Mar 30, 2020 | News
The ICJ is calling on the Turkish Parliament to extend the planned provision of alternatives to detention in response to the COVID-19 crisis to all those imprisoned for non-violent crimes who do not pose a current threat to members of the public, regardless of the nature of the offences for which they have been charged.
In particular, alternatives to detention should apply to all those detainees who are particularly at risk at losing their life or suffering severe health effects from COVID-19.
Measures to protect the right to life, the right to health and other human rights must apply equally and without discrimination in line with Turkey’s international legal obligations.
The government have announced the tabling of a draft law to reduce the prison population that has been under discussion in recent months. The process has been accelerated with the purported aim of addressing the serious health risk that an outbreak of COVID-19 contagion would pose to the prison population. However, the draft law has not been adapted to address the health crisis and contains several shortcomings.
The new measures would grant alternatives to detention, including house arrest or early parole to an estimated one-third of the prison population.
This welcome move is however limited by the exclusion of those convicted or under trial for terrorism offences or offences against the State.
“In Turkey, terrorism offences and offences against the State have long been abused to arrest, try and jail human rights defenders, lawyers, judges and political opponents,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme. “The rights to life and health of these groups are now at particular risk.”
The ICJ considers that it is also essential that all detainees who are members of a group whose life or health may be at risk because of COVID-19 have either access to alternatives to detention, if they do not pose a current threat to public safety, or, otherwise, to detention conditions that may preserve them as far as possible from such risk.
“The State has a non-derogable obligation to protect the right to life of all its prison population, without discrimination of any sort,” Massimo Frigo added.
Mar 26, 2020 | News
Following the decision to postpone a referendum on amendments to the Russian Constitution, the ICJ calls on the authorities of the Russian Federation to refrain from adoption of the amendments or revise those amendments which are likely to have a detrimental effect on the rule of law and human rights protection.
“Amongst the wide range of amendments proposed, are some that would restrict the implementation of international human rights law, and in particular the decisions of international human rights courts, in the Russian Federation,” said Róisín Pillay, Director of the Europe and Central Asia Programme of the ICJ.
“Other amendments would damage the independence of the Russian judiciary through changes to judicial appointments and dismissal procedures.”
The ICJ draws attention to these issues in a briefing paper on certain amendments to the Constitution of the Russian Federation, published today.
“We urge the Russian authorities to use the opportunity presented by the postponement of the referendum, to reconsider amendments that would damage the ability of the justice system to provide an effective remedy to people whose human rights have been violated,” added Pillay.
Background
On 15 January 2020 the President of the Russian Federation announced a decision to introduce more than forty amendments to the Constitution adopted in 1993. They are to be adopted through an extraordinary procedure which includes public vote, organised specifically for these amendments.
The amendments touch upon a range of issues not necessarily connected with each other. They among other things erode the role of international law and tribunals as well as weaken the independence of the national judiciary.
On 25 March, Russian Federation President Vladimir Putin announced that a planned referendum on the constitutional amendments would be postponed due to COVID-19.
This ICJ briefing paper analyses how these amendments may run contrary to international commitments of the Russian Federation and further impede the judicial independence. The briefing paper addresses three particular changes proposed to the 1993 Constitution:
- The role of international law and of decisions of international courts or other mechanisms (Article 125 of the Constitution)
- Appointment of judges (Article 83 of the Constitution)
- Procedures of appointment and removal for judges (Articles 83, 102 and 128 of the Constitution).
Full Briefing Paper (in PDF): Russia-constitution changes-Advocacy-Analysis Brief-2020-ENG
Mar 23, 2020 | News
The ICJ called today on the Parliament of Hungary not to approve a Government bill that would extend indefinitely the emergency powers of the executive to counter the Covid-19 pandemic.
The proposed legislation would enable executive rule by decree, without parliamentary approval, and would impose harsh restrictions on freedom of expression.
“States of emergency, whatever the reason to invoke them, must never be allowed to become permanent,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
“Emergency measures that restrict human rights must be constantly reassessed to ensure that they remain necessary and proportionate. And even where measures are temporarily necessary, they should be subject to a “sunset clause” that ensure that it can be reviewed and will lapse if no longer justified ”.
The Hungarian emergency legislation includes offences of publishing false or distorted facts that interfere with protection of the public or cause public alarm – offences which have the potential to significantly and unduly restrict freedom of expression.
International human rights law requires that any interference with freedom of expression must be in sufficiently clear terms to be adequately prescribed by law and must be necessary and proportionate to the legitimate aim that it serves.
“This legislation is particularly worrying in a context where the Hungarian government has systematically undermined the rule of law and protection of human rights, including freedom of the media and civil society, and the independence of the judiciary in recent years,” Róisín Pillay added.
“The emergency powers are therefore particularly open to arbitrary or abusive application, without effective scrutiny by parliament or an independent judiciary.”
Background
The Bill on Protection against the Coronavirus (Bill T/9790) in the form of tabled by the Government will extend the state of danger that it had ordered by government decree from 11 March 2020.
The ICJ understands that the Bill will allow the government to rule by decree without Parliamentary scrutiny. The legislation would make it a criminal offence, punishable by imprisonment, to publish false or distorted facts that interfere with protection of the public or that alarm or agitate the public, or to interfere with a quarantine or isolation order.
Under international treaties to which Hungary is a party, including the European Convention on Human Rights and the International Covenant on Civil and Political Rights, States may take emergency measures to derogate from their international human rights law obligations in times of crisis, only the extent strictly necessary to protect the life of the nation. Derogating measures may only limit the scope of certain rights to the extent strictly necessary to meet a threat to the life of the nation, but they do not entirely suspend the applicability of any right in its entirety.
This necessity must be continually re-assessed so that the derogating measures apply for the shortest time possible. Certain human rights, including the right to life, the prohibition of torture or ill-treatment, and the essential elements of arbitrary deprivation of liberty and to a fair trial and the right to an effective remedy can never be restricted even in a state of emergency.
Feb 28, 2020 | News
The ICJ expresses concern at the decisions of 26 February of Yesil and Saryarka district courts of Nur-Sultan to disbar two lawyers, Erlan Gazymzhanov and Amanzhol Mukhamediarov, at the request of the Ministry of Justice.
These disbarments are a blow against the ability of lawyers to exercise their profession independently.
The immediate cause for the action was that the lawyers had published clips from a video recording of court proceedings in which the lawyers had acted for the defence, showing the judge behaving in an inappropriate way, on social media. The video clip was published after the proceedings had been concluded.
Following this publication, the judge was disciplined by a specialised judicial body for her behaviour during the court proceedings. At the same time, the judiciary addressed the Ministry of Justice with a request to act against the two lawyers for posting video clips on their social media pages.
The ICJ observed the court proceedings for disbarment of the lawyers in both cases. The court hearings proceeded in an orderly manner. However, the ICJ was concerned that the Press Service of the Supreme Court issued a comment on social media during the hearings that cast doubt on the impartiality of the proceedings. Furthermore, the Presidents of Yesil and Saryarka district courts of Nur-Sultan published identical comments, including the rationale for the decisions of judges that considered the cases. This happened immediately after the court decisions were pronounced to the parties. The oral explanations of decisions by judges presiding in the cases differed from the comments published by the respective presidents of the courts. The proceedings resulted in both lawyers being disbarred.
The ICJ notes with concern that these severe sanctions do not follow from legislation concerning the alleged breaches. The ICJ stresses that the principle of legality requires, among other things, that any measure imposing restrictions on human rights must be applied only as provided for by laws that are expressed clearly and unambiguously. The requirement that a measure be in accordance with law refers not only to the existence of the law but also to the quality of such law, which must be foreseeable, since a norm cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to regulate his or her conduct: he or she must be able to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
Kazakhstan legislation does not contain any prohibition of publishing videos of court hearings online, let alone prescribe disbarment for such action. The only document against which the lawyers acted were the internal rules of the Department for Judicial Administration under the Supreme Court, which do not have the status of law and which neither explicitly nor implicitly suggest disbarment for posting the videos. Neither legislation nor lawyers’ ethical rules contain any penalty for publishing video of court hearings online. Therefore, the ICJ is concerned that the sanction imposed is not adequately prescribed by national law, and as such is unforeseeable and contrary to the principle of legality.
Following the request of the Ministry of Justice to apply a specific sanction against the lawyers –termination of the right to practice law – the courts considered only this sanction. This sanction is imposed for life. Bearing in mind the legal uncertainty as to the nature of the violations and the serious consequences that they entail, this sanction appears to be disproportionate.
Bearing in mind the existence of regular disciplinary proceedings before the National Bar Association that were introduced by the new law on the advokatura in 2018, the ICJ is concerned that these procedures were not utilized in these cases, which were initiated directly before the District Courts. The Ministry of Justice did not address the Bar Association’s disciplinary bodies, which makes a sham of the disciplinary bodies of the legal profession.
“We did not hear any convincing arguments in the proceedings as to why ordinary disciplinary proceedings of the Bar Association, including those related to an alleged breach of lawyers’ ethics, have not been used”, said Temur Shakirov, ICJ Senior Legal Adviser.
“In the circumstances such as these, the role of the Bar Association in assessing the conduct of its member is essential to ensuring independence of the legal profession as required by international law and standards”, Shakirov added.
The ICJ calls on the relevant authorities to restore the licences to practice law of Amanzhol Mukhamediarov and Erlan Gazymzhanov. Furthermore, the role of the Bar Association in various aspects of its independent functioning, including the disciplinary proceedings, especially where lawyers may face a disbarment should be strengthened. To this end, the ICJ calls on the Parliament of Kazakhstan to reconsider the legislative framework and remove the possibility of any executive authority to bypass the Bar Association’s competence to evaluate professional conduct of its members, including any disbarment or other disciplinary proceedings.
Disbarment-of-Mukhamediaov-and-Gazymzhanov-2020-ENG (full PDF document with backgroud information).
Feb 28, 2020 | News
The ICJ and the International Bar Association’s Human Rights Institute (IBAHRI) urge the Turkish Council of Judges and Prosecutors (CJP) to stop their investigation into the three judges of the Istanbul 30th Heavy Penal Court who, on 18 February 2020, acquitted the defendants in the Gezi Park trial due to a lack of evidence.
According to a statement from 30 Turkish bar associations, the sole reason for the investigation was the acquittal in the Gezi Park trial. The Council of Judges and Prosecutors, the body of self-governance of the judiciary, has the power to launch and take disciplinary action against judges, including disciplinary proceedings leading to removal from office.
“The launch of such an investigation is a further sign of the grave decline of the rule of law in Turkey”, said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme “The disciplinary proceedings against these judges appear to be a direct interference in their decision-making power and will have a chilling effect on the independence of all members of the judiciary.”
“The role of the Council of Judges and Prosecutors should be to protect the independence of the judiciary – not to be an instrument of control and pressure against individual judges” said Massimo Frigo.
IBAHRI Co-Chair, the Hon Michael Kirby AC CMG, commented: “The IBAHRI and the ICJ jointly welcomed the acquittal of Osman Kavala and the other 15 defendants. Now, we condemn the re-arrest of Mr Kavala, continue to stand with the defendants, and call for Mr Kavala’s immediate release. We implore the Turkish Council of Judges and Prosecutors to reconsider the hugely damaging impact their inspection of the judges will have on the principles of judicial independence and the rights of lawyers, and to cease all action in this respect.”
The launch of this investigation occurred immediately after the acquittals in the Gezi trial, spurred by the vehement public protests by President Erdogan against the verdict.
30 Turkish Bar Associations have issued a statement calling for the resignation of the members of the Council of Judges and Prosecutors and considered this investigation as a violation of the principle of judicial independence under the Turkish Constitution.
Background
The defendants in the Gezi trial – with the exception of those not present in Turkey who will be tried separately – were acquitted on 18 February for lack of evidence. The ICJ and IBAHRI welcomed the acquittal after having observed all hearings of the trial. The very evening of the verdict, one of the defendants, Osman Kavala, was re-arrested on suspicion of “attempting to disrupt the constitutional order” connected to the failed coup attempt of 2016.
Osman Kavala has been in detention since 18 October 2017 pending trial on charges connected to the Gezi Park protests. The Gezi Park protests began in May 2013 as an effort by a group of environmentalists to save a park in central Istanbul from being rezoned, but soon grew into nationwide demonstrations. Police quelled the protest in Taksim Square with the use of tear gas and water cannons.
Contact:
Massimo Frigo, ICJ Senior Legal Adviser – e: massimo.frigo(a)icj.org – t: +41229793805
Feb 19, 2020 | News
The ICJ and IBAHRI condemn yesterday’s re-arrest of Turkish human rights defender Osman Kavala, immediately following his acquittal on charges connected to the Gezi Park demonstrations that began in May 2013.
Osman Kavala was arrested on his release from prison yesterday evening, on suspicion of “attempting to disrupt the constitutional order” connected to the failed coup attempt of 2016.
“For Osman Kavala to be acquitted yesterday, on charges for which there was never credible evidence against him, only to be immediately re-arrested on another highly improbable charge, suggests a criminal justice system that is operating to suppress independent civil society rather than uphold due process and the rule of law,” said Róisín Pillay, Director of the ICJ’s Europe and Central Asia Programme.
Osman Kavala has been held in pre-trial detention since October 2017. The European Court of Human Rights recently ordered that Turkey must act to secure his immediate release, and found that his detention violated his right to liberty (Article 5.1 ECHR) and his right to speedy judicial review of detention (Article 5.4 ECHR), and pursued an improper purpose (Article 18 ECHR).
“It is disgraceful that the Turkish authorities seek to evade compliance with their obligation under the European Convention on Human Rights to end the arbitrary detention of Osman Kavala, by releasing and re-arresting him. We call for these new charges to be dropped and for Osman Kavala to be immediately released,” said Baroness Helena Kennedy QC, IBAHRI Director.
Background
Mr Kavala has been in detention since 18 October 2017 pending trial on charges connected to the Gezi Park protests. The Gezi Park protests began in May 2013 as an effort by a group of environmentalists to save a park in central Istanbul from being rezoned, but soon grew into nationwide demonstrations. Police quelled the protest in Taksim Square with the use of tear gas and water cannons.
Mr Kavala’s trial, along with 15 other defendants, took place before Istanbul 30th Assize Court. The IBAHRI and the ICJ jointly sent international observers to attend all hearings of the trial.
Contact :
Róisín Pillay, Director for Europe and Central Asia Proramme, t: +32 2 734 84 46; e: roisin.pillay(a)icj.org
