Sep 19, 2016 | Advocacy, Non-legal submissions
The ICJ today expressed concern at the UN for the independence of the judiciary, human rights, and the rule of law in Turkey, highlighting measures taken by the government, almost immediately after a failed coup in July, to suspend or dismiss thousands of judges and prosecutors.
The statement, which was delivered in General Debate on country situations, at the UN Human Rights Council in Geneva.
The statement read as follows:
The International Commission of Jurists (ICJ) wishes to draw the Council’s attention to the crisis of the rule of law in Turkey, and its serious consequences for the protection of human rights.
Within hours of the failed coup attempt in July, the Government initiated a purge of the judiciary on an unprecedented scale.
At least 3,300 judges and prosecutors have been dismissed or suspended, and hundreds have been arrested, including members of the High Council for Judges and Prosecutors.
Many of these measures appear to be arbitrary and fail to respect the right to a fair hearing before an independent authority.
These actions have done severe damage to the already fragile independence of the judiciary in Turkey, and threaten the right to a fair trial.
They represent a dramatic escalation of the attack on judicial independence that was already underway before the attempted coup, documented in an ICJ report published in June.
State-of-emergency decrees further undermine protection of human rights.
Periods for pre-trial detention have been extended and detainees’ confidential access to lawyers has been restricted. There are credible reports of ill-treatment of detainees, and of harassment of lawyers representing them.
The ICJ recalls that certain rights, including the prohibition on torture or other ill-treatment, and essential elements of the prohibition of arbitrary detention and right to a fair trial by an impartial tribunal, can never be derogated from, even in the most serious states of emergency.
The ICJ urges Turkey to take measures to restore the rule of law and ensure respect for human rights under the state of emergency.
The statement may be downloaded in PDF format here: hrc33-oralstatement-gditem4-turkey-2016
Jul 21, 2016 | News
The ICJ urges Turkish authorities to fully respect the rule of law and human rights under the recently declared state of emergency.
The ICJ is concerned that yesterday’s declaration of a state of emergency could further exacerbate the ongoing attack on institutions and professions that are guardians of the rule of law in Turkey, including the judiciary, the media and academia.
The ICJ reiterates its concern at the ongoing purge within the judiciary that led to the suspension of 2,745 judges and the arrest of hundreds.
Since then, Turkish authorities have summarily suspended, dismissed or arrested more than 50,000 academics, judges, including military judges, and public officials.
The ICJ is concerned that many of these measures are arbitrary and unlawful.
“Turkey needs to respect the tenets of the rule of law and human rights law during the state of emergency,” said Wilder Tayler, ICJ Secretary General.
“There are human rights that can never be restricted even in a state of emergency, notably 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,” he added.
“The current allegations of torture and ill-treatment of detainees and arbitrary arrests already point to serious violations of human rights. Widespread arrests and suspensions of judges, which began before the declaration of any state of emergency, threaten the right to a fair trial,” Tayler further said.
“The state of emergency must not be used as a means to subvert the rule of law and human rights.”
The ICJ remains concerned at President Erdoğan’s statements that he would allow for a reinstatement of the death penalty.
The ICJ firmly opposes the death penalty under any circumstances, and its reintroduction in Turkey which would also be incompatible with Turkey’s obligations under the European Convention on Human Rights and the Second Optional Protocol to the International Covenant on Civil and Political Rights.
Contact
Róisín Pillay, Director, ICJ Europe Programme, t: +32 476 974263 ; e: roisin.pillay(a)icj.org
Massimo Frigo, Legal Adviser, ICJ Europe Programme, t: +41 22 979 38 05 ; e: massimo.frigo(a)icj.org
Background information
The Council of Ministers, chaired by President Recep Tayyip Erdoğan, declared yesterday a three-month state of emergency throughout the whole territory of Turkey in accordance with article 120 of the Turkish Constitution.
The declaration must be ratified by the National Assembly. He has not yet announced what specific measures will be introduced.
Turkey is a party to many human rights treaties, including the European Convention on Human Rights and the International Covenant on Civil and Political Rights.
Under these treaties, the declaration of a state of emergency must remain within the strict boundaries of the law, in particular constitutional and international law.
Any measures derogating from them must be strictly necessary to meet a threat the life of the nation.
Certain human rights obligations cannot be derogated from even under a state of emergency. All rights must continue to be respected, although lawful derogating measures may restrict their scope of application.
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
May 6, 2015
Summary During the period under review, killings due to excessive use of force by security officers and killings of members of vulnerable groups persisted. Some measures taken by the State, including a draft law that would increase the powers of the police to use...
