Jul 17, 2019 | News
On 16 July 2019, the European Court of Human Rights found Russia’s refusal to register associations set up to promote and protect the rights of lesbian, gay, bisexual and transgender (LGBT) people to violate the rights to freedom of association and to be discriminatory on the grounds of sexual orientation.
The Court’s judgment was informed by a third party intervention submitted jointly by the ICJ, the European Human Rights Advocacy Centre (EHRAC) and ILGA-Europe on 29 July 2016.
The cases were brought by Russian individuals and non-profit organizations (Rainbow House, Movement for Marriage Equality and Sochi Pride House) (Zhadanov and others v. Russia).
The organizations’ registration requests were refused by the authorities and the domestic courts because of formal irregularities in their applications and because their aim was to promote LGBT rights.
In a unanimous judgment, the Court reiterated the importance for individuals to be able to join together to act collectively and establish legal entities. Rejecting as “unconvincing” the Government’s assertion that the applications were refused on procedural grounds, the Court found that in order to obtain registration the organizations would have had to renounce their aims of promoting LGBT rights: “Those grounds touched upon the very core of the applicant organisations and affected the essence of the right to freedom of association”.
Referring to Russia’s submission that the organisations were refused registration to prevent social or religious hatred and disorder, the Court reminded States that they have a positive duty to guarantee the proper functioning of associations, even when they annoy or give offence.
In the present case, rather than taking steps to enable the organizations to carry out their activities without fear of violence, the authorities instead “decided to remove the cause of the tension and avert a risk of disorder by restricting the applicants’ freedom of association”.
The Court therefore found the refusal to register the organizations was not necessary in a democratic society (in breach of Article 11 ECHR).
Having found that the decisive ground for refusing the organizations’ applications for registration was their aim of promoting LGBT rights, the Court held that the applicants had suffered a difference in treatment based on their sexual orientation which could not be reasonably or objectively justified (in breach of Article 14 ECHR in conjunction with Article 11).
EHRAC, ILGA-Europe and ICJ’s joint intervention, drafted by Jeremy McBride QC of Monckton Chambers (UK), focused on the extent of legitimate restrictions on the right to freedom of association for the protection of morals, arguing that it was impossible to protect individual rights if citizens were unable to create associations to defend common interests and needs.
It submitted that any restrictions on this right should be strongly justified and legitimate aims which permitted interference should be interpreted narrowly.
“This judgment reaffirms the vital importance for individuals to be able to group together and organize themselves around shared causes. States must act positively to ensure that this right is meaningful, particularly when people belong to vulnerable or marginalised minority groups or hold unpopular views,” said Joanne Sawyer, Lawyer, EHRAC.
“We are very pleased with European Court’s pioneering judgment confirming the vital right to freedom of association for those promoting rights of LGBTI people. This judgment sends a key message to LGBTI activists in Russia and other countries across Europe who are facing similar discriminatory restrictions – refusal to register associations cannot be justified on the ground of protection of morals,” said Arpi Avetisyan, Senior Litigation Officer, ILGA-Europe.
“The ICJ welcomes the Court’s conclusion that Russia’s refusal to register associations established to promote and protect the human rights of LGBT people cannot be justified on the grounds of protecting moral values or the institutions of the family and marriage,” added Livio Zilli, ICJ Senior Legal Adviser.
Jul 17, 2019 | Advocacy, News, Non-legal submissions
Today, the ICJ filed a submission to the Human Rights Council’s Working Group on the Universal Periodic Review in advance of its review of Turkey’s human rights record in January 2020.
In its submission, the ICJ considered:
- the situation with the independence of the judiciary in Turkey, during and after the state of emergency of 2016-2018;
- the lack of effective remedies for the mass dismissals in the public sector occurred in that period;
- the shortcomings in fair trial rights in the criminal justice system:
- the obstacles to the action of civil society;
- the lack of accountability for torture and enforced disappeareances; and
- provided information on the status of international human rights treaties ratified by Turkey.
Contact:
Massimo Frigo, ICJ Senior Legal Adviser, e: massimo.frigo(a)icj.org
Full submission in English (PDF) : Turkey-UPR-Advocacy-non-legal submissions-2019-ENG
Jun 24, 2019 | Events, News
The OHCHR, ICJ and the Geneva Bar Association invite you to a discussion on the criminalization of solidarity in migration in Europe and State’s obligations under international law.
Thursday, 27 June, 13h00,
UN Cinema (Room XIV),
Palais des Nations, Geneva
The event will feature the screening of the movie “The Valley” by Nuno Escudeiro, documenting the situation of human rights defenders and migrants in South of France, with an introductory panel and a discussion session after the movie.
The Valley is a coproduction of Point du Jour (France) and Miramonte Film (Italy), and was awarded the Emerging international filmmaker at the HOT DOCS film festival, Toronto.
Panelists:
- Obiora C. Okafor, UN Independent Expert on human rights and international solidarity
- Nuno Escudeiro, Director of The Valley
- Zia Oloumi, Lawyer at the Paris and Nice Bar, Doctor at Law
- Carolina Hernandez, OHCHR
- Massimo Frigo, ICJ Senior Legal Adviser
If you do not already have a grounds pass to access the Palais des Nations, please send your name and surname at migration@ohchr.org before the end of Sunday 23 June.
For more information contact massimo.frigo(a)icj.org
A flyer for the event is avaiable here.
Jun 24, 2019 | News
The ICJ and the International Bar Association’s Human Rights Institute (IBAHRI) have jointly sent international observers to attend the first hearing of the criminal trial on the “Gezi Park” protest at the Silivri Prison Courthouse in Istanbul, scheduled to take place on 24 and 25 June 2019.
The International Observers who will be attending are Justice Ketil Lund, former judge of the Supreme Court of Norway and ICJ Commissioner, and Dr Mark Ellis, Executive Director of the International Bar Association.
Justice Lund and Dr Ellis will be observing a trial hearing before İstanbul 30th Assize Court with principal defendant Osman Kavala and 15 others: Ali Hakan Altınay, Ayşe Mücella Yapıcı, Ayşe Pınar Alabora, Can Dündar, Çiğdem Mater Utku, Gökçe Yılmaz, Handan Meltem Arıkan, Hanzade Hikmet Germiyanoğlu, İnanç Ekmekci, Memet Ali Alabora, Mine Özerden, Şerafettin Can Atalay, Tayfun Kahraman, Yiğit Aksakoğlu and Yiğit Ali Ekmekçi.
The observers will report directly to the IBAHRI and ICJ Secretariats on the proceedings following the mission.
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 turned into nationwide demonstrations. The protest was quelled by police with the use of tear gas and water cannons against the protesters in Taksim Square.
Following a six-year investigation into the events, the 657-page indictment issued by the Istanbul Chief Public Prosecutor’s Office was accepted by the 30th A Court in Istanbul on 4 March 2019.
The defendants are to be charged under Turkish Criminal Code Article 312 (attempt to overthrow the Turkish Government or 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 total sentence asked for by the prosecution for these offences amounts to approximately 47,520 years imprisonment.
Contact:
Massimo Frigo, Senior Legal Adviser, t: +41 22 979 38 05 – e: massimo.frigo(a)icj.org
Jun 13, 2019 | News
Today, the ICJ called on the authorities in Tajikistan to immediately release a prominent lawyer who is currently serving a sentence of imprisonment of 28 years on dubious charges.
The UN Working Group on Arbitrary Detention (WGAD) published a decision in Mr Yorov’s case on (date), finding that “the trials of Mr. Yorov were carried out in total disregard for the guarantees encapsulated in article 14 of the Covenant, being of such gravity as to give the deprivation of liberty of Mr Yorov an arbitrary character […].”
The Working Group recommended that the government remedy the situation of Yorov without delay and to this end “release Mr. Yorov immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law”.
The ICJ has previously expressed concern that Buzurgmehr Yorov’s conviction may constitute a reprisal for his defense work in high-profile political trials in connection with his representation of thirteen leaders of the Islamic Renaissance Party of Tajikistan (IRPT).
The ICJ earlier expressed concerns at the conviction of the lawyer to a 28 year sentence in prison, which is based on clearly improper charges related to the defense of his clients.
The ICJ welcomes the decision of the WGAD and calls on the Tajikistan authorities to fully implement the decision and to take all necessary measures to protect lawyer Yorov, his family and his lawyers against any threats to their security, or any intimidation, hindrance, harassment or improper interference with their performance of their professional functions as lawyers.
In this regard, the ICJ notes recent protests by dozens of individuals who took part in a rally against Yorov in front of the representative offices of the United Nations and the European Union in Tajikistan, soon after the decision of the WGAD.
Posters of the demonstrators called on the UN High Commissioner of Human Rights to “take her hands off Tajikistan” and named organisations that had defended Mr Yorov or brought the petition on behalf of Yorov to the UN WGAD.
In this context, it is imperative that the Tajikistan government immediately publicly affirm the legitimacy of the decision of the WGAD and make clear its commitment to complying with it, the ICJ underlined.
Background
Buzurgmekhr Yorov was arrested two years ago on 28 September 2015, on charges of “fraud” and “forgery of documents.” Later, he was accused of violating three more articles of the Criminal Code, including in relation to alleged “public calls for extremist activity.”
On 6 October 2016, The Dushanbe City Court sentenced Yorov to 23 years imprisonment in a strict regime prison.
In March 2017, Yorov was sentenced to an additional two years’ deprivation of liberty for “contempt of court and insulting the representative of power.” In August 2017, he received a further three years sentence on charges of “insulting the president.”
The ICJ has, on a number of occasions, expressed its serious concerns over the arrest and conviction of Buzurgmehr Yorov and other lawyers in Tajikistan.
On 24 May 2019, the UN Working Group on Arbitrary Detention, a group of independent experts established in 1991 whose members are appointed by the UN Human Rights Council, published an Opinion finding a number of violations of human rights of Yorov protected under the International Covenant on Civil and Political Rights and recommended as a remedy his immediate release, payment of compensation or other reparation and conducting an investigation into the violation of Yorov’s rights.
The UN Basic Principles on the Role of Lawyers require that the Governments ensure that lawyers “are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference ”. Under these Principles “where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.” The right to “offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms” is guaranteed by the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Article 9.3(c)).
Jun 12, 2019 | News
The ICJ today expressed concern at recent developments in Moldova, which are effectively paralyzing governance in the country.
During the past week, the Constitutional Court has ordered the dissolution of Parliament, suspended its functioning and invalidated its subsequent acts, including the appointment of a government and speaker, and has triggered the removal of the President.
The ICJ is particularly concerned at the excessively swift procedure through which the Constitutional Court reached its decisions to dissolve Parliament, remove a sitting President of the Republic and replace him with the Prime Minister. The ICJ calls attention to the unhelpful timing of the Constitutional Court ruling that was issued on the very day it identified as the end of the Parliamentary term, depriving Parliament of the clarity needed to exercise its powers.
These developments occur against the background of the manifest deficiencies in the institutional independence of the Moldova judiciary which were documented in a recent ICJ report.
In the report issued in March 2019, the ICJ highlighted the problematic appointment in 2018 of three judges of the Constitutional Court in circumstances that did not ensure a sufficient level of transparency, during an electoral campaign and without an open competition process. The report noted that the three appointed judges have previously been Prosecutor General, director of the intelligence service and chair of the legal committee of Parliament, part of the then ruling political majority.
The ICJ welcomes the announcement by the Secretary General of the Council of Europe that the Venice Commission has been asked to issue an urgent opinion on the constitutional crisis.
“The rule of law is the common ground on which constitutional conflicts must be solved”, said Massimo Frigo, Senior Legal Adviser of the Europe Programme of the ICJ. “We call on all institutions and parties in Moldova to seek a solution that squarely complies with the rule of law and the international law and standards to which Moldova has subscribed. In this regard, we urge all parties concerned to wait for the opinion by the Council of Europe Venice Commission in this matter and to reconsider the situation in light of its findings.”
Background
The Constitutional Court, in decisions issued on 7, 8 and 9 June 2019, held that Parliament should be dissolved for having been unable to establish a government within three months of the end of the previous Government’s term of office.
The decisions triggered the removal from office of the President of the Republic, Igor Dodon, for having refused to dissolve Parliament. This led to the interim appointment of Pavel Filip, as acting President of the Republic.
The Court also declared unconstitutional and void any act issued by Parliament after 7 June.
Neither Parliament nor President Dodon have accepted the decisions of the Constitutional Court on their removal or on the validity of their acts, nor do they consider as legitimate the appointment of Pavel Filip as acting President.
Parliamentary factions constituting the current majority in Parliament had reached a deal to form a coalition government and appointed a speaker and Prime Minister.
According to the Constitutional Court’s interpretation of article 85 of the Constitution, these agreements failed to respect the three-month deadline.
Others have put forward different interpretations of when the deadline of the three months period to appoint a Government would elapse, and of the obligation of the President of the Republic to dissolve Parliament.
Article 85 of the Constitution states:
(1) In the event of impossibility to form the Government or in case of blocking up the procedure of adopting the laws for a period of three months, the President of the Republic of Moldova, following consultations with parliamentary fractions, may dissolve the Parliament.
(2) The Parliament may be dissolved, if it has not accepted the vote of confidence for setting up of the new Government within 45 days following the first request and only upon declining at least two requests of investiture.
(3) The Parliament may be dissolved only once in the course of one year.
(4) The Parliament may not be dissolved within the last six months of the term of office of the President of the Republic of Moldova nor during a state of emergency, martial law or war.
Contact:
Massimo Frigo, ICJ Senior Legal Adviser: t: +41 22 979 3805; e: massimo.frigo(a)icj.org
