EIN Civil Society Briefing May 2024 – Bulgaria, Ireland and Azerbaijan

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On the 31st of May 2024, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1501st Committee of Ministers Human Rights Meeting which will be held between 11th – 13th June 2024. The event took place in person in Strasbourg, and was facilitated by Ioulietta Bisiouli, EIN Director. 

The briefing focused on the following cases:

 

The Miroslava Todorova v. Bulgaria case concerns the disciplinary sanctioning of a judge, who had criticised the Supreme Judicial Council (SJC) and the executive, as well as government policies on judicial independence and actions in the context of public concerns about corruption. The European Court of Human Rights ruled that the sanctions (reduction in salary and dismissal from office) violated her freedom of expression (Article 10) and were intended to penalise and intimidate her for her criticism, also breaching Article 18 in conjunction with Article 10. The Court highlighted the disproportionate nature of the sanctions and their chilling effect on the judiciary. 

The Bulgarian Helsinki Committee (BHC) recalled the main disciplinary proceedings taken against Judge Todorova and provided an overview of the Government’s insufficient actions. In particular, the BHC noted the existence of other cases of disciplinary sanctions against magistrates as a form of workplace harassment, the need for clearer rules on remuneration of judges, as well as the lack of a holistic approach to the judicial reform and the threat posed by the government’s resignation, as highlighted in its last Rule 9.2 communication. 

 

Recommendation for the implementation of the Miroslava Todorova v. Bulgaria case 

The Bulgarian Helsinki Committee formulated the following recommendations for the implementation of the Miroslava Todorova v. Bulgaria case, requesting the Committee of Ministers to: 

  1. Examine the implementation of this case together with Pengezov v. Bulgaria (no. 66292/14), as both cases present systemic problems of independence of the judiciary in Bulgaria;  

    And to call on the authorities to: 

  2. Pursue a thorough judicial reform that preserves the constitutional amendments of December 2023 and protects judiciary from undue influence;  

  3. Ensure that evidence on undue influence over magistrates, including judges and the judicial authorities, is adequately examined and taken into consideration;  

  4. Ensure that protection of freedom of expression of judges is an integral part of the judicial reform in Bulgaria; 

  5. Introduce effective guarantees against undue influence on the SJC, in line with the CM recommendation in its decision of June 2023; 5.1. Introduce a mechanism for protection against harassment in the workplace, which would allow for timely protection against abuse of powers of disciplinary bodies against judges;  

  6. Remove the provisions that allow judges to be stripped of additional remuneration in cases of pending disciplinary proceedings against them from the SJC Rules for Determination of Additional Remuneration of Judges as a legal basis for harassment;  

  7. Ensure that violations of the Code of Ethical Conduct for Judges and the Code of Ethical Conduct of Prosecutors and Investigators are removed from the new Judicial Act as grounds for disciplinary proceedings; ensure that the two Codes are in line with the recommendations of the Venice Commission and the Consultative Council of European Judges. 

 
 

The Khadija Ismayilova v. Azerbaijan group of cases concerns violations of the rights of an investigative journalist in Azerbaijan who exposed corruption involving the President’s family. In 2012, after refusing to stop her reporting despite threats, videos of her intimate moments, secretly recorded in her bedroom, were posted online, and newspapers accused her of anti-government bias and immorality. The European Court of Human Rights found that the authorities failed to protect her privacy and journalistic freedom, and inadequately investigated the incidents, violating Articles 8 and 10. This case has been pending for more than five years. 

Media Defence highlighted in particular the failure of the authorities in carrying out effective criminal investigation in the acts committed against Ms. Ismayilova, the negative developments creating an unfavourable environment for journalists, as well as the government failure to abide by the request of international bodies – notably the Committee of Ministers and the Venice Commission - to update the Media Law in order to guarantee freedom of expression. 

 

Recommendation for the implementation of the Khadija Ismayilova v. Azerbaijan 

In light of this grim situation, Media Defence formulated recommendations on individual and general measures that would guarantee the effective implementation of the judgment. 

Recommendations on Individual measures

1. Conduct the investigation in respect of the interference with Ms Ismayilova’s private life in a manner that is consistent with international human rights standards and the findings of the Court in the case Khadija Ismayilova v. Azerbaijan; 

2. Immediately and comprehensively take such action as will ensure that all private content relating to Ms Ismayilova that was the subject matter of the cases Khadija Ismayilova v. Azerbaijan and Khadija Ismayilova v. Azerbaijan (no. 3), not least the details disclosed by the prosecutor in the context of the criminal investigation, be permanently removed from online sources without delay;  

3. Take steps to ensure Ms Ismayilova is not hindered in her work or day to day life, including by lifting the travel ban and ensuring her ability to continue her journalistic activities without interference. 

Relevant Documents: 

Recommendations on General measures 

4. Disclose, in a complete, transparent and comprehensive manner, all decisions and authorisations for the use of Pegasus spyware and other digital surveillance measures against journalists and investigate, prosecute and punish those responsible, as required with a view to ensuring non-repetition of the violation established by the Court under Article 18 in conjunction with Article 5 of the Convention; 

5. Recalling Recommendation CM/Rec(2022)4 of the Committee of Ministers to member States on promoting a favourable environment for quality journalism in the digital age as well as a positive obligation of the State to:  

  1. Create a favourable and enabling environment for carrying out journalistic activities; 

  2. Take immediate steps in order to effectively guarantee the freedom of expression and safety of journalists in Azerbaijan, including by ending the deprivation of liberty and discontinuing the criminal prosecution of independent journalists in Azerbaijan under trumped-up charges; lifting the travel bans and other sanctions imposed on journalists in connection with those criminal investigations; and allowing independent news outlets, including Toplum TV, to continue reporting;  

  3. Investigate in a manner compliant with the requirements of the Convention all cases involving unlawful conduct against journalists perpetrated in the last three years, and to provide to the Committee all relevant information on legal proceedings and their results; 

  4. Establish and implement a specific action plan for the capacity-building of the judiciary in respect to ensuring the balance between the right to respect for private life and the right to freedom of expression, in accordance with the Court’s caselaw; e. And amend the domestic legislation, including the Media Law, on the basis of the Venice Commission’s recommendations;  

6. Given the dire situation for media workers in Azerbaijan, and the ongoing crackdown on independent media, to schedule the case for examination again in December 2024, and to instruct the Secretariat of the Committee to prepare an interim resolution if no progress is demonstrated by authorities. 

O’Keeffe v. Ireland 

The O'Keeffe v. Ireland case involves the Irish State's responsibility for the sexual abuse of a nine-year-old by a lay teacher in a National School in 1973. The Court ruled that Ireland failed to protect the applicant from abuse by delegating school management to non-state actors without effective state oversight, directing complaints away from state authorities (substantive violation of Article 3). Additionally, the Court found that domestic remedies were ineffective in addressing the State's failure to protect (violation of Article 13 with Article 3). 

The presentation of the case reminded permanent representations to the Council of Europe of the timeline of the O’Keeffe case from the early litigation at the national level to the ECtHR judgment, and of IHREC’s engagement with the implementation process at the national and international level, including the Committee of Ministers. 

IHREC explained that the Irish Government’s choice to implement the ECtHR’s judgment on the provision of an effective remedy by establishing an Ex Gratia, a non-statutory scheme of redress payments created fundamentally unfair barriers to victims of sexual abuse as they impose pre-conditions to eligibility. Such barriers notably include the instituted and discontinued legal proceedings, the proof of a prior complaint and the compliance with the Statute of Limitations. 

Ms. O'Keeffe’s presence in Strasbourg for the occasion provided a victim-oriented perspective on the consequences of the ineffectiveness of the reforms taken so far. Her intervention was a poignant reminder of the ongoing struggle for justice for the hundreds of adults who experienced the same violations as her during their childhood. 

 

Recommendation for the implementation of the O’Keeffe v. Ireland 

Faced with an apparent lack of commitment to effectively and fully implement this 10-year-pending case on part of the Irish authorities, the O’Keeffe v. Ireland case requires rigorous and urgent monitoring, as a vulnerable and ageing population remains without an effective remedy as directed by the ECtHR in O’Keeffe v. Ireland a decade ago. IHREC therefore called on the Committee of Ministers to ‘trigger up’ this case from standard to enhanced supervision, and to call on the Irish government to adopt a redress scheme without discriminatory and arbitrary pre-conditions.