Jul 18, 2016 | News
At a critical moment for Turkish democracy, the ICJ today urged the government to uphold the rule of law and respect Turkey’s obligations under international human rights law.
The ICJ condemns what appears to be a wholesale attack on the judiciary, implemented within hours of the failed coup attempt of 15 and 16 July.
“At such moments of crisis, it is crucial that the independence and security of tenure of judges is respected, so that public confidence can be maintained in the fairness of the justice system,” said Wilder Tayler, ICJ Secretary General.
“Purging the judiciary now endangers the deepest foundations of the separation of powers and the rule of law. An independent judiciary will be critical to ensure a functioning administration of justice for all people in Turkey as the country emerges from the crisis,” he added.
Reports indicate that on 16 July 2,745 judges were suspended by the High Council for Judges and Prosecutors (HSYK). Arrest warrants were issued for more than a hundred judges.
Two judges of the Constitutional Court, and ten members the HSYK itself, are reportedly among those detained. The ICJ fears that many of these detentions may be arbitrary.
Allegations that the judges concerned were linked to the attempted coup have not been supported by evidence, and it defies credulity that such a high number of judicial authorities could have been involved in the planning or execution of the military coup d’etat.
According to the ICJ, the measures are arbitrary, and contrary to fundamental rule of law principles.
In June, an ICJ report, Turkey: the judicial system in peril, analysed the increasing government control of the Turkish judiciary, including the HSYK, and arrests and dismissals judges, in violation of international standards.
“This weekend’s mass suspensions and arrests of judges represent a dramatic escalation of an attack on judicial independence that was already underway,” said Tayler.
“Disciplinary proceedings against judges should not proceed until it is clear that they will be heard by a body that is fully independent of the executive, and in accordance with the right to a fair hearing,” he added.
The ICJ is also deeply concerned at suggestions by the government that the death penalty may be introduced for those involved in the failed coup.
Re-introduction of the death penalty would violate Turkey’s obligations under Protocol 13 to the European Convention on Human Rights, and would amount to inhuman and degrading treatment in breach of Article 3 of the Convention.
The ICJ considers the death penalty to constitute in all circumstances a violation of the right to life and the prohibition on cruel, inhuman or degrading punishment.
Contact:
Róisín Pillay, Director, ICJ Europe Programme, t: +32 476 974263 ; e: roisin.pillay(a)icj.org
Additional information:
Under international standards on the independence of the judiciary, judges should be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
The ICJ recently published its Practitioners’ Guide N°13 on Judicial Accountability, a major study on international law and standards on the accountability of judges.
Further guidance on relevant international law and standards can be found in the ICJ Legal Commentary to the Geneva Declaration on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis.
Mar 21, 2016 | News
The ICJ today expresses serious concern that the deal concluded on Friday 18 March between the European Union and Turkey on the return of migrants and refugees to Turkey is likely to lead to serious violations of international and EU human rights and refugee law.
“This initiative carries high risks of infringing the right of asylum and the prohibition of non-refoulement, as well as the right to an effective remedy for potential violations of these rights”, said Róisín Pillay, Director of the ICJ Europe Programme.
All EU Member States, including Greece, have obligations to protect these rights under international human rights law, and Member States and EU institutions have similar obligations under the EU Charter of Fundamental Rights.
The agreement seeks to establish swift return from Greece to Turkey of any migrant or asylum seeker attempting to reach Greece who does not apply for international protection there or whose application is deemed unfounded or inadmissible.
In order to facilitate such returns, Turkey may be declared to be a “safe third country” which could allow for the dismissal of asylum requests in Greece based on this element alone, and the rapid return of applicants.
The EU and Turkey, in their joint statement, contend that these operations will not be carried out in violation of international and EU law, including the prohibition of collective expulsions and the principle of non-refoulement, which prohibits return to a country where the returned person faces a real risk of torture or other serious violation of human rights.
It is nevertheless unclear how the system proposed could lead to swift returns, while respecting international human rights and refugee law, the EU Charter of Fundamental Rights and the EU Asylum Procedure Directive, for a number of reasons.
First, the ICJ stresses that Turkey cannot be considered a “safe third country” for the return of migrants and refugees.
Authoritative reports and international jurisprudence on Turkey demonstrate that neither the general human rights situation in Turkey, nor its asylum procedure and reception system are in line with international law, including Turkey’s obligations under the European Convention on Human Rights’ prohibition of inhuman and degrading treatment in article 3 ECHR.
Second, the ICJ affirms that the commitment of Turkey to adapt its asylum system to comply with international law and standards does not in itself allow for returns from EU countries in compliance with the principle of non-refoulement.
International and EU law binding on Greece and other EU Members States requires an assessment of the situation in the country of return at the moment the return is effected to determine whether there is a real risk of violations of human rights.
Therefore, at present, and irrespective of the commitments made on reform, any return to Turkey would be at high risk of infringing the principle of non-refoulement and the returning country’s legal obligations.
Crucially for the prospects of the new system, it is also clear that the Greek asylum system is not in a position to proceed to a swift consideration of asylum applications in compliance with human rights, including procedural guarantees.
“As is clear from ongoing Council of Europe discussions about implementation of European Court decisions against Greece, the Greek asylum procedure cannot yet provide for an effective remedy for cases of arbitrary refoulement. Without respect for such guarantees, many migrants will be left vulnerable,” said Massimo Frigo, Legal adviser at the ICJ.
The ICJ emphasises that, whatever co-operative arrangements are put in place, Greece and Turkey will have responsibility under international human rights and EU law as regards the rights of persons subject either to Greek or Turkish territorial jurisdiction or to Greek or Turkish authority and/or control.
Furthermore, through its direct involvement in and financing of these arrangements, the EU itself may be complicit in any breach of the right of asylum, the prohibition of collective expulsions, the prohibition of non-refoulement or the right to an effective remedy.
The ICJ is further concerned at the “one for one” resettlement mechanism that will be established to settle one Syrian refugee in a EU country for every Syrian returned to Turkey.
It is of serious concern that this mechanism contemplates the return of Syrians to Turkey. Syrians are prima facie entitled to international protection and would likely fall within one of the grounds of international protection of the EU Qualification Directive.
It would therefore be unlawful under EU law to return them to Turkey.
Full text and additional information on the content of the deal available here.
Contact
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Massimo Frigo, Legal adviser, Europe Programme, massimo.frigo(a)icj.org
