professional duties, standards and ethics.
International human rights law further guarantees the right of a person deprived of liberty to meet with his or her lawyer.
The authorities should take effective measures to prevent such acts against lawyers in the future, and to ensure that lawyers are not prevented from representing their clients in accordance with law, the ICJ said.
The ICJ furthermore calls on the authorities to terminate the criminal investigations against the lawyers in connection with their attempts to meet with and defend their clients’ interests, and for any other action they have taken in relation to the representation of their clients that was in accordance with their professional duties, standards and ethics.
Background information:
Natalia Magova, Diana Sipinova and Liudmila Kochesokova are lawyers based in Kabardino-Balkaria Republic in the North Caucasus part of the Russian Federation.
According to the official website of the Investigative Department of the Investigative Committee of Kabardino-Balkaria, Diana Sipinova and Ratmir Jikolov are charged with the criminal offence provided for by Article 318.1 (use of violence which does not endanger life or health against the public officials in connection with the performance of their duties) of the Criminal Code of the Russian Federation.
In particular, Diana Sipinova is charged with having used violence against officers of the department of the Ministry of Interior of Kabardino-Balkaria Republic when she requested access to her client on 21 May 2020. Ratmir Jilokov is charged with having used violence against the police officers who arrived in the office of his client to conduct a search on 20 May 2020.
On 30 May 2020, the first instance court imposed the preventive measure for Diana Sipinova of prohibition of certain activities for two months.
Lawyer Ratmir Jilokov, who was detained on 20 May and released on 21 May 2020, claims that the officers who arrived in his client’s office for a search failed to provide him with any legal grounds or the document authorising the search, and that he was subjected to violence when he had challenged the unlawfulness of the officers’ actions. The first instance court imposed the preventive measure of prohibition of certain activities for two months in respect of him.
The Federal Chamber of Lawyers of Russian Federation expressed their support to the lawyers and criticized the interference with their professional functions and actively participated in the defence of the lawyers.
The ICJ has previously raised concerns at violence and intimidation against Russian lawyers.
