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 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 September 2022: Republic of Moldova, Turkey, Hungary and Croatia

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On 16 September 2022, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the Committee of Ministers Human Rights Meeting on 20-22 September 2022. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

1. I.D. v. the Republic of Moldova concerns poor material conditions of detention in establishments under the authority of the Ministries of the Interior and Justice and the lack of access to adequate medical care (including specialised medical treatment) in these facilities and the detention facility of the National Anticorruption Centre, together with the absence of effective domestic remedies in both respects (violations of Articles 3 and 13). Vadim VIERU, lawyer at Promo-LEX presented key positive developments, key shortcomings, key facts on the ground, and set forward recommendations.

2. The Skendzic and Krznaric v Croatia group of cases concern violations of the right to life on account of the lack of effective investigations into war crimes committed during the Croatian Homeland War (1991-1995) against the applicants’ next-of-kin who disappeared or were killed (violations of Article 2 in its procedural limb). Vesna TERSELIC, Director of Documenta - Center for Dealing with the Past, and Ms. Milena Čalić JELIC, Legal Advisor, discussed ongoing concerns regarding the promptness and adequacy of war crimes investigations, and set forward recommendations.

4. Ilias and Ahmed v Hungary, concerns the authorities’ failure to comply with their procedural obligation under Article 3 to assess the risks of ill-treatment before removing the two asylum-seeking applicants to Serbia in 2015. Andras LEDERER, Senior Advocacy Officer at the Hungarian Helsinki Committee, discussed domestic legal instruments in force leading to repeated violations, Action Reports, and how these translate to the reality on the ground, setting forward recommendations.

3. Selahattin Demirtas (no.2) v Turkey, which 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; and unforeseeable lifting of parliamentary immunity and subsequent criminal proceedings to penalise the applicant for political speech. The case was briefed on by Benan MOLU and Ramazan DEMIR, legal representatives of Mr Demirtas.

I.D. v the Republic Moldova

Overview of the case:

The I.D. group of cases concerns violations of Articles 3 and 13 of the Convention on account of poor material conditions of detention in establishments under the authority of the Ministry of Internal Affairs and Ministry of Justice and the lack of access to adequate medical care (including specialized medical treatment) in those facilities, as well as the detention facility of the National Anti-corruption Centre, together with the absence of effective domestic remedies in both respects, as well as the implementation of the effective preventive and compensatory remedy, or a combination of remedies, in respect of inadequate conditions of detention. Other violations found by the Court concern the lack of reasonable clarity as to the scope and manner of the exercise of discretion by the prison authorities as regards the authorization of family visits, contrary to Article 8 of the Convention.

Photo Provided by Promo-LEX

Promo-LEX raised several concerns in relation to the new compensatory mechanism, which are related to:

  • The capacity of the investigative judges to apply the new preventive and compensatory remedy;

  • Risks of misinterpretation of the provisions of laws Nos 163 and 272;

  • A Non-uniform interpretation concerning the pecuniary compensations; the efforts implemented by the authorities to further reduce overcrowding, including through reduced recourse to detention on remand, as well as the construction of a new prison and medical assistance in prisons.

Regarding the efforts to reduce overcrowding, concerns were raised as to the following aspects:

  • prison population rate remains stable in the Republic of Moldova; no prisoner has been released to prevent the spread of COVID-19;

  • authorities failed to develop and adopt policies to reduce overcrowding in prisons by applying release mechanisms due to the COVID-19 pandemic;

  • authorities failed to apply measures to release from detention vulnerable groups of prisoners (such as prisoners with chronic diseases, prisoners over 60 years old, etc.) to reduce overcrowding in prisons and respectively, the COVID-19 associated risks.

Promo-LEX also set out concerns regarding the construction of a new prison, for which the implementation deadline was delayed since 2017 until December 2022, and regarding medical assistance in prisons, noting, inter alia, that:

  • The prison hospital does not comply with the national standards of a medical institution, does not have a health authorization for operation, does not have accreditation for the provision of medical services;

  • The prisoners' right to health is violated due to inadequate treatment, lack of medical staff and noncompliance with national treatment protocols and standards;

  • In the prison nr. 16 there is a lack of medical staff, in the staff states there are no nurse positions, these functions are performed by the detainees. Most medical workers agree to work due to military-grade incentives, which results in higher monthly incomes and faster retirement.

Recommendations:

With regard to the implementation of the preventive and compensatory mechanism, Promo-LEX set forward the following recommendations:

  • The Government to continue to provide statistics to the Committee of Minister's data as to the application in practice of the newly adopted preventive and compensatory remedy;

  • The Supreme Council of Magistracy to ensure that the Investigative Judges respect the terms set by law for examining the cases related to the application of the preventive and compensatory mechanism;

  • Ensure that the practice of the application by the investigative judges of the new remedy is effective and the pecuniary compensation (moral and material) provided to the detainees is equitable and following the ECtHR standards;

With regard to the improvement of detention conditions, Promo-LEX recommended that:

  • The National Prison Administration should implement the recommendations given by the CPT after its last visits during the period of 2015 – 2020, like reducing the levels of violence and reducing the overcrowding in cells;

  • The Government should ensure living space under existing international norms;

  • The Government should improve the quality and quantity of food and water provided to detainee;

With regard to the construction of a new prison, Promo-LEX recommended that:

  • Until the new prison is constructed, the Government should reduce overcrowding, particularly through the wider application of non-custodial measures as an alternative to imprisonment, in the light of the United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules);

  • The Ministry of Justice to provide a detailed timetable for the construction of the new prison in Chișinău and information on its general layout (overall capacity; size and design of accommodation cells; facilities for out-of-cell association activities, including areas for educational and vocational training, workshops, facilities for outdoor exercise and sport, etc.)

With regard to medical assistance in prison, the following recommendations were set forward:

  • The Ministry of Justice and the Ministry of Health, Labor and Social Protection should follow the recommendations given by UN Committee for Prevention of Torture and the recommendations made under the UPR and develop a public policy ensuring the transfer of health workers subordinated to the National Prison Administration under the subordination of the Ministry of Health;

  • The Government should provide appropriate and effective medical care of prisoners and detained persons, including adequate medicines;

  • The Government should ensure the recruitment of qualified medical personnel;

  • The Government should increase the budget allocated for health care in penitentiary institutions, including by developing the capacities and the infrastructure of the Pruncul Prison Hospital – P 16;

  • The Government and parliament should take prompt action to reduce the prison population in conditions allowing effective implementation in detention of the preventive measures required by WHO.

Please see the slides for the full Briefing.

Relevant Documents

Skendzic and Krznaric v Croatia

Overview of the case:

The group of cases concerns the lack of effective investigations into war crimes committed during the Croatian Homeland War (1991-1995) against the applicants’ next-of-kin who disappeared or were killed (violations of Article 2 in its procedural limb). The European Court found the following shortcomings in these investigations:

  • lack of promptness due to inexplicable delays and absence of serious efforts to establish the identity of the perpetrators;

  • lack of adequate investigations on account of:

    • (i) the authorities’ failure to identify and bring the direct perpetrators to justice (only members of the superior chain of command were brought to justice, while the authorities were also under the obligation to identify and bring to justice those who were directly responsible for the killing of the applicants’ next-of-kin);

    • (ii) the authorities’ failure to follow all available leads capable of identifying and bringing perpetrators to justice;

    • (iii) the examination of the circumstances surrounding the killing of the applicants’ next-of-kin remained at the level of a police inquiry, excluding involvement of an investigating judge, despite the existence of a large number of direct witnesses;

  • lack of independence in investigations which were entrusted to police stations employing officers suspected of being involved in the disappearance/killings.

Documenta - Center for Dealig with the Past raised the following key concerns:

  • There has been a decrease in the number of prosecutions and trials following EU accession;

  • Responsible County State attorneys are still lacking capacity for reviewing and investigating dormant war crimes cases;

  • Proceedings hold bias towards ethnic Serbs and there is failure in effectively investigating and indicting perpetrators of war crimes against ethnic Serbs;

  • In absentia trials are creating a high risk of re-opening proceedings;

  • Very limited regional judicial cooperation regarding prosecution of war crimes;

  • Accounting on missing persons is not updated since 2015;

  • The UN Special Rapporteur on Truth, Justice, Compensation and Guarantee of Non-Repetition notes the rise of political interference in the prosecution of war crimes.

The decrease in the number of prosecutions and trials since EU accession was recently highlighted by the UN Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, who has noted that:

  • “progress appears to have stalled in the last 7 years and concerns have risen regarding the prospects of effective social reconciliation, particularly as a result of growing instances of hate speech, the glorification of war crimes, and the relativization of the decisions of the ICTY and national tribunals.”

  • […] “progress was particularly strong in the 90’s and in the early 2000s during Croatia’s process of accession to the European Union. Numerous stakeholders have informed, nonetheless, that the number of prosecutions and trials has significantly decreased since, as did the regional cooperation in this field. Political interference has also reportedly risen.”

  • “Despite earlier progress, cooperation in the region has slowed down hampered by the lack of exchange of information and evidence across borders (which has been described by several interlocutors as a trade on missing persons) as well as the lack of effective investigation and prosecution of war crimes.”

It was indicated that the lack of adequacy and promptness of criminal proceedings is reflected in practice, and several examples were given:

  • The annulment and retrial in the case against Branimir Glavaš, former Member of Croatian Parliament Investigations of war crimes committed in Uzdolje in 1995

  • The investigation into war crimes committed in Bogdanovici in November 1991 Crimes committed during and after the Military Operations „Storm“ and „Flash“

  • War crimes committed against Serb civilians in Vukovar

  • Substantial reduction in the number of final verdicts reached in absentia.

  • Research carried out by Documenta and the Center for Peace, Nonviolence and Human Rights Osijek also indicated that, due to procedural issues “hearings very often start from the beginning, so witnesses who have already been directly heard multiple times are called to testify again”.

Regarding the insufficient capacity of state attorney teams to process cases, Documenta highlighted the limited capacity of county prosecutor’s offices to secure investigation of dormant cases which had been allocated in 2011.

Another concern is the fact that very few proceedings have been initiated for crimes committed by perpetrators against ethnic Serbs, which indicated that the investigations are not impartial irrespective of the ethnicity of those involved:

  • Of the total number of monitored criminal proceedings, during 2020, 40 (91%) were against members of Serbian paramilitary units/Yugoslav People's Army

  • During 2021 there were 38 (90%) of such proceedings

  • Only 1 person indicted as a member of HVO (Croatian Council of Defence – BiH) between 2020 - 2021

  • The UN Special Rapporteur on Truth, Justice, Compensation and Guarantee of Non-Repetition has also noted that “Proceedings have also been criticised for holding a bias towards ethnic Serbs. In this connection, international human rights mechanisms expressed concern that the selection of cases apparently remained disproportionately directed against ethnic Serbs and le noted that according to representatives of victims’ associations, many crimes allegedly committed by members of the Croatian Army and police forces in 1995 had not been investigated or prosecuted.”

The effectiveness of war crimes investigations is affected by the high number of in absentia trials which creates a high risk of overturning decisions:

  • During 2020 and 2021, 86% of former members of Serbian paramilitary formations/Yugoslav People's Army were tried in absentia.

  • For 2020 - 2021, 19% of the proceedings were reopened

  • The UN Special Rapporteur on Truth, Justice, Compensation and Guarantee of Non-Repetition has also noted that “Several of the proceedings conducted earlier on have faced criticism due to the fact that they have been conducted in absentia, as the alleged perpetrators resided in countries from where they could not be extradited. Some persons who were convicted in absentia requested the reopening of their proceedings, which resulted in a substantial reduction in the number of final verdicts reached in absentia.”

The limited regional cooperation is also a concern, which was highlighted by the UN Special Rapporteur on Truth, Justice, Compensation and Guarantee of Non-Repetition and by the chief prosecutor at the UN’s International Residual Mechanism for Criminal Tribunals in The Hague, who recently stated that:

  • Croatia is “taking political decisions to block the justice process” in 1990s war crimes cases.

  • “in the former Yugoslavia, the most significant issue remains regional judicial cooperation” in war crimes cases.

  • Bosnia and Herzegovina and Serbia “are experiencing severe difficulties obtaining cooperation from Croatia”.

Documenta also highlighted concerns regarding the judicial review of criminal investigations, highlighting that the Constitutional Court remedy has been effective for granting compensation (but not for seeing the effective investigations take place), as well as concerns regarding accounting for missing persons.

Please see the slides for the full Briefing.

Recommendations:

Documenta - Center for Dealing with the Past recommended to the Committee of Ministers to:

  • Continue examining the Skendizc and Krznaric group of cases under enhanced procedure;

  • Request the national authorities to accelerate the processing of pending cases, and to reverse the trend of decreasing prosecutions and trials;

  • Ensure that investigations, prosecutions and trials are carried without without ethnic bias (regardless of the ethnicity of the perpetrators and victims);

  • Take steps to increase regional cooperation, exchange of information and evidence across borders and take all necessary efforts to ensure in person trials.

  • Put an end to any political interference in the investigation, prosecution and trials of war crimes;

  • Update the accounting on missing persons and ensure it is accessible to the public;

  • Increase the capacity of county prosecutor’s offices in Osijek, Rijeka, Split and Zagreb to process “dormant cases”.

Relevant Documents

Photo Provided by Hungarian Helsinki Committee

Overview of the case:

The case of Ilias and Ahmed concerns the authorities’ failure to comply with their procedural obligation under Article 3 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”.

On behalf of the Hungarian Helsinki Committee, Andras Lederer discussed the general presumptions concerning the safety of Serbia as a third country and the legal instruments in force. He also highlighted the fact that the government does not foresee any change.

The Hungarian Helsinki Committee highlighted the fact that automatic removals to Serbia continue. The State Borders Act prescribes the automatic removal of unlawfully staying foreigners to the Serbian side of the border fence without identification, individualised procedure, formal decision or contacting the Serbian authorities. Concern also also raised regarding “access” to asylum:

• Sections 267-275 of the Transitional Act introduces a pre-approval system against which no remedy is available;

• Since May 2020, 86 statements of intent were sent to the asylum authority, 12 of these were approved;

•Those fleeing Ukraine who do not fall under the temporary protection scheme are also sent to Serbia;

• Regular denial of access to asylum on the territory, related domestic court decisions sabotaged or not implemented

Recommendations

The Hungarian Helsinki Committee recommend that the Committee of Ministers request information from the authorities concerning:

• The state of play of the reform of the asylum system allegedly underway since at least 20 October 2020, especially how it will contribute to the implementation of the general measures identified in the judgment

• Until the introduction of this reform, how authorities discharge their duties under Article 3 in the framework of the embassy system in cases where prospective applicants are staying in Hungary

Furthermore, the Committee of Ministers should request the authorities to:

• Conduct a new assessment on the situation of asylum-seekers in Serbia

• Repeal Section 51(2)(f) of the Asylum Act and review the related amendment to the Fundamental Law

• Repeal Section 5(1)(b) of the State Borders Act

• Amend Section 51(2)(e) and Section 51/A of the Asylum Act to ensure that the „safe third country” concept is applied in cases where the third country ensures access to territory and procedure

• Take measures that ensure effective access to territory and procedure at the borders and on the territory of Hungary regardless of their migratory status.

Please see the slides for the full Briefing.

Relevant Documents

Selahattin Demirtaş (no.2) v Turkey

Overview of the case:

The Court found that the applicant was detained in the absence of evidence to support a reasonable suspicion he had committed an offence (violation of Article 5 §§ 1 and 3) and that his arrest and pre-trial detention especially during two crucial campaigns pursued an ulterior purpose, namely to stifle pluralism and limit freedom of political debate (violation of Article 18 taken in conjunction with Article 5); that lifting of the applicant’s parliamentary immunity and the way the criminal law was applied to penalise the applicant for political speeches were not foreseeable and prescribed by law (violation of Article 10) and that his consequent detention made it effectively impossible for the applicant to take part in the activities of the National Assembly (violation of Article 3 of Protocol No. 1).

The briefing particularly focused on the Government’s argument that “new pieces of evidence” that had not been examined by the ECtHR have emerged and that the substance of the allegations against Mr. Demirtaş is now different.

The applicant’s legal representatives, explained that:

  • 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 organisation—all of which have been carefully assessed and discussed in the Grand Chamber judgment,

    • 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.

  • Mr Demirtaş has not been released and has been held in pre-trial detention almost six years;

  • Türkiye have not acted in ‘good faith’, in a manner compatible with the ‘conclusions and spirit’ of the Demirtaş judgment (see also Osman Kavala v. Türkiye [GC], (46/4), para. 173).

The legal representatives of Mr. Demirtaş also explain the ongoing judicial harassment against the applicant:

  • ´4 years and 8 months prison sentence for allegedly ‘making propaganda for a terrorist organization’ (referred to as the second set of proceedings before the Committee of Ministers) – used as a tool to prevent the applicant’s release despite the ECtHR judgment and to prevent his participation in any election which may be held prior to 2026;

  • ´Following decisions of conviction, acquittal, separation and joinder of cases in 47 cases filed against the applicant, 20 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 may prohibit Mr. Demirtaş from becoming the founder or member of any political party for five years;

  • ´Stigmatized as "terrorist" and "murderer" with the statements of high-level public officials'';

  • 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.

Recommendations

The applicant’s legal representatives urged the Committee of Ministers to:

i. continue the supervision of the implementation of the judgment Selahattin Demirtaş v. Türkiye (no. 2) [GC], as individual measures to ensure the applicant’s release and acquittal and other measures that will provide restitio in integrum have not been fulfilled;

ii. request the Government of Türkiye to release Mr Demirtaş immediately;

iii. 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;

iv. urge the Constitutional Court of Türkiye to conclude, without delay and in line with the Grand Chamber judgment, the individual applications which are listed between paragraphs 23 and 25 of our Rule 9.1 submission dated 17 May 2021;

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

vi.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;

vii. write a letter to the Minister of Foreign Affairs of Türkiye to urge the Government to fully execute the Grand Chamber judgment;

viii. 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.

Please see the slides for the full Briefing.

Relevant Documents

EIN Civil Society Briefing May: Belgium, Azerbaijan, and Turkey

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On 30 May 2022, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the Committee of Minister’s Human Rights Meeting on 8-10 June 2022. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

  1. Vasilescu v. Belgium, which concerns the inhuman and degrading treatment suffered by the applicants, due to the material conditions of their detention taken as a whole. Bart De Temmerman, from the Conseil Central de Surveillance Pénitentiaire (CCSP), presented relevant developments, and ongoing concerns and made recommendations for the implementation of this case.

  2. Khadija Ismaylova v. Azerbaijan and Khadija Ismayilova v. Azerbaijan (no. 2) concerns violations of the applicant’s right to privacy and freedom of expression in connection with her work as a journalist. The status of implementation of the case and recommendations were presented by the Applicant, Khadija Ismaylova.

  3. Selahattin Demirtas (no.2) v Turkey, which 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; and unforeseeable lifting of parliamentary immunity and subsequent criminal proceedings to penalise the applicant for political speech. The case was briefed on by Ayşe Bingol, Co-Director of the Turkey Human Rights Litigation Support Project.

Overview of the case:

Between October 2011 and July 2012 (in the Merksplas and Antwerp prisons), there was insufficient living space; detainees slept on floor mattress; there was lack of privacy in the use of toilets and lack of toilet or access to running water for 60 days; exposure to passive smoking and reduced time out of cell. The European Court of Human Rights (ECtHR) found a violation of Article 3 of the European Convention of Human Rights.

CCSP reminded the participants of the key findings for the ECtHR:

  • § 127  (…) The Court notes that the problems of prison overcrowding in Belgium, as well as the problems of hygiene and ageing prison infrastructure are of a structural nature and do not only concern the personal situation of the applicant. (…)

    (…) none of the remedies invoked by the Belgian Government could be considered effective remedies to be exhausted.

  • § 128 In this context, the Court recommends that the Belgian State consider the adoption of general measures. On the one hand, measures should be taken to guarantee detainees conditions of detention in accordance with Article 3 of the Convention. On the other hand, detainees should have recourse to prevent the continuation of an alleged violation or to enable the person concerned to obtain an improvement in his conditions of detention.

CCSP summarised to participants the last Action Report from the Government (March 2022):

  • The authorities indicate that they must continue to adopt measures and conduct reflections in order to put an end to prison overcrowding and to ensure conditions of detention in accordance with international standards.

  • The authorities indicate that, regarding remand centers, they must continue to conduct reflections in order to better distribute the detainees.

Recommendations to the CM in relation to the Vasilescu v. Belgium judgment:

  • immediate reduction of prison overcrowding so that every prisoner has at least a bed.

  • continuous monitoring of the evolution of prison population and reinforcement of statistical services; preparation and implementation of prison policy on the basis of accurate data.

  • establishment of the Conseil pénitentiaire (Act of 23 March 2019) with the mission to evaluate the social and scientific relevance of the prison policy pursued

  • legislation that puts an upper limit to the number of prisoners.

  • implementation of an effective remedy.

Please see the slides for the full Briefing.

Relevant Documents (French)

This case concerns violations, between 2012 and 2014, of the rights of the applicant, a renowned investigative journalist, to respect for private life and reputation as well as to freedom of expression (violations of Articles 8 and 10). In the context of the present case, the applicant, after having published and contributed to articles criticising the alleged involvement of the President’s daughters in various commercial ventures, was sent a letter threatening her with public humiliation if she did not stop her investigative reporting. When she refused, a video featuring scenes of a sexual nature involving the applicant and her then boyfriend, taken with a hidden camera secretly installed in her bedroom, was posted on the Internet. Around the same time, newspapers ran stories accusing her of anti-government bias and immoral behaviour.

Khadija Ismayilova highlighted to participants the latest developments in individual measures:

  • The latest communication of the authorities is the first official confirmation of the fact that the investigation was suspended.

  • Investigation was ineffective, failing to take into account her status as journalist and the blackmail, treating the crime as a private matter, and failing to take steps capable of identifying the perpetrator.

  • Private information disseminated by Baku City Prosecutor’s office via email to still in public domain

  • All key findings during the investigation were done by her: she discovered the cables from the camera; she found the engineer who connected the cable to the state telephone company’s telephone box.

  • 2020 Memoir of former political prisoner Rufat Safarov contains new information about the identity of the perpetrator

  • In 2012, she lodged a complaint to remove the websites musavat.tv and irib2.info which originally published the video. She filed subpoena to request information about ownership data of the websites, obtaining information about the bank card used to open the website (however, the prosecutor took no further steps to identify the owner of the bank card).

  • In 2014, she discovered evidence, that the new website which published new parts of the video footage filmed back in 2012 was linked to the Ses newspaper: video was uploaded from the Ses Information Agency’s video program.

  • Newspapers and their reporters, who were part of the smear campaign against her were awarded with free apartments by the president funded media house project.

  • Illegal surveillance: Forensic examination of Amnesty International has found traces of Pegasus spyware in her phone

  • Video scandal is still affecting her life and relationships with friends and family

  • Constant mentions of video and extramarital relationship by the government supporters or troll army

  • Videos removed from the original site by the hosting company – but government never issued blocking decision about any website which published the video or links to it

Khadija Ismayilova highlighted latest developments in general measures:

  • Ongoing practice of surveillance, blackmail and smear campaign against journalists, gender activists, family members of political figures, women politicians.

  • Dozens of activists, journalists, lawyers, now in the process of demanding investigation into Pegasus spyware attack in Azerbaijan.

  • New Media Law is restrictive and opens new avenues for persecution against journalists who criticize the government.

Recommendations to the CM in relation to Khadija Ismayilova v. Azerbaijan judgment:

  • Reopen and conduct the investigation in respect of the interferences with her private life in a manner that is consistent with international human rights standards, by ensuring that the investigation is carried out in respect of the threatening letter, the secret filming and dissemination of intimate videos by unidentified persons as well as the public disclosure of the personal information in the authorities’ report on the status of investigation;

  • Ensure that, inter alia, concrete steps are taken to identify the perpetrator, and that the authorities send an inquiry regarding the identity of the account holder in connection with the ownership of the websites;

  • Immediately and comprehensively take such action as will ensure that all private content relating her private life that was the subject matter of this case, not least the details disclosed by the prosecutor in the context of the criminal investigation, be permanently removed from online sources;

  • Quash her criminal conviction and ensure removal of her conviction from state registry;

  • Provide compensation for travel ban and asset freezing;

  • Return the tax liability enforced against her as a result of illegal conviction;

  • Ensure justice in the tax case against Radio Free Europe/Radio Liberty and create conditions for their activity;

  • Recalling Recommendation CM/Rec(2022)4 of the Committee of Ministers to member States on promoting a favorable environment for quality journalism in the digital age as well as a positive obligation of the State to create a favorable and enabling environment, ensure safety and security of journalists, take immediate steps in order to effectively guarantee the freedom of expression and safety of journalists in Azerbaijan, and amend the domestic legislation accordingly.

  • Ensure that journalists are not being subject to criminal prosecution for the lack of accreditation in Foreign Ministry, and ensure the accreditation procedures are transparent and effective.

Please see the slides for the full Briefing.

Relevant Documents

Selahattin Demirtaş (No. 2) case v. Turkey

Overview of the case

The Court found that the applicant was detained in the absence of evidence to support a reasonable suspicion he had committed an offence (violation of Article 5 §§ 1 and 3) and that his arrest and pre-trial detention especially during two crucial campaigns pursued an ulterior purpose, namely to stifle pluralism and limit freedom of political debate (violation of Article 18 taken in conjunction with Article 5); that lifting of the applicant’s parliamentary immunity and the way the criminal law was applied to penalise the applicant for political speeches were not foreseeable and prescribed by law (violation of Article 10) and that his consequent detention made it effectively impossible for the applicant to take part in the activities of the National Assembly (violation of Article 3 of Protocol No. 1).

The briefing particularly focused on the Government’s argument that “new pieces of evidence” that had not been examined by the ECtHR have emerged and that the substance of the allegations against Mr. Demirtaş is now different. First, as regards the new evidence, Ms. Bingol argued that the Government's argument that an assessment of evidence is out of bounds for the CM is manifestly unfounded in view of the CM’s role in ensuring implementation of the judgment, including the part concerning the Article 18 violation. Second, the Government must convincingly explain why the evidence claimed to be ‘new’ appears only now, several years after the events, and following the ECtHR’s December 2020 judgment. Third, the Government fails to give clear and reliable information on the alleged ‘new’ evidence, failing to explain whether and why they are different from his statements given at the investigation stage. Moreover, heavy reliance is placed on supposed anonymous witnesses, yet reports illustrate an extremely worrying practice of the abuse of such witnesses in Turkey.

Recommendations to the CM in relation to Selahattin Demirtaş v. Turkey (2) judgment:

  1. To insist on the immediate release of Selahattin Demirtaş as required by the ECtHR judgment and indicate that continuation of Mr. Demirtaş’s detention in any form under criminal proceedings remaining within the scope of the Grand Chamber judgment constitutes a prolongation and entrenching of the violation of his rights under the Convention, as found by the ECtHR.

  2. To confirm that the Grand Chamber judgment clearly applies to Mr. Demirtaş’s ongoing pre-trial detention, the criminal proceeding under which he was convicted, and to any other ongoing or future proceedings or detention, in which the factual or legal basis is substantially similar to that already addressed, and found to violate his Convention rights, by the ECtHR in its judgment.

  3. To call for the halt of all criminal proceedings initiated against Mr. Demirtaş following the constitutional amendment lifting his parliamentary immunity, as the Grand Chamber found that the amendment did not meet the legality standard of the Convention, and that all proceedings initiated pursuant to it should therefore be deemed unlawful.

  4. To request the Government of Turkey to end the persecution through abusive criminal proceedings of Selahattin Demirtaş, including by dropping all charges under which he has been investigated, prosecuted and detained, which have pursued an ulterior purpose of stifling pluralism and limiting freedom of political debate, in conformity with the Court’s finding that his rights under Article 5(1) in conjunction with Article 18 were violated, and that his exercise of the right to freedom of expression was wrongfully used as evidence to incriminate him.

  5. To emphasize the continuing nature of the breach and that restitutio in integrum, in this case, requires – inter alia - the cessation of the persecution of Mr. Demirtaş through criminal proceedings, in the form of ongoing and future investigations, prosecutions and detentions, including pre-trial detentions, solely for his political activities and his political speech.

  6. In the event that Selahattin Demirtaş remains in detention at the time of the 1436DH 8-10 June 2022 meeting, to take the necessary steps to trigger infringement proceedings against Turkey under Article 46(4) of the Convention on the ground of its continued failure to comply with the ECtHR Grand Chamber’s judgment.

The Turkey Human Rights Litigation Project also recommended that the CM must now also decide whether new pieces of evidence advanced by the Government are really new, considering the Court’s findings concerning Article 18 in the principal judgment.

Please see our Civil Society Briefing from September 2021 for more information on this case.

Relevant Document

9.2 Submissions

9.1 Submissions

CM Decisions

 

Overview of EIN Civil Society Briefing March 2022

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On the 3rd March 2022, EIN held a civil society briefing for Permanent Representatives of the Council of Europe, ahead of the Committee of Minister’s Human Rights Meeting on 8-10 March 2022.

The Briefing focused on the following cases: 

  1. M.A. v. France, presentation by Paul Chiron, in charge of legal support at La Cimade.

  2. Tsintsabadze v. Georgia, presentation by Tamar Oniani, Head of the International Litigation Team at the Georgian Young Lawyers Association (GYLA) and Tamar Abazadze, Head of Analytical Department at the Public Defender Office (PDO)

  3. Ramazanova and others v. Azerbaijan, presentation by Nora Wehofsits, International Advocacy Officer, Human Rights House Foundation (HRHF), and Anar Mammadli, Co-Founder and Senior Advisor, Election Monitoring and Democracy Studies Center (EMDS). The NGOs are calling, in their rule 9.2 Communications, for having it moved from the standard procedure to the enhanced procedure.

  4. Lashmankin and others v. Russia, presentation by EIN Director, George Stafford.

M.A. v France

The case concerns the enforcement on 20 February 2015 of a removal order against the applicant, an Algerian national, who was sentenced in 2006 in France to seven years’ imprisonment and to permanent exclusion from French territory for terrorism-related acts.

Overview of the Briefing

La Cimade reminded participants of the European Court of Human Rights judgments in finding the following violations :

  • Article 3, in particular with regard to the applicant’s profile, who was not merely suspected of having links with terrorism but had actually been convicted in France for serious acts of which the Algerian authorities were aware. The Court considered there was a genuine and serious risk that, if detained, he would be exposed to treatment contrary to that provision.

  • Article 34, with regard to the fact that authorities had deliberately and irreversibly reduced the level of protection of Article 3 by creating conditions making it very difficult for him to apply to the Court, and because French authorities violated interim measures.

La Cimade outlined ongoing issues:

Violation of Article 3

  • Non-suspensive procedure

    • French authorities developed a special procedure but it is non-applicable to a lot of cases with a similar profile to M.A. This non-suspensive procedure jeopardizes the necessary examination of the risks of mistreatment and torture.

  • Failure to take into account convictions on the basis of Article 3

    • There have been several ECtHR cases concerning France about the examination of risks of torture and mistreatment. However, French authorities never took real measures to avoid new similar violations.

Violation of Article 34

  • New Interim measures have been disregarded and violated:

    • Example: N. B. and other v. France (49775/20), refusal to release a family in deportation center despite the interim measure.

  • New expulsions have been organized to deliberately and irreversibly reduced the level of protection of Article 3

    • Examples:

      • M.G. v. France (48932/20), the applicant was arrested the night before his expulsion despite refugee quality and older IM

      • M.I. v. France. (24486/21), the applicant was arrested the night before his expulsion

      • D.O. v. France (58627/21), the applicant was arrested at the 9:30 and a flight was scheduled to 19:25

 La Cimade recommends to the Committee of Ministers: 

  • To continue monitoring the implementation of M.A. v. France under enhanced procedure;

  • To debate the case again before the end of 2022;

  • To ask France to implement legislative reforms to guarantee the suspensive nature of all asylum applications, as well as the suspensive nature of any appeal against decisions determining the country of return;

  • To ask France to guarantee that a reasonable period of time is given to the person to submit a request for an interim measure to the ECtHR.

Please see the slides for the full Briefing.

Relevant Information

CM Decisions

1406e réunion (DH), 7-9 juin 2021 - H46-10 Groupe M.A. c. France (Requête n° 9373/15) [CM/Del/Dec(2021)1406/H46-10]

1362e réunion (DH) décembre 2019 - H46-7 Groupe M.A. c. France (Requête n° 9373/15) [CM/Del/Dec(2019)1362/H46-7]

1340 réunion (DH) mars 2019 - H46-6 Groupe M.A. c. France (requête n° 9373/15) [CM/Del/Dec(2019)1340/H46-6]

1331 réunion (DH) décembre 2018 - H46-38 M.A. c. France (Requête n° 9373/15) [CM/Del/Dec(2018)1331/H46-38]

1324 réunion (DH) septembre 2018 - H46-28 M.A. c. France (Requête n° 9373/15) [CM/Del/Dec(2018)1324/H46-28]

NGO/NHRI Communications

1428e réunion (mars 2022) (DH) - Règles 9.2 et 9.6 - Communication d'une ONG relative à l'affaire M.A. c. France (requête n° 9373/15) et réponse des autorités (28/01/2022) [french only] [DH-DD(2022)134]

Tsintsabadze v Georgia

This case concerns the lack of effective investigations into allegations of ill-treatment or violations of the right to life; excessive use of force by the police in the course of arrest and/or while detaining suspects.

Overview of the Public Defender’s Office Briefing

The PDO outlined four important issues relevant to the execution of the case:

  1. Abolition of the State Inspector's Service

    Instead of strengthening the independence and effectiveness of the SIS, on the contrary, on 30 December 2021, the Georgian Parliament adopted a bill abolishing the Service and dismissing State Inspector and her Deputies. These recent changes to the SIS are counter to the commitments taken by the Government of Georgia before the CM.

  2. Separation of Prosecutorial and Investigative Functions

    The current proposed legislative amendments fail to ensure the independence of the State Inspector’s Service from the Prosecutor’s Office, do not grant the Service authority to make a decision on carrying out important investigative actions independently from the prosecutor, fail to respond to the aim of the reform of separating the investigative and prosecutorial functions

  3. Informal rule in penitentiary establishments and lack of investigation

    Similar to the previous years, managing penitentiary establishments by resorting to the informal rule remains a serious challenge in terms of protecting prisoners from violence. Administrations of penitentiary establishments delegate powers to informal leaders (the so-called watchers) and rule the establishments informally.

4. Deficiencies in detecting and documenting ill-treatment

The faulty practice of identifying and documenting incidents of alleged violence in Penitentiary system is still maintained despite positive developments indicated by the Government in its latest action plan.

The PDO’s Recommendations in order to effectively implement Tsintsabadze Group cases:

Taking into account a completely unprecedented case of abolition of an independent state body - the SIS -, we urge the CM to adopt an Interim Resolution and urge the Government of Georgia to introduce solid guarantees for institutional, hierarchical and practical independence of the Special Investigation Service, which became operational on 1 March, 2022. 

To the Government of Georgia:

  • With the view of addressing the problem of the criminal underworld and its informal rule in penitentiary establishments, to develop a strategy for overcoming the criminal underworld; 

  • Ensure uninterrupted audio and video recording of questioning of arrested persons in several police agencies in a pilot mode;

  • Install CCTV systems everywhere in police departments, divisions and stations where an arrested person or a person willing to give a statement has to stay.

  • Take into consideration the opinion of the State Inspector’s Service concerning the draft law related to separation of investigative and prosecutorial powers which was submitted by the Government of Georgia to the Parliament of Georgia.

Please see the slides for the full Briefing.

Overview of the GYLA’s Briefing

GYLA reminds participants of the 3 key problems at the national level, from their communication to the CM:

  1. The abolition of the State Inspector’s Service (SIS) in December 2021;

    • On December 30, 2021, the Georgian Parliament, in a peremptory manner, without previous consultations with the SIS and/or other stakeholders, including civil society, and despite sharp criticism from local civil society organizations and Georgia’s partner states, adopted legislative amendments according to which the State Inspector’s Service is abolished in its current form and two new offices are created, which will be responsible for protecting personal data and investigating crimes against law enforcement.

  2. The strengthening of the criminal subculture in the penitentiary establishments;

    • Increased influences of the criminal subculture in penitentiary institutions endanger the physical and psychological inviolability of prisoners, and, remarkably, the prosecutor’s office usually does not respond appropriately or effectively to crimes committed by criminal subcultures and the employees of penitentiary institutions. This undermines the principle of the rule of law, and puts a group of prisoners in danger - those who are not a part of the criminal underworld.

  3. The national legislation’s failure to preclude granting an amnesty or pardon by State officials who are responsible for grave human rights violations.

    In September, the Amnesty Law was adopted with regards to June 20 cases. The application of an amnesty to state agents who have committed violations of inhuman or degrading treatment (regardless of whether they are properly qualified as crimes at the national level) is itself contrary to Article 3 of the Convention, as it will preclude the investigation into such crimes and lead to impunity of those accountable. Such an outcome makes the safeguards generated by the prohibition of ill-treatment illusory and will have a chilling effect on those individuals considering exercising their peaceful enjoyment to freedom of assembly.

GLYA’s Recommendations for the execution of general measures:

The authorities should ensure the independence of the Special Investigation Service (legal successor institution of SIS in the field of investigation). They should provide it with the mandate to eradicate:

  • The lack of jurisdiction regarding high-ranking officials and the prosecutor’s office;

  • The problems related to its investigative jurisdiction;

  • The continued control of the Prosecutor’s Office over the investigation process and its exclusive power to conduct the prosecution;

  • The lack of authority to conduct investigations into certain categories of crimes; and

  • The problems related to the unhindered access of the State Investigation Service staff to penitentiary institutions and temporary detention facilities.

  • All necessary measures should be carried out in a timely manner to reduce the level and influence of criminal underworld and tackle ‘informal governance’ in Georgian prisons, including with the engagement of civil society and other stakeholders. To that end, a plan and strategy should be developed, which will provide for detailed measures to be taken by the state. Furthermore, the number of prison employees should be increased, and they should be provided with appropriate continuing education for their professional and educational development.

  • Legislative changes should be made, which would in future preclude granting an amnesty or pardon to State officials who are held to be responsible for grave crimes committed against life and health, as well as torture, inhuman treatment, and punishment.

Please see the slides for the full Briefing.

Relevant Information

CM Decisions

1390th meeting (1-3 December 2020) (DH) - H46-10 Tsintsabadze group v. Georgia (Application No. 35403/06) [CM/Del/Dec(2020)1390/H46-10]

1362 meeting (DH) December 2019 - H46-8 Tsintsabadze group v. Georgia (Application No. 35403/06) [CM/Del/Dec(2019)1362/H46-8]

1324 meeting (DH) September 2018 - H46-6 Tsintsabadze group v. Georgia (Application No. 35403/06) [CM/Del/Dec(2018)1324/H46-6]

NGO/NHRI Communications

1428th meeting (March 2022) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender of Georgia) (21/01/2022) in the case of Tsintsabadze group v. Georgia (Application No. 35403/06) [anglais uniquement] [DH-DD(2022)142]

1428th meeting (March 2022) (DH) - Rule 9.2 - Communication from an NGO (The Georgian Young Lawyers’ Association (GYLA) and European Human Rights Advocacy Centre (EHRAC)) (21/01/2022) in the case of Tsintsabadze group v. Georgia (Application No. 35403/06) [anglais uniquement] [DH-DD(2022)141]

1390th meeting (December 2020) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender’s Office of Georgia) (23/10/2020) in the TSINTSABADZE group of cases v. Georgia (Application No. 35403/06) [Anglais uniquement] [DH-DD(2020)991]

1390th meeting (December 2020) (DH) - Rule 9.2 - Communication from NGOs (Georgian Young Lawyers’ Association (GYLA) and European Human Rights Advocacy Centre (EHRAC)) (20/10/2020) concerning the case of TSINTSABADZE GROUP v. Georgia (Application No. 35403/06) [Anglais uniquement] [DH-DD(2020)944]

 

This case concerns violations of the right to freedom of association on account of the failure of the authorities to apply properly the national legislation regulating the registration / the dissolution of the associations. In particular, the repeated failure, of the Ministry of Justice to take a definitive decision, or to respond within the statutory time-limits, amounted to de facto refusals to register the associations.

Overview of the Briefing

HRHF and EMDS reminded participants of the current situation and ECtHR findings:

  • Currently under standard supervision

  • 6 judgements address arbitrary prolongation of registration procedure for associations

  • No sufficient grounds to dissolve associations

  • Repeated registration refusals, problems to receive legal status or grants/financial donations

  • Domestic law on registration unclear and open to interpretation

HRHF and EMDS reminded participants of the General Measures that still need to be actioned:

  • Duty of the Government of Azerbaijan to take remedial measures for improved compliance with the time-limits imposed by the State’s own law.

    • No evidence in the relevant cases.

  • Allegedly heavy workload no excuse for infringements of procedural requirements of domestic law.

  • Domestic law must delimit precisely the circumstances in which sanctions could be applied.

  • NGO Act to provide procedural safeguards against the risk of abuse & arbitrariness.

  • Procedure for conducting inspections by the MoJ on period of time should be prescribed by law.

EMDS outlines to participants the current state of affairs in Azerbaijan:

  • Freedom of association violations <-> legislative framework of NGO operation in the country

  • Quality of the law allows state interference and misuse in implementation

  • Entirety of the laws + legislation: interdependent, unified tool for persecution

  • NGO registration + reporting requirements, power of the MoJ to supervise/monitor/control work of NGOs

  • Disintegration of financial independence & sustainability of NGOs. Limits to grant giving donors. No international civil society donor registered.

  • High fines for breach of operational requirements

  • Intimidation of NGOs - atmosphere of fear and insecurity

  • Situation aggravated by enforcement mechanisms allowing action against undesirable associations.

HRHF and EMDS made the following recommendations to the CM:

  • Move Ramazanova group of cases from standard to enhanced supervision procedure.

  • Ask Azerbaijan to amend domestic legislation regulating NGOs, international & donor organizations

  • Address continuous & systemic freedom of association violations in Azerbaijan by:

    • Abolishing current procedures for registering NGOs/grants/donations, replacing it with a simple notification procedure

    • Removing burdensome requirements for registration + operation of international donors

    • Facilitating access to funding for NGOs by removing prior approval process for international donors

    • Repealing disproportionate & punitive sanctions for violations of domestic legislation

    • Safeguarding freedom of expression & assembly of NGOs

Please see the slides for the full Briefing.

Relevant Information

NGO/NHRI Communications

1406th meeting (June 2021) (DH) - Rule 9.2 - Communication from NGOs (Human Rights House Foundation, Election Monitoring and Democracy Studies Center, Legal Education Society, Women’s Association for Rational Development) (03/05/2021) in the case of RAMAZANOVA AND OTHERS v. Azerbaijan (Application No. 44363/02) [Anglais uniquement] [DH-DD(2021)507]

1406th meeting (June 2021) (DH) - Rule 9.2 - Communication from an NGO (International Partnership for Human Rights) (23/04/2021) in the case of RAMAZANOVA AND OTHERS v. Azerbaijan (Application No. 44363/02) [Anglais uniquement] [DH-DD(2021)462]

Lashmankin & others v Russia

This case concerns different violations mainly related to the right to freedom of peaceful assembly (reactions to notifications of planned assemblies, reactions to peaceful assemblies, unlawful arrests).

Overview of the Briefing

EIN outlined the background of the legal situation in Russia for participants:

  • No authorisation under Russian law for spontaneous assemblies which are not pre-approved 

  • Huge restrictions on pre-approval of assemblies

  • Punishments for participation in non-approved assemblies:

  • Administrative prosecution, including arrests, detention, very high fines

  • For multiple participations, criminal liability

  • Persecution of civil society working on freedom of assembly

  • September 2021: OVD-info declared a “foreign agent” – including for work on Rule 9 submissions

  • December 2021: authorities blocked OVD-Info’s website

  • December 2021: authorities ordered liquidation of Memorial International and dissolution of HRC Memorial 

EIN provides the following recommendations from various NGO submissions:

CM to request the Russian Federation to:

  • Make spontaneous assemblies lawful

  • Abolish criminal liability for multiple unauthorised assemblies

  • Abolish administrative arrests for unauthorised assemblies; reduce fines 

  • Liberalise procedure of approval of assemblies 

  • Regularly update CM with information on a number of assemblies approved and unapproved, and consequences

  • Issue Interim Resolution 

  • Consider the case at every CM/DH meeting

Please see the slides for the full Briefing.

Relevant Information