Freedom of expression cases at the heart of EIN civil society briefing
/The latest civil society briefing organised by the European Implementation Network, and co-hosted by the Permanent Representations of Ireland, the United Kingdom and Norway took place on Friday, 21st February 2020.
More than 50 participants from 29 countries as well as various Council of Europe bodies attended.
Presentations were given on key freedom of expression cases v Turkey, as well as important cases concerning access to legal abortion in Poland, and the conditions of detention in Romania.
The main recommendations for each case are available here.
Öner and Türk group of cases v Turkey (Application Nr 51962/12) Nedim Şener group v Turkey (Application Nr 38270/11) and Altuğ Taner Akçam group v Turkey (Application Nr 27520/07) on unjustified interferences with freedom of expression, in particular through criminal proceedings, and the consequent chilling effect
By Dr Kerem Altiparmak, Freedom of Expression Association (IFÖD)
Kerem Altiparmak updated the Committee of Ministers concerning the legislative and executive developments with respect to the ongoing lack of full and effective implementation of general measures in Öner and Türk group cases (no. 51962/12). Despite the amendments made in relevant provisions and some positive developments in judicial practice, structural problems observed in this group of cases by the European Court are still continuing. The submission on these cases was prepared by İfade Özgürlüğü Derneği (İFÖD – Freedom of Expression Association), a non-profit and non-governmental organization aims to protect and foster the right to freedom of opinion and expression in Turkey.
Kerem Altiparmak underlined that there had been no progress achieved with regard to the provision of an adequate legislative framework that enables the protection of Article 10 and full and effective implementation of Öner and Türk; Şener and Akçam group of cases.
As he showed, previous amendments introduced had not produced the results suggested by the Government either. ‘Recent amendments made in the Turkish Criminal Code and Anti-Terror Law do not meet the Committee of Ministers’ requirement of fully aligning with the Court’s case law in terms of foreseeability and necessity in a democratic society standard’, he said.
He formulated various recommendations on these cases. Among other things, he underlined that the Öner and Türk; Şener and Akçam group of cases should remain under enhanced procedure and that, given the close connection between freedom of expression and media as foundational pillars of a democratic society, the Committee of Ministers should review the Öner and Türk; Şener and Akçam group of cases in frequent and regular intervals concerning the legislative general measures.
The Committee of Ministers should also carefully examine the introduction of retrogressive measures under Judicial Reform.
Links:
Powerpoint of Kerem Altiparmak
P. and S. v Poland (Application Nr 57375/08), Tysiac v Poland (Application Nr 5410/03) and R.R. v Poland (Application Nr 27617/04) about challenges linked to access lawful abortion in Poland
The cases were briefed by Adriana Lamačková, Senior Legal Consultant for Europe, Centre for Reproductive Rights, and Kamila Ferenc from the Federation for Women and Family Planning
The three judgments became final in 2007, 2011, and 2013 respectively, and more than 12 years have now passed since the first of these landmark judgments. Yet effective measures to give effect to these judgments have still not been adopted by the Polish authorities.
The three judgments each address distinct but overlapping issues regarding the ongoing and serious failures of the Polish authorities to ensure that access to legal abortion in Poland becomes a practical reality for women and adolescent girls and is not merely a theoretical entitlement. Although each of these three judgements mandate some of the same implementation measures, they also each involve distinct and separate issues which can only be addressed by specific implementation measures.
The three judgments require the adoption of the following measures:
• An effective and timely procedure for women to challenge and resolve disagreements with and between doctors regarding their entitlement to legal abortion care and to exercise their rights in this regard;
• Effective measures to guarantee women access to reliable information on the conditions and effective procedures for their access to legal abortion care;
• An effective legal and procedural framework that guarantees that full and reliable information is provided to women and adolescent girls enabling them to take informed decisions about their pregnancy;
• Effective measures to ensure that conscience-based refusals by medical professionals do not undermine or delay women’s access to legal abortion services or prenatal testing;
• Strengthened enforcement procedures and measures to hold health facilities and professionals accountable for any failures to comply with legal obligations to provide legal reproductive health services and information;
• Effective measures to enhance protection of patient data confidentiality;
• Targeted measures to ensure that the needs of adolescents who are seeking legal abortion services are met and that they are treated with respect and due consideration for their vulnerability.
Only once all of these measures have been adopted by the Polish authorities can these three judgments be considered implemented.
Links:
Işıkırık v Turkey (Application Nr 41226/09) about unforeseeable conviction of membership of an illegal organisation for the mere fact of attending a public meeting and expressing views there
By Dr Kerem Altiparmak, Freedom of Expression Association (IFÖD)
Işıkırık group of cases comprise of four judgments concerning violations of the applicants’ right to freedom of peaceful assembly and/or freedom of expression. The Işıkırık group of cases underline structural problems with respect to the full and effective enjoyment of freedom of assembly and freedom of expression as a result of extensive and unforeseeable interpretation and implementation of criminal provisions. The common feature of these cases was the authorities’ failure to show a certain degree of tolerance towards peaceful gatherings and critical expressions.
There has been no progress achieved with regard to the provision of an adequate legislative framework that enables the protection of Article 10 and 11 and full and effective implementation of Işıkırık Group cases. What is more, the legislative framework has become more arbitrary and punitive.
Conclusions and main Recommendations:
Recent legal amendments do not meet the Committee of Ministers’ requirement of fully aligning with the Court’s case law in terms of foreseeability and necessity in a democratic society standards. Recent amendments change nothing to the enjoyment of the right to assembly and freedom of expression. In fact, they become even more unforeseeable and more significantly, arbitrary and selective.
The executive practice confirms the arbitrary use of Articles 220 § 6 and 220 § 7 of TCC, alongside punitive use. The Işıkırık Group cases should remain under enhanced procedure and given the close connection between assembly and expression as foundational pillars of a democratic society, the Committee of Ministers should review the Işıkırık Group in frequent and regular intervals as the legislative and executive general measures. The Committee of Ministers should raise concern with regard to not only the lack of progress in fully aligning the Articles 220 § 6 and 220 § 7 of TCC with Convention standards, but also the introduction of retrogressive measures. Finally, the Committee of Ministers should ask the government to provide detailed statistical data (not just percentages) involving Articles 220 §, 220 § 7, 314 § 1 and 314 § 2 of the TCC with regards to criminal investigations, criminal prosecutions and the outcome of such prosecutions (guilty, not guilty, suspended sentences) as well as detailed information about the length of criminal sentences.
Links:
Rezmives and others and Bragadireanu group v Romania (Application Nr 61467/12+ and 22088/04) on overcrowding and poor conditions of detention in police detention facilities
By George Stafford, Co-Director of the European Implementation Network, on the basis of an input by Ecaterina-Georgiana Gheorghe, Executive Director, APADOR-CH
Further details on the presentation are available in the power point presentation below.
Links:
Power point by George Stafford, EIN Co-Director, on behalf of Georgiana Gheorghe, from APADOR-CH
Pictures: EIN Secretariat