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