EIN Civil Society Briefing March 2024 - Greece, Türkiye, Moldova and Italy

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On the 1st of March 2024, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1492nd Committee of Ministers Human Rights Meeting which takes place between 12th – 14th March 2024. The event was held in person in Strasbourg, and facilitated by Ioulietta Bisiouli, EIN Director.

The Briefing focused on the following cases:


The Nisiotis Group v Greece group of cases concern the inhuman and/or degrading treatment of the applicants on account of the poor conditions of detention of the applicants in overcrowded prisons in Greece (violations of Article 3). The findings in the cases in this group include: overpopulation in prisons; inadequate medical services in prison; deficiencies in infrastructure: lack of dinning place, inadequate ventilation, lack of toilet doors, inadequate heating, as well as the lack of an effective remedy in respect of the applicants’ complaints concerning the conditions of their detention (Article 13). 

Hellenic League for Human Rights highlighted major findings of the Convention for the Prevention of Torture (CPT) in respect of Greece:

  • Prison conditions and Overpopulation and Understaffing – untrained staff.

  • No effective complaints system.

  • Lack of a long-term policy and a strategic plan.

  • Inter-prisoner violence.

    Transfer of prisoners by police vehicles.

  • Ref: CPT report 2022  and CPT report 2023  

Hellenic League for Human Rights discussed current trends and obstacles:

  • Prison population is at 10,270. All closed prison establishments suffer from extreme occupancy that constantly exceeds maximum capacity.

  • Average occupancy of closed prisons: 120-160%

  • Average occupancy of open prisons: 35-60%

  • No social work and minimal to no use of monitoring bracelet 

Hellenic League for Human Rights addressed what the Greek government has done so far:

  • The Greek government announced the establishment of new prisons. The new prison of Drama is operational (only one wing).

  • A number of new staff was hired in 2023-2024.

  • A new domestic remedy was adopted in October 2022 [Art 6a of the Penitentiary Code].

… and what the Greek government has failed to do:

  • The recommendations addressed by the CPT are in most of the cases still not implemented.

  • The findings of the ECtHR as regards Art. 3 (overpopulation and material prison conditions) are not efficiently redressed.

  • The findings of the ECtHR as regards Art. 13 (domestic remedy) are not efficiently redressed.

Hellenic League for Human Rights raised the following concerns about ineffective implementation:

  • Overcrowding is still an enduring structural problem affecting a large number of detainees.

  • There is a high number of friendly settlements concluded between the Government and the applicants amounts to acknowledgment that prison conditions do not comply with Art. 3.

  • New provisions of the Criminal Code will cause serious increase of prison population.

  • The expected new prison establishments are not going to solve the problem of overpopulation (CPT 2022, paras. 13, 16).

  • No measures have been taken in order to redress inadequate transfers of prisoners by police vehicles.

  • No measures have been taken as regards disciplinary cells.

  • The domestic remedy introduced in October 2022 (Art. 6a Pen. Code) is not effectively implemented.

  • All 350 applications of Art. 6a have been rejected by the Court Councils. All relevant decisions were outdated.

  • Already, the Greek Ombudsman (2024) said that Art. 6a “is not an adequate measure to improve detention conditions when they amount to a violation of Art. 3 ECHR”.

The NGO requested the Committee of Ministers to ask the Greek authorities to:

  • Draft and enforce a genuine “Strategic plan” after dialogue with stakeholders setting a specific timetable, ensuring funding sources, and indicating specific sustainable measures for decongestion.

  • Start working with the most highly overpopulated prisons (Komotini, Korydallos, Ioannina, Volos, Nafplion, Tripoli, Chios). Implement alternative measures (social work) and expand rural prisons.

  • Guarantee regular allocation of funds for prisons: upgrading prison premises and staff. Not expanding closed prison places but ensuring more than 3 sq.m. of “free space to move” to each inmate.

  • Urgently reconsider criminal policy which has been adopted. Increasing sentences will result in extreme suffocation of the prison establishments.

  • Hire additional custodial trained staff and conduct regular training on security, crisis management, health issues etc, in relation to prison to all existing staff.

  • Reconsider implementation Art. 6A of the Penitentiary Code, as it has been proved that it can not offer guarantees as an effective means to redress prison conditions.

See slides for full briefing.

Relevant Documents

NGO Communications:

1492nd meeting (March 2024) (DH) - Rule 9.2 - Communication from an NGO (Hellenic League for Human Rights) (22/01/2024) concerning the case of NISIOTIS v. Greece (Application No. 34704/08) [anglais uniquement] [DH-DD(2024)101]

1428th meeting (March 2022) (DH) - Rule 9.2 - Communication from an NGO (Hellenic League for Human Rights) (27/01/2022) in the case of NISIOTIS v. Greece (Application No. 34704/08) [anglais uniquement] [DH-DD(2022)168]

1428th meeting (March 2022) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (Hellenic Action for Human Rights “Pleiades”) (31/01/2022) in the case of NISIOTIS v. Greece (Application No. 34704/08) and reply from the authorities (04/02/2022) [anglais uniquement] [DH-DD(2022)159]

1428th meeting (March 2022) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (Hellenic League for Human Rights) (13/01/2022) in the case of NISIOTIS v. Greece (Application No. 34704/08) and reply from the authorities (21/01/2022) [anglais uniquement] [DH-DD(2022)107]

CM Decisions:

1428th meeting (DH), March 2022 - H46-13 Nisiotis group v. Greece (Application No. 34704/08) [CM/Del/Dec(2022)1428/H46-13]

1390th meeting (1-3 December 2020) (DH) - H46-11 Nisiotis group v. Greece (Application No. 34704/08) [CM/Del/Dec(2020)1390/H46-11]

1324 meeting (DH) September 2018 - H46-8 Nisiotis group v. Greece (Application No. 34704/08) [CM/Del/Dec(2018)1324/H46-8]

The Manole and others v the Republic of Moldova case concerns concerns undue interferences with the right of freedom of expression of journalists, editors and producers working at the state television company Teleradio-Moldova on account of censorship and political control by the state authorities in the period 2001-2006. The Court found a violation of Article 10 arising inter alia from insufficient statutory guarantees of independence for the public broadcaster. It noted that the legislative framework had been flawed throughout, in that it did not provide sufficient safeguards against the control of Teleradio-Moldova’s senior management, and thus its editorial policy, by the political organ of the government.

The Court indicated under Article 46 that the Republic of Moldova was under a legal obligation to take general measures at the earliest opportunity to remedy the situation, including by undertaking legislative reform to ensure that the legal framework complies with the requirements of Article 10, which also takes into account the Committee of Ministers' Recommendation Rec(96)10 on the guarantees of the independence of public service broadcasting and the recommendations of the Council of Europe experts on the draft law on public service broadcasting in Moldova.

Independent Journalism Centre outlined the key facts and the rights violations of the case:

General Principles (Pluralism in Audiovisual Media)

  • Teleradio-Moldova (TRM) held a position of dominance (private TVs were too weak).

  • The authorities had the duty (positive obligation) to ensure: the public access to impartial and accurate information & diversity of political outlook; journalists & other professionals are not prevented from imparting info.

Interference with the applicants' right to freedom of expression:

  • Media employees – directly affected by the policy applied by their employer

  • Sanctions taken by an employer -> interference with freedom of expression

Conclusion on compliance with Article 10:

  • TRM enjoyed virtual monopoly over audiovisual broadcasting in Moldova.

  • The State failed to comply with its positive obligation.

  • The legislative framework was flawed (it did not provide sufficient safeguards against the control of TRM's senior management, and thus its editorial policy, by the political organ of the Government).

  • These flaws were not remedied when Law on TRM (2002) was adopted.

Independent Journalism Centre assessed the legislative framework in 2021:

  • Despite some positive preliminary findings (such as the criminalization of censorship), the law still allowed for a general tendency to favor (slightly) the Government.

  • Causes: Funding mechanism & indirect interference in the selection of Supervisory Body

  • In 2021, two main amendments had been enacted to the Code of Audiovisual Media Services

  • Amendments changed procedures for appointing and removing members of the NRA (Audiovisual Council), enabling its’ members to be appointed by Parliament, which also has discretionary right to reject the candidates. Furthermore, NRA (Audiovisual Council) members can be dismissed by Parliament, in case of finding "defective activity" or "improper performance of duties" or in case of rejecting of the annual activity report.

  • Amendments changed the procedures for appointing and removing members of the TRM's Supervisory Body and the General Director:

    • General Director to be appointed by Parliament at the proposal of the Supervisory Council (SC). Parliament given discretionary right to reject candidates.

    • Dismissal of General Director by Parliament, in case of finding “defective activity”, improper performance or non-performance of the duties.

    • Appointment of General Director by Parliament & CSOs. The Parliamentary Commission has the last word.

    • Dismissal of Supervisory Council if Parliament finds “defective activity”, improper performance or non-performance of the SC duties. Rejection of the annual activity report.

Updated Action Plan by Authorities (December 2023) and Independent Journalism Centre’s concerns:

Several general measures were presented by the authorities:

  • Draft Law no. 218 of 4 July 2023 amending the Code of Audiovisual Media Services and Draft Law on the Subsidy Fund.

    • These draft laws are unrelated to the implementation of the ECtHR judgment in the present case. The regulations do not extend their purview to encompass the public broadcaster or NRA.

  • The commitment of the Parliamentary Committee (PC) regarding the review of the relevant provisions of the Code of Audiovisual Media Services so as to secure the independence of the members of the Supervisory Council of TRM:

    • Independent Journalism Centre is a member of the Parliamentary Joint Working Group

    • The matter pertaining to the review of relevant provisions within the AMSC has not been deliberated within the agenda of the PC/PJWF

    • Requests made by the IJC to instigate efforts in this regard have yet to be acknowledged or acted upon

Independent Journalism Centre highlights the evidence on the general tendency to favor governing political forces:

  • Freedom House, Nations in Transit 2020: Moldova, April 2020: “The editorial independence of the public broadcaster TRM remains flawed. According to the new Code of Audiovisual Media Services, the members of TRM’s Board of Supervisors are to be appointed by the AC, which is highly politicized. Domestic monitoring organizations identified sporadic instances of biased coverage in TRM’s reporting.”

  • Monitoring Reports: OSCE/OHDIHR, November 2020 (TRM gave I. Dodon - former president of the Republic of Moldova - positive media coverage, while his opponent had neutral coverage. Election, Second Round); IJC, March 2021, April-September 2020

  • Recent (November - December 2022 and December 2023): a slight bias toward the governing party was observed in terms of news coverage frequency, including direct citations as sources; representatives of non-parliamentary political parties received limited attention in the news.

The 2021 legislative amendments are characterized by:

  • Flawed appointing/selection mechanisms for the NRA (Audiovisual Council), TRM's Supervisory Body and General Director

  • Flawed dismissing/revoking mechanisms for the NRA (Audiovisual Council) members, TRM's Supervisory Body and General Director

  • Direct subordination to the Parliament.

The Independent Journalism Centre asked the Committee to request Moldovan authorities to:

Darboe and Camara v Italy

The Darboe and Camara v Italy concerns the applicants placement in an adult migrant centre and the age-assessment procedure that ensued. In June 2016, the applicant, a Gambian national, arrived in Italy on makeshift vessels, and claimed asylum as unaccompanied minor. No information on how to initiate the relevant procedure had been provided to him and no request for international protection had been lodged in his case. After an initial placement in a centre for foreign unaccompanied minors he was transferred to an adult reception, overcrowded and lacking adequate facilities and healthcare, where a medical examination (wrist X-ray examination) concluded that he was an adult of eighteen years old. His stay in the adult reception centre lasted more than four months.

ASGI outline the key facts of the case & the Government’s recent Action Report to participants:

  • Unaccompanied minor placed in an adult reception center: overcrowded, lacking adequate facilities and healthcare, for more than 4 months. No guardian appointed, no information and access to asylum procedure.

  • Identified as adult based on wrist X-ray examination, without procedural safeguards.

  • Violations of:

    • Article 8: lack of procedural guarantees in age assessment procedure > no access to rights as unaccompanied minor.

    • Article 3: conditions and duration of stay in adult reception center.

    • Article 13 with 3 and 8: lack of remedy to complain about reception conditions and age assessment.



Government’s Action Report 2023 and communication January 2024 presented general measures:

  • Law 47/17 on unaccompanied minors (UAMs)

  • Increase of reception system’s capacity

  • National Plan against Human Trafficking

  • Law Decree 133/23 conv. Law 176/23 in response to emergency increase in migrants’ arrivals

  • Request for closure of the supervision.

ASGI highlights their concerns regarding General Measures:

Measures implemented do not prevent recurrence of systemic violations of Articles 3, 8 and 13, similar to Darboe and Camara case:

  • Limited implementation of Law 47/17 in practice

  • Law Decree 133/23 conv. Law 176/23 seriously worsened the legal framework regarding UAMs reception and age assessment > rights violations likely to increase.

Concerns about practices and new legislation have been expressed by the National Ombudsperson for the Rights of the Child, the Association of Juvenile Judges, UNICEF, Save the Children

Reception Conditions

  • 23,226 UAMs present in Italy on 31 December 2023 (Source: Ministry of Labour and Welfare)

  • Insufficient number of places in reception centers for UAMs with adequate standards: 750 places in governmental first reception centers for UAMs + 6,150 places in accommodation and integration centers for UAMs (Source: Government’s Communication).

  • 4,473 UAMs placed in first reception centers with standards seriously inadequate to ensure the rights of UAMs (hotspots, first reception centers for adults, emergency first reception facilities etc.), waiting to be transferred to adequate centers for UAMs, on 31 December 2023 (Source: Ministry of Labour and Welfare)

  • Law Decree 133/23 has introduced the possibility to place UAMs aged 16+ in adult reception centers:

    • pending the transfer to centers for UAMs, for up to 5 months

    • in dedicated sections, but no indications to avoid promiscuity with adults

    • no specialized staff and services for UAMs provided

  • The placement of UAMs in adult reception centers, that happened in practice but was forbidden by law until October 2023, is likely to increase

  • Widespread and increasing detention of UAMs in adult reception centers in inadequate conditions

    • with no legal basis and procedural guarantees (detention of UAMs forbidden by D.Lgs. 142/15, Art. 19, para. 4)

    • Hotspots and governmental reception centers in Lampedusa, Pozzallo/Cifali, Taranto, Crotone, Restinco 

  • In the adult reception centers and emergency first reception facilities monitored by ASGI, UAMs were in conditions similar to Darboe and Camara case:

    • inadequate material conditions, in some cases overcrowding and promiscuity with adults

    • no guardian appointed, no access to asylum procedure and legal support

    • no or limited access to health care, psychological assistance and education

    • lasting several months

    • serious stress in the children, exacerbated by deprivation of liberty

  • No remedy to complain about reception conditions has been introduced

  • Placement in inadequate reception centers also hinders identification of UAMs victims of trafficking > prevents implementation of National Plan against Human Trafficking

  • Three Rule 39 applications to ECtHR (October-December 2023):

    • UAM detained in adult reception center in Crotone for 5 months

    • UAM detained in adult reception center in Restinco for 2 months

    • UAM detained in a Police station in Rome for 6 days

  • In the three cases ECtHR decided interim measures: transfer to adequate reception center for UAMs

  • Increased influx of UAMs does not exonerate Italy from the respect of international human rights, and in any case no derogation from obligations under Article 3 is admissible

Age Assessment Procedure

  • Limited implementation of procedural safeguards established by Law 47/17: e.g. multidisciplinary teams have not been established in many areas

  • Law Decree 133/23 conv. Law 176/23 introduced an age assessment procedure derogating from most procedural safeguards established by Law 47/17:

    • no appointment of a guardian, access to a lawyer and informed participation

    • medical examination, no multidisciplinary approach

    • no judicial decision on age assessment

    • 5 days to lodge an appeal, without automatic suspension of proceedings resulting from identification as an adult

  • no access to an effective remedy and not consistent with the principle of presumption of minor age

ASGI provided their Recommendation to the Committee of Ministers and for Italian Authorities:

  • Considering the persisting and increasing systemic violations of Articles 3, 8 and 13, the Committee of Ministers should continue the monitoring procedure under enhanced supervision and all upon Italian authorities to:

    • Amend Law 176/23 provisions regarding the reception of UAMs in adult centers and the age assessment procedure derogating from the safeguards established by Law 47/17

    • Cease unlawful de facto detention of UAMs

    • Increase the capacity of adequate reception system for UAMs

    • Ensure that procedural safeguards in age assessment procedures established by Law 47/17 are respected in practice.

See slides for full briefing.

Relevant Documents:

NGO Communications

1492nd meeting (March 2024) (DH) - Rule 9.2 - Communication from an NGO (Association for Juridical Studies on Immigration (ASGI)) (31/01/2024) concerning the case of Darboe and Camara v. Italy (Application No. 5797/17) [anglais uniquement] [DH-DD(2024)149]

1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from an NGO (Association for Juridical Studies on Immigration (ASGI)) (06/11/2023) in the case of Darboe and Camara v. Italy (Application No. 5797/17) [anglais uniquement] [DH-DD(2023)1395]

The Öner and Turk v Türkiye, Işıkırık v Türkiye, Altuğ Taner Akçam v Türkiye, Artun and Güvener v Türkiye and Nedim Şener v Türkiye groups of cases concern unjustified and disproportionate interferences with the applicants’ freedom of expression on account of criminal proceedings for having expressed opinions that did not incite hatred or violence, and the consequent chilling effect on society as a whole. 

Hafiza Merkezi outlined the subject matter of the five groups and provided information on the legislative status of relevant provisions:

Öner and Türk group of cases

The Öner and Türk group concerns the unjustified conviction of the applicants for offences under the Anti-Terrorism Law (ATL) (mainly Article 6 § 2 - printing of statements made by a terrorist organisation - and Article 7 § 2 - propaganda in favour of an illegal organisation) or Articles 215 or 216 of the Criminal Code (praising an offence or an offender, or provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences).

  • Article 6 § 2 of ATL- printing of statements made by a terrorist organization

    • Amendment added in 2013:  “condoning, praising or encouraging methods [using] coercion, violence or threats”

  • Article 7 § 2 of ATL - propaganda in favour of an illegal organisation

    • Amendment added in 2013: “by justifying, praising or encouraging the use of methods constituting coercion, violence or threats”

    • Amendment added in 2019: “Expressions of thought that do not exceed the limits of reporting or for the purpose of criticism shall not constitute a crime”

    • No new amendment, continuing violations

  • Article 215 of CC - praising an offence or an offender

    • Amendment added in 2013: “…provided that there emerges an imminent and clear danger to the public order”

    • No new information provided

  • Article 216 of CC - provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences

    • No amendment

    • No information provided in the action plan

  • Article 6 § 1 of ATL - disclosing or publishing the identities of officials on counter-terrorism duties, or identifying such persons as targets

    • Ambiguous wording, increasing use against journalists and rights defenders

    • Previously examined before the ECtHR and the CM

Işıkırık group of cases

The Işıkırık group concerns Article 220 §§ 6 and 7 of the Criminal Code, which provide that anyone who commits a crime on behalf of an illegal organisation or who knowingly and willingly aids and abets an illegal organisation shall be sentenced as a member of that organisation. Based on these provisions, most of the applicants in this group of cases were sentenced to several years of imprisonment for membership of an illegal organisation for having, for example, peacefully participated in a demonstration called for by an illegal organisation, or expressed a positive opinion about such an organisation, without the prosecution having to prove the elements of actual membership.

  • Article 220 § 6 of the CC - committing an offense on behalf of an organization without being a member

    • Hamit Yakut pilot judgment of the Constitutional Court (2021) – not implemented by the Parliament

    • Annulment by the Constitutional Court (2023) – comes into force on 8 April 2024

    • Legislative proposal (currently before Parliament) offers no change.

  • Article 220 § 7 of the CC - aiding and abetting an organization willingly and knowingly without belonging to its structure

    • Amendment added in 2013: “by justifying, praising or encouraging the use of methods constituting coercion, violence or threats”

    • The Constitutional Court found it meets the legality requirement

    • No new amendment foreseen.

Altuğ Taner Akçam group of cases

The Altuğ Taner Akçam group deals with prosecutions under Article 301 of the Criminal Code (publicly denigrating the Turkish nation or the organs and institutions of the state, including the judiciary and the army), which the Court found not to meet the “quality of law” requirement in view of its “unacceptably broad terms”.

  • Article 301 of the CC - publicly denigrating the Turkish nation or the organs and institutions of the state, including the judiciary and the army

    • Amended in 2008: denigrating “Turkish nation” instead of “Turkishness”, lower sentences + authorization from Ministry of Justice required for investigation

    • The ECtHR found the provision does not meet the “quality of law” requirement since “its unacceptably broad terms result in a lack of foreseeability as to its effects” (Altuğ Taner Akçam v. Turkey, § 95)

    • Despite calls from the CM, no new amendment since the Taner Akçam judgment

Artun and Güvener group of cases

The Artun and Güvener group concerns criminal convictions for insulting public institutions, officials and the President under Articles 125 and 299 of the Criminal Code (the President, the Republic, police officers, tax inspectors etc.). The Court included indications under Article 46 that the violation stemmed from a problem with the drafting and application of Article 299 which afforded the Head of State privileged status or special protection vis-à-vis the right to convey information and opinions concerning him, and held that bringing the relevant domestic law into line with Article 10 would constitute an appropriate form of redress making it possible to put an end to the violation.

  • Article 125 of the CC – insulting

    • No new amendment 

  • Article 299 of the CC – insulting the President

    • No new amendment

    • Action plan argues that “no abolishment is required” and Ministry of Justice authorization required for prosecution functions as a filtering mechanism

    • latest CM decision calling for the abrogation of Article 299 

Nedim Şener group of cases

The Nedim Şener group focuses on the pre-trial detention of individuals, mainly journalists, without relevant and sufficient reasons, on serious charges based on their publications or speech. In one case in the grouo, the Court found inter alia that the applicant’s pre-trial detention was unlawful, since the offence with which he was charged, namely the dissemination of propaganda in favour of an illegal terrorist organisation, had - wrongly - been considered one of the offences listed in Article 100 of the Code of Criminal Procedure for which the reasons justifying the detention were established by legal presumption.

  • Article 100 of the Code on Criminal Procedure (Grounds for arrest)

    • Pre-trial detention used as a punitive measure and no concrete evidence sought

    • Lower courts even find Article 100 insufficient

    • CM called for the judiciary to “rely on concrete evidence justifying strong suspicion when placing individuals in detention”.


The NGO set out their main concerns regarding the implementation of these cases:

  • “Expressions of thought that do not exceed the limits of reporting or for the purpose of criticism shall not constitute a crime” - similar phrases added over the years had no positive impact.

  • Broad wording of provisions and arbitrary conduct of the judiciary.

    • Troubling approach associating any dissenting opinion with terrorism.

  • Circumventing provisions

  • Non-implementation of Constitutional Court judgments

    • Individual applications

    • Annulment decisions – Parliament is reluctant to make required legislative changes in a Convention compliant manner

MLSA presented the findings in their 2023 Trial Monitoring Report 2023:

Öner and Türk v. Türkiye: Terrorism charges are still the primary charge against freedom of expression in Türkiye.

  • Terror charges are the most frequent charge in freedom of expression cases by making up for almost half of all the charges - 103 cases.

  • Terrorist propaganda (Anti Terror Law – 7§2) is the second crime most often prosecuted in the report – 46 cases (%15).

  • The government introduced amendments in 2019 to the article but courts are still failing to differentiate between terrorist propaganda and news content.

  • Terrorist organisation membership (7§1) are the main charge in 10% of all cases.

  • Targeting the individuals involved in counterterrorism (Anti Terrorism Law – 6§1) is being used to circumvent the other provisions reviewed by the committee. It was charged 12 times in last period.

  • Terrorist organization membership (Anti Terrorism Law – 7§1) is being used to circumvent the other provisions reviewed by the Committee.

    • Evidence used in connection to these charges are mostly composed of news articles and social media posts.

    • It was used in almost 10 % of all freedom of expression cases.

    • In total, in 3 cases, 5 defendants were sentenced to 31 years, 3 months and 9 days in total.


    Işıkırık v. Türkiye: Annulled Article 220/6 of TPC is being reinstated and circumvented by Article 220/7.

    • Article 220/6 of TPC: committing a crime on behalf of a criminal organization without being a member

      • In one case, four journalists were sentenced to 11 years due to this charge

    • Article 220/7 of TPC: willingly aiding a criminal organization

      • In two freedom of expression cases, 32 defendants were sentenced to almost 103 years imprisonment on this charge.

    Nedim Şener v. Türkiye: Detention is used as a punishment mechanism in freedom of expression cases.

    • Number of detained journalists is misleading without context

    • Compared to last year the detained defendants increased by 150%

    • Journalist Dicle Müftüoğlu was imprisoned since April 2023 until February 2024 without her lawyer being allowed to make a defense statement in the first hearing. Her case was only composed of her journalistic activities. No evidence was produced during her detention.

    • 18 Journalists in Diyarbakır have been detained in June 2022, without an indictment being filed for 9 months. They were released after 13 months of detention.

MLSA and Hafiza Merkezi provided their Recommendations to the Committee of Ministers to:

  • Continue to examine the execution of the judgments in these case groups regularly and under enhanced procedure;

  • Examine and address the increasing use of interchangeable criminal provisions;

  • Instruct the Secretariat to draft an interim decision if no tangible progress is made or detailed statistics are not provided by the next review.

    The NGOs called on Turkey to:

  • Amend its definition of terrorism in the Anti-Terrorism Law in a way that is narrowly construed and compliant with Convention standards;

  • Repeal or substantially amend Articles 125, 215, 216, 314 of the Criminal Code, and Articles 6 and 7 of Anti-Terrorism Law, particularly by addressing their overbroad, vague, and unforeseeable wording;

  • Abolish Articles 220 § 6, 220 § 7, 299 and 301 of the Criminal Code which fail to fulfill the legality criteria, and closely monitor the legal proposals on Article 220 § 6 as the Committee of Ministers;

  • Submit detailed and separate statistical information covering last 5 years of the application of different Articles causing freedom of expression violations;

  • Take tangible steps to ensure that the Anti-Terrorism Law and the Criminal Code are not interpreted in a broad manner by the judiciary, that pre-trial detention decisions are not used as a punitive measure, and that Constitutional Court judgements are promptly implemented by all judicial and administrative bodies;

  • Stop targeting, harassing and intimidating journalists and HRDs by subjecting them to judicial and administrative measures.

See slides for full briefing.

Relevant Documents:

NGO Communications

1492nd meeting (March 2024) (DH) - Rule 9.6 - Reply from the authorities (22/02/2024) following a communication from NGOs (Truth Justice Memory Center (Hakikat Adalet Hafıza Merkezi) and others) (30/01/2024) concerning the Altug Taner Akcam, Artun and Guvener, Isikirik, Nedim Sener, Oner and Turk groups of cases v. Turkey (Applications No. 27520/07, 75510/01, 41226/09, 38270/11, 51962/12) [anglais uniquement] [DH-DD(2024)222]

1492nd meeting (March 2024) (DH) - Rule 9.2 - Communication from NGOs (Truth Justice Memory Center (Hakikat Adalet Hafıza Merkezi) and others) (30/01/2024) concerning the Altug Taner Akcam, Artun and Guvener, Isikirik, Nedim Sener, Oner and Turk groups of cases v. Turkey (Applications No. 27520/07, 75510/01, 41226/09, 38270/11, 51962/12) [anglais uniquement] [DH-DD(2024)142]

1492nd meeting (March 2024) (DH) - Rule 9.2 - Communication from an NGO (Human Rights Association (İnsan Hakları Derneği)) (24/01/2024) concerning the cases of Altug Taner Akcam, Artun and Guvener, Isikirik, Nedim Sener and Oner and Turk groups v. Turkey (Applications No. 27520/07, 75510/01, 41226/09, 38270/11, 51962/12) [anglais uniquement] [DH-DD(2024)122]

1492nd meeting (March 2024) (DH) - Rule 9.2 - Communication from an NGO (Media and Law Studies Association (MLSA)) (25/01/2024) concerning the cases of Altug Taner Akcam, Artun and Guvener, Nedim Sener and Oner and Turk groups v. Turkey (Applications No. 27520/07, 75510/01, 38270/11, 51962/12) and Işıkırık v. Turkey (41226/09) [anglais uniquement] [DH-DD(2024)121]

CM Decisions

1459th meeting (DH), March 2023 - H46-28 Öner and Türk group (Application No. 51962/12), Nedim Şener group (Application No. 38270/11), Altuğ Taner Akçam group (Application No. 27520/07), Artun and Güvener group (Application No. 75510/01) and Işıkırık group (Application No. 41226/09) v. Turkey [CM/Del/Dec(2023)1459/H46-28]

1428th meeting (DH), March 2022 - H46-36 Öner and Türk group (Application No. 51962/12), Nedim Şener group (Application No. 38270/11), Altuğ Taner Akçam group (Application No. 27520/07) and Artun and Güvener group (Application No. 75510/01), Işıkırık group (Application No. 41226/09) v. Turkey [CM/Del/Dec(2022)1428/H46-36]

EIN Civil Society Briefing November 2023 - Hungary, Türkiye, and Georgia

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On the 27th of November 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1483rd Committee of Ministers Human Rights Meeting which takes place between 5th – 7th December 2023. The event was held in person in Strasbourg, and facilitated by Ioulietta Bisiouli, EIN Director.

The Briefing focused on the following cases:

  • Baka v Hungary concerns the lack of access to a court as regards the premature termination of the applicant’s mandate as President of the Supreme Court, which also led to a violation of his right to freedom of expression, presented by Erika Farkas, Legal Officer at the Hungarian Helsinki Committee.

  • Selahattin Demirtaş (No. 2) v Türkiye concerns the unjustified detention of the applicant without reasonable suspicion that he had committed an offence, with the ulterior purpose of stifling pluralism and limiting freedom of political debate. The case was presented by Ramazan Demir, Legal Representative of the applicant.

  • Identoba and others v Georgia concerns the lack of protection against homophobic attacks during demonstrations, presented by David Javakhishvili, International Litigation Lawyer at GYLA, and Toby Collis, Lawyer at EHRAC.


The Baka v Hungary case concerns the premature termination, via ad hominem legislative measures, of the applicant’s (President of the former Hungarian Supreme Court) term of office. The termination was found to have violated his right of access to a court as guaranteed by Article 6 § 1 because of the absence of judicial review. The Court found that these measures had been prompted by the views and criticisms expressed by the applicant on issues of public interest (planned major reform of the judicial system) and had violated Article 10 as they had not pursued any legitimate aim linked to the judicial reform at issue, nor had the measures been necessary in a democratic society.


The Hungarian Helsinki Committee discussed the lack of a remedy against removal and the judicial reform of 2023, setting out general measures required:

  • Providing guarantees for procedural fairness in cases involving the removal of judges

  • Ensuring that measures leading to the removal of judges will be open to effective review

The NGO also addressed the government’s excuse for non-execution:

“those measures which were criticised and put under scrutiny in the case of Baka, all resulted from a one-time constitutional reform” - this excuse is not valid

In 2023, there is still no remedy against removal:

  • The chief justice can be removed from office without legal remedy by 2/3 majority of the Parliament

  • The decision on impeachment is political and not subject to judicial remedy

The Hungarian Helsinki Committee also outline repeating patterns of political pressure on the judiciary:

  1. Removal of judge Baka through ad hominem legislation

  2. Removal of senior judges by forced early retirement via legislative acts

  3. Election of new Kúria President through ad hominem legislation

  4. Removal of a lower-court judge from the bench (case of judge Szabó) after she turned to the CJEU

  5. Possibility of impeaching the Kúria President without judicial remedy

  6. Overruling judicial decisions

The NGO provided comments on the Judicial Reform of 2023:

Hungary passed a judicial reform in May 2023

  • To fulfill undertakings towards the European Union

  • A possibility not taken to implement the Baka judgment

  • No new rules on the impeachment procedure, still no remedy

  • New rules on the eligibility and election of the Kúria President and Vice-president

  • More guarantees against undue interference by court administration

Hacking the requirement of excluding re-election of the Kúria President

  • The Kúria President cannot be re-elected, but can remain in office for an indefinite period

  • Undermines the whole reform regarding the status of the Kúria President

The Hungarian Helsinki Committee also discussed the freedom of expression violation and the ongoing chilling effect on judges:

A New Kúria President was elected in 2020 through ad hominem legislative acts of constitutional rank, without former experience as judge and against the objection of the National Judicial Council. The UN  Special Rapporteur criticised this as “an attack against the independence of the judiciary in violation of the principle of separation of powers”, while the EC Rule of Law Report noted it was “not in line with European standards”.

The Chilling Effect

The chilling effect preventing judges from speaking out publicly against measures undermining the independence of the judiciary is caused by:

  • National measures (smear campaigns, political attacks, legal measures, abusive lawsuits).

  • Adopted and/or applied with the aim to dissuade or deter natural persons from fulfilling their professional duties.

  • Aiming at creating a self-censorship.

Since 2017, the Committee has called on the Hungarian authorities to fully guarantee and safeguard judges’ freedom of expression, to take measures to lift and countervail the chilling effect, and to evaluate the domestic legislation regarding guarantees against undue interference. The Hungarian Helsinki Committee emphasized that none of these expected measures were taken, and that the situation has not been addressed but rather aggravated.

Furthermore, smear campaigns against judges have continued, with the same pattern, in several waves:

  • Target: judges as members of the National Judicial Council (NJC)

  • Method: discrediting members of the NJC as judges

  • Aim: discouraging judges from speaking out

    Smear attacks continue even during the NJC elections.

The new Kúria President has had an active role in the silencing of judges, having:

As regards the New Code of Ethics for Judges adopted by the NJC, it significantly extends the freedom of expression of judges, especially with respect to criticising legislation. However, the Kúria President challenged the new Code before the Constitutional Court requesting its annulment and questioning the legal authority of the NJC to adopt the Code. The proceedings are still pending.

The Hungarian Helsinki Committee called on the Committee of Ministers to:

  1. Continue examining the case under enhanced procedure

  2. Take into account the changed context of the execution

  3. Require legislative changes

    • to exclude political pressure through the Kúria President

    • to remove the possibility of prolongation of the mandate of Kúria President by political minority

    • to guarantee freedom of expression of judges in accordance with ECtHR judgments

  4. Require Hungarian authorities to refrain from

    • public critique of judicial decisions

    • legislative steps overruling judicial decisions

    • smear campaigns against judges

  5. Evaluate the domestic legislation regarding guarantees against undue interference

See slides for full briefing.

Relevant Documents

NGO Communications:

1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee (HHC)) (05/10/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)1245]

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from NGOs (Amnesty International and Hungarian Helsinki Committee) (26/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)157]

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Association of Hungarian Judges (MABIE)) (27/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)156]

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Res Iudicata - Association of Judges for Social Awareness) (24/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)145]

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (European Association of Judges (EAJ)) (18/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)116]

1428th meeting (March 2022) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee) (24/02/2022) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2022)286]

CM Decisions:

1459th meeting (DH), March 2023 - H46-11 Baka v. Hungary (Application No. 20261/12) [CM/Del/Dec(2023)1459/H46-11]

1428th meeting (DH), March 2022 - H46-14 Baka v. Hungary (Application No. 20261/12) [CM/Del/Dec(2022)1428/H46-14]

The Selahattin Demirtaş (No. 2) v Türkiye case concerns the arrest and pre-trial detention of, and criminal proceedings against, the applicant, a member of the National Assembly and one of the leaders of the Peoples’ Democratic Party (HDP, a pro-Kurdish opposition party).

The applicant’s legal representative, Mr. Ramazan Demir reminded the participants of the key facts of the case:

  • Mr Selahattin Demirtaş, who was at the time one of the co-chairs of and a member of parliament for the Peoples’ Democratic Party (HDP) was placed in pre-trial detention since 2016 on account of allegations that his speeches and statements incited acts of violence between 6-8 October 2014. He was not released after judgment.

  • The case was referred to the Grand Chamber, and he was placed in pre-trial detention again under new investigation related to events between 6-8 October 2014. According to the Grand Chamber judgment delivered in December 2020: 

    • The second pre-trial detention decision was a continuation of the first pre-trial detention decision. 

    • The applicant was detained with political motives under Article 18.

    • Mr. Selahattin Demirtaş must be released immediately.

Ramazan Demir outlined the Government’s arguments:

The Government’s Arguments

  • The applicant’s detention subject to the Court’s judgment has ended;

  • The current detention falls outside the scope of the present application;

  • New charges, evidence and allegations (i.e. witness and anonymous witness statements) were in substance different from those examined by the Court in its judgment;

  • The necessary individual measures have been taken.

The Government alleges that Mr Demirtaş’s continued detention, on the basis of a new charge, amounted to a new fact, raising a new problem, one that had not been examined by the Court. However:

  • The charges against the applicant have not changed in substance';

  • Witness/anonymous witness statements have not contained any substantially new facts capable of justifying a new suspicion and the substance of these statements had been based on facts that were similar or even identical to those that the Court had already examined in the Demirtaş v. Türkiye (no. 2) [GC] judgment;

  • The witness statements:

    • Are contradictory, inconsistent and false,

    • Their content and accusations essentially concern the events of 6-8 October and that Demirtaş is a member of/executive for a terrorist organization';

    • Are added to the case file approximately 2.5, 3.5, 17, 29, 32 and 33 months after the pre-trial detention decision and are used as tools to keep the applicant in prison.

Ongoing judicial harassment against the applicant:

  • The 4 years and 8 months prison sentence in the second set of proceedings was used as a tool to prevent the applicant’s release and to prevent his participation in any election.

  • There have been 47 cases filed against the applicant, and 10 cases remain pending under different courts.

  • New indictment prepared for the dissolution of the HDP and the political ban on politicians including the applicant.

  • The Constitutional Court has not delivered any judgment for the application related to the second pre-trial detention of the applicant since 7 November 2019.

In terms of recommendations, Ramazan Demir requested the Committee of Ministers to:

  1. Request the Government of Türkiye to release Mr Demirtaş immediately;

  2. Request the Government of Türkiye to take measures compatible with the Grand Chamber judgment and to drop all the charges brought against the applicant together with the removal of all other negative consequences of the constitutional amendment;

  3. Urge the Constitutional Court of Türkiye to conclude, without delay and in line with the Grand Chamber judgment, the individual applications listed between paragraphs 23 and 25 of the applicant’s Rule 9.1 submission dated 17 May 2021;

  4. Underline that the continuing detention of Mr. Demirtaş constitutes a violation of Article 46 of the Convention on the binding nature of final judgments of the ECtHR which may trigger Article 46/4 of the Convention;

  5. Examine the applicant’s situation at each regular and human rights meeting of the Committee until such time that he is released;

  6. Invite the Secretary General of the Council of Europe, member states and international human rights organisations to raise the case and the ongoing judicial harassment faced by the applicant in diplomatic talks between members of the Council of Europe and Türkiye;

  7. Write a letter to the Minister of Foreign Affairs of Türkiye to urge the Government to fully execute the Grand Chamber judgment.

See slides for full briefing.

Relevant Documents

Applicant Communications:

1475th meeting (September 2023) (DH) - Rule 9.1 - Communication from the applicant (31/07/2023) in the case of Selahattin Demirtas v. Türkiye (no. 2) (Application No. 14305/17) [anglais uniquement] [DH-DD(2023)920]

1459th meeting (March 2023) (DH) - Rule 9.1 - Communication from the applicant (10/01/2023) in the case of Selahattin Demirtas v. Türkiye (no. 2) (Application No. 14305/17) [Anglais uniquement] [DH-DD(2023)65]

NGO Communications:

1483rd meeting (December 2023) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Türkiye Human Rights Litigation Support Project, HRW, ICJ, IFHR) (23/10/2023) in the case of Yuksekdag Senoglu and Others v. Türkiye (Application No. 14332/17) (Selahattin Demirtas (No. 2) group, 14305/17) and reply from the authorities (02/11/2023) [anglais uniquement] [DH-DD(2023)1326-rev]

1468th meeting (June 2023) (DH) - Rule 9.6 - Reply from the authorities (11/05/2023) following a communication from an NGO (Media and Law Studies Association (MLSA)) (14/04/2023) in the case of Selahattin Demirtas v. Türkiye (No. 2) (Application No. 14305/17) [anglais uniquement] [DH-DD(2023)589]

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Media and Law Studies Association (MLSA)) (14/04/2023) in the case of Selahattin Demirtas v. Türkiye (No. 2) (Application No. 14305/17) [anglais uniquement] [DH-DD(2023)518]

CM Decisions:

1475th meeting (DH), September 2023 - H46-38 Selahattin Demirtaş (No. 2) group v. Türkiye (Application No. 14305/17) [CM/Del/Dec(2023)1475/H46-38]

1468th meeting (DH), June 2023 - H46-33 Selahattin Demirtaş (No. 2) group v. Türkiye (Application No. 14305/17) [CM/Del/Dec(2023)1468/H46-33]

1459th meeting (DH), March 2023 - H46-26 Selahattin Demirtaş (No. 2) group v. Türkiye (Application No. 14305/17) [CM/Del/Dec(2023)1459/H46-26]

The Identoba and Others v Georgia group of cases concerns several violations regarding the lack of protection against homophobic attacks or religiously motivated attacks by private individuals during marches/meetings.

GYLA and EHRAC provided participants with a summary of the group of cases & action plans/reports:

The Identoba group is a collection of cases from Georgia concerning:

  • Degrading treatment of the applicants on account of abusive and humiliating police conduct, motivated by homophobic and/or transphobic hatred; and/or

  • Authorities’ failure to provide adequate protection against, and in some instances official acquiescence and connivance in, inhuman and degrading treatment inflicted by private individuals on LGBTI activists and Jehovah’s Witnesses; and/or

  • Absence of effective investigations into these facts, including lack of investigation into discriminatory motives, including issues of discrimination on LGBTI status, religious status (Jehovah’s Witness/ Muslim groups),

  • A number of cases in the group have been closed, but 3 remain open, and individual measures have been insufficient:

Summary of Action Plans/Reports:

  • The Government provided early Action Plans in 2016 - 2017, and annual Action Reports since 2018. An Action Report was submitted recently (for the December 2023 meeting) asking the Committee to end supervision.

  • The report outlines recent individual measures – in summary, investigations are ongoing and 2 persons have been charged in the Mikeladze case. No police officers have been charged or identified in the other cases. 

  • Regarding general measures, the Action Report emphasized:

    • Zero tolerance messages against hate crimes is a ‘priority’ and an ‘ongoing process.’

    • Authorities cooperate on the organisation of Pride events. However, it was not possible to hold the July 8, 2023 Tbilisi Pride event: “a particularly large number of counter demonstrators made it complicated to control them in a wide area.”

    • The investigations of attacks during previous marches are ongoing.

    • A department of human rights protection was set up and specialised investigation of hate crimes was developed through hate crime training (only specialised investigators/ prosecutors investigate hate crimes).

    • Collecting data: a memorandum was signed on data collection. Complete data for 2022 was published.

    • The National Human Rights Strategy was approved and adopted in 2023, and authorities are now working on an Action Plan.

GYLA and EHRAC outlined the status of individual measures:

Individual Measures

  • Aghdgomelashvili and Japaridze v. Georgia  (App. no. 7224/11)

    • To date, no individual has been determined charged or convicted.

    • Victims have not been granted adequate access to pertinent information or documentation.

    • The criminal responsibility of police officers will be excluded due to the expiration of the statute of limitations on December 15, 2023

  • WISG and Others v. Georgia  (App. no. 73204/13)

    • Not a single individual has been found criminally responsible or held to account.

    • Prosecutor declined request for the acknowledgment of all those interviewed as victims.

  • Mikeladze and Others v Georgia (54217/16)

    • No investigative activity took place between 2015 to 2021.

    • Criminal charges were brought against two former police officers.

    • For the remaining applicants: investigation ongoing and not yet granted victim status.

GYLA and EHRAC outlined developments pertinent to general measures:

General Measures: Zero-tolerance messages

  • Anti-LGBT sentiment and statements continue to form at the highest points of Government. The NGOs provided statements made by the Prime Minister as an example:

  • “March should not take place as it is unacceptable to the majority of the population”, then he followed up on this by saying “We have our traditions, rules and everyone should respect our rules and traditions. … I would also like to point out that, unfortunately, behind the organizers ... are revanchist, radical groups. In particular, the radical opposition led by Saakashvili. They are involved, absolutely, I declare this with full responsibility, that they are organizing this march.” - Prime Minister- Irakli Garibashvili

  • Shortly after, the angry mob started to attack journalists and offices of various NGOs.

GYLA and EHRAC highlighted the impact and chilling effect on freedom of peaceful assembly from these cases:

  • 5 July 2021 - Publicly organized violent attacks on journalists because of their support for LGBTQI

    • More than 50 journalists were beaten and some were hospitalized while covering a protest against a gay rights rally in Georgia's capital, Tbilisi;

    • Due to the large-scale aggression of violent groups, the “Pride March” was canceled;

    • None of the organizers of the hate groups have been charged;

    • No investigation has been initiated into the alleged violations of State itself.

  • In 2022, Tbilisi Pride decided not to hold a March of Dignity - Chilling Effect';

  • 8 July 2023 - At least 2000 anti-LGBTIQ+ individuals attacked the NGO Tbilisi Pride’s Pride Festival in Tbilisi, Georgia;

    • Tbilisi Pride had to cancel all the Pride-related events following the attack;

    • None of the organizers or participants of the hate groups have been charged.

The NGO highlighed deficiencies of the investigation of hate crimes and refusal of establishment specialized investigative unit:

  • The investigative units are not launching investigations.

  • The government refuses to initiate investigations with respect to the omissions of police officers and the negligence of MIA's high-ranking officials.

  • The prosecutor's office continues to refuse to grant victim status or involve victims.

  • The government has not established a specialized investigative unit.

  • Discriminatory motive is not included as an aggravating factor for administrative offences.

Results of impunity

  • Aleksandre Lashkarava, a cameraman severely beaten by members of a hate group, passed away soon after event. The investigation is still ongoing.

  • Some journalists have left the country, while others have left the profession.

  • Due to the physical injuries sustained, cameraman Ilia Tvaliashvili suffered permanent negative consequences on his body and is under restricted work.

  • The organizers of hate groups continue to publicly plan assaults on Pride events. None of them have been charged or detained.

  • The legal representatives of the victims do not even have access to the criminal case materials related to the organizers.

The National Human Rights Strategy and Action Plan

“The National Strategy for the Protection of Human Rights for 2022-2030 was adopted by the Parliament in March 2023  without including the needs of the LGBTI community”. - Public Defender of Georgia

GYLA and EHRAC concluded with their individual and general measures recommendations to the Committee of Ministers:

Individual measures

  • The responsible authorities should carry out effective, timely, independent investigations, including identification of police officers involved, and ensure that statute of limitations do not lead to impunity;

  • Authorities must reclassify the crimes commensurate with their seriousness; and

  • Authorities should grant victim status and adequate victim participation.

General measures

  • Authorities must create a specialized investigative unit capable of investigating the hate crimes;

  • Authorities must observe its positive obligation to protect LBGTQI persons at events from violence and effectively investigate these incidents, particularly those arising out of the violence on 5-6 July 2021, and 08 July 2023, and particularly the organisers of the events;

  • The Government must reconsider its official tolerance of the repetitive violent acts committed by organizers of hate crimes, and discontinue anti-LGTBQI sentiments;

  • Together with civil society actors, the State should establish the measures necessary to enable the safe and peaceful gatherings of LGBTQI activists and take preventive measures to deter violence, hatred and discriminatory attitudes and behaviour.

See slides for full briefing.

Relevant Documents:

NGO Communications:

1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from an NGO (Tolerance and Diversity Institute (TDI)) (30/10/2023) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) [anglais uniquement] [DH-DD(2023)1370]

1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from NGOs (Social Justice Center and European Human Rights Advocacy Centre) (19/10/2023) in the case of Mikeladze and Others v. Georgia (Application No. 54217/16) (Identoba and Others group, 73235/12) [anglais uniquement] [DH-DD(2023)1310]

NHRI Communications:

1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender of Georgia) (19/10/2023) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) [anglais uniquement] [DH-DD(2023)1311]

CM Decisions:

1451st meeting (DH), December 2022 - H46-13 Identoba and Others group v. Georgia (Application No. 73235/12) [CM/Del/Dec(2022)1451/H46-13]

1419th meeting (DH), 30 November- 2 December 2021 - H46-14 Identoba and Others group v. Georgia (Application No. 73235/12) [CM/Del/Dec(2021)1419/H46-14]

EIN Civil Society Briefing September 2023: Hungary, Bulgaria, Greece & the UK

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On the 15th of September 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1475th Committee of Ministers Human Rights Meeting on 19th – 21st September 2023. The event was held in person in Strasbourg, facilitated by Ioulietta Bisiouli, EIN Director.

The Briefing focused on the following cases:


The Ilias and Ahmed v. Hungary case concerns authorities’ failure to comply with their procedural obligation to assess the risks of ill-treatment before removing the two asylum-seeking applicants to Serbia in 2015. The Court found in particular that “there was an insufficient basis for the government’s decision to establish a general presumption concerning Serbia as a safe third country”, that “the expulsion decisions disregarded the authoritative findings of the UNHCR as to a real risk of denial of access to an effective asylum procedure in Serbia and summary removal from Serbia to North Macedonia and then to Greece, and that the authorities exacerbated the risks facing the applicants by inducing them to enter Serbia illegally instead of negotiating an orderly return.

Hungarian Helsinki Committee provided participants with the legislative developments and challenges:

Positive changes:

  • The “safe transit country” inadmissibility ground according to Section 51(2)(f) of the Asylum Act (found against EU law by the CJEU) was abolished as of 1 January 2023.

Remaining gaps:

  • There has been no reassessment of the legislative presumption of Serbia being a „safe third country” carried out by the Hungarian authorities.

  • Section XIV (4) of the Fundamental Law, which provided the constitutional foundation for the 'safe transit country' concept remains to be in force.

  • Sections 5 (1a) and (1b) of Act LXXXIX of 2007 on the State Border legalizing summary removals to Serbia remain to be in force.

  • Section 5 (1b) of Act LXXXIX of 2007 on the State Border extending the above legalization to the whole territory of the country under the state of crisis due to mass migration remains to be in force.

Hungarian Helsinki Committee continued to outline the embassy system and the summary removals to Serbia:

The Government’s communication, 26.6.2023:

„The legislative presumption of “safe third country” for Serbia has not been applied by the asylum authority and the national courts since the introduction of the transitional asylum procedure as of 26 May 2020 (“Embassy procedure”)”

C-823/21, Commission v. Hungary, 22.6.2023:

In the respective infringement procedure the CJEU ruled that:

By making the possibility, for certain third-country nationals or stateless persons present in its territory or at its borders of making an application for international protection subject to the prior submission of a declaration of intent at a Hungarian embassy situated in a third country and to the grant of a travel document enabling them to enter Hungarian territory, Hungary has failed to fulfil its obligations under the Asylum procedures directive.

Summary removals to Serbia

Legislation:

Section 5(1)(b) of the Act LXXXIX of 2007 on State Borders that regularized collective expulsions to Serbia remain to be in force.

Refusal to implement judgments:

  • R.N. v. Hungary 4.4.2023.

  • H.K. v. Hungary, 22.9.2022.

  • Shazad v. Hungary, 8.10.2021.

  • C-808/18, Commission v. Hungary,17.12.2020.

Hungarian Helsinki Committee highlighted the impacts of the war against Ukraine on the case:

Late January 2023, the practice at the Hungarian/Ukrainian border has changed. According to the new rules only those are granted entry:

  • who have the necessary and valid travel documents (e.g. visa, passport);

  • who are not under the effect of an entry ban;

  • •those third-country nationals who did not enter Ukraine after 24 February 2022.

As a result, third-country nationals (non Ukrainians) who have returned to Ukraine after the war are refused entry to Hungary. The non-refoulement examination bares serious shortcomings.

Hungarian Helsinki Committee provided their recommendations to the Committee of Ministers:

The HHC respectfully recommends the CM to continue examining the execution of the judgment.

Recommendations to the Government of Hungary:

  • Conduct a new adequate assessment of all existing sources on the situation of asylum seekers in Serbia.

  • Amend Section 51(2)(e) and Section 51/A of the Asylum Act to ensure that the “safe third country” concept is applied and expulsion is ordered only if the third country takes back the asylum seeker in an orderly manner.

  • Repeal the legislation legalizing summary removals and until it is done refrain from the unlawful practice on continuing these removals.

  • Take measures to ensure effective access to territory and procedure for those seeking protection at the borders and on the territory of Hungary.

  • Refrain from unlawful refusals at the Hungarian-Ukrainian border.

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee) (01/08/2023) in the case of Ilias and Ahmed v. Hungary (Application No. 47287/15) [anglais uniquement] [DH-DD(2023)960]

CM Decisions

1443rd meeting (DH), September 2022 - H46-11 Ilias and Ahmed group v. Hungary (Application No. 47287/15) [CM/Del/Dec(2022)1443/H46-11]

The Safi and Others v. Greece case concerns the ineffective investigation into a coastguard operation in 2014 in the Aegean Sea during which eleven relatives of the migrant applicants who were aboard a fishing boat drowned. The major shortcomings identified by the Court are the following: lack of investigation into the allegedly flawed translations of applicants’ statements which constituted an integral part of the case file; insufficient participation of the applicants in the criminal proceedings, who were not granted access to the recordings between the coastguards and to data from an island radar which were of significant evidentiary value; there were lines of further investigation which were clearly necessary but which were not pursued by the prosecuting authorities thus compromising their ability to shed full light on the circumstances of the sinking.

Mr Minos Mouzourakis from Refugee Support Aegean and Mr Stephanos Stavros, Human Rights Lawyer, outlined the key elements and context of the case:

  • Boat with 27 persons towed by Hellenic Coast Guard sank off Farmakonisi on 20 January 2014. 11 people drowned

  • Archived criminal proceedings against Coast Guard officials in the incident, as well as military officers subjecting applicants to degrading treatment upon arrival

  • Court awarded non-pecuniary damage

    Violations found by the Court

  • Substantive violation of Article 2: delayed notification of JRCC, ill-equipped vessel without rescue equipment

  • Procedural violation of Article 2: deficiencies in interpretation and transcript of testimonies, denial of access to evidence, dismissal of submissions without due reasoning

  • Substantive violation of Article 3: degrading stripping and bodily search of survivors

Safi v. Greece in context – the Pylos shipwreck and beyond

  • Sinking of a trawler with an estimated 750 passengers in the Greek SAR zone on 14 June 2023. Only 104 survived.

  • CommDH called for effective investigation & highlighted that Pylos is “not an isolated incident” à explicit link of Pylos with Safi v. Greece

  • European Ombudsman opened own-initiative inquiry into Frontex role, including in the Pylos case

  • 40 survivors lodged criminal complaint before the Piraeus Naval Court Prosecutor on 13 September 2023 – preliminary investigation pending

    vBeyond Pylos: UN Special Procedures August 2023 concerns regarding failure to provide prompt & effective assistance to people in distress and call for investigation into Coast Guard alleged breaches of the right to life

Refugee Support Aegean and Mr Stephanos Stavros note the substantial and procedural obligations of the case to participants:

Substantive obligations under Article 2 ECHR: Coast Guard operations

Indicative cases

  • Farmakonisi 20 Jan 2014 - 11 dead - Safi v. Greece App No 5418/15 (Judgment)

  • Agathonisi 16 Mar 2018 - 16 dead - F.M. v. Greece App No 17622/21 (Communicated)

  • Pylos - 14 Jun 2023 - 600+ dead or missing - Pending domestic criminal proceedings

Key issues

  • Absence of interpretation services at the Coast Guard (JRCC, vessels) for effective communication

  • Delay in search and rescue

  • Absence of video-recording of Coast Guard rescue operations

  • Absence of adequate search and rescue equipment in deployed vessels

Conclusion: Safi v. Greece involves complex problems relating to the adequacy of resources, design and roll-out of Coast Guard operations at sea & on search and rescue

Procedural obligations under Article 2 ECHR: Effectiveness of investigations

(Coast Guard responsibility investigated by Piraeus Naval Court Prosecutor)

Indicative cases (others concerning sea and land)

  • Farmakonisi 20 Jan 2014 - Archived - Safi v. Greece App No 5418/15 (Judgment)

  • Pserimos 22 Sep 2014 - Archived - Alkhatib v. Greece App No 3566/16 (Communicated)

  • Symi 31 Aug 2015 - Acquitted before trial - Almukhlas v. Greece App No 22776/18 (Communicated)

  • Agathonisi 16 Mar 2018 - Complaint dismissed - F.M. v. Greece App No 17622/21 (Communicated)

  • Pylos 14 Jun 2023 - Pending preliminary examination

Key issues

  • Preliminary interrogation & initial evidence collection by Coast Guard officials

  • Piraeus Naval Court Prosecutor not promptly intervened

  • Limited number of witness testimonies

  • Deficiencies in interpretation

  • Deficiencies in inspections, use of available digital evidence etc.

Refugee Support Aegean and Mr Stephanos Stavros provide their conclusions & recommendations to the Committee of Ministers:

Conclusions

  • Violations occurred in January 2014 relevant through time: similar incidents e.g. in Agathonisi (2018), Pylos (2023)

  • Execution raises complex issues as regards the adequacy of resources, design and roll-out of Coast Guard operations at sea & on search and rescue

  • Assessment of investigations raises complex issues on institutional set-up (interrogation officials, prosecutors’ approach), adequacy of selection and modalities of witness examination, assessment of evidence et al.

  • Safi v. Greece should be transferred to enhanced supervision

Recommendations

  1. The regulatory framework governing Coast Guard operations in the area of border protection and search and rescue should be updated in full compliance with international, EU and national law and in particular Regulation (EU) 656/2014 and the Asylum Procedures Directive (2013/32/EU). Such a revision would ensure correct and sufficient guidance on how to assess distress phases, to safeguard the life and integrity of third parties on board in the management of incidents concerning refugees at sea, and to guarantee access to the asylum procedure.  

  2. Greek authorities should ensure sufficient and adequate interpretation services to enable effective communication of interested parties with EKSED, 112 and involved Coast Guard vessels.

  3. Coast Guard operations and vessel courses should be fully audio- and video- recorded, with a view to improving coordination, prevention of instances of ill-  

    treatment and effective investigation of complaints.

  4. Greek authorities should immediately cease practices endangering human lives at sea e.g. unreasonable use of firearms, push backs and abandonment  

    of people on life-rafts.

  5. The Prosecutor of the Naval Court of Piraeus should immediately intervene in cases involving the Coast Guard. Preliminary interrogations should not be  

    conducted by Coast Guard officers, in conformity with Circular 1/2023.

  6. Testimonies should be collected from all passengers, otherwise a substantial number, with an adequate, certified and independent interpreter in a  

    language they understand.

  7. Inspections, expert reports and forensic reports should be independent and reliable in line with international standards. Digital evidence, where available,  should be used in the criminal investigation of incidents.

  8. Survivors of shipwrecks should immediately be referred to adequate living conditions and support services, and should not be detained. The authorities  

    should immediately register missing persons, collect DNA samples and issue certificate of missing persons to their relatives.

Please see the slides for the full Briefing.

Relevant Documents

NGO Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from NGOs (AIRE Centre, HIAS Greece, and Equal Rights Beyond Borders) (18/08/2023) in the case of Safi and Others v. Greece (Application No. 5418/15) [anglais uniquement] [DH-DD(2023)1024]

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from NGOs (Refugee support Aegean (RSA) and Stiftung PRO ASYL) (17/08/2023) in the case of Safi and Others v. Greece (Application No. 5418/15) [anglais uniquement] [DH-DD(2023)1023]

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Hellenic League for Human Rights) (23/06/2023) in the case of Safi and Others v. Greece (Application No. 5418/15) [anglais uniquement] [DH-DD(2023)814]

Umo Ilinden and Others v. Bulgaria 

The Umo Ilinden and Others v. Bulgaria case concerns the unjustified refusals of the courts, between 1999 and 2015, to register associations the aim of which is to achieve the recognition of and protect the interests of "the Macedonian minority in Bulgaria”. The refusals were based on considerations of national security, protection of public order and the rights of others (goals aiming at “the recognition of the Macedonian minority” and alleged separatist ideas) and on the constitutional prohibition on associations pursuing political goals, as well as failure to meet formal legal requirements.

Mr Krassimir Kanev from the Bulgarian Helsinki Committee outlines to participants the underlying reasons for the refusals:

  • Persistent denial of the Macedonian identity at the national level

  • Fear that recognition will bring its spread

  • Contempt of “ethnic apostasy”

  • Denial, restriction and persecution of an ethnic group brings assimilation

  • Recognition of a Macedonian association would lead to a recognition of a Macedonian minority in Bulgaria

  • Recognition will amount to a betrayal of the victims of the wars of “national unification”

Bulgarian Helsinki Committee provide participants with developments with the Macedonian groups’ dynamics:

  • Proliferation of the Macedonian groups

  • Renouncing radicalism of demands

  • Persistent attempts to obtain recognition and to register associations

  • Attempts to use all available or imagined opportunities

  • Activism more pronounced among the senior age groups

Bulgarian Helsinki Committee highlight to participants the trends in justifications of refusals:

First phase: Macedonian groups - threat to national security and territorial integrity

  • Example (Case Description): “The refusals were based on considerations of national security, protection of public order and the rights of others (goals aiming at “the recognition of the Macedonian minority” and alleged separatist ideas) and on the constitutional prohibition on associations pursuing political goals, as well as failure to meet formal legal requirements.”

Second phase: overt discrimination. Macedonians – threat to the “unity of the nation”

  • Example (SCA on the refusal to register SRMVCT in June 2021): “Such an ethnic group does not exist as a separate and established group of people with religious, linguistic, cultural or other characteristics that distinguish them from the rest of the population. In these circumstances, the establishment of an association with the goals and means specified in its constitutive act, essentially pursues the artificial creation, imposition and advertising of the idea of the existence among a certain part of the Bulgarian population of ethnic identity other than the national one…”

Third phase: mixed reasons

  • RA and the regional courts – overt discriminatory reasons based on the goals and the Macedonian identity of the members

  • SCA – disregards entirely the reasons of the lower court and justifies refusals by non-compliance with formal legal requirements. E.g.:

    • Improper regulation of representation;

    • Lack of regulation of property relations upon termination of membership;

    • Lack of regulation of for-profit activities.

Bulgarian Helsinki Committee note recent developments and their conclusions to participants:

  • No Macedonian organisation registered in Bulgaria

  • Continued refusals on grounds identical to those, which the ECtHR considered and systematically rejected in its previous judgments

  • New ground – Macedonian identity as a threat to the “unity of the nation”

  • Formal legal requirements at the last instance

  • At present:

    • At least 17 cases of refusals to register pending before the ECtHR;

    • 1 refusal to register pending before the HRC;

    • At least 2 cases of violations of freedom of assembly pending before the ECtHR;

    • 1 registered organisation dissolved in 2020.

  • Government’s action plans – mostly reports on series of unsuccessful attempts at registration

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Bulgarian Helsinki Committee (BHC)) (20/07/2023) in the case of UMO Ilinden and Others v. Bulgaria (Application No. 59491/00) [anglais uniquement] [DH-DD(2023)931]

CM Decisions

1451st meeting (DH), December 2022 - H46-8 Groupe Organisation Macédonienne unie Ilinden et autres c. Bulgarie (Requête n° 59491/00) [CM/Del/Dec(2022)1451/H46-8]

1428th meeting (DH), March 2022 - H46-7 United Macedonian Organisation Ilinden and Others group v. Bulgaria (Application No. 59491/00) [CM/Del/Dec(2022)1428/H46-7]

McKerr Group v. the United Kingdom

The McKerr Group v. the United Kingdom case concerns investigations into the deaths of the applicants’ next-of-kin in Northern Ireland in the 1980s and 1990s, either during security force operations or in circumstances giving rise to suspicion of collusion in their deaths by security force personnel.

Committee on the Administration of Justice provided an overview of the case to participants:

  • CAJ is principal human rights NGO in Northern Ireland and affiliated to EIN and FIDH.

  • 1998 Good Friday Agreement guarantees incorporation of ECHR into Northern Ireland law with remedies for victims and direct access to courts.

  • 2014 Stormont House Agreement provided for new transitional justice mechanisms.

  • McKerr Group: ‘Package of Measures’ & peace process reforms: 

    • Inquests, Civil Proceedings. 

    • Police Investigations, independent ‘called in’, police ombudsman investigations 

  • Learning also from Package of Measures as to safeguards needed in transitional justice mechanisms to ensure effective and independent investigations in Northern Ireland.

Committee on the Administration outlined to participants the Northern Ireland Troubles (Legacy and Reconciliation) Bill:

Core elements of Bill:

  • Closing down existing ‘Package of Measures’ permanently

  • Amnesty: the ‘Conditional Immunities Scheme’

  • Establishing the Independent Commission for Reconciliation and Information Recovery (ICRIR)

  • Abandonment of UK-Ireland Stormont House Agreement 2014

  • Ministerial amendments to Bill published evening after June Committee of Ministers meeting - Commissioner Mijatović amendments leave “the fundamental problems with the Bill intact.”

UK Ministers: Objectives of the Bill:

Secretary of State for Northern Ireland Brandon Lewis MP: 

  • •In introducing Bill stated purpose was to end investigations into veterans, who would no longer have to fear ‘a knock at the door’ (UK Parliament, 24 May 22, vol 715, Col 115)

  • •Stated that due to the Bill “no longer will our [military] veterans be hounded and hauled in for questioning about events that happened decades ago.” (Conservative Home, 9 June 2022)

  • Military Veterans Minister: Johnny Mercer MP spoke of  ‘vexatious’ investigations, prosecutions’  (UK Parliament debate on Bill,  June 2023).

  • •Ministers have implied lawyers, human rights groups, judges, prosecutors, independent institutions and officers have created a ‘pernicious counter narrative’ and are ‘rewriting history’.

  • •By contrast UNSR Pablo DeGrieff  UN Doc: A/HRC/34/62/Add (2016) found Northern Ireland impunity gap was in ‘apparent selectivity’ in prosecutions during the conflict.

  • •CAJ-academic study found key arguments deployed that legacy cases are ‘imbalanced’ against the security forces “are neither factually nor legally accurate and lack intellectual credibility.”

Committee on the Administration shared developments on the closure of Civil Litigation and Legacy Inquests:

Closure of Civil Litigation

575 civil cases against military alone (June 2022), estimated over 1000 in total.

Cases currently delivering significant truth recovery and reparations, examples:

  • Liam Holden [2023] NIKB 39, found to have been tortured by Army, posthumous damages for “waterboarding, hooding and threats to kill, malicious prosecution and misfeasance in public office” of approx. EUR €385,000. 

  • McParland March 2023, child witnessed sectarian killing on doorstep in 1994, court held police “turned a blind eye to Informant 1’s serious criminality” … and actively protected him “from any effective investigation and from prosecution”  despite admitted “involvement in previous murders and criminality.” EUR €100,000

  • Legacy Bill: closes down all Troubles-related civil litigation taken after May 2022.

  • Amendments to Bill to prohibit all claims relating to Interim Custody Orders (internment, regardless of when proceedings taken).

Closure of Legacy Inquests

  • Lord Chief Justice’s Five Year Plan of legacy inquests – 18 competed , 36 outstanding (16 at hearing)

  • Plus 10 new inquests also directed by Attorney General (state and non state actors).

  • Stormont House Agreement would have left inquest system intact.

  • Original bill closed inquests save those substantively commenced by May 2023.

  • Ministers amended Bill in Lords to close down more inquests, only those that have completed proceedings by May 2024 can proceed. 

  • Ministers’ complained coronial judges progressing inquests too ‘expeditiously’.

Legacy Inquests:

Northern Ireland’s ‘truth trials’

UK Command Paper preceding bill claims “the vast majority” of killings by the security forces were lawful. 

Majority of Inquests concerning State cases contradicting official truth: 

  • Stephen Geddis (aged 10), shot dead by British soldier on 30 August 1975, Coroner held (verdict 06.09.22) that the victim posed no threat, and the firing was not justified.

  • Thomas Mills, shot dead by British soldier in July 1972, Coroner held (verdict 13.05.22) that the soldier was not justified in opening fire and the force used was disproportionate to the threat perceived.

  • Pat McElhone, shot dead by British soldier on 7th August 1974, Coroner held (verdict 21.01.21) that the shooting cannot be justified.

  • Ballymurphy massacre, ten civilians shot dead by the British army in August 1971 (Francis Quinn, Fr Hugh Mullan, Noel Phillips, Joan Connolly, Daniel Teggart, Joseph Murphy, Edward Doherty, John Laverty, Joseph Corr, and John James McKerr.) Corner held (verdict 11.05.21) that the killings were unjustified.

  • Kathleen Thompson, shot dead by British solider on 6th November 1971. Coroner held (29.06.22) that the shooting was ‘unjustified.’

  • Leo Norney (17) shot dead by British soldier on 13 September 1975. Corner held (verdict 03.07.23) that Leo was ‘entirely innocent’ and that he had been deliberately killed by Paratrooper McKay.

Committee on the Administration provided insights into investigations & conditional immunities scheme:

PSNI, Call in, Ombudsman Investigations:

In relation to pre-1998 conflict related cases:

  • Bill will close down and prohibit from May 2024 all criminal Investigations by police, ‘call in’  and Police Ombudsman. Exemption permitting investigative reports to be produced after cut-off date, removed from the Bill by Ministerial amendment.

  • No transitional arrangement, unlike SHA.

  • Prohibition on investigations permanent – even after ICRIR ceases operations.

  • Police Ombudsman: 442 complaints; 167 allocated for investigation but only 69 anticipated for completion before May 2024. Amendments augmented prohibitions on Ombudsman investigating conflict-related human rights violations.

  • ‘Call In’ independent Police Team: Operation Kenova, Turma, Mizzenmast, Glenanne.

  • NI Police Legacy Investigations Branch (LIB): over 1,000 cases; 30 cases referred to prosecutors (most (Irish) republican and (British) loyalist armed groups). 

Conditional Immunities Scheme

  • Voted out by upper chamber of UK Parliament (House of Lords) but reinstated by lower chamber, House of Commons.

  • Government Amendments leave low subjective threshold of immunity intact.

  • The ICRIR must grant immunity to applicants who give information they themselves believe to be true. Applicants do not have to give any new information at all – former soldiers could rely on original statements with no legal standing.

  • No exemption for torture. Opposition introduced exemption for immunity for sexual offences, but investigations still prohibited.

  • Revoking immunity on basis of a fresh terrorist conviction added: but police will still be statute barred from investigating original offence, even after ICRIR ceases.

  • Ministerial amendments expressly incentivise applications for immunity by abolishing the ‘Early Release Scheme’ under Good Friday Agreement.

Committee on the Administration provided feed back on the ICRIR’s independence and effectiveness:

ICRIR Independence:

  • Committee of Ministers concerns regarding role of Secretary of State (SoS) in ‘establishment and oversight of ICRIR’.

  • Appointments: SoS appoints all Commissioners. Amendment that SoS to ‘consult’ re appointing Chief Commissioner-  but recruitment has already happened.

  • Budget and Oversight: SoS controls budget and provides all oversight of ICRIR.

  • Mandate: Sops can limit Commissioners’ terms and close ICRIR at any time.

  • Caseload: SoS extensive powers to shape caseload of ICRIR.

  • National Security + Veto: SoS can redact ICRIR reports to families.

  • Composition of investigators: departs from Ombudsman & Call-in practice.

ICRIR: Effectiveness

  • ‘Reviews’ can include criminal investigations with police powers but such powers of (search, questioning) will not be operable against a person who has immunity. 

  • Ministers rejected amendments requiring ICRIR ‘reviews’ to be ECHR compatible. 

  • Ministers rejected amendments to strengthen powers to compel disclosure of documents from public authorities.

  • ICRIR by contrast has broad ‘Supply of information’ powers to summons individuals subject to a £5,000 fine or even imprisonment for refusing to hand over a document, with no express safeguards (e.g. journalistic sources, legal privilege).

  • ICRIR has no control over its own caseload or final content of its reports.

Please see the slides for the full Briefing.

Relevant Documents

NGO Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Relatives for Justice) (23/08/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) [anglais uniquement] [DH-DD(2023)1032]

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Committee on the Administration of Justice) (02/08/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) [anglais uniquement] [DH-DD(2023)957]

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Malone House group) (31/07/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) [anglais uniquement] [DH-DD(2023)953]

NHRI Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NHRI (Northern Ireland Human Rights Commission) (04/07/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) [anglais uniquement] [DH-DD(2023)856]

1443rd meeting (September 2022) (DH) - Rules 9.2 and 9.6 - Communication from an NHRI (Northern Ireland Human Rights Commission) (08/08/2022) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) and reply from the authorities (22/08/2022) [anglais uniquement] [DH-DD(2022)856-rev]

CM Decisions

1468th meeting (DH), June 2023 - H46-41 McKerr group v. the United Kingdom (Application No. 28883/95) [CM/Del/Dec(2023)1468/H46-41]

1459th meeting (DH), March 2023 - H46-35 McKerr group v. the United Kingdom (Application No. 28883/95) [CM/Del/Dec(2023)1459/H46-35]

EIN Civil Society Briefing May 2023: Bosnia and Herzegovina and Romania

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On the 25th May 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1468th Committee of Ministers Human Rights Meeting on 7th – 9th June 2023. The event was held in person in Strasbourg, facilitated by Ioana Iliescu, EIN Law and Advocacy Officer.

The Briefing focused on the following cases:

  • The Sejdic and Finci v. Bosnia and Herzegovina case, which concerns ethnic-based discrimination on account of the ineligibility of persons not affiliated with one of the “constituent peoples” (Bosniaks, Croats or Serbs) to stand for election to the House of Peoples and the Presidency. This presentation was given by Chelsea Gonzalez, Legal Project Officer, from Minority Rights Group International.

  • The Cristian Teodorescu v. România group and Parascineti v. România judgment concern: a) ill-treatment in psychiatric hospitals due to overcrowding, poor sanitary and hygiene conditions, including the absence of an individual bed, and the impossibility to spend time outdoors due to staff shortages; and b) legislative deficiencies as regards the procedure and safeguards for involuntary placement in psychiatric hospital facilities and general failure of the competent authorities to apply this procedure. This presentation was given by Georgiana Pascu, Program Manager from the Centre for Legal Resources.

  • The N. v. România and R.D. and I.M.D. v. România cases concern: a) unlawful psychiatric confinement as security measures and deficiencies in the judicial review proceedings and b) the absence of a legal basis for compulsory administration of treatment to such patients. This presentation was given by Georgiana Pascu, Program Manager from the Centre for Legal Resources.

  • The Centre for Legal Resources on behalf of Valentin Campeanu v. Romania case concerns: a) deficiencies in the legal protection and medical and social care afforded to vulnerable persons; b) the ineffectiveness of criminal investigations into deaths of persons with disabilities in mental health institutions; and c) safeguards and remedies regarding placement in residential social care facilities and psychiatric hospitals. This presentation was given by Georgiana Pascu, Program Manager from the Centre for Legal Resources.

    Elisabeta Moldovan, self-representative and Co-president of the Ceva de Spus Association, made a statement regarding her personal experience of a placement in a mental health hospital, with translation support from Alina Ursoi, psychologist and support staff member at the UnLoc Association.

Sejdic And Finci v. Bosnia and Herzegovina

The Sejdic and Finci v. Bosnia and Herzegovina case concerns discrimination against the applicants on account of their ineligibility to stand for election to the Presidency of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (i.e. Bosniaks, Croats or Serbs) or due to their failure to meet a combination of the requirements of ethnic origin and place of residence (violations of Article 1 of Protocol No. 12).

Minority Rights Group International provided participants with explanations regarding the Dayton Accords and Electoral Quotas, explaining the effects of the quota system, which disenfranchises minorities, discriminates against constituent peoples living in ‘wrong’ entity and facilitates the trickling down of discrimination to local level.

Minority Rights Group International discussed the Council of Europe Commissioner for Human Rights Rule 9 Submission from April 2023, setting out the Commissioner’s primary concerns regarding the recent developments at national level:

  • “[N]o clarity as to what [the changes to the Constitution and electoral legislation] entail”.

  • Legislative reform discussions: “legitimate representation of constituent people”.

  • Special rights for constituent peoples, excluding minorities.

  • “Even if this only means preserving the existing situation, this implies that being just a citizen is considered to be of a lower status, as opposed to being a member of one constituent people, which would be contrary to the principle of non-discrimination.”

    The CoE Commissioner argues that the failure to execute these judgments is leading to a deterioration of situation in BiH, and to amplified ethnic tensions. The system based on ethnic discrimination leads to increased threats to stability; the rise of hate speech; the glorification of war criminals; and genocidal denial. Furthermore, she argues that:

  • “[F]ull elimination of ethnic discrimination from both the Constitution and the electoral legislation”.

  • “It is imperative that the authorities place focus on building a state based on the equality of citizens, rather than on further embedding ethnic discrimination in the Constitution and the electoral legislation.”

Minority Rights Group International outlined to participants the case’s current status of implementation:

  • There has been no progress in 14 years.

  • The discriminatory provisions remain in Constitution and electoral legislation.

  • There have been 4 general elections under discriminatory framework and 4 Interim Resolutions by CoM.

  • There has been no outreach to non-constituent minorities or the plaintiffs, and recent legislative reforms do not address implementation.

Minority Rights Group International set out their their current concerns regarding the case to participants:

  • The lack of outreach to non-constituent minorities to ensure changes from implementation

  • 2021 Interim Resolution (CoM), March decision (CoM) and BiH authorities do not reference participation of non-constituent minorities in legislative reform

  • Ongoing exclusion of minorities from bodies tasked with enacting reforms

Minority Rights Group International provided their recommendations, asking the Committee of Ministers to:

  • Appeal to Member States to request action to ensure implementation with judgments.

  • Issue an Interim Resolution stipulating that process of amending the Electoral Law and Constitution must be participatory and involve robust consultation of non-constituent minorities, which should address the Constitutional, Electoral Law amendments, judgment implementation, requesting:

    • Timeline for implementation with time for meaningful consultation of minorities

    • Representatives from minority groups named to any oversight body

    • Meaningful consultation of plaintiffs in Sejdić and Finci group of cases

    • Specific mechanisms to ensure minority and CSO participation

    • BiH to share draft amendments with CoM prior to adoption.


      Please see the slides for the full Briefing.

Relevant Documents:

The Parascineti v. România concerns the ill-treatment suffered by the applicant during his involuntary placement in the psychiatric unit of the Sighetu Marmaţiei Hospital between 5 and 13 July 2005, due to overcrowding, poor sanitary and hygiene conditions, including the absence of an individual bed, and the impossibility to spend time outdoors due to staff shortages (violation of Article 3).

Centre for Legal Resources România outlined the conditions in psychiatric hospitals in Romania to participants:

  • 16,073 psychiatric beds nationwide

  • 4 security (forensic) psychiatric hospitals

  • Chronic wards accommodate more than 8000 patients

Centre for Legal Resources România reminded participants of their findings of their visit to the institutions in 2019 & 202:

  • 8 residents locked in 6 cages

  • Tied with shirts and strips of cloth

  • Lack of specialized staff and significant underfunding

  • Situations with a high risk of injury, self-harm and aggression

Centre for Legal Resources România explained to participants the lack of adequate health care services and staff and Inefficient investigations of the causes of deaths in Botoșani:

  • 24 March 2023: An 87-year-old patient died in the hallway of the medical unit without anyone jumping to his aid.

    • On Thursday morning, around 5am, a nurse found him dead in the main hallway on the ground floor. Three hours earlier, a nurse had administered the treatment in a ward on the third floor - in the "Medical" section.

    • What happened to the patient in the meantime, no one in the hospital knows. The manager shrugs when asked when the old man left the ward

  • 24 May 2023: A man aged just 47, brought in to withdraw, died before doctors' eyes. They called an ambulance, but it was too late. The man was in ethanolic withdrawal at the psychiatric ward - acute ward.

  • 28 Nov. 22: patient died after choking on food

  • 15 June 2022: an 18-year-old patient stabbed himself in the chest with a knife. He had several admissions to psychiatrists. The ambulance with emergency doctors could not save him

Cristian Teodorescu v. România

The Cristian Teodorescu v. România case concerns the unlawful placement of the applicants in psychiatric hospitals, or in one case (Ulisei Grosu) the applicant’s arrest by police with a view to such placement, without compliance with the procedure prescribed by the Mental Health Act and without any justification relating to their mental health condition (violations of Article 5 § 1(e)).

CLR reminded participants of the main issues in the case:

  • Failure to comply with Mental Health Act procedure and placement without justification relating to mental health condition.

  • Failure to comply with the legal requirement to obtain consent for medical treatment.

  • Inconsistent knowledge among healthcare professionals about the relevant procedures.

The NGO provided an overview of the unlawful involuntary placements in psychiatric hospitals:

  • There is no mental health department within the Ministry of Health.

  • The Ministry of Health has not requested EU budget for the mental health community services (Cohesion Policy budget)

  • The latest communication (March 2023) from authorities does not refer to the living conditions and rights of persons in psychiatric hospitals.

  • No public data on involuntary placements in psychiatric hospitals and the transfers between social and psychiatric system

  • In 2018, CLR collected some data from several psychiatric hospitals through freedom of information requests (only some hospitals responded):

    • Out of 524 involuntary admissions, only 112 were referred to the courts for judicial review.

    • There was not even a single case in which court overturned the decision of involuntary placement.

    • 206 people involuntarily placed in psychiatric hospitals came from residential centers for people with disabilities.

    • There were 2139 "social cases”.

  • There is a lack of progress at national level.

  • The lack of community-based mental health and social care services leads to involuntary placements and to de facto involuntary placements, which are being used as measure of “first resort” instead of a measure of last resort (as Article 5 of the European Convention requires). This leads to an overload of the system of mental health hospitals and to overcrowding and low compliance with procedural guarantees.

  • There is no independent body with monitoring, control and sanctioning powers.

  • CLR’s cooperation protocol with the Ministry of Labour and Social Solidarity was recently rescinded due to reports and criminal complaints filed by CLR following abuses in social care private homes financed with local authority money.

CLR provided their recommendations, asking the Committee of Ministers to:

  • Urge the national authorities to provide a concrete action plan for the implementation of these judgments.

  • Increase the frequency of examination of these cases.

  • Instruct the Secretariat to prepare an interim resolution.

  • Request data on the number of patients with mental disabilities treated in emergency wards of county hospitals

  • Request the authorities to equip psychiatric wards with equipment for emergency medical interventions.

  • Request the authorities to:

    • Provide recent disaggregated statistics on non-voluntary admission procedures in psychiatric hospitals and units since 2018.

    • Adopt a concrete legislative framework on access to justice of non-voluntary hospitalizations and investigate the causes of deaths.

    • Urgently allocate of a concrete budget plan for the community psychiatry system.

    • Appoint a coordinator at government level for the execution of the obligations arising from the judgments of the ECtHR against Romania in the field of psychiatry and mental health.

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Centre for Legal Resources) (21/04/2023) in the cases of CRISTIAN TEODORESCU and PARASCINETI v. Romania (Applications No. 22883/05, 32060/05) [anglais uniquement] [DH-DD(2023)539]

CM Decisions

1377 meeting (DH) June 2020 - H46-28 Parascineti and Cristian Teodorescu group v. Romania (Applications Nos. 32060/05 and 22883/05) [CM/Del/Dec(2020)1377/H46-28]

1362 meeting (DH) December 2019 - H46-18 Parascineti and Cristian Teodorescu group v. Romania (Applications Nos. 32060/05 and 22883/05) [CM/Del/Dec(2019)1362/H46-18]

1265 meeting (September 2016) - H46-22 Parascineti group v. Romania (Application No. 32060/05) and group Cristian Teodorescu (Application No. 22883/05) / 1265e réunion (septembre 2016) - Parascineti c. Roumanie (Requête n° 32060/05) et groupe Cristian Teodorescu (Requête n° 2883/05) [CM/Del/Dec(2016)1265/H46-22]

N. v. Romania and R.D. and I.M.D. v. Romania

The N. v. Romania case concerns the psychiatric confinement of the applicant, who has been diagnosed with a psychiatric condition. Although the detention was first imposed in 2001 as a security measure during criminal investigations, the Court only examined the situation, as the complaints about the earlier period were out of time.

The R.D. and I.M.D. v. Romania case concerns the non-voluntary confinement of the applicants in a psychiatric hospital for the purpose of compelling them to undergo medical treatment and about the obligation to undergo that medical treatment.

CLR provided an overview of the main issues in the N v. Romania case:

  • Unlawful psychiatric confinement as a security measure for the purpose of compelling them to undergo medical treatment.

  • Measure imposed following criminal proceedings condemning the applicants to compulsory psychiatric treatment, based on medical reports of expertise dated 3 years before the date of confinement in the psychiatric hospital without proper examination by the domestic courts of the degree of social danger justifying the safety measure or of the degree of social danger of the criminal offense.

  • Absence of a legal framework concerning the obligation to undergo medical treatment: Criminal Code does not offer to people diagnosed with a psychiatric condition sufficient guarantees against arbitrariness as concerns the administration of medical treatment.

The NGO outlined the challenges of non-voluntary psychiatric confinement:

  • No legislative provisions to set clear limits on when and under what conditions a non-voluntary psychiatric confinement (as security measure) can be taken.

  • Many involuntary placement measures which are not legal, are arbitrary and unjustified.

  • Lack of safeguards: persons with mental health conditions who commit criminal acts without discernment and are placed in forensic psychiatric hospitals receive a “life sentence”.

  • On June 2020, 1,424 persons were admitted to psychiatric and security measures hospitals. Approximately 14% had a disability certificate (the majority having mental disabilities). 80% of the people admitted were reported as having a mental disability. However, without disability certificates they cannot receive procedural adaptations.

  • Inconsistencies between the relevant legislative provisions and the factual situation

    • Provisions of the Criminal Code in force (art. 109 and 110) stipulate that both the obligation to medical treatment and hospitalization are taken "until recovery or until an improvement is obtained that removes the state of danger" - in this situation the Romanian authorities have not yet identified a solution that is applicable to persons with intellectual disabilities.

    • Persons with intellectual or psycho-social disabilities under involuntary confinement security measures risk being detained for life. 

  • Medical confinement: there is no clear procedure applicable for the re-examination or changing of measures for medical confinement, as regards the periodicity of medical examinations. There is no legislative framework to ensure legal aid in this area.

  • No dedicated spaces and services for the needs of persons with mental health conditions who are currently detained in forensic psychiatric hospitals, and whose detention review would lead to their release.

CLR provided their recommendations, asking the Committee of Ministers to request the Romanian authorities to:

  • Adopt of a legislative framework to regulate in concrete terms the situation of persons subjected to security measures (involuntary confinements in forensic psychiatric hospitals and medical confinements) and the need for periodic reassessments, in order to ensure that they do not remain in psychiatric hospitals indefinitely.   

  • Enact a clear legislative framework to regulate the situation of persons subjected to security measures and to ensure legal assistance for persons with mental health conditions subjected to security measures (and all mental health institutions). 

  • Amend the Criminal Code to identify a solution applicable to persons with intellectual or psychosocial disabilities, for whom "the full recovery" is not possible, and to provide them with sufficient guarantees against arbitrariness in the administration of medical treatment. 

  • Carry out regular monitoring visits to forensic psychiatric hospitals and communicate the conclusions of the monitoring visits to the Committee of Ministers in order to have a close observation of the developments on the ground. 


Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Centre for Legal Resources) (21/04/2023) in the cases of R.D. and I.M.D., and N. v. Romania (Applications No. 35402/14, 59152/08) [anglais uniquement] [DH-DD(2023)538]

CM Decisions in N. v. România:

1428th meeting (DH), March 2022 - H46-23 N. v. Romania (Application No. 59152/08) [CM/Del/Dec(2022)1428/H46-23]

1411th meeting (DH), 14-16 September 2021 - H46-27 N. v. Romania (Application No. 59152/08) [CM/Del/Dec(2021)1411/H46-27]

1331 meeting (DH) December 2018 - H46-22 N. v. Romania (Application No. 59152/08) [CM/Del/Dec(2018)1331/H46-22]

The Centre for Legal Resources on behalf of Valentin Campeanu v. Romania case concerns the authorities’ failure to protect the right to life of Mr Câmpeanu, a young man of Roma origin, orphaned, HIV-positive and with “severe intellectual disability” (substantial violation of Article 2).

CLR outlines to participants the several human rights violations of the case:

  1. Authorities’ failure to protect the right to life of a young man, orphaned, HIV-positive and with “severe intellectual disability”.

  2. Ineffectiveness of the investigation and the court proceedings into his death 

  3. Lack in domestic law of a legal framework suited to the specific needs of people with mental disabilities and allowing for the examination of the allegations concerning the violation of Mr Câmpeanu’s right to life by an independent authority. The Court stated that Romania must adopt measures to ensure that “persons with mental disabilities in a situation comparable to that of Mr Câmpeanu are afforded independent representation, enabling them to have Convention complaints relating to their health and treatment examined before a court or other independent body”.

CLR provided information on recent developments on legal protections for vulnerable adults:

  • Law no. 140/2022 which regulates the protection measures for people with intellectual and/or psychosocial disabilities was enacted, but there are important concerns regarding its' implementation.

  • There are approx. 90.000 cases involving the judicial protection of ”incapable” adults, for which this law will be applied.

  • Concerns regarding the implementation Law no. 140/2022 :

    • Lack of training of the professionals working with persons with disabilities.

    • Methodology is hindering the process: high costs and expenses are not supported from the national health fund.

    • Lack of concrete and clear information regarding the mechanism for conducting medical and psychosocial evaluation reports.

    • The norm which states that the institution of the personal representative will be regulated by a special law has still not been drafted, thus persons in situations comparable with Valentin Campeanu remain without protection.

CLR discussed data on the effectiveness of criminal investigations into deaths in mental health institutions:

  • Data provided by the authorities refers to the number of suspicious death case files but not the number of deaths in institutions.

  • There is no information on the number of convictions

  • CLR provided data on deaths in mental health institutions in 2019:

    • 336 deaths in 67 psychiatric units with 8064 beds; out of which only 215 notification of deaths (54 of them to the Monitoring Council, 183 to Police and Prosecutors, 15 to other institutions).

    • Causes of death: Lung disease (73); Asphyxia (17); Heart disease (175); Tumors (7); Suicide (4); Other causes (60).

    • In 2022, there were 1029 reported deaths in social care homes.

  • Examples of ongoing similar cases: young woman with mental disabilities with broken femur for months at Zătreni social care home.

The NGO outlined challenges to the safeguards and remedies regarding placement in residential social care facilities and psychiatric hospitals:

  • The manner and extent to which its decisions can be appealed, the so-called “grey area of consent”

  • Non-transparent procedure of transfers between social homes to psychiatric units – social homes and back.

  • Lack of informed consent.

  • The Monitoring Council is still not fully operational (Law no. 8/2016).

CLR provided their recommendations, asking the Committee of Ministers to request the national authorities to:

  • Elaborate the law that regulates the institution of the personal representative and the provision of the necessary funds so that this can effectively contribute to access to justice for vulnerable persons and to the deinstitutionalization process;

  • Allocate the necessary budget for carrying out psychiatric and psychological assessments of persons in need of supported-decision measures (which are mandatory requested by the national courts).

  • Ensure, through the institutions responsible for the ongoing training of magistrates and lawyers, at least one training course per year in the field of adequate communication with persons with intellectual disabilities /or psychosocial disabilities. 

  • Allocate adequate resources for staff and logistics of the Monitoring Council so that the institution can ensure the effective representation of persons with disabilities in the defense of their fundamental rights and freedoms and ensure their access to justice.  

  • Establish proper collaboration with the human rights NGOs and self-representatives and allow unrestricted access to public and private residential social centers and hospitals or psychiatric wards so that the objective monitoring of the respect for the rights of persons with disabilities can be carried out.

  • Regulate and develop social services in the community and community psychiatry in order to effectively prevent the medical and social neglect of vulnerable patients in psychiatric hospitals and social care homes and to achieve the deinstitutionalization indicator foreseen in Law 7/2023, and ensure that sufficient funding is allocated to communities and local authorities to support these services and the implementation of Law no. 7/2023.  

  • Systematically collect and publish data on cases involving persons with disabilities by the responsible authorities (the National Union of Romanian Bar Associations, the Public Prosecutor’s Office, Courts of Appeal, the Monitoring Council, psychiatric hospitals and residential social care centres).

  • Develop concrete and standard complaint mechanisms accessible to people with disabilities institutionalized.

Please see the slides for the full Briefing.

Relevant Documents:

EIN Civil Society Briefing February 2023: Turkey, Hungary, and Bulgaria

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On the 27th February 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1459th Committee of Ministers Human Rights Meeting on 7th – 9th March 2023. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

  1. The Oya Ataman v Turkey case concerns the violation of the right to freedom of assembly, ill treatment of applicants as a result of excessive force used during demonstrations. This presentation was given by Mümtaz Murat Kök, Project Coordinator and Editor at Media and Law Studies Association and Beril Onder, Project Lawyer at the Turkey Human Rights Litigation Support Project.

  2. Baka v Hungary case concerns lack of access to a court as regards the premature termination of the applicant’s mandate as President of the Supreme Court which also led to a violation of his right to freedom of expression. This presentation was given by Erika Farkas, Legal Officer at the Hungarian Helsinki Committee.

  3. The Stanev v Bulgaria case concerns the applicant’s unlawful placement in a social care home for persons with mental disabilities; lack of judicial review and poor living conditions and the impossibility to request the restoration of his legal capacity. This presentation was given by Simona Florescu, Litigation Manager at Validity, and Aneta Mircheva, Lawyer at the Network of Independent Experts.

  4. The freedom of expression cases (Öner and Türk v Turkey/ Nedim Sener group/Altug Tanar Akcam group/Artun and Guvener group/ Isikirik Group) which specifically concerns the unjustified interferences with freedom of expression, in particular through criminal proceedings, including defamation, and the consequent chilling effect. Unforeseeable conviction of membership of an illegal organisation for the mere fact of attending a public meeting and expressing views there. This presentation was given by Mümtaz Murat Kök, Project Coordinator and Editor at the Media and Law Studies Association.

Oya Ataman v Turkey

The Oya Ataman v Turkey case concerns violations of the right to freedom of peaceful assembly, including the prosecution of participants and/or the use of excessive force to disperse peaceful demonstrations. Certain cases also concern unjustified detention orders against the participants, failure to carry out effective investigations into the applicants’ allegations of ill-treatment or lack of an effective remedy in this respect (violations of Articles 2, 3, 5, 10, 11 and 13 of the Convention).

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project provided participants with an update on legislative developments that they included in their Rule 9 Submissions:

Law No.2911 on Demonstrations and Public Meetings

  • Law No. 2911 allows local authorities to: 

    • impose unwarranted restrictions on the right of peaceful assembly;

    • impose blanket bans on all demonstrations and events; 

    • enforce dispersal and impose criminal and administrative sanctions against those who attempt to exercise their right to peaceful assembly.

  • Lack of any comprehensive legislative measures in fully aligning Law 2911 with Convention standards.

  • The amendments made between 2014-2018 to Law No. 2911 have already been examined by the CM in its previous meetings: they are not Convention-compliant.

    Additional restrictions in the aftermath of state of emergency

  • After the attempted coup d’état of 15 July 2016, under the state of emergency, Article 11 of Law No. 2935 on the state of emergency granted broad powers to governors, restricting the freedom of assembly and movement along with other freedoms, which significantly affected civil society activities.

  • Severe restrictions such as blanket bans on peaceful assemblies were frequently imposed.

  • Although the State of emergency formally ended on 18 July 2018, serious restrictions placed under the emergency regime were incorporated into permanent legislation.

  • On 25 July 2018, Law No. 7145 (an ‘omnibus law’) introduced emergency-type restrictive measures into several ordinary laws.

    • Amendments to Articles 6 and 7 of Law no. 2911

    • An amendment to Article 11 (C) of Law No. 5442 on Provincial Administration allows (allowing provincial governors to ban the entry or exit of individuals to their provinces for fifteen days).

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project gave participants an update on recent developments concerning the authorities application and interpretation of domestic law:

Blanket and specific bans on demonstrations and events

    • Under Law No. 2911 and Law No. 5442, provincial governors have regularly imposed bans on demonstrations and events in many provinces

    • Some governors automatically extended an existing ban by imposing another ban at the end of the previous one, creating an uninterrupted ban for a period much longer than 30 days.

    • In the Eastern city of Van, a general ban on all public gatherings and events was first imposed on November 21, 2016, and with the additional bans introduced by the authorities, all public gatherings and events were banned uninterruptedly until 27 June 2022.

Police interventions with excessive use of force

  • The examination of Turkish law enforcement officials’ practices during assemblies reveals, in particular, the following:

    • The police systematically enforce the dispersal of assemblies despite their peaceful nature.

    • While dispersing the crowd, the police persistently use excessive force on protestors, which could result in ill-treatment or torture, and mass arrest.

    • The authorities have failed to set up a functioning system for an ex post facto review to assess the reasonableness and proportionality of use of force on protestors.

Criminalisation of peaceful protestors

  • The widespread and systematic use of Law no. 2911 and 5442 against peaceful protestors

    • Criminal sanctions under Law no 2911

    • Misdemeanour fines under Law no. 5326.

    • Large number of criminal investigations and prosecutions under Law no. 2911

  • Peaceful protestors may also easily face other charges under criminal law

    • Article 265 § 1  of the Criminal Code for obstructing the security forces in the execution of their duties by way of resistance together with other persons

    • Article 299 of the Criminal Code for insulting the President of the Republic because of the slogans chanted during assemblies

    • Prevention of Terrorism Act (Law no. 3713

Media and Law Studies Association also provided trial monitoring data and information on criminal proceedings in the context of freedom of assembly. Between 1 September 2021 and 20 June 2022, at least 800 people stood trial for “defying the Law no. 2911 on Demonstrations and Assemblies” in 39 different trials, as recorded through trial monitoring by MLSA.

The majority of these people stood trial for “attending illegal demonstrations and marches and failing to disperse despite being warned and despite the use of force (Article 32/1 of the Law no. 2911).”

They set out examples of repressed assemblies in the Istanbul and Eskişehir Pride Marches, as well as the Saturday Mothers protests.

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project provided their recommendations on general measures, asking the Committee of Ministers to:

  • Continue the supervision on the execution of the Oya Ataman group of cases under the enhanced procedure and at more frequent intervals;

  • Urge Türkiye to revise its Action Plan and address in full the structural problems arising from the domestic legislative framework identified by the ECtHR in the Oya Ataman group; 

  • Call on Türkiye to amend Law No. 2911 to ensure that its provisions are fully in line with the principles set  out in the case law of the ECtHR; 

  • Call on Türkiye to amend Law No. 5442 to ensure that its provisions are fully in line with the principles set  out in the case law of the ECtHR; in particular, amend Article 11(C) which grants broad  powers to governors to ban both peaceful public assemblies and indoor human rights  events;

  • Call on Türkiye to review the 2016 Directive on the use of tear gas and other crowd control weapons to  ensure that it complies in all respects with international standards in relation to the use  of crowd control weapons;

  • Call on Türkiye to put in place an effective ex post facto review mechanism to assess the reasonableness and proportionality of any use of excessive force by law enforcement  officials;

  • Call on Türkiye to stop the criminalization of the members of civil society who exercise their right to freedom of peaceful assembly.

Please see the slides for the full Briefing.

Relevant Documents:

The Baka v Hungary case concerns the premature termination of the applicant’s term of office as President of the Supreme Court, which was found to have violated his right of access to a court as guaranteed by Article 6 § 1 because of the absence of judicial review. The Court found that these measures had been prompted by the views and criticisms expressed by the applicant on issues of public interest (planned major reform of the judicial system) and had violated Article 10 as they had not pursued any legitimate aim linked to the judicial reform at issue, nor had the measures been necessary in a democratic society.

Hungarian Helsinki Committee reminded participants of the key violations found by the ECtHR:

  • Violation of Article 6 ~ undue and premature termination of Judge Baka’s mandate as President of the Supreme Court through ad hominem legislative acts of constitutional rank and therefore beyond judicial control.

  • Violation of Article 10 ~ prompted by views and criticisms he expressed on reforms affecting the judiciary.

  • Exerting a ’chilling effect’ on other judges discouraging them from participating in public debate on legislative reforms affecting the judiciary and on issues concerning the independence of the judiciary.

Hungarian Helsinki Committee provided participants with further developments of this pending case by highlighting it’s impacts on authorities’ systemic undermining and the chilling effect of silencing the judiciary. In 2022, two massive smear campaigns were targeted against individual judges as members of the National Judicial Council:

  • Against Judge Vasvári (spokesperson of the NJC), following a public statement in ‘The Guardian’ stating that „we have been witnessing external and internal influence attempts” and that „we just want a transparent and meritocratic system”. Following these statements, a defamatory campaign in the governmental propaganda media ran for one week describing him as „blood judge”; „judge of terror”, and depicting the NJC as „a putty club”.

  • Against Judge Vasvári (spokesperson of the NJC) & judge Matusik (international rep.)

  • massive smear campaign for over a month & more than 450 publications

  • consciously built up and boosted

    • launched in an anonymous blog of the right-wing media

    • joined by pro-government think tanks

    • discrediting members of the NJC as judges

    • questioning their independence 

Hungarian Helsinki Committee provided recommendations to the CM for Hungarian authorities, who should:

  • evaluate domestic legislation with respect to guarantees and safeguards protecting judges from undue interference

  • address the issue of judicial independence holistically and comprehensively

  • refrain from and condemn any public harassment, intimidation or retaliation against judges, and provide effective protection from personal attacks against judges

  • abstain from any public critique, recommendation, suggestion or solicitation regarding court decisions that may constitute direct or indirect influence on pending court proceedings or otherwise undermine the independence of individual judges in their decision-making

Please see the slides for the full Briefing.

Relevant Documents:

The Stanev v Bulgaria case concerns the unlawful placement of the applicant, suffering from a mental health disorder, in a social care home (violation of Article 5 § 1(e)). The Court found that the placement, considered a social assistance measure, did not comply with the requirements of the domestic legislation because the authorities had not requested the consent of the applicant. The placement also did not comply with the conditions set in the case law of the Court regarding the detention of persons suffering from mental health disorders.

Validity outlined the ECtHR judgment and the implementation process of the case to participants, in addition, they highlighted the need for alternatives to residential care.

The NGOs argued that small group homes and family-type homes perpetuate institutionalization, by ensuring the repetition of the same patterns of violence, neglect and deprivation of rights for persons with disabilities, and by maintaining the same features of institutions.

The NGOs provided an example of violence in a family-type home: https://novini.bg/bylgariya/obshtestvo/465247

They argue that the CM is empowered to monitor small group homes (relevant for both Article 3 and Article 5) and that, under the Stanev judgment, the state should provide for viable alternatives to residential care. This is the only path forward for implementing the Stanev judgment in a manner that is human rights compliant, and does not perpetuate institutionalization.

The current situation in Bulgaria

  • Around 9 000 people with disabilities still living in big institutions (159 big institutions still are operating).

  • 271 small group homes

  • Waiting list – 1 580 people with disabilities are in the waiting list for placement in the residential care, because of lack of another possibility to receive care in the community.

  • The group homes are small institutions. The regime there becomes more and more restrictive.

The NGOs argue that it is imperative that the Committee continues to monitor the implementation of the judgment. They set out recommendations to the Committee of Ministers to request the Bulgarian authorities to:

  1. Develop and implement strategies to ensure that persons with disabilities in family-type homes have a path to live in the community; they have access to a complaint procedure and review of their placement;

  2. Provide data on the number of persons with disabilities having left residential care to live in the community;

  3. Make procedural accommodations to ensure that persons with disabilities participate in court proceedings;

  4. Ensure that procedural accommodations and information are provided before and at signing the contracts for placement in family-type homes.

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1459th meeting (March 2023) (DH) - Rules 9.2 and 9.6 - Communication from 8 NGOs (23/01/2023) in the case of STANEV v. Bulgaria (Application No. 36760/06) and reply from the authorities (03/02/2023) [anglais uniquement] [DH-DD(2023)139-rev]

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from NGOs (Validity Foundation – Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (10/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) [anglais uniquement] [DH-DD(2022)547]

1436th meeting (June 2022) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Validity Foundation – Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (10/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) and reply from the authorities (25/05/2022) [anglais uniquement] [DH-DD(2022)547-rev]

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from NGOs (Validity Foundation - Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (02/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) & reply from the authorities (12/05/2022) [anglais uniquement] [DH-DD(2022)531]

1436th meeting (June 2022) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Validity Foundation Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee & Bulgarian Lawyers for Human Rights) (25/04/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) & reply from the authorities (04/05/2022) [anglais uniquement] [DH-DD(2022)495-rev]

Öner and Türk v Turkey group/ Nedim Sener group/ Altug Tanar Akcam group/ Artun and Guvener group/ Isikirik Group

The freedom of expression groups of cases (Öner and Türk v Turkey group/ Nedim Sener group/ Altug Tanar Akcam group/ Artun and Guvener group/ Isikirik Group) concern unjustified and disproportionate interferences with the applicants’ freedom of expression on account of criminal proceedings for having expressed opinions that did not incite hatred or violence, and the consequent chilling effect on society as a whole (violations of Article 10).

Media and Law Studies Association updated the participants with recent developments of each case within the group of cases:

1.     Öner and Türk Group of Cases

The Öner and Türk group concerns unjustified convictions of the applicants mainly based on Article 6 § 2 (printing of statements made by a terrorist organisation) and Article 7 § 2 (propaganda in favour of an illegal organisation) of the Anti-Terrorism Law; Article 215 (praising an offence or an offender) and Article 216 (provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences) of the Criminal Code (violations of Article 10).

Article 6/2 of Anti-Terror Law : Printing or publishing declarations or announcements of terrorist organizations:

  • In its entirety, Article 6 of Anti-Terror Law continues to be a source of violations. 

  • Despite the claims of the authorities, the trials based on Article 6/2 of Anti-Terror Law continue and they constituted 1,7% of the charges during the monitoring period.

  • Prolonged trials and violations of the right to fair trial

    Article 6/1 of Anti-Terror Law:  Disclosing or publishing the identity of officials on anti-terrorist duties, or identifying such persons as targets

  • The ambiguous wording of Article 6/1 makes it possible for any public official (even retired ones) to be defined as “an official on anti-terrorist duties.”

    Article 7/2 of Anti- Terror Law: Propaganda in favor of an illegal organization)

  • Amended in 2013 → «the interpretation has been narrowed down the act of making propaganda for a terrorist organization by justifying, praising or inciting its methods, is not recognized as an offense if it does not contain violence, force or threat.»

  • A sentence added in 2019 → «expressions of opinion constituting criticism or not exceeding the limits of reporting, will not constitute a crime.»

  • Article7/2 charges, which were among the charges leveled against individuals in 62 cases, constituted 54% of the terrorism-related charges in this period. In 46 of these trials, journalists were the defendants.

  • Amendments and especially the 2019 addition to the article in no way protect the freedom of criticism or the press.

    Article 215 of the Turkish Penal Code: Praising an offense or an offender

  • The 2013 amendment to the Article 215 of the Turkish Penal Code has not solved the problems with the article and most importantly the problem of “unforeseeability” the Court had found in the case Yasin Özdemir v. Turkey. Individuals can still be charged and sentenced for their expressions which do not pose “an imminent and clear danger to public order.”

  • The lawsuit brought against journalist Cengiz Çandar and activist Kemal Işıktaş proves this point.

  • Indictment filed in 2020 cited social media posts shared in 2017 as evidence for the charges.

Article 216 of the Turkish Penal Code: Provoking the public to hatred, hostility, denigrating a section of the public

  • In their latest action plan, the authorities failed to inform the Committee about the progress or more appropriately the lack of progress regarding Article 216 of the Turkish Penal Code.

  • The article, however, is used more and more to stifle freedom of expression.

  • Examples of popstar Gülşen and journalist Mehmet Güleş demonstrate such tendency.

2.     Nedim Şener Group of Cases

The Nedim Şener group of cases concerns pre-trial detention of journalists on serious charges (offenses against the constitutional order and its functioning and establishing organizations for the purpose of committing crimes) and as per Article 100 of Code of Criminal Procedure.

  • There has been no amendment, no progress

  • Currently at least 61 journalists in prison. 26 out of 61 are in pre-trial detention.

  • Over the past 9 months, 26 journalists have been arrested over the suspicion of «membership in a terrorist organization (Article 314 of TPC and Article 7-1 of ATL)

    • On 16 June 2022, 16 journalists arrested in Diyarbakır

    • On 29 October 2022, 9 journalists arrested in Ankara

    • On 10 January 2023, journalist Sezgin Kartal arrested in Istanbul 

3.     Altuğ Taner Akçam Group of Cases

The Altuğ Taner Akçam group deals with prosecutions under Article 301 of the Criminal Code (publicly denigrating the Turkish nation or the organs and institutions of the state, including the judiciary and the army), which the Court found not to meet the “quality of law” requirement in view of its “unacceptably broad terms” (violations of Article 10).

Article 301 of the Turkish Penal Code

  • Contrary to the claims of the authorities, the 2008 amendment to the Article 301 has not solved the problems and thus the article continues to be a source of further violations.

  • During the monitoring period 25 people, including lawyers, journalists and politicians stood trial on this charge.

  • Continuous legal harassment of the Diyarbakır Bar Association

4.     Artun and Güvener Group of Cases

The Artun and Güvener group concerns unjustified interferences with the applicants’ right to freedom of expression on account of their criminal convictions for insulting public institutions, officials and the President under Articles 125 and 299 of the Criminal Code (the President, the Republic, police officers, tax inspectors etc.) (violations of Article 10). In the case of Vedat Sorli, the Court also indicated under Article 46 that bringing the relevant domestic law into line with the Convention would be an appropriate form of redress that would put an end to the violation found.

a.     Article 125 of the Turkish Penal Code: insulting

  • No amendment

  • 2005 amendment amended two clauses of the article : (4-openly insulting) and (5- insulting public officials working as a committee). Both increase the stipulated prison sentence.

  • There is no “Convention compliant attitude” when it comes to the application of Article 125.

  • 73 people, including journalists, lawyers, activists and politicians stood trial on these charges. The majority of the insult charges were “insulting a public official. (Article 125/3a)”

  • 2 years and 7 months prison sentence imposed upon the Istanbul Mayor Ekrem İmamoğlu for “insulting public officials who work as part of a committee because of their duties. (Article 125/5).”

b.     Article 299 of the Turkish Penal Code: insulting the president

  • No amendment → The authorities claim that the requirement of the Ministry of Justice authorization for prosecution (NOT investigation) («filtering mechanism») has «eliminated the concerns.». However, the 2005 amendment amended the second clause of the article (2- openly) and increased the stipulated prison sentence.

  • Contrary to the claims of the authorities that all the concerns regarding Article 299 have been eliminated through a “filtering measure” and Convention compliant case law, the article is applied in absolute defiance of the Vedat Şorli judgment of the court to punish criticism and stifle freedom of expression.

  • Furthermore, Article 299 of the Turkish Penal Code increasingly gives way to Article 5 violations as it can be seen in the examples of journalist Sedef Kabaş ; a 70 years old man who shared her remarks and Cihan Kolivar, the president of the Turkish Union of Bread Producers.

5.     Işıkırık Group of Cases

The Işıkırık group concerns Article 220 §§ 6 and 7 of the Criminal Code, which provide that anyone who commits a crime on behalf of an illegal organisation or who knowingly and willingly aids and abets an illegal organisation shall be sentenced as a member of that organisation. Based on these provisions, most of the applicants in this group of cases were sentenced to several years of imprisonment for membership of an illegal organisation for having, for example, peacefully participated in a demonstration called for by an illegal organisation, or expressed a positive opinion about such an organisation, without the prosecution having to prove the elements of actual membership. The Court criticised in particular the wording of the provisions and their extensive interpretation by domestic courts which did not provide sufficient protection against arbitrary interferences by the public authorities (§67) and therefore lacked foreseeability and had a chilling effect (violations of Articles 10 and 11).

a.     Article 220/6 of the Turkish Penal Code: Committing an offense on behalf of an organization without being a member

  • The sentence added to the Article 220/6 in 2013 has not narrowed down the interpretation and application of the article.

  • Furthermore, the article continues to be a source violation with regards to Article 11 and also criminalizes both peaceful demonstrations and journalists covering those demonstrations.

b.     Article 220/7 of the Turkish Penal Code: Aiding and abetting an organization willingly and knowingly without belonging to its structure

  •  Contrary to the claims of the authorities, the problems with Article 220/7 have not been eliminated and the article continues to be a source of violations.

  • During the monitoring period, 58 activists, 38 journalists and 13 politicians were tried on Article 220/7 charges.

  • Furthermore, 5 journalists and a media employee were sentenced for “aiding and abetting an organization willingly and knowingly without belonging to its structure.”

Media and Law Studies Association provided recommendations to the Committee of Ministers to:

  • Re-examine these groups of cases more frequently.

  • Request the authorities to revise their action plan so that they address structural problems arising from the legislative frameworks as identified by the ECtHR in these groups of cases.

  • Reiterate demands for amendments to Article 125 and 301 of the Turkish Penal Code and the abolition of Articles 220/6, 220/7 and 299 of the Turkish Penal Code. 

  • Urge the authorities to consider amending Article 6 of Anti-Terror Law so that it cannot be employed to intimidate investigative journalism.

  • Persistently request the authorities to provide up-to-date and detailed statistics on criminal investigations and prosecutions related to freedom of expression and the press, and to provide comments on these statistics.

  • Reiterate calls for strong high-level political messages from the authorities. 

  • Considering the absence of progress in the implementation of these groups of cases, as well as the repeated and extensive use of these legal provisions in order to target journalists, media employees and other persons exercising freedom of speech, the Chair of the Committee should send a letter to the Minister of Justice of Turkey regarding the non-implementation of these groups of cases.

Please see the slides for the full Briefing.

Relevant Documents:

EIN Civil Society Briefing November 2022: France, Poland, and Turkey

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On 28 November 2022, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1451st Committee of Ministers Human Rights Meeting on 6 – 8 November 2022. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

1.     The J.M.B. and others v France case concerns prison overcrowding and poor conditions of detention and lack of an effective preventive remedy. This presentation was given by Prune Missoffe, Head of Analyses and Advocacy, and Julie Fragonas, Trainee Lawyer at Observatoire International des Prisons, Section France.

2.     A. The Xero Flor W Polsce SP. Z.O.O. v Poland case concerns an infringement of the applicant company’s right to a fair hearing due to the domestic courts' failure, in the context of civil proceedings, to examine its argument that secondary legislation limiting its right to compensation was unconstitutional.

2.     B. The Reczkowicz group case concerns an infringement of the right to tribunal established by law, due to the fact that the judges of the Disciplinary Chamber in the Supreme Court that dismissed the applicant’s cassation appeal against disciplinary penalty in 2019 were appointed in a deficient judicial appointment procedure involving the National Council of the Judiciary lacking independence from legislature and executive

 2.     C.  Broda and Bojara v Poland case concerns an infringement of the right to access to court on account of the premature termination of the applicants’ term of office as vice-presidents of a regional court on the basis of temporary legislation in force between 12 August 2017 and 12 February 2018, which did not allow for examination either by an ordinary court or by another body exercising judicial duties.

Marcin Szwed, Lawyer at Helsinki Foundation for Human Rights, presented on these cases concerning Poland.

3.     The Opuz group v Turkey case was presented by Elif Ege, Programme Coordinator at Mor Çatı, concerning the failure of the authorities to protect women from domestic violence, despite having been reasonably informed of the real and imminent risks and threats.

Overview of the case:

The J.M.B v France case concerns the structural problem of degrading treatment suffered by 27 of the applicants, due to prison overcrowding and poor conditions in the detention centres during different periods (2006 to date). It also concerns the lack of an effective preventive domestic remedy for 31 of the applicants, where administrative interim proceedings are ineffective in practice, due to the limited scope of the judge's injunctions and the difficulties in enforcing the overcrowding and dilapidation of prisons measures. 

Observatoire International des Prisons reminded participants of the last Committee of Ministers Decisions in the case from 2021:

·      Occupancy rates in the prisons concerned demonstrate the existence of a structural problem, where the Court recommended the government to adopt general measures aimed at “guaranteeing prisoners conditions of detention that comply with Article 3, in particular by ensuring the definitive reduction of prison overcrowding”.

·      Lack of an effective domestic solution to remedy living conditions that violate human dignity, and the Court recommended the government create an effective legal remedy to put an end to the inhumanity of living conditions in prisons.

Observatoire International des Prisons provided information on recent developments concerning prison overcrowding since the Courts judgment:

o  Prison overcrowding is a worsening situation, as the occupancy rate has increased to 141.5 % since the last CM examination.

o  Degrading living conditions are exacerbated by dilapidated and unsanitary conditions

o  There is a lack of a coherent long-term strategy

o   Constructing new prisons to address prison overcrowding fails to address the structural problem.

o   Regarding the new judicial remedy: there is no assessment tool of its’ efficiency; some detainees cannot benefit from it; it is not an effective tool to remedy overcrowding;

o   Regarding the “Référé-liberté” remedy: it is not an effective remedy either, as the issues identified by the ECtHR remain: there are delays with regard to the execution of the injunctions issued and there is a failure to order sufficient measures.

Observatoire International des Prisons outlined their recommendations to participants:

  • On prison overcrowding

    • Establishing a binding prison regulation mechanism

    • Adopting a national action plan ensuring the definitive reduction of prison overcrowding

    • Discontinuing prison expansion programmes and revising budgetary priorities

  • On the new judicial remedy

    • Creating monitoring tools to assess the effectiveness of the remedy

    • Reinforcing the effectiveness of the remedy

  • On the preexisting “référé-liberté”

    • Expanding the scope of measures a judge can order

    • Reinforcing the execution procedures

Please see the slides for the full Briefing.

Relevant Documents:

Overview of the Case:

This case concerns an infringement of the applicant company’s right to a fair hearing due to the domestic courts' failure to examine its argument that secondary legislation limiting its right to compensation was unconstitutional. It also concerns the infringement of the applicant company’s right to a tribunal established by law due to the participation of Judge M.M. in the Constitutional Court’s panel that rejected its constitutional complaint.

Helsinki Foundation for Human Rights reminded participants of the Court’s Judgment:

  • There was a violation of a right to a ‘tribunal established by law’ (Article 6 § 1 ECHR);

  • The judge was elected with a manifest breach of domestic law;

  • The violation ‘concerned a fundamental rule of the election procedure, namely the rule that a judge of the Constitutional Court was to be elected by the Sejm whose term of office covered the date on which his seat became vacant.’

  • An additional violation of Article 6: lack of justification of domestic courts for non-referring legal question to the Constitutional Tribunal

Helsinki Foundation for Human Rights provided participants with recent developments in the case:

  • Unlawfully elected persons continue to participate in the Constitutional Tribunal’s panels:

    • Between 7 May 2021 and 28 November 2022 the CT issued 16 judgments (out of total 21) and 45 decisions on discontinuation of proceedings (out of total 88) in irregular panels;

    • There were 39 decisions on discontinuation of proceedings initiated by constitutional complaints issued by the CT in panels with unlawfully elected persons

  • The Constitutional Tribunal questions the legitimacy of the Court’s judgments:

    • Judgment of 24 November 2021, no. K 6/21

    • Judgment of 10 March 2022, no. K 7/21

Helsinki Foundation for Human Rights outlines their recommendations for the case:

  • HFHR’s Rule 9 submission – 30 March 2022;

  • Unlawfully elected persons must be prevented from adjudication in the Constitutional Tribunal;

  • Domestic authorities must refrain from questioning the validity of the Court’s rulings;

  • The CoM should address in recommendations the problems with the status of decisions issued by irregular panels; and the prevention of external undue influence on the appointment of judges.

Relevant Documents

Overview of the Case
This case concerns an infringement of the right to access to the court on account of the premature termination of the applicants’ term of office as vice presidents of a regional court on the basis of temporary legislation in force between 12 August 2017 and 12 February 2018, which did not allow for examination either by an ordinary court or by another body exercising judicial duties

Helsinki Foundation for Human Rights reminded participants of the Court’s Judgment:

  • The Court ruled that there was a violation of Article 6 § 1 ECHR;

  • The applicants were completely deprived of access to court with regard to their dismissal from the office of vice presidents of courts;

  • The Minister’s decision did not contain any statement of reasons;

  • There was no available protection against arbitrary dismissals;

Helsinki Foundation for Human Rights provided participants with recent developments in the case:

  • The provisions on the basis of which the applicants were dismissed are no longer in force;

  • Currently, the Minister of Justice may remove the president/vice-president of court only on specific grounds enumerated in the law:

    • gross or persistent failure to discharge the duties;

    • remaining vice-president/president in office is incompatible with the interest of administration of justice;

    • particular inefficiency of president/vice-president in exercising administrative supervision or organising works in the court or lower courts;

    • voluntary resignation of president/vice-president.

  • The Minister must consult the college of a given court and if it opposes the dismissal, the Minister must also consult the National Council of Judiciary;

  • However, the negative opinion of the NCJ is not binding on the Minister unless it was issued with 2/3 majority;

  • The Minister’s decision cannot be challenged in court.

Helsinki Foundation for Human Rights outlines their recommendations for the case:

  • HFHR’s Rule 9 submission – 18 October 2022;

  • Implementation of the judgment on the general level requires the adoption of proper legislative measures;

  • There is a need for legislative change: the powers of the Minister of Justice to dismiss presidents/vice-presidents of courts must be limited in order to protect independence of the judiciary:

    • negative opinion of the NCJ should be binding on the Minister of Justice (as it was until 2017);

    • NCJ must be an independent and lawfully constituted organ;

    • limitation of the MoJ’s discretion in the appointment of court presidents will also be advisable

  • The decision of the Minister of Justice on the dismissal of presidents/vice-presidents of courts must be appealable to court;

  • Domestic authorities must refrain from questioning the validity of the Court’s rulings.

Please see the slides for the full Briefing.

Relevant Documents

NGO/NHRI Communications

1451st meeting (December 2022) (DH) - Rule 9.6 - Reply from the authorities (03/11/2022) following a communication from an NGO (Helsinki Foundation for Human Rights (HFHR)) (18/10/2022) in the case of Broda and Bojara v. Poland (Application No. 26691/18) [anglais uniquement] [DH-DD(2022)1168]

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (Helsinki Foundation for Human Rights (HFHR)) (18/10/2022) in the case of Broda and Bojara v. Poland (Application No. 26691/18) [anglais uniquement] [DH-DD(2022)1139]

Reczkowicz group v Poland


Overview of the Case
This case concerns an infringement of the right to tribunal established by law, due to the fact that the judges of the Disciplinary Chamber in the Supreme Court that dismissed the applicant’s cassation appeal against disciplinary penalty in 2019 were appointed in a deficient judicial appointment procedure involving the National Council of the Judiciary lacking independence from legislature and executive (violation of Article 6 of the Convention).

Helsinki Foundation for Human Rights reminded participants of the Court’s judgment:

  • The Court ruled that there was a violation of a right to a ‘tribunal established by law’ (Article 6 § 1 ECHR);

  • Judges of the Disciplinary Chamber were appointed with manifest violations of domestic law;

  • Unconstitutionality of the current model of the election of judicial members of the National Council of the Judiciary (NCJ);

  • NCJ is no longer an independent body;

  • The Court presented a similar approach in subsequent cases concerning unlawfully elected judges of the Supreme Court.

Helsinki Foundation for Human Rights provided participants with recent developments in the case:

  • The independence of the NCJ has not been restored;

  • The Disciplinary Chamber was dissolved and replaced by the Professional Responsibility Chamber (PRC);

  • There are controversies around the PRC with regard to:

    • The procedure for the assignment of judges to the PRC;

    • 6 out of 11 judges assigned to PRC were appointed upon the request of reorganised NCJ.

  • Limited effectiveness of the procedure for verification of independence and impartiality of judges;

  • Disciplinary actions against judges who rely on the ECHR and EU standards.

Helsinki Foundation for Human Rights outlines their recommendations for the case; the Committee of Ministers should call for:

  • Restoration of the NCJ independence through reform of the procedure for the election of judicial members of the NCJ.

  • Unlawfully appointed persons must not participate in adjudication of individual cases;

  • The status of judgments issued by unlawfully appointed persons must be regulated;

  • Judges who apply standards developed by the ECtHR in Reczkowicz and other judgments must not face disciplinary charges;

  • Domestic authorities must refrain from questioning validity of the Court’s rulings.

HFHR’s Rule 9 submission of 14 October 2022 is available here.

Please see the slides for the full Briefing.

Relevant Documents

Overview of the Case

This group of cases concerns the failure of the authorities to protect women (the applicants or their female relatives) from domestic violence, despite having been reasonably informed of the real and imminent risks and threats (Articles 2 and 3). In the cases of Opuz, M.G. and Halime Kılıç, the Court also found that the failure to protect the women was discriminatory on grounds of gender (violation of Article 14 in conjunction with Articles 2 and 3).

Mor Çatı provided an update and recommendations for individual measures in the M.G. case, after reminding participants that, in the CM’s latest decision, it had reiterated “the importance of continuing to monitor the applicants’ safety, since their former husbands are not in detention:

  • The appeal proceedings are still pending and the applicant’s ex-husband has not been detained and continues to make threats against her.

  • The national authorities should speed up the proceedings in order to ensure that the perpetrator is brought to justice effectively, and should also urgently take measures to ensure the applicant’s safety.

Mor Çatı reminded participants that, on 20 March 2021, Turkey decided to withdraw from the Istanbul Convention. In relation to the latest Action Plan, Mor Çatı stated that the existing laws are presented as general measures; however, the main issue on the ground is the lack of implementation of these laws. There are no monitoring and evaluation processes to achieve standards in the implementation of the laws and there are no any sanctions against bad practitioners.

Mor Çatı provided updated information on the following areas:

  • Barriers to justice

    • Victims hesitate to file complaints due to distrust of system, deterrent behavior of public officials, lack of information, lack of qualified free legal support, long duration of the legal procedures, lack of protection and social and psychological support during long duration of legal procedures.

  • Reasonable time to ensure that investigative procedural steps are completed

    • Taking the statement of the suspect takes up to 1 year or more.

    • The trial process: The local court proceedings takes up to 1-2 years. It can take up to 2-3 years on average to conclude appealed case decisions. It can take approximately about 2-3 more years for cases before the Court of Cassation.

  • Risk assessment

    • The Penal Code does not include a specific regulation for risk assessment in the context of domestic violence offence, these measures are only available in the Law No. 6284.

    • Prosecutor’s Offices, Criminal Courts and Family Courts fail to conduct risk assessment in respect of perpetrators who repeatedly commit violent crimes against women.

  • Implementation of arrest warrants

    • Law enforcement do not conduct an effective search to execute the arrest warrants; arrests are made if the perpetrator is found by chance.

    • Arrests for warrants are sometimes never executed and years may go by. Those who are not arrested until the statute of limitations is expired have their

      sentence repealed.

  • Non-Deterrent Effect of Sentences and de facto impunity  

    • Sentences are usually imposed at the lower limit and a discretionary mitigation (mitigation for good conduct) is applied.

    • Mitigated sentences given for the offenses of bodily harm with intent, threat and insult are usually commuted to a fine, followed by a deferment of the announcement of the verdict, as a result of which even the fine is not paid de facto.

  • Discretionary mitigation and mitigation of sentences on account of unjust provocation

    • In the case of more serious offenses where the convict has started to serve the sentence, the full term of imprisonment is not served due to the practice of conditional release; due to legal regulations such as suspension of sentence, de facto impunity takes place even when the convict has started to serve the sentence.

    • Contrary to the legal provisions, the mitigation of sentences on account of “unjust provocation” results in a significant reduction in sentences based on a

      sexist practice.

  • Grounds for impunity

    • The courts ignore less serious offenses (e.g. offense of libel) when there is more than one type of crime is inflicted by the perpetrator.

    • Court decisions are influenced by the physical appearance (e.g. well-dressed etc.) and economic class of the perpetrator.

    • It is observed that the grounds for acquittals often refer to expressions such as “defendant’s persistent denial of charges”; and the presumption of innocence is used as a legal cover-up for impunity.

Mor Çatı set out their recommendations for the implementation of the Opuz group of cases. The CM should call on the authorities to:

  • Re-become a party to Istanbul Convention.

  • Establish state-wide effective, comprehensive and coordinated policies encompassing all relevant measures to prevent and combat all forms of violence.

  • In order to ensure an effective implementation of both the Penal Code and the Law No.6284, the state should present data on the existing official complaint mechanisms, how many complaints have been filed to these mechanisms and what the results were and on monitoring and evaluation mechanisms for the implementation of the relevant legal framework, including the number and result of investigations towards public officers for bad practice. The statistical data should be disaggregated by gender, age, type and frequency of violence, relationship between perpetrator and survivor, geographical location and disability status.

  • Ensure that bad practices by public officials are sanctioned.

  • Facilitate for women the right to file complaints also with the police stations in their own neighborhoods rather than making mandatory referrals to specialised units such as the Bureaus of Combatting Domestic Violence and Violence Against Women.  

  • Promptly provide legal support in criminal cases to victims without administrative obstacles.  

  • Take measures to ensure that investigative procedural steps are completed within 6 months to maximum 1 year, including by taking the statement of the suspect at the investigation stage and collecting evidence or conducting an inquiry within a reasonable time if the suspect cannot be reached.

  • Provide data on the number of cases where risk assessment is conducted and detailed information on the tools used for risk assessment.

  • Provide information on how and to what extent the 2020 Circular is enforced and on sanctions for non-implementation.

  • Carry out a holistic risk assessment that includes a danger assessment, tailored specifically to cases of violence against women.

  • Take measures to ensure that arrest warrants are implemented effectively.

  • Provide data on how many arrest warrants are given, how many of them are for convicted perpetrators, how many of these warrants are executed, the mechanisms implemented to execute arrest warrants

  • Take measures (awareness-raising, training and capacity-building measures, etc.) to avoid sexist practices in the mitigation of sentences and judgments.

  • Provide information on what legislative measures are envisaged to ensure that investigations in less serious offences are initiated even in the absence of a complaint by domestic violence victim.

  • Take measures to enable effective implementation of sentences (e.g. To prevent the de facto impunity as a result of converting fines to fees.)

  • Provide data on the implementation of the recent changes in the Penal Code regarding the application of “good conduct” in cases of violence against women.

Please see the slides for the full Briefing.

Relevant Documents