Nov 30, 2016 | Advocacy, News, Non-legal submissions
European Union Member States must ensure that a new effort to standardise counterterrorism laws does not undermine fundamental freedoms and the rule of law, a group of international human rights organisations said today.
Amnesty International, the European Network Against Racism (ENAR), European Digital Rights (EDRi), the Fundamental Rights European Experts (FREE) Group, Human Rights Watch (HRW), the International Commission of Jurists (ICJ) and the Open Society Foundations (OSF) are warning that the overly broad language of the new EU Directive on Combating Terrorism could lead to criminalising public protests and other peaceful acts, to the suppression of the exercise of freedom of expression protected under international law, including expression of dissenting political views and to other unjustified limitations on human rights. The directive’s punitive measures also pose the risk of being disproportionately applied and implemented in a manner that discriminates against specific ethnic and religious communities.
The groups call on EU Member States to ensure that implementation of the directive in national law includes additional safeguards to guarantee compliance with regional and international human rights obligations. These safeguards are especially important to ensure that any new laws passed, which will remain in place for years to come, cannot be used abusively by any government, including any that may be tempted to sacrifice human rights and due process in the name of pursuing security.
‘States must effectively address the threat of terrorism. But the EU has rushed to agree a vaguely worded counterterrorism law that endangers fundamental rights and freedoms,’ said Róisín Pillay, Europe Programme Director at the ICJ. ‘Time and again we’ve seen governments adopt abusive counterterrorism laws without assessing their effectiveness, and then implement them in ways that divide and alienate communities. We worry this directive will reinforce this trend and leaves too much leeway for governments to misuse the directive to violate rights.”
The groups also noted that the legislative process for adopting this directive lacked transparency and opportunity for critical debate. There was no impact assessment of the proposal, negotiations moved forward without parliamentary-wide review of the text, and the proposal was rushed through behind closed doors and without any meaningful consultation of civil society.
Despite the inclusion of a general human rights safeguarding clause and repeated caution from our organisations the final text fails to fully protect human rights within the EU:
• The directive repeats the EU’s already overly broad definition of ‘terrorism,’ which permits states to criminalise, as terrorism, public protests or other peaceful acts that they deem ’seriously destabilise the fundamental political, constitutional, economic or social structures of a country or an international organisation.’
• Significantly, the directive requires states to criminalise a series of preparatory acts that may have a minimal or no direct link to a violent act of terrorism, and may never result in one being committed. For example the offences of participating in a terrorist group, travelling or receiving training for terrorist purposed are not adequately defined. Unless these broadly outlined offences are subject to careful drafting and strong safeguards in national law, they are likely to lead to violations of rights, including the right to liberty and freedoms of expression, association, and movement.
• The directive criminalises the public distribution of messages, including messages that ‘glorify’ terrorist acts, if the distribution is intentional and causes a danger that a terrorist offence may be committed. However, such a low threshold likely to lead to abuse if not limited as the UN recommends ‘to incitement that is directly causally responsible for increasing the actual likelihood of an attack’. The directive should have incorporated this language to avoid unjustified interference with freedom of expression.
We welcome the directive’s protection of activities of recognised humanitarian organisations. However we remain concerned that the protection does not expressly extend to all individuals providing medical or other life-saving activities that international humanitarian law (IHL) protects during times of armed conflict.
States should take the directive as an opportunity to reassess their counterterrorism laws, policies and practices and engage with civil society and other stakeholders. We welcome the European Commission’s commitment to formally include civil society organisations in their activities to support transposition of the directive.
Contact:
Roisin Pillay, ICJ Europe Director, at roisin.pillay(a)icj.org or +32 2 734 84 46
eu-press-release-flawed-counterterrorism-directive-2016-eng (download the statement)
Sep 22, 2016
The ICJ intervened today before the European Court of Human Rights in a case of extradition of a Kyrgyz national of Uzbek ethnicity to his country of origin, where he could be at risk of torture or ill-treatment.
The International Commission of Jurists (ICJ) intervened in the case of Shavkatbek Salyzhanovich Rakhamanov v. Russia.
In its submissions, the ICJ analysed the legal framework governing extraditions from the Russian Federation to Central Asian States, in particular Kyrgyzstan, as well as Russia’s extradition practice, including through the use of diplomatic assurances. These submissions aim to assist the Court in assessing the compliance of this law and practice with the European Convention on Human Rights (ECHR) and, in particular, with its procedural non-refoulement obligations.
The ICJ concluded that the analysis of the law and practice reveals a number of critical human rights deficits.
The ICJ submitted that the lack of respect for the procedural aspect of the principle of non-refoulement, the consequent ineffectiveness of domestic remedies in this regard, in the Russian Federation, and the abysmal record of Kyrgyzstan in upholding its obligation to respect and protect the prohibition of torture or other ill-treatment mean that extraditions from the Russian Federation to Kyrgyzstan entail a high risk of violations of both substantive and procedural aspects of the principle of non-refoulement.
russianfederation-icj-amicusbrief-rakhmanov-ecthr-legalsubmission-2016 (download the third party intervention)
Sep 19, 2016
The ICJ intervened today before the European Court of Human Rights in a case of extradition of an Uzbek national to his country of origin where he could be at risk of torture or ill-treatment.
The International Commission of Jurists (ICJ) intervened in the case of S.U. v. Russia.
In its submissions, the ICJ analysed the legal framework governing extraditions from the Russian Federation to Central Asian States, in particular Uzbekistan, as well as Russia’s extradition practice, including through the use of diplomatic assurances. These submissions aim to assist the Court in assessing the compliance of this law and practice with the European Convention on Human Rights (ECHR) and, in particular, with its procedural non-refoulement obligations.
The ICJ concluded that the analysis of the law and practice reveals a number of critical human rights deficits.
The ICJ submitted that the lack of respect for the procedural aspect of the principle of non-refoulement, the consequent ineffectiveness of domestic remedies in this regard, in the Russian Federation, and the abysmal record of Uzbekistan in upholding its obligation to respect and protect the prohibition of torture or other ill-treatment mean that extraditions from the Russian Federation to Uzbekistan entail a high risk of violations of both substantive and procedural aspects of the principle of non-refoulement.
RussianFederation-ICJ-AmicusBrief-S.U.-ECtHR-legalsubmission-2016 (download the third party intervention)
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.
