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
Feb 18, 2020 | News
The ICJ and IBAHRI welcome today’s ruling by the Istanbul 30th Assize Court that acquitted all defendants in the Gezi Park case for lack of evidence. The ICJ and IBAHRI have been observing all hearings of the trial.
“Today’s decision is welcome,” said Massimo Frigo, Senior Legal Adviser of the ICJ. “The factual and legal circumstances surrounding the case make clear that these defendants should have never been put to trial to begin with.”
Baroness Helena Kennedy QC, IBAHRI Director, commented: “We have watched this trial closely, with senior lawyers attending the process as observers. It is a case that should never have been brought, for those who faced trial suffered untold anguish. But such injustice has become all too common in Turkey, where the rule of law and human rights have lost meaning. We live in hope this augurs a return to sanity and due process.”
These protests, commencing in May 2013, were an effort by a group of environmentalists to save a park in central Istanbul from being re-zoned, but soon grew into nationwide demonstrations.
Police quelled the protests in Taksim Square through the use of tear gas and water cannons.
The sixteen defendants in the present trial were charged under the following articles of the Turkish Criminal Code: Article 312 (an attempt to overthrow the Turkish government or an attempt to prevent it from fulfilling its duties), Article 151 (damage to property), Article 152 (qualified damage to property), Article 174 (possession or exchange of hazardous substances without permission), Article 153 (damaging places of worship and cemeteries), Article 149 (qualified robbery), Article 86 (intentional injury), crimes under the Law on Firearms, Knives and Other Tools no. 6136 and crimes under the Law on Protection of Cultural and Natural Assets no. 2863.
The ruling follows a 2019 decision of the European Court of Human Rights brought by Turkish human rights defender Osman Kavala, one of the defendants in the present case.
Contact:
Massimo Frigo, Senior Legal Adviser, ICJ’s Europe and Central Asia Programme, t: +41 22 979 3805; e: massimo.frigo(a)icj.org
Additional information
The defendants in the case are Osman Kavala, Ali Hakan Altinay, Ayse Mücella Yapici, Ayse Pinar Alabora, Can Dündar, Çigdem Mater Utku, Gökçe Yilmaz, Handan Meltem Arikan, Hanzade Hikmet Germiyanoglu, Inanç Ekmekci, Memet Ali Alabora, Mine Özerden, Serafettin Can Atalay, Tayfun Kahraman, Yigit Aksakoglu and Yigit Ali Ekmekçi.
Feb 7, 2020 | News
The ICJ expresses concern at today’s physical assault of a lawyer and a journalist, who arrived in Grozny to take part in the trial of blogger Islam Nukhanov.
The ICJ called on the authorities of the Russian Federation and its Chechen local authorities to investigate the attack and ensure that those responsible be brought to justice.
On 6 February, at around 22.00 lawyer Marina Dubrovina (photo) and Yelena Milashina, a journalist of Novaya Gazeta, a Russian newspaper, were beaten up by a group of young women in the lobby of the “Kontinent” Hotel in Grozny, Chechnya.
Both women suffered injuries to the face and body. Dubrovina and Milashina had come to Grozny to observe the trial of Islam Nukhanov, a blogger from the town of Kogalzm in the Tumen Oblast of the Russian Federation, charged with possession of a weapon, who has been detained by Chechen police since November 2019 after he posted a video on YouTube, with footage allegedly taken near the residence of the head of the Chechen Republic, Ramzan Kadyrov.
On 7 February, neither Dubrovina nor Milashina was admitted to the courtroom where Nukhanov was tried, due to the public and the media reportedly being excluded from the hearing.
The ICJ urges the federal and local authorities of the Russian Federation, to investigate the attack against Dubrovina and Milashina in a prompt and independent manner.
Measures should be taken to ensure that lawyers, especially when exercising their professional duties, are protected against such attacks.
Furthermore, Islam Nukhanov’s trial should be held in public, unless and until the authorities demonstrate that the circumstances of his trial require that the public and the media be excluded from it, consistent with relevant international fair trial standards.
Background
Islam Nukhanov, 27, is a blogger of Chechen origin was apprehended on 1 November 2019 in Grozny after he posted a video clip where he filmed streets and houses in Grozny, allegedly, near the residence of the head of the Chechen Republic Ramzan Kadyrov. Since his apprehension, Nukhanov has been in detention.
In 2018, the ICJ expressed concern at allegations that the arrest and detention of Oyub Titiev, the head of the Chechen branch of the Russian human rights organisation Memorial, was carried out as retaliation for his human rights activity.
In 2016, the ICJ expressed concern at the reported resignations of federal judges in the Chechen Republic of the Russian Federation following apparent pressure by the acting Head of the Republic Ramzan Kadyrov who had suggested that resignation would be the “most correct decision of their lives”
The ICJ is concerned at the regular attacks on lawyers and human rights defenders in Chechnya, which are systemic and may have the purpose of intimidating those who wish to defend human rights in the Chechen Republic of the Russian Federation.
The UN Basic Principles on the Role of Lawyers provide that “where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities”.
Feb 5, 2020 | Advocacy, News, Open letters
ICJ Commissioners and Honorary Members today denounced the rapidly escalating rule of law crisis in Poland, after a new law was passed that would result in harassment of judges upholding the independence of the judiciary.
A group of 44 ICJ Commissioners and Honorary Members, including senior judges, lawyers and legal scholars from around the world said in their statement “it is clear that the separation of powers, the independence of the judiciary, and the capacity of Polish judges to uphold the rule of law are now severely compromised. Judges’ freedom of expression, association and assembly are under immediate threat.”
The statement
The International Commission of Jurists (ICJ), its Centre for the Independence of Judges and Lawyers (CIJL) and the undersigned Commissioners and Honorary Members of the ICJ are alarmed at the rapidly escalating rule of law crisis in Poland.
It is clear that the separation of powers, the independence of the judiciary, and the capacity of Polish judges to uphold the rule of law are now severely compromised. Judges’ freedom of expression, association and assembly are under immediate threat.
The passing by the Sejm on 23 January of the amendments to the laws on the judiciary, and their signing into law on 4 February, means that judges will be prohibited from questioning the legitimacy or institutional independence of any Polish court, even where its members have been appointed through a politically controlled process, in violation of EU and international law. Judges will face disciplinary action for denying the validity of any judicial appointment.
This law is an attempt to prevent any Polish court from upholding the independence of the judiciary, in the face of repeated legislative and government attacks on judicial independence in recent years.
This is directly contrary to the obligations of judges under the EU treaties to apply EU law, and would therefore lead to violations of Poland’s EU law obligations. It would also lead to violations of Poland’s obligations under international human rights law, since it would require judges to act contrary to their duty to uphold the right to a fair hearing before an independent and impartial tribunal.
As the Venice Commission noted in its recent opinion on the amendments, they are clearly “designed to have a nullifying effect” on recent judgments and resolutions of the Court of Justice of the EU and the Polish Supreme Court, which have called into question the validity of recent judicial appointments. As such, they do severe damage to the rule of law in Poland.
These developments follow recent legislation which has politicised the National Council of the Judiciary (NCJ) and imposed executive control of the appointment process for judges of the Supreme Court, court presidents and other judges. A powerful new Extraordinary Chamber as well as a Disciplinary Chamber of the Supreme Court, appointed under this new system, has further entrenched political control of the judiciary.
The ICJ, its undersigned Commissioners and Honorary Members, applaud the continued resolute defence of the rule of law by sections of the Polish judiciary. This has been evident in the resolution of the Supreme Court (Civil, Criminal, Labour and Social Security Divisions) of 23 January which found that recent judicial appointments meant that some Polish courts were not sufficiently independent to be legitimately constituted.
We deplore the response by President Adrzej Duda in which he suggested that judges opposing the judicial reforms on the judiciary acted out of improper self-interest.
The undersigned ICJ Commissioners and Honorary Members affirm their solidarity with Polish judges, in particular those who are currently facing abusive disciplinary or criminal proceedings for carrying out their judicial functions in accordance with the principle of judicial independence, or for exercising their freedom of expression, association or assembly as a means to defend the rule of law.
We recall that international human rights law and international standards on the judiciary require all branches of government to respect the independence of the judiciary. Furthermore, they recognise that judges have rights to freedom of expression and association and that they have a particularly important role in contributing to discussions on issues of the functioning of the judicial system and the rule of law, especially in defending the independence of the judiciary.
We call on the international community to respond to the Polish rule of law crisis in a manner appropriate to the gravity of the situation, before the damage to the Polish legal system becomes further entrenched.
In particular, we call on the European Union to urgently advance proceedings concerning Poland under Article 7 TEU, in light of the clear breach of EU law and EU fundamental values entailed by the new law, in conjunction with previous reforms, and by the government’s open defiance of decisions of the Court of Justice of the EU and the Polish Supreme Court.
Poland-Commissioners-Statement-Advocacy-Open-Letter-2020-ENG, (full text with all signatories, PDF)
