EIN Civil Society Briefing September 2021: Poland, Romania, Lithuania, & Bosnia and Herzegovina (Part 2)

/
prt 2EIN Civil Society Briefing2.png

On 7 September 2021, EIN held its second civil society briefing ahead of the Committee of Minister’s Human Rights Meeting on 14-16 September 2021. The event was held online due to the COVID-19 pandemic.

 The second Briefing focused on the following cases:  

  1. Al Nashiri v. Poland and Al Nashiri v. Romania, which concern violations related to the secret detention and "extraordinary rendition” of the applicant, as a result, of the serious risk of further ill-treatment and conditions of detention in breach of Article 3, as well as of further secret detention. He faces a risk of capital punishment in a trial before a United States military commission, in which, according to the European Court's judgment, evidence obtained under torture might be used.

    • Mikołaj Pietrzak, of the Pietrzak & Sidor Law Office, counsel for Mr Al Nashiri, held a presentation on the Al Nashiri v. Poland case.

    • Amrit Singh, Director of Accountability, Liberty and Transparency Division at Open Society Justice Initiative, briefed the participants on Al Nashiri v. Romania.

  2. Abu Zubaydah v. Poland and Abu Zubaydah v. Lithuania, which concern violations related to the secret detention and "extraordinary rendition” of the applicant. The applicant is exposed to continued arbitrary detention and ill-treatment at the United States Naval Base in Guantanamo Bay. Helen Duffy, counsel for Mr. Abu Zubaydah, and Director at Human Rights in Practice, presented relevant developments and recommendations on both cases to the participants.

  3. Sejdic and Finci v. BiH, which concerns ethnic-based discrimination on account of the ineligibility of persons not affiliated with one of the “constituent peoples” (Bosniaks, Croats or Serbs) to stand for election to the House of Peoples and the Presidency. Lara Dominguez, Acting Head of Litigation at Minority Rights Group International presented the Briefing to participants.

Al Nashiri v Poland

This case concerns a number of Convention rights violations arising from the fact that the applicant was a victim of a secret “rendition” operation involving his transfer between various CIA detention facilities, including one located in Afghanistan. The European Court found it established beyond reasonable doubt that the applicant arrived in Poland on board a Central Intelligence Agency (CIA) rendition aircraft on 5 December 2002 and was detained in a CIA detention facility in Stare Kiejkuty. He was subsequently transferred out of Poland, respectively in June, and September 2003, to other CIA detention facilities and eventually to the United States Guantánamo Bay Naval Base in Cuba.

The Court found that his transfer from Poland exposed him to a real risk of a flagrant denial of justice due to the possibility he would face trial before United States’ military commissions at the Guantánamo Bay Naval Base using evidence obtained under torture. Mr. Al Nashiri was charged with capital offences before the military commissions, and the Court found that he faced a real risk of being subjected to the death penalty.

Overview of Al Nashiri Briefing  

 Mikolaj Pietrzak reminded the participants of the last CM Decision in the case (December 2020):

  • The consequences of the violations of the Convention have not been remedied, as Mr Al Nashiri remains at risk of a flagrant denial of justice in the proceedings before the military commission and risk of the death penalty.

  • The Polish authorities should engage in a more effective dialogue with the US authorities to establish a clear and consistent strategy to intensify the diplomatic efforts.

  • The Committee urged authorities to respond without further delay to the Committee’s previous calls for details of the changes put forward in the criminal investigation.

  • The Polish authorities were called on to clarify how the establishment of the Council of Minister’s Committee for National Security and Defence Affairs will increase democratic oversight over the intelligence services.

  • There is a lack of a clear message from the authorities at a high level to the intelligence and security services as to the absolute unacceptability of and zero tolerance towards arbitrary detention, torture and secret rendition operations.

 Mr. Pietrzak identified several shortcomings concerning the execution of the judgment:

  • Polish authorities have failed to conduct an effective investigation and failed to provide details of measures taken to acknowledge Poland’s role and responsibility for the human rights violations.

  • Polish authorities have failed to seek diplomatic assurances from the U.S. government.

  • Legislative changes are not effective and did not increase effective control over the activities of the special services.

Mr. Pietrzak set out the following recommendations to the Committee of Ministers:

  • Monitor this case more frequently.

  • Issue an interim resolution deploring the failure to execute the Court’s judgment and calling upon Poland to promptly pursue the following common measures:

    • Undertake effective and transparent domestic investigations.

    • Seek reliable, specific, and binding diplomatic assurances from the U.S. authorities.

    • Issue an official acknowledgement that Poland hosted a secret CIA prison on its territory and public apologies to Mr. Al Nashiri for the abuse he endured.

 Please see the slides for the full Briefing.

Relevant Documents

Rule 9.2 Submissions

 

Al Nashiri v Romania

The case concerns violations of a number of Convention rights arising from the fact that the applicant was the victim of an “extraordinary rendition” operation. The European Court found it established beyond reasonable doubt that Romania hosted a CIA detention site code-named “Detention Site Black”, which operated from 22 September 2003 to 5 November 2005, and that the applicant was secretly detained there from 12 April 2004 to 6 October 2005, or, at the latest, 5 November 2005. He was subsequently transferred by the CIA out of Romania to another of its detention facilities located in Lithuania or in Afghanistan, and eventually to the United States Guantánamo Bay Naval Base in Cuba.

The Court found that his transfer from Romania exposed him to a real and foreseeable risk of a flagrant denial of justice, due in particular to the possibility that evidence obtained under torture could be admitted in the proceedings already engaged against him at the time of the judgment before a military commission at the Guantánamo Bay Naval Base and of being subjected to the death penalty following his trial.

 Overview of Al Nashiri v Romania Briefing

Open Society Justice Initiative updated the participants on recent developments in the case:

  • In March 2021, ignoring the findings of the ECtHR about the secret CIA prison in Romania, the Prosecutor dismissed the domestic investigation on the grounds of a lack of evidence. The decision was upheld on appeal.

  • Inadequate and superficial investigation: excessive delays, failure to interview key witnesses, failure to request relevant data, and inconsistent application of the standard of proof.

  • Contrary to international law, the prosecutor found that crimes of torture and deprivation of liberty would have been time-barred. In any event, Romania cannot avail itself of the statute of limitations where its own inaction caused the delay.

  • No efforts have been undertaken to inform the Romanian public about the progress of the investigation.

  • No binding assurances have been obtained from U.S. authorities that Mr Al Nashiri will not be subjected to the death penalty and violations of fair trial procedures.

  • Attempts to seek diplomatic assurances from U.S. authorities have been sporadic and superficial.

  • No explanation has been provided as to how Romania plans to further seek and obtain assurances from the new Biden administration.

  • Romania has ignored the ECtHR’s finding beyond reasonable doubt that Romania hosted a CIA black site where Mr. Al Nashiri was secretly detained. It has not acknowledged its role in and responsibility for the human rights violations that occurred in this case.

  • No explanation has been provided as to how and when Romania will issue a public acknowledgement.

  • The violations that Mr. Al Nashiri was and continues to be subjected to, as a result of Romanian authorities’ actions and inactions, demand an official apology.

  • Recent amendments to the Criminal Code removed the statute of limitations for torture, but only prospectively.

  • The current prescription period for torture is inconsistent with international law because it does not apply from the time when the crime of torture occurred. 

Open Society Justice Initiative reminded participants of Romania’s 2020 Action Plan:

  • The Action Plan, submitted in April 2019, was at best pro forma, cursory, and has never been updated. 

  • The Plan does not reflect the recent developments, including the closure of the criminal investigation and other aspects of Romania’s failure to implement the Court’s judgment. 

Open Society Justice Initiative provides substantive recommendations for Romania to:

  • Reopen the case to undertake an effective and transparent domestic investigation.

  • Intensify efforts and find creative ways to seek binding diplomatic assurances from the U.S government to Mr Al Nashiri’s counsel

  • Issue an official acknowledgement and a public apology

  • Remove the statute of limitations for torture “in all instances”, including retrospectively

Open Society Justice Initiative made procedural recommendations for the CM to:

  • Monitor the implementation of this case more frequently.

  • Issue an interim resolution deploring the failure to execute the Court’s judgment and calling upon Romania to promptly pursue the named substantive measures.

  • Encourage all relevant organs of the Council of Europe to continue to press for the execution of the Al Nashiri judgment.

 Please see the slides for the full Briefing.

Relevant Documents

Rule 9.2 Submissions

 

Abu Zubaydah v Poland and Abu Zubaydah v Lithuania

This cases concern the violation of a number of Convention rights arising from the fact that the applicant was a victim of a secret “rendition” operation, involving his transfer between various CIA detention facilities, including one located in Afghanistan.

In Abu Zubaydah v. Poland, the European Court found it established beyond reasonable doubt that the applicant arrived in Poland on board a Central Intelligence Agency (CIA) rendition aircraft on 5 December 2002 and was detained in a CIA detention facility in Stare Kiejkuty. He was subsequently transferred out of Poland, respectively in June and September 2003, to other CIA detention facilities and eventually to the United States Guantánamo Bay Naval Base in Cuba.

The Court found that the transfer from Poland exposed him to a real risk of a flagrant denial of justice due to the possibility he would face trial before United States’ military commissions at the Guantánamo Bay Naval Base using evidence obtained under torture. In this context, the Court also noted that no case against Mr Abu Zubaydah had been listed for trial and found that his indefinite detention without charge in itself amounted to a flagrant denial of justice.

In Abu Zubaydah v. Lithuania, the European Court found it established beyond reasonable doubt that Lithuania had hosted a Central Intelligence Agency (CIA) detention facility, code-named “Detention Site Violet”, operated from either 17 or 18 February 2005 until 25 March 2006 and the applicant was secretly detained there during that period. He was transferred by the CIA out of Lithuania to another CIA detention site in Afghanistan and eventually to the United States Guantánamo Bay Naval Base in Cuba.

The Court found that, by enabling the applicant’s further transfer to another CIA detention site, the Lithuanian authorities had also exposed him to a foreseeable risk of continued secret, incommunicado and otherwise arbitrary detention, liable to continue for the rest of his life as well as to further ill-treatment and conditions of detention, in breach of Article 3. At the time of the judgment, the applicant was detained in the Guantánamo Bay Naval Base. No criminal proceedings against him had been engaged.

Overview of the Abu Zubaydah v Poland and Abu Zubaydah v Lithuania Briefing

Human Rights in Practice reminded participants of the issues of concern of the cases:

  • The Court concluded that, through collaboration with Lithuanian, Romanian and Polish authorities, the CIA secretly imprisoned, tortured, and ill-treated Mr Abd al Rahim al Nashiri and Mr Abu Zubaydah, subjecting them to years of abuse. Now detained at Guantanamo Bay since 2006, both men are subject to an ongoing “flagrant denial of justice”. 

  • Compliance with these judgments is a critical aspect of meaningful accountability for European complicity in the CIA’s secret detention and torture program. 

Human Rights in Practice provided information on recent developments regarding the cases:

  • Mr Abu Zubaydah has been held without any review of the lawfulness of his detention by a court or independent legal authority, and without charge or trial, for nineteen years. He falls into the category dubbed “forever prisoners” who the U.S. administration refuses to charge or try but will not release. This situation remains unchanged.

  • Welcomed the securing of power of attorney status for the applicant, and a beneficiary has been nominated, this is the first step for just satisfaction to be released.

Human Rights in Practice recommended that the Committee of Ministers:

  1. Monitor these cases more frequently and schedule them for oral debate, beginning with the next CM/DH meeting in September 2021;  

  2. Issue an interim resolution deploring the failure to execute the Court’s judgments and calling upon Poland, Romania, and Lithuania to promptly pursue the following common measures:  

    • Undertake effective and transparent domestic investigations. Where criminal investigations have already been closed, authorities should undertake specific measures to reopen them with the aim of conducting a prompt, thorough and effective inquiry into their government’s role in the CIA’s extraordinary rendition and secret detention program, consistent with the ECtHR’s findings that such conduct indeed occurred. The terms of reference of the investigations should be disclosed to Mr Al Nashiri’s and Mr Abu Zubaydah’s counsel and the public, and the materials from these investigations should be declassified to the fullest extent possible and, where possible made public, particularly transcripts of witness testimonies, responses to data/documents requests, and any procedural decisions made by the Prosecutor.  

    • Seek reliable and specific diplomatic assurances from the U.S. authorities that Mr Nashiri and Mr Abu Zubaydah will not be subjected to the death penalty and/or a flagrant denial of justice. With a new U.S. administration in place, Polish, Romanian, and Lithuanian authorities at the highest level should redouble their efforts to seek such assurances. All communications to and from the U.S. government in relation to these assurances should also be disclosed to Mr Al Nashiri’s and Mr Abu Zubaydah’s counsels, so that they can monitor the government’s compliance with the Court’s judgment.  

    • Issue an official acknowledgement that Romania, Poland, and Lithuania hosted a secret CIA prison on their territories and public apologies to Mr Al Nashiri and Mr Abu Zubaydah for the abuse they endured.

  3. Insist that Poland and Lithuania facilitate the prompt payment of just satisfaction due to Mr Abu Zubaydah’s designated beneficiary.  

  4. Insist that Romania removes the statute of limitations for the crime of torture “in all instances” i.e. to include liability for acts of torture whenever they occurred, including retrospectively.  

  5. Encourage all relevant organs of the Council of Europe to continue to press for the execution of these cases, including the offices of the Commissioner for Human Rights, the Parliamentary Assembly, the PACE Rapporteur for Execution of Judgments, and the Secretary General. In particular, request the Secretary General to diplomatically engage with the new U.S. administration in order to obtain assurances that neither Mr Al Nashiri, nor Mr Abu Zubaydah would be at risk of the death penalty and/or a flagrant denial of justice.

 

Relevant Documents on Abu Zubaydah v Poland

 9.2 Submissions

 

Relevant information on Abu Zubaydah v Lithuania

 

Sejdic and Finci v BiH

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

In accordance with the Constitution of Bosnia and Herzegovina, only persons declaring affiliation with a “constituent people” are entitled to stand for election to the Presidency, which consists of three members: one Bosniak and one Croat, each directly elected from the Federation of Bosnia and Herzegovina, and one Serb directly elected from the Republika Srpska.

Overview of Sejdic and Finci v BiH Briefing 

Minority Rights Group International updated participants on recent developments relating to the case:

  • May 2019: European Commission’s ‘Opinion on Bosnia and Herzegovina’s application for Membership of the European Union’.

    • BiH must undertake legislative and constitutional reforms ordered by ECtHR in Sejdić & Finci group of cases.

  • EU is pushing for a quick deliverable in BiH by focusing on reforms to the electoral law without touching the constitution.

    • The proposed law would divide the Federation into two electoral units, to be defined either by territory or by categorization of people into a Constituency 1 and Constituency 2 (clearly meant to create a Bosniak unit and a Croat unit).

    • The move placates Serb and Croat hardliners who oppose strengthening the central government.

    • High-level negotiations are being held behind closed doors without consulting civil society and minorities.

 Minority Rights Group International reminded participants of the case’s status of implementation:

  • BiH has failed to adopt necessary constitutional and legislative reforms.

    • 3 national elections have taken place since the Sejdić & Finci judgment without necessary reforms

    • The next elections are likely to take place in October 2022

    • BiH failed to file an updated Action Plan on implementation since 2017

  • Inter-agency working group established within the Joint Collegium of the two legislative chambers to propose amendments to the electoral law

    • No inclusion of non-constituent minorities in the process

  • Croat and Serb nationalist parties are threatening to derail upcoming elections unless the plan for ‘implementation’ through electoral law reform is adopted.

Minority Rights Group International respectfully set forward the following recommendations for the Committee of Ministers:

  • We urge the Committee of Ministers to adopt a strongly worded interim resolution directing BiH to submit an Action Plan on implementation before the next session, underscoring that:

    • Adoption of amendments to the constitution and electoral law must be a participatory process that ensures the inclusion of non-constituent minorities. This entails:

      • Direct participation of minorities and their representatives in the Task Force drafting amendments

      • Creation of a monitoring body that includes the plaintiffs in the Sejdic and Finci group of cases

      • Transparency and adherence to international standards on consultation of minority groups

    • Implementation requires amending the Constitution, not just the electoral law

  • The Interim resolution should:

    • Include a detailed timeline with deadlines on steps BiH must take to implement the judgment

    • Direct BiH to adopt specific mechanisms and safeguards to ensure that minority communities and CSOs can effectively participate in the consultation and drafting process of any legislative and constitutional amendments

    • Direct BiH to share any draft amendments to the electoral laws and constitution with the CoM prior to their adoption to ensure they comply with the Sejdic & Finci judgment

  • The Committee of Ministers should appeal to member states (particularly those involved in closed-door negotiations) and urge them to take appropriate action to ensure full compliance with the judgments of the Sejdić and Finci group of cases.

  Please see the slides for the full Briefing.

Relevant Documents

Rule 9.2 Submissions

EIN Civil Society Briefing September 2021: Hungary, Turkey, & Russia (Part 1)

/
Final Prt 1 EIN Civil Society Briefing.png

On 6 September 2021, EIN held the first session of its latest civil society briefing for permanent Representations of the Council of Europe, ahead of the Committee of Minister’s Human Rights Meeting on 14-16 September 2021. The event was held online due to the COVID-19 pandemic.

The first briefing focused on the following cases:

1. Baka v Hungary, which concerns the lack of access to 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. András Kádár, Co-Chair, Hungarian Helsinki Committee, and Dr  Dávid Vig, Director of Amnesty International Hungary, presented relevant developments, ongoing concerns and made recommendations for the implementation of this case.

2. A. 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; 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 Litigation Support Project.

2. B.  Kavala v Turkey, which concerns the unjustified and arbitrary detention of the applicant without providing objective evidence and with the ulterior purpose of reducing the applicant to silence. Emma Sinclair-Webb, Turkey Director of Human Rights Watch, presented relevant developments, ongoing concerns and made recommendations for the implementation of this judgment.

3. Oao Neftyanaya Kompaniya Yukos v Russia, which concerns violations concerning tax and enforcement proceedings brought against the applicant oil company, leading to its liquidation in 2007. Piers Gardner, Legal counsel of the injured parties and Barrister at Monckton Chambers, presented this briefing to participants.

The Baka v Hungary Case

Overview of the Baka v Hungary Case

This case concerns the undue and premature termination of the applicants’ mandates as President (Baka) of the former Hungarian Supreme Court through legislative acts of constitutional rank and therefore beyond judicial control, prompted by views and criticisms he expressed on reforms affecting the judiciary and exerting a “chilling effect.” The European Court of Human Rights found a violation of Articles 6 and 10 of the European Convention on Human Rights.

The Hungarian Helsinki Committee and Amnesty International Hungary reminded the participants of the areas that the Hungarian authorities have not fulfilled the implementation of the case:

  • not only failed to take any measures at all to implement the judgment, but

  • further deepened the chilling effect on the freedom of expression of judges, and

  •  continued to undermine the independence of the judiciary in general. 

The structural deficiencies that contribute to a chilling effect remain in place:

  • The Integrity policy is used to sustain a climate of self-censorship

  • Detailed recommendations of the National Judicial Council (NJC) to eliminate the power imbalance with NOJ President are disregarded (Resolution 99/2018)

  • The NOJ President and judicial leaders have full discretion in the distribution of fringe benefits and bonuses

Recent developments of examples of the chilling effect in Hungary:

  • Statements by high-ranking government politicians continue.

    • Máté Kocsis, parliamentary faction leader of ruling party Fidesz about suspended imprisonment imposed for possession of child pornography photographs: the judgment is “outrageous and unacceptable” (July 2020).

    • Tamás Deutsch, MEP of Fidesz about the acquittal of Béla Kovács, former MEP of opposition party Jobbik of espionage charges: talks about „independent” Hungarian courts (in quotation marks) and calls the acquittal„ net high-treason” (September 2020).

    • The new NOJ President speaks up against such communication, but he adds that it is only the first instance decision that may be overruled by the second instance. In June 2021, the judgment is overruled and Béla Kovács is found guilty of preparing espionage.

  • A Judge was forced out of the judiciary for political reasons.

    • Judge Gabriella Szabó referred to CJEU in 2018, as she deemed one of the cornerstones of the Hungarian government’s asylum policy might contradict EU Law. Her three-year tenure ended in June 2021. Her employer deemed her unsuitable for a judicial position.

  • Election of an external actor as President of the highest judicial body.

    • The election of András Zs. Varga, as President of the Kúria (Hungary’s highest judicial body), was made possible by three separate ad hominem legal amendments. Mr Varga was elected as a one-party political appointee in complete disregard for the manifest objection of the NJC and holds the same unlimited and uncontrollable powers concerning the appointment of judges and judicial leaders.

Hungarian Helsinki Committee and Amnesty International Hungary Recommendations to the Committee of Ministers:

  • Protect the integrity of the NJC’s judge members and guarantee that they can exercise their statutory rights and obligations of safeguarding judicial independence without any undue interference;

  • Amend the legislation providing the NOJ President with overly broad and excessive powers regarding the appointment of court leaders;

  • Provide a thorough de iure analysis of the Hungarian legislation identifying provisions capable of exerting a negative influence on judges;

  • Refrain from and condemn any public harassment, intimidation or retaliation against judges; abstain from any public critique, recommendation, suggestion or solicitation regarding court decisions that may constitute direct or indirect influence on pending cases or otherwise undermine the independence of judges;

  • Ensure that the remuneration of judges is based on a general standard and rely on objective and transparent criteria and phase out bonuses which include an element of discretion, and therefore potential arbitrariness;

  • Amend the law to ensure that judges may be reinstated to their former leadership position after it is concluded that their dismissal was unlawful;

  • Address the issue of judicial independence holistically and comprehensively, in line with the respective international standards and the specific recommendations for Hungary by international bodies.

Please see the slides for the full Briefing.

Relevant Documents

9.2 Submissions

Selahattin Demirtas (no 2) v. Turkey & Kavala v. Turkey

Overview of Selahattin Demirtas (no.2) v Turkey

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).

Overview of Kavala v Turkey

The Court’s found that the applicant’s arrest and pre-trial detention took place in the absence of evidence to support a reasonable suspicion he had committed an offence (violation of Article 5 § 1 of the Convention) and pursued an ulterior purpose, namely to silence him and dissuade other human rights defenders (violation of Article 18 taken in conjunction with Article 5 § 1); and that the one year and nearly five months taken by the Constitutional Court to review his complaint was insufficiently “speedy”, given that his personal liberty was at stake (violation of Article 5 § 4).

The Turkey Litigation Support Project and Human Rights Watch identified several ‘evasive judicial tactics’ adopted by Turkey to participants on the commonalities between Selahattin Demirtaş and Osman Kavala judgments. These tactics are used by Turkey to:

  1. Ensure the continuation of the detention of Mr Demirtaş and Mr Kavala for illegitimate political purposes.

  2. Argue before the CM that the individual measures namely the immediate release of the applicants have already been implemented.

  3. Claim that the ongoing detentions of Mr Demirtaş and Mr Kavala do not fall within the scope of the ECtHR judgments.

  4. Claim that their ongoing detentions are in the scope of ‘new’ charges or cases that are not covered in the Court’s judgments.

  5. Argue that the legal status of the applicants has changed detainee versus convict).

Tactic 1: ‘Issuing non-implemented or ‘sham’ release orders’

  • Used in both cases. The Turkish government has been arguing before the Committee that the individual measures of release have already been implemented as at one point in the proceedings the domestic authorities adopted release orders for Mr Demirtaş and Mr Kavala. In reality, however, both applicants were never released as these orders were always followed by re-detention and/or further imprisonment orders.

Tactic 2: ‘Initiating multiple criminal proceedings against the applicants on the same or similar factual and legal grounds’

  • Used in both cases. The Turkish authorities have cited multiple files, investigations, and cases relying on the same or similar factual and legal grounds as those already reviewed by the ECtHR and have used them as allegedly ‘new’ grounds to justify further detention orders, especially following the ECtHR judgment and/or the increased pressure from the Committee of Ministers.

Tactic 3: ‘Chain detention orders’

  • Used in both cases. Following the release orders that are not intended to be implemented, both applicants were re-detained for the same or similar facts, grounds, or charges already examined by the ECtHR. This has, so far, taken the form of (1) re-classification of the same facts and acts under different articles of the Penal Code; (2) re-activating other files and generating detention orders under them; and (3) expediting different procedures and concluding them with imprisonment decisions.

Tactic 4: ‘Unwarranted procedural decisions’

  • Used in both cases. The proceedings against the applicants are made complex by unwarranted joinder or dis-joinder decisions to first ensure prolongation of the detentions and second to make it more difficult for the Committee of Ministers to follow the proceedings. 

Tactic 5: ‘Expediting cases to obtain a conviction'

  • Used in relation to Mr Demirtaş, so far The proceeding before the Istanbul 26th Assize Court was expedited when the case was still pending before the ECtHR. It was concluded with a conviction and a prison sentence far higher than observed in any comparable cases known to human rights organizations. The appeal of Mr Demirtaş was rejected and the conviction became final in April 2021 while the CM was considering the next steps to take to ensure implementation. The government has been using this case repeatedly to argue before the CM that the ECtHR’s judgment does not apply to Mr Demirtaş’s ongoing imprisonment which is factually and legally incorrect as discussed in our submission on 23 July 2021. He is currently held in prison both as a convicted prisoner serving this sentence and as a pre-trial detainee in relation to the case before the Ankara 22nd Assize Court.

Turkey Litigation Support Project and Human Rights Watch Recommendations to the CM:

  • to take into account Turkey’s ‘evasive judicial tactics’ in its analysis of the developments in the domestic proceedings against Mr. Demirtaş and Mr. Kavala;

  • to determine its next steps in the judgment implementation supervision process accordingly; and

  • to adopt a holistic approach when assessing the state of implementation of the two ECtHR judgments and to take full consideration of the violation of Article 18

    (in Demirtaş Article 10 and Protocol 1 Article 3) as well as Article 5.

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 the criminal proceedings remaining within the scope of the Grand Chamber judgment constitutes a prolongation of the violation of his rights under the Convention, as found by the ECtHR;

  2. To underline 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 emphasise that restitutio in integrum in this case, requires the cessation of the persecution of Mr Demirtaş through criminal proceedings, in the form of future investigations, prosecutions and detentions, including pre-trial detentions, solely for his political activities and his political speech; and

  6. In the event that Selahattin Demirtaş remains in detention at the time of the 1411 DH 14 16 September 2021 meeting, to trigger infringement proceedings against Turkey under Article 46 (4) of the Convention.

Recommendations to the CM in relation to Osman Kavala v. Turkey judgment:

  1. Call on Turkey to comply with the ECtHR judgment and ensure the immediate and urgent release of Osman Kavala; and

  2. In the event that Osman Kavala remains in pre-trial detention at the time of the 1411th 16-18 September 2021 meeting, trigger infringement proceedings against Turkey under Article 46(4) of the Convention.

Please see the slides for the full Briefing.

Relevant Documents for Selahattin Demirtas (no.2) v Turkey

Rule 9.2 Submissions

CM Decisions

The Oao Neftyanaya Kompaniya “Yukos” v Russian federation Case

Overview of the “Yukos” Case

The case concerns different violations concerning tax and enforcement proceedings brought against the applicant oil company, leading to its liquidation in 2007, namely:

  • Insufficient time allowed for the preparation of its defence at first instance and on appeal during the 2000 tax-assessment proceedings (violation of Article 6 § 1, taken in conjunction with Article 6 § 3(b));

  • Unforeseeable imposition of penalties in the 2000-2001 tax assessments on account of the retroactive application of a subsequent Constitutional Court decision of 2005 defining in a new way the time-limit for liability for tax offences (violation of Article 1 of Protocol No. 1);

  • Failure to strike a fair balance in the enforcement proceedings between the legitimate aim pursued and the measures employed (violation of Article 1 of Protocol No. 1):

  • No global assessment of the consequences of the chosen enforcement actions for the applicant company;

  • Imposition of a fixed 7% enforcement fee completely out of proportion with the expenses incurred;

  • Unyielding inflexibility as to the pace of the enforcement actions.

Piers Garden, legal counsel of the injured parties and barrister at Monckton Chambers, reminded participants of the Russian authorities action plan of 2013 and voiced with regret that authorities have not taken any substantial steps to implement any of the measures advised by the Committee of Ministers.

Specifically,

  • That will be the eleventh time that the execution of the Yukos judgment has been examined by the CM-DH in the six and a half years since the Judgment became final.

  • The respondent Government have failed to fulfill their obligation under Article 46 § 1.

  • The amounts awarded in the judgment remain due and have been owed to the Yukos shareholders for almost 7 years.

Recent developments

Recommendations

  • The CM-DH should resolve to list the Yukos case on the agenda of each of its forthcoming meetings until its questions are answered and the judgment is complied with.

Relevant Information

Rule 9.1 Submission